Chapter - 2

VICARIOUS LIABILITY - AN ANALYSIS

 Chapter - 2
VICARIOUS LIABILITY - AN ANALYSIS
A. Vicarious Liability:

He who commits a wrong is said to be liable or responsible for it. Liability

or responsibility is the bond of necessity that exists between the wrong doer and

the remedy of the wrong. Where the remedy is civil one, the party wronged has a

right to demand the redress allowed by law, and the wrongdoer has a duty to

comply with this demand.1 As a general rule one is liable for torts committed by

himself. However, there are circumstances under which one becomes liable for the

torts committed by others, even though he may be free from personal blame or

fault.2 Vicarious liability is an example of such liability.3 ‘ Vicarious’ is derived

form Latin term ‘vice’ i.e., in the place of. By this phrase we mean the liability of

a person for the tort of another in which he had no part. It may arise under the

common law or under statute.4

1 P.J.Fitzgerald (ed.), Salmond on Jurisprudence 12th ed.,1966, 4th re.pt., Bombay:

N.M.Tripathi Pvt. Ltd, 1999), p. 349.

2 William Prosser, Hand Book of the Law of Torts, 2nd ed, (St.Paul Minn:West Publishing
Co., 1955), p.350; G.P.Verma, State Liability in India: Retrospect and Prospect, (New
Delhi: Deep & Deep Pub. 1993), p.9.

Etymologically the term ‘vicarious liability’ means ‘liability instead’ i.e.,exercise

performed or suffered by one person instead of another. A ‘vicar’ is one who performs the
functions of another, he is a deputy or a substitute of another. Jess Stein ed., The Random
House Dictionary of English Language, (New York: Random House, 1967), p.1590; See
John G.Fleming, The Law of Torts, 5th ed., (Sydney: The Law book Co., 1977), p.354

4 S.Ramaswamy Iyer, The Law of Torts, 6th ed., (Madras: The Madras Law Journal
Office,1965), p. 489.
 19

Vicarious liability in the law of tort may be defined as a liability imposed by

the law upon a person as a result of (1) a tortious act or omission by another, (2)

some relation between the actual tortfeasor and the defendant whom it is sought to

make liable, and (3) some connection between the tortious act or omission and that

relationship.5 The expression “Vicarious Liability” signifies the liability which A

may incur to C for damage caused to C by the negligence or other tort of B. What

is required is that A should stand in a particular relationship to B and that B's tort

should be referable in a certain manner to that relationship.6 In the modem law

there are three and only three relationships which satisfy the second requirement of

vicarious liability, namely, that of the master and servant, that of principal and

agent, and that of employee and independent contractor.7 The most familiar

illustration, of course, is the liability of a master for the torts of his servant in the

course of his employment.8

5 P.S.Atiyah, Vicarious Responsibility in the Law of Torts, (London: Butterworths, 1967),

P-3-
6 W.V.H.Rogers (ed.), Winfield and Jolowicz on Tort, 12th ed., (London: Sweet and
Maxwell, 1984), p.571., also, see William L. Prosser, supra note 2.

P.S.Atiyah, supra note 5.

8 R.F.Heuston (ed.), Salmond on the Law of Torts, 7th ed. (London: Sweet and Maxwell,
1977), p.542; J.S.Colyer, A modern view of the Law of Torts, (Oxford: Perganon Press,
1966), p. 14; William L. Prosser, supra note 2, p.351.
 20

B. Theories as to Legal Basis of Vicarious Liability.

There are two theories as to the basis of vicarious liability according to

Atiyah9. The first, and traditional theory, is that vicarious liability is accurately

described by its name; that it is, in other words, a form of liability imposed on one

party for the tortious conduct of another. The second theory has been named the

“master’s tort” theory10 wherein the law attributes the act rather than the tort of the

servant to the master. However, subsequently master’s tort theory has been

rejected infavour of the traditional theory.*11 Atiyah concludes his discussion with

the following observation about the irrelevance of the basis of vicarious liability.

“On the whole it seems doubtful whether much is to be gained by an

examination of the “true” basis of vicarious liability. The fact is that
in the great majority of cases it makes no difference which view is
adopted; and in those situations where it does make a difference the
courts (at any rate in England) are much more likely to be influenced
by pragmatic considerations, than by doctrinaire theories. Any
attempt to adopt one theory rather than another, and then apply that
theory in all circumstances is only too likely to lead to blind
legalism....”12

9 P.S.Atiyah, supra note 5, p.6.

10 The master’s tort theory really originated in Twine v.Bean's Express Ltd.,[( 1946)1 All.
E.R.202 C.A.]; It was given further support in Broom v. Morgan, (1953)1Q B. 597 C A

11 Peter W.Hogg, Liability of the Crown in Australia, New Zealand and United Kingdom,
(Sydney: The Law Book Company, 1971), p.65; P.S. Atiyah, supra note 5, p.7.

12 P.S. Atiyah, supra note 5, p.7.

 21

It will never be possible, or perhaps even desirable, to expound a theory

which will at once explain and justify all aspects of the doctrine although it has

long been accepted as necessary and beneficial.13 Vicarious liability is considered

to be based on two Latin maxims qui facit per alium, facit per se i.e., he who does

an act through another is deemed in law to do himself,14 and respondeat superior

i.e., let the principal be held responsible.15 As long as the medieval command

theory prevailed, the master’s liability could, with some semblence to reality, be

justified by reference to the maxim qui facit per alium, facit per se.16 But the

expansion of commerce and industry, which set in towards the end of seventeenth

century, necessitated an adjustment of this narrow rule. After some expen men t

with the theory of implied command, the basis of the modem principle of liability

for all torts committed by the servant ‘in the course of his employment’ was

finally laid in the earlier part of the nineteenth century.17 This formula

represented a compromise between two conflicting policies: on the one hand, the

social interest in furnishing an innocent victim with recourse against a financially

responsible defendant and, on the other, a hesitation to foist any undue burden on

13 R.F.V.Heuston, supra note 8, p.452.

14 Roger Bird (ed.), Osborn’s Concise Law Dictionary, 7thed., 6th Indian Re.pt. (Delhi:
Universal Law Publishing. Co., 1998), p.275.

15 Ibid, p.290.

16 John G. Fleming, The Law of Torts, 5th ed., (Sydney: The Law Book Company Ltd, 1977),
p.354.
17
Ibid.
 22

business enterprise.18 The maxim respondeat superior does not explain why the

superior should answer: it does not enshrine a principle, but announces rather a

result - namely, that the employer ought to pay.19

Despite the frequent invocation of such glib phrases as respondeat superior

or quifacit per alium, facit per se, the modem doctrine of vicarious liability cannot

parade as a deduction from legalistic premises, but should be frankly recognised as

having its basis in a combination of policy considerations.20 According to

Winfield these maxims are of ‘no help’ because “the former merely states the rule

badly in two words, and the latter merely gives a fictional explanation of it”.21

The truth is that “a mixture of ideas has inspired many unconvincing judicial

efforts to find a common basis for the maxim. What was once presented as a legal

principle has degenerated in to a rule of expediency, imperfectly defined, and

changing its shape before our eyes under the impact of changing social and

political conditions”.22

19 R.F. V. Heuston, supra note 8.

20 John G. Fleming supra note 16, p.355.
21 W. V.H. Rogers, supra note 6, p.602.
22 Kilboy v. South-Eastern Fire Area Joint Committee. 1952 S.C. 280, 285 per Lord
Cooper.
 23

The principle of loss distribution is perhaps the most acceptable justification

of vicarious liability discussed today.23 The principle has found a succinct

exposition by Atiyah. He explains:

“In the great majority of cases an employer who has to pay damages
for the torts of his servants does not in fact have to meet these
liabilities out of his own pocket. The cost of the liabilities is
distributed over a large section of the community, and spread over
some time. This occurs partly because of the practice of insurance,
and partly because most employers are anyhow not individuals but
corporations. Where the employer insures against his legal liabilities
he will charge the cost of insurance to the goods or services he
produces. In general this cost will be passed on by the employer in
the form of higher prices to the consumer. The consumer himself
may also be able to play his part in spreading the cost in his turn,
because not all consumers are themselves individuals.... In this way
the cost of tort liabilities is spread very thinly over a substantial part
of the public. It is, moreover, spread over a period of time”.24

Each of the above theories may be inadequate to explain fully the principle of

vicarious liability. However, the truth remains that “both ancient and modem law

23 G.P.Verma, supra note 2, p.15; P.S.Atiyah, supra note 5, p.22; Fowler V. Harper &
Fleming James Jr., The Law of Torts, vol. 2, (Boston : Little Brown & Co. 1956 ),
p.1370.

24
P.S.Atiyah, ibid., pp 22-23.
 24

admit instances of vicarious liability in which one man is made answerable for the

act of another”.25

C. Justification of Vicarious Liability.

Many reasons are advanced from time to time in justification of vicarious

liability. In his book on Vicarious Liability, Baty analysed nine different grounds

which had, at one time or another, been put forward in justification of vicarious

liability. He dismissed each of them by demonstrating that no one of the reasons

taken by itself was consistent with law.26 However, Atiyah suggests that there is

an element of truth in most of the nine grounds put forward by Baty. He observes:

“None of them taken by itself may be a sufficient reason for the principle, but the

combined effect of them all may be overwhelming”.27 Most of the subsequent

writers also have advanced the same reasoning. The grounds analysed by Baty

are: (1) Control, (2) Master’s benefit from servant’s work, (3) Revenge, (4) Care

and choice, (5) Identification, (6) Evidence, (7) Indulgence, (8) Danger and (9)

Satisfaction.

D. Vicarious Liability of the State.

The notable switch-over from the laissez faire state to the welfare state

concept inevitably piled up enormous powers in the hands of the executive to be

25 P.J.Fitzgerald, supra note 1, p.400.

26 P.S.Atiyah, supra note 5, p. 15.
 25

commensurate with the felt needs in implementing numerous welfare policies.28

Today the expectation from the government is not only to protect its people from

external aggression and internal disturbance but also to take care of its citizens

from the cradle to the grave.29 Thus the empowerment of the executive is coupled

with responsibility. There is an old adage containing lot of truth that power

corrupts and absolute power corrupts absolutely. It is the demand of prudence that

when sweeping powers are conferred on administrative organs, effective control-

mechanism be also evolved so as to ensure that the officers do not use their powers

in an undue manna* or for an unwarranted purpose.30

The quest for control of power has been perennial. “But apart from control

of powers, reparation by payment of compensation to private persons who had

been injured by the action of public authorities is also required. If the exercise of

power results in damage to the citizen, there should be adequate principles for the

payment of damages”.31 The state (used here synonymously with government and

executive) is an abstract entity. It can act only through its servants. Today the state

is the biggest employer. Under vicarious liability “a master is jointly and severally

liable for any tort committed by his servant while acting in the course of his

28 S.P.Sathe, Administrative Law, 3rd ed. (Bombay: N.M.Tripati Pvt. Ltd, 1979), p.2
29 I.P.Massey, Administrative Law, 4th ed., (Lucknow: Eastern Book Co., 1995), p.8.
30 M.P.Jain & S.N.Jain, Principles of Administrative Law, 4th ed., 1986, 2nd re.pt. (Nagpur:
Wadhwa&Co. 1993), p.7.
31 A.T.Markose & V.D.Sebstian, “Liability of State in Civil Law”, in L.M.Singhvi, ed, Law
and the Commonwealth, 1st print (Delhi: National Pub. House, 1971), p.341.
 26

employment”.32 In the case of state, the question to what extent it shall be

responsible for the torts of its servants assumes significance because “it is simply

good politics to provide avenues of redress against the state”.33 Disowning of

liability will develop a feeling in the aggrieved individual of “increasingly

alienated from a non-responsive political system that refuses to grant avenues of

redress. Alienation in a democratic society can have drastic, and often fatal,

consequences for the system if it is widespread”.34 Dr.Upendra Baxi observes:

“...When those affected by power can, in theory, hold their rulers accountable (in

one way or the other), we speak of a liberal democracy or a “rule-of-law society”.

This type of society basically seeks to ensure that grants of power to the rulers are

at the same time charters of accountability for the ruled”.35

To critically appreciate the tortious liability of the state in India an

examination of the position in United Kingdom and United States of America

would be of immense significance.

32 R.F. V. Heuston, supra note 8.

33 Leon Hurwitz, The State as Defendant: Governmental Accountability and the Redress of
Individual Grievances, (Connecticut: Greenwood Press, Westport, 1981) p. xi.

35
Upendra Baxi in Introduction to I.P.Massey, Administrative Law, supra note 29, p.XVH