Origin And Development of The Tort of Vicarious Liability

This article shall explore the origin and development of the tort of vicarious liability. Further, the present form of law of vicarious liability shall also be considered utilizing case laws to discover the evolution of its fundamentals.

Vicarious liability can be defined as, “Liability for the tort of another even though the person being held responsible may not have done anything wrong.”[1]

The doctrine of vicarious liability associates liability to the employer or principal of a tortfeasor, not on the basis of the fault of the employer or principal, but on the ground that as the person responsible for the activity or enterprise in question, the employer or principal should be held responsible for the loss to third parties that result from the activity or enterprise.[2]

Some examples of vicarious liability are:

(1) Principal’s liability for the tort of his agent;

(2 Partners’ liability for each other’s tort;

(3) Liability of the master for a tort committed by his servant.

The law of vicarious liability is unique within the judicial system. It is the only tort that considers beyond the primary tortfeasor’s liability and applies liability to an otherwise innocent party, the defendant person committing a tort in secondary liability. The purpose for what would seem to be wrong in the law is undoubtedly attributed to the concepts of fairness and the justness of the legal system to maintain a socially acceptable public policy.[3]

Essentials of Vicarious Liability

  • There must be a relationship of a certain kind.
  • The wrongful act must be related to the relationship in a certain way.
  • The wrong must be done within the course of employment.

The Development of Vicarious Liability under English Law [4]

A major portion of ancient law is based on revenge which is arbitrary. The Mosaic Code, however, states expressly that each man should be put to death only for his own sin and not for that of his father or son. The individual defendant in tort, in a majority of cases, are poor and in order to ensure that the plaintiff actually receives the compensation to which he is entitled legal mechanism which enables the plaintiff to fix responsibility upon someone other than the tortfeasor himself was propounded through the principle of vicarious liability.

It was during the early Anglo-Norman period when the idea of complete liability for the wrongs of servants slowly changed to the idea of liability only where there has been command or consent on the part of the master of the servant’s wrong. The change continues from 1300 onwards until the early sixteenth century where the command theory has become established. Thereafter, until the 17th century, the master’s liability was restricted to cases where he had particularly instructed the very act complained of.

Sir John Holt who was Chief Justice from 1688-1710 established the rule that the master was liable not only for acts done at his express command but also for those done by his implied command.[5] He discussed the liability of an employer for the acts of his employee and declared in Herne v. Nichols[6] that,

‘Seeing somebody must be a loser by this deceit, it is more reasonable that he that employs and puts a trust and confidence in the deceiver should be a loser, than a stranger.’[7]

The Development of Vicarious Liability under Indian Law:

Although the doctrine of vicarious liability is generally applicable to civil law, in some exceptional cases it is also applicable in criminal cases. Section 149 of the IPC states, if any member of an unlawful assembly commits an offense in furtherance of a common objective, every member of that unlawful assembly will be held liable for that offense.

Section 154[8]of the IPC relates to occupiers or owners of the land. If such occupier or owner or any such person who has some interest in the piece of land does not inform the proper public authority about unlawful assembly on that land or do not take necessary steps taking place on the land, will also be held liable for such activities. The liability has been fixed on the presumption that being the owner or the occupier of the land; the person will be able to control the activities which are happening on their property. Section 155[9] also makes a person vicariously liable on the owner or occupier of the land for the omission of their agent or manager if any activity takes place on the land and the agent or manager does not prevent illegal activities happening on their property. Section 156[10] imposes personal liability on the agent or the manager if some illegal activity takes place on the particular property.

Section 268[11] IPC and Section 269[12] IPC deals with public nuisance and makes the master personally liable if the servant is creating any public nuisance. Section 499[13] IPC also holds the master personally liable in case the servant defames somebody (provided it falls under the definition of defamation given under this section).

Liability of State for Acts of Employees[14]

Under English Law, the state cannot be held liable for the acts which have been committed by its servant. The principle behind this is based on the doctrine of Rex non-potestpeccare[15]which states that the King can do no wrong.

In India until 1967, the position was the same as that of England  and the State couldn’t be sued for the action of its servants. But in the judicial pronouncement of Superintendent and Remembrancer of Legal Affairs, West Bengal v Corp. of Calcutta[16] it was held by the Court that,

“The principle that the State isn’t bound by any statute is not the law of the land after the Constitution has come into force. Civil and criminal statues now apply to citizens and state alike.”

Conclusion

Vicarious Liability consists of cases where one person is liable for the acts of others. In the law of Torts it is an exception to the general rule that a person is liable for his own acts only based on the maxim ‘qui facit per se per alium facit per se’, meanings “He who does an act through another is deemed in law to have done it himself”. Thus, in a case of vicarious liability both the persons at whose command the act is done as well as the person who does the act are liable. Hence, Employers are vicariously liable for the torts of their employees that are committed during the course of their employment. For instance: In order that the liability of A for the act done by B can arise, it is crucial that there should be a certain relationship between A and B; the wrongful act should be, in a certain way, connected with that relationship. Thus, a master is liable for the acts of his servant if the act is done in the tenure of employment.

[1] http://www.duhaime.org/LegalDictionary/V/VicariousLiability.aspx

[2] ibid

[3]https://www.lawteacher.net/free-law-essays/tort-law/history-tort-vicarious-liability-0836.php

[4] https://www.uniassignment.com/essay-samples/law/the-development-of-vicarious-liability-law-employment-essay.php

[5] ibid

[6] [1700] 1 Salkeld 289

[7] https://swarb.co.uk/hern-v-nichols-1700/

[8] https://indiankanoon.org/doc/1034470/

[9] https://indiankanoon.org/doc/1062869/

[10] https://indiankanoon.org/doc/833310/

[11] https://indiankanoon.org/doc/209076/

[12] https://indiankanoon.org/doc/734195/

[13] https://indiankanoon.org/doc/1041742/

[14] https://blog.ipleaders.in/doctrine-vicarious-liability/

[15] http://www.duhaime.org/LegalDictionary/R/RexNonPotestPeccare.aspx

[16] AIR 1960 SC 1355

This article is authored by Arpita Deb, student of LL.B at University Law College, Gauhati University.

Also Read – Conceptual Scrutiny of Absolute Liability in India

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