Open Access Research Article
TRACING ORIGINS OF DOCTRINE OF VICARIOUS LIABILITY
Published Paper
Article Details
TRACING
ORIGINS OF DOCTRINE OF VICARIOUS LIABILITY
AUTHORED BY
- HARIHAR JAGANNATH
2ND SEM LL.M
GOVT LAW COLLEGE, ERNAKULAM
Introduction
We are well aware of the English
courts and those far superior judges, who used to propound certain rules in
absence of any law, exercising discretionary powers to overcome absurdity. It
is also known to us as “Common Law”[1]
which used to govern certain aspects and the society through the sanctity of
precedents. One such Common Law principle is known to be Vicarious Liability,
where the maxim “Qui facit per alium facit per se”[2].
When we are thrown into a situation as such, today, we have the know-hows and
predict as to how the outcome of the case would be. Did the principle come into
existence in its finest form as we have it today, or had it undergone a process
of evolution? What was the situation before the principle was in play and how
were the disputes resolved before? The article tries to throw light on the
matter.
What is
Vicarious Liability?
Generally, when any sort of breach or
tort is committed, the person who commits that wrong is liable for the damages.
This is the general trend, but in the case of Vicarious liability, the whole
idea takes a backseat as, the tort maybe committed by one person, who is acting
on behalf of another. So, the person for whom the tort-feaser was acting, will
be liable for the damages. Basically, there should be a relationship in
existence, between the two. And by such an act, a third person suffered. For
example, if a driver of a car commits an accident, the owner of the car would
be liable for such an act of the driver.
In this scenario, two maxims are in
play:
(i)
Qui facit per alium facit per se: Which means that one who has acted through another is
said to have acted on his own. This would give effect as if act tort was
committed by the person himself and he is personally liable.
(ii)
Respondeat Superior: It means that the superior must be held liable for
the act of the subordinate, that is the principle or the master should be held
liable for the act of agent or the servant.
Origin of
the Concept
Writers like Holmes contented that
the doctrine of vicarious liability originated from Roman Law, others like
Wigmore opined that it originated in Germany. Still, some other scholars like
Baty made light of the origin but concluded tht the doctrine came into English
law at the close of 17th century. Long back, during the early days
of 1300s, the concept took its form pioneer form. Initially, wrong done by the
servants were completely extended to their masters regardless of the action,
direction etc. Gradually, stepping into the 14th century, we saw
changes. The command theory was
derived, wherein masters were only liable for the tort committed by the
servants if there was a command given by the masters and the servants acted in
accordance with the command but would have resulted in some wrong owing to
damage [that is, the position of absolute-liability of masters was shifted to
that of masters being liable, only where there is an express command]. In
such cases, the nexus among the tort and the command was taken in for
consideration. If there was any such connection, and the servant hadn’t acted
arbitrarily, instead has abided the master, master was made liable. However, express
commands were essential under this theory.
This was the practice for very long
period, until the early 17th century, where Sir John Holt
established the concept of Implied Command Theory. Here the master was
made liable not only for the express commands but also under the command which
is implied. This change in view was becoming essential, as masters had begun to
wash their hands off, with the strict application of command theory. And they’d
content that, they hadn’t given any express command to their servant, and used
to escape the liability. Servants had to bear the brunt, even if they had been
influenced by their masters. Also, there was expansion of trade and commerce,
due to which the command theory could not withstand the test of the time,
resulting in the enlargement of the ambit of vicarious liability.
In Tumberville v Stampe
(1697)[3],
the employee or the servant of the defendant negligently began a fire and it
caught up to the neighbour’s land, burning down their house. Master argued that
he was not responsible because he was not personally at fault and didn’t accept
liability as he claims that he had instructed for a safe way to handle fire.
Nevertheless, judge held that under implied command, master was made liable
for the actions of his employee.
In Nicholas v. Herne
(1700)[4],
plaintiff brought an action against the defendant, Plaintiff had brought
several parcels of silk in view that it was a different variety of silk due to
the fraudulent representation by defendant’s factor. The factor was operating
overseas. There was no evidence on part of the defendant for the deceit committed
by the factor. Nevertheless, it was held that the employer must be liable for
the acts of the employee.
In R v. Huggins and
Barnes (1730)[5],
the case was such that Huggins was the prison warden. Barnes was the deputy of
Huggins. Arne was a prisoner. Barnes had put him in an untidy and a cell
without a fire, up close to a sewer. Due to this Arne died. A case was
initiated in the Kings Bench and it was found that Barnes was independently
liable, but Huggins having no information about the same and so is not guilty.
Although Barnes is deputed by Huggins, here the master-servant relationship
doesn’t work out as this is a criminal case. Such principles may only be
applied in the Civil front but not in the case of Criminal cases. He cannot be
held liable unless that act was through the express command of the principal. (Criminal
cases proceed with express commands only)
Gregory v. Piper (1829)[6], Gregory owned a pub which had a
stable-yard in the back which could be accessed from the Old King’s yard behind
Gregory’s stable yard. Now King’s yard could be accessed by Gregory to pass
through into stable yard. Piper questioned the same. Piper employed a servant
to obstruct the pathway with rubbish. In a way, the rubbish rolled over and
touch Gregory’s wall. Gregory asked Piper to remove the same and he refused.
Gregory brought in an action of trespass against Piper. It was held that the
master was liable as the servant was acting according to the orders of and the
end result was probable and foreseeable.
Duncan v. Findlater (1839)[7], Scotland - Turnpike Roads within
county of Perth was managed by trustees in 1835. As per General Road Act, the
trustees may appoint any such persons for the maintenance and upkeep of the
road. There are provisions which also mentions that the trustees will be sued
for the misconduct of such persons. Findlater a coal merchant, while driving a
gig at night along the Turnpike Road comes in contact with a heap of stones
which was laid partly on road and on footpath. The road was not illuminated nor
was anyone posted on road as a warning mechanism. Findlater gets considerably
injured in the accident. Findlater’s son gets seriously injured succumbs to
death soon. Road trustees were sued
through their Treasurer Thomas Duncan for the misconduct, who appropriated the trustees’
fund. Although in lower courts it was held that the persons appointed by such
trustees will be liable and shall pay such amount as compensation from the
trustees fund.
Later when the matter was appealed by
Duncan, House of Lords reversed the judgement of court of sessions saying that
the road trustees on a public road are not liable for any injury which may take
place to the passengers in consequence of the negligence or improper conduct of
labourers or surveyors or other persons employed by the trustees, or by the
officers of trustees, when engaged in any operation performed under the
authority of the trustees.
Bayley v. Manchester, Sheffield &
Lincolnshire Railway Co. (1873)[8], wherein the plaintiff was travelling
in a train and a porter who works under the defendant pulled out plaintiff with
a belief that he was travelling in a wrong train. Plaintiff suffered injuries.
Defendant was held liable for the act of porter. It was held that defendant will
be liable even if the act is lawful and which he is authorized to do. Wrong
committed willfully by a servant with the intention of serving purpose of
master.
Modern View
In modern times the command or the
theory of control could not be extended upon to vicarious liability. So newer
methods were to be adopted. Eventually, the ‘course of employment theory’
emerged to the effect tat a master took over the liability of the servants,
regardless of the fact that master had authorised or ratified it or manifestly
forbade it, provided that the wrongful act complained of occurred in the
servant’s course of employment. Thus by 19th century, vicarious
liability had assumed a modern outlook in England.
It is founded not on the principle of
fault, rather consideration of social policy, driven by the need to ensure an
effective system of compensation to the victims of torts occasioned by
employees in the course of their employment, as in the course of their
employment. It is based on the idea that, a person wrongfully injured should
not be left without a claim, or at best, a hollow claim.
Whenever a person commits a tort or
any such act and if such an act was part and parcel of the contract of service
then the principal or the master maybe held liable for such commission of the
act. If the act wouldn’t fall under the contract of service, then principal
cannot be made liable.
That is if one is the owner of a
Television repair station and he knows how to do it. He has several employees
working for him. So, he can direct them what should be done and how it should
be done. That is how the contract of service of a servant would be.
In case of an independent contractor,
for example if the Air Conditioning in the office of TV repair station arose.
The owner has to employ an independent contractor who knows how to repair the
A.C. So, the employer can instruct what to do but not how to do.
This is how the contract of service
works and based on these the cases will be decided. If employer asks the
independent contractor to work according to his instructions and if some grave
accidents happen, the employer will be held liable because independent
contractor acted upon the instructions of the employer.
Also, there were certain tests that
were developed during the 19th century, in order to find out if
there is in reality, a vicarious liability arising:
(i)
Tortfeasor’s Liability Test – The plaintiff must establish that the servant (tortfeasor)
is first and foremost, liable for the tort.
(ii)
Special Relationship Test – The purposts of this test, is that there must exist some
kind of relationship recognized by the law between the wrongdoer and the
master. Generally, this relationship is classically one of employment.
(iii)
Course of Employment Test – For an employer to be liable for the tort of his employee,
the tort must have been committed by the employee in the course of his
employment.
Limpus v. London General Omnibus Co. Ltd
(1867)[9], here the defendant’s company owned
buses. Their drivers raced to compete with other omnibuses and obstructed them
in services which was expressly prohibited by the defendant. Despite the
warning of the owner, driver raced with omnibus of the plaintiff. Due to the
negligent driving in the course of employment, unwanted happenings unfolded.
Defendant was held liable for the negligence of the driver as it happened in
the course of employment and he was carrying out the employment according to
master’s purpose. Hence, master was made liable for such tort committed
by servants in their course of employment.
Brickett v. Postal Telegragh Company (1905)[10], here an agent was employed by the
defendants who was also the manager overcharged the plaintiff for telegraph and
appropriated excess amount of approximately over $2500. After such an act, the
agent absconded. Plaintiff sued the company for damages.
Company claims that the agent was
given additional charges but in this particular instance he has went in excess
of the powers that were granted upon him. He acted on his own and not under the
command of the company, and hence they are not liable for the damages due. The
court held that the principle liable because no matter what the act of the
agent is, he represents the principle. The plaintiff cannot be blamed for not
checking the trustworthiness of the agent as the plaintiff acted bona fide.
Hence the defendants were made liable.
Peterson v. Royal Oak Hotel Ltd. (1948)[11], here a customer who was drunk and
asked for more alcohol was denied by the bartender of the hotel. In rage the
customer throws a glass at him which fell on the bartender’s foot and broke.
The bartender takes a broken piece and throws back which unfortunately hits
another’s (plaintiff) eyes. Plaintiff sues the defendant hotel. Court held that
the servant acted recklessly and willfully in the course of the employment. So,
the defendant hotel was liable for the same.
Conclusion
Doctrine of Vicarious liability has
taken its form much earlier in time and it has been a significant principle
making the superior responsible for the acts of the servant. We have seen how
it has come a long way until the modern day. The basic idea here is that the
third party who has suffered the damage must be compensated in a just and fair
way. In order to make this happen, the one who is more capable is being
pursued. The servant may not be the right candidate from whom the damages maybe
sought, as he could be in a financially weaker position. But the tort that he
has committed has injured a third party, which cannot be overlooked. Hence,
making the master responsible, would solve the issue. The master has a
responsibility towards the society and he ought to keep his servant under
supervision. Servant’s conduct must be kept under control of the master so that
they do not create problems. If such a situation is to happen, master will be
prosecuted as he was entrusted with a moral and legal duty to care for others. This
doctrine is so relevant that, we follow this even today.
[1] Body of law created by judges and
quasi-judicial authorities, creating precedents
[2] Conveys that he who does an act
through another is considered to have done that act by himself
[3] (1697) 91 ER 1072
[4] [1700] 1 Salkeld 289
[5] (1730) 2 Str 883
[7] (1839) 6 C. & F. 894
[8] (1873) L.R. 8 C.P. 148
[9] (1862) 1 H. & C 526
[11] [1948] NZLR 136
Article Information
TRACING ORIGINS OF DOCTRINE OF VICARIOUS LIABILITY
Authors: HARIHAR JAGANNATH
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/02/21
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
All research articles published in International Journal for Legal Research and Analysis are open access and available to read, download and share, subject to proper citation of the original work.
Disclaimer: The opinions expressed in this publication are those of the authors and do not necessarily reflect the views of International Journal for Legal Research and Analysis.