Vicarious Liability Including State Liability Mr. Amaresh Patel BASIC OF LAW Wed, Dec 15, 2021, at ,01:13 PM As a general rule, a person is liable for his own wrongful act and one does not incur liability for the wrongful act done by others. But there may be certain exceptional circumstances when a person may be held liable for the wrongful act done by some other person. When a person incurs, liability for the tort of another person in which he had no part, it is called 'vicarious liability'. The most common example of vicarious liability is the liability of the master for the wrongful acts committed by his servants.There are some other relationships which may give rise to vicarious liability. They aremainly:1) liability of the principal for the wrongful acts of his agents;2) liability of partners of a firm for his fellow-partners for torts committed in ordinary cause of business of the firm;3) liability of parent or guardian for the wrongful acts of their children/wards;4) master's liability for the wrongful acts of his servants done in course of hisemployment; and5)liability of the state for the torts of its employees. Under the English common law, there was yet another instance of vicarious liability; namely, husband's lability for the wrongful acts of his wife because it was conventionally believed that with her marriage, the personality of the woman was completely merged with that of her husband and she had no. independent personality. But this rule was abolished by the Law Reform (Married Woman & Tort-feasors) Act, 1935. 1. Lability of Principal for the wrongful acts of his Agent: When an agent commits a wrongful act' in course of his principal's business, the principal is also held liable along with the agent. The agent is liable because he has done the wrongful act while the principal's liability is due the agent-principal relationship. The liability of the principal is based on the maxim Qui facit per alum facit per se which means "he who acts through another is deemed in law as doing it himself". For any act authorised by the principal and done by the agent, both of them are liable and therefore, they may be sued jointly or severally. The authority under which the agent has done the principal's act may be express or implied. Generally, no principal will authorise his agent to do an illegal or wrongful act but when the agent has done such an act in the ordinary course of the performance of his duties as an agent, the principal becomes liable for the same, though he may not have authorised the agent to do that act. For. Instance, in Lloyd v. Grace Smith & Co. the managing clerk of a firm of solicitors, while acting in the ordinary course of business; committed fraud against a lady client and gut transferred her immovable property for his. own benefit, the principal was held liable along with the agent. Similarly, in Ormond v. Crosville Motor Service Ltd, the owner of a car asked his friend to drive his car but while the car was being driven by his friend, it collided against a bus. Holding the owner of the car vicariously liable for the injuries; Lord Denning observed: "The law imposes an especial responsibility on the owner of a vehicle who allows it to go on road incharge of someone else, no matter whether it is his servant, friend or-anyone else. It is being used wholly or partly on the owner's business or for the owner's purpose, therefore; owner is liable for any negligence: on the part of the driver. The owner only escapes liability when he lends it or hires it to a third person to be used for purposes in which the owner has no interest or concern" Where the agent has done an act without the principal's express or implied consent or authority, the principal may still be made liable if he ratifies the agent's act but the act so ratified must have been done by the agent on behalf of the principal. If it is not done on behalf of the principal but by the agent on his own behalf, the principal cannot. be held liable for such act. In Dharnidhar Panda v. State of Orissa, the management of the school was entrusted to the local village Education Society which was acting as an agent of the State Government, therefore, the State was held vicariously liable for the death of children caused due to sudden falling of the pillars and fencing wall of the school. 1. Liability of Partners of a Firm: The relationship of partners of a firm inter se is like that of a principal and agent. Therefore, the rules of agency are applicable in case of partner's liability. All the partners may be liable jointly or severally for any wrongful act done by anyone or more of the partners in course of the firm's business. For instance, in Hamlyn v. Houston & Co. one of the partners of the defendant’s firm, while acting within the general scope of his authority as a partner, bribed the plaintiffs- clerk and induced him to make a breach of contract with his employer, i.e, the plaintiff by leaking out the secrets relating to the plaintiff’s business. Held, both the partners of the firm were liable for this wrongful act though only one of them had one it. 2. Parent's Liability for Wrongful acts of their Children: The principle underlying law of tort is to see that the clans of the claimant are redressed by the person who is at fault. Therefore, if the parent/guardians were not made liable for the wrongful acts of their children/ward, this purpose of law would have been defeated is for this reason they are held vicariously liable for the wrongful acts of their children or ward, as the case may be. The basis of this liability is implied negligence of the parent or guardian to keep their children/wards under proper control. However, where the child or the minor has some income of his own, then in that case his parent/guardian will not be held liable as the lability can be borne by the wrongdoer himself. 3. Master's Liability for torts Committed by the Servant: Historically; the concept of vicarious liability seems to have emerged by the middle of the 19th century due to unfolding economic stresses of the time. It seems to have arisen from cases where the employer had expressly ordered his servant to commit a wrong. But in the modem sense this is not vicarious liability at all because one who orders a wrong to be committed is, truly speaking a direct participant in the wrong doing and the existence of an employment relationship is, therefore, not really material in such cases. It is the implied authority of the master; which renders him vicariously liable for the wrongful. acts of his servant which are done in his course of employment. Obviously, the doctrine of ‘implied authority' has its origin in the 18th century Industrial Revolution in England, which eventually culminated into 19th century doctrine of 'scope of employment' by the force of gradual social and economic developments around the world. Rationale of the Doctrine of Vicarious Liability:The master is held liable for the wrongful acts. of his servant because the ad of servant is. deemed to be that of master's as well. This principle of vicarious liability is founded on two well-known maxims 'Respondent Superior' and 'gui facit per alium facit per se.' The first literally "means let the master or principal be answerable (liable), while the second implies that "he who acts through another is deemed in law as doing it himself. Some other justifications for holding the master vicariously liable for the wrongful acts of his servant done by him in course of. employment are as follows:-1) because the act done by the servant was for the master's benefit and therefore, he must bear the consequences and accept liability of his servant's act;2) Master is liable because of his initial negligence. in choosing an improper or negligent servant:3) As rightly commented by Shaw, C.l., "everyone, must be responsible to manage his affairs whether he does them by himself or through his servant or agent"4) The modem trend in this regard is to hold the master liable because as a matter of social policy it is he who can best to bear the loss servants are usually impecunious. This is more predominant in car-accident cases.5) Yet another reason for holding the master liable for the wrongful acts of his servant is what has been termed as "Deep Pocket Principle" meaning thereby that master has far better financial resources to compensate the aggrieved party than the servant who is more often than not, poor indigent and unable to bear the brunt of liability arising out of his act. This view seems to be more logical and in consonance with the modem public policy. Lord Pearce, commenting on the rationale behind vicarious liability observed in Imperial Chemical Industries Ltd. v. Shatwell as follows ;- "The doctrine of vicarious liability has not grown from any very clear, logical or legal principle, but from social convenience and rough justice. The master having presumably for his own benefit, employed the servant, and being better able to make good any damage which may occasionally result from the arrangement, is answerable to the world at large for all torts committed by his servant within the scope of employment". Denning. J., in Broome v. Morgan rejected the economic reason for the evolution of doctrine of vicarious liability and asserted that the principle holds sound on moral considerations. Since the servant is doing his master's work, it is master's moral duty to bear the risk of accidents, mistakes or losses caused by the servant’s acts. Existence of Master-Servant Relationship: If the plaintiff wants to. succeed in an action against the defendant under vicarious liability the first thing he has to prove is that the master and servant relationship exists between the defendant and the wrongdoer. It is only after this fact has been proved that the Court will consider whether the act alleged was done by the servant in course of employment. In cases involving vicarious liability, the servant will always want to shift the liability of his wrongful act on his master. Whereas, on the other hand, the master would refute the existence of master and servant relationship between himself and the wrong- doer and if he fails to do so, he may then take the plea that the said act was not done by the servant in course of his employment. It is, therefore, necessary for the Court to consider these aspects of the case in order to decide it under the vicarious liability rule.