Viacrious Liability

VICARIOUS LIABILITY: OF STATE STATE FOR ITS SERV S ERVA ANT

Vicarious liability is a form of strict, secondary liability that arises under the common law doctrine of agency – respondeat superior – the responsibility of the superior for the acts of their subordinate, or, in a broader sense, the responsibility of any third party that had the "right, ability or duty to control" the activities of a violator. The liability is placed, not on the tortfeasor, but rather on someone who is supposed to have control over the tortfeasor. The most common form of vicarious liability that we come across is the liability arising out of a ‘Master – Servant relationship. This is sometimes referred to as the doctrine of "!S#$%&'T "!S#$%&'T S(#!)$!" S(#!)$!" *in which the M'ST! + the archaic term ter m for an employer e mployer + must respond for the torts of its S!V' S!V'%TS + the archaic term for employees-. The  principle says that a master is ointly and severely liable for any tort committed by his servant while acting in the course of his employment. 's /ord 0rougham said1 2The reason that ) am liable is this, that by employing him ) set a whole thing in motion3 and what he does, being done for my benefit and under my direction, ) am responsible for the conse4uences of doing it. This implies that the liability for the inured partys loss is properly shifted to the person or  entity whose enterprise was benefited by the relationship, and created the occasion for the wrongdoers act or omission. 5hen a servant commits a tort in the course of his employment, the master is very often guilty of what 6erman lawyer s call 27ulpa in eligendo8 or 27ulpa in inspiciendo8 )n order that the doctrine of vicarious liability may apply, the conditions that need to be fulfilled are that firstly, the relationship of master and servant must e9ist between the defendant and the  person committing the wrong complained of. of. Secondly, the servant must in committing the wrong have been acting in the course of his employment. State Liability : (nder the nglish 7ommon /aw the ma9im was "The :ing can do no wrong" and therefore, the :ing was not liable for the wrongs of its servants. 0ut, in ngland the position of old 7ommon law ma9im has been changed by the 7rown #roceedings 'ct, -;e. The important functions of the >ing were concerned with protection of people, punishment of crimes and maintenance of dharma or social order. )n the medieval )ndian history the personal liability of officers for their wrongs was more

vogues with evidences showing e4uality between the ruler and the ruled subect. $nly when the >ing considered it proper to underta>e the burden of public officer, it was then the state treasury used to pay the compensation. &harma was considered the administrative law  binding the >ing as well as the subects. 0oth in Aindu law and Muslim law, the rulers themselves administered ustice as far as possible and the rest was done by the e9ceptionally learned and honest udges. The most significant recent trend has been an assertion on the part of the court that it has a power to grant compensation. The principle of personal liability of  public servants for wrongs done to citiBens is already a part of )ndian law based on nglish case laws. #resently State liability in )ndia is defined by the 'rticle CDD*- of the 7onstitution that originated from Section -=@ of the 6overnment of )ndia 'ct, -;CE. This could be traced bac> from the Section CF of the 6overnment of )ndia 'ct, -;-E, the genesis of which can be found in Section @E of the 6overnment of )ndia 'ct, -GEG. )t will thus be seen that by the chain of enactment beginning with the 'ct of -GEG, the 6overnment of )ndia and 6overnment of each State are in line of succession of the ast )ndia 7ompany. )n other words, the liability of the 6overnment is the same as that of the ast )ndia 7ompany before, -GEG. Sovereign Function : Sovereign functions are those actions of the state for which it is not answerable in any court of law. ?or instance, acts such as defence of the country, raising and maintaining armed forces, ma>ing peace or war, foreign affairs, ac4uiring and retaining territory, are functions which are indicative of e9ternal sovereignty and are political in nature. Therefore, they are not amenable to urisdiction of ordinary civil court. The State is immune from being sued, as the urisdiction of the courts in such matters is impliedly barred.

The distinction between sovereign and non+sovereign functions was considered at some length in %. %agendra !ao v. State of '#. 'll the earlier )ndian decisions on the subect were referred to. The court enunciated the following legal principles, in its udgment1 )n the modern sense, the distinction between sovereign or non+sovereign power thus does not e9ist. )t all depends on the nature of the power and manner of its e9ercise. /egislative supremacy under the 7onstitution arises out of constitutional provisions. The legislature is free to legislate on topics and subects carved out for it. Similarly, the e9ecutive is free to implement and administer the law. ' law made by a legislature may be bad or may be ultra vires, but, since it is an e9ercise of legislative power, a person affected by it may challenge its validity but he cannot approach a court of law for negligence in ma>ing the law. %or can the 6overnment, in e9ercise of its e9ecutive action, be sued for its decision on political or policy matters. )t is in public interest that for acts performed by the State, either in its legislative or e9ecutive capacity, it should not be answerable in torts. That would be illogical and impractical. )t would be in conflict with even modern notions of sovereignty. !re"Contitution #u$icial %eciion : &' !eninular ( Oriental Stea) Navigation Co)*any v Secretary : ' consideration of the pre+7onstitution cases of the 6overnments liability in tort begins with the udgment of the Supreme 7ourt of 7alcutta in the case. #. H $. Steam %avigation 7o. v. Secretary of State .

The principle of this case holds that if any act was done in the e9ercise of sovereign functions, the ast )ndia 7ompany or the State would not be liable. )t drew 4uite a clear

distinction between the sovereign and non+sovereign functions of the state. 's the facts of the case go, a servant of the plaintiff+company was proceeding on a highway in 7alcutta, driving a carriage which was drawn by a pair of horses belonging to the plaintiff. Ae met with an accident, caused by negligence of the servants of the 6overnment. ?or the loss caused by the accident, the plaintiff claimed damages against the Secretary of State for )ndia. The Supreme 7ourt observed that the doctrine that the ‘:ing can done wrong, was applicable to the ast )ndia 7ompany. The company would have been liable in such cases and the Secretary of State was thereafter also liable. This arose out of the section @E, 6overnment of )ndia 'ct, -GEG, which e4uated the liability of the Secretary of State for )ndia with that of the ast )ndia 7ompany. &istinguishing between sovereign and non+sovereign functions it was held that if a tort were committed by a public servant in the discharge of sovereign functions, no action would lie against the 6overnment – e.g. if the tort was committed while carrying on hostilities or seiBing enemy property as priBe. This doctrine of immunity, for acts done in the e9ercise of sovereign functions, was applied  by the 7alcutta Aigh 7ourt in %obin 7hander &ey v. Secretary of State. The plaintiff in this case contended that the 6overnment had made a contract with him for the issue of a licence for the sale of gana and had committed breach of the contract. The Aigh 7ourt held that upon the evidence, no breach of contract had been proved. Secondly even if there was a contract, the act had been done in e9ercise of sovereign power and was thus not actionable. +' Secretary o, State v' -ari B.an/i : )n this case, the Madras Aigh 7ourt held that State immunity was confined to acts of State. )n the # H $ 7ase, the ruling did not go beyond acts of State, while giving illustrations of situations where the immunity was available.

)t was defined that 'cts of State, are acts done in the e9ercise of sovereign power, where the act complained of is professedly done under the sanction of municipal law, and in e9ercise of  powers conferred by law. The mere fact that it is done by the sovereign powers and is not an act which could possibly be done by a private individual does not oust the urisdiction of the civil court. The Madras udgment in Aari 0hani holds that the 6overnment may not be liable for acts connected with public safety, even though they are not acts of State. This view was re+iterated in !oss v. Secretary of State. The 'llahabad Aigh 7ourt too> a simila r view in :ishanchand v. Secretary of State. Aowever, in Secretary of Secretary of State v. 7oc>raft, ma>ing or repairing a military road was held to be a sovereign function and the 6overnment was held not liable, for the negligence of its servants in the stac>ing of gravel on a road resulting in a carriage accident that inured the plaintiff. Ot.er uc. cae : )n the 0ombay case of !ao v. 'dvani, it was held that the Madras view in the Aari 0hani case was correct. The 0ombay case was not one of a claim to damages for tort, but related to a petition for certiorari to 4uash a 6overnment order for the re4uisitioning of property, as  proper notice had not been given. $n appeal, the Supreme 7ourt, in the case of State of

0ombay v. :hushaldas 'dvani, reversed the Aigh 7ourt, holding that natural ustice was not re4uired to be observed, before re4uisitioning any property. The definition of 2act of State 8 given in shugbayi v. 6overnment of %igeria was recognised and a ccepted. !ot Contitution #u$icial %eciion &' State o, -aryana v' Santra The ratio of this case was on the principles of state liability for negligence. Aere it was clearly established that the doctor while performing the operation was acting as a government servant and acting in the course of employment of the government. Aence when there was negligence, it amounted to acting in bad faith, and so the defence of sovereign immunity could not be used by the state. Moreover it was also held that such negligence which could have been perceived by a professional who had a duty to do so should ta>e into consideration these matters and cannot escape liability by claiming defence of consent by the petitioner.

The respondent in the above case was a poor lady who went under a steriliBation operation at the 6eneral Aospital, 6urgaon, as she already had seven children and wanted to ta>e advantage of the family planning scheme launched by the State 6overnment of Aaryana. Smt. Santra was informed that she would not conceive in future. Smt. Santra approached the 7hief Medical $fficer, 6urgaon, for her steriliBation in -;GG. 0ut she gave birth to a female child. This led her to file a suit claiming !s. F la>hs as damages for medical negligence due to 2failed steriliBation8 which was decreed for a sum of !s. Ehs by the respondent, the officers defending the state argued that during the time of the operation only the right ?allopian tube was operated on and the left tube was left untouched. The appellants also argued that the negligence on the part of the doctors would not ma>e the state vicariously liable and that the damages paid to her for the maintenance of the child could not be decreed as there was no element of tort involved. )t was further pleaded that Smt. Santra had herself put her thumb impression on a paper containing a recital that in case the operation was not successful, she would not claim any damages. )t was pleaded that she was estopped from raising the plea of negligence or from claiming damages for an unsuccessful steriliBation operation from the State. 'fter the &istrict 7ourt dismissed the matter giving a compensation of !s Ehs for the maintenance of the child and

herself as she already as seven children. The respondent claimed that if she had offered herself for complete steriliBation operation, both the ?allopian tubes should have been operated upon. The doctor who performed the opera tion acted in the most negligent manner. Moreover she also stated that as the operation was carried out in a government hospital and the doctor being a government servant, the state was vicariously liable for the act of the doctor as a servant of the State. #u$g)ent: The e9planation given by the appellants for absence of state liability was reected by the trial court which the suit for a sum of !s. Eutty v. M.:. !aghavan, proper care was not ta>en by defendants due to which damage to brain not avoided. #atient was admitted to hospital for purpose of treatment but patient was not particular about doctor. &ue to negligence of doctor or staff any mishap happens hospital authorities responsible. 6overnment could not produce any record to show that there was no negligence, hence State was held vicariously liable. +' State o, Ra/at.an v' Vi$ya0ati : The respondents filed a suit for the damages made by an employee of a State and the case 4uestioned whether the State was liable for the tortious act of its servant – The 7ourt held that

the liability of the State in respect of the tortious act by its servant within the scope of his employment and functioning as such was similar to that of any other employer. )t was held in this case that the State should be as much liable for tort in respect of tortuous acts committed by its servant within the scope of his employment and functioning as such, as any other employer. The facts of this case may shortly be stated as follows. The first defendant /o>umal, was a temporary employee of the appellant State, as a motor driver on probation. )n ?ebruary, -;EF, he was employed as the driver of a 6overnment eep car, registered as %o. !(M shop for necessary repairs. 'fter repairs had been carried out, the first defendant, while driving the car bac> along a public road, in the evening of ?ebruary --, -;EF, >noc>ed down one Jagdishlal, who was wal>ing on the footpath by the said of the public road in (daipur city, causing him multiple inuries, including fractures of the s>ull and bac>bone, resulting in his death three days later, in the hospital where he had been removed for treatment. The plaintiffs who are JagdishlalLs widow and a minor daughter, aged three years, through her mother as ne9t friend sued the said /o>umal and the State of !aasthan for damages for the tort aforesaid. They claimed the compensation of !s.FE,DDDI+ from both the defendants. The first defendant remained e9+  parte. The suit was contested only by the second defendant on a number of issues. 0oth the 7ourts below have agreed in finding that the first defendant was rash and negligent in driving the eep car resulting in the accident and the ultimate death of Jagdishlal. The second defendant, who was the respondent in the Aigh 7ourt, and is the appellant before us, contested the suit chiefly on the ground that it was not liable for the tortious act of its employee. The Trial 7ourt, decreed the suit against the first defendant e9+parte, and dismissed it without costs against the second defendant. $n appeal by the plaintiffs, the Aigh 7ourt of !aasthan allowed the appeal and decreed the suit against the second defendant also, with costs in both the 7ourts. The State of !aasthan applied for and obtained the necessary certificate that the case fulfils the re4uirements of 'rt. -CC*-*a of the 7onstitution of )ndia. Aigh 7ourt rightly observed that an important point of law of general public importance, namely, the e9tent of the liability of the State, in tort, was involved. #u$ge)ent : )n State of !aasthan V. Vidyawati, the Supreme 7ourt reviewed the position of law, under article CDD of the 7onstitution, and the facts and circumstances leading to the formation of the State of !aasthan.

The State of !aasthan has not shown that the !aasthan (nion, its predecessor, was not liable by any rule of positive enactment or by 7ommon /aw. The &ominion of )ndia, or any constituent #rovince of the &ominion, would have been liable in view of the provisions aforesaid of the 6overnment of )ndia 'ct, -GEG. %o provision of law, statutory or otherwise, was presented, that could e9onerate the !aasthan (nion form vicarious liability for the acts of its servants. )t has not been claimed before us, that the common law of the (nited :ingdom, before it was altered by the said 'ct with effect from -; fit and proper in this behalf. 0ut, so long as the /egislature has not e9pressed its intention to the contrary, it must be held that the law is what it has been, ever since the days of the ast )ndia 7ompany. 1' 2aturilal v' State o, U! The ruling in this case was given holding that the act, which gave rise to the present claim for  damages, has been committed by the employee of the respondent during the course of its employment. 'lso, that employment belonged to a category of s overeign power. This removed any liability on the part of the state.

)n this case, the plaintiff had been arrested by the police officers on a suspicion of possessing stolen property. (pon investigation, a large 4uantity of gold was found and was seiBed under the provisions of the 7ode of 7riminal #rocedure. (ltimately, he was released, but the gold was not returned, as the Aead 7onstable in charge of the maal>hana, where the said gold had  been stored, had absconded with the gold. The plaintiff thereupon brought a suit against the State of (# for the return of the gold or alternatively, for damages for the loss caused to him. )t was found by the courts below, that the concerned police officers had failed to ta>e the re4uisite care of the gold seiBed from the plaintiff, as provided by the (# #olice !egulations. #u$g)ent: The trial court decreed the suit, but the decree was reversed on appeal by the Aigh 7ourt. 5hen the matter was ta>en to the Supreme 7ourt, the court found, on an appreciation of the relevant evidence, that the police officers were negligent in dealing with the plaintiffs  property and also, that they had not complied with the provisions of the (# #olice !egulations. Aowever, the Supreme 7ourt reected the plaintiffs claim, on the ground that 2the act of negligence was committed by the police officers while dealing with the property of !alia !am, which they had seiBed in e9ercise of their statutory powers. The power to arrest a person, to search him and to seiBe property found with him, are powers conferred on the specified officers by statute and they are powers which can be properly categoriBed as sovereign powers. Aence the basis of the udgment in :asturi /al was two+fold + The act was done in the purported e9ercise of a statutory power. Secondly, the act was done in the e9ercise of a sovereign function. Ot.er I)*ortant 3iletone : &' C.alla Ra)4on$a Re$$y V' State o, A!: )n the udgment of the Aigh 7ourt of 'ndhra #radesh in 7halla !am>onda !eddy Vs. State of '#, it was held that the plea of sovereign immunity was not available, where there was a violation of the fundamental rights of the citiBens. )t was a case where a person arrested by

the police was lodged in a cell in the ail. Ae e9pressed his apprehension to the authority in charge of the ail, that his enemies were li>ely to attac> and >ill him in the ail. This apprehension was not given any consideration by the authorities. &uring the particular night, there were only two persons guarding the ail, instead of the usual si9. The enemies of the arrested person entered the ail during the night and shot him dead. The legal representatives of the deceased filed a suit for damages. The trial court found that the authorities were negligent in guarding the ail and that the death of the deceased was attributable to such negligence. Aowever, the suit was dismissed on the ground that the arrest and detention of the deceased in ail was in e9ercise of sovereign functions of the State. &uring the hearing of the  plaintiffs appeal, the State relied upon the decision of the Supreme 7ourt in :asturi /al. The Aigh 7ourt, however, held that where the fundamental rights of the citiBens are violated, the  plea of sovereign immunity, which is assumed to be continued by article CDD of the 7onstitution, cannot be put forward. This view has been approved by the Supreme 7ourt in ')! FDDD S7 FDGC. State of '.#. v. 7hella !ama>rishna !eddyN. +' Sa.eli V' Co))iioner o, !olice: Saheli V. 7ommissioner of #olice was another milestone in the evaluation of compensation  urisprudence in writ courts. The masterpiece udgement in Vidyawati, which was freeBed by :asturi /al was rightly 4uoted in this case. The State was held liable for the death of nine year old child by #olice assault and beating. &elhi 'dministration was ordered to pay compensation of !s. =EDDDI+. The significance of this case is that firstly, the revival of Vidyawati ratio and secondly that the &elhi 'dministration was al lowed to recover money from those officers who are held responsible for this incident. 1'Nilabati Be.ra V' State o, Oria : 'nother landmar> udgement was %ilabati 0ehra V. State of $rissa awarding compensation to the petitioner for the death of her son in police custody. The court held that a claim in  public law for compensation for violation of human rights and fundamental freedoms, the  protection remedy for enforcement and protection of such right, is distinct from and in addition to the remedy in private law damages for tort. The court e9pressly held that principle of sovereign immunity does not apply to the public law remedies under 'rticle CF and 'rticle FF@ for the enforcement of fundamental rights. The :asturi /al case ratio is confined to  private law remedies only.

The distinction between public and private law and the remedies under the two has been emphasised in 7ommon 7ause, ' !egistered Society V. (nion of )ndia and 7hairman, !ailway 0oard V. 7handrima &as cases. )t was held "where public functionaries are involved and the matter relates to the violation of fundamental rights or the enforcement of public duties, the remedy would still be available under the public law notwithstanding that a suit could be filed for damages under private law." Concluion : )n all the cases discussed before, the entity sought to be made liable is not the government but the State. So far as the government is concerned, it may well say that the statutory authority is neither accountable nor subordinate to it. Aence the government cannot be visited with the conse4uences flowing from a wrong order made by a statutory authority. 's far as the State is concerned, it cannot put forward any such plea inasmuch as the statute is enacted by it by /egislature. The appointment of the authority is also done either by the Statute itself or by such authority as may be authorised by the Statute. The act of the statutory authority in such a case is an act done for and on behalf of the State. Aence the state is held liable.

States liability for the acts or omissions of statutory authorities arises only in cases where the statutory authority acts outside his legal authority while purporting to act pursuant to the legal authority conferred upon him and the act or omission, which causes or results in damage to a  person, is not within the ambit of the statutory protection, if any, contained in such enactments. This rule is evolved for the obvious reason that an act done under a statute and in accordance with the statute can never amount to a tort as was said by the Supreme 7ourt in Martin 0urn /td. Vs. 7alcutta 7orporation. The 7ourt said 2' result flowing from a statutory  provision is never an evil8. 2The 6overnment of )ndia may sue or be sued by the name of the (nion of )ndia and the 6overnment of a State may sue or be sued by the name of the State and may, subect to any  provisions which may be made by 'ct of #arliament or of the /egislature of such State enacted by virtue of powers conferred by this 7onstitution, sue or be sued in relation to their respective affairs in the li>e cases as the &ominion of )ndia and the corresponding #rovinces or the corresponding )ndian States might have sued or been sued if this 7onstitution had not  been enacted.8