Vicarious Liability

•General rule – a person only liable for the

wrongs committed by oneself – not liable for
the wrongs committed by others
•Vicarious liability is an exception
• Liability of one person for the act done by
another person
•Existence of fiduciary relationship
 Vicarious Liability
•1. Liability of the principal for the act of
agent
•2. Liability of partners for each other’s
actions
•3. Liability of the master for the act of
servant
 1. Liability of the principal for the act of agent
•Qui facit per alium facit per se
• The act of an agent is the act of the principal
•Act authorised by the principal and done by
the agent-
• Principal is also (along with the agent) liable
to the aggrieved person
 Llyod v. Grace, Smith & Co., (1912)
• Mrs Llyod owned two cottages – not satisfied with the
income therefrom – went to defendant solicitor firm
for advice
• Managing clerk advised to sell cottages and invest
elsewhere – sale deeds were executed by them
• But they were gift deeds in favour of clerk – Clerk sold
the property and misappropriated the money
• Can clerk’s boss be held liable for the act of the clerk?
• Yes – agent acting in the course of his authority
 State Bank of India v. Shyama Devi, SC (1978)
• Plaintiff’s husband gave money and cheques to his friend
• Friend was employee in defendant bank
• Purpose – money to be deposited in plaintiff’s account
• Receipts were not given
• Friend (bank employee) misappropriated the amount
• Is the bank liable?
• No, agent not acting in the course of his duty
• Agent acting in the capacity of friend and not bank
employee
 Ormrod v. Crosville Motor Service Ltd.,
(1953)
• Owner of car asked his friend to drive his car
• While the car was being driven by friend, it
collided with bus
• Can the owner be held liable?
• Yes (as long as the car is being used completely
or partly for owner’s purpose).
 Tirlok Singh v. Kailash Bharti, (1986) P&H
•Owner of motor cycle outside country
•His younger brother took the vehicle without
his knowledge or permission and caused
accident
•Who is liable? Owner or younger brother?
•Younger brother and not the owner
 •2. Partners
•Relation between partners = principal and
agent
•A partner is principal for himself and agent
for other partners
•Principal liable for the acts of agent done in
the course of employment
 •3. Master and Servant
•Master liable for a wrongful act of servant
done in the course of employment
•Respondeat Superior = Let the master
answer; Let the master be liable
•Qui facit per alium facit per se = He who
does an act through another is deemed in
law to do it himself
 •3. Master and Servant
•General Rule - Master liable for a wrongful
act of servant and not an independent
contractor
•Servant – Contract of Service
•Independent Contractor – Contract for
Services
 Servant Independent Contractor
(Contract of Service) (Contract for Services)
• Subject to the control and • Not subject to any such
supervision of master control; Regarding the
• regarding the manner in manner in which the work
which the work is to be is to be done –
done • he is his own master and
• Right to control the method exercises his own
of doing the work discretion
• What and how? • Only What.
• E.g. My car driver • E.g. Hiring a taxi
• Morgan v. Incorporated Central Council, (1936)
• Plaintiff while visiting defendant’s premises, fell
down from a open lift shaft, got injured
• Deft. had given the lift maintenance contract to
independent contractors
• Can deft. be held liable to the plaintiff?
• No.
 • B. Govindarajulu v. MLA Govindaraja
Mudaliar, (1966) Mad. HC
• Motor lorry given by owner to another for
repairs – Employee of workshop took it for test
drive – met with accident – plaintiff injured
• Who is liable?
• Employee? Workshop owner? Lorry Owner?
• Lorry owner not liable.
• See also Devinder Singh v. Mangal Singh, (1981) P&H HC
• Exceptions to the General Rule - Master liable
for a wrongful act of servant and not an
independent contractor
• Cases for Strict Liability (Rylands v. Fletcher)
1868
• Maganbhai v. Ishwarbhai, (1984) Guj. HC
• Chief trustee of a temple hired an electric
contractor – to illegally divert electricity given
to farm toward temple for one month
• Lighting and mic in the temple – work was done
in dangerous manner and without informing
Electricity Board
• After 15 days, live wire got cut and one farmer got
injured who came in contact with wire
• Is chief trustee liable?
• Yes, plus, the owner of the field from whose meter
the connection was taken with his knowledge, also
liable
• See also Tarry v. Ashton, (1876)
 Servants not under the control of
master?
• E.g. Pilot of a aircraft, captain of the ship, doctor
employed in a hospital, etc.
• New test – Hire and Fire
• Person having power to hire and fire is
vicariously liable for the acts of such employee
 Mersey Docks and Harbour Board v. Coggins &
Griffiths (Liverpool) Ltd. (1947)
• Harbour board owned number of cranes and had
employed skilled workmen as drivers
• They used to let out the cranes along with
drivers
• Few stevedores hired the cranes and drivers to
load a ship
• Due to negligence of one driver, X got injured
 Mersey Docks and Harbour Board v. Coggins &
Griffiths (Liverpool) Ltd. (1947)
• Who is liable?
• Driver only? Stevedores who hired them? Or
Harbour Board who were the original
employers?
• Harbour board vicariously liable and not the
Stevedores
Smt. Kundan Kaur v. Shankar Singh (1966) P&H
• Shankar and Tarlok, partners of a firm –
temporarily gave their truck and driver on hire to
Jawahar Transport Co. for their transport
• Negligent driving – one employee of JTC,
Kundan Lal Kohli sitting beside the driver died
• Can Shankar and Tarlok be held liable?
• Yes.
 The Course of Employment
•Principal/Master liable for the acts of the
agent/servant done in the course of
employment
•1. a wrongful act authorised by the master
•2. a wrongful and unauthorised mode of
doing a rightful act authorised by the
master
 National Insurance Co., Kanpur v. Yogendra Nath,
1982 All. HC
• Owner of car asked servants to look after the car as
he was going out of town for long period
• One servant took the car to petrol pump – checking
oils, air pressure in tyre, etc.
• Negligently injured 2 boys on a bicycle
• Was the act within the course of employment?
• Yes, hence owner liable.
• E.g. A asks his servant to buy groceries
from the market – Servant commits
defamation against the shop owner in the
market
• Is A liable?
• No, act of servant is not in the course of
employment
 Theft by Servant?
• (A) Theft of goods bailed to the master
• Cheshire v. Bailey, (1905) - Goods were bailed
to the master – servant committed theft – Is the
act of servant in the course of employment?
• No – Master not liable
• But this case was overruled…
• But the case was overruled in Morris v. C. W. Martin
& Sons Ltd., (1966)
• Fur coat given to defendants for cleaning
• Deft. gave it to their servant for cleaning
• Servant stole it instead of cleaning
• Is this act in the course of employment?
• Yes, hence defendant liable.
• (B) Theft of goods not bailed to the master?
• Roop Lal v. Union of India, (1972) J&K HC
• Military Jawan took firewood belonging to the
plaintiff and carried them away in military truck
• Is this act in the course of employment?
• Yes and hence, UOI is liable vicariously.
 Mistake of Servant?
• Poland v. John Parr & Sons, (1927)
• A servant suspected that some boys were stealing
sugar from his master’s wagon (vehicle)
• To prevent theft, he struck one boy; boy fell down the
wagon, wagon ran over his leg and boy lost his leg
• Boys were not stealing anything, servant committed a
mistake
• Is master liable?
• Yes.
 Mistake of Servant?
• Bayley v. Manchester, Sheffield and Lincolnshire
Railway, (1872)
• Defendant’s porter (coolie) – job was to help
passengers board the correct train – porter thought
one passenger was in the wrong train
• Removed him forcibly and violently – passenger
suffered injuries
• Is deft. liable?
• Yes
 Negligence of Servant?
• Williams v. Jones (1885)
• Defendant’s servant, a carpenter working in the
plaintiff’s shed
• While working, he lighted his pipe negligently and
caused fire to the plaintiff’s shed
• Is deft. liable?
• No, servant’s act was not connected to the purpose of
the employment, hence no vicarious liability
• Not a good law
 Negligence of Servant?
• Century Insurance Co. v. Northern Ireland Road
Transport Board (1942)
• A’s servant, driver of petrol lorry, while transferring
petrol to the underground tank lighted a matchstick to
light a cigarette – threw the stick on the ground
• It started a fire and B’s property was destroyed
• Held – Negligent method of conducting a work and
hence master liable
 Act outside the course of employment?
• An act which is not in the course of master’s
business, is deemed as outside the course of
employment
• But an act may be in the course of employment even
though not strictly in the performance of duties of a
workman
• E.g. Workman driving a little away from the place
of his work for lunch
• Harvey v. R. G. O’Dell Ltd., (1958)
 Act outside the course of employment?
• Group of demolition contractors take an unauthorised
tea break and took employer’s van (which they had
permission to use) to café eight miles away from
place of work
• On their way back, van crashed due to negligence of
one worker who was driving and one worker got
killed
• Can employer be held vicariously liable?
 Act outside the course of employment?
• Hilton v. Thomas Burton (Rhodes) Ltd. (1961)
• NO. Act was not within the course of employment.
• See also Storey v. Ashton, (1869) and Britt v.
Galmoye and Nevill, (1928)
• State Bank of India v. Shyama Devi, AIR 1978
SC 1263
• At the end of the journey, driver of bus along with the
conductor went for dinner
• While driver was having dinner, conductor, without
driver’s knowledge, started the bus to turn it around
to make it ready for the next journey
• Negligently caused the accident and injured plaintiff
• Is the bus co. vicariously liable?
Beard v. London General Omnibus Co., (1900)
• At the end of the journey, driver of bus allowed the
conductor to drive the bus to turn it around to make it
ready for the next journey
• Negligently caused the accident and injured plaintiff
• Is the master vicariously liable?
Ricketts v. Thomas Tilling Ltd., (1915)
• Beard case – No.
• Rickets case – Yes.
 Headmistress, Govt. Girls High School v.
Mahalakshmi, (1998) Mad. HC
• Plaintiff – 9th std. student
• One ‘Aaya’ employed by school had duty to arrange
water for school children
• One day, instead of bringing water herself, she asked
plaintiff to bring water from bicycle from a tube well 1.5
furlongs away
• While plaintiff was placing water pot on her bicycle’s
carrier, the carrier spring came out forcible and hit her
eye
 Headmistress, Govt. Girls High School v.
Mahalakshmi, (1998) Mad. HC
• Plaintiff lost her eye – filed suit against the school
• Is Aaya’s act within the course of employment? Is school
vicariously liable?
• Yes. Negligent delegation of authority.
 Effect of Express Prohibition
• What if employer forbids the servant from doing
something and yet the servant does it?
• Can master be held liable even then?
• Limpus v. London General Omnibus Co., (1862)
• Defendant’s driver was specifically told not to race
with, or cause obstruction to other omnibuses
• But the driver did that and caused accident
• Can the defendant be held liable?
 Effect of Express Prohibition
• Limpus v. London General Omnibus Co., (1862)
• Yes – Driver had been engaged to drive and his act was
negligent mode of driving
• therefore, within the course of employment, in spite
of the express prohibition
• Twine v. Beans Express Ltd., (1946)
• Defendants provided commercial van and driver for
the use of a bank
• Two notices on the van -
 Effect of Express Prohibition
• Twine v. Beans Express Ltd., (1946)
• (a) No authorised person allowed to take lift;
• (b) Driver is instructed not to allow unauthorised person
in the van;
• (c) Defendant will not be liable for any injury to an
unauthorised person in any case
• Driver gave lift to an unauthorised person who was killed
because of driver’s negligence
• Is the defendant liable?
 Effect of Express Prohibition
• Twine v. Beans Express Ltd., (1946)
• No, act was held outside the scope of employment
• See also, Conway v. George Wimpey and Co. Ltd.,
(1951)
• But the position is different in Bharat under torts and
under Motor Vehicles Act, 1988
• Master is vicariously liable in spite of express
prohibition.
• See Narayanlal v. Rukhmanibai, AIR 1979 MP 74
 Effect of Express Prohibition
• See also Prithi Singh v. Binda Ram, 1987 P&H
• Pushpabai v. Ranjit Ginning and Pressing Co. AIR
1977 SC 1735