Vicarious liability

1. Meaning and basis

Ordinarily a person is liable only for his own wrongs. Vicarious liability is liability for a tort committed by another, because of a relationship between them. The commonest relationships are master and servant, principal and agent, and partners. The wrongdoer remains personally liable; the master is liable jointly with him.

Two maxims are given as the basis:

• Qui facit per alium facit per se: he who does an act through another does it himself. The servant’s act is treated as the master’s.
• Respondeat superior: let the principal answer. The superior must answer for those under his control.

The real justifications are practical. The master has the deeper pocket and can insure; he takes the profit of the enterprise and should bear its risks; and liability makes him careful in choosing and supervising servants.

2. Who is a servant?

A servant works under a contract of service; an independent contractor works under a contract for services. The traditional control test asks whether the employer can direct what is to be done and also how it is to be done. A chauffeur is a servant; a taxi driver hired for a journey is an independent contractor. The control test does not suit skilled employees such as surgeons, so courts also use the integration test (is the work an integral part of the business?) and look at the whole relationship: who pays, who supplies tools, who bears risk of loss.

Where a servant is lent to another employer, the general employer remains liable unless control has passed fully to the hirer (Mersey Docks and Harbour Board v. Coggins and Griffith, 1947).

3. Course of employment

Salmond’s formula: a master is liable for a wrongful act of his servant done in the course of employment, which covers (a) a wrongful act authorised by the master, or (b) a wrongful and unauthorised mode of doing some act authorised by the master. The master is not liable for an act that is independent of the employment.

Cases where the master was liable.

• Limpus v. London General Omnibus Co. (1862). A bus driver, forbidden to race, raced a rival bus and caused a collision. Liable: racing was an improper mode of driving, which was his job.
• Century Insurance Co. v. Northern Ireland Road Transport Board (1942). A driver delivering petrol lit a cigarette and threw away the match while the petrol was being transferred to a tank. The explosion damaged the premises. Liable: he was doing his work, though in a grossly negligent way.
• Lloyd v. Grace, Smith & Co. (1912). A solicitors’ managing clerk induced a widow client to transfer her properties to him and then misappropriated them. The firm was liable for his fraud, though committed for his own benefit, because he acted within his ostensible authority. The House of Lords overruled the older view that the master is liable only for frauds committed for his benefit.
• Rose v. Plenty (1976). A milkman, against orders, took a boy on his float to help deliver milk; the boy was injured. Liable: the boy was carried for the purpose of the master’s business.
• Pushpabai Purshottam Udeshi v. Ranjit Ginning & Pressing Co., 1977 INSC 100, AIR 1977 SC 1735. The company’s manager, driving the company car, gave a lift to a person who died in an accident caused by his negligence. The Supreme Court held the company liable: the manager was acting within the scope of his authority, and the Court preferred the wider modern view of course of employment.

Cases where the master was not liable.

• Beard v. London General Omnibus Co. (1900). A conductor, in the driver’s absence, drove the bus to turn it round and injured the plaintiff. Driving was not part of his job at all.
• Twine v. Bean’s Express (1946). A driver gave a lift to a hitch-hiker against express orders, and the hitch-hiker was killed. Not liable: carrying him had nothing to do with the master’s business (contrast Rose v. Plenty).
• State Bank of India v. Shyama Devi, 1978 INSC 105, AIR 1978 SC 1263. The plaintiff’s husband handed cash and a cheque to a bank employee, a friend of his, for deposit in his account, without any receipt or pay-in slip in the bank’s procedure. The employee misappropriated the money. The Supreme Court held the bank not liable: the employee received the money as a friend, not in the course of his employment, so the act was outside it.

Frolic of his own. A servant who departs from the master’s business for his own purposes, such as a long detour for a personal errand, is on “a frolic of his own” and the master is not liable. A minor deviation does not take him out of the course of employment. In recent English law, for deliberate wrongs, the test is whether there is a close connection between the wrong and the work (Lister v. Hesley Hall Ltd., 2001).

4. Independent contractors

The employer of an independent contractor is generally not liable for his torts, because he has no control over how the work is done. The exceptions are:

• where the employer authorises or ratifies the tort, or is himself negligent in selecting the contractor or giving instructions;
• extra-hazardous work: Honeywill and Stein Ltd. v. Larkin Bros. (1934), where photographers using magnesium flash set fire to a cinema;
• strict liability under Rylands v. Fletcher, where the contractor built the reservoir;
• work on or over a highway: Tarry v. Ashton (1876), a lamp projecting over the street (see the note on nuisance); and
• non-delegable statutory duties, such as a duty to fence machinery.

5. Principal and agent; partners

A principal is liable for torts committed by his agent within the scope of the agent’s authority, actual or ostensible (Lloyd v. Grace Smith is also an agency case). Under section 26 of the Indian Partnership Act, 1932, a firm is liable for a wrongful act or omission of a partner acting in the ordinary course of the business of the firm, or with the authority of his partners, to the same extent as the partner. In Hamlyn v. Houston & Co. (1903) a firm was liable when a partner bribed a rival’s clerk to obtain confidential information.

6. Liability of the State

Under Article 300 of the Constitution the State is vicariously liable for its servants’ torts in the course of employment, as a private employer would be, unless the act was done in the exercise of a sovereign function: State of Rajasthan v. Vidyawati (1962, liable for a government driver) and Kasturilal (1964, not liable for police negligence in custody of seized gold). Later cases have narrowed the immunity. This is covered in full in the Constitutional Law II note on state liability in tort and contract.

7. Problem

A bus conductor, annoyed with a passenger who refused to pay, pushed him off the running bus. The passenger was injured. Is the bus company liable?

Issue. Whether the assault was committed in the course of the conductor’s employment.

Law. A master is liable for an unauthorised mode of doing an authorised act (Limpus, Century Insurance), and even for a servant’s deliberate wrong if it is closely connected with the work (Lloyd v. Grace Smith, Lister).

Application. Collecting fares and keeping order on the bus are part of the conductor’s job. Removing a passenger who will not pay is an improper and excessive way of doing that job; it is not a personal quarrel unconnected with work.

Conclusion. The company is vicariously liable along with the conductor. If the conductor had attacked the passenger later, off duty, over a private dispute, the company would not be liable.

How this is examined

As an essay: “Explain the vicarious liability of the master for the torts of his servant” (asked in recent KSLU papers). Cover the basis, the servant / contractor distinction, course of employment with cases on both sides, and a paragraph each on independent contractors and the State. As short notes: qui facit per alium facit per se, Lloyd v. Grace Smith, or liability for independent contractors. Problems usually involve a driver or conductor and are answered from section 3.