Vicarious Liability

Generally, a person is liable for his own wrongful acts and one does not incur
any liability for the acts done by others. In certain cases, however, vicarious
liability, that is the liability of one person for the act of another person, may
arise. In order that the liability of A for the act done by B can arise, it is
necessary that there should be certain kind of relationship between A and B,
and the wrongful act should be, in certain way, connected with that
relationship.
The common examples of such a liability are:
(1) Liability of the principal for the tort of his agent;
(2) Liability of partners of each others tort;
(3) Liability of the master for the tort of his servant
So Vicarious Liability deals with cases where one person is liable for the acts
of others. In the field of Torts it is considered to be an exception to the
general rule that a person is liable for his own acts only. It is based on the
principle of qui facit per se per alium facit per se, which means, He who
does an act through another is deemed in law to do it himself. So in a case
of vicarious liability both the person at whose behest the act is done as well
as the person who does the act are liable. Thus, Employers are vicariously
liable for the torts of their employees that are committed during the course
of employment.
Reasons for vicarious liability
Several reasons have been advanced as a justification for the imposition of
vicarious liability:
(1) The master has the deepest pockets. The wealth of a defendant, or the
fact that he has access to resources via insurance, has in some cases had an
unconscious influence on the development of legal principles.
(2) Vicarious liability encourages accident prevention by giving an employer
a financial interest in encouraging his employees to take care for the safety
of others.
(3) As the employer makes a profit from the activities of his employees, he
should also bear any losses that those activities cause

In the words of Lord Chelmsford: It has long been established by law that a
master is liable to third persons for any injury or damage done through the
negligence or unskilfulness of a servant acting in his masters employ. The
reason of this is, that every act which is done by servant in the course of his
duty is regarded as done by his masters order, and, consequently it is the
same as if it were masters own act.
Constituents Of Vicarious Liability
(1) There must be a relationship of a certain kind.
(2) The wrongful act must be related to the relationship in a certain way.
(3) The wrong has been done within the course of employment.
Servant And Independent Contractor

A servant and independent contractor are both employed to do some work of

the employer but there is a difference in the legal relationship which the
employer has with them. A servant is engaged under a contract of
services whereas an independent contractor is engaged under a
contract for services. The liability of the employer for the wrongs
committed by his servant is more onerous than his liability in respect of
wrongs committed by an independent contractor. If a servant does a
wrongful act in the course of his employment, the master is liable for it. The
servant, of course, is also liable. The wrongful act of the servant is deemed
to be the act of the master as well. The doctrine of liability of the master for
act of his servant is based on the maxim respondeat superior, which
means let the principal be liable and it puts the master in the same
position as he if had done the act himself. It also derives validity from the
maxim qui facit per alium facit per se, which means he who does an
act through another is deemed in law to do it himself. Since for the
wrong done by the servant, the master can also be made liable vicariously,
the plaintiff has a choice to bring an action against either or both of them.
Their liability is joint and several as they are considered to be joint
tortfeasors. The reason for the maxim respondeat superior seems to be

the better position of the master to meet the claim because of his larger
pocket and also ability to pass on the burden of liability through insurance.
The liability arises even though the servant acted against the express
instruction, and for no benefit of his master.
For the liability of the master to arise, the following two essentials are to be
present:
(1) The tort was committed by the servant.
(2) The servant committed the tort in the course of his employment.
A servant is a person employed by another to do work under the direction
and control of his master. As a general rule, master is liable for the tort of his
servant but he is not liable for the tort of an independent contractor. It,
therefore, becomes essential to distinguish between the two.
A servant is an agent who is subject to the control and supervision of his
employer regarding the manner in which the work is to be done. An
independent contractor is not subject to any such control. He undertakes to
do certain work and regarding the manner in which the work is to be done.
He is his own master and exercises his own discretion. And independent
contractor is one who undertakes to produce a given result, but so that in
the actual exclusion of the work, he is not under the order or control of the
person for whom he does it, and may use his own discretion in things not
specified beforehand.
Example:
My car driver is my servant. If he negligently knocks down X, I will be liable
for that. But if he hire a taxi for going to railway station and a taxi driver
negligently hits X, I will not be liable towards X because the driver is not my
servant but only an independent contractor.
The taxi driver alone will be liable for that.

Hari Prasad Rao vs. the State (AIR 1951 SC 204)

Brief Facts:
The appellant was the licensee of two petrol bunks at Guntur. He employed
two persons Ch. Venkatrayudu and Dadda Pichayya to look after them. The
appellant was the resident of Chirala, and was also working as a Presidency
First Class Magistrate at Chirala.
The then British Government enacted The Motor Spirit Rationing Order,
1941. According to it, the motor vehicle owners should obtain valid coupons
for petrol from the authorities.
The Dealer of the Petrol Bunk should supply the petrol on receipt of such
coupons issued by the authorised Government officials, and maintain the
accounts for such coupons in a register, and endorse on the back of the
coupons, and then supply the petrol.
Two cases were prosecuted against Hariprasad Rao and his employees by the
State, alleging two charges in the first case that they supplied the petrol
without coupons and in the second case, the third charge was that they
received the coupons, but did not supply the petrol to the concerned. The
charges and cases were framed under the Motor Spirit Rationing Order, 41.
The Sub-Divisional Magistrate, Guntur found the appellant and his employees
in each case guilty of the charges and convicted the appellant to a fine of Rs.
30/- on the first count and Rs. 20/- on the second count and a fine of Rs. 20/on each of the three counts, and if the appellant failed to pay the penalty
and fine, one week imprisonment.
The appellant appealed to High Court, Madras. He argued that he was
working as a Magistrate and entrusted the business to his employees and he
was not present at the time of the offences, and sought the defence of mens

rea and exemption from vicarious liability. He pleaded that in criminal cases,
the accused should not be punished unless his mens rea was proved.
He also pleaded that the criminal law did not recognise the vicarious liability.
The Madras High Court held that the questions of mens rea and exemption
from vicarious liability were not relevant in the present case as the charges
were statutory offences.
It held the appellant were liable for the offences. It also held that the
question of mens rea will affect the measure of punishment but it cannot
affect the conviction.
The appellant appealed to the Supreme Court. The State argued that though
ordinarily a person should not be held liable for the criminal acts of another
and no person can be charged with the commission of an offence unless a
particular intent or knowledge is found to be present, mens rea is not of the
essence of the offence with which statutory provisions impose restrictions
and conditions.
Judgment:
The Supreme Court held that unless a statute either clearly or by necessary
implication rules out mens rea as a constituent part of a crime, the
defendant should not be held guilty of an offence under the criminal law,
unless he has a guilty mind.
Relying upon this rule, the Supreme Court held that where a servant sold
petrol to a bogus customer in the absence of coupons in contravention of the
Rationing Order and the master was not present at the time nor had he any
knowledge of the supply of petrol by the servants to the bogus customer, the
master cannot be held to be vicariously liable for the act of the servant.

Hence the conviction and the sentence imposed on the appellant on the 1st
charge in both the cases were quashed. The Supreme Court upheld
conviction and sentence on the third charge of the second case.
Principle:
The Supreme Court observed: Prima facie, the master is not to be made
criminally responsible for the acts of his servant to which the master is not a
party.
But it may be the intention of the Legislature, in order to guard against the
happening of the forbidden thing, to impose a liability upon a principal even
though he does not know of it, and is not a party to the forbidden act done
by his servant.
Many statutes are passed with this object. Acts had done by the servant of
the licensed holder of licensed premises render the licensed holder in some
instances liable, even though the act was done by his servant without the
knowledge of the master.
Under the Food and Drugs Acts, there are again instances well known in the
circumstances, where the masteries made responsible, even though he
knows nothing of the act done by his servant, he may be fined or rendered
amenable to the penalty enjoined by the law. In those cases the Legislature
absolutely forbids the acts and makes the principal liable without a mens
rea.

While disposing Munivel vs. State of T.N. (AIR 2006 SC 1761), the Supreme
Court held: Section 149 of the Penal Code provides for vicarious liability, if
an offence is committed by any member of an unlawful assembly in
prosecution of a common object thereof or such as the members of that
assembly knew that the offence to be likely to be committed in prosecution

of that object, every person who at the time of committing that offence was
member would be guilty of the offence committed.
Exemption under vicarious Liability in criminal law:
As a general rule of criminal law, the master is not held liable for the criminal
acts done by his agent or servant. However, he will be held responsible, if he
is the abettor or conspirator or active partner of the offence.
He may be treated as having joint liability and common intention (Sec. 34) or
as having constructive liability and common object (Sec. 149).
Examples:
a) A a master instructs B-a servant to murder C. B murders. Here vicarious
liability does not apply. Joint Liability should apply to both A& B, and both of
them must be punished accordingly. B cannot plead exemption under
vicarious liability.
b) A a master instructs B-a driver to drive his vehicle. B drives with rash
and negligent manner, and causes accident and death to C. Under the Law of
Torts, A and B both of them are liable to pay the damages caused to the
family of the deceased, and more particularly A is held more liable, being
respondent superior.
Under the Criminal Law, A is not held responsible, but B is held liable, as he
drove the car negligently. B shall have to face the prosecution for the Rash
& Negligence under Section 304-A of I.P.C., for which A shall not be liable.
Here the act committed by B comes under S. 304-A of Indian Penal Code,
which excludes the principal from the vicarious liability.

Exceptions:

Vicarious liability is unknown to Criminal law, But this legal principle has
the following exceptions:
1. Statutory Liability:
Sometimes, the statute provides strict rules to the principal, who must obey
the rules very carefully.

Examples:
(a) Erecting pandals on the roads in twin cities is prohibited, and violation of
such rules attracts penal provisions, by Hyderabad City Police Act. A-a house
owner instructs B-servant to erect the Pandal on the road. Here A is liable for
the contravention of the provisions of the Hyderabad City Police Act.
(b) Heaping Kankar, bricks, sand, etc., on public roads is an offence
punishable with one month imprisonment or with fine upto Rs. 1,000/- or
with both as per Hyderabad Municipal Corporation C finance, 1999. If a
servant makes a heap of sand on a public road, the principal/house- owner is
liable.
(c) The Environmental (Protection) Act, 1986, the Water (Prevention &
Control of Pollution) Act, 1974, the Air Prevention & Control of Pollution) Act,
1981, etc., impose the strict liability upon the occupiers/prospect is not to
pollute the atmosphere.
If an occupier instructs his employees to discharge unearned effluents into
the surrounding canal, land and atmosphere, the polluter/ occupier is
hearable.
3. Neglect of Duty:
The Factories Act, 1948 and its rules provide that the Owner of the Factory
must entrust the duties on dangerous machines to a well qualified and
experienced candidate, and also he should take all reasonable precautionary
steps to prevent accidents and dangers.
If A-an owner of a factory, entrusts the management of a dangerous machine
to an unqualified or unauthorised person, and if such unauthorised person
commits any accident causing death to person or persons A is held liable. A,

being the owner, is guilty of entrusting the handling of the machine to an

ignorant, unauthorised person. It is neglect of duty.