Qui Facit Per Alium Facit Per Se – An Analysis

Introduction

In a general sense, a person is liable only for his own acts and does not incur any liability for the acts of the others, but in the cases of Vicarious Liability, liability may arise of one person for the act done by another. For the liability purpose, there must be a certain kind of relationship between both persons, and the guilty act must be in certain ways connected to the relationship. When one person authorizes another to commit an act, the liability of that would not be only of that doer but also of the person who authorized it.

Meaning of the Qui Facit Per Alium Facit Per Se

He who acts through another is said to act by himself.

The legal maxim “Qui Facit Per Alium Facit Per Se” portrays a similar sense as that of Respondeat Superior. The maxim states the meaning that, an act done through another is considered to be done by himself. This maxim is subject to the nexus between the act and the relationship, or in simple words, a person is liable for the act done by another if there is a certain relationship amongst them and the act must be connected with the relationship. Some of the most common examples of such liability are-

  1. Liability of a principal for the act of his agent.
  2. Liability of partners of each other’s act.
  3. Liability of a master for the act of his servant.

Let us discuss each example one by one

1. Principal and Agent

When an agent commits an act in the course of employment of his duty as an agent, the liability of the principal arises for such an act. The agent will be liable for his own act, but the principal would be held liable vicariously because of the principal-agent relationship amongst them. The principal generally does not expressly ask the agent to do any wrongful act, but when the agent works in the ordinary course of employment, the principal becomes liable for the same.

In the case of State Bank of India v. Shayama Devi, the plaintiff hand over some cash and cheques to his friend, who is an employee in the defendant bank, for being deposited in the plaintiff’s account. No deposit receipts were issued to the plaintiffs. The employee had misappropriated the plaintiff’s amount. The Hon’ble Supreme Court held that the Bank is not liable for the fraud, as the employee when committing fraud was not acting in the course of employment but did it in his private capacity.

In the case of Trilok Singh v. Kailash Bharti, the owner of the vehicle was outside the country and his younger brother without informing him and out of his knowledge took the vehicle and met with an accident. Here the younger brother could not be referred to as the agent of his brother; hence the owner was not held liable.

For the purpose of vicarious liability, even a friend, driving one’s car for him, maybe his agent. In the case of Ormrod v. Crosville Motor Service Ltd., the owner of the car asked his friend to drive his car, in the meantime the car collided with a bus. The owner of the car was also held liable.

2. Partners

The rules of the law of agency apply in the case of partners also, as their relationship is that of Principal and Agent. If an act has been committed by any one of the several partners in the course of their business, all the rest partners would be held liable for the act as that of the doer.

In the case of Hamlyn v. Houston & Co., one out of the two partners of the defendant’s business, acting within the ambit of their business transactions, bribed the plaintiff’s clerk and induced him to make a breach of contract with the plaintiff’s employer. It was held that both the partners would be held liable for this wrongful act.

3. Master and Servant

A master would be liable for the actions of his servant if the act was done in the course of employment. The servant would indeed be held liable. The principle of holding liable the master for the act of his servant is based on the legal doctrine of Respondeat Superior, meaning ‘let the principal be liable. As per the doctrine, it puts the master in the same position as he would have committed the act himself. For the purpose to arise the liability of the master, the following two sine qua non must be fulfilled-

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

Historical Background

The development of this doctrine of Vicarious Liability can be witnessed from the following phases-

Initially, before the abolition of slavery, the master was completely held responsible for the actions of his agent. After the abolition of Slavery, a rule was introduced that the master would be liable for the actions of his servant only if he had commanded the servant to do the work in a particular manner i.e. to perform a wrongful act, or to perform any act with wrongful manner. In the 17th century, the law stated that the master would be liable for all the acts of his servant if he had commanded the servant. The development of this doctrine was triggered in the period when trade and commerce and a wide range of industrialization were taking place. Trade and Commerce were practiced on a large scale, the theory of command was no more reliable as the servants many times were working at long distances from their masters and were unable to take their commands each and every time. This was the period when the Command Theory was criticized to be too narrow and inadequate, to wrap the master-servant relation. Hence, the doctrine (Qui Facit Per Alium Facit Per Se) came into the scene.

Application of the Doctrine

The maxim is applicable in Law of Torts, and as well as in Law of Crimes. The most common application of the doctrine can be witnessed in the workplace. The employer in the workspace or the organization is held vicariously liable for the actions, deeds, and words of its employees especially when the actions and deeds were done in the name of the employer or the organization. The employer or the organization is often held vicariously liable for the actions of his employee/s unless it is proved that the employee has done the acts out of the course of employment or voluntarily or he had acted without the knowledge consent of the employer.

Liability of the Employer for the acts of an Independent Contractor

As per the general rule, the employer is held liable for the acts of his employee, but it is not the same in the case of an independent contractor.

In Morgan v. Incorporated Central Council, the plaintiff went to visit the defendant’s place legally, but there he fell down from the lift shaft and suffered several injuries. The defendant had appointed an independent contractor to look after the lift. Hence, the Court held that the defendant would not be held liable as the act of negligence was done on the part of an independent contractor.

But this general rule is subject to some exceptions. In the following cases, an employer may be held liable for the actions of an independent contractor-

1. If the contractor has been authorized to do illegal work. The reason behind the liability of the employer is that he himself is the instructor of the wrongful act.

2. Strict Liability- In Rylands v. Fletcher, the water escaped from the reservoir that was constructed by the defendant from an independent contractor and flooded the plaintiff’s coal mine. The defendant could not escape the liability.

Similarly, in Maganbhai v. Ishwarbhai, the defendant was the trustee of the temple’s property. He appointed an independent electrician to illegally divert the electricity provided to the agriculturists to the temple for the next one month, without informing the electricity board. After a few days, the wiring was snapped and caused injury to the agriculturists working in their field. The defendant was held liable.

3. When the wrong results in the breach of the contract between master and servant duties, he would be held liable.

4. Dangers caused on or near Highway- In Tarry v. Ashton, the plaintiff was badly injured by the falling street lamp constructed by the independent contractor adjoining the defendant’s house. The contractor was employed by the defendant, he was held liable. The court said it was the duty of the defendant to see that the lam was properly constructed or not.

Essentials of Vicarious Liability

The essentials to hold someone vicariously liable are-

  1. There must be a relationship between the doer and the person who is to be held liable.
  2. The act must be done in the course of employment.
  3. The act must be committed by the other person.

Types of Vicarious Liability

Vicarious Liability may be divided into two parts-

  1. Parental Liability
  2. Principal Liability

Parental Liability- If a child is involved in any wrongdoing due to the advantageous situation created by the parents, the parents would be vicariously liable for the losses caused to another by their child.

Example- A, a mother chatting on the phone did not keep an eye on her 8 years old child. The child broke their neighbor’s car’s glass. Here, A would be held liable.

Principal Liability- When a person employs another person to do certain work in the way he wants it to be done, if any kind of damage occurs due to the work of the employee, the employer would also be held liable.

Example- John appointed a driver to drive him to his office. While doing so, the driver hit the other car. Here, John would also be held vicariously liable.

Vicarious Liability in Medical Care

In the case of health care, the hospital, as well as the employees, is to be vicariously liable for any wrongful act committed on their part.

In Cassidy v. Ministry of Health, the hospital authorities were held liable by the Court because of the negligence on the part of the surgeon and its staff during the treatment after the operation.

In Hillyer v. St. Bartholomew’s Hospital, the court held that the officials of the hospital are not liable for negligence on the part of the specially trained staff or professional staff involved in skilled work. This position is no more in the picture, now the authorities are held liable for professional negligence as well.

Reasons for Vicarious Liability

1. The servant is the person who has been appointed or employed by another person to accomplish the work as per his directions. So, the servant works as per the directions of the employer i.e. he works in the way his employer wants him to work. Hence, the liability for the actions of the servant must be of the master.

2. Looking at the need for compensation for the damages, the employer is the one who has a big pocket compared to that of the servant’s pocket. The employer is the one who is financially stable to repay the losses.

3. The profits that are the results of the servant’s work are enjoyed by the employer/master; hence he must also bear the losses.

Exceptions of Vicarious Liability

There are several exceptions to the master or the employer in the cases where their employee/agent has done something wrong. Some of these situations are-

1. Any act was done by the employee out of the course of employment. When a servant does any act which is not in the course of master’s business, the same would be deemed to be done outside the course of employment. An act is deemed to be done in the course of employment if it is either a wrongful act authorized by the master or a wrongful or unauthorized mode of doing some act authorized by the master.

2. In case, the employee breaches the contract terms or the directions of doing work, the employer would not be held liable.

3. When the employee is doing something under a statutory duty, the employer cannot be held liable.

4. At instances of natural calamities.

Conclusion

Vicarious Liability of the master arises where a wrong has been committed by a person in the course of employment. There must be an established relationship amongst both i.e. the doer, and the employer. The act must be done in the course of employment, to hold the master liable. The fundamental principle that a person would only be liable for the act committed by him but in general law, there is an exception to it, that is Qui Facit Per Alium Facit Per Se, which means that an act done through another is considered to be done by himself. This maxim is subject to the nexus between the act and the relationship, or in simple words, a person is liable for the act done by another if there is a certain relationship amongst them and the act must be connected with the relationship. An act is deemed to be done in the course of employment if it is either a wrongful act authorized by the master or a wrongful or unauthorized mode of doing some act authorized by the master. An act is deemed to be done in the course of employment if it is either a wrongful act authorized by the master or a wrongful or unauthorized mode of doing some act authorized by the master.

References-

  1. https://blog.ipleaders.in/case-analysis-of-state-bank-of-india-vs-metenere-ltd/
  2. https://core.ac.uk/download/pdf/188220392.pdf
  3. Law of Torts, R.K. Bangia
  4. https://strictlylegal.in/qui-facit-per-alium-facit-per-se-meaning-and-history/
  5. https://corporatefinanceinstitute.com/resources/knowledge/other/vicarious-liability/

This article has been written by Ayush Shukla, 3rd Year B.B.A.LLB (Hons.) student at Shri Ramswaroop Memorial University.

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