Vicarious Liability

Introduction

Generally, a person is liable only for the wrongful acts committed by himself. However, in some situations, the law makes one person responsible for the wrong committed by another.

This is known as vicarious liability, where a person is held liable because of a special relationship with the actual wrong-doer. The most common example is the liability of a master (employer) for the wrongful acts of his servant (employee).

Meaning / Definition

Vicarious liability means the legal responsibility of one person for the wrongful act of another person.

According to Salmond, in general a person is responsible only for his own acts, but there are exceptional situations where the law imposes liability on a person for the acts of another, even if he himself is not at fault.

This liability usually arises due to relationships such as master and servant or principal and agent.

Modes or Types

Liability Based on Legal Maxims

Two important legal principles explain vicarious liability.

Qui Facit Per Alium Facit Per Se

This maxim means “he who acts through another is deemed to act himself.”

If a person appoints another to act on his behalf, the law treats the act of that person as the act of the employer. Therefore, the employer becomes responsible for the wrongful acts committed by the servant while performing assigned duties.

Respondeat Superior

This maxim means “let the superior be responsible.”

It means that a superior or employer must answer for the acts of his subordinate. If a servant commits a wrong while performing the master's business, the master can also be held liable.

Liability by Ratification

A person becomes liable if he approves or accepts (ratifies) a wrongful act done by another person on his behalf.

Even if the act was not originally authorised, once the person accepts it, he becomes responsible for it.

Liability Arising from Special Relationship

Vicarious liability may arise due to certain legal relationships where one person has authority over another.

The most important example is the master–servant relationship. In such cases, the master can be held liable for torts committed by the servant.

Liability of Master for the Acts of Servant

For the master to be liable, two main conditions must be satisfied:

• The wrong must be committed by a servant.
• The wrong must be committed in the course of employment.

Meaning of Servant

A servant is a person employed by another person to perform work under the control and direction of the employer.

According to Lord Thankerton, the following factors indicate a master–servant relationship:

• The employer has the power to select the servant.
• The employer pays wages or remuneration.
• The employer controls the manner of doing the work.
• The employer has the right to suspend or dismiss the servant.

Thus, a servant works under the supervision of the employer and follows the employer’s directions.

Course of Employment

A servant is considered to be acting in the course of employment when:

• The act was authorised by the master, or
• The act was an unauthorised or improper way of doing an authorised act.

Therefore, a master is responsible not only for what he authorises the servant to do but also for the way in which the servant performs that work.

Sometimes an employee may also act in the course of employment in situations of necessity, when he performs duties to protect the employer’s business.

Distinction / Comparison

Servant vs Independent Contractor

Servant

• Works under the supervision and control of the employer.
• Must follow the employer’s instructions.
• The employer controls how the work is done.

Independent Contractor

• Works independently and is his own master.
• Decides the method and time of doing the work.
• Bound only by the terms of the contract, not daily instructions.

Generally, an employer is not liable for the torts of an independent contractor.

Practical Example

A delivery driver employed by a company negligently hits a pedestrian while delivering goods during working hours.

Since the driver was performing his employer’s work at the time of the accident, the employer may also be held liable under the principle of vicarious liability.

Summary

• Vicarious liability means liability for the wrongful acts of another person.
• It usually arises due to relationships such as master and servant or principal and agent.
• The doctrine is based on the maxims Qui facit per alium facit per se and Respondeat superior.
• A master is liable when the servant commits a tort in the course of employment.
• A servant works under the control and supervision of the employer.
• Employers are generally not liable for the acts of independent contractors.
• The principle is supported by public policy to ensure victims receive compensation.