VICARIOUS LIABILITY: ANALYSIS OF MASTER-SERVANT RELATIONSHIP

ABSTRACT

The term ' tort ' is extracted from the word 'tortum' meaning crooked or twisted. In tort law, defendant is liable causing injury to others and the redressal is through providing damages. Generally, a person who commits wrong is held liable for his actions done towards the wronged. This paper focuses on the coherent understanding of master-servant relationship. The readers will get clear knowledge on various instances of liabilities of masters and servants.?

KEYWORDS

Vicarious, master, promise, damages, servant

INTRODUCTION

Vicarious liability is a legal doctrine that imposes liability on a person due to the legal harm caused by another person due to the shift of liability from servant to master because of legal relationship between the two.?

It is pertinent to note that relationship between a master and a servant arises out of exchanging promises between the two where the parties agree to their rights and obligations.?According to section 9 of Contract Act – 1872, when a contract is made otherwise than in words it will be considered as an implied contract where a course of employment can be created.?

A contract shall exist between a master and servant only when?both parties convey their free consent. In a contract, any of the terms and conditions should not be illegal or opposed to public policy and?should be expressed clearly. In such way court can redress the loss suffered by the victim due to breach of contract.

The legal doctrine?'Respondeat superior' literal meaning 'let the master answer' will hold master responsible for any unlawful action committed by the servant. A master to be held liable for the unlawful acts of his servant only when the servant has committed such act in the due course of employment and? only if he and the master satisfy the condition of control test.?

In R. v. Negus, it was held that master has all rights to mandate the servant the kind of particular act and also direct the servant in the method of working of the said instructed act.?

Wrong By Servant Due To Natural Consequence For Master With Due Care

If the servant acts upon the directions of the master, master shall be vicariously liable for any wrong committed by the servant even if all due care is taken with regard to discharge of such action.? As per ‘Qui facit per alium facit per se’, any act done by a servant upon the instructions of master, is considered master is acting on behalf of servant. Master shall be held liable for any acts of the servant even done with proper care with regard to commission of such act. It is believed that the master has committed the act himself as the servant is acting on his behalf.

Wrong By Excess or Mistaken Execution of A Lawful Authority

In cases where any servant acting on interest of any public duty or any lawful authority, commits any act which is considered to be in excess instead of reasonable action, the master shall be held liable.? In order to hold master liable in such case, it must be proved that the servant had intention to act on the interest of master and was authorised to do.

Wrong Of Servant To Serve Master’s Purpose

In a situation where a servant acts wilfully, recklessly in such manner during his?course of employment, such that master will be held liable for any wrong arising out of that act.? In Limpus v. London General Omnibus Co., the defendant company’s driver, wilfully acted against the orders of the company to not involve. The driver acted against the express orders of the company and obstructed the omnibus.? the court held defendant company as the driver acted within the scope of employment.?

Fraud By Servant

A master shall be liable for any fraudulent act committed by the servant. For example, A a bank customer deposited Rs. 1,00,000 in a bank for transferring to B. C, an employee of the said bank, fraudulently transferred the said amount to his wife. Here, the bank shall be held liable due to the act committed by the employee.?

In Lloyd v. Grace Smith & Co. (1912) A.C. 716, the plaintiff, widow went to a manager of defendant for becoming rich. He asked her to sell her cottage and to call up the amount of mortgage. After she sold her cottage, he fled away with the money. Defendant was held liable for the manager’s act as his action falls within course of employment.?

Acts Outside the Course of Employment

Under vicarious liability, every act of the servant cannot hold master liable even under the course of employment. An act can be considered as outside the employment even if not instructed by the master.? For example, A, a house cleaner for B has the only duty to clean house.? A even cooked food even it was not instructed by B. It caused harm to C’s property by fire. In this case, B will not be liable as A performed uninstructed act which was considered yo be out of the course of employment.?

Also, any act the servant done which is not under ordinary course of the master’s interests, falls under the ambit of outside the course of employment.

CONCLUSION

Vicarious liability imposes liability on master for the acts of the servant during the course of employment. Any persons can enter into master-servant relationship by the means of ratification or through pre-existing relationship. There should be no consent given by coercion, fraud or any other unlawful means. The both parties get into an agreement by recognising their roles and responsibilities when entered into such a relationship. Vicarious liability has larger impact in society. Every individual needs to recognise the importance of acting according to their roles and obligations. They should be responsible for creating better society.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Written by: Pathi Hrudaya Reddy