WRITE A SHORT NOTE ON VICARIOUS LIABILITY

This article is written by Harshita Chandak of BALL.B of 3^rd Semester of RNB Global University, Bikaner, an intern under Legal Vidhiya.

ABSTRACT

Vicarious liability is a significant aspect of tort law since it touches on the ability of one party to suffer a loss through the wrongful acts of another legally sanctioned action. The paper considers the etiology, mechanism, and extent of vicarious liability, including its theoretical basis and practical institution. The framework allows for risk allocation, and vicarious liability as noted generally goes with almost all relationships employer-employee, principal-agent, and partnerships except for the fault of the responsible party. Significant principles including the doctrine of respondent superior are there on the basis, to explain the circumstances within which vicarious liability arises. Other exception factors such as loss of service, out-of-course occurrence, independent hiring, and frolic and detour, glued together some of the friction of this standard. Some common usage includes liability for harassment by officers, employee negligent driving, injury by agents to others, etc. Other examples besides those cited above include third-party premises liability. In this case, the focus is on the effect of the statement of law and fact analysis on premises liability for vicarious intervention weakened exposure.

KEYWORDS

Vicarious Liability, Tort law, Qui Facit Per Alium Facit Per Se, Accountability, Negligent, Respondent Superior, Wrongful act, Principle-agent, Master-Servant.

INTRODUCTION

Under tort law, the scope of liability for a negligent act is widened, as seen under the doctrine of vicarious liability. It has well-defined policies concerning control and self-restraint in various interpersonal dynamics which are necessarily understood. This approach appears to create limits on self-competition in light of the broader purposes of collective organization. Of course, such principles further the quest for justice in society, especially in hierarchical or stratified social systems. Through vicarious liability, not only is there discouragement of wrongful acts, but there is also an assurance of justice and recovery for the aggrieved parties by making the superior responsible for the actions of the subordinates in the organization. The rationale behind the provision is vicarious liability developed from legislation and policy which seeks to stop damages, properly allocate the burden, and ensure that appropriate payment is made to the innocent victims. In our modern world, yes but, not restricted to the advantages of communication, businesses and institutions are highly dependent upon multi-numbered structures and relations, its doctrine helps effectively deal with issues posed by power differential. It means when employees perform their duties which affects the interests of requested and compiled services, then the employers, who benefit from their work, are also liable for the amount of harm sustained. The idea of vicarious liability has its roots in Roman law which sought to ensure the obligations of the parties using the term ‘masterservant’ to describe the relationship. This principle was ensuite developed following English civil law which puts forth the best known saying ‘qui facit per alium, facit per se’ – ‘he who acts through another, acts himself’ it is worth noting that this middle maxim the vicarious liability rule is all about, to bring the point home, in conjunction with having given due authority to another to act within that authority. It has been noted that vicarious liability has grown in importance with the industrialization, emergence of corporate bodies and the changing nature of modern employment relations. With the growth of businesses and the stratification of relationships, there was need for justice for the employers to be held responsible for the deeds of their employees, for justice is not only for the individual but for the community. Now the doctrine in question is perceived to link the ideas of individual and group responsibility and answers the challenges of a certain stage of development of legal and social reality. All this could be achieved through an examination of case laws, statutes and the employer’s or employee’s scope of practice. This paper focuses on the specific aspects of judicial practice, the development of the principle of vicarious liability, the prerequisites and the contemporary meaning of this doctrine within the legal systems of today’s world. In the end, the goal of the paper is to show how vicarious liability affords the requisite flexibility so as to always ensure fairness and justice in a world that is in a constant state of flux.

WHAT IS VICARIOUS LIABILITY AND ITS WORKING

Vicarious liability is that liability that arises when someone or an entity is held partly responsible for the unlawful action of another party, but the latter is carried out alone. Vicarious liability can arise in situations wherein one party is responsible and has control over someone else, such as an employee, and is considered to be negligent in carrying out their responsibility and exercising his control. For instance, in an organization, a manager might have liability based on the employment relationship for what a subordinate or associate may do.

A party is normally made legally responsible for the negligent or wrongful acts performed by that party’s subordinate, who is under supervision of the supervisory or controlling relationship. The principle of vicarious liability is frequently applied in employer-employee relationships where an employer may be liable for an employee’s negligent acts when carried out in the course of employment. Employers can take steps to minimize or eliminate vicarious liability, however, when they actively take efforts to prevent negligence, like providing a robust training program, having clear policies regarding the workplace, and performing proper supervision. The essence of this defense is the proactive steps undertaken to reduce risks and for compliance with legal and ethical standards.   

Vicarious liability applies, not only to workplace but also family relationships. For example, one can hold parents vicariously liable for negligent or even criminal acts committed by a child if they prove, for instance, that parents have not exercised reasonable control or supervision over their child’s activities. This principle is grounded in the responsibility of supervisory parties to foresee potential harm and take preventive action. Thus, vicarious liability embodies a shared social duty of harm reduction against those who have the capacity and authority to influence behavior. Not only does it aim at victim justice, but it is also deterrent-focused, compelling victims and organizations to maintain a high standard of care toward superiors.

How Vicarious Liability Works

Vicarious liability, also known as imputed liability, is an indirect liability for the actions of another person, such as a subordinate or child. A business owner can be held liable for the illegal act of an employee. Such an act may be harassment or discrimination in the workplace. An employer may also be liable, for example, if his employee operates equipment or machinery in a negligent or inappropriate manner that causes damage to a property or personal injury to a person. For instance, if a construction worker mishandles the controls of a crane and knocks down the wall of a neighbouring building, the company supervising the construction and the worker may be vicariously liable for the damages. Similarly, if an engineer loses control of a train, and runs down the tracks by itself, then the company owning and operating the train may be vicariously liable for any resulting damages and injury.

The employer is liable vicariously for the acts of its employees because it is deemed:

• liable for the actions of its employees while they are at work
• Capable of preventing and/or minimizing any injurious acts that its employees commit
• Vicarious liability may be avoided by an employer when it takes reasonable care to prevent illegal conduct.

ELEMENTS

This, however, requires a specific relationship between the parties, such as employer and employee, principal and agent, or business partnerships. In this sense, if an employee performs some service activity within the meaning of his job specification, an employer might be held answerable for such action on the part of his employee. For instance, when an agent acts on behalf of a principal, such as a property agent who gives bad information concerning a property cited in a listing, the principal can answer the act in tort. Under certain circumstances, these wrongful acts may require one partner to be liable for the actions of the other. For this to be applied, there are certain conditions, the first of which prescribes that the tort or wrongful act be done by an employee or agent in the course of the employment or duties of agency. The delivery driver has an accident when he is working and as a consequence, it can have liability against the employer. The second aspect is that the act has to take place in the course of employment or agency; it must relate to some duties that the employer or principal has permitted. The third aspect can involve either negligence or wrongful conduct that may be a torts act. Finally, damage to the claimant must occur from or result from the act. These damages might include things like physical injury effects, such as bumping against a pedestrian with a delivery truck, or property damage effects like scratching a client’s car by a valet. The idea of vicarious liability signifies the obligation of those in supervisory control to ensure that actions of those acting in their names are conducted with care and responsible attitudes. Part from that, it upholds justice, which would be denied to the victims but at the same time motivates employers, principals, and partners to put in place safety systems to prevent negligence and other injurious practices within their professions.

EXAMPLES

1. Delivery Driver: Companies can be accused of vicarious liability if their employees make an expeditious pizza delivery and by chance run over a person claiming to be injured.
2. Medical Malpractice: In cases where a patient gets harmed in one way or the other due to a nurse’s wrongful medication in a hospital, that hospital will be accused of vicarious liability.
3. Security Company: Any vicarious liability of a security company arises when one of its guards is accused of assaulting a client during an event.
4. Wrong Information by a Seller’s Representative: The issue that arises is the seller’s vicarious liability in case the vicarious instructions of the seller are followed: “the seller impressed the agent that they would sell the property and proceeded to lie over the property.”
5. Or any dominance phenomena at the school’s premises: There might be the reason or blame of parents also where a child is targeting another and they might not be looking at him at all so eventually it creates a space for blame game to also aggregately put to the parents.
6. Dangerous Devices/ Apparatus: The employer perhaps would be said negligent in this case where a demolition contractor’s employee who is not willing injures a third party because that was a demolition of a very risky activity.
7. Breach of Contractual Obligations: Hence, such conditions prevail if there is a specific partnership business local partner company that probably during the course of the business may have breached a certain contract, this subsequently will involve other partners once the claim is lodged.

PRINCIPLES

Alium Facit Per Se Qu Facit Per Alium: This is known as “Qui facit per alium facit per se,” or “he who does an act by another does it himself.” The concept states that anyone who encourages, allows, or assists someone in committing a crime is considered to have committed the crime themselves. According to this concept, those in positions of power or influence cannot act in a way that avoids accepting accountability for their transgressions. It reflects the societal and legal presumption that misconduct committed by others does not absolve it of its consequences. Essentially, “Qui facit per alium facit per se” is a legal principle that enforces accountability, preventing anybody from avoiding the repercussions of wrongdoing by utilizing the conduct of others as an excuse. It constantly serves as a reminder of the obligation to behave morally anytime one’s choices and directives have an impact on other people.

Doctrine of Respondent Superior or “let the superior answer,”: because, in theory, it falls under the rule of vicarious liability, setting the legal precedent that a servant or employee’s wrongdoing will impose liability on the master or employer if it takes place during their employment or within their authority; it does not necessitate the master’s express order or actual participation. It was founded on the idea that every action taken by a servant while they are employed has a legitimate reason to be the master’s. This would occur as a result of acting on behalf of his master with the explicit or tacit consent of in connection with the master business. According to the law, the master is liable for any harm created in these situations as he benefits from the servant’s acts. This regulation accomplishes two goals: it gives the harmed party justice while also promoting more watchfulness and responsibility from the government. In the current period of intense commerce and economic activity, the Respondent Superior principle has particular significance. Accordingly, the law permits the harmed party to bring a lawsuit against a financially strong defendant, typically the principal or employer, to have a reasonable chance of receiving a sizable settlement. Employers are typically more willing to cover the expenses or obtain the required insurance to hedge Such liabilities.

EXCEPTIONS OF VICARIOUS LIABILITY

As a rule, independent contractors cannot be held liable for their actions by the employer because no employer can control how their contractors perform their tasks. In such cases, courts generally grant immunity to the employers because the employer doesn’t have the direct influence over the manner and mechanism of the realization. However, a duty of care cannot be delegated, for instance of course, in cases of an inherently dangerous activity. Likewise, the employers are not usually liable for conduct committed by the employees during their personal time. For instance, when an employee does something not associated with work while off duty, say running a personal errand or committing a crime at that time, the employer would not bear any liability for it. Such a difference marks the cleft gulf between the personal acts of an employee vis-a-vis his duties in a profession. Employers have immunity from criminal acts of employees performed outside the line of duty. Vicarious liability does apply in all those cases where there is a very close and immediate connection of the wrongful act of the employee and their duties in their official status. For example, the case Lister v. Hesley Hall Ltd (2001)[1]held the employer liable as the wrongdoing of the employee was closely linked to his charge as warden, illustrating the importance of nexus between the act and the job carried out. Another important point is the distinction between negligence and intentional torts. Generally, the employer will be liable for any negligent act performed by employees during their work, while the employer will rarely be liable for intentional torts as a general rule unless they have some reasonable nexus to the employee’s duties. Courts will inquire into whether the wrongful act actually falls within the work requirements of the employee and is also not outside the scope of what is foreseeable.

Tests of foreseeability come into play on the matter of liability. These tests ascertain whether the employee’s actions would have caused the attached injury and whether the injury could otherwise have been reasonably foreseen in those circumstances. Therefore, if the tortious act is considered as considerably deviating from the scope of employment, the employer shall not be held responsible. These principles extensively demonstrate the tortuous nature of approaches concerning cases of employer liability, attempting to balance the fairness but not denying justice to the victim.

JUDICIAL INTERPRETATION AND CASE STUDIES

Through important rulings, courts throughout the world have developed the theory of vicarious responsibility. Among the most noteworthy examples are:

The Supreme Court of Canada ruled in Bazley v. Curry (1999) that an employer was vicariously responsible for an employee’s wrongdoings due to the nature of the work.

Indian Approach: The methods used by Indian courts are also the same.^[2]

In the 1978 case of State Bank of India v. Shyama Devi, the court found the bank accountable for the dishonest actions of one of its employees while acting in his official

position.^[3]

The House of Lords in Dubai Aluminium Co Ltd v. Salaam (2002) highlighted the close connection test that linked the employee’s responsibilities to the wrongdoing.^[4]

POLICY CONSIDERATION AND RATIONALE

Liability Or Supervision Although This Shows Lack Of Trust In Staff: we often imagine a situation where the employer runs his business through employees’ hard work. For them to be successful in their various ventures, such as making profits, acquiring a reputable standing, and expanding, there are roles that come with such success. The vicarious liability makes it so that employers of these employees should be responsible for their actions rather than ignoring them. Rather, it compels them to view employment, training, and supervision as an important aspect. By holding employers accountable, this principle encourages them to choose the right people for the job, provide them with the tools and knowledge they need, and create a workplace that does not potentially harm others. In such cases, employers do not retire from such jobs. Rather, when businesses recognize such responsibilities, they build faith not only in their employees and customers but also in the community overall.

Risk Sharing: now consider a case in which you perform your professional duties but in the course of it, an accident occurs which causes damage, and some delivery has to be made and there is a car involved. Although the employee is not in a position to provide that compensation, he still has to be compensated in such cases. The business burden here shall never be on the same shoulders. Such risks are transferable to the employer who in most cases, has sufficient insurance coverage or financial resources.

Deterrence: think of a restaurant owner. They want their staff to provide excellent service, but they also have to ensure a safe dining environment for their customers. If something goes wrong—a server spills hot coffee on a patron—the responsibility could fall on the employer. This potential liability encourages them to set up processes that reduce such risks, like training staff on safe serving practices or using better equipment.

This isn’t just about avoiding lawsuits; it’s about creating a safer and more responsible workplace. Vicarious liability pushes employers to think ahead, implement safeguards, and act in ways that benefit not just their business but everyone who interacts with it.

Fairness to victims : vicarious liability is concurrent with the reasonable expectation that the victims have a way out to seek redress. It does offer a remedy, and that remedy is now placed in the hands of the employer. For the victim, there is more to it than just receiving the amounts of money; this is about that feeling that the system acknowledges the wrong that was done, and the loss suffered, and the right to justice is upheld.

In common and simplistic terms, it means fairness and accountability. It serves as an important reminder that women and men who are in a position of power i.e. owners and or managers of businesses have the responsibility to take care when exercising such power. It defends the weak, engages the institutions of society, and ensures that there are means through which restoration can occur after an error has occurred. This principle does not apply only about legal norms; it is applicable concerning the ideologies and relationships that govern order and fairness within society.

CHALLENGES AND CRITICISM

In the changing workplaces of today, the difference between the employer and its employees becomes increasingly elusive because of the highly independent work and the emergence of new-age non-traditional work arrangements which include work-from-home setups, the gig economy, freelancing, and more. With that, the traditional direct linear interface between employer and employee becomes blurred. The fact is, many people nowadays work according to a hybrid system, some of whom have lines of direct supervision, while others enjoy independence as contractors, and this ambiguity complicates liability ascertainment when something goes wrong. This makes it vitally necessary to revisit the principles underlying vicarious liability to ensure that they remain fair and relevant in their applicability to an increasingly evolving world in which employment cannot be defined simply as included within the four walls of an office or conventional hierarchies. 

The balancing act of the vicarious liability continues to be a hot legal issue in India. It aims to cause the treatment of such injuries as those related to employment and compensate an employee who causes such accidents with certain costs being borne by an employer who is often better placed to bear such costs. However, such balance remains a thin line. Putting unreasonable vicarious liabilities on the employer can end up restricting the economy from growing and innovating. However, employment contracts now evolve faster than people can comprehend. Hence there emerges the need to put together new challenges facing employees while ensuring fair concerns from employers to strike such an equitable balance to apply vicarious liability. 

Critics of vicarious liability contend that the doctrine sometimes stretches employer liability too far into unreasonable territory. For example, in such industries as the construction industry, where employees work most times scattered and autonomously, employers are held liable for actions beyond their reasonable expectations In avoiding practical and unreal intentions of the doctrine, scenarios may disturb it much to balance which will make both employer and employee unhappy.

The shifting dynamics of contemporary work require the careful reconsideration for the contemporary relevance of the doctrine: with the emergence of gig platforms as well as decentralized organizations and AI-based human resource management systems, new challenges have arisen. Lawmakers and courts now have to grapple with such issues as defining liability in gig economies without standard employment relationships, assuming accountability for AI and algorithm-driven actions, or whether international dimensions should come into play with regard-hiring disputes. These trends suggest the need to rethink and adapt vicarious liability in order to meet future workplace demands while keeping equity and practicality in mind for all parties concerned.

CONCLUSION

Within tort law, the concept of vicarious responsibility must be based on accountability and justice, but its traditional anchor of employer-employee interactions must be expanded to accommodate the complexity of contemporary business structures.

The way vicarious liability develops will rely on its capacity to strike a careful balance between the rights of victims who are entitled to damages, the justifiable concerns of employers, and the changing social norms around accountability for wrongdoing. This necessitates a delicate and flexible procedure that takes into account the changing nature of labor, the power that employers wield, and the societal consequences of holding companies accountable for their actions. Thus, vicarious liability’s continued applicability and efficacy depend on its capacity to develop and advance in support of the core principles of justice and equality. The concepts of justice and fairness found in tort law serve as the foundation for vicarious responsibility. The theory needs to adapt to evolving company structures and work environments. It is necessary to balance the rights of the victims, the interests of the employer, and social norms. A well-rounded strategy that addresses the intricacies of contemporary professional interactions is required.

REFERENCES

1. Investopedia, What Is Vicarious Liability? Example and How To Avoid It, https://www.investopedia.com/terms/v/vicarious-liability.asp, (last visited – 22 Dec. 24)
2. Textbook, Vicarious Liability – Meaning, Working, Examples, Essentials, Defenses, Implications And More, https://testbook.com/ias-preparation/vicarious-liability (last visited22 Dec. 24)
3. Law Bhoomi, Vicarious Liability in Tort, https://lawbhoomi.com/vicarious-liability-intort/ (last visited – 22 Dec. 24)
4. Ipleaders, Vicarious Liability in case of Master-Servant Relationship in tort law,Vicarious Liability in case of Master-Servant Relationship in Tort Law, (Last visited- 22Dec. 24)
5. Studocu, What is Vicarious Liability, What is Vicarious Liability and its types What is Vicarious Liability? Vicarious liability means – Studocu (last visited- 22 Dec. 24)

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[1] Lister vs Hesley hall Ltd.(2001)UKHL22

[2] Blazey vs Curry (1999)

[3] State Bank Of India vs Shyama Devi, AIR 1978SC1263

[4] Dubai Aluminium Co Ltd v. Salaam (2002) 3 WLR 1913

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