November 26, 2020

Vicarious Liability (Master and Servant) and The Doctrine of Common Employment

A common phrase which we hear regularly in our day to day life as well as in the legal context is that each and every one is liable for his/her right or wrong acts. But in law there is an exception to this principle by the term ‘Vicarious Liability’. Vicarious liability is that kind of a liability which is imposed on one person for the wrongful actions of another person. It is considered to be an exception in the field of Torts to the general rule that a person is liable for his own acts only. It is based on the principle of ‘qui faci per se per alium faci per se’ which means, ‘he who does an act through another is deemed in law to do it himself.’ The principle of vicarious liability is mainly found in civil law but comes under criminal law also as an exception to some rules.

Vicarious Liability follows the doctrine of ‘Respondeat Superior’- the responsibility of a superior for the act of its subordinate. One of the most common forms is the imposition of liability on the employer for the acts of his/her employee. To be more precise a master is liable for the acts of his/her servant. Vicarious liability is imposed only under certain circumstances-

  • There should be a relationship between the master and servant.
  • The wrongful act must be related to the relationship in a certain way.
  • The employee (servant) commits a tort within the ordinary course/scope of his employment.[1]

If the tort is conducted outside the scope of employment then the master/employer is not held vicariously liable for the act. Let us try to understand the meaning of scope of employment’ as well. [2]

The action of a servant is in the scope of employment only if:

  • It is one of the kinds he is employed to perform.
  • It occurs within the authorized time and limits.
  • It is acted as a part to serve the master
  • If force is intentionally used by the servant against another, and the use of force is not unexpectable by the master

The action of a servant is not in the scope of employment if it does not occur within the authorized time and space, it has too little or no connection to serve the master.

Masters are not liable for the servants actions outside the scope of employment unless-

  • The master intended the cause or the consequences of the action
  • The master was negligent
  • The servant acted or spoke on behalf of the master

To understand the scope of employment better let us take an example. Take a case of a service station employee. If he negligently performs improper repairs on a customer’s vehicle, the accident is fully caused by the service station where the employer is also to be held vicariously liable as the wrong was committed in the course of his employment. On the contrary, if the same employee occasionally commits a wrong by beating his wife, then the employer cannot be held vicariously liable as the wrongful act was committed outside the course of the employment and had no relation to the employee’s job.

Under criminal law the Indian Penal Code provides for some exceptions considering the principle of Respondeat Superior.[3]

Section 154 holds owners or occupiers of land criminally liable for the intentional failure of their servants in giving the needful information to public authorities, or to take adequate measures to stop any unlawful riots on their land on the assumptions that they have the authority and ability to control such acts of their servants.

Section 268 and 269 deal with public nuisance where the master is held vicariously liable for public nuisance committed by the servant.

Section 449 makes the owner liable for the publication of a libel by his/her servant.

Some Examples…….

Let us take a look at some case laws on the principles of vicarious liability. In the case of Pushpabai Purshottam Udeshi & Ors vs. Ranjit Ginning & Pressing, 1977 (AIR 1977 SC 1735)[4], the owner of a company was made vicariously liable as his servant committed an accident due to his rash and negligent driving in the course of his employment. The servant had given a lift to the deceased person while going to deliver money during his working hours.. It was contended that the owner should also be held liable when the driver is, with the owner’s consent, driving the car on the owner’s business or for the owner’s purpose.

In contrast in the case of Sitaram Motilal Kalal vs. Santanuprasad Jaishankar Bhatt, 1966 (AIR 1697 1966 SCR) [5] owner of the vehicle entrusted it to A–for plying it as a taxi. B used to clean the taxi. A trained B to assist him in driving the taxi. B took the taxi for obtaining a driving license for himself. While taking the test, B caused bodily injury to the respondent. At that time, A was not present in the vehicle. The question arose, whether the owner was liable or not. It was held that the owner was not liable as it was held that it was not proved that the act was impliedly authorised by the owner and it cannot come under the principle of ‘scope of employment.’

The Doctrine of Common Employment (As an Exception to The Rule of Vicarious Liability)

The doctrine of common employment was introduced in the English law probably as a defence to the principle of vicarious liability. This doctrine stated that an employer/master cannot be held liable for the injuries of his/her servant caused by the negligence of a fellow servant. This doctrine was first used in the case of Priestley vs. Fowler, 1837 where a butcher boy sued his master due to the injury caused to him by the collapse of his master’s van. The master was not held liable as the injury was caused to him due to the negligent overloading of his fellow servant.

The chief reason behind this judgment was to limit the liability of a master for the actions of his servants only during the course of their employment. At that time it was considered to be fair, but later the use of this doctrine was extended to any injury received by the servant for any ordinary risk of service. This became the reason for its criticism. The defence made in favour of the doctrine was that the servant on his/her own will have entered into the company and has all the knowledge of the potential risk.[6]

Various laws came into place in England trying to abolish the doctrine of common employment as it was considered to be against the safety and betterment of the employees. These laws could not completely abolish it but definitely narrowed down the range of the doctrine. Along with the laws there were a lot of judicial decisions taken by the House of Lords (upper house of the parliament in England) to restrict the use of the doctrine. In the case of Wilsons & Clyde Coal Co. vs. English it was held that the employer is bound to take reasonable care for the safety of the servant by providing-

  • A competent staff of men
  • A proper and safe plant and appliances to work
  • A proper system for conducting his work and efficient supervision of it

Finally, after working on lot of permutations and combinations the defence of common employment was abolished by the Law Reform (Personal Injuries) Act, 1948.

In India:

As British ruled India over centuries, it was very much obvious that the doctrine of common employment was applicable in India but for a short span of time. A lot of cases were studied and it was indicated that the application of this doctrine in India was doubtful. The last case where the doctrine was used was the Brookle Bank Ltd vs. Noor Ahmode, 1940. Simultaneously, the Indian Legislature passed The Employer’s Liability Act, 1938 with the objective of ruling out certain defences arising out of injuries sustained by workmen.

The tortious liability of employers not covered under any other enactment is covered under this act. There were a lot of issues regarding the ambiguities in the act but were later resolved by various amendments. So, both the legislations in England and India restricted the use of the doctrine of common employment to a large extent.[7]

Conclusion

In conclusion it can be said that the decision regarding the application of vicarious liability can be better taken by the courts than the parliament. Though it is said in some statutes that a person can be made liable for the other person’s wrongful act, it is better for the courts to decide the intension of the act. As the concept of vicarious liability is taking place in the criminal law as well, the cases pertaining to it must be solved with complete rationality and on the basis of strong evidence.

Also, though the principle is not explicitly specified in any statute, but is well settled through various case laws. It seems rather odd for courts to make a person liable for the acts of others and it seems right that a person should be made liable for his personal acts only. But sometimes it is necessary to make both the principal and subordinate (in this case master and servant) liable for the wrongful act to protect the interest of both the parties i.e. the injured and the offender.

REFERENCES

  • http://www.legalservicesindia.com/article/1634/Vicarious-Liability-in-India.html
  • Sykes, A. (1988). The Boundaries of Vicarious Liability: An Economic Analysis of the Scope of Employment Rule and Related Legal Doctrines. Harvard Law Review, 101(3), 563-609. doi:10.2307/1341141
  • https://www.advocatekhoj.com/library/bareacts/indianpenalcode/index.php?Title=Indian%20Penal%20Code,%201860
  • Pushpabai Purshottam Udeshi & Ors vs. Ranjit Ginning & Pressing, 1977 AIR 1735, 1977 SCR (3) 372
  • Sitaram Motilal Kalal vs. Santanuprasad Jaishankar Bhatt, 1966 AIR 1697, 1966 SCR (3) 727
  • Winfield, P. (1949). The Abolition of the Doctrine of Common Employment. The Cambridge Law Journal, 10(2), 191-195. Retrieved July 19, 2020, from www.jstor.org/stable/4503797
  • https://journal.rostrumlegal.com/the-doctrine-of-common-employment-in-india-a-critical-study/

Endnotes:


[1]http://www.legalservicesindia.com/article/1634/Vicarious-Liability-in-India.html

[2] Sykes, A. (1988). The Boundaries of Vicarious Liability: An Economic Analysis of the Scope of Employment Rule and Related Legal Doctrines. Harvard Law Review, 101(3), 563-609. doi:10.2307/1341141

[3]https://www.advocatekhoj.com/library/bareacts/indianpenalcode/index.php?Title=Indian%20Penal%20Code,%201860

[4] Pushpabai Purshottam Udeshi & Ors vs. Ranjit Ginning & Pressing, 1977 AIR 1735, 1977 SCR (3) 372

[5] Sitaram Motilal Kalal vs. Santanuprasad Jaishankar Bhatt, 1966 AIR 1697, 1966 SCR (3) 727

[6] Winfield, P. (1949). The Abolition of the Doctrine of Common Employment. The Cambridge Law Journal, 10(2), 191-195. Retrieved July 19, 2020, from www.jstor.org/stable/4503797

[7] https://journal.rostrumlegal.com/the-doctrine-of-common-employment-in-india-a-critical-study/


Author Details: Sayali Jayesh Mandlik (ILS Law College, Pune)

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