Vivek Mishra Torts Project

VICARIOUS LIABILITY BY RELATIONSHIP - A PROJECT SUBJECT: LAW OF TORTS

SUBMITTED TO:MS. SHUSHMITA SINGH FACULTY of LAW OF TORTS Submitted By: VIVEK KUMAR MISHRA ROLL NO – 1576 B.A. LLB, 1ST SEMESTER

CHANAKYA NATIONAL LAW UNIVERSITY,patna TABLE OF CONTENT

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sl. no. 1.

NAME OF CHAPTER INTRODUCTION

PAGE NO. 4

 AIMS AND OBJECTIVE  HYPOTHESIS

2.

RESEARCH METHODOLOGY

4

 METHODS OF DATA COLLECTION  SOURCE OF DATA

3.

INTRODUCTION: VICARIOUS LIABILITY

5-6

 DEFINITION  BACKGROUND

 PRINCIPLE 4.

VICARIOUS LIABILITY BY RELATION

6-12

 PRINCIPLE-AGENT  PARTNERS  MASTER SERVANT

5.

6. 7.

PRINCIPLE OF VICARIOUS LIABILITY  TWIN MAXIMS  INDEPENDENT CONTRACTOR  EXCEPTIONS CLOSE CONNECTION TEST BY SALMOND  EXPRESS PROHIBITION EXCEPTIONS

12-13

13-16 16-17

 ACT OUTSIDE THE COURSE OF EMPLOYMENT  HOSPITAL CASES  GIVING LIFT TO UNAUTHORIZED THIRD PARTY

8.

CONCLUSION BIBLIOGRAPHY

18-19 19

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ACKNOWLEDGEMENT

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I would like to thank my faculty Ms. Shushmita Singh, whose assignment of such a relevant and current topic made me work towards knowing the subject with a greater interest and enthusiasm and moreover he guided me throughout the project. I owe the present accomplishment of my project to my friends, who helped me immensely with sources of research materials throughout the project and without whom I couldn’t have completed it in the present way. I would also like to extend my gratitude to my parents and all those unseen hands who helped me out at every stage of my project.

AIM AND OBJECTIVE

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i.

To discuss (in brief) the concept of vicarious liability and its principle.

ii.

To study the subject matter of Test of Control and its position in India.

iii.

Discuss and analyze various case law related to test of control for establishing vicarious liability

hypothesis  In India, The Test of Control is generally not used, even in cases when it can be.  Test of control is not an essential ingredient to hold the master’s vicarious liability.  Test of control is confined within a limited tortuous act.

RESEARCH METHODOLOGY This project is based upon doctrinal method of research. This project has been done after a thorough research based upon intrinsic and extrinsic aspects of the project. Source of data: Secondary Sources a) Books b) Newspaper c) Articles e) Website Mode of Citation:  The researchers have followed a uniform mode of citation throughout the course of this project.

INTRODUCTION: VICARIOUS LIABILITY Generally, a person is liable for his own wrongful acts and one does not incur any liability for the acts done by others. In certain cases,

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however, vicarious liability, that is the liability of one person for the act of another person, may arise. In order that the liability of A for the act done by B can arise, it is necessary that there should be certain kind of relationship between A and B, and the wrongful act should be, in certain way, connected with that relationship.1 The common examples of such a liability are: (1) Liability of the principal for the tort of his agent; (2) Liability of partners of each other’s tort; (3) Liability of the master for the tort of his servant. So Vicarious Liability deals with cases where one person is liable for the acts of others. In the field of Torts it is considered to be an exception to the general rule that a person is liable for his own acts only. Reasons for vicarious liability. Several reasons have been advanced as a justification for the imposition of vicarious liability: (1) The master has the ‘deepest pockets’. The wealth of a defendant, or the fact that he has access to resources via insurance, has in some cases had an unconscious influence on the development of legal principles.

(2) Vicarious liability encourages accident prevention by giving an employer a financial interest in encouraging his employees to take care for the safety of others. 1 Source from “Law of Torts” by R.K. Bangia

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(3) As the employer makes a profit from the activities of his employees, he should also bear any losses that those activities cause.  The one reason for fixing his liability is historical. The personality of the servant is deemed to be merged with the master and this principle has survived the era of slave emancipation where servant were treated as slaves and they did not had any individual personality for identity.  Deeper pocket theory- The second reason for fixing liability on master is based on public policy and master is supposed to be in better position to pay for loss cause to the aggrieved party through insurance for the tortuous act of his servant because of his deeper pocket.  The third reason is expressed in the twin maxim of “respondiate superior” which means let the master be liable and “Qui facit per alium facit per se” which means that the act of the agent is the act of the principle. Vicarious liability is based upon these two principles as mentioned above.

VICARIOUS LIABILITY BY RELATION In Vicarious liability, in order to make A liable or the tortuous act of B, then it is necessary that there should be a certain kind of relationship between A and B, and the tortious act should be a certain way connected with that relationship. The common examples are1. Principle and Agent Where one person authorizes another to commit a tort, the liability for that will be not only of that person who has committed it but also of

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that who authorized it.2 It is based on the general principle “ Qui facit per alium facit per se” which means that the act of the agent is the act of the principle. The authority to do the act may be express or implied 3. So, when an agent commit a tortious act in the ordinary course of employment, then principle will be made liable for the same. In Lloyd v. Grace, Smith $ co. , Mrs. Llyod who owned two cottages was not satisfied with the income therefrom, approached the office of defendant , a firm of solicitors and she was advised to sell the two cottages and invest money in better way. The agent of the company played a fraud and made her sign documents which was in really a gift deed in the name of the agent himself. He then disposed of the property and misappropriated the proceeds. He had acted solely for his personal benefit without the knowledge of the principle. It was held that since the agent was acting in the course of his apparent authority, the principle was liable for the fraud. 2. Partners The relationship as between partners is that of principle and agent. The rules of law of agency apply in case of their liability also. For the tort committed by any partner in the ordinary course of business, all the other partners are liable to the same extent as the guilty partner. 4 2 Mclaughin v. Pryor, (1942)

3 Poland v. Johan Parr & Sons,(1927)

4 S. 26, Indian Partnership Act, 1932

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In Hamlyn v. Houston & CO.,One of the two partners of the defendant’s firm, acting within the general scope of his authority as a partner, bribed the plaintiff’s cleark and induced him to make a breach of contract with his employer by disclosing secreats relating to his employer’s business. It was held that both the partners of the firm were made liable for the wrongful act committed by only of the partner. 3. Master and Servant The common law principle states that a person is made liable for the tortious act of his servant but the question is why a master should be made liable for the wrongful act of his servant during the course of employment. The principle of master’s liability for the wrongful act of his servant is based on following reason The one reason for fixing his liability is historical. The personality of the servant is deemed to be merged with the master and this principle has survived the era of slave emancipation where servant were treated as slaves and they did not had any individual personality for identity.  Deeper pocket theory- The second reason for fixing liability on master is based on public policy and master is supposed to be in better position to pay for loss cause to the aggrieved party through insurance for the tortuous act of his servant because of his deeper pocket.  The third reason is expressed in the twin maxim of “respondiate superior” which means let the master be liable and “Qui facit per alium facit per se” which means that the act of the agent is the act of the principle. Consequently the act of the servant becomes the act of the master.

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In the words of Lord Chelmsford: “It has long been established by law that a master is liable to third persons for any injury or damage done through the negligence or unskilfulness of a servant acting in his master’s employ. The reason of this is, that every act which is done by servant in the course of his duty is regarded as done by his master’s order, and, consequently it is the same as if it were master’s own act”. 5

Constituents Of Vicarious Liability So the constituents of vicarious liability are: (1) There must be a relationship of a certain kind. (2) The wrongful act must be related to the relationship in a certain way. (3) The wrong has been done within the course of employment. Who is the servant A servant is a person employed by another to do work under the directions and control of his master. As a general rule, master is liable for the tort committed by his servant but he is not liable for an independent contractor. Servant And Independent Contractor A servant and independent contractor are both employed to do some work of the employer but there is a difference in the legal relationship which the employer has with them. A servant is engaged under a contract of services 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 5 www.lawteacher.net/Tort-law

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respect of wrongs committed by an independent contractor. 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. Since for the wrong done by the servant, the master can also be made 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. The reason for the maxim respondeat superior seems to be the better position of the master to meet the claim because of his larger pocket and also ability to pass on the burden of liability through insurance. The liability arises even though the servant acted against the express instruction, and for no benefit of his master.6 For the liability of the master to arise, the following two essentials are to be present: (1) The tort was committed by the servant. (2) The servant committed the tort in the course of his employment. A servant is a person employed by another to do work under the direction and control of his master. As a general rule, master is liable for the tort of his servant but he is not liable for the tort of an independent contractor. It, therefore, becomes essential to distinguish between the two. Since for the wrongful act of servant master is made liable vicariously, the plaintiff has a choice to bring action against either or both of them. 6 www.legalservicesindia.com/article/vicarious-liability-in-india-1634-1.htn

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There liability is joint and several as they are considered to be joint tortfeasor. 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. And independent contractor is one “who undertakes to produce a given result, but so that in the actual exclusion of the work, he is not under the order or control of the person for whom he does it, and may use his own discretion in things not specified beforehand.” 7 Example: My car driver is my servant. If he negligently knocks down X, I will be liable for that. But if he hire a taxi for going to railway station and a taxi driver negligently hits X, I will not be liable towards X because the driver is not my servant but only an independent contractor. The taxi driver alone will be liable for that. EXCEPTION TO INDEPENDENT CONTRACTOR In Morgan v. Incorporated Central Council,8 the plaintiff, while he was on a lawful visit to defendant premises, fell down from an open lift shaft and got injured. The defendant had entrusted the job of keeping the lift safe and in proper way to certain independent contractors. It

7 Pollock on Torts, 15th ed., p. 62. Adopted by McKardie, J. in Performing

Rights society ltd. V. Mitchell, etc. Ltd., (1942)

8 (1936) 1 All E.R. 404

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was held that for this negligence on the part of the independent contractors, the defendant could not be made liable.9 There are many cases of accidents caused by mechanics, repairers or owner of workshops during test drive of the vehicles entrusted to them by the owner of the vehicles for repairs. In B. Govindrajulu V. M.L.A. Govindraja Mudaliar,10 after a motor lorry was entrusted to the owner of workshop for repair, an employee of the workshop while testing met with an accident. In this case the owner of the lorry was not made liable because the owner of the workshop was an independent contractor.  The servant is employed under contract of service whereas independent contractor is employed for the service. In Alcock v Wraith, NEILL LJ stated: where someone employs an independent contractor to do work on his behalf he is not in the ordinary way responsible for any tort committed by the contractor in the course of the execution of the work. The main exceptions to the principle fall into the following categories: (1) Cases where the employer is under some statutory duty which he cannot delegate. (2) Cases involving the withdrawal of support from neighbouring land. (3) Cases involving the escape of fire. (4) Cases involving the escape of substances, such as explosives, which have been brought on the land and which are likely to do

9 (1936) 1 All E.R. 404

10 A.I.R. 1966 MAS. 332

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damage if they escape; liability will attach under the rule in Rylands v Fletcher. (5) Cases involving operations on the highways which may cause danger to persons using the highway. (6) Cases involving non-delegable duties of an employer for safety of his employees. (7) Cases involving extra-hazardous acts. In case of Rylands v. Fletcher, the employer could not escape the liability for the damages caused to the plaintiff, when the escape of the water from a reservoir got which was constructed by the defendant from an independent contractor, flooded the plaintiff’s coalmine. TEST OF CONTROL

Traditional view: Traditional mode of differentiating between master and servant is based upon test of control which means that the master could not only direct what work is to be done but also the manner of doing the work i.e. how the work need to be done.  The traditional mode of stating the distinction is that in case of servant, the employer in addition to directing what work the servant is to do, can also give directions to control the manner of doing the work; but in case of an independent contractor, the employer can only direct what work is to be done but he cannot control the manner of doing work. This was stated by MCKARDIE, J. by taking the writings of Pollock on Torts in a case of Performing Right Society Ltd. v Mitchell, etc. Ltd.11 11 www.legalservicesindia.com/article/vicarious-liability-in-india-1634-1.htn

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In Short V.J. & W. Henderson Ltd. LORD THANKERTON pointed out four indicia of contract of service: (1) Master’s power of selection of his servant; (2) Payment of wages or other remunerations; (3) Master’s right to control the method of doing the work, and (4) Master’s right of suspension or dismissal.  The important characteristic according to this analysis is the master’s power of control for other indicia may also be found in a contract for services. This was the traditional test. In Collins v Hertfordshire HILBERY J said; “the distinction between a contract for services and a contract of service can be summarised in this way: In one case the master can order or require what is to be done, while in other case he can not only order or require what is to be done, but how it shall be done.” The Supreme Court in Dharangadhara Chemical Works Ltd. v State of Saurashtra

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laid down that the existence of the right in the

master to supervise and control the execution of the work done by the servant is a prima facie test, that the nature of control may vary from business to business and is by its nature incapable of any precise definition, that it is not necessary that the employer should be proved to have exercised control over the work of the employee, that the test of control is not of universal application and that there are many contracts in which the master could not control the manner in which work was done. The English Courts have also recognised that the control test is no longer decisive. 12 1957, AIR264, 1957 SCR 152

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The nature of the employment test One accepted view is that people who have a contract of service (an employment contract) are employees, but people who have a contract for services (a service contract) are independent contractors. In Ready Mixed Concrete v Minister of Pensions and National Insurance,MACKEMA J., said that three conditions are to be fulfilled for contract of service: (1) Servant agrees that in consideration of a wage or other remuneration he will provide his own work and skill in the performance of some service for his master; (2) He agrees expressly or impliedly that in the performance of that service he will be subject to others control in a sufficient degree to make that other master; (3) The other provisions of the contract are consistent with its being a contract of service. Allocation Of Financial Risk/ The Economic Reality Test/ Multiple Test In Montreal v Montreal Locomotive Works Ltd. LORD WRIGHT said that in the more complex condition of modern industry, more complicated test have often to be applied. According to him, it would be more appropriate to apply a complex test involving (1) Control; (2) Ownership of the tools; (3) Chance of profit; Risk of loss; and Control in itself is not always conclusive. (4) Hire and fire test

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 When servant is not under control of master and in various cases, when cannot control the way in which the work is to be done. ExThe captain of a ship or a surgeon in hospital may be servants even though they are not to be directed regarding the way they are to do their work. The aim of hire and fire test is to bring intro category of “servants” even those persons who are not subject to any such control and apply hire and fire test i.e. a person who hires another person and has power to fire him and he is his pay master, they he will be the master for vicarious liability. In a later case Market Investigation Ltd. v Minister of Social Security, COOKE J. referred to these factors and said that the fundamental test was; “Is the person who has engaged himself to perform these services performing them as a person in business on his own account?” If the answer is yes, it is a contract for services; if no, it is a contract of service. There is no exhaustive list of considerations relevant to determining this question, and no strict rules about the relative weight the various considerations should carry in a particular case. The control will no doubt will always have to be considered, although it can no longer be regarded as the sole determining factor; and that factors which may be of importance are: (1) Whether the man performing the services provides his own equipment; (2) Whether the person hires his own helpers; (3) What degree of financial risk he takes; (4) What degree of responsibility for investment and management he has; and

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(5) Whether and how far he has an opportunity of profiting from sound management in the performance of his task. According to the Supreme Court of United States, the test is not “the power of control whether exercised or not over the manner of performing service to the undertaking”, but whether the persons concerned were employees “as a matter of economic reality” and the important factors to be seen are “the degrees of control, opportunities of profit or loss, investment in facilities, permanency of relations and skill required in the claimed independent operations.”

Lending a servant to another person Mersey Docks and Harbour Board v Coggins and Griffith Ltd.,13The harbour board hired out a mobile crane, together with a driver, Mr. Newall, to the defendant stevedores. Mr. Newall was paid and liable to be dismissed by the board, but the contract of hire stated that he was to be regarded as the employee of the stevedores. The stevedores could tell him what to do, but not how he was to operate the crane. Mr. Newall negligently injured Mr. McFarlane. On the question whether the board or the stevedores were to be held vicariously liable for the negligence of Mr. Newall, the board was liable. The court in this case observed that an arrangement of transfer of servant can be made under contract or otherwise with the express or implied consent of the servant. The most satisfactory test in order to ascertain that who the master would be for the purpose of vicarious liability is to establish, as whom the servant is entitled to be directed the manner of doing his work. If someone apart to the general employer is entitled, then it will be that person’s liability. 13 (1946) 2 ALL ER 345.

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In the above case it was observed that that there was a only transfer of service and not the transfer of servant . The general employer himself had power to control the manner and not the hirer. That’s way the general employer was made liable as a master.

CLOSE CONNECTION TEST The concept of vicarious liability holds that a person who is free from any personal blame may still be held liable for another's wrongdoing or tort. However, it requires proof of a particular relationship between the two parties involved and the law recognizes such in the relationship between employer and employee. Therefore, an employer can be vicariously liable for the torts committed by an employee. The basis for this is that if employers can profit from the enterprise in which an employee was engaged when the tort was committed, they should bear liability for any loss. In most cases, employers are also better able to pay damages, so injured plaintiffs stand a better chance of recovering compensation. For vicarious liability to apply, it must be shown that the employee's tort took place in the "course of employment". If committed in other circumstances outside work, it would clearly be unreasonable to hold the employer liable the actions. It is usually easy to determine this. For example, if a construction site worker drops something from a height and injures a passerby, he will be held liable and so will his employer, since, obviously, the act was committed in the course of employment. However, in some situations, there is an element of uncertainty because the employee's actions may have been unauthorized or not approved. If so, should the employer be held vicariously liable? Since 1907, the UK and Hong Kong courts have applied the Salmond test to determine whether an employee's tort was committed in the course of employment. The test considers if it was either something authorized by the employer or an unauthorized mode of doing something authorized by the

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employer. When reviewing an "unauthorized mode", the key question is whether the employee did something which was so closely connected with his normal duties that the employer could be held vicariously liable. The underlying idea is that the injury done must involve a risk so inherent in or characteristic of the employer's business that they should bear the loss. The House of Lords adopted this "close connection" test in Lister v Hesley Hall Ltd in 2002. In that case, the warden of a boarding house attached to a school had sexually abused pupils residing there. The decision was that the warden's torts were so closely connected with his employment that it was fair and just to hold the employer vicariously liable. Although the acts of abuse were not authorized by the employer, they were determined to be connected with the duties which were authorized. The Hong Kong case of Ming An Insurance Co (HK) Ltd v Ritz-Carlton Ltd in 2003 went to the Court of Final Appeal and the same test was used. A doorman employed by the hotel seriously injured two pedestrians when he lost control of the limousine he was driving along Queensway. The car was hired by the hotel and, if the regular chauffeur was absent, the doorman was sometimes required to move it, which might involve driving along Queensway. Separately, other members of staff used to go out to buy food and, occasionally, would persuade the chauffeur to give them a lift. On the night of the accident, a bellboy was going out to pick up food for his colleagues and, as the chauffeur was off duty, he persuaded the doorman to take him in the limousine, and the accident occurred on the way. At first instance and before the Court of Appeal, the hotel was held not to be vicariously liable for the doorman's negligence on the grounds that, in driving the limousine to pick up food, he had been acting beyond the scope of his employment. However, the Court of Final Appeal reversed the decision. They held that, although driving the limousine for the stated reason was not one of the doorman's authorized duties; it was closely connected with them. This rested on the facts that, firstly, the doorman routinely drove the limousine in the course of

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his employment, sometimes along the route where the accident occurred. Secondly, the limousine, when driven by the chauffeur, was sometimes used to pick up food for hotel staff. As a decision of the Court of Final Appeal in Hong Kong, this interpretation is authoritative and binding on all future cases. Therefore, it is important for employers to have an understanding of this close connection test in order to minimize the risk of being held liable for the actions of their employees. Q1: How should the “close connection” test be applied? A1: You should ask whether the employee’s tort was so closely connected with his employment that it would be fair and just to hold the employer vicariously liable.

For Example, the owner of a nightclub might employ

security guards and dishwashers. If a security guard injured an unruly patron in a fight, the owner could be held vicariously liable because the guard’s normal duties are so “closely connected” with that possibility. However, there would be no close connection for a dishwasher injuring a patron, since they would not deal with them in the normal course of employment. Q2: What should the employer do to protect himself from possible claims of vicarious liability? A2: The employer should closely supervise employees to ensure they do not carry out their duties in an improper manner.

It is not an excuse for an

employer to say he has not authorized a specific act.

Furthermore, it is

always wise to take out insurance to cover any third-party claim. Close connection test basically analyses : 1) An act authorized by the master and done under the course of employment and when it is performed negligently results in some legal injury . 2) Unauthorized mode of doing some act authorized by the master under the course of employment. So, in both the cases master can be held liable.

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Example

: If I authorize a servant to drive and he drives negligently or I

authorized a servant to deal with the clients and he deals with them fraudulently or if I authorize a servant to help the railway passengers, but he mistakenly causes harm to them , in each of these cases the servant is doing the act which he has been authorized to do but his mode of doing is wrongful . Each one of these acts is therefore, within the course of employment and the master can be made liable for the same. Prohibited Act When master has put a prohibition regarding the way , in which the work has to be done and the servant does not follow it and thus as a result commits a tortuous act within the course of employment and for the profit of the master, then the master will be held liable for it. And when that act is done outside the course of employment , then he will not be made liable. Rose vs. Plenty: Rose v Plenty [1976] 1 WLR 141 is an English tort law case, on the issue of where an employee is acting within the course of their employment. Vicarious liability was tenuously found under John William Salmond's test for course of employment, which states that an employer will be held liable for either a wrongful act they have authorised, or a wrongful and unauthorised mode of an act that was authorised. Mr Plenty was a milkman under employment in Bristol by the Co-operative Retail Services Ltd, since Easter of 1970. At the depot where he worked, there was a prohibition on allowing children onto any vehicle, with evidence that the employers and trade unions had attempted to stop such behavior. There were signs to this effect, which were large and visible to employees; one such stated: "Children and young persons must not in any circumstances be employed by you in the performance of your duties.” However, children still persisted in going to the depot in the hopes of being allowed onto milk floats.Soon after he was employed, Mr Plenty was

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approached by Leslie Rose, at the time a 13-year-old boy, who asked if he could help the employee on his rounds. This was agreed upon, and Rose engaged in collecting money and delivering milk during Mr Plenty's rounds. He was paid a small wage for this help on several occasions, before he was injured due to the negligent driving of Mr Plenty, suffering a fractured leg.At first instance, Plenty was adjudged 75% contributorily negligent, and recovery from the employer was barred altogether, the judge stating that it was not in the scope of Mr Plenty's employment to take on a child as a subordinate. On appeal to the Court of Appeal, this judgment was reversed, with Lord Denning making the leading speech. It was established that, as in the case of Limpus v London General Omnibus Companythe employee was merely acting in an unauthorised way, whilst still going about his duties of delivering milk: “In the present case it seems to me that the course of the milk roundsman's employment was to distribute the milk, collect the money and to bring back the bottles to the van. He got or allowed this young boy to do part of that business which was the employers' business. It seems to me that although prohibited, it was conduct which was within the course of the employment; and on this ground I think the judge was in error. I agree it is a nice point in these cases on which side of the line the case falls; but, as I understand the authorities, this case falls within those in which the prohibition affects only the conduct within the sphere of the employment and did not take the conduct outside the sphere altogether. I would hold that the conduct of the roundsman was within the course of his employment and the masters are liable accordingly, and I would allow the appeal.

”

Whilst the majority of Lord Denning and Scarman LJ agreed upon this interpretation, Lawton LJ dissented, arguing that precedents set in two earlier cases, Twine v Bean's Express Ltd and Conway v George Wimpey & Co Ltd, could not be distinguished from the instant case. In these cases, no liability was found on the part of the employer where passengers taken by employees - against specific instructions - were injured. Lord Denning

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distinguished the cases on the grounds that Leslie Rose had been furthering the employee's duties, keeping Mr Plenty within the course of his employment. Negligent delegation of authority by the servant If the servant negligently delegates his authority and instead of himself carefully performing a duty allows it to be negligently performed by another person , the master will be liable for such negligence of the servant. In Ricketts vs. Thomas Tilling Ltd., the driver of a bus seated himself by the side of the conductor and permitted the conductor to drive the bus for the purpose of turning the omnibus in the right direction for the next journey . The conductor drove the bus so negligently that it mounted the pavement , knocked down the plaintiff and seriously injured him. It was held that the master was liable for the negligence on the part of the driver in allowing the conductor to drive negligently. Giving lift to an unauthorized third party It was held in Twine vs. Beans Express Ltd., that the act of giving lift by a driver to an unauthorized person in that case fell outside the course of employment . In Conway vs. George Wimpey and Co. Ltd., the position was similar to that in Twine’s case. There, the defendants, who were

firm of contractors,

engaged in a building work at an aerodrome , had provided lorries for conveying their employees to various sites. A notice was displayed in every lorry that the driver was under strict order not to carry passengers other than those employed by the defendants and that any other person travelling in the lorry did so at his own risk. Oral instructions to that effect were given to the drivers as well. The plaintiff, who was a labourer in another firm , was given lift by the driver of one of the defendants’s lorries and was injured due to the driver’s negligence .It was held that the act of the driver in giving lift being outside the course of employment , the defendants were not liable to the plaintiff . It was observed thatr giving lift to an unauthorized person “was not merely a wrongful mode of performing the act of the class this was

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employed to perform but was the performance of an act of a class which he was not employed to perform at all.

EXCEPTIONS  ACT OUTSIDE THE COURSE OF EMPLOYMENT Though master has control over the manners in which work is to be done but in certain cases 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. In Beard v. London General Omnibus Co.,14 at the end of the journey, the driver of the bus went to take dinner. During the temporary absence of the driver, the conductor drove the bus for next journey without the knowledge of driver and met with an accident. In this case master was not made liable because the act done by the conductor was outside the course of employment. TRANSFER OF SERVANT WITH CONTROL When there is only transfer of service and not the servant as seen above in Mersey Docks and Harbour Board v Coggins and Griffith Ltd. Then the master can be made liable but in certain cases where there is service is transferred with the servant and its effective control too, then master cannot be made liable and in that case he hierer who took that effective control will be made liable. In case of Rajasthan State Road Transport Co. v. K.N. Kothari,15 it has been held by the Supreme Court that the transfer of effective 14 (1900) 2 Q.B. 530. Also see Llkiw v. Samuels,(1963)

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control over servant, would make the transferee of the vehicle liable for vicarious liability. In this case, the RSRTC hired a bus and a driver for running a bus on a specified route. The RSRTC engaged a conductor, who managed the bus and also exercise control over driver. It was held that for an accident cause by the driver hirer RSRTC was made liable vicariously and not the original owner who transferred such control.  In some hospital cases also, in certain circumstance the master are not made liable for the negligence of staff surgeon because they lack power of control over them. In Hillyer v. St. Bartholomew’s Hospital,16 the hospital authorities were not made vicariously liable for the negligence of their staff involving professional care and skill, because they lacked the power of control over them.

CONCLUSION Vicarious Liability deals with cases where one person is liable for the acts of others. In the field of Torts it is considered to be an exception to the general rule that a person is liable for his own acts only. It is based on the principle of qui facit per se per alium facit per se, which means, “He who does an act through another is deemed in law to do it himself”. So in a case of vicarious liability both the person at whose behest the act is done as well as the person who does the act are 15 A.I.R. 1997 S.C. 3444 16 (1909) 2 K.B. 820

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liable. Thus, Employers are vicariously liable for the torts of their employees that are committed during the course of employment. So a master is liable for the acts of his servant if the act is done in the course of employment. The servant and independent contractor are under contract of service and contract for service respectively. The traditional view to distinguish between the two was the control test exclusively. But in modern scenario this is not sufficient test as there is no single test. The significant outcome can be achieved only by balancing different factors with the help of different tests like:

Bibliography BOOKS REFERRED    

LAW OF TORTS by R.K. Bangia

Michael A. Jones, Textbook on Torts THE LAW OF TORTS by Ramaswamy Iyer THE LAW OF TORTS by Ratanalal and Dhirajlal

WEBSITES REFERRED  www.lawteacher.net/Tort-law  www.legalservicesindia.com/article/vicarious-liability-in-india-1634-1.htn  www.lawmentor.co.uk/home/resources/essay-on-vicarious-liability.html