PROJECT ON

VICARIOUS LIABILITY
LAW OF TORTS

SUBMITTED TO: SUBMITTED BY:

MRS. MANJEET KAUR GURBIR SINGH

ASSISTANT PROFESSOR (LAW) B.A.L.L.B. (SEMESTER 1)

SECTION: A

ROLL NO. : 16
 ACKNOWLEDGEMENTS

I would like to express my special thanks of gratitude to my teacher Mrs. Manjeet Kaur as well
as our principal Dr. Monika Sharma who gave me the golden opportunity to do this wonderful
project on the topic Vicarious liability, which also helped me in doing a lot of Research and i
came to know about so many new things I am really thankful to them.
Secondly i would also like to thank my parents and friends who helped me a lot in finalizing this
project within the limited time frame.

Gurbir Singh
 TABLE OF CONTENTS

Topic Page No.

Introduction 1
Principal and Agent 2
Partners 3
Master And Servant 3
Who is a servant 4
Servant and independent contractor distinguished 4
Liability of the employer for the act of an independent contractor 5
Liability of vehicle owners 5
Servant not under the control of master 5
Hospital cases 6

Lending a servant to another person 6

The course of employment7

Fraud of servant 8

Theft by servant 8

Mistake of servant 9

Negligence of servant 9

Acts outside course of employment 10

Giving lift to an unauthorized party 12

Giving lift with justification 13

The Doctrine of Common Employment 13

 TABLE OF CASES

A
Arumuga Mudaliar v. Annamalai Mudaliar, (1966) 2 M.L.J. 223.

B. Govndarajulu v. M.L.A. Govindaraja Mudaliar, A.I.R. 1966 Mad. 322.

Bhaiyalal v. Smt. Rajarani, A.I.R. 1960 M.P. 147.

Cassidy v. Ministry of Health, (1951) 1 All E.R. 574.

Century Insurance Co. Ltd. v. Northern Ireland Road Transport Board, (1942) A.C. 509.

Cheshire v. Bailey, (1905) 1 K.B. 237.

Conway v. George Wimpey and Co. Ltd., (1951) 2 K.B. 266.

Hamlyn v. Houston and Co., (1903) 1 K.B. 81.

Hillyer v. St. Bartholomew’s Hospital, (1909) 2 K.B. 820.

Kilari Mammi v. Barium Chemicals Ltd., A.I.R. 1979 A.P. 75.

Kundan Kaur (Smt.) v. S. Shankar Singh, A.I.R. 1966 Punjab 394.

Limpus v. London General Omnibus Co., (1862) 1 H. & C. 526.

Lloyd v. Grace, Smith and Co., (1912) A.C. 716.

Mariyam Jusab v. Hematlal, A.I.R. 1982 Guj. 23.

Mersey Docks and Harbour Board v. Coggins & Griffiths Ltd., (1947) A.C. 1.

Morris v. C.W. Martin & Sons Ltd., (1966) 1 Q.B. 716.

 O

Ormrod v. Crosville Motor Service Ltd., (1953) 2 All E.R. 753.

Poland v. John Parr & Sons, (1927) 1 K.B. 23.

Ricketts v. Thomas Tilling Ltd., (1915) 1 K.B. 644.

Roop Lal v. Union Of India, A.I.R. 1972 J. & K. 22.

State Bank Of India v. Shyama Devi, A.I.R. 1978 S.C. 1263.

Williams v. Jones, (1885) 3 H. & C. 602.

 VICARIOUS LIABILITY

INTRODUCTION

Generally, a person is liable for his own wrongful acts and one does not incur any liability for the
acts done by others. In certain cases, however, vicarious liability, that is the liability of one
person for the act done by another person, may arise. In order that the liability of A for the act
done by B can arise, it is necessary that there should be certain kind of relationship between A
and B, and the wrongful act should be, in a certain way, connected with that relationship. The
common examples of such a liability are:

1. Liability of the principal for the tort of his agent;

2. Liability of partners of each other`s tort;
3. Liability of the master for the tort of his servant.

When an agent commits a tort in the course of performance of his duty as an agent, the liability
of the principal arises for such a wrongful act. The agent is liable because he has done the
wrongful act. The principal is liable vicariously because of the principal – agent relationship
between the two. Both can be made liable for the same wrongful act. They are considered to be
joint tortfeasors and their liability is joint and several. In such a case, the plaintiff has a choice
either to sue the principal, or the agent, or both of them.

Similarly, when the wrongful act is done by one partner in the ordinary course of the business of
the firm, all the other partners are vicariously liable for the same. All the partners of the firm,
i.e., the guilty partner and others are considered to be joint tortfeasors. Their liability is also joint
and several.
The same rule applies in the case of master – servant relationship. The master is vicariously
liable for the wrongful act done by his servant in the course of employment. The liability of the
master, of course, is in addition to that of the servant.

The liability arising in different kinds of relationship is being discussed below.

PRINCIPAL AND AGENT

Where one person authorizes another to commit a tort , the liability for that will be not only of
that person who has committed it but also of that who authorized it. 1 It is based on the general
principle “Qui facit per alium facit per se” which means that “the act of an agent is the act of
the principal.” For any act authorized by the principal and done by agent, both of them are liable
their,liability is joint and several .

The authority to do the act may be express or implied. The principal generally does not expressly
ask his agent to do the wrongful act, but when the agent acts in the ordinary course of the
performance of his duties as an agent, the principal becomes liable for the same. In Lloyd v.
Grace , smith & co,2 Mrs. Lloyd , who owned two cottages but was not satisfied with the income
therefrom, approached the office of Grace, Smith & Co ; a firm of solicitors, to consult them
about the matter of her property. The managing clerk of the company attended her and advised
her to sell the two cottages and invest the money in a better way. She was asked to sign two
documents, which were supposed to be sale deeds. In fact, the documents got signed were gift
deeds in the name of the managing clerk himself. He then disposed of the property and
misappropriated the proceeds. He had acted solely for his personal benefit and without the
knowledge of his principal. It was held that since the agent was acting in the course of his
apparent or ostensible authority, the principal was liable for the fraud.

In State Bank of India v. Shyama Devi,3 the plaintiff `s husband gave some amount and cheques
to his friend, who was an employee in the defendant bank, for being deposited in the plaintiff `s
account. No proper receipt for the deposits was obtained. The bank employee misappropriated

1
Mclaughin v. Pryor (1942) Man . & G. 48.
2
(1912) A.C. 716.
3
A.I.R. 1978 S.C. 1263.
the amount. It was held by the supreme court that the employee, when he committed the fraud,
was not acting in the scope of bank`s employment but in his private capacity as the depositor`s
friend, therefore, the defendant bank could not be made liable for the same.

PARTNERS

The relationship as between partners is that of principal and agent. The rules of the law of agency
apply in case of their liability also. For the tort committed by any partner in the ordinary course
of the business of the firm, all the other partners are liable therefor to the same extent as the
guilty partner. The liability of each partner is joint and several.

In Hamlyn v. Houston & co4; one of the two partners of the defendant`s firm, acting with in the
general scope of his authority as a partner, bribed the plaintiff`s clerk and induced him to make a
breach of contract with his employer (plaintiff) by divulging secrets relating to his employer`s
business. It was held that both the partners of the firm were liable for this wrongful act (inducing
breach of contract) committed by only one of them.

MASTER AND SERVANT

If a servant does a wrongful act in the course of his employment, the master is liable for it. The
servant, of course, is also liable.The wrongful act of the servant is deemed to be the act of the
master as well.

“The doctrine of liability of the master for act of his servant is based on the maxim respondeat
superior, which means `let the principal be liable` and it puts the master in the same position as
if he had done the act himself. It also derives validity from the maxim qui facit per alium facit
per se, which means “he who does an act through another is deemed in law to do it himself5.”

Since for the wrong done by the servent , the master can also be made liable vicariously , the
plaintiff has a choice to bring an action against either or both of them. Their liability is joint and

4
1903 1 K.B. 81.
5
Baxi Amrik Singh v. The Union Of India (1973) 75 P.L.R.
several as they are considered to be joint tortfeasors. The reason for the maxim respondeat
superior (let the principal be liable) seems to be the better position of the master to meet the
claim because of his larger pocket and also ability to pass on the burden of liability through
insurance. The liability arises even though the servant acted against the express instructions, and
for no benefit of his master.

For the liability of the master to arise, the following two essentials are to be present:

1) The tort was committed by the `servant`.

2) The servant committed the tort in the `course of his employment`.

WHO IS A SERVANT

A servant is a person employed by another to do work under the directions and control of his
master. As a general rule, master is liable for the tort of his servant but he is not liable for the tort
of an independent contractor. It, therefore, becomes essential to distinguish between the two.

SERVANT AND INDEPENDENT CONTRACTOR DISTINGUISHED

A servant is an agent who is subject to the control and supervision of his employer regarding the
manner in which the work is to be done. An independent contractor is not subject to any such
control. He undertakes to do certain work and regarding the manner in which the work is to be
done. He is his own master and exercises his own discretion. An independent contractor is one
“who undertakes to produce a given result, but so that in the actual execution of the work, he is
not under the order or control of the person for whom he does it, and may use his own discretion
in things not specified beforehand6.” My car driver is my servant. If he negligently knocks down
X, I will be liable for that. But if I hire a taxi for going to railway station and the taxi driver
negligently hits X, I will not be liable towards X because the driver is not my servant but only an
independent contractor. The taxi driver alone will be liable for that.

6
Pollock on Torts, 15th ed. p. 62.
LIABILITY OF THE EMPLOYER FOR THE ACTS OF AN INDEPENDENT
CONTRACTOR

As a general rule, the master is liable for the torts committed by his servant, but an employer is
not liable for the torts committed by an independent contractor employed by him.

In Morgan v. Incorporated Central Council7, the plaintiff, while he was on a lawful visit to the
defendant`s premises, fell down from an open lift shaft and got injured. The defendants had
entrusted the job of keeping the lift safe and in proper order to certain independent contractors. It
was held that for this act of negligence on the part of the independent contractors in not keeping
the lift in safe condition, the defendants could not be made liable.

LIABILITY OF VEHICLE OWNERS

There are many cases of accidents caused by mechanics, repairers or owners of workshops
during test drive of the vehicles entrusted to them by the owners of the vehicles for repairs.

In B.Govindarajulu v. M.L.A. Govindaraja Mudaliar,8 after a motor lorry was entrusted by its
owner for repairs, while an employee of the repair workshop drove it, there was an accident. It
was held by the Madras High Court that for this accident, the owner of the lorry was not liable
vicariously, because the owner of the workshop was an independent contractor and not the
servant of the lorry owner.

SERVANT NOT UNDER THE CONROL OF MASTER

Though generally, a servant is under the control of his master regarding the manner of his doing
the work, there are various cases in which the master does not or cannot control the way in which
the work is to be done. For example, the captain of a ship or a surgeon in a hospital may be
servants even though they are not to be directed regarding the way they are to do their work.

In Rajasthan State Road Transport corp. v. K.N. Kothari,9 it has been held by the supreme
court that the transfer of effective control over a servant, would make the transferee of the
vehicle liable for vicarious liability.

In this case, the RSRTC hired a bus and a driver for running a bus on a specified route. The
RSRTC engaged a conductor, who managed the bus, collected fare from passengers and also
exercised control over the driver. It was held that for an accident caused by the driver, the hirer

7
(1936) I All E.R. 404.
8
A.I.R. 1966 Mad. 332.
9
A.I.R. 1997 S.C. 3444.
(RSRTC) was vicariously liable, notwithstanding the fact that the driver continued to be on the
payroll of the original owner.

HOSPITAL CASES

In Hillyer v. St. Bartholomew`s Hospital,10the hospital authorities were held not to be

vicariously liable for the negligence of the professional staff involving professional care and
skill, because they lacked the power of control over them. That position no more holds good and
now the hospital authorities are liable for the professional negligence of their staff including
radiographers, resident house surgeons assistant medical officers and nurses and part- time
anesthetists.

In Cassidy v. Ministry of Health,11 the hospital authorities were held liable when, due to the
negligence of the house surgeon and other staff, during post- operation treatment, the plaintiff`s
hand was rendered useless.

LENDING A SERVANT TO ANOTHER PERSON

When A lends his servant X to B, and X commits a tort against C, the question is who is to be
considered the master, A or B and whom can C sue for the tort committed by X. the answer to
this question depends upon various considerations, the main consideration being as to who of the
two masters has the authority to tell the servant not only what is to be done by him, but the way
in which he is to work.

In Mersey Docks & Harbour Board v. Coggins & Griffiths (Liverpool) Ltd,12a harbor board
owned a number of mobile cranes and had employed skilled workmen as the drivers of the
cranes. It was usual for the board to let out the mobile cranes, each driven by the skilled driver
employed by them. Certain stevedores hired a crane together with a driver for loading a ship.
Due to the negligence of the driver, while loading a ship, X was injured.

The House of Lords held that the harbor board, who was the general and permanent employer of
the driver, was liable to X. The stevedores were not liable, even though at the time of the
negligence, the driver was loading cargo for the stevedores. The reason for the decision was that,
although at the time of the accident, the stevedores had immediate control over the crane driver
in so far as they could direct him to pick up and move a particular cargo, but that alone could not
make them liable. They had no power to direct as to how the crane was to be operated.

In Smt . Kundan Kaur v. Shankar singh,13 Shankar Singh and Tarlok Singh, the partners of a
firm, temporarily gave their truck along with a driver on hire to one Jawahar Transport Co. for
transporting certain goods from one place to another. While the goods were being transported,
10
(1909) 2 K.B. 820.
11
(1951) 1 All E.R. 574
12
(1947) A.C. 1.
13
A.I.R. 1966 Punjab 394.
Kudan Lal Kohli, an employee of Jawahar Transport Co; seated himself by the side of the driver.
As a result of rash and negligent driving of the driver, the vehicle met with an accident and
Kundan Lal Kohli, who was sitting by the side of the driver, was instantaneously killed. The
High Court was of the view that there was only a transfer of services and not of control of the
driver from the general employer to the hirer of the vehicle and as such, Shankar Singh and
Tarlok Singh were liable for the same.

CASUAL DELEGATION OF AUTHORITY

For the purpose of vicarious liability, it is not necessary that there must be a long- term master-
servant relationship. Even when a person, for a single transaction, authorizes another to do
something for him and the latter does it negligently, the former can be made liable for the same.
This may be explained by referring to the case Ormrod v. Crosville Motor Service Ltd;14 which
relates to the liability of the principal for the tort of his agent. In this case, the owner of a car
requested his friend to drive the car from Birkenhead to Monte Carlo so that on reaching there,
they could use the car for a joint holiday. Shortly after leaving Birkenhead, the friend driving the
car, caused an accident. It was held that the owner of the car was liable for such negligence of his
friend.

THE COURSE OF EMPLOYMENT

A master, like a principal, is liable for every tort which he actually authorizes. The liability of a
master is not limited only to the acts which he expressly authorizes to be done but he is liable for
such torts also which are committed by his servant in the course of employment. An act is
deemed to be done in the course of employment, if it is either:

1) A wrongful act authorized by the master, or

2) A wrongful and unauthorized mode of doing some act authorized by the master. So, a
master can be made liable as much for unauthorized acts as for the acts he has authorized.
However, for an unauthorized act, the liability arises if that is within the course of
employment, i.e.; it is a wrongful mode of doing that what has been authorized. Thus, if I
authorize a servant to drive and he drives negligently,15 or I authorize a servant to deal
with the clients and he deals with them fraudulently, or if I authorize a servant to help the
railway passengers, but he mistakenly causes harm to them,16 in each servant is doing the
act which he has been authorized to do but his mode of doing is wrongful. Each one of
these acts is, therefore, with in the course of employment and the master can be made
liable for the same.

14
(1953) 2 All E.R. 753.
15
Limpus v. London General Omnibus Co. (1862) I H. & C. 526.
16
Bayles v. Manchester, Sheffield and Lincolnshire Ry (1873) L.R. 8 C.P. 148.
FRAUD OF SERVANT

When a servant, while in the course of the performance of his duties as such, commits a fraud,
the master would be liable for the same.

In Lloyd v. Grace Smith & Co;17 the House of Lords held that when a servant is acting in the
course of the business, the master will be liable, even though the servant was acting for his own
benefit, rather than that of the master. In Lloyd`s case, Mrs. Lloyd, a widow, who owned two
cottages called at the office of Grace, Smith & Co; a firm of solicitors, to consult them as she
was not satisfied with the income she was having from her property. She was attended by the
managing clerk of the company. The managing clerk advised her to sell the cottages and sign
two sale deeds for that purpose. She was made to sign two documents which were supposed to be
sale deeds. In fact, they were gift deeds in favor of the managing clerk himself. He then disposed
of the property for his own benefit. The House of Lords unanimously held that Grace, Smith &
Co. were responsible for the fraud of their agent, even though the agent was acting for his
personal benefit and they had no knowledge of the fraud, as the fraud was committed by the
agent while acting in the course of his apparent or ostensible authority.

THEFT BY SERVANT

Theft of goods bailed to the master

In Cheshire v. Bailey,18 it was held that if the servant committed a theft of a third person`s
property which had been bailed to the master, the master could not be vicariously made liable for
the same because the servant`s act of committing the theft was considered to be outside the
course of employment. This decision was over ruled by the court of appeal in 1965 in Morris v.
C.W. Martin & Sons Ltd.19 In this case, the defendants were the bailees of a fur coat given to
them for cleaning. They gave this coat to their servant, Morrisey for cleaning. Morrisey stole the
coat instead of cleaning the same. It was held by the court of Appeal that the act of the servant in
stealing the coat, to whom the same had been entrusted for cleaning, was a wrongful act done in
the course of employment and the master, i.e., the defendants, could be made liable for the same.

Theft of goods not bailed to the master

In Roop Lal v. Union of India,20 the question which had arisen before the J. & k. High Court
was regarding the liability of the master for the theft committed by his servants of the plaintiff `s
property which had not been bailed to the master. In that case, some military jawans, who were
in the employment of the central Government, lifted some firewood belonging to the plaintiff
and carried the same away in military vehicles for the purpose of camp fire and fuel. The
question arose whether the act of the jawans could be considered to be in the course of
17
(1912) A.C. 716.
18
(1905) 1 K.B. 237.
19
(1966) 1 Q.B. 716.
20
A.I.R. 1972 J. & K. 22.
employment so as to make the union of India liable for the same. It was held that the act of the
jawans fell within the course of employment and the Union of India was liable for same.

MISTAKE OF SERVANT

Where a servant having a lawful authority to do some act on behalf of his master makes an
erroneous or excessive use of the authority causing loss to the plaintiff, the master will be liable
for the same. A servant has an implied authority to protect the property of his master. If a
servant, in an attempt to perform such a duty uses excessive force, the act will fall in the course
of employment.

Poland v. Parr & Sons21 is an illustration of the same. In that case, a carter suspected on
mistaken but reasonable grounds that some boys were pilfering sugar from his employer`s
wagon. In order to prevent the theft and protect the employer`s property, he struck one of the
boys. The boy fell, was run over by the wagon and consequently lost his leg. The act of the
carter, though excessive, was not so much excessive that the same could be considered to be
outside the class of acts which the servant had an authority to do. The master was, therefore, held
liable for the same.

NEGLIGENCE OF SERVANT

If a servant is not careful in the performance of his duties and his conduct causes any loss to a
third party, the master would be liable for the same. Sometimes, a servant may do some act,
while performing the duties assigned to him by the master, for his own convenience or comfort.
The question which in such case arises is how far the act is to be considered to be within the
course of employment.

In Williams v. Jones,22 the defendant`s servant, a carpenter, was required to do his work in the
plaintiff`s shed. While engaged in his work, the carpenter lighted his pipe negligently and the
same set fire to the plaintiff`s shed. The majority of the court of Exchequer chamber decided that
the carpenter`s negligent act had nothing to do with the purpose of his employment and,
therefore, the defendant could not be made liable for the same. Mellor and Blackburn JJ.
Dissented. In their opinion, lighting the pipe negligently was a wrongful way of performance of
his duties.

The House of Lords in Century Insurance Co. v. Northern Ireland Road Transport Board23
preferred the dissenting opinions in the above stated case. In century`s case, A`s servant, the
driver of a petrol lorry, while transferring petrol from the lorry to an underground tank stuck a
match to light a cigarette and threw it on the floor. This resulted in a fire and an explosion
causing damage to B`s property.

21
(1927) 1 K.B. 23.
22
(1885) 3 H. & C. 602.
23
(1942) A.C. 509.
Though the driver lighted the cigarette for his own comfort, yet it was a negligent method of
conducting his work. The act, being in the course of employment, A was liable for the driver`s
negligence.

ACTS OUTSIDE COURSE OF EMPLOYMENT

When a servant does any act which is not in the course of master’s business, the same is deemed
to be outside the course of employment. An act may be in the course of employment even
through that is not strictly in the performance of the duties of a workman, for example, a
workman driving a little away from the place of his work for his midday meal.24 But , if certain
workmen, who are permitted to use their master`s vehicle for having refreshment, decided to go
for tea to a cafe at a distance of seven miles, and on their way back due to negligence of one of
them, another workman is killed, the negligent act of the workman cannot be considered to be
within the course of employment and the master cannot be held liable for the same. Thus, if a
workman goes “on a frolic of his own” rather than doing something which is connected with the
performance of his duties, the master cannot be made liable for the same.

In State Bank of India v. Shyama Devi,25the respondent, Mrs. Shyama Devi, opened a savings
Bank Account with plaintiff `s predecessor (Imperial Bank of India) at its Allahabad Branch. The
respondents gave some cash and a cheque to one Kapil Deo Shukla, who was a friend of the
respondent`s husband and employed in the said bank, for being deposited in her account. The
said payments were made to Kapil Deo Shukla in his capacity as the respondent`s husband`s
friend. No receipt or voucher was obtained indicating the said deposit. The Bank`s servant,
instead of making the deposits in the respondent`s account, got the cheque cashed and
misappropriated the amount. He, however, made false entries in the respondent`s Pass Book and
Bank`s ledgers. It was held by the Supreme Court that the servant had acted outside the course of
employment and the appellant bank could not be made liable for the fraud committed by such
servant.

When the act of the servant is altogether of a different kind than what was authorized by the
master, the act is considered to be outside the course of employment and the master cannot be
made liable for the same.

NEGLIGENT DELEGATION OF AUTHORITY BY THE SERVANT

The position as mentioned above has to be distinguished from a situation where a third party
performs the act at the instance of the servant himself. In other words, if a servant negligently
delegates his authority and instead of him carefully performing a duty allows it to be negligently
performed by another person, the master will be liable for such negligence of the servant. Thus,
if a driver instead of himself driving the bus allows somebody else to drive the same, it would
amount to negligent mode of performance of the duty by the driver. If that other person, whom
24
Harvey v. R.G.O. Dell Ltd ( 1958) 2 Q.B. 78.
25
A.I.R. 1978 S.C. 1263.
the driver has thus authorized to drive, causes an accident, the master will be liable for the
consequences. The reason for such a liability of the master is not that the person (other than the
driver) while driving the bus was acting in the course of employment but that the driver`s
original negligence in delegating his authority to drive is the effective cause of the accident.

In Ricketts v. Thomas Tilling Ltd;26 the driver of a bus seated himself by the side of the
conductor and permitted the conductor to drive the bus for the purpose of turning the omnibus in
the right direction for the next journey. The conductor drove the bus so negligently that it
mounted the pavement, knocked down the plaintiff and seriously injured him. It was held that the
master was liable for negligence on the part of the driver in allowing the conductor to drive
negligently. Pickford L.J; while explaining the position, stated that “the fact that he allowed
somebody else to drive does not divest him of the responsibility and duty he has towards his
master to see that the omnibus is carefully, and not negligently, driven.”

In Kilari Mammi v. Barium Chemicals Ltd;27 the driver of a jeep left the ignition key in the
jeep and went to the tailor`s shop. This provided a chance to B to drive the jeep and that resulted
in the accident. It was held that for such negligence of the driver, his master was liable.

In Ilkiw v. Samuels,28 the lorry driver employed by the defendants permitted a stranger to drive
the lorry. While the stranger was driving the lorry negligently an accident was caused. It was
held that the defendants were liable for the negligence of the driver in permitting a stranger to
drive the lorry.

EFFECT OF EXPRESS PROHIBITION

Sometimes, the employer forbids his servant from doing certain acts. It does not necessarily
follow that an act done in defiance of the prohibition is outside the scope of employment. If
prohibition were to be a defence, every employer would escape the liability by issuing orders to
his servants forbidding them from committing any tort.

In Limpus v. London General Omnibus Co;29 the defendant’s driver, in defiance of the express
instruction not to race with, or cause obstruction to, other omnibuses, tried to obstruct a rival
omnibus, and thereby caused an accident. The driver had been engaged to drive and his act was a
negligent mode of driving and it was held to be within the course of employment, in spite of the
express prohibition. The defendant company was held liable.

GIVING LIFT TO AN UNAUTHORISED THIRD PARTY

26
(1915) 1 K.B. 644.
27
A.I.R. 1979 A.P. 75.
28
(1963) 1 W.L.R. 991.
29
(1862) 1 H. & C. 526.
In Conway v. George Wimpey and Co. Ltd;30 the position was similar to that in Twine’s case.
There, the defendants, who were a firm of contractors, engaged in a building work at an
aerodrome, had provided Lorries for conveying their employees to various sites. A notice was
displayed in every lorry that the driver was under strict order not to carry passengers other than
those employed by the defendants and that any other person travelling in the lorry did so at his
own risk. Oral instructions to that effect were given to the drivers as well. The plaintiff, who was
a labourer in another firm, was given lift by the driver of one of the defendant`s lorries and was
injured due to the driver`s negligence. It was held that the act of the driver in giving lift being
outside the scope of his employment, the defendants were not liable to the plaintiff. It was
observed that giving lift to an unauthorized person “was not merely a wrongful mode of
performing the act of the class this driver was employed to perform but was the performance of
an act of a class which he was not employed to perform at all.

POSITION IN INDIA

The trend of the decisions of various High Courts in India appears to have discarded the
approach of the decision in the Twine or Conway cases, referred to above. In Mariyam Jacob
v. Hematlal,31 the Gujarat High Court did not follow Conway’s Case on the ground that there
was an express prohibition to the driver of a Government vehicle in giving lift to a stranger even
though he was supposed not to give lift to the strangers. In other words, according to this
decision, when there is no express prohibition, giving lift to an unauthorized person by the
driver, makes the master vicariously liable. In this case, the driver of a water tanker, belonging to
the state, gave lift to an unauthorized person, there was an accident and the person taking the lift
was killed. Since there were no express instructions to the driver, forbidding the giving of lift to
strangers, the state was held vicariously liable.

The Madhya Pradesh High Court, in an earlier decision, Bhaiylal v. Rajrani32 followed the
Twine and Conway Cases and held that giving lift to an unauthorized person was the
performance of the act totally outside the course of employment and the master was not liable for
the consequences of giving of such lift. The High Court subsequently (in 1979) overruled its
earlier decision and in Narayanlal v. Rukhmanibai,33 it was held that the act of a servant,
employed to drive a vehicle, from one place to another, in giving lift to a person, in disregard of
a statutory rule or prohibition while driving the vehicle in exeution of the owner`s business, is an
act for which the owner is vicariously liable.

The Punjab & Haryana High Court in its Full Bench decision in Prithi Singh v. Binda Ram,34
overruled its earlier decision and dissented from the decisions of the Karnataka and the Bombay
High Courts and held that when a servant has been employed to drive a vehicle, his act of giving
30
(1951) 2 K.B. 266.
31
A.I.R. 1982 Guj. 23.
32
A.I.R. 1960 M.P. 147.
33
A.I.R. 1979 M.P. 74.
34
A.I.R. 1987 P. & H. 56.
lift to a person, in disregard of a statutory rule or prohibition while driving the vehicle in
execution of the master`s business is an act within the course of employment, and the master
should be vicariously liable for the same.

GIVING LIFT WITH JUSTIFICATION

The position would be different when there is no such prohibition regarding lift to a third person
and where there appears to be an implied authority vested in the driver to give the lift. Such
authority was presumed by the supreme court in Pushpabai v. Ranjit Ginning and Pressing
Co.35 In this case, Shri M.M. Ved, manager of the respondent, i.e., Ranjit Ginning and Pressing
Co; who was driving a car and going on the company`s business, gave lift to another employee
(Purshottam) of the company. There was an accident due to the negligence of the manager-driver
and the employee taking the lift was killed. In an action by the widow of the deceased and his
children against the employer to make him vicariously liable for the negligent driving by the
manager, one of the questions was whether giving lift to another employee was an act within the
course of employment. The Supreme Court held that the right to permit another employee to take
lift in the car was within the ostensible authority of the manager of the company who was driving
the car and, therefore, the manager was acting in the course of employment. The respondents
were held liable.

THE DOCTRINE OF COMMON EMPLOYMENT

POSITION IN ENGLAND

The rule known as the doctrine of common Employment was an exception to the rule that a
master is liable for the wrongs of his servant committed in the course of his employment.

In Priestley v. Fowler,36 the plaintiff, who was the defendant`s servant, was injured at his thigh
due to breaking down of an overloaded carriage in the charge of another servant of the
defendant. Since both the wrongdoer and the injured person were the servants of the same
master, the doctrine of common employment was applicable and the master was held not liable.

The essentials for the application of the defence of common employment are:

1) The wrongdoer and the person injured must be fellow servants, and

2) At the time of the accident, they must have been engaged in common employment.
35
A.I.R. 1977 S.C. 1735.
36
(1837) 3 M. & W. 1.
The doctrine was supposed to be based upon an implied contract of service that the servant
agreed to run risks naturally incident to the employment, including the risks of negligence on the
part of his fellow employee. If the harm was caused by the employer`s own negligence, the
employee could recover, unless the employee`s claim was defeated because of his contributory
negligence. Mere knowledge of the risk by the workmen was, however, no defence.

If X was injured by the negligence of A`s servant and X himself also happened to be A`s servant,
X could not recover for that from A. If X himself was not A`s servant, he could successfully
bring an action against A. The doctrine was obviously unjust.

The doctrine was criticized, limited in scope by legislation and judicial decisions and eventually
abolished by the Law Reform (Personal Injuries) Act, 1948.

POSITION IN INDIA

In Governor General in council v. Zena Wells,37 the privy council held that the doctrine of
common Employment was applicable in India, although its scope has been limited by the Indian
Employers` Liability Act, 1938, S. 3(d) . In that case, the plaintiff`s husband, who was fireman in
the defendant`s railway was killed in an accident caused by the negligence of a fellow employee,
a railway driver. The privy council held that the defence of common employment was available
to the defendant and the plaintiff`s claim for compensation was dismissed. A part from the
Employers` Liability Act, 1938, the scope of the doctrine has also been limited by The
workmen`s compensation Act, 1923, the Employees` state Insurance Act, 1948 and the personal
Injury (Compensation Insurance) Act, 1963 which imposed liability on the employers to
compensate their employees in various cases.

Due to the difficulty created by the privy council`s decisions in Constance Zena Wells` case,
which still recognized the defence of common Employment in India, section 3 of Employers`
Liability Act, 1938 has been amended in 1951. By this amendment, the defence of common
Employment, as such has been abolished in India.

The doctrine of common Employment is, therefore, only of historical importance, both in India
and England.

The law with regard to the vicarious liability is evolving and developing. Over the years, the
approach of the courts is becoming more liberal and the trend is moving towards making the
master liable for the acts of the servant. Besides, the judicial pronouncements, the concept of no
fault liability have been introduced in the motor vehicles Act, 1988. The trend is, thus, to make
the master responsible for the acts of the servant.

37
A.I.R. 1950 P.C. 22.
 BIBLIOGRAPHY

Books

David Price and Korieh Duodu, Defamation; Law, Procedure and Practice, Sweet and Maxwell,
Third Edition, 2004, London

R. K. Bangia, Law of Torts, Allahabad Law Agency, Nineteenth Edition, 2006, Haryana

S.K. Desai and Kumud Desai, Ramaswamy Iyer’s The Law of Torts, Seventh Edition, 1975,
Bombay

Justice G.P. Singh, Ratanlal and Dhirajlal, The Law of Torts, Wadhwa and Company, Nagpur,
Twenty-Fourth Edition, 2007, Delhi

Websites

https://en.wikipedia.org/wiki/Vicarious_liability

www.legalservicesindia.com/article/1634/Vicarious-Liability-in-India.html

https://injury.findlaw.com/medical-malpractice/vicarious-liability.html