- Doctrine of common employment
- Vicarious liability of the state
- Position in India
- Position in England
- Act of servant of State done in discharge of obligation imposed by law
- Sovereign immunity subject to Fundamental Rights
Generally, every person is responsible for his own act. Vicarious liability is an exception to this general rule. The doctrine of vicarious liability is based on the principle of respondent superior which means let the principal be liable.
Vicarious liability literally means second-hand liability or liability for the act of others.
In legal parlance, there are three situations defined by the law of tort in which a person is held liable for the wrongful act done by someone else.
The three situations in which liability of a person arises out of the act of someone else are as follows:
- Principal Agent
When a principal hires an agent to do his work it forms a principal-agent relationship between them. In such relationship, the principal is held liable for the act of his agent if the agent has done something wrong while acting on behalf of his principal.
In Lloyd Vs Grace, Smith & Co. A fraud was committed by the managing clerk of a firm working in the ordinary course of employment. It was held that the firm was liable for the act of such a managing clerk because he was acting as an agent of the firm while the fraud was committed.
In State Bank of India Vs Shyama Devi, a person who was an employee of the bank was given a sum of money to be deposited in a bank by Shyama Devi who never checked the deposit receipts. the bank was not held liable even if that employee never deposited the money because he was not acting in the course of employment.
All partners of a partnership firm are held liable for the wrongful act done by either of them. So if any partner does a wrongful act in the ordinary course of business of firm all partners are held liable jointly and severally.
- Master Servant
When the person hired is told both what is to be done along with how it is to be done he is called a servant. The master is held liable for the act of his servant done during the course of employment and their liability is both joint several.
There are two essentials to be proved in a master-servant relationship
- The person hired must be a servant
If the person hired is working under the direction and control of the master, he is a servant.
A servant is different from an independent contractor in the sense that an independent contractor works under “contract for employment”. This means that the independent contractor is one who is merely told what is to be done and not how it is to be done.
So, an independent contractor is free to work in his own ways and so the person hiring him is not in control of him. So he cannot be held liable for the act of independent contractor.
In Mersey Docks & Harbour Board Vs Coggins & Criffiths (Liverpool) Ltd., the harbour board hired some professional drivers to drives their cranes he let out one of his cranes along with his driver to Stevedores. While working for Stevedores A was injured due to an act of driver. It was held that the driver was working under the control and in course of employment of the harbour board and not Stevedores and so the harbour board was held vicariously liable.
- Course of Employment
Second essential to prove a master-servant relationship is that the person hired must have done the wrongful act while working in the course of employment.
The course of employment basically covers all circumstances that may occur while a person is performing the task given by the employer for certain objectives that the employer wants to achieve.
So the act of the servant would fall under this category if he is doing the act which has been authorized by his master or when the master himself has authorized a wrongful way of doing the act.
If the servant does an act altogether different from the act which he has been authorized to do by his master, it will not be considered to be done in the course of employment.
In Century Insurance Co. Ltd. Vs Northern Ireland Road Transport Board. a Fire and explosion was caused because of the negligent act of A’s lorry driver who had been hired to transfer petrol from lorry to an underground tank. It was held that when the driver threw lighted matchstick on the ground after lighting his cigarette he was working in course of employment and so A shall be held liable.
In Beard Vs London General Omnibus Co., the conductor during the absence of driver drove the bus to turn it around and caused an accident. It was held that the conductor was not authorized to drive the bus and hence was not working in course of employment, so the owner of the bus was not held to be liable.
Giving lift to strangers while driving for the employer was held to be an act done out of the course of employment and hence the employer shall not be made liable.
3. The doctrine of common employment-
The doctrine of common employment is an exception to the vicarious liability of master for the act of his servant working in course of employment.
This doctrine states that the master should not be held liable for the negligent act of a servant done against another servant both acting under the common course of employment.
The reasoning given behind this rule was that there is an implied contract of service by the servant where he has agreed to take natural risks incidental to the employment.
In India this doctrine was previously stated to have a limited application under certain acts but now it has been abolished by the amendment of Employers Liability Act in 1951.
4. Vicarious liability of the state-
In the authority of Principal the State/Sovereign also employs people to act on his behalf and delegates them certain tasks. Such employees while working under the authority given to them by the State, sometimes do wrongful acts.
For those wrongful acts of Government employees whether the state should be held vicariously liable or not is a question that has been dealt under this section.
5. Position in England
Prior to the Crown Proceedings Act, 1947 the King could not be held liable for wrongs committed by its servants in course of their employment, the individual committing wrong used to be held individually liable and he could not take defence of orders of Crown or state necessity.
After the passing of this act the position has changed and now the Crown can be held liable for wrongful acts of its servants like any other ordinary master.
6. Position in India
In India, although there is no specific enactment dealing with state’s vicarious liability but provision has been made under the Indian Constitution under Article 300 where the union of India or State Government can sue and be sued like any ordinary citizen.
However, the detailed provisions explaining how it will be effectuated are not present and this void has been filled by various judicial pronouncements
In Rajasthan v Vidyawati Hon’ble Supreme Court while confirming the decision of Rajasthan High Court held that if while driving the car from workshop to Collector’s bungalow for Collector’s use someone dies as a result of rash and negligent driving of the driver, the State should be held liable as it is done in the course of employment of driver by the State.
The reason as cited by Hon’ble Supreme Court behind this decision was that the Constitution declares India as a welfare state and so the State apart from maintaining law and order also performs its duties in the capacity of employer so it should not be kept immune from the application of vicarious liability principle.
7. Act of servant of State done in discharge of obligation imposed by law
Earlier the act done in discharge of obligations imposed by law was considered as a defence to the general principle of vicarious liability both in England as well as in India but later on with the passing of Crown Proceedings Act, 1947 the position changed in England.
The changed position was then implemented in India by way of case laws.
In Kasturi Lal Vs State of UP One Kasturi lal who was travelling with jewelleries for the purpose of the trade was taken into police custody along with his belongings. At the time of his release the gold jewellery he was carrying was not returned as it was misappropriated by the head constable.
The State was not held to be liable because the police official was acting in the discharge of statutory powers which was sovereign in nature.
This decision of Kasturi Lal case was later on bypassed by Supreme Court in many cases in which State was held liable in similar circumstances.
8. Sovereign immunity subject to Fundamental Rights
Work done in exercise of sovereign powers of state used to be taken as defence but with the change in circumstances, it has been found that this defence is subject to the fundamental rights of citizens guaranteed by Constitution of India.
In PUDR vs State of Bihar an open police firing without warning and justification on a group of poor and landless people collected for a peaceful meeting was held to be wrongful act even though done in exercise of sovereign immunity, So the Supreme Court held the State liable to pay compensation to all victim’s families.
In Chairman Railway Board vs Chandrima Das A Bangladeshi woman who was gang raped by railway employees within railway premises was held to be entitled to protection under Article 21 hence the State was held liable for the act of its employees.
In Nagendra Rao & Co. vs State of Andhra Pradesh The Hon’ble Supreme Court while considering the question of vicarious liability of State held that as it had been recommended by the Law Commission of India in its first report of 1956 the defence of sovereign immunity of State should be discarded and the State should be made liable for acts done by its servants even in exercise of its sovereign power.
The concept of vicarious liability is justified on the ground that even though the principal/partner/master/state has not personally acted in the circumstance in which wrongful act has been done but since he was in actual authority or control of the person doing the wrongful act his liability for such wrongful act should not be excluded.