UNIT 4

MASTER & SERVANT -VICARIOUS LIABLITY

As a general rule, man is liable only for his own act but
there are certain circumstances in which a person is
liable for wrong committed by others.
“Vicarious” means acting or done for another.
Liability arising out of special relationship:
(i) Master and Servant
(ii) Principal and Agent
(iii) Company and its director
(iv) Owner and independent contractor
(v) Firm and its partner
 Rule of Vicarious Liability
Master is liable for any tort which the servant commits
in course of his employment.
The wrongful act of the servant is deemed to be the act
of the master as well.
respondeat superior - Let the Principal be liable
qui facit per alium facit per se- He who acts through
another is deemed to act in person
 Illustration: If A is the owner of many trucks and if he
employs drivers to drive them for the purpose of trade
and if one of his driver gets into an accident for rash
driving he will be liable for accident.
Essentials of the Rule
Before proceeding against defendant, two conditions be
satisfied
1) Relationship of master and servant.
2) Servant committed particular wrong in scope of
employment.
Who is a servant?
A servant is a person employed by another to do
work under the direction and control of his master.
Exception:- Master is not liable for a independent
contractor.
Ex. A is the car driver of I, When A hit a pedestrian I
is liable. But if I hire a taxi when the taxi driver hit
a pedestrian I is not liable, because taxi driver is
an independent contractor.
 Liability of Independent Contractor
Servant – Control and Supervision of the
employer.
Independent Contractor – No order or control of
the person for whom he does it.
Morgan v. Incorporated Central Council (1936) 1 All
E.R. 404
The plaintiff, while he was on lawful visit inside
the defendant’s place, fell down from a open lift
and injured. The defendant entrusted the job of
keeping the lift safe and order to an independent
contractor. Defendant not liable, IC liable.
Difference between servant and
independent contractor
 Liability of Vehicle Owners
Mechanics, repairers and owner of the workshop.
B. Govindarajulu v M.L.A. Govindaraja Mudaliar
A lorry was entrusted by its owner for repairs,
employee of the workshop took the lorry for test
drive and accident happened. MHC Held the
owner of t he l orry not l i a bl e, repa i rers a re
independent contractor.
Skandia Insurance Co Ltd v. Kokilaben Chandavadan
(1987)
Driver gave responsibility to the cleaner- master
liable.
 Servants not under control of Masters
There are various in which the master does not or
cannot control the way in which the work is to be
done.
Ex. Captain of the Ship & Surgeon in a hospital.
Test of Control:
It is to determine if the master is having complete control
over his servant.
But it does not work in hospital cases.
And in modern times, when company needs skilled
workers. It is difficult to have a controlled authority.
Test of Integral part of work:
A contract of service was held to be a contract
for such work which is an integral part of the
business.
A contract for service was held to be a contract
for such work which is not an integral part of
business.
 Cassidy v Ministry of Health
The hospital Authorities were held liable when,
due to the negligence of the house surgeon and
other staff, during post-operation treatment, the
plaintiff’s hand was rendered useless.
Hillyer v St. Bartholomew’s Hospital
Now the hospital is liable for the professional
negligence of their staff including Radiographers,
resident house surgeons, assistant medical
officers and nurses and part-time anaesthetists.
 No fault Liability
(Workmen’s Compensation Act and Motor Vehicles
Act)
Section 165 of The MVA, The victim of a motor
vehi cl e a cci dent ha s the ri ght to a ppl y for
compensation. Section 167 also claim
compensation under Workmen’s Compensation
Act. But not both.
Section 140 of the MVA, compensation for no
fault liability.
 Lending a servant to another person
When A lends his servant X to B, X commits a
tort against C, The question is who is to be
considered the master, A or B.
Depends on various consideration. Whom will
tell him what is to be done by him, but what way in
which he is to work.
Kundan kaur v Shankar singh
The owners of a truck company gave their truck
and driver on hire to transport certain goods. Rash
and negligent driving by the driver, a person who
sat beside the driver was killed in accident. The
General employer liable.
 Ormrod v. Crosvile Motor Services Ltd
The owner of the car requested his friend to drive
the car from A to B, After leaving from A, the friend
caused an accident, it was held the owner is liable
for the negligence of the friend.
 The course of employment
A master, like a principal, is liable for every tort
which he actually authorizes. The liability of a
master is also for such torts which are committed
by his servant in the course of employment.
1) A wrongful act authorized by the master.
2) A wrongful an unauthorized mode of doing
some act authorized by master.
Illustration:-
1) master authorize the driver to drive, servant
drives negligently.
2) master authorize to deal with the client,
servant deals with them fraudulently.
3) master authorize to help railway passengers,
but servant mistakenly causes harm to them.
National Insurance Co., Kanpur v. Yogendra Nath
The owner of the car authorize the driver to keep
the car dusted while he was out of town. Servant
to the ca r for ty re i nf la ted a nd oi l cha nge,
negligently knocked down 2 boys, aged about 11
and 13. master was liable for the act of servant in
the course of employment. The master’s insurers
liable to indemnify the master.
 Llyod v Grace, smith & co.,
Mrs. Llyod, a widow, who owned two cottages
called the defendant of fice to consult them about
the property owned by her, the managing clerk of
the defendant advised her to sell the cottage and
ask her to sign two sale deeds. But the signed
deed is not sale deed it is a gift deed for himself.
Then he disposed of the property for his own
benef it. The HOL held Grace, smith & co liable for
the act of an employee.
 State Bank of India v. Shyama Devi
If a customer in his capacity as a friend gives
some amount to the bank employee for deposit
purpose. If such an employee misappropriates
the amount, bank cannot be made liable for the
same.
 Theft of goods bailed to the master
Morris v. C.W Martin & Sons Ltd
Bailer – The person who delivers his personal
property to another in trust
Bailee – The person to whom the goods are
delivered.
The defendants were the bailees of a fur coat
given to them for cleaning, the servant kept the
coat himself. It was happened in the course of the
employment. Master liable.
 Theft of goods not bailed to the master
Roop Lal v. Union of India
Some Jawans who were in employment of the
cen t ra l govern m en t , l i ft ed s om e f irewood
belonging to the plaintiff and carried the same
away for camp f ire. It was done on the course of
the employment. The union of India held liable.
 Mistake and negligence of Servant
Erroneous or Excessive use of authority of the
servant, master liable.
Poland v. Parr & sons
The carter suspected on mistaken but
reasonable grounds that some boys were stealing
sugar from the employer’s wagon. The carter
struck one of the boys. the boy fell, was run over
by the wagon and lost his leg. The master held
liable for servant mistake.
 Century Insurance co. V. Northern Ireland Road
Transport Board
A’s servant, the driver of a petrol lorry, while
transferring petrol from the lorry, the servant stuck
a match to light a cigarette and threw it on the
f lo or, resulted in a f ir e and explosion causing
damage. A was liable for driver’s negligence.
 Acts outside the course of employment
when a servant does any act which is not in the
course of master’s business, the same is deemed
to be outside the course of employment.
Storey v. Ashton
There a carman while on his way, induced by an
another employee to go in other direction and pick
somethi ng for hi m. The carman caused an
accident against the plaintiff. No course of
employment, master not liable.
 State Bank of India v. Shyama Devi
If a customer in his capacity as a friend gives
some amount to the bank employee for deposit
purpose. If such an employee misappropriates
the amount, bank cannot be made liable for the
same. The servant had acted outside of the
employment, bank could not be liable.
 Negligent delegation of authority by the servant
Master liable
Headmistress, Govt. Girls High School v.
Mahalakshmi
The plaintiff was a student of the govt school.
The ‘Aya’ employed by the school asked the
plaintiff to fetch water in a plastic pot on the cycle
carrier, that was the job of Aya. When the plaintiff
place the pot in the carrier, the spring of the carrier
came out and hitting plaintiff’s eye and she lost
the sight of the right eye. Negligent delegation of
authority, plaintiff liable.
 Giving Lift to an unauthorized third party
Mariyam Jusab v. Hematlal
The driver of a water tank gave lift to a stranger
and the stranger was killed in the water tank
accident, no express instruction to the driver,
forbidding the giving of lift to strangers, state held
liable.
 Common Employment
Doctrine of Common Employment:-
The rule known was an exception to the rule
of master is liable for the wrongs of his servant
committed in the course of the employment.
The master is not liable for the negligent
harm done by one servant to another fellow
servant acting in the course of their common
employment.
 Priestley v. Fowler
The plaintiff, who was the employee of the
defendant. He was injured at his thigh due to
breaking down of an overloaded carriage in charge
of another servant of the defendant.
Doctrine of common employment applicable,
master not liable.
Governor general in Council v. Constance Zena Wells
The plaintiff’s husband, who was a f ireman in the
defendant’s railways was killed in an accident
caused by the negligence of a fellow employee, a
railway driver. The privy council held that the
defence of common employment was available to
the defendant, but compensation must be paid by
the employer under workmen’s compensation Act,
1923 and Employees state insurance Act, 1963.
 UNIT 5

JOINT TORTFEASORS
Definition
When several persons join in committing a tort,
they become joint tort-feasors. All persons in the
eye of law, are responsible for the same tort, are to
be dealt with as joint wrongdoer.
 JOINT TORTFEASORS

Joint and Several Liability

The liability of joint tortfeasors is joint and several.
The plaintiff has a choice to sue one of them, some
of them, or all of them, in action. Each of them can
be made to pay the full amount of compensation.
1) Wrongful act by the agent, Principal and agent
both liable.
2) Wrongful act by the servant, master and servant
both liable.
3) Wrongful act done by a partner, f irm and partner
liable.
 Brook Vs Bool
Bool and Morris were investigating gas leak they
applied naked light resulted in explosion.
ILLUSTRATION:
Two ships A and B collide with each other on
ac c ount of sep arat e and ind ep end ent ac t of
negligence on the part of each vessel and as a result
of this collusion, ship A sank Ship C a third vessel. It
is held that it was merely a coincidence of separate
acts which by there combined effect caused the
damage.
Jointly and severally responsible for the whole damage
Injured person may sue them separately or all of them jointly
Judgment obtained may be executed against all or against
one
MPSRT Corpn. v. Abdul Rahman AIR 1997
Ac c ide nt o c c urre d and 4 ye ar o ld boy die d due to the
negligence of the corporation bus driver and motor bike
Composite negligence- No question of apportionment of
liability
Both owners- jointly and severally liable
Diff b/w Independent Tortfeasors and Joint Tortfeasors:-
Independent tortfeasors- Same damage by independent wrongful acts
Thompson v. London County Council (1899) 1 QB 840
A damaged plaintiff’s house by negligent excavation(digging)
In the meantime, B damaged the house by leaving water main
insufficiently closed
A and B are independent tortfeasors and liable to plaintiff
Severally liable not jointly liable
Underlying principle: Damage is one but the cause of action leading to
the damage is two
Two Principles and their modifications
First Principle
Any judgment obtained against one wrongdoer is considered to have been
released against others- merger
Brinsmead v. Harrison (1871) 2 R 7 CP 547
Harrison and T jointly damaged the piano of Brinsmead. Brinsmead already
sued against T and obtained damages. Damages obtained against T was
not sufficient. Brinsmead brought another suit against Harrison
Lord Blackburn J- No further proceedings can be taken.
Principle- Finality of litigation- interest republicae ut sit f inus litium- In the
interest of state, law suit should not be protracted.
Second Principle
No person liable in fraud/ willful wrongdoing could recover
contribution from co-tortfeasor
Merryweather v. Nixon 1799 TR 88
X and Y jointly damaged Starkey’s mill
Starkey sued them jointly and got judgment for 840 pounds
Execution was against X for 840 pounds
X sued Y for 420 pounds. No contribution can be obtained
These principles abolished by the Law Reforms (Married Women &
Tortfeasors) Act, 1935 & the Civil Liability Contribution Act 1978
 The Act provided as follows:
(Can claim share from other tort-feasor)
1. A tort-feasor may recover contribution from any other
tort feasor whether joint or otherwise, who is liable in
respect of the same tort.
2. The amount of contribution recoverable from a tort
feasor shall be just and equitable.
3. The court may also exempt a joint tort-feasor from
liability to contribute.
Exceptions under the Act:
(Cannot claim share from other tort-feasor)
1. From an innocent person whom he had lead
into committing a tort.
2. From one for whose tort he is vicariously liable,
for instances, master and servant.