Law of Torts
Vicarious Liability: Meaning, Basis, the Two Maxims, and the Master and Servant Relationship
Vicarious liability is the liability of one person for a tort committed by another. It is liability without personal fault: the master has done nothing wrong, and answers because of his relationship to the person who did. It is not itself a tort, and it creates no new wrong. It fixes an additional defendant upon a wrong already committed by somebody else, and it leaves that person liable too. Three things must be shown: a relationship of the right kind, a tort committed by the servant, and that the tort was committed in the course of the employment. The first is the subject of this note; the third is the subject of the next.
The two maxims, the reasons for the rule, the three requirements, and the right of indemnity
1. The Two Maxims
The maxim | What it means, and what it explains |
Qui facit per alium facit per se | He who acts through another acts himself. The older and narrower idea. The master is treated as having done what he authorised another to do. It explains authorised acts perfectly well and explains unauthorised ones very badly, since a master who forbade an act can hardly be said to have done it |
Respondeat superior | Let the superior answer. The wider and modern idea. The master answers because he set the enterprise in motion, directs it and takes its profits. It explains why he answers even for what he expressly forbade, as in Limpus v. London General Omnibus |
2. Why the Law Imposes It
- Because the master set the enterprise in motion and takes its profit. The losses the enterprise causes are as much a cost of it as the wages it pays, and there is no reason why they should fall on the person injured rather than on the person who benefits.
- Because he chose the servant and controls him. The master is the person best placed to select carefully, to train, to supervise and to devise a safer system, and liability gives him the incentive to do so.
- Because he is the more likely to be solvent and insured. A judgment against a servant is frequently a judgment against a man of straw, and a rule that left the plaintiff with only that remedy would in practice leave him with none.
- Because the loss is then spread. The cost is absorbed into the price of the undertaking's goods or services and distributed across many, instead of falling catastrophically on one injured person.
- Deterrence and loss distribution, not moral blame, are the true foundations. Nobody suggests that the master deserves to pay; the argument is that it is socially preferable that he should.
3. The Three Requirements
The requirement | What it means |
A relationship of the right kind | Master and servant, or a relationship akin to employment. Employer and employee is the paradigm. Principal and agent, and partners among themselves, are the others. A true independent contractor falls outside it |
A tort committed by the servant | The servant must himself have committed a tort. If he has a complete defence, so has the master, because there is no liability to transfer |
Committed in the course of the employment | The tort must be sufficiently connected with what the servant was employed to do. This is the battleground, and it is the subject of TORT 048 |
- The liability is joint and several. The plaintiff may sue the servant, or the master, or both, and may recover the whole of his damages from either.
- It does not require that the servant be identified by name, so long as it is established that the wrong was committed by somebody for whom the defendant is responsible.
- It is not affected by the master's own care. That he selected the servant with diligence, trained him, supervised him and forbade the very act complained of is no defence at all, though it may defeat a separate claim in the master's own negligence.
4. The Master and Servant Relationship
- A servant is a person employed by another to do work for him on the terms that he is subject to the control and direction of that other in the manner of doing it.
- The relationship arises from a contract of service, express or implied, and that contract is distinguished from a contract for services, which produces an independent contractor. The distinction is examined in TORT 049.
- A servant may be lent or hired out, and the question then is who had the right to control the manner of the work at the moment of the wrong. The burden of showing that the general employer transferred that control lies on him, and it is a heavy one.
- A person may be the servant of two masters at once for the purposes of a single act, in which case both may be liable, and the loss is apportioned between them.
- An unpaid volunteer may be a servant for this purpose, since it is the right of control and not the payment of wages that matters.
- A servant employed under an unlawful or irregular appointment is still a servant in fact, and the master does not escape by pointing to an irregularity in the engagement.
5. What Vicarious Liability Is Not
Vicarious liability | The other thing | |
Against the employer's own negligence | No fault in the employer is required or alleged. The fault is the servant's | Negligent hiring, supervision or retention alleges a fault in the employer himself, and needs no course of employment at all |
Against a non delegable duty | Another person's tort is attributed to the employer | The duty is the employer's own, broken by him though performed through another. Engaging a competent contractor is no defence |
Against strict liability | Fault is required, but it is the servant's fault, and the master answers because of the relationship | No fault is required of anybody. Liability attaches to the activity itself, as under Rylands v. Fletcher |
Against joint tortfeasorship | The master commits no wrong and is liable for the servant's | Joint tortfeasors each commit the wrong, in furtherance of a common design |
6. The Master's Right of Indemnity
- In principle a master who has been made to pay may recover from the servant, whose wrong it was, either under an implied term of the contract of service or as a contribution between tortfeasors.
- In practice the right is rarely exercised. The servant is seldom worth suing, employers are unwilling to pursue their own staff, insurers who have paid the claim have little to gain, and industrial relations discourage it.
- So the loss stays where the law placed it, on the employer and through him on the undertaking, which is what the loss distribution rationale intends.
- Where the State is the employer, the position is the same. In D.K. Basu v. State of West Bengal, (1997) 1 SCC 416, the Supreme Court said expressly that the State which pays compensation has a right of indemnity against the wrongdoer.
⚠ A common confusion worth removing Vicarious liability is regularly described as an example of liability without fault, and the description is accurate but incomplete in a way that misleads. Fault is very much required: without a tort by the servant there is nothing for the master to answer for, and a servant who was not negligent leaves a master who is not liable. What is dispensed with is fault in the defendant. That is why the doctrine sits differently from strict liability, under which nobody need be at fault at all. It also explains a practical consequence that is easily missed: any defence available to the servant is available to the master. If the servant was acting in private defence, or under statutory authority, or with the plaintiff's consent, the master takes the benefit of it, because there is no tort to be transferred. |
7. The Position Stated Shortly
1. Vicarious liability is the liability of one person for a tort committed by another, imposed because of the relationship between them.
2. It is not a tort and creates no new wrong; it adds a defendant to an existing one, and the wrongdoer remains liable.
3. Qui facit per alium facit per se explains authorised acts; respondeat superior explains why the master answers even for what he forbade.
4. The reasons are that the master takes the profit, controls the servant, is likely to be solvent and insured, and can spread the loss.
5. Three things must be shown: a relationship of the right kind, a tort by the servant, and that it was committed in the course of employment.
6. The liability is joint and several, and the plaintiff may recover the whole of his damages from either the master or the servant.
7. A servant is one who works under a contract of service, subject to the control and direction of the master in the manner of the work.
8. A servant may be lent, and the question is then who had the right of control at the moment of the wrong; the burden of showing a transfer is heavy.
9. That the master was careful in selection and supervision, or forbade the act, is no defence to vicarious liability.
10. The master has in principle a right of indemnity against the servant, which is almost never exercised.