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Vicarious Liability Critical Essay

submitted to prof.manjula batra| LAW OF TORTS PROJECT| VICARIOUS LIABILITY| | | SUBMITTED BY:VAIBHAV PRATAP SINGHFIRST SEMEMSTER, 2012BA., LL.

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B. (HONS. )| | ACKNOWLEDGEMENT I would take this opportunity to thank the people who helped me in making this project which has been a learning experience. In that endeavour, first and foremost I would express my gratitude toward my professor of Law of Torts Ms Manjula Batra. Her immense knowledge and teaching skills along with her helping disposition are where all of this stemmed from. Next, I would thank my seniors in the faculty who gave us guidelines as to how to go about the research.

These are the people who were always there with me in the making of this project. Heartfelt thanks to all the above-mentioned people. INDEX OF AUTHORITIES Books and Journals referred: 1. Salmond, Torts, 18th Ed 2. HOLMES Common Law, pp. 179 (180) 3. The Law of Torts by Ratanlal and Dhirajlal 4. Law of Torts by Dr R. K. Bangia 5. Law of Torts by B. M. Gandhi Websites referred: 1. www. legalserviceindia. com Cases: 1. Brook v. Hook (1871) LR 6 Ex 89 2. Keighly Maxsted & Co. v. Durant (1901) AC 240 p. 260 : 84 LT 777 (HL) 3. PER LOCH, J. , in Rani Shamasundari Debi v.

Dukhu Mandal (1869) 2 Beng LR (AACJ) 227 (229) 4. Bird v. Brown (1850) 4 Ex 786 (799); Buron v. Denman (1848) 2 Ex 167 5. Baxi Amrik Singh v. The Union of India (1973) 75 P. L. R. 1 at p. 7 6. Imperical Chemical Industries Ltd. V. Shatwell (1965) AC 656 (685) 7. Stevenson Jordan and Harrison v. MacDonald and Evens (1952) 1 TLR 101 8. Morgan v. Incorporated Central Council (1936) 1 All E. R. 404 9. Govindarajulu v. M. L. A. Govindaraja Mudaliar A. I. R. 1966 Mad. 332 10. Rylands v. Fletcher (1868) L. R. 3 H. L. 330 11. Manganbhai v. Ishwarbhai A. I. R. 1984 Guj. 69 2. Barwick v. English Joint Stock Bank (1867) L. R. 2 Ex. 259 at 266 13. National Insurance Co. , Kanpur v. Yogendra Nath AIR 1982 All. 385 14. Storey v. Ashton (1869) L. R. 4 Q. B. 476 15. State Bank of India v. Shyama Devi AIR 1978 SC 1263 16. William v. Jones (1885) 3 H & C 602 17. Century Insurance CO. v. Northern Ireland Road Transport Board (1942) A. C. 509 18. Secretary of State v. Rukminibai AIR 1937 Nag. 345 19. Governor General in Council v. Constance Zena Wells AIR 1950 PC 22 20. Mersey Docks v. Coggins & Griffith [1946] 2 All ER 345, HL 21. Cassidy v.

Ministry of Health [1951] 1 All ER 574, CA 22. Ready? Mixed Concrete v. MPNI [1968] 1 All ER 433 23. O’Kelly v. Trust House Forte [1983] 3 All ER 456, CA 24. Nethermere v. Gardiner [1984] ICR 612, CA 25. Phillips v. Hyland [1987] 2 All ER 620, CA 26. Diocese of Southwark v. Coker [1998] ICR 140, CA 27. Carmichael v. National Power [1999] 4 All ER 897, HL 28. Poland v. Parr [1927] 1 KB 236, CA 29. Century Insurance v. Northern Ireland Road Transport [1942] AC 509, HL 30. Hudson v. Ridge Manufacturing [1957] 2 All ER 229 31. Mattis v. Pollock [2003] 1 WLR 2158 CONTENTS * Introduction * Types of Liabilities Liability by Ratification * Liability by Special Relation * Case laws * Latest/Recent Judgment * Conclusion INTRODUCTION The general rule in tort law is that liability is personal, i. e. , liability is generally linked to a breach of one’s own duty and a person is liable for the wrongs committed by him only. However, in certain scenarios, the law makes one person being liable for the harm caused by another, because of some legally relevant relationship between the two. This is known as the doctrine of vicarious liability. The doctrine of vicarious liability generally operates within the law of torts.

It has become well-established in English law and historically has been called Master and Servant liability. Vicarious liability means liability which is incurred for or instead of, another. A person is responsible for his own acts. But there are circumstances where liability attaches to him for the wrongs committed by others. The most common instances the liability of the master for wrongs, committed by his servant. In these cases liability is joint as well as several. The other common example of vicarious liability is the liability of an employer for the torts of his employees committed in the course of employment.

It is not necessary in such circumstances for the employer to have breached any duty that was owed to the injured party, and therefore it operates as strict or no-fault liability. It is possible that the injured party could be either an employee or a stranger, and the employer can be held vicariously liable in both situations. The most important element to establishing a case for vicarious liability is that the wrongdoer be acting as a servant or employee, and that the wrong done be connected to the employees course of employment. Vicarious liability can only be imposed if it is proved that the employee was acting ? n the course of employment. This criterion is essential, and requires a clear connection between the employment duties and the employee’s acts complained of. A reason for vicarious responsibility of employers is that employers usually are, while their servants usually are not, financially capable of the burden of civil liability. The theory partly owes its existence to the anxiety of the injured person to find a solvent defendant. Again it is said that the employer must be made liable because it is he ‘who has set the whole thing in motion. ’ TYPES OF LIABITIES Liability by ratification

An act done for B by A not for himself but for B through without the authority of B becomes the act of the principle B if subsequently ratified by B. If one person commits a tort assuming to act on behalf of another but without his authority and that other subsequently ratifies and assents to that act, he thereby becomes responsible for it. The person ratifying the act is bound by the act whatever it to be his detriment or advantage. Maxims i. Omnis ratihabitio retrorahitur et mandato priori aequiparatur. Every ratification of an act relates back and thereupon becomes equivalent to a previous request. ii. Qui facit per alium facit per se.

Any person who authorizes or procures a tort to be committed by another is responsible for that tort as if he had committed it himself. The person authorizing is liable not only for the tort actually authorized, but also for its direct consequences. Three considerations arise before a person can be held liable for a tort by ratification: 1. Only such acts bind a principal by subsequent ratification as were done at the time on his behalf. 2. The person ratifying the act must have full knowledge of its tortuous character. 3. An act which is illegal and void cannot be ratified. LIABILITY ARISING OUT OF SPECIAL RELATIONSHIP:

Vicarious liability may arise where the doer of the act and the person sought to be held liable therefore are related to each other as: 1. Master and Servant 2. Owner and Independent Contractor 3. Principal and Agent 4. Firm and its Partner 5. Guardian and Ward 6. Company and its Directors For the purposes of this project, we shall concentrate on the special relationship of Master and Servant. Master and Servant If a servant does a wrongful act in the course of his employment, the master is liable for it. The servant, of course, is also liable. The wrongful act of the servant is deemed to be the act of the master as well.

In the case of Baxi Amrik Singh v. The Union of India, it was held that, “The doctrine of liability of the master for act of his servant is based on the maxim respondent superior, which means ‘let the principal be liable’ and it puts the master in the same position as if he had done the act himself. It also derives validity from the maxim qui facit per alium facit per se, which means ‘he who does an act through another is deemed in law to do it himself. ’” Since for the wrong done by the servant, the master can also be held liable vicariously, the plaintiff has a choice to bring an action against either or both of them.

Their liability is joint and several as they are considered to be joint tortfeasors. Another reason for the master to be held liable is grounded on public policy that “there ought to be a remedy against someone who can pay the damage,” and the master is in a better position for paying the damages than the servant. Who is a servant? A servant is a person who voluntarily agrees, whether for wages or not, to subject himself at all times during the period of service to the lawful orders and direction of another in respect of certain work to be done.

A master is the person who is legally entitled to give such orders and to have them obeyed. As a general rule, a master is liable for the tort of his servant but he is not liable for the tort committed by an independent contractor. Difference between servant and independent contractor A servant and an independent contractor are both employed to do some work of the employer but there is a huge difference in the legal relationship which the employer has with them. A servant is engaged under a contract of service whereas an independent contractor is engaged under a contract for services.

The liability of the employer for the wrongs committed by his servant is more onerous than his liability in respect of wrongs committed by an independent contractor. Lord Denning L. J. in Stevenson Jordan and Harrison v. MacDonald and Evens referred to the distinction between a contract of service and a contract for services as a “troublesome question” and observed: It is almost impossible to give a precise definition of the distinction. ” In other words, a servant is an agent who is subject to the control and supervision of his employer regarding the manner in which the work is to be done.

An independent contractor is not subject to any such control. He undertakes to do certain work and regarding the manner in which the work is to be done. He is his own master and exercises his own discretion. Morgan v. Incorporated Central Council In this case, the plaintiff, while he was on a lawful visit to the defendant’s premises, fell down from an open lift shat and got injured. The defendants had entrusted the job of keeping the lift safe and in proper order to certain independent contractors.

It was held that for this act of negligence on the part of the independent contractors in not keeping the lift in safe condition, the defendants could not be made liable. B. Govindarajulu v. M. L. A. Govindaraja Mudaliar In this case, after a motor lorry was entrusted by its owner for repairs, while an employee of the repair workshop drove it, there was an accident. It was held by the Madras High Court that for this accident, the owner of the lorry was not liable vicariously, because the owner of the workshop was an independent contractor and not the servant of the lorry owner.

Exceptions In Rylands v. Fletcher, the employer could not escape the liability for the damage caused to the plaintiff, when the escape of water from a reservoir got which was constructed by the defendant from an independent contractor, flooded the plaintiff’s coalmine. In Manganbhai v. Ishwarbhai the chief trustee of the property of a temple called upon an electric contractor to illegally divert the electric supply given for agricultural purpose, to the temple for a month, for providing facility of lighting and mic in the temple.

The job was executed in a palpably obvious hazardous manner, and without informing the Electricity Board. After about a fortnight, the service line was snapped and the agriculturist, who was working in the field, got injured by electric current. It was held that the trustee, who got the hazardous job done, as well as the owner of the field, from whose meter and with whose knowledge such connection was taken, was liable. The course of employment A master, like a principal, is liable for every tort that he actually authorizes.

The liability of a master is not limited only to the acts which he expressly authorizes to be done but he is liable for such torts also which are committed by his servant in the course of employment. An act is deemed to be done in the course of employment if it is either: 1) a wrongful act authorized by the master, or 2) a wrongful and unauthorized mode of doing some act authorized by the master. So a master can be made liable as much for unauthorized acts as for the acts he has authorized. Barwick v. English Joint Stock Bank In this case, Willies, J. bserved that, “In all these cases, it may be said that the master has not authorized the act. It is true, he has not authorized the particular act, but he has put the agent in his place to do that class of acts, and he must be answerable for the manner in which the agent has conducted himself in doing the business which it was the act of the master to place him in. ” National Insurance Co. , Kanpur v. Yogendra Nath In this case, the owner of a car, authorized his servants and orderlies to look after the car and to keep the same dusted while he was out of town for a long period.

One of the servants took the car to a petrol pump for getting the tires inflated and for checking the oils etc. , and negligently knocked down and injured two boys, who were going on a cycle. The act of the servant in this case was held to be within the course of employment of his master, for which the master was liable, and the master’s insurers, therefore, could be made liable to indemnify the master for the sum awarded against the owner. Acts outside the course of employment When a servant does any act which is not in the course of master’s business, the same is deemed to be outside the course of employment.

Storey v. Ashton In this case, a carman, while on his way back to his employee’s office, was induced by another employee to turn off in another direction for picking up something for that employee. While the carman was going on this new direction, he caused an accident with the plaintiff. The master was held not liable because if the carman “had been merely going on a roundabout way home, the master would have been liable; but he had started on an entirely new journey on his own or his fellow servant’s account and could not, in any way, be said to be carrying out his master’s employment. ”

State Bank of India v. Shyama Devi In this case, the respondent, Ms Shyama Devi, opened a savings Bank account with plaintiff’s predecessor at its Allahabad Branch. The respondents gave some cash and a cheque to one Kapil Deo Shukla, who was a friend of the respondent’s husband and employed in the said bank, for being deposited in her account. The said payments were made to Kapil Deo Shukla in his capacity as the respondent’s husband’s friend. No receipt or voucher was obtained indicating the said deposit. The servant then misappropriated the amount. He also made false entries in the respondents pass book.

It was held by the Supreme Court that the servant had acted outside the course of employment and the appellant bank could not be made liable for the fraud committed by such servant. Negligence of servant If the servant is not careful in the performance of his duties and his conduct causes any loss to a third party, the master would be liable for the same. In William v. Jones, the defendant’s servant, a carpenter, was required to do his work in the plaintiff’s shed. While engaged in his work, the carpenter lighted his pipe negligently and the same set fire to the plaintiff’s shed.

The majority of the court of Exchequer Chamber decided that the carpenter’s negligent act had nothing to do with the purpose of his employment, and, therefore, the defendant could not be made liable for the same. The House of Lords in Century Insurance CO. v. Northern Ireland Road Transport Board observed that A’s servant, the driver of a petrol lorry, while transferring petrol from the lorry to an underground tank stuck a matchstick to light a cigarette and threw it on the floor. This resulted in a fire and an explosion causing damage to B’s property.

It was held that though the driver lighted the cigarette for his own comfort, yet it was a negligent method of conducting his work. The act, being in the course of employment, A was liable for the driver’s negligence. The doctrine of common employment in India The rule known as the doctrine of Common Employment was an exception to the rule that a master is liable for the wrongs of his servant committed in the course of his employment. In Secretary of State v. Rukminibai, the plaintiff’s husband, and employee in the G. I. P. Ry. was killed because of negligence of a fellow employee.

The Nagpur High Court allowed the action. Stone, C. J. expressed the view that the rule was an unsafe guide for decision in India. Pollock J. , said: “Even if I were to hold that the doctrine is inequitable under modern conditions in England, I should not be prepared to extend it to India, as I consider that it would not be suitable to Indian conditions. ” In a decision, Governor General in Council v. Constance Zena Wells, the Privy Council held that the doctrine of Common Employment was applicable in India although its scope has been limited by the Indian Employers’ Liability Act, 1938, S. (d). In that case, the plaintiff’s husband, who was a fireman in the defendant’s railways were killed in an accident caused by the negligence of a fellow employee, a railway driver. The Privy Council held that the defense of common employment was available to the defendant and the plaintiff’s claim for compensation was dismissed. Due to the difficulty created by the Privy Council’s decisions in Constance Zena Well’s case, S. 3 of the said act has been amended. By this amendment, the defense of common employment as such has been abolished.

Other case Laws: Mersey Docks v. Coggins ; Griffith A harbour board hired out a crane and driver under a contract making the driver the servant of the stevedores, but when an accident occurred through the driver’s negligence the court said he was still effectively the servant of the harbour board who stamped his insurance card and retained the power of dismissal. Cassidy v. Ministry of Health A patient suffered permanent injury to his hand, allegedly through the negligence of the surgeon performing an operation.

The surgeon was held to be the servant of the hospital authority by whom he was employed, even though they were clearly not competent to direct his work in detail. Ready? Mixed Concrete v. MPNI A contract provided for a driver to own his lorry (bought with money loaned by the firm) and allowed him to use it for his own profit? making purposes. The judge said factors which pointed towards a contract of employment are the payment of a wage, the exercise of control, and the acceptance of the business risk; here the driver took a certain business risk himself and so was an independent contractor and not an employee.

O’Kelly v. Trust House Forte AA were “regular casuals” working in the catering industry: they were hired for individual functions according to need, but were given preference over other casual workers and (in some cases) had no other employment. They sought recognition as employees, but the Court of Appeal upheld the tribunal’s finding that they had a series of individual contracts rather than an overall contract of employment. Nethermere v. Gardiner AA were trouser? akers with some full? time staff at their factory and a number of home? workers. The home? workers sewed flaps and pockets using machines provided by the company, but had no fixed hours and were paid per finished piece with no minimum number. On a claim of unfair dismissal, the Court of Appeal affirmed the tribunal’s finding that the home? workers were employees (whose case thus fell within its jurisdiction): they were clearly not in business on their own account. Phillips v. Hyland

A plant hire firm hired out a crane and its driver, the contract stipulating that the driver was to be the servant of the hirers. When damage occurred through the driver’s negligence, the hirers succeeded in a claim against the vicarious liability of the hire firm: the clause sought to exclude liability but was not “fair and reasonable” in conformity with the Unfair Contract Terms Act 1977. Diocese of Southwark v. Coker An assistant curate (priest) R was dismissed from his position and claimed unfair dismissal.

In preliminary proceedings to determine whether the Industrial Tribunal had jurisdiction to hear the case, the Court of Appeal (affirming the Employment Appeal Tribunal) said R was not an employee of the diocese nor of the bishop. Not every agreement constitues a binding contract, said Mummery LJ, and there is no contract unless an intention to create a binding relationship can be established. An assistant curate is ordained and called to an office recognised by law, making a contract unnecessary and rendering any dispute more appropriate for the spiritual jurisdiction of the ecclesiastical courts.

Carmichael v. National Power CC were tour guides at a power station who worked “as required” at a fixed hourly rate, but who could turn down any individual call without penalty. They were not subject to the same conditions of service as other employees, but claimed employee status. The House of Lords (reversing the Court of Appeal and affirming the tribunals below) said they were not employees: there was no intention to create an employer? employee relationship except when they were actually working. Under some circumstances, a worker may be an employee of two employers at the same time

Poland v. Parr D1 was a security guard and thought a number of children were stealing company property; he hit one of them with his open hand, causing injuries when the child fell under a wagon. The employer D2 was vicariously liable: although D1’s action was unauthorised and unreasonable, he had implied authority to protect company property in an emergency, and so was performing an authorised act in an unauthorised way. Atkin LJ said obiter that had D1 shot the boy instead of hitting him, this would clearly have gone beyond the scope of his employment and D2 would not have been liable.

Century Insurance v. Northern Ireland Road Transport A petrol tanker driver employed by DD was delivering petrol to a garage. While the petrol was flowing he lit a cigarette and negligently threw away the lighted match, causing an explosion and extensive damage. The House of Lords said the driver was still acting in the course of his employment, since part of his job was to wait while the petrol flowed; although lighting the cigarette was for his own benefit, not his employers’, that was not enough to relieve DD of their liability.

Hudson v. Ridge Manufacturing P was injured by a practical joke of another employee, the employer was held liable: he knew of the joker’s mischievous habits and had taken no effective action (only repeated reprimands) to put a stop to them. Latest Judgment Mattis v. Pollock (2003): Mr Cranston, an employee of Flamingos night club, in London, was employed as a bouncer to keep order at the club’s doors, and to break up scuffles and fights.

On the 18th of July 1998, an incident occurred involving a customer, Mr Fitzgerald, and Mr Cranston, who threw a friend of his across a room. It was submitted that Mr Pollock had given Mr Cranston instructions to “impress upon Mr Fitzgerald that Mr Cranston was prepared to use physical force to ensure compliance with any instructions that he might give to Mr Fitzgerald or any of his companions”. Subsequently, on the 24th of July, Mr Mattis was attending the club with a friend, Mr Cook. Mr Cranston was instructed that Cook should be barred from the club, and was ejected.

A week later, Mr Mattis attended the club with other friends, at around 11:15pm. Mr Cook turned up with Mr Fitzgerald, at around 1am, and upon seeing them, Mr Cranston violently assaulted Mr Cook and one of his friends. Upon witnessing this, Mr Mattis attempted to pull Cranston from Cook, whereupon several other customers surrounded Cranston, who was forced to flee. Upon arriving back at the club, he grabbed Mr Mattis, and stabbed him in the back. As a result, Mr Mattis was rendered paraplegic.

Held: The stabbing of Mr Mattis represented the unfortunate and virtual culmination of the unpleasant incident which had started within the club, and could not fairly and justly be treated in isolation from earlier events, or as a separate and distinct incident. Even allowing that Cranston’s behaviour included an important element of personal revenge, approaching the matter broadly, at the moment when Mr Mattis was stabbed, the responsibility of Mr Pollock for the actions of his aggressive doorman was not extinguished.

Vicarious liability was therefore established. Accordingly the appeal on this ground must succeed. Conclusion We have seen the meaning of vicarious liability and its application under tort law under many circumstances as mentioned above. Vicarious liability is a legal concept which refers to one party being held liable for the injury or damage sustained by another party, in spite of the fact that they had no active involvement in the incident. The intent behind vicarious liability is to hold the proper party accountable when harm is committed.

The victim needs compensation and the law provides so by applying the principle of µqui facit per alium facit per se that means he who acts through another shall deemed to have acted on his own, the courts hold the employer or principal or partner responsible as per the situation. We have looked at a variety of situations in which a party, including contractors, parents and employers, may be charged with vicarious liability. ——————————————– [ 1 ]. Brook v. Hook (1871) LR 6 Ex 89; Keighly Maxsted & Co. v. Durant (1901) AC 240 p. 60 : 84 LT 777 (HL) [ 2 ]. PER LOCH, J. , in Rani Shamasundari Debi v. Dukhu Mandal (1869) 2 Beng LR (AACJ) 227 (229) [ 3 ]. Bird v. Brown (1850) 4 Ex 786 (799); Buron v. Denman (1848) 2 Ex 167 [ 4 ]. Baxi Amrik Singh v. The Union of India (1973) 75 P. L. R. 1 at p. 7 [ 5 ]. HOLMES Common Law, pp. 179 (180) [ 6 ]. Imperical Chemical Industries Ltd. V. Shatwell (1965) AC 656 (685) [ 7 ]. (1952) 1 TLR 101 [ 8 ]. (1936) 1 All E. R. 404 [ 9 ]. A. I. R. 1966 Mad. 332 [ 10 ]. (1868) L. R. 3 H. L. 330 [ 11 ]. A. I. R. 1984 Guj. 69 [ 12 ]. Salmond, Torts, 18th Ed [ 13 ]. (1867) L.

R. 2 Ex. 259 at 266 [ 14 ]. AIR 1982 All. 385 [ 15 ]. (1869) L. R. 4 Q. B. 476 [ 16 ]. AIR 1978 SC 1263 [ 17 ]. (1885) 3 H & C 602 [ 18 ]. (1942) A. C. 509 [ 19 ]. AIR 1937 Nag. 345 [ 20 ]. AIR 1950 PC 22 [ 21 ]. [1946] 2 All ER 345, HL [ 22 ]. [1951] 1 All ER 574, CA [ 23 ]. [1968] 1 All ER 433, McKenna J [ 24 ]. [1983] 3 All ER 456, CA [ 25 ]. [1984] ICR 612, CA [ 26 ]. [1987] 2 All ER 620, CA [ 27 ]. [1998] ICR 140, CA [ 28 ]. [1999] 4 All ER 897, HL [ 29 ]. [1927] 1 KB 236, CA [ 30 ]. [1942] AC 509, HL [ 31 ]. [1957] 2 All ER 229, Streatfield J [ 32 ]. [2003] 1 WLR 2158

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