Vicarious Liability in Medical Care
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This article is written by Gaurav Raj Grover, a fifth-year law student at Lloyd Law College, Greater Noida. This article discusses the features of Vicarious Liability in India.

Introduction

Every person is liable for acts, the person commits and not liable for the acts done by others but in some situations when a person is liable for the acts of another person is known as vicarious liability. So, for this to happen there must be a specific kind of relationship between both the people and the act must be connected with the relationship. These relationships can be of a master and servant or principal and agent. 

Vicarious liability is the liability of a person for an act of another person because of their relationship with each other. For eg: Saurav is the driver of Gaurav, and Gaurav sent Saurav to drop his friend Suryash to the Airport. On their way, Saurav hits Mahesh because of his reckless driving. In this situation, Gaurav was not even in the car while the car hit Mahesh, but still, he was liable for the accident caused by Saurav. This is because of vicarious liability. 

So, vicarious liabilities only deal with the situation where the person is liable for some other person’s acts. It is considered as an exception to the general rule that the person is liable for his acts only. Vicarious liability 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’. 

Essentials of Vicarious Liability

The essentials of vicarious liability are:

  1. There must be a certain type of relation between the parties. 
  2. The wrongful act must be committed by another person. 
  3. The wrongful act must happen during the course of employment. 

Relations in Vicarious Liability

So, this liability can only take place when one party is socially superior to another party and superior party shall be considered liable. Some examples of these relationships are:

  • Master and Servant
  • Owner and Independent Contractor
  • Partners in Partnership Firm
  • Principal and Agent
  • Company and its Directors

Reasons for Vicarious Liability

The reasons behind holding the master liable for the actions of his servant are:

  1. A servant is just an agent who is controlled and supervised by his employer. So, the servant works according to the master which means he works in the manner the master wants the work to be done. So, the liability for the actions of the servant must be of the master. 
  2. The master always enjoys the profit derived from the efforts of the servant, so he must also bear the loss that occurred by the activity of the servant but only in the course of employment. 
  3. The master is financially stable than that of a servant. So, the master is more suitable to pay for the damages caused by the tortious act of the servant. But the masters are allowed to take reasonable care and precautions to prevent himself from such situations. 

Scope of Employment

The actions of the employees related to the term of his employment are considered as the scope of employment. The scope changes through the requirements of the job and the number of people are required to do the job. There are situations where a worker is not working under the scope of employment. These include:

  • Independent Contractor 

An independent contractor is a person doing work for someone else, these contractors are not considered as employees because they are not working in the scope of employment and are certainly not considered as employer’s liability. 

  • Illegal Acts

Any illegal act is not under the scope of employment. So, any harm caused by the illegal act is mostly not considered as the employer’s liability. 

When an employee performs an activity that is neither directed nor controlled by the employer, the employee is not in the scope of employment. In this situation, if the employee engages in any wrongful tortious activity, the employer is not liable for the damages. 

For example, A is the driver of B, after dropping B to his office A left the office premises to meet his friend C with B’s car. A picked up C, they went for a drive and had an accident. Z was injured in the accident. In this situation, B is not liable for any damages because B had no idea of A’s plan and A was not in any course of employment given by B. 

Difference between Servant and Independent Contractor

A servant and independent contractors are quite similar as they both work for the employer, which means both of them can not decide their choice of work, the employer will assign the work to them but in the case of liability of tort, the master is liable for the wrongful act of the servant but he is not liable for the wrongful act of the independent contractor because the servant is engaged under the contract of services while the independent contractor is engaged under the contract for services. 

The master is liable in the case of a servant because the servant commits the wrongful act in his course of employment. So, the wrongful act of the servant is considered as the act of the master. Thus, the master is liable vicariously for the wrong done of the servant. But in the end, the plaintiff has the choice to take action against either or both of them. The liability of master and servant is both joint and several as they are considered joint tortfeasors. 

For example, A has a company and all the people working in his company are his servants as A has the right to control and supervise the work of the people working in his company. 

While the work of an independent contractor can not be controlled by the master. The master can only provide the type and duration of the work to the independent contractor but can not control the process he uses during the work. An independent contractor himself chooses the manner in which the work is to be done.

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For example, all the third party workers who work on a daily basis on contracts, the taxi drivers as the person taking a cab is not liable for an accident that occurred during the ride but the person will be liable when he is in a car with his driver. 

A has a shop, one day there was something wrong with the A.C., A called a mechanic B to repair the A.C. while B is working for A but it doesn’t mean that A will be liable for B’s wrongdoings as in this case B is an independent contractor, not a servant because A can only tell B what to do but B himself will figure out how to do that specific work. 

Vicarious Liability in Medical Care

For any wrongdoing caused by the employee in any medical institution, the hospital or the doctor is vicariously liable for the damages. The employees include all the nurses, technicians, physicians, lab assistants, administrative department and other staff members. 

Vicarious liability helps in improving the conditions of hospitals as the hospital is liable for all the staff. So, the hospital or any medical institution focuses on proper qualifications and credentials for the employees to perform their job but this doesn’t work for a healthcare provider who is an independent contractor of the hospital. 

For example, A had surgery at XYZ hospital and Doctor Who performed the surgery. The surgery was successful but Doctor Who forgot his ring inside A’s stomach. Now, in this case, Doctor Who is liable for negligence but A can sue both XYZ hospital as well as Doctor Who as the hospital is liable for the actions of the doctors. 

Types of Vicarious Liability

When some person is liable for damages caused by the other person because there was certain control, ownership, or direction involved, then the liability is known as vicarious liability. 

Principal Liability

When a person allows another person to use his vehicle to perform a task for the owner and while doing the task, the person causes damages or injury through negligence, in this case, the owner is liable for the damages through vicarious liability. 

For example, A has a recent surgery and was on complete bed rest, he asked B to complete his insurance work by sending the papers to the company, A lends his car to B, during the drive, B had an accident because of recklessness, in this case, A is liable for B’s accident. 

In another situation, after completing A’s work B used his car for her personal use and met an accident during the course of her work, in this situation A is not liable for B’s accident. 

This shows that the course of employment of the owner is necessary. 

Parental Liability

In any case, when a child creates damage by taking advantage of the situation created by their parents, the parents are liable for the damages. The situations can be allowing a child to drive, or leaving a loaded weapon in a child’s reach. In the lack of parental supervision, the parents are vicariously liable for their child’s negligence. 

For example, A is the mother of 10-year-old B, while performing the daily chores she was not able to keep an eye on B and B damaged the car of C. In this case, A is vicariously liable for B’s actions as B is the son of A and she has to keep an eye on B’s actions. 

Situations in which the Master is Liable

  • When the wrongdoing arrived from a natural consequence of an act of servant. 

When the servant works on the instructions of his master, then the master is liable for all the damages arriving out of the work of the servant. 

  • When the wrongdoing arrived from the negligence of the servant.

For example, B works as a house help for A, B was cleaning A’s house and forgot to close the door which resulted in the escape of their dog, the dog bit the son, A was liable for all the damages caused by B’s negligence. 

  • When the wrongdoing through the mistake in execution from the lawful authority.

For example, A is the guard of XYZ bank and he is allowed to shoot in case of emergency. One day during the transfer of the cash, B was entering with the people who were transferring the cash in the bank, A in the suspicion of B as a dacoit shot him and caused his death. In this case, the bank is vicariously liable for A’s actions. 

  • When the wrongdoing happened through the servant’s fraudulent act.

For example, A works in an insurance company, B went to the company to open insurance, A takes from B and creates a policy for his wife. In this case, the insurance company is liable for A’s fraudulent act. 

  • When the servant wilfully committed the wrong to hurt the master. 

Every wrong act of servant which is in the course of employment either willful, reckless, or improper is liable for the master. For example, when a waiter hurts the customer for being rude to him, the waiter, as well as the hotel, is liable for the waiter’s negligence. The hotel is liable under vicarious liability. 

Exceptions

  • When the servant is under a statutory duty which he can not delegate, the master is not liable.
  • When there is a case where the servant is involved with the withdrawal of support from the neighboring land, the master is not liable.
  • When situations involve very hazardous acts, the master is not liable.
  • When situations involve escaping from the fire, the master is not liable.
  • When situations using the highways, the master is not liable. 

Conclusion

Vicarious liability deals with only those cases when one person is liable for the actions of another person. And the liable person must be superior to the other person. The person who commits wrong must be in the course of employment. The course of employment is essential for vicarious liability. 


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