Vicarious liability including state liability
Author: Ayush Jain, Unitedworld School of Law, Gandhinagar, Gujarat
What is the Concept of Liability?
In Tort Law Liability arises when a person fails to perform its Reasonable Duty of Care. The term “Duty of Care” means that a person has some moral or ethical duties towards other persons which have to be performed by the other person. If a person fails to perform these duties he/ she is liable to pay the damages caused by the non-performance of the “Duty of Care”. The damages which are to be paid to the Injured Party is termed as “Compensation”.
The definition of Liability given by Salmond is- “Liability is the bond of necessity that exists wrongdoer and the remedy of the wrong has more often been said to have contract or delict”.
Now after understanding the “concept of liability”, let us now see that “What is Vicarious Liability”?
What is Vicarious Liability?
Every time a person is held liable for his acts. But, Vicarious Liability is an exception to this rule of liability.
In simple terms, Vicarious Liability is “Liability for the Act of Others”. Vicarious Liability arises when a person who is doing an act on behalf of another person and if that person commits any tort then the person on whose behalf the work is being done is held liable. Vicarious Liability is also called “Second Hand Liability”.
In words of Salmond- “In general a person is responsible only for his own acts, but there are exceptional cases in which the law imposes on him vicarious responsibility for the acts of another, however, blameless himself.”
The Main Constituents of Vicarious Liability are as follows:
(1) There should be a relationship between both parties of a certain kind.
(2) The wrongful act which is committed should be related to the relationship in a certain way.
(3) The wrongful act must be done within the course of employment.
The Doctrine of Vicarious Liability is based on some principles that can be summed up in the two maxims which are as follow:-
- “Qui facit per alium facit per se”- “He who acts through another does the act himself.” This is a fundamental legal maxim. It is a maxim often stated in discussing the liability of the employer for the act of employee in terms of vicarious liability.”
- “Respondeat superior”- This is a Latin Maxim which means “let the master answer”. This is also based on the doctrine that a part is responsible for the acts of their agents.
Some cases based on the concept of Vicarious Liability are as follows:-
- In the case of Lloyd vs. Grace, Smith & Co., A fraud was committed by a clerk of a firm who was working in the ordinary course of employment. It was held that the firm was liable for the wrongful acts of the clerk because he was acting as an agent for the firm at that time when the fraud was committed.
- In the case of State Bank of India vs. Shyama Devi, there was a person who was an employee of the bank. He was given a sum of money that was to be deposited in the bank by Shyama Devi who never checked the deposit receipts of the bank. However, the State Bank of India was not held liable even if that employee who took the whole money of the lady never deposited the money because he was not acting in the course of employment.
Hence from these cases, you could get a better picture of the Concept of Vicarious Liability as well as the importance of the Course of employment.
Now, let us see What is Vicarious Liability of the State?
Sometimes the workers of the Government commits a Tort which results in the rise of the Liability of the state. These workers work in the authority of the State/ Sovereign which does their delegated tasks but failing to do the tasks properly give rise to the liability of the State. Thus the liability is placed not on to the tortfeasor, but rather on the one who was supposed to have control over the tortfeasor. This situation is called “Vicarious Liability of The State”.
In other words, All the wrongful activities of the Government Employees make the State Vicariously Liable.
In the Law of Torts, Vicarious Liability is an exception that states “A person is liable for his own acts only”.
- In the case of The State of Rajasthan vs. Vidyawati, a suit for damages was filed by the employee of the state and the question arises whether the State is liable or not? The court held that as the employee was in the Course of employment, hence the Government is Vicariously Liable for the wrongful act of the servant, like any other employer.
- In the case of Smt. Savita Sharma And 2 Others vs. Union Of India, a group of army soldiers were being transported in an army vehicle. The driver of the vehicle, through his negligence, resulted in an accident with a private tempo. Hence the state was held liable for the damages.
Indian scenario with respect to other countries:
In India, at present, there is no such specific enactment to date which is dealing with the state vicarious liability. But there is a provision which has been made under the Constitution of India under Article 300 which states that-
“The Governor of India may sue or be sued by the name of the Union and the Government of a State may sue or be sued by the name of the State and may, subject to any provisions which may be made by Act of Parliament or of the Legislature of such State enacted by virtue of powers conferred by this Constitution, sue or be sued in relation to their respective affairs in the like cases as the Dominion of India and the corresponding Provinces or the corresponding Indian States might have sued or been sued if this Constitution had not been enacted”.
In this article, it is clearly stated that the union of India or the State Government can be sued unlike any other citizen of India.
Position in England:
In England, earlier there was a famous Maxim in the English Common Law which was- ”The King Can Do No Wrong”, was followed, which means the King cannot be sued for the wrongful acts of his servants.
But this was changed in the year 1947 when this old common law maxim was repealed and was changed by the “ Crown Proceedings Act, 1947”. With the passing of this act, now the King or The Crown is now held liable and can be sued for claiming the damages for the wrongful acts of the servants.
Similarly, in the United States of America, before 1946, there was no such Act or a clause by which the common people could sue the Government because they follow the Doctrine of Sovereign Immunity. But with the enactment of “The Federal Tort Claims Act, 1946” the common people can now sue the government to claim damages for the wrongful acts of their servants.
Some Landmark Judgements based on Vicarious Liability:
- P & O Navigation Company vs. Secretary of State for India:-
This was the first case in which the doctrine of Sovereign Immunity was debated.
In this case, the plaintiff’s horse-driven carriage was hit by a piece of a funnel made of iron which was carried by some workers on a Government’s steamer. Hence making the government liable to pay the damages to the plaintiff.
It was held that the Government is not liable for the damages as the injuries caused were not in the course of employment.
- Nobin Chunder Dey vs. Secretary of State:-
In this case, the plaintiff asked for the damages for the refusal of giving him the license by the government to sell liquor and some drugs.
It was held that this case is out of sovereign functions of the state, and so it was not the court’s criteria to look into this case.
Hence the government was not held liable.
- Kasturi Lal vs. State of Uttar Pradesh:-
In this case, the plaintiff’s gold was seized by the police officials. After which the gold was misappropriated by a constable and he flew to Pakistan. Here the plaintiff pleaded for the damages.
It was held by the court that it could not help with it as the state is not liable when the tort is committed in the statutory power by its servants.
- Devaki Nandan Prasad vs. The State of Bihar:-
In this case, the plaintiff was a retired person who has been denied his pension by the state without much discussion. The plaintiff challenged the court for the damages for his denial of his pension.
It was held by the apex court that the plaintiff was allowed to recover exemplary damages with a sum of Rs. 25000 from the defendant deliberately as damages caused to him.
Vicarious liability is nothing but the “LIABILITY FOR THE ACT OF OTHERS”.
Hence we have seen the various aspects of Liability in the context of Vicarious Liability including the Vicarious liability of The State. Here we found that earlier some countries including India don’t have any law or enactment through which the common people can sue the Government. But with the passage of time and modifications in the laws, today most countries have some of the other enactment which sues the Government vicariously for the recovery of the damages. Also in the previous cases discussed above, we can see that most of the time the state was held liable for the damages caused by the servants of the State when in the due course of employment.