Vicarious liability in the case of master and

servant relationship
FINAL DRAFT SUBMITTED IN THE FULFILMENT OF THE COURSE TITLED –

LAW OF TORTS

NAME: Rahul Raj

COURSE: B.B.A., LL. B (Hons.)
ROLL NO: 1845
SEMESTER: 1 Semester
st

SUBMITTED TO: Mrs. Sushmita Singh

 ACKNOWLEDGEMENT

I would like to thank my faculty Mrs sushmita singh whose guidance helped me a lot with structuring
my project.
I owe the present accomplishment of my project to my friends, who helped me immensely with
materials throughout the project and without whom I couldn’t have completed it in the present way.
I would also like to extend my gratitude to my parents and all those unseen hands that helped me out at
every stage of my project.

THANK YOU
NAME: Rahul Raj
Contents

1. Introduction
2. Types of vicarious liability
3. Extent of vicarious liability
4. Relationship of Master and Servant
5. Tests to determine liability on Master
6. Course of employment
7. Cases and Illustrations
8. Conclusion
9. Bibliography.
INTRODUCTION

The law of tort has been used for many centuries to protect personal interests such as property, reputation, body
etc. It ensures justice is done by looking into the claimant's need for compensation, which is paid by the
defendant who has committed a breach of duty. The general rule in tort law is that liability is personal, i.e.,
liability is generally linked to a breach of one’s own duty and a person
is liable for the wrongs committed by him only. However, in certain scenarios, the law makes one person
being liable for the harm caused by another, because of some legally relevant relationship between the two.
This is known as the doctrine of vicarious liability.

The doctrine of vicarious liability generally operates within the law of torts. It has become well
established in English law and historically has been called “Master and Servant liability”. Vicarious
liability means liability which is incurred for or instead of, another. A person is responsible for his own acts.
But there are circumstances where liability attaches to him for the wrongs committed by others. The most
common instance is the liability of the master for wrongs, committed by his servant.

In these cases, liability is joint as well as several. The other common example of vicarious liability is the
liability of an employer for the torts of his employees committed in the course of employment. It is not necessary
in such circumstances for the employer to have breached any duty that was owed to the injured party, and
therefore it operates as strict or no-fault liability. It is possible that the injured party could be either an employee
or a stranger, and the employer can be held vicariously liable in both situations. The most important element to
establishing a case for vicarious liability is that the wrongdoer be acting as a servant or employee, and that the
wrong done be connected to the employee’s course of employment.
Vicarious liability can only be imposed if it is proved that the employee was acting “in the course of
employment.” This criterion is essential, and requires a clear connection between the employment duties and
the employee’s acts complained of.

A reason for vicarious responsibility of employers is that employers usually are, while their
servants usually are not, financially capable of the burden of civil liability. The theory partly owes its existence
to the anxiety of the injured person to find a solvent defendant. Again, it is said that the employer should be
made liable because it is he “who has set the whole thing in motion”.

Chief Justice Shaw of the Massachusetts Supreme Court in the case of farewell v. Boston and
Worcester Rly. Co. Stated that” this rule is obviously founded on the great
principle of social duty, that every man in the management of his own affairs whether by himself or by his
agents or servants shall so conduct them as not to injure another; and if he does not and another thereby
sustains damage, he shall answer for it. If done by a servant in the course of his employment acting within the
scope of his authority it is considered in contemplation of law, so far the act of the master, that the latter shall be
answerable civilizer. The maxim respondeat superior is adopted in that case from
general considerations of policy and security.”

The law of tort has been used for many centuries to protect personal interests
such as property, r e p u t a t i o n , b o d y e t c . I t e n s u r e s j u s t i c e i s d o n e b y
l o o k i n g i n t o t h e c l a i m a n t ' s n e e d f o r compensation, which is paid by the
defendant who has committed a breach of duty. The general rule in tort law is that
liability is personal, i.e., liability is generally linked to a breach of one ‘sown
duty and a person is liable for the wrongs committed by him only. However, in
certain scenarios, the law makes one person being liable for the har m caused by
another, because of some legally relevant relationship between the two. This is
known as the doctrine of vicarious liability.

The word 'vicarious' is derived from the Latin word for 'change' or
‘ a l t e r a t i o n ’ . V i c a r i o u s liability is an aberration from the norm of holding the
tortfeasor liable for damage caused by their own tortious liability. It is also referred to
as imputed negligence. Legal relationships that can lead to imputed negligence include
the relationship between parent and child, hu sband and wife, owner of a vehicle
and driver, and employer and employee etc. The persons who are held vicariously
liable need not be personally connected to the tort or be in anyway responsible. Thus
vicarious liability is a form of strict liability.

Many reasons have been advanced to justify this departure from the
fault principle. It is commonl y said that the reasons behind the
d o c t r i n e o f v i c a r i o u s l i a b i l i t y a r e f i r s t , t h a t t h e e m p l o ye r i s i n a b e t t e r
position to absorb the legal costs either by purch asing insurance
o r increasing his prices. Secondly, that the imposition of liability should encourage the
employer to ensure the highest possible safety standards in running his business. The Latin
maxim ‘qui facit per alium facit per se’ that means he who acts through another shall deemed
to have acted on his o w n a n d ‘ r e s p o n d e a t s u p e r i o r ’ ( “ l e t t h e m a s t e r
a n s w e r ” ) i s c o m m o n l y u s e d i n e m p l o y e r - employee relationships.

In Bartonshill Coal Co. v McGuire1 , Lord Chelmsford LC said: ‘every act which is done by
an employee in the course of his duty is regarded as done by his employer’s orders, and
consequently is the same as if it were his employer’s own act.’ It is said that the
doctrine of vicarious liability has not grown from any very clear, logical or legal
principle but from social convenience and rough justice 2. Another justification for it is that
since the employer makes profit from the employee’s activities, it is only
reasonable that the he bear any losses caused by the same.

The most common example of vicarious liability is the liability of an employer for the torts of
his employees committed in the course of employment. It is not necessary in such
circumstances for the employer to have breached any duty that was owed to the
injured party, and therefore it operates as strict or no -fault liability. The most
important element to establishing a case for vicarious liability is that the
wrongdoer be acting as an employee or employee, and that the wrong done be
connected to the employee’s course of employment.

1
(1853) 3 Macq 300
2
Per Lord Pearce in Imperial Chemical Industries v Shatwell [1964] All ER 999
TYPES OF LIABILITY

1. LIABILITY BY RATIFICATION:
An act done for B by A not for himself but for B though without the authority of B becomes
the act of the principle B if subsequently ratified by B. If one person commits a tort assuming
to act on behalf of another but without his authority and that other subsequently ratifies and
assents to that act, he thereby becomes responsible for it. The person ratifying the act is
bound by the act whether it to be his detriment or
advantage.

Maxims

Omnis ratihabitio retrorahitur et mandato priori aequiparatur

: every ratification of an act relates back and thereupon becomes equivalent to a previous
request.

Qui facit per alium facit per se

: Any person who authorises or procures a tort to be committed by another is responsible for
that tort as if he had committed it himself. The person authorising is liable not only for the
tort actually authorised, but also for its direct consequences. Conditions of ratification 1. Only
such
acts bind a principal by subsequent ratification as were done at the time on his behalf. 2. The
person ratifying the act must have full knowledge of its tortuous character. 3. An act which is
illegal and void cannot be ratified.

2. LIABILITY ARISING OUT OF SPECIAL RELATIONSHIP:

Vicarious liability may arise where the doer of the act and the person sought to be held liable
therefore are related to each other as:

1. Master and Servant. 2. Owner and Independent Contractor. 3. Principal and Agent. 4.
Firm and its Partner. 5. Guardian and Ward. 6. Company and its Directors.
3. LIABILITY BY ABETMENT:
In actions of torts, those who abet the tortuous acts are as much liable as the tort-feasors
themselves.
Extent of Vicarious Liability

The master (or employer) is liable for the torts committed by his servant (or
employee) only when it committed during the course of employment. It is
important to note that the vicarious liability of the employer is additional to the
‘primary’ liability of the employee for negligence. Both are liable— ‘jointly and severally’,
as it is put. The common law implies into the contract of employment a term to the effect that
the employee will perform the contract with reasonable c a r e . O n t h e b a s i s o f t h i s
term, the employer is entitled to recover from the employee a
contribution to any damages which the employer is liable to pay to the person injured or
killed. If the employer was not negligent at all, it will be entitled to be fully indemnified by
the employee.

There are three basic requirements to attribute liability to the

e m p l o ye r . F i r s t l y, i t m u s t b e established that the tort was committed by the
employee; secondly, the relationship between the master and employee should be
established; thirdly, the tort must have been committed in the course of
employment.

Is the worker an employee?

In order to establish vicarious liability, it is very important to be able to identify
an employee; h o w e v e r , t h e l a w i s r a t h e r u n c e r t a i n o n t h e
d e f i n i t i o n o f ‘ e m p l o y e e ’ ( o r ‘ s e r v a n t ’ ) . A n independent contractor is
said to have a contract for his services with his employer, while an employee (or
servant) works under a contract of service. A convenient starting point for inquiry is the
terms of the contract between the parties: how does the contract classify the
person in question—as an employee or as an independent contractor? In the case of an
independent contractor, a contract for services exists between the employer and t h e
contractor. A 'contractor' is a person who, in the pursuit of an
i n d e p e n d e n t b u s i n e s s , undertakes to do specific jobs of work for other
persons, without submitting himself to their control in respect to the details of
the work 3. The employer is not liable for the torts committed by the independent
contractor except under exceptional circumstances such as strict liability,
negligence in selecting proper person for the task, employment for the purpose of causing
harm etc.

3
Chintaman Rao v. State of M.P. AIR 1958 SC 388
RELATIONSHIP BETWEEN MASTER AND SERVANT
The difference between a contract of service (employee) and one for services ([independent
contractor) must reside, essentially, in the terms of the principal obligation agreed to be
undertaken by the employee. In a contract of service, the principal obligation is to provide
himself to serve: whereas in a contract for services the principal obligation is to provide his
services for the use of the employer4.

This distinction was also explained in the case Honeywill & Stein Ltd v. Larkin Bros Ltd5 by
Slesser L J. An employer is not liable for the acts of his independent contractor in the same
way as he is for the acts of his employees or agents, even though these acts are done in
carrying out the work for his benefit under the contract. The determination whether the actual
wrongdoer is a employee or agent on the one hand or an independent contractor on the other
depends on whether or not the employer not only determines what is to be done, but retains
the control of the actual performance, in which case the doer is a employee or agent; but if
the employer, while prescribing the work to be done, leaves the manner of doing it to the
control of the doer, the latter is an independent contractor.

Now, the question arises how to establish the relationship between a master and an
employee? Itis important to determine who is an employee not just for the purpose of
vicarious liability, but also for issues such as tax, social security, copyright etc. There is no
single test for determining this, but tests have been formulated in the cases.

TESTS TO DETERMINE LIABILITY ON MASTER

The oldest of these is the ‘control’ test. The control test effectively imposed liability where
an employer dictated both what work was to be done, and how it was to be done. This is aptly
suited for situations where precise instructions are given by an employer; it can clearly be
seen that the employer is the causal link for any harm which follows. If on the other hand an
employer doesn’t determine how an act should be carried out, then the relationship would
instead be one of employer and independent contractor.

The weakness of this traditional approach is that in the case of modern, highly specialized
tasks it is difficult for the employer to exercise control over the method of doing the work
Therefore, this test is not universally correct. The control test was explicitly disapproved in
the case of Union of India v. Abdul Rehman6 and it was stated that control test was a product
of the primitive society. There are many contracts of service where the master cannot control
the manner in which the work is to be done, as in the case of lawyers, surgeons and captains
of ship etc. However, the Privy Council held that “Control will no doubt always have to be
considered, but it can no longer be regarded as the sole determining factor; and that factor A
new test evolved with times to determine whether the contract is that “of service” or
“for services”.

4
WHPT Housing Association Ltd v Secretary of State for Social Services [1981] ICR 737
5
[1934] 1 KB 1991
6
AIR 1981 J&K 60
 A test was formed to determine whether the employee was an integral part of the business.
This test was proposed by Lord Denning. The reasoning is that under a contract of service, a
man is employed as part of the business; whereas under a contract for services, his work,
although done for the business, is not integrated into it but is only accessory to it.

The court will decide the status of each individual in the light of all the circumstances of each
case. Ways of determining whether the worker is an employee or independent contractor
include determining who owns the tools, is the worker paid wages or commission/lump sum
amount for the job, was the worker in business on his own etc. He said: 'It is often easy to
recognize a contract of service when you see it, but difficult to say wherein the difference
lies. A ship's master, a chauffeur, and a reporter on the staff of newspaper are all employed
under a contract of service; but a ship's pilot, a taxi-man, and a newspaper contributor are
employed under a contract for services. One feature which seems to run through the instances
is that, under a contract of service, a man is employed as part of the business; whereas, under
a contract for services, his work, although done for the business, is not integrated into it but is
only accessory to it .'7

The test nowadays is to look at all of the circumstances of the relationship before making a
decision. In Ready Mixed Concrete v Ministry Of Pensions And National Insurance8 The
following criteria were put forward to determine whether a contract of service exists:
1.The employee agrees that, in consideration of a wage/other remuneration, he will provide
his own work and skill in the performance of some task for his employer.
2.The employee agrees expressly or impliedly to be subject to his employer’s control.
3.The other provisions of the contract should be consistent with it being a contract of service
or employment.

Another test is to determine the employer is the 4 indicia of contract of service. It was
brought out by Lord Thankerton in Short V.J. & W. Henderson Ltd.9
(i)Master’s power to select servant
(ii)Payment of wages or other remuneration
(iii)Master’s right to control method of doing work
(iv)Master’s right of suspension or dismissal
The latest test to determine whether a worker is an employee is called the ‘hire and fire’ test.
The person who retains the power of dismissal is usually the employer for the purposes
of vicarious liability. One cannot always use any one test exclusively. In practice, it is
difficult to predict which tests the court will apply and almost impossible to assess in advance
the outcome of individual cases.

7
Stevenson, Jordan and Harrison Ltd v McDonald and Evans [1952] 1 TLR 101
8
1968) 1 All ER 433
9
(1946) 62 TLR 427
Course of Employment
An employer will only be liable for torts which the employee commits in the course
of employment. Although this is a question of fact in each case, there is little consistency in
the decisions. It is therefore extremely difficult to state the law simply.

Course of employment is a legal consideration of all circumstances which may occur in

the performance of a person's job, especially during a period of time where specific
objectives are given by the employer to the employee are being fulfilled. The course of
employment encompasses the actual period of employment and the period during which the
employee, while on the employer's premises, prepares to commence or to depart from work,
such as by changing clothes. Employer-sponsored recreational activities are also considered
part of the course of employment when organized, encouraged, or supported by the employer
for business purposes, such as the promotion of efficiency.

For an act to be considered within the course of employment it must either be authorized or
be so connected with an authorized act that it can be considered a mode, though an improper
mode, of performing it. In other words, an act can be said to be within the realm of “course
of employment” if it is either an authorized act or a wrongful way of doing an authorized act.
If an employee expressly authorizes an unlawful act, he or she will be primarily liable.
The position is more difficult in cases in which the employer is said to have authorized a
wrongful act by implication. This 'implied authority' approach seems to have lost currency
but it was accepted in the early 20th century10 and it was even then probably little more than a
means of justifying the outcome which the courts desired.

An employer will usually be liable for acts which are wrongful ways of doing something
authorized by the employer11, even if the acts themselves were expressly forbidden by the
employer.

The court should determine the fundamental question of whether the wrongful act is
sufficiently related to conduct authorized by the employer to justify the imposition
of vicarious liability. Where there is a significant connection between the creation
or enhancement of a risk and the wrong that occurs, the employer can be held vicariously
liable. To determine the sufficiency of the connection, the following factors should be
considered:
1.the opportunity afforded for the employee to abuse his power;
2.the extent to which the act is furthered by the employer's aims;
3.the extent to which the act is related to friction, confrontation, or any other kind of tort
4.the extent of the power of the employee over the victim; and,
5.The vulnerability of the potential victims.

10
Poland v Parr & Sons [1927] 1 KB 236
11
Salmond & Heuston on the Law of Torts, 1996, pg. 443
CASES AND ILLUSTRATIONS
This principle was applied in many cases like Rose v. Plenty12
In this case, a milkman had been forbidden by his employer to allow young boys to ride on
the milk floats and assist in delivering milk. However, he took a 13-year-old boy to help him
on his round, and the boy was injured through the milkman's negligent driving. The boy sued
both the milkman and the dairy. The Court of Appeal held that the milkman was carrying out,
albeit in a prohibited manner, the task which he was employed to do, so the employer was
liable.

In another case, Limpus v. London General Omnibus Co13

a bus driver racing to a stop to collect passengers deliberately obstructed the driver of a bus
of a rival company, overturning the latter’s vehicle. This was done despite express
prohibition by his company against obstructing other buses. However, the defendants were
liable. The rationale was that the driver was acting within the course of his employment at the
time; it was immaterial whether his act was forbidden.

An act in defiance of a prohibition which deals with “conduct within sphere of employment”
(i.e.: how, when, where etc tasks are performed) will not be outside the scope of employment
-the employee would be doing the right services but in the wrong way: employer is liable
However, a master will not be liable for the servant’s negligence in doing something which
he was merely permitted to do and does so for his own purposes.

This was seen in the case Crook v. Derbyshire Stone Ltd14

it was held that the employer was not liable when a collision occurred between the employee
and a motor cyclist caused by his negligence. The lorry driver had stopped at a way side café
and crossed one section of a dual carriage way on foot in order to get refreshment which was
an act done while he was employed and with his employer’s permission. The act of getting
refreshments was just incidental to his employment.

12
[1976]1 WLR 141
13
(1862) 1 H&C 526
14
(1956)2 All ER 447
Illustrations
ROBBERTS v. SHANKS, (1924) 27 Bom. L. R. 548. (Chauffeur’s case).

On alighting from his car, the defendant ordered his chauffeur to take the car direct to the garage. The
chauffeur, however drove the car to his own residence, took his meals,
and whilst driving the car to the garage, negligently drove it into plaintiff’s
car and caused damage to it. The defendant was held liable in damages for, at the time of the accident, the
chauffeur was acting
in the course of his employment.

A master becomes liable for the wrong done by a servant in the course of his employment in the following six
ways-

1. The wrong may be the natural consequence of something done by a servant with
ordinary care in execution of the master’s specific orders.

2. The wrong may be due to the servant’s want of care or negligence in carrying on
the work or business in which he is employed.

3. The servant’s wrong may consist in excess or mistaken execution of a lawful

authority. Here it must be shown-
(a) That the servant intended to do on behalf of his master something which he was, in fact,
authorized to do; and
(b) That the act, if done in a proper manner, or under the circumstances erroneously supposed by the servant to
exist, would have been lawful.

4. The wrong may be a willful wrong, done on the master’s behalf and with the intention of serving his
purposes

. 5. The wrong may be due to the servant’s fraudulent act.

6. The wrong may be due to the servant’s criminal act.

LATIN MAXIMS

Respondeat Superior

"Respondeat superior " (Latin: "let the master answer"; plural: respondeant superiores) is a legal
doctrine which states that, in many circumstances, an employer is responsible for the actions of
employees performed within the course of their employment. This rule is also called the "Master-
Servant Rule", recognized in both common law and civil law jurisdictions. In a broader scope,
respondeat superior is based upon the concept of vicarious liability.

In Common Law:

When applied to physical torts an employer/employee relationship must be established and the act
must be committed within the scope of employment (i.e substantially within time and geographical
limits, job description and at least with partial intent to further employer's business. Historically, this
doctrine was applied in master/servant or employer/employee relationships. If the employee or
servant committed a civil wrong against a third party, the master or employer could be liable for the
acts of their servant or employee when those acts were committed within the scope of the
relationship. The third party could proceed against both the servant/employee and
master/employer. The action against the servant/employee would be based upon the direct
responsibility of the servant/employee for his conduct. The action against the master/employer is
based upon the theory of vicarious liability, by which one party can be held liable for the acts of
another.

Employer/employee relationships are the most common area wherein respondeat superior is
applied, but often the doctrine is used in the agency relationship. In this, the principal becomes
liable for the actions of the agent, even if the principal did not directly commit the act. There are
three considerations generally:

1. Was the act committed within the time and space limits of the agency?

2. Was the offense incidental to, or of the same general nature as, the responsibilities the agent is
authorized to perform?

3. Was the agent motivated to any degree to benefit the principal by committing the act?

The degree to which these are answered in the affirmative will dictate the degree to which the
doctrine can be applied. Common law distinguishes between civil and criminal forms of respondeat
superior.

In International Law:

At issue in the Nuremberg war crimes tribunal following the Allied occupation of Nazi Germany after
World War II was a question concerning principles closely related to respondeat superior, which
came to be known by the term command responsibility. The Nuremberg trials established that
persons cannot use the defense that they were only following the orders of their superiors, if that
order violates international norms but especially that superiors that ordered, or "should have
known," of such violations yet failed to intervene are also criminally liable.
Qui Facit Per Alium Facit Per Se

Qui facit per alium facit per se, is the authorized act of an agent is as same as the principal's acts. A
principal's tort liability is based not on an agency but on the relationship of master and servant
expressed in the maxim “respondent superior”.

However, both rules and maxims are founded upon the principle that a duty rests upon every man in
managing his/her own affairs, either by himself/herself or by his/her agents or servants. But if
another person gets injured upon the acts, the principal is liable for the damage.
Conclusion

We have seen the meaning of vicarious liability and its application under tort law under many
circumstances as mentioned above. Vicarious liability is a legal concept which refers to one party
being held liable for the injury or damage sustained by another party, in spite of the fact that they
had no active involvement in the incident. The intent behind vicarious liability is to hold the proper
party accountable when harm is committed. The victim needs compensation and the law provides so
by applying the principle of ‘qui facit per alium facit per se’ that means he who acts through another
shall deemed to have acted on his own, the courts hold the employer or principal or partner
responsible as per the situation. We have looked at a variety of situations in which a party, including
contractors, parents and employers, may be charged with vicarious liability . Vicarious liability is
sometimes applied in criminal law too. In India sections 154, 155 etc of the Indian Penal Code are
classic examples of the same. However application of vicarious liability to crimes has been greatly
criticized. This is because vicarious criminal liability would violate either or both of two basic
principles of the criminal law. According to the first principle, the

actus reus

requirement, a person cannot be guilty of a crime unless the person's guilty conduct includes a
voluntary act or omission. One feature of the

actus reus

requirement is the protection of personal security it affords by forcing criminal statutes to provide a
bright line that a person can choose not to cross and thereby avoid criminal liability. By holding a
person liable for the conduct of another, vicarious liability undermines this control principle of the

actus reus

requirement, because a person cannot control the conduct of others in the same way that she can
control her own. Just as importantly, vicarious liability may violate a second principle, that criminal
liability must be based on personal fault. Both retributive and utilitarian justifications for criminal
penalties demand that fault accompany the moral condemnation and harsher punishments
associated with criminal conviction. By punishing the parent for theft if a child steals, for example,
vicarious liability could violate this basic rule. Nowadays, vicarious liability in criminal law is rarely
applied except in very special circumstances. An employer is liable for the torts committed by his
employees during the course of employment. Several reasons have been advanced as a justification
for the imposition of vicarious liability. It is because the employer has better financial capacity to
compensate the victim. It encourages the employer to provide safe working conditions that are
accident free to the employees and most importantly, since the employer derives the benefits of the
actions of the employee, it is only fair that he bears the brunt if any loss has occurred due to the
same. An employer can be held liable for the torts of the employee only if the following claims are
established. Firstly, a tort must be committed. Secondly, the tortfeasor must be an employee and
lastly, the tort must have been committed in the “course of employment” Once the first claim is
established, one has to prove that the worker was indeed a servant / employee and not an
independent contractor (employers are not liable for torts committed by independent contractors).
There are many tests suggested by many different legal scholars to determine the same. Some of
these tests are the control test, which checks whether the employer had the control of determining
the method of performance of the work of the employee. Another test is the hire and fire test which
is used in modern times especially for torts committed by professionals where there is no way to
control the method of doing work. The other tests include the “integral part of business” test, 4
indicia of employment etc. By all these tests one can determine if the worker is under a contract of
service or contract for service, and the employer is liable only if the first is proved. Applicability of
vicarious liability is possible only when “in the course of employment” criterion is satisfied. Although
essential, this criterion has expanded to the point of allowing claims for vicarious liability in cases
where liability would not have arguably been imposed. This criterion is a question of fact, and it is
immaterial whether the wrong committed by the employee was authorised or not. Course of
employment can be defined as the activities engaged in, the circumstances that exist, and the events
that occur that are normally part of an employee’s job, especially those directly related to the work
that the employee was hired to do. The time that the employee takes to complete his or her
assigned tasks also comes under this. It is important to note that an employer cannot avoid liability if
an employee acts in a way that could be described as “incidental” to his employment and the duties
to which he is entrusted with.

We saw instances where the master can be held liable for the careless and negligent actions of the
servant, thereby resulting in injury or damage to a third party. If this action of the servant was
committed during the course of employment, then the master is held accountable and has to pay
damages . So far, we have seen the master held accountable. Nevertheless, there is a provision in
law to provide relief to the employers’ who have been held vicariously liable when the employee
commits a tort. The principle is commonly referred to as the Lister v Romford Ice Cold Storage Co.
Ltd. Using this principle the employer may sue the employee for damages claiming that the
employee has incurred by using the claim that the employee has violated the term of the contract of
service by his negligence. Thus, vicarious liability is a theory that is aimed at providing remedy to the
sufferers of damage in accordance with the principle of “justice, equity and good conscience”
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Law of torts

RK Bangia

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