Vicarious Liability in Torts

In tort law, liability typically arises when someone commits a wrongful act. However, there is an exception to this rule known as vicarious liability. Vicarious liability refers to the liability imposed on an individual or entity for the acts committed by another person, even if they did not commit the act. 

This concept arises in situations where there is a master-servant relationship or a principal-agent relationship.

Liability in Tort

When a person commits a wrongful act, they are held liable for their actions. For example, if person A negligently drives their car into person B and breaks their leg, person A can compensate person B for their injuries.

Exception to the Rule: Vicarious Liability

Vicarious liability is an exception to the general rule of liability. It holds individuals or entities accountable for the acts of their servants or agents, even if they did not commit the wrongful act. This means a person can be held liable for the actions of another person they have authorised or caused to perform specific tasks.

When Does Vicarious Liability Arise?

Vicarious liability arises in two situations: when a tort is committed by a servant (in the master-servant relationship) or when a tort is committed by an agent (in the principal-agent relationship). Let’s explore these situations in more detail.

Vicarious Liability in the Master-Servant Relationship

To establish vicarious liability in the master-servant relationship, two essential requirements must be met:

(a) Tort Committed by a Servant

The wrongful act must be committed by a person who is considered a servant. A servant refers to an individual who is employed by another to do work under the direction and control of that person. In this relationship, the master (employer) has authority and control over the servant’s (employee’s actions.

(b) Tort Committed in the Course of Employment

The servant must commit the tort during their employment. This means that the wrongful act must occur while the servant is carrying out their duties or responsibilities on behalf of the master. If the act is unrelated to the employment or falls outside the scope of the servant’s authorised tasks, vicarious liability may not apply.

Vicarious Liability in the Principal-Agent Relationship

In the principal-agent relationship, the concept of vicarious liability is based on the authority granted by the principal to the agent. An agent is a representative who acts on behalf of another person, the principal. Every act of the agent is legally viewed as the principal’s act.

Key Requirements of Vicarious Liability:

To establish vicarious liability, the following requirements must be met:

(a) Tort Committed by an Agent

The wrongful act must be committed by a person who is acting as an agent. The principal can appoint an agent to perform specific tasks or act on their behalf—for example, an insurance agent or a car salesman.

(b) Tort Committed in the Course of Agency

The agent must commit the tort within the scope of their agency. This means that the wrongful act must occur while the agent is carrying out their authorised duties or acting within the scope of their authority on behalf of the principal. If the act is unrelated to the agency or goes beyond the agent’s authority, vicarious liability may not apply.

Tests for Determining the Master-Servant or Principal-Agent Relationship

To determine whether a master-servant or principal-agent relationship exists, several tests are used:

The Hire and Fire Test

This test examines the employment relationship between the master and the servant. It focuses on whether the employer has the power to hire and fire the individual. If the employer is the paymaster and has the authority to dismiss the employee, it indicates an employment relationship.

The Direction and Control Test

This test assesses the level of control and direction exercised by the master or principal over the servant or agent. It examines whether the master or principal has the right to give binding orders regarding what the person should do and how they should do it. Direction and control over the individual’s work indicate an employment or agency relationship.

Extent of Liability in Vicarious Liability Cases

In cases of vicarious liability, the person or entity held liable is responsible for the actions of the servant or agent. They may be required to compensate the injured party for the harm caused by the wrongful act, even if they did not directly commit the act themselves.

However, it is important to note that certain defences may be available in vicarious liability cases. For example, if the injured party’s negligence contributed to the harm, the damages awarded may be reduced or limited.

Tricky Area: Mutual Agency in Partnership and Independent Contractors

In the context of vicarious liability, there are two specific areas that can be considered tricky: mutual agency in partnership and the classification of independent contractors. Let’s explore these concepts further.

Mutual Agency in Partnership

In a partnership firm, all partners are deemed to be agents of each other, and there exists a concept called mutual agency. This means that each partner has the authority to act on behalf of the partnership and bind the partnership to legal obligations. As a result, the actions of one partner can potentially impose liability on the other partners.

For example, suppose one partner enters into a contract or commits a wrongful act within the scope of the partnership’s business. In that case, the other partners may be held vicariously liable for that partner’s actions. This is because the partners are considered agents of the partnership and have the authority to bind the partnership in their dealings.

Independent Contractors

Unlike employees or servants, independent contractors are individuals or entities who perform services for others but are not considered employees. They work independently and have more control over how they carry out their work.

Independent contractors are generally not subject to vicarious liability. Since they are not employees or agents, their actions are their own responsibility, and their clients or employers are not typically held vicariously liable for any wrongful acts they may commit.

For instance, if a taxi driver, electrician, or plumber is considered an independent contractor, they are not considered to be working for any particular person or entity. Therefore, their clients or customers would not be vicariously liable for any negligent or wrongful actions on their part.

It is important to carefully evaluate the relationship between the parties involved to determine whether an individual is an employee, agent, or independent contractor. Factors such as the level of control, supervision, and direction exercised over the individual’s work and the terms of the contractual arrangement can help determine their classification.

Examples

Example 1: Employer Liability for Employee’s Negligence

A delivery driver employed by a logistics company negligently runs a red light and collides with another vehicle, causing injuries to the occupants. Even though the driver was at fault, the injured parties can bring a claim against both the driver and the logistics company. The company can be held vicariously liable for the driver’s actions because the driver was acting within the scope of their employment at the time of the accident.

Example 2: Principal Liability for Agent’s Actions

A real estate agent, acting on behalf of a property owner, misrepresents the condition of a house to a potential buyer. The buyer later discovers significant structural issues that were not disclosed. In this case, the buyer can hold both the agent and the property owner vicariously liable for the misrepresentation. The property owner can be held accountable for the agent’s actions because the agent was acting as their representative within the scope of their agency.

Example 3: Hospital Liability for Doctor’s Negligence

A surgeon employed by a hospital performs a procedure on a patient but makes a critical error during the operation, resulting in severe complications and further medical treatment. The patient can file a claim against both the surgeon and the hospital. The hospital can be held vicariously liable for the surgeon’s negligence because the surgeon was an employee acting within the course of their employment at the hospital.

Summary

Vicarious liability is an exception to the general rule of liability in tort law. It holds individuals or entities accountable for their servant’s or agents’ acts, even if they did not commit the wrongful act. Vicarious liability arises in situations where there is a master-servant relationship or a principal-agent relationship.

In the master-servant relationship, a person can be held liable for the actions of their servant if the wrongful act was committed in the course of employment. Similarly, in the principal-agent relationship, a person can be held liable for the acts of their agent if the wrongful act was committed within the scope of the agency.

To establish vicarious liability, it is important to determine the existence of a master-servant or principal-agent relationship. Various tests, such as the hire and fire test and the direction and control test, are used to determine the nature of the relationship.