Vicarious liability is a case in which the wrongful acts of a third party are held partially liable by one party. The third-party bears its own share of the liability as well. Vicarious liability can arise in circumstances where one party is accountable for a third party and is deficient in the execution and exercise of that responsibility.
In specific, a person is liable for his own wrongdoing and no one is liable for the acts done by others. However, in some cases, vicarious liability, that is one person’s liability for another person’s act, may arise. Such as to order for the responsibility of ‘X’ to the act committed by ‘Y’ to occur, it is important that there should be some kind of connection between ‘X’ and ‘Y’, and the crime should in some way be associated with that relationship.
Examples specific to such liability are:
(1) The principal’s responsibility for the misconduct of his agent;
(2) Liability of each other’s partners for wrongdoing;
(3) The master’s liability for his servant’s torture.
So Vicarious Liability deals with situations in which one party is responsible for someone else’s acts. In the Torts sector, it is regarded as an exception to the rule of thumb that an individual is only responsible for his own actions. This is based on the concept of ‘qui facit per se per alium facit per se’, meaning, anyone who commits an act through another is deemed to actually do it himself. Thus, in the case of vicarious liability, both the person to whom the act is carried out and the person to whom the act is carried out are liable. Therefore, employers are vicariously responsible for the tortures performed during the period of employment by their workers.
Several reasons to justify the imposition of vicarious liability have been advanced:
(1) The master’s pockets are ‘deepest.’ In certain cases, a defendant’s income, or the fact that he has access to capital through insurance, has had an implicit impact on the creation of legal standards.
(2) The prevention of accidents by giving an employer a monetary interest in cheering its employees to take care of others’ safety.
(3) The employer profiting from the activities of its employees should also endure any losses caused by those activities.
The Ingredients of Vicarious Liability are:
(1) There has to be a certain kind of interaction.
(2) The crime shall in a certain way apply to the partnership.
(3) In the course of the jobs an error was made.
Servant & Contractor Relationship:
A servant and an independent contractor both are hired to do some of the employer’s work but there is a distinction in the employer’s legal relationship with each other. A servant is employed under a service contract while a service contract includes an independent contractor. The employer’s responsibility for the wrongs his worker has committed is more onerous than his responsibility for wrongs committed by an independent contractor. When a servant in the course of his work performs a wrongful act, the master is responsible for that. Of which the servant is still responsible. The servant’s unjust act is often known to be the master’s act.
The master’s theory of liability for the actions of his servant is based on the highest higher response, meaning ‘let the principal be responsible’ and placing the master in the same role as if he himself had performed the act. It also draws meaning from the maxim qui facit per alium facit per se, which implies ‘who performs an act by another is deemed in law to do it himself.’ Because the master may also be held liable vicariously for the wrong done by the worker, the claimant has an option to bring proceedings against one or both of them. They are collectively and severally responsible because they are called joint tortfeasors. The explanation for the higher answer superiority seems to be the master’s stronger position to serve the claim due to his larger pocket as well as his willingness to pass on the liability burden by insurance. Although the servant behaved against the express instruction, the liability arises, and for no advantage to his master.
The following two essentials are to be present for the master’s liability to arise:
(1) The servant committed torture.
(2) During the course of his work the worker perpetrated the misconduct.
A servant is one person appointed by another to do work under his master’s direction and control. As a general principle, the master is responsible for his servant’s wrongdoing but he is not liable for an independent contractor’s wrongdoing. Hence, differentiating between the two becomes important. A worker is an employee who is subject to his employer’s supervision and oversight of the way the job is to be performed. No such control is being subject to an independent contractor. He undertakes to do some research and the way the job is to be performed. He is master of his own and uses his own discretion. An Independent contractor includes the people who conduct to deliver a certain outcome, but so that he’s just not under the influence or order of the individual for whom he does it in the real failure of the work, and may use his own flexibility in items not specified beforehand.
Illustration- My servant is my driver. I shall be responsible for that if he negligently knocks A, down. But if he hires a taxi to go to the railway station and a taxi driver hits A in a negligent manner, I will not be liable to A as the driver is not my servant but only an independent contractor. For this, only the taxi driver will be liable.
Other aspects of Indian view
Though the doctrine of vicarious liability generally applies to civil law, it is also applicable in criminal cases in some exceptional cases. Under Section 149, if any member of an unlawful assembly commits an offense to pursue a common purpose, then each member of that unlawful assembly shall be held liable for that offence. Section 154 of the IPC, involves a landowner or occupier. If any occupant or owner or any person who has an interest in the piece of land does not notify the proper public authority about unlawful assembly on that land or does not take the required measures taking place on that land, those activities may also be held liable.
The liability has been set on the basis of being the landowner or occupier; the individual should be able to monitor the activities that are taking place on their property. Section 155 also makes the person vicariously liable for the error of their agent or manager on the landowner or occupier if any action takes place on the land and the agent or manager does not deter any unlawful activity taking place on their estate. Section 156 places criminal responsibility on the agent or manager if any unlawful activity happens on the property concerned. Section 268 & Section 269 deals with public nuisance and make the master personally accountable if there is any public nuisance created by the servant. Section 499 of the IPC also makes the master personally accountable if someone is defamed by the servant, provided that he falls within the definition of defamation given under this section.
It can be argued that the principle of vicarious liability is civil, but the courts have also started extending the practice to criminal cases with the advancement of law. Quite often it becomes really necessary to resolve a liability on the principal, in order to safeguard the aggrieved party’s interest and also to resist blame game between both the parties, which may, in turn, delay justice.
This Article is Authored by Ayush Sharma, 3rd Year, BBA LLB Student at JIMS, School Of Law.