Short Essay on Vicarious Liability – Vicarious liability is an exception to the general rule, where liability arises not because of one’s fault but of others. This principle is based on the maxim that does an act through another, is deemed in law, to do it himself.
It is therefore a principal vicariously liable for the tort of his agent, committed within the course of his authority. In this case, the liability is joint and several.
Similar is the case in master and servant relationship, where the liability of the former arises for the tort commixed by the latter. The liability in this case is based on the maxim “respondent superior”, which means let the superior be responsible.
ADVERTISEMENTS:
Thus, a master is vicariously liable for the tort committed by his servant only if the same is committed in the course of employment.
The test for relationship of master and servant is that of control, which can be ascertained from the fact that whether a person is employed under a “contact of service” as distinguished from “contract for service”.
I under the “contract of service” a master have the control over the servant by ordering or requiring him, what is to be done and how it shall be done. If a master can control a man by ordering him “what is to be done and how it has to be done” then it is said that the man is a servant, otherwise he is not.
Image Source: smallbiztrends.com
ADVERTISEMENTS:
So far as the nature of work is concerned the test is good even today but the second test regarding the manner, in which work is to be done” is no longer viable in respect of professional men like doctors, surgeons or persons having particular skill and experience like the master of a ship, or the captain of an aircraft, because the master cannot order them as to how the work is to be done.
It has, therefore, now been recognised that the absence of such control “how it shall be done” is not conclusive against the existence of a “contract of service”.