Liability for the Wrong

Committed by Other Person

 Salmond

• "In general a person is responsible only for his

own acts, but there are exceptional cases in
which the law imposes on him vicarious
responsibility for the acts of another,
however, blameless himself."
 Reasons
• Qui Facit Par Alium Facit Per Se.
‘a person who does an act through another is
deemed in law to do it himself’

• Respondent Superior
master is capable of meeting the liability
 Modern approach
• Expediency and Public Policy
• Imperial chemical Industrial ltd. Vs Shatwells,
(1964) 2 All ER 999
• Lord Pears
Social convenience and justice.
Master employs servant for his own benefit,
then is liable against whole of the world for
the torts committed by his servants.
 Modes of Vicarious Liability

• Liability by ratification

• Liability by relation

• Liability by abetment
 Liability by ratification
• ‘omnio ratihabitio retrorahitur et mandato
priori oequiparatur’

Every ratification of an act relates back and

thereupon becomes equivalent to a previous
request.
 Things must be proved
1. Ratification must be express
2. Person giving ratification must have full
knowledge
3. Only lawful acts cab be ratified.
4. Act done on behalf of a particular person,
can only be ratified by him.
Liability by abetment
 Liability by relation

1. Relationship of master – servant should exist

between parties
2. Tort is committed by the servant in the course of
his employment.

Important Questions
• Was a tort feasor a servant?
• Was the employee acting in the course of
employment when the tort was committed?
 Who is servant?
The control test:
CONTRACT OF SERVICE
• Short Vs J. & W. Henderson ltd, (1946) 62 TLR
427 (HL)
a. Power of master to select his servant
b. Power to wages and remunerations.
c. Master’s right to control in the method of doing
the work by the servant.
d. Master’s right to suspend and dismiss his
servant.
• Control test is essential but not conclusive
test.
• In case of skilled and professional workers,
control test cannot be applied.
 The Economic Reality Test/ The
Fourfold Test
• Montreal vs Montreal locomotive works ltd,
(1964) 1 DLR 161
Lord wright :
1. Control
2. Ownership of tools
3. Chance of profit
4. Risk of loss
 The Organization Test
• Armstrong v. Mac’s Milk Ltd. (1975), 7 O.R.
(2d) 478.
This focuses on the relationship of the provider
of services to the business itself. The test
considers whether the services provided are an
integral part of the business or is adjunct or
accessory to the normal activities of the
employer.
 Market Investigations vs Minister of
Social Security, (1968) 3 All ER 732
1. Whether the man performing the services
provides his own equipment?
2. Whether the person hires his own helpers?
3. What degree of financial risk he takes?
4. What degree of responsibility for investment
and management he has?
5. Whether he has any opportunity of profit?
 Servant and Independent contractor

Servant - Contract of service

Independent contractor - Contract for service.
• Devinder Singh vs Mangal Singh, AIR 1981 P&H
53
Devinder gave his truck for repair to a workshop.
While driving the truck, owner of workshop, hit a
bicycle driver and injured mangal singh.
 Exceptions
1. When employer reserves right of control with himself.
2. Independent contract is incompetent contractor
3. When independent contractor is employed to do an
unlawful act.
4. When activity carried on by independent contractor is
extra-hazardous.
5. It is cases of danger on public way
6. If the injury is caused to the plaintiff by the nuisance of
the independent contractor
7. Tort has been committed in violations of common law
duties granted to employer only.
 Principle - Agents
• Llyod vs Grace smith & co. (1912) AC 716.
• SBI vs Shyama Devi, AIR 1978 SC 1263
• Omrod Vs Crossville Motor Service Ltd. (1953)
2 All ER 753
 Partners
• Partners of the firm are ruled by the law of
agency, thus the relation inter se partners are
that of a principal and agent.
• Section 26 of Partnership Act
 Hospital cases
• Collins vs Hertfordshire, CC (1947) 1 All ER 633
• Santa Garg vs Director National Heart
Institute,(2004) 8 SCC 56
• Hospital authority is liable for the negligence of
professionals employed by the authority under
contract for service as well as contract of service.
• Consumer court cannot dismiss the petition on
the ground that Doctors responsible for
negligence were not joined
 Sabagmal jain vs state of
rajasthan,AIR 2006 Raj 66
• Petitioner got his pregnant wife admitted to
the government hospital who gave birth to
twins but excessive bleeding after delivery
could not be controlled on account of
negligence of the doctors since they delayed
attending the wife of the petitioner.
• The court held that the state government was
vicariously liable for negligent act of the
concerned doctors.
 Lending a servant to another

Mersey docks & Harbour Board vs Coggins Ltd.,

(1946) 2 All ER 345
Stevedores hired the crane and driver for
loading work from harbour Board. The
stevedores controlled the crane’s operations,
but did not direct how the driver controlled the
crane. During work, a worker was injured by a
negligently driven crane.
Who is master of driver?
• General employer continues to be the master
• Burden is on general employer to prove
otherwise
• Burden – entire and absolute control to hirer
• Consent of servant is required, either express
or implied
• Who is entitled to give the orders as to how
the work should be done.
• Smt. Kundan kaur vs Shankar singh (AIR 1966
Pun. 394)
• Century insurance co. NI Road Transport
Board, (1942) AC 509
 Course of employment
• A master vicariously liable for the act of
servant acting in the course of employment.
• A employee is said to have acted in the
course of employment in the following cases:
1. When he does an act authorized by the
employer.
2. When he does an authorized act in wrongful
manner.
 ‘Close connection test’
• When unauthorized act is so incidental to the authorized
act.
Barwick vs English Joint Stock Bank (1867) LR 2
• National Insurance Co. Kanpur Vs Yogendra Nath, AIR 1982
All 385
• McLean vs Raynor Brothers Ltd. (1942) 2 All ER 591
• Century insurance co. vs Northern Ireland Road Transport
Board, 1942 AC 509
• London Country Council Vs Catternoles Garage Ltd. (1953)
2 All ER 582
• Canadian Pacific Railway Co. vs Leonard Lockhart, 1942 AC
591
Fraud of servant
• Llyod vs Grace smith & co. (1912) AC 716.
• SBI vs Shyama Devi, AIR 1978 SC 1263
Theft by servant
• Morris vs C.W. Martin & Sons Ltd.
• Roop lal vs UOI, AIR 1972 J & K 22
Mistake by servant
 Negligent delegation of authority by
the servant
• Beard vs London General omnibus Co. (1900)
2 QB 530
• Ricketts vs Thomas Tilling Ltd. (1915) 1 KB 644
 Sitaram Motilal kalal vs Santanuprasad
Jaishankar Bhatt, (1966) ACJ 89 (SC)
The owner of a vehicle entrusted it to A for plying
as a taxi. A drove the taxi, collected the fares, met
the expenditure and handed the balance with
accounts to the owner. B who used to clean the taxi
was either employed by the owner or on his behalf
by A. Presumably because A wanted another to
assist him in driving the taxi he trained B to drive
the vehicle and took B for obtaining a licensed for
driving. While taking the test B caused bodily injury
to the respondent. At the time of the accident, A
was not present in the vehicle.
Q. Whether the owner is liable?