Q: What is doctrine of vicarious liability ?

Ans: The doctrine of ‘vicarious liability' is generally termed as ‘liability for the acts of others.  Vicarious is derived from the Latin term ‘vice’ i.e., in the place of. By this phrase, we mean the liability of a person for the tort of another in which he had no part. It may arise under the common law or under the statute. The term is claimed to be invented by the English jurist Frederick Pollock in the 1880s.

Vicarious can be defined as “a concept used to impose strict liability on a person who does not have primary liability, that is, not at fault.” Vicarious liability is not a tort. Literally, it means that one person is liable for the torts of another. The employer is liable for the torts of his employee.

“Liability based not on a person’s own wrongdoing, but rather on that person’s relationship to the wrongdoer”. This liability arises only when the employee is acting in the course of his or her employment. 

The case of Tuberville v. Stamp, (1697) held that “the master would be liable for his servant’s tort if he had given his implied command”. 

Vicarious liability/ Liability for another’s wrongful acts or omissions may arise in the following three ways:

1) Liability by ratification, i.e., where the defendant has authorized or ratified subsequently the particular wrongful act or omission having full knowledge of its tortuous character whether it be to his detriment or advantage.  

Such an act becomes the act of the principal in the same way as if it were done with his previous authority.  

It is explained through the maxim “Omnis ratihabitio retrotrahitur, et mandato priori aequiparatur” which means that – every consent given to what has already been done, has a retrospective effect and equals a command.  

It has been explained in the case of Wilson v. Tumman, (1843) 6 M&G 236 (242),  as – “an act is done, for another, by a person not assuming to act for himself, but for some other person; though without any precedent authority whatever, becomes the act of the principal if subsequently ratified by him, is the known and well-established rule of law”. 

Three conditions are to be satisfied before one person can be held liable for another’s tort on the ground of ratification.: 

a) only such acts bind a principal by subsequent ratification as were done at the time on his behalf. This necessarily implies that what is done by a person on his account cannot be  effectually adopted or ratified by another; 

b) the person ratifying the act must have full knowledge of its tortious character; and

c) an act that is illegal and void cannot be ratified. 

It is to be noted that ratification of a tort by a principal will not free the agent from his responsibility to third persons. 

2. Liability arising out of special relationship : 

1. Master and Servant 

2. Owner and Independent Contractor 

3. Principal and Agent 

4. Company and its directions 

5. Guardian and Ward

6. Firm and its partners 

Principal and Agent: 

In Ormord v. Crosville Motor Services Ltd., (1953) 2 All ER 753 the defendant was about to compete in the car rally and asked his friend to drive his car from Birkenhead to Monte Carlo so as to meet the defendant at the end of the rally there. The friend had to carry a bag in the car for the defendant as both of them had to go on a holiday after completion of the program. When the friend departed from Birkenhead for Monte Carlo met with an accident and collided with an omnibus. The Court held the defendant liable for his friend who was using his car.

Section 4 of the Partnership Act, 1932 defined Partnership- 

“Partnership is the relation between persons who have agreed to share the profit of business carried  on by all or any one of them acting for all.” 

In short, the term is defined as a voluntary contract between two or more competent persons to place their money, effects, labor, and skill or some or all of them in lawful business with the understanding that there shall be sharing of profit between them. 

In Hamlyn v. Houston and Co., (1903) 1 KB 81 the defendant company’s partner bribed a clerk of the competing firm to know the details of the contract. The Court held the firm liable as the partner was acting in the course of the firm’s business. Hence the firm was vicariously liable. 

3. Liability by abetment: In liability by abetment,  the defendent has induced another to commit a wrong. A Person who procures the act of another is legally responsible for its consequences.