In Law of Torts, the person is liable for his own wrongful acts but there exists
a different concept also. When a person is held liable for the acts of another
person, then such liability is termed as vicarious liability. The said concept
imposes a strict liability on such person who was not actually involved in the
There are two legal maxims in this context:
Qui facit per alium facit perse: The law presumes that the act of
servant is the act of master. It is the presumption in the eyes of law. The
master holds the authority, therefore he is responsible for the acts of his
Respondeat Superior: in simple words we can say that 'let the superior be held liable for the
acts of subordinate'. The subordinate term thereby includes, any person who
has the authority to give directions to his junior.
example, the principle is superior to his agent, the master is superior to his
servant and employer is superior to his employee.
Sir Fedrick Pallock
'I am responsible for wrongful acts of my servant or agent because he does my
act and therefore it is my duty to see that he must do my act keeping in view
the security of other.'
Vicarious Liability arising out of special relationships:
Master and Servant:
is a person who holds an absolute
power to control and direct his servant. So, in master and servant relationship,
the master is liable for the acts of his servant provided, such an act is done
within the course of employment. That is to say, the act done comes under the
purview of the responsibilities given to him in his employment.
Liability of master for the acts of independent contractor:
Independent contractor is a person who is hired for a specific duration of time
and for completing a specific task. The master do not tell him 'how the work is
to be done' instead only tells him 'what work is to be done'. So, independent
contractor acts in his own way, his actions are not under the control of his
Whether the contractor is independent or not?
Control of job: If it is the discretion of a contractor to work in his own way,
then he is an independent contractor. On the other hand, if the absolute power
is in the hands of the principle and he orders him, the manner to do the work,
then he is not an independent contractor.
Supply of material: Independent contractor uses his own machinery, material and
specific skills to complete the work being assigned to him but a servant does
not do so. Moreover, the payment is given to an independent contractor after the
completion of a particular task whereas the servant is paid on a regular basis.
The employer is liable for the acts of independent contractor in exceptional
- The employer is not liable for the acts of an independent contractor.
- Provided the work involves 'inherently dangerous activity'
- If the employer authorizes the employee to do some illegal/unlawful
activity and ratifies the same, then also employer can be held liable.
- If employer hands over some extra hazardous work.
What is inherently dangerous activity?
The activities/work in which there is a high possibility of risk of injury to
any person. If the nature of activity is such that, the injury to any one is
highly probable then such activities can be termed as inherently dangerous
activity. For example explosives, hazardous substances, construction, hanging
sodium lamp on highways etc. so all these activities have very high chances to
injure the other person therefore in these cases the principle is held liable
for the acts of an Independent Contractor.
X hired a crane and a driver for the purpose of loading heavy
goods. Y was the owner of the company who supplied such crane and driver. In the
process of loading and unloading, Z got injured. Y would be held liable because
he didn't know 'how the work is to be done' and also he was a hired servant
(Independent Contractor for X). The liability shall be owned by Y in the said
case. (Mersey Docks and Harbour Board v. Coggins & Griffith Ltd.)
If the A authorizes his driver B to drive at higher speed and
negligently injured a pedestrian then A will be held liable. Because master has
himself authorized him to do an unlawful act. Also the said act was done within
the course of employment.
A has hired a few laborers for completing his renovation work of
his house. Suddenly, a brick fell out of his hand and injured the neighbor of A.
Here, who will be held liable? The master would not be held liable because
firstly, it was a sheer accident (Neither master nor servant can be held liable
in accidental injuries); secondly, the laborers are independent contractors who
own special skill to work. So master cannot direct them 'how the work is to be
done'. So the laborer would be held liable for his negligence.
In the case of Morris v. C. W. Martin and Sons Ltd
., the fur coat was given to
the defendant for cleaning but the servant stole the coat in the course of
employment so, the plaintiff sued. The court held defendants liable as the theft
was done within the course of employment.
The master would be held liable if his servant stole some goods which were
entrusted to him by the master. The notable point is the entrustment of goods to
the servant by the master.
- Principle and Agent:
When one person legally appoints another person, the principle of agency is
created. The principle authorizes an agent to do a certain work so, on his
command the agent accomplishes the work.
- Company and Directors:
The relationship of company and directors resembles that of principle and
agent. Directors are the agents of the company. So, company would be held
liable for the acts of directors. The act of directors is an act of company.
A director will be liable for tortious liability if he
actively participates in the act or authorizes or instructs anyone to commit
such an act.
- Firm and Partner:
In the case of Lloyd v. Grace, Smith and Co. (1912), the managing clerk of
the firm committed fraud against a lady client and transferred her immovable
property in his own name. The firm was held liable for the fraud because
such an act was committed within the course of employment and the ostensible
authority was given by the firm to the managing clerk. So if he has
committed a fraud, the firm would be held liable.
Difference between hired taxi driver and an employed driver:
The hired taxi driver or if we book online taxi, in both the cases the driver is
an independent contractor because we have hired him for the completion of a
particular task. In another case, if we have employed the driver then we have
full control and authority over him and he is not an independent contractor. So,
in case of personal driver, master will be held liable but in case of
independent contractor, master does not owe any liability.
- The notable point is that, the incidents of accidents and misfortune are
- The master would be held liable for all the unlawful acts authorized by
The concept of vicarious liability is very different and it totally depends upon
the facts and circumstances of the case. We cannot say, that superior is always
liable for his subordinate's act. The liability is not exhaustive. But if the
essential requirements are satisfied (as mentioned above) then master cannot
escape from his liability. So, the master is vicariously held liable for the
acts of his servant.