Chapter - 2 VICARIOUS LIABILITY - AN ANALYSIS

Transcription

1 Chapter - 2 VICARIOUS LIABILITY - AN ANALYSIS

2 Chapter - 2 VICARIOUS LIABILITY - AN ANALYSIS A. Vicarious Liability: He who commits a wrong is said to be liable or responsible for it. Liability or responsibility is the bond of necessity that exists between the wrong doer and the remedy of the wrong. Where the remedy is civil one, the party wronged has a right to demand the redress allowed by law, and the wrongdoer has a duty to comply with this demand.1 As a general rule one is liable for torts committed by himself. However, there are circumstances under which one becomes liable for the torts committed by others, even though he may be free from personal blame or fault.2 Vicarious liability is an example of such liability.3 Vicarious is derived form 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 statute.4 1 P.J.Fitzgerald (ed.), Salmond on Jurisprudence 12th ed.,1966, 4th re.pt., Bombay: N.M.Tripathi Pvt. Ltd, 1999), p William Prosser, Hand Book of the Law of Torts, 2nd ed, (St.Paul Minn:West Publishing Co., 1955), p.350; G.P.Verma, State Liability in India: Retrospect and Prospect, (New Delhi: Deep & Deep Pub. 1993), p.9. Etymologically the term vicarious liability means liability instead i.e.,exercise performed or suffered by one person instead of another. A vicar is one who performs the functions of another, he is a deputy or a substitute of another. Jess Stein ed., The Random House Dictionary of English Language, (New York: Random House, 1967), p.1590; See John G.Fleming, The Law of Torts, 5th ed., (Sydney: The Law book Co., 1977), p S.Ramaswamy Iyer, The Law of Torts, 6th ed., (Madras: The Madras Law Journal Office,1965), p. 489.

3 19 Vicarious liability in the law of tort may be defined as a liability imposed by the law upon a person as a result of (1) a tortious act or omission by another, (2) some relation between the actual tortfeasor and the defendant whom it is sought to make liable, and (3) some connection between the tortious act or omission and that relationship.5 The expression Vicarious Liability signifies the liability which A may incur to C for damage caused to C by the negligence or other tort of B. What is required is that A should stand in a particular relationship to B and that B's tort should be referable in a certain manner to that relationship.6 In the modem law there are three and only three relationships which satisfy the second requirement of vicarious liability, namely, that of the master and servant, that of principal and agent, and that of employee and independent contractor.7 The most familiar illustration, of course, is the liability of a master for the torts of his servant in the course of his employment.8 5 P.S.Atiyah, Vicarious Responsibility in the Law of Torts, (London: Butterworths, 1967), P-3-6 W.V.H.Rogers (ed.), Winfield and Jolowicz on Tort, 12th ed., (London: Sweet and Maxwell, 1984), p.571., also, see William L. Prosser, supra note 2. P.S.Atiyah, supra note 5. 8 R.F.Heuston (ed.), Salmond on the Law of Torts, 7th ed. (London: Sweet and Maxwell, 1977), p.542; J.S.Colyer, A modern view of the Law of Torts, (Oxford: Perganon Press, 1966), p. 14; William L. Prosser, supra note 2, p.351.

4 20 B. Theories as to Legal Basis of Vicarious Liability. There are two theories as to the basis of vicarious liability according to Atiyah9. The first, and traditional theory, is that vicarious liability is accurately described by its name; that it is, in other words, a form of liability imposed on one party for the tortious conduct of another. The second theory has been named the master s tort theory10 wherein the law attributes the act rather than the tort of the servant to the master. However, subsequently master s tort theory has been rejected infavour of the traditional theory.* 11 Atiyah concludes his discussion with the following observation about the irrelevance of the basis of vicarious liability. On the whole it seems doubtful whether much is to be gained by an examination of the true basis of vicarious liability. The fact is that in the great majority of cases it makes no difference which view is adopted; and in those situations where it does make a difference the courts (at any rate in England) are much more likely to be influenced by pragmatic considerations, than by doctrinaire theories. Any attempt to adopt one theory rather than another, and then apply that theory in all circumstances is only too likely to lead to blind legalism P.S.Atiyah, supra note 5, p The master s tort theory really originated in Twine v.bean's Express Ltd.,[( 1946)1 All. E.R.202 C.A.]; It was given further support in Broom v. Morgan, (1953)1Q B. 597 C A 11 Peter W.Hogg, Liability of the Crown in Australia, New Zealand and United Kingdom, (Sydney: The Law Book Company, 1971), p.65; P.S. Atiyah, supra note 5, p P.S. Atiyah, supra note 5, p.7.

5 21 It will never be possible, or perhaps even desirable, to expound a theory which will at once explain and justify all aspects of the doctrine although it has long been accepted as necessary and beneficial.13 Vicarious liability is considered to be based on two Latin maxims qui facit per alium, facit per se i.e., he who does an act through another is deemed in law to do himself,14 and respondeat superior i.e., let the principal be held responsible.15 As long as the medieval command theory prevailed, the master s liability could, with some semblence to reality, be justified by reference to the maxim qui facit per alium, facit per se.16 But the expansion of commerce and industry, which set in towards the end of seventeenth century, necessitated an adjustment of this narrow rule. After some expen men t with the theory of implied command, the basis of the modem principle of liability for all torts committed by the servant in the course of his employment was finally laid in the earlier part of the nineteenth century.17 This formula represented a compromise between two conflicting policies: on the one hand, the social interest in furnishing an innocent victim with recourse against a financially responsible defendant and, on the other, a hesitation to foist any undue burden on 13 R.F.V.Heuston, supra note 8, p Roger Bird (ed.), Osborn s Concise Law Dictionary, 7thed., 6th Indian Re.pt. (Delhi: Universal Law Publishing. Co., 1998), p Ibid, p John G. Fleming, The Law of Torts, 5th ed., (Sydney: The Law Book Company Ltd, 1977), p Ibid.

6 22 business enterprise.18 The maxim respondeat superior does not explain why the superior should answer: it does not enshrine a principle, but announces rather a result - namely, that the employer ought to pay.19 Despite the frequent invocation of such glib phrases as respondeat superior or qui facit per alium, facit per se, the modem doctrine of vicarious liability cannot parade as a deduction from legalistic premises, but should be frankly recognised as having its basis in a combination of policy considerations.20 According to Winfield these maxims are of no help because the former merely states the rule badly in two words, and the latter merely gives a fictional explanation of it.21 The truth is that a mixture of ideas has inspired many unconvincing judicial efforts to find a common basis for the maxim. What was once presented as a legal principle has degenerated in to a rule of expediency, imperfectly defined, and changing its shape before our eyes under the impact of changing social and political conditions R.F. V. Heuston, supra note John G. Fleming supra note 16, p W. V.H. Rogers, supra note 6, p Kilboy v. South-Eastern Fire Area Joint Committee S.C. 280, 285 per Lord Cooper.

7 23 The principle of loss distribution is perhaps the most acceptable justification of vicarious liability discussed today.23 The principle has found a succinct exposition by Atiyah. He explains: In the great majority of cases an employer who has to pay damages for the torts of his servants does not in fact have to meet these liabilities out of his own pocket. The cost of the liabilities is distributed over a large section of the community, and spread over some time. This occurs partly because of the practice of insurance, and partly because most employers are anyhow not individuals but corporations. Where the employer insures against his legal liabilities he will charge the cost of insurance to the goods or services he produces. In general this cost will be passed on by the employer in the form of higher prices to the consumer. The consumer himself may also be able to play his part in spreading the cost in his turn, because not all consumers are themselves individuals... In this way the cost of tort liabilities is spread very thinly over a substantial part of the public. It is, moreover, spread over a period of time.24 Each of the above theories may be inadequate to explain fully the principle of vicarious liability. However, the truth remains that both ancient and modem law 23 G.P.Verma, supra note 2, p.15; P.S.Atiyah, supra note 5, p.22; Fowler V. Harper & Fleming James Jr., The Law of Torts, vol. 2, (Boston : Little Brown & Co ), p P.S.Atiyah, ibid., pp

8 24 admit instances of vicarious liability in which one man is made answerable for the act of another.25 C. Justification of Vicarious Liability. Many reasons are advanced from time to time in justification of vicarious liability. In his book on Vicarious Liability, Baty analysed nine different grounds which had, at one time or another, been put forward in justification of vicarious liability. He dismissed each of them by demonstrating that no one of the reasons taken by itself was consistent with law.26 However, Atiyah suggests that there is an element of truth in most of the nine grounds put forward by Baty. He observes: None of them taken by itself may be a sufficient reason for the principle, but the combined effect of them all may be overwhelming.27 Most of the subsequent writers also have advanced the same reasoning. The grounds analysed by Baty are: (1) Control, (2) Master s benefit from servant s work, (3) Revenge, (4) Care and choice, (5) Identification, (6) Evidence, (7) Indulgence, (8) Danger and (9) Satisfaction. D. Vicarious Liability of the State. The notable switch-over from the laissez faire state to the welfare state concept inevitably piled up enormous powers in the hands of the executive to be 25 P.J.Fitzgerald, supra note 1, p P.S.Atiyah, supra note 5, p. 15.

9 25 commensurate with the felt needs in implementing numerous welfare policies.28 Today the expectation from the government is not only to protect its people from external aggression and internal disturbance but also to take care of its citizens from the cradle to the grave.29 Thus the empowerment of the executive is coupled with responsibility. There is an old adage containing lot of truth that power corrupts and absolute power corrupts absolutely. It is the demand of prudence that when sweeping powers are conferred on administrative organs, effective controlmechanism be also evolved so as to ensure that the officers do not use their powers in an undue manna* or for an unwarranted purpose.30 The quest for control of power has been perennial. But apart from control of powers, reparation by payment of compensation to private persons who had been injured by the action of public authorities is also required. If the exercise of power results in damage to the citizen, there should be adequate principles for the payment of damages.31 The state (used here synonymously with government and executive) is an abstract entity. It can act only through its servants. Today the state is the biggest employer. Under vicarious liability a master is jointly and severally liable for any tort committed by his servant while acting in the course of his 28 S.P.Sathe, Administrative Law, 3rd ed. (Bombay: N.M.Tripati Pvt. Ltd, 1979), p.2 29 I.P.Massey, Administrative Law, 4th ed., (Lucknow: Eastern Book Co., 1995), p M.P.Jain & S.N.Jain, Principles of Administrative Law, 4th ed., 1986, 2nd re.pt. (Nagpur: Wadhwa&Co. 1993), p A.T.Markose & V.D.Sebstian, Liability of State in Civil Law, in L.M.Singhvi, ed, Law and the Commonwealth, 1st print (Delhi: National Pub. House, 1971), p.341.

10 26 employment.32 In the case of state, the question to what extent it shall be responsible for the torts of its servants assumes significance because it is simply good politics to provide avenues of redress against the state.33 Disowning of liability will develop a feeling in the aggrieved individual of increasingly alienated from a non-responsive political system that refuses to grant avenues of redress. Alienation in a democratic society can have drastic, and often fatal, consequences for the system if it is widespread.34 Dr.Upendra Baxi observes:...when those affected by power can, in theory, hold their rulers accountable (in one way or the other), we speak of a liberal democracy or a rule-of-law society. This type of society basically seeks to ensure that grants of power to the rulers are at the same time charters of accountability for the ruled.35 To critically appreciate the tortious liability of the state in India an examination of the position in United Kingdom and United States of America would be of immense significance. 32 R.F. V. Heuston, supra note Leon Hurwitz, The State as Defendant: Governmental Accountability and the Redress of Individual Grievances, (Connecticut: Greenwood Press, Westport, 1981) p. xi. 35 Upendra Baxi in Introduction to I.P.Massey, Administrative Law, supra note 29, p.xvh