Vicarious Liability of State in Tort

Introduction

Before discussing vicarious liability of the state let’s first discuss what is vicarious liability. Vicarious liability is also known as No-Fault Liability or Secondary Liability. it means to be held liable even when you have no fault. Generally, people are liable for their own wrongful acts however in vicarious liability one person is liable for the act done by another person.

• Vicarious liability is based on two principles:

1. “ qui facit per alium facit per se ” which means one who does act through another deemed in law to do it himself
2. “respondent superior ” which means letting the principal be liable for the acts of a subordinate.

• Things necessary for arising this type of liability :

1. There should be a legal relationship between the parties
2. The wrongful act must be, in a certain way connected with that relationship.

• Example of legal relationship:

1. Partners
2. Principal and agent
3. Master and servant/employer and employee.

So, in simple language two things are must:

1. The wrong must be done by the subordinate
2. And wrong must be done in the course of employment. then only a person will be responsible for the wrongful acts of others.

Now let’s discuss vicarious liability:

Position in England

At common law, the crown could not be sued in tort for the wrong actually committed by its servant in the course of employment. But this situation has entirely changed after the passing of the crown proceeding act 1947, now the crown is liable for a tort committed by its servants in the course of employment, just like private.

Section 2(1) of the act provides “ subject to the provision of the crown shall be subject to all those liabilities in tort to which if it were a person of full age and capacity, it would be subject:

1. In respect of a tort committed by its servant and agent.
2. In respect of any breach of those duties which a person owes to his servants or agents at common law by the reason of being their employer.
3. In respect of any breach of those duties attaching at common law to the ownership, occupation, possession or control of the property.

Position in India

Unlike the crown proceeding act 1947 in England, we do not have any statutory provision mentioning the liability of the state in India. The position of the state liability is stated in Article 300 of the constitution of India.

Article 300, thus provides that the union of India and the state are juristic persons for the purpose of suit or proceeding although the UOI and state government can sue and be sued the circumstances under which that can be done have not been mentioned.

According to Article 300 the UOI and state government can sue and be sued in like the cases as the domain of India and corresponding states might have sued or been sued if the constitution of India has not been enacted.

To know the current position as regards the liability of the state for the tortious act of servant we have to go back to the pre-constitution days for that we refer to section 17 of the government of India act 1935 that acts like the present constitution does not give circumstances for the government liability but recognize the position prevailing before the passing of that act.

Ultimately we refer to the Government of India act 1858.

Section 65 of this act provides: “ the secretary of state in council shall and may sue and be sued as well in India as in England by the name of the secretary of the state in council as a body corporate and all the person and bodies politics shall and may have and take the same suit, remedies and proceedings, legal and equitable against the secretary of state in the council of India as they could have done against East India Company”.

Therefore, to know whether the state is liable for the particular act or not we have to find the position of the East India Company prior to 1858.

We have a leading case that clarified the position:-

Case law:  Peninsular and Oriental Steam Navigation v. Secretary of State of India

In this case, the plaintiff servant was traveling in a horse-driven carriage and was passing by the kidderpore dockyard in Calcutta which is government property. Due to negligence on the part of the defendant for the repair of the steamer fell and its clang frightened the horse the horse rushed forward against the iron and was injured. The plaintiff filed a suit against the secretary for the council for the damage which was caused due to the servant employed by the government of India.  The court tried to look into the matter with reference to the liability of the east India company.

Judgment: a distinction was drawn between the sovereign and non-sovereign functions of east India company. It was held that if the act was done in the exercise of the sovereign function, east India company would not be liable, but if the function was non – sovereign function company would be liable. And maintenance of the dockyard is a non-sovereign function so the government is not liable.

So, vicarious liability of the state for the tort committed by its employee is based upon:-

1. Sovereign functions – are those actions of a state for which the state is not answerable in any court of law. These are the works that can lawfully be exercised only by a sovereign or by the person to whom such power is delegated.  In layman’s language, these are the works or functions which a private individual or body cannot do and only the government has authority to do these functions or work. For example, the Defence of the country, Raising and Maintaining the armed forces, making peace or war, foreign affairs, railways, retaining territory, and police.
2. Non–sovereign functions – non-sovereign functions are those which can be performed or carried out by any private individuals without any delegation of powers by the government. If a person commits a tort while performing a non-sovereign function and that person is a government employee then the state can be held liable for such an employee. In simple language, non-sovereign functions include all the work which can be performed by any person. For example, functions relating to trade, business, school, hospital, airport, and welfare activity.

In short, we can say that if any work can be done by any private person it is non-sovereign work and if work can’t be performed by any private person but only by the government, it is a sovereign function.

Case laws

Shyamal Baran Saha v. State of West Bengal

A cricket test match was to be played at Eden Garden, Calcutta. There was a long queue in the morning and later the crowd swelled. There was a stampede and a young boy of 16 years standing in queue was injured. The cricket association did not demand adequate security from the government and the state also failed to control the crowd and provide basic facilities.

Judgment: This function of the police is a sovereign function therefore the state is immune from liability.

Roop Laal v. UOI

Some military jawans found some firewood laying by the riverside and carried some wood away for the purpose of fire and fuel for the camp. It was turned out that the woods belongs to the plaintiff.

Judgment: The state is liable for the tort of conversion as a campfire is a non-sovereign function.

Rupram v. State of Punjab

Rupram, a motorcyclist was injured when a truck belonging to the government driven by a government employee struck him . the driver drove negligently and the truck was carrying material for the construction of road a bridge.

Judgment: Court held that yes construction of the Road Bridge is a sovereign function but carrying material to the site was not a sovereign function hence the state is held liable.

Kasturi Lal v. State of UP

Ralia ram, one of the partners of a jewellery firm kasturia ralia ram went to Meerut in order to sell gold and silver. He was arrested by a police constable and was detained in police lockup after searching the gold with him along with other things seized later he was discharged. His possession seized by the police was returned except gold which was misappropriated by head constable Mohamed amir(who fled to Pakistan).

Judgment: The state of UP is not liable because police officers were acting in the discharge of statutory power and keeping the property in custody was a sovereign function.

Head Mistress Govt. Girls High School v. Mahalaxmi

The ‛ aya’ who is the servant of a government school asked a girl student of 9^th standard to bring water on a cycle carrier for school children which was basically the duty of the aya herself. While bringing the water the spring of the cycle came off and hit the right eye of the girl and she lost her eye.

Judgment: The state will be liable as running the school is not a sovereign function.

 H Khodwa v State of Maharashtra

The doctor of the government hospital, while performing a sterilization operation, left a mop inside the abdomen of the patient as a consequence she developed peritonitis and died.

Judgment: Running a hospital is a non-sovereign function hence the state will be held liable.

Conclusion

After discussing the whole matter we can conclude that the government is also not immune to the wrongful acts of its servant only on the basis that he has statutory power. The government is also liable just like a private individual; the only exception is the sovereign function.

This article was contributed by Simran Dhandia.