In this blog post, Pramit Bhattacharya, Damodaram Sanjivayya National Law University writes about the concept of Vicarious Liability in the case of civil and criminal law. The post also touches upon the issue of liability of Corporations, the State and the licensee with regards to the doctrine of vicarious liability.

Under the concept of vicarious liability, one person is held responsible for the wrong committed by the other. The doctrine of vicarious liability is also known by the name of joint liability. Vicarious liability can occur under both civil and criminal law. Such a liability arises only when there is some legal relation between the two parties, or the parties are somehow connected to each other.

Tort Law or Civil Law

There are some essential conditions which should be fulfilled to constitute vicarious liability under torts or civil law.

Relation

There should be some relationship between the wrongdoer and the other party. The relationship can be of principal-agent, master-servant, employer-employee, etc. Under service also there are two categories-

• Contract of Service- Under this contract, one person is already under the contract of the other, and the service is of particular nature. This is a kind of general contract, and there is not many limitations on the controlling power over the other, for instance, master-servant relationship.
• Contract for Service- This is a contract for a particular reason, and there is a limitation on the controlling power over the acts of the other, for instance, employer-employee relation.

Ratification

Under torts or civil law, a person may also be liable for the wrongful act or omission of some other party in the following ways-

• If the person abets the wrongful act or omission committed by the other person.
• If the former ratifies or authorizes the act of the other knowing that the act committed or omission done was tortious in nature.
• As standing towards the party who committed a wrong in such a relation that it entails responsibility for the acts or omission done by the other person.

The concept of “in the course of employment” also comes into play when the doctrine of vicarious liability is evoked. An act is deemed to be done in the course of employment if the authority to give a wrongful act is given by the master to the servant; or some legal act is done by the servant in an illegal way.

The judicial pronouncement of Short v J&W Ltd.[1] is the first case which gave the conditions that were needed to be fulfilled in order to make the master vicariously liable for the acts of the servant. The Court observed that the master should have the power to select his servant. Further the master controlled the way his servant worked, and the master also had the right to dismiss or suspend the services of the servant. But in the Indian case of Dharangandhara Chemical Works v State of Saurashtra,[2] it was held that sometimes these condition needed to be diluted because it was not always possible to fulfill all the conditions simultaneously. But the control of the master wouldn’t be diluted, and he’ll be liable for the acts of the servant.

Reasons for Holding the Master Vicariously Liable

• Respondent superior- this principle follows the rule that let the principal or master be responsible.
• Damages- for the purpose of giving the damages to the aggrieved party and to stop the blame game between the servant and the master.
• Avoiding exploitation of the servant- master is also held liable for the acts of the servant because many time the masters exploit their servants by first directing the servants to do some tortious act and then firing them to avoid responsibility.
• Qui facet alium facet perse– any act which is done by the servant in the course of his employment is considered to be done by the master, and in principle means that the master has done the act.

Criminal Law

Under criminal law also one person can become liable for the act of the other if he is a party to the offense. For instance, a driver of a car which goes and robs a bank will also be liable even though the driver did not get out of the car. The principle which is followed in the criminal law is that a person may be held liable as the principal offender, even though the actus reus was committed by some other person. The person committing the act on the instruction of the other will not be considered as innocent and will also be held liable. The law focuses on the relationship between the two parties and attributes the act of the one to the other. It should be noted that the concept of vicarious liability is a civil concept and in the case of criminal law it is an exception rather than a rule.

Indian View

Although the doctrine of vicarious liability is generally applicable to civil law, in some exceptional cases it is applicable in criminal cases also. Section 149 of the IPC. Under Section 149 of the IPC if any member of an unlawful assembly commits any offense in furtherance of a common objective, every member of that unlawful assembly will be held liable for that offense.

Section 154[3] of the IPC relates to occupiers or owner of a land. If such occupier or owner or any person who has some interest in the piece of land does not inform the proper public authority about unlawful assembly on that land, or do not take necessary steps taking place on the land, will also be held liable for such activities. The liability has been fixed on the assumption that being the owner or the occupier of the land; the person will be able to control the activities which is happening on their property. Section 155[4] also makes a person vicariously liable on the owner or occupier of the land for the omission of their agent or manager if any activity takes place on the land and the agent or manager does not prevent illegal activities happening on their property. Section 156[5] imposes personal liability on the agent or the manager if some illegal activity takes place on the particular property.

Section 268[6] and Section 269[7] deals with public nuisance and makes the master personally liable if the servant is creating any public nuisance. Section 499[8] of the IPC also makes the master personally liable in case the servant defames somebody (provided it falls under the definition of defamation given under this section).

Liability of Corporations in Cases of Criminal Wrongs

The earlier view was that a corporation cannot commit a criminal wrong. But that view has changed in the present scenario. A corporation has a separate legal entity and is an artificial person. But it cannot work on their own. It works through its agents. So whenever some act is committed by a company which is not legal, its agents are punished and hence, the liability is necessarily vicarious. A corporation cannot commit crimes like rape, murder, perjury, etc. But it has been recognized that a company can commit activities which have criminal intent.

Liability of State for Acts of Employees

In England, the state cannot be held liable for the acts which have been committed by its servant. The principle behind this is based on the doctrine of Rex non-potestpeccare[9] which states that the King can do no wrong.

In India also, the same position existed till 1967 and the State couldn’t be sued for the action of its servants. But in the judicial pronouncement of Superintendent and Remembrance of Legal Affairs, West Bengal v Corp. of Calcutta,[10] it was held by the Court that the principle that the State isn’t bound by any statute is not the law of the land after the Constitution has come into force. Civil and criminal statues now apply to citizens and state alike. In the case of Saheli v, Commissioner of Police,[11] the Court was of the opinion that the concept of sovereign immunity does not hold good with the evolution of law, and Constitutional Regime and the State can also be made liable.

Licensee and his Liabilities

The licensee is responsible for the acts done by this employee I the course of the employment. Even if the acts were done were opposite to the instructions given by the licensee, he still would be held liable. In the case of Emperor v. Magadevappa Hanmantappa,[12] this proposition of law was made clear. The accused held a license under the Indian Explosive Act, 1884. The Act stated that the manufacture of any explosives should be done away from a dwelling place. It should be done in a building exclusively meant for the manufacturing purpose. One day the servant took some material from the building to carry out some manufacturing process. At that time, there was an explosion. The accused was held liable for the same by the Court.

Conclusion

It can be said that the concept of vicarious liability is a civil one, but with the evolution of law, the Courts have started to apply the doctrine to criminal cases also. Sometimes it becomes very important to fix a liability on the principal, so as to protect the interest of the aggrieved party and also to avoid blame game between the parties, which in turn may delay justice.

Footnotes:

[1](1946) 62 T.L.R. 427

[2]1957 AIR 264

[3]https://indiankanoon.org/doc/1034470/

[4]https://indiankanoon.org/doc/1062869/

[5]https://indiankanoon.org/doc/833310/

[6]https://indiankanoon.org/doc/209076/

[7]https://indiankanoon.org/doc/734195/

[8]https://indiankanoon.org/doc/1041742/

[9]http://www.duhaime.org/LegalDictionary/R/RexNonPotestPeccare.aspx

[10]AIR 1960 SC 1355

[11]1990 AIR 513

[12]AIR 1927 Bom 209