- Vicarious liability is a form of strict, secondary liability that arises under the common law doctrine of agency – respondeat superior – the responsibility of the superior for the acts of their subordinate, or, in a broader sense, the responsibility of any third party that had the "right, ability or duty to control" the activities of a violator. The liability is placed, not on the tortfeasor, but rather on someone who is supposed to have control over the tortfeasor.
- The most common form of vicarious liability that we come across is the liability arising out of a ‘Master – Servant’ relationship. This is sometimes referred to as the doctrine of "RESPONDEAT SUPERIOR" (in which the MASTER - the archaic term for an employer - must respond to the torts of its SERVANTS - the archaic term for employees)1. The principle says that a master is jointly and severally liable for any tort committed by his servant while acting in the course of his employment. As Lord Brougham said: “The reason that I am liable is this, that by employing him I set a whole thing in motion; and what he does, is done for my benefit and under my direction, I am responsible for the consequences of doing it. This implies that the liability for the injured party’s loss is properly shifted to the person or entity whose enterprise was benefited by the relationship and created the occasion for the wrongdoer’s act or omission.
- When a servant commits a tort in the course of his employment, the master is very often guilty of what German lawyers call “Culpa in eligendo” or “Culpa in inspiciendo” In order that the doctrine of vicarious liability may apply, the conditions that need to be fulfilled are that firstly, the relationship of master and servant must exist between the defendant and the person committing the wrong complained of. Secondly, the servant must in committing the wrong have been acting in the course of his employment.
- Under the English Common Law, the maxim was "The King can do no wrong" and therefore, the King was not liable for the wrongs of his servants. But, in England, the position of the old Common law maxim has been changed by the Crown Proceedings Act, 1947. Earlier, the King could not be sued in tort either for wrong actually authorized by it or committed by its servants, in the course of their employment. With the increasing functions of the State, the Crown Proceedings Act had been passed, now the Crown is liable for a tort committed by its servants just like a private individual. Similarly, in America, the Federal Torts Claims Act, 1946 provides the principles, which substantially decide the question of liability of the State.
- In ancient India, under the Hindu jurisprudence, it was an undisputed principle that no one is exempted from the operation of law. This liability to equal punishment extended even to the king, a relative of the king, a judge, or an ordinary citizen. The rule of law was considered supreme and binding on everyone alike. The important functions of the king were concerned with the protection of people, punishment of crimes, and maintenance of dharma or social order.
- In medieval Indian history, the personal liability of officers for their wrongs was more vogues with pieces of evidence showing equality between the ruler and the ruled subject. Only when the king considered it proper to undertake the burden of a public officer, it was then the state treasury used to pay the compensation. Dharma was considered the administrative law binding the king as well as the subjects. Both in Hindu law and Muslim law, the rulers themselves administered justice as far as possible and the rest was done by the exceptionally learned and honest judges. The most significant recent trend has been an assertion on the part of the court that it has the power to grant compensation. The principle of personal liability of public servants for wrongs done to citizens is already a part of Indian law based on English case laws.
- Presently State liability in India is defined by Article 300(1) of the Constitution which originated from Section 176 of the Government of India Act, 1935. This could be traced back to Section 32 of the Government of India Act, 1915, the genesis of which can be found in Section 65 of the Government of India Act, 1858. It will thus be seen that by the chain of enactment beginning with the Act of 1858, the Government of India and the Government of each State are in the line of succession of the East India Company. In other words, the liability of the Government is the same as that of the East India Company before, 1858.
Sovereign and Nonsovereign function
Union of India was driven in the exercise of sovereign function so the state is immune from liability. The state is not liable for the acts of its servants when such acts are committed without the authority of law. They should be held liable for the improper exercise or abuse of discretion.
Sovereign Functions (State Not Liable)
Those actions from the state for which it is not answerable before a court of law. e.g. defense of a country, raising and maintaining armed forces, making peace in retaining territory, taxation, police function including maintenance of law and order, legislative functions, etc.
- Performance of statutory duty
- Maintenance of public path
- Maintenance of military road
- Training for defense
- Commandeering goods during the war
- Arrest and detention
- Maintenance of national highways
- Keeping stole and goods in public Malkhana
- Collection of revenue
Non-Sovereign Functions (State Liable)
- An accident was caused by a driver of a PWD while carrying materials for building a road bridge.
- Doctor in a govt. hospital performing sterilization operation of a lady patient left a mob inside her abdomen.
- Taking ailing children to a primary health center is not a sovereign function
- Famine relief
- Negligence is the breach of a duty caused by the omission to do something which a reasonable man would do or doing something which a prudent and reasonable man would not do.
- In another sense negligence is a legal duty to exercise due care on the part of the party complained of towards the party complaining about the former’s conduct within the scope of the duty, breach of the said duty, and consequential damage. In tort, it is the number of damages incurred that is determinative of the extent of liability in tort but in criminal law, it is not the number of damages but the amount and degree of the negligence that is determinative of liability.
Negligence has two meanings in the law of torts
- Negligence is a mode of committing certain torts, e.g. negligently or carelessly committing a trespass, nuisance, or defamation
- In another sense, it means conduct that creates a risk of causing damage rather than a state of mind.
Essentials of Negligence
Elements of negligence
- That the defendant owed a duty of care to the plaintiff
- The defendant made a breach of that duty
- The plaintiff suffered damage as a consequence thereof. Whether the defendant owes a duty to the plaintiff or not depends on the reasonable foreseeability of the injury to the plaintiff.
- If at the time of the act or omission, the defendant could reasonably foresee injury to the plaintiff, he owes a duty to prevent that injury, and failure to do that makes him liable. The duty of care means a legal duty rather than a mere mortal, religious or social duty.
For example in a leading case: A purchased a bottle of ginger beer from a retailer for his lady friend. Some of the contents were poured into a tumbler and she consumed the same. When the remaining contents of the bottle were poured into her Tumblr, the decomposed body of a snail floated out with her ginger beer. An action against the manufacturer for damage was brought by the lady. It was held that the manufacturer owed her a duty to take care that the bottle did not contain any noxious matter and that he would be liable for the breach of the duty.
Example: The defendants were the committee and members of a cricket club. A batsman hit a ball and the ball went over a fence seven feet high and seventeen feet above the cricket pitch & injured the plaintiff on the adjoining highway. The cricket from which the ball was hit was about 78 yards from the fence and 100 yards away from the plaintiff. The ground had been used for about 90 yrs & during the last 30 years, the ball had been hit on the highway on about six occasions but no one had been injured. It was held that the defendants were not liable because the chance of a person ever being struck even in a long period of years was very small.
Rules of strict and absolute liability
- There are situations when a person may be liable for some harm even though he is not negligent in causing the same or there is no intention to cause her harm or sometimes he may even have made some positive efforts to avert the same. In other words, sometimes her law recognizes no-fault liability or rules of strict liability, or her rule of absolute liability.
- According to the rule, if a person brings on his land and keeps here any dangerous thing i.e. a thing which is likely to do mischief if it escapes even though he had not been negligent in keeping it here. (held in the Rylands is Fletcher care)
Trespass to Land
- Trespass to land means interference with the possession of land without lawful justification.
- Trespass could be committed either by a person himself entering the land of another person or doing the same through the same material object
Example: Throwing stones on another person's land, driving nails into the wall.
- Allowing cattle to stray on another person's land is also trespass.
- If a person, who is allowed to sit in a drawing-room enters the bedroom without any justification, the entry into the bedroom is a trespass.
- When the occupiers of land acquiesce to infrequent acts of trespass. The visitors there may no longer remain trespasses.
- Trespass is a wrong against possession rather than ownership therefore a person in actual possession can bring an action even though, against the true owner, his possession was wrongful.
Liability for Dangerous Premises
An occupier of premises or of other structures like cars, ships, airplanes or lifts Covers an obligation to the persons who enter those premises or structures in respect of their personal safety and the safety of their property hereof.
The occupier's obligation will be considered under the following three heads:
- Obligation towards lawful visitors
- Obligation towards trespassers
- Obligation towards children
1. Obligation towards lawful visitors
- Common law classified the lawful visitors into two categories - invitees and licensees and laid separate rules for obligations towards each one of them.
- When the occupier of the premises and the visitors had a common interest or the occupier had an interest in the visit the visitor was known as an invitee.
- When the occupier had no such interest the visitor was known as a license.
- In other words, a license is a person who enters the premises with the express or implied in case of invitee the occupiers is supposed to take reasonable care to prevent any damage to the invitee from an unusual danger to his premises which he knew or ought to have known.
For example: A, who was a gas filter, entered B's premises for testing certain gas fittings there. While doing so he fell from an unfenced opening on the upper floor and was injured. A, being an invitee on those premises B was held liable for the inquiry caused to him.
In the case of a licensee, She owes a duty to give due warning of any latent defect or canceled danger in her premises of which he was aware. He would have no liability for her caused by dangers not known to him.
For example: A went to stay with her sister in a building entered by B and let out to her sister's husband. The defendants were in possession of her common staircase. Owing to the meaning way of the cement; there was a depression in one of the stairs, and the plaintiffs' heel was caught in the depression. She fell from there and got injured. In an action against the defendant, it was held that the plaintiff her only for a canceled danger. In this case, her injury to her plaintiff was due to the danger which was obvious and could have been observed here, her defendants could not be made liable for her same.
2. Obligation towards trespasses
An occupier is not supposed to make his premises quite safe for the trespasses. At the same time the occupier cannot be permitted to deliberately cause harm to him, nor can he be permitted to engage in some dangerous activity in reckless disregard for the presence of the trespasses on his premises.
For example: If a burglar gets injured by falling from my unrepaired stairs. I would not be liable towards him. However, if I throw stones at him or if a recklessly disregarded the presence of a beggar on my premises and shoot and injure the beggar, I would be liable. I can take reasonable steps to guard my premises against burglars, such as by the use of spikes or broken pieces of glass on the top of the wall but the use of a trap or spring guns would be actionable.
In a leading case
- The defendant laid some live electric wire on his land without any visible warning. The plaintiff was passing through that land at 10 p.m. to reach the land under his own cultivation. Could not observe the wire, as there was no light in the area. He came in contact with the nine and was injured.
- It was held that it is the duty of the landowner to make it known if he has to lay a live wire on a short offense and as he failed to do so, he was liable for the damage caused thereby.
3. Obligation toward children
An occupier must be prepared for the children to be less careful than their adults and hence he must guard the child visitors even against such dangers from which the adults don't need any protection.
For example in a leading case: The defendants controlled a public park. A child of 7 years picked up and ate some attractive-looking perries on a shrub in the park and died because the perries were poisonous. The perries were obviously an allurement for the children but the defendants had not given sufficient warning intelligible to the children of the deadly character of the perries. Here, in an action by the father of the deceased child, the defendants were held liable.
Nuisance means an unlawful interference with a person's use or enjoyment of land. It includes interference with the comfort, health, and safety of the other.
Nuisance is of two types
- Public Nuisance
- Private Nuisance
1. Public nuisance is interference with the right of the public in general and is punishable as an offense.
For example: Obstructing a public way by digging a trench or constructing a structure on it are examples of public nuisance.
A public nuisance also becomes a private nuisance so far as the person suffering special damage is concerned. Special damage in this context means damage caused to a party in contradiction to the public at large.
For example, The defendant created a brick grinding machine adjoining the premises of the plaintiff, who was a medical practitioner. The brick grinding machine-generated dust which polluted the atmosphere. The dust entered the consulting chamber of the plaintiff and caused physical inconvenience to him. It was held that special damages to the plaintiff had been proved and a permanent injunction was issued against the defendant restraining him from running his brick grinding machine there.
2. Private nuisance is a civil wrong or tort.
The essentials of a tort of nuisance are:
- unreasonable interference
- interference with the use or enjoyment of land or personal discomfort
Example: Gur Prasad and another filed a suit against Radhey Shyam and others for a permanent injunction to restrain them from installing and running a flour mill on their premises. It was alleged that the said mill would cause a nuisance to the plaintiffs, who were occupying the first-floor portion of the same premises inasmuch as the plaintiffs would base their peace an account of ratting noise of the flour mill and hereby their health would also be adversely affected. It was held that substantial addition to the noise in a noisy locality by the running of the impugned machines, serious interference with the physical comfort of the plaintiffs, and as such it amounted to a nuisance.
It some noises which don't disturb or among an ordinary person but disturb only the plaintiff in his work or sleep due to his over sensitiveness, it is no nuisance against the plaintiff.
Nuisance is generally a confirming wrong. A constant noise, smell, or vibration is a nuisance.
- Defamation means an attack on a person's reputation.
- It tends to lower the image of a person in society.
- Defamation consists of both libel and slander. Libel is a defamatory statement in a permanent form, for example, by written words, pictures, cinema film, etc. Slander is the publication of a defamatory statement in a transient form such as spoken words or gestures. In Indian law, defamations are both a root as well as a crime.
To constitute a tort of defamation following are the essential elements:
- The words spoken or written must be defamatory i.e. which tends to lower a person in the estimation of right-thinking members of the society.
- The defamatory words or statements should directly or indirectly refer to the person defamed.
- The statement must be published by a medium. Publication means making the defamatory matter known to some person other than the plaintiffs.
Therefore if a person abuses another person in private it may not be defamation but if a third person is standing by, the same words will constitute to be defamatory words.
Further, a defamatory statement may be a direct statement prima facie defamatory or it may be an innuendo. Innuendo is those words that appear innocent but contain some secondary or latent or hidden meaning which is defamatory. The essence of defamation is an injury to a person's character or repudiation.
For example: In a leading case - There was a publication of a statement in a local daily in Jodhpur on 18.12.77 that Manjulata went out of her house and the earlier night at 11 p.m. on the pretext of attending night classes and ran away with a boy named Kamlesh. She belonged to a well-educated family and was herself also a student in B.A. class. She was 17 years of age. The news item was untrue and had been published with utter irresponsibility and without any justification. Such publication had resulted in her being ridiculed and affected her marriage prospects. The statement is defamatory. The defendants were held liable.
Defamation of a class of persons
When the words refer to a group of individuals or a class of persons, no member of that group or class can sue under he can prove that the words could reasonably be considered to be referring to him. Thus, if a man wrote that all lawyers were thieves, no particular lawyer could sue him under there was something to point to her particular individual.
For example in a leading case: The appellant was a member of a party, the membership of which was about two thousand, out of which twenty-four members including the plaintiff were in England, The respondents published a statement of the party as a whole. Some of the appellant's friends considered the article to be referring to him. It was, however, held that since the article referred to such a big class, most of the members of which were resident abroad, it could not reasonably be considered to be referring to the appellant and the respondents were not liable.
Defenses to defamation
The defenses to an action for defamation are
- Justification or truth
- Fair comment
- Privilege, which may be either absolute or qualified
In a civil action for defamation, the truth of the defamatory matter is a complete defense. The defense is available even though the publication is made maliciously. If the statement is substantially true but incorrect in respect of certain minor particulars, the defense will still be available.
Example: In a leading English case - the plaintiff had been sentenced to a fine of pond 1 or 14 days imprisonment in the alternative, for traveling on a train without an appropriate ticket. The defendants published a notice stating that the plaintiff had been sentenced to a fine of pond 1 or three weeks imprisonment in the alternative. Held, the defendants were not liable, the statement being substantially accurate.
Making a fair comment on matters of public interest is a defense to an action for
defamation. Whether a statement is a fact or a comment, depends on the language used or the context in which that is stated.
Example: A says of a book published by Z - 'Z's book is foolish, Z's book is indecent, Z must be a man of impure mind.' There are only comments based on Z's book and A will be protected if he has said that in good faith. But if A says - " I am not surprised that Z's book is foolish and indecent, he is a weak man & libertine." It is not a comment on Z's book but is rather a statement of fact and the defense of fair comment cannot be pleaded in such a case.
- There are certain occasions when the law recognizes that the right of free speech outweighs the plaintiff's right to reputation: the law treats such occasions to be privileged and a defamatory statement made on such occasions is not actionable.
- Privilege is of two kinds: absolute privilege and qualified privilege.
- Parliamentary proceedings, Judicial proceedings, and state communications, (where a statement made by one officer of the state to another in the course of official duty is absolutely privileged) are examples of absolute privilege whereas in case of qualified privilege, it is available either when the statement is made in discharge of a duty or protection of interest or the publication is in the form of the report of parliamentary, judicial or other public proceedings.
- Ashby v. White (Injuria sine damno)
Injuria sine damno is a breach of a legal right that does not cause the plaintiff any pain, loss, or damage, and whenever a legal right is violated, the person who owns the right has the right to sue. Every person has an absolute right to his or her property, personal immunity, and liberty, and any infringement of this right is actionable in and of itself. A person who has had a legal right infringed on has a cause of action, and even deliberately infringing on a legal right gives rise to a cause of action. The legislation also allows a person who is threatened with infringement of a legal right to file a complaint under the terms of the Specific Relief Act under Declaration and Injunction, even though the injury has not yet occurred.
For instance, if a person is illegally detained against his will, he may be entitled to large damages for wrongful imprisonment, even if no consequential harm results from the confinement.
- Gloucester Grammar School Case
The defendant was a school teacher in a school named Gloucester Grammar School. The defendant for some reason decided to quit his job as a teacher and he decided to open up a new school just adjacent to his previous employer’s school i.e. in the vicinity of Gloucester Grammar School. The defendant further reduced his new school’s fee to 12 pence as against the 40 pence that were being charged by his previous school. Since he was also quite famous with his students at the previous school and the new school’s fee was less than half of the previous school, many students left the previous school and joined the new school. This resulted in pecuniary losses to the previous school ( Gloucester Grammar School )
The petitioner i.e. the owner of the Gloucester Grammar School decided to bring a suit for recovery of damages against the defendant alleging that the above-mentioned act of opening up a new school in the vicinity of his existing school caused him financial losses and that he should be compensated for the damages caused.
- Bhim Singh vs State of J & K
Mr. Bhim Singh an MLA of Jammu and Kashmir was arrested and detained in police custody and was deliberately prevented from attending the sessions of the legislative assembly to be held on 11th September 1985. He was arrested on an intervening night between 9th and 10th September 1985 by the station house officer of Quiz Kunda police station, on the allegation that a case under section 153A of Ranbir Penal Code was registered against him for delivering an inflammatory/seditious speech at the public meeting held near parade ground, Jammu on 8th September 1985. He has not produced before the Magistrate till 13th September. There was also a voting session at the assembly and he was not able to vote as he was not allowed to go, where his vote was very crucial but the person to whom he wanted to give the vote won but his right to vote was infringed.
On the inquiry of the Supreme Court, it was found that Mr. Bhim Singh was illegally detained by the police personnel, aided either by collision or by a casual attitude with the Magistrate, who ordered for remand without production of the arrested person before him. The Court pointed out that the Magistrate acted without any sense of responsibility or genuine concern for the personal liberty and the police arrested the imprisoned with mischievous and malicious intent and it was certainly was a gross violation of the constitutional right of the accused person under article 21 and 22(2).
- Hall vs Brooklands Auto Racing Club
The defendants were the owners of the racing tracks. The track was oval in shape and there was a grass area around it for the spectators to watch the show. There were safety stands provided on the sides of the track as well.
Two racers who were approaching the sharp left bend somehow mistakenly took the quick right, and as a result one of the cars ‘shot in the air over the curb’, killing and injuring the spectators. Since the opening of the track in 1907, there was no record of any such incident occurring before.
- Stanley vs Powell
One of the members of a shooting party accidentally shot at another member, mistaking his movement for that of an animal. The court held that the injury was an accident and the defendant was not liable to pay the compensation as the plaintiff was willfully participating in the action fully aware of the dangers involved in it.
- State Bank of India vs Shyama Devi
The respondent, Mrs. Shyama Devi, opened a savings account with the Imperial Bank of India at its Allahabad branch. The respondents gave some cash and cheque to one Kapil Deo Shukla, who was a friend of the respondent's husband and employed in the said bank, for being deposited in her account. The said payments were made to Kapil Deo Shukla in his capacity as the respondent's husband's friend. No receipt or voucher was obtained indicating the said deposit. The bank's servant, instead of making the deposits in the respondent's account, got the cheque encashed and misappropriated the amount, He, however, made false entries in the respondent's Passbook and the bank's ledgers outside the course of employment and the appellant bank could not be made liable for the fraud committed by its servant.
- Beard vs London General Omnibus Co.
The conductor of an omnibus drove the omnibus through side streets, outside of the bus route, at a fast pace in the absence of the bus driver. In doing so, he negligently hit and injured a man. The man sued for damages from the owners of the omnibus.
The issue arose as to upon whom the burden of proof lay to show whether the conductor was acting within the scope of his employment and whether, accordingly, the employer will be held liable for the injury caused to the man due to his negligent acts.
The Claimant failed to discharge the burden of proof to show that the employer of the conductor was liable for the conductor’s negligent acts. The Court held that “the onus of proof lay on the plaintiff to show that such an act was within the authority of the conductor” (p 533). The Claimant did provide sufficient evidence to show that the conductor was acting within his scope of employment. On the contrary, evidence concerning, for example, the way in which the conductor was on side streets and not on the usual bus route, shows that he was acting outside of his scope of employment. Therefore, the employer cannot be held responsible for the negligence of the conductor.
- Lloyd vs Grace Smith & Co.
Ms. Lloyds approached M/s Grace Smith & Co. to seek investment-related advice. The clerk who attended to her asked her to sell her properties and then reinvest the proceeds. Ms. Lloyd signed certain documents, which were supposed to be the sale deed. Actually, it turned out to be a gift deed in favor of the clerk. The clerk disposed of the property and misappropriated the funds. It was held that the company was liable for the fraudulent acts of the clerk.
- Limpus vs London General Omnibus
The owner of a bus had given express instructions to his driver not to overtake or race with other vehicles. The bus driver defying the instructions overtook another bus, and in the process caused an accident. However, the bus owner was held liable for the negligence caused by the driver in the course of his employment.
- The state of Rajasthan vs Vidyawati
In this case, a government vehicle, which was driven rashly and negligently by the car driver, who was an employee of the state government, knocked down the plaintiff's husband. In an action against the State of Rajasthan, the court held the state liable. On an appeal, the Supreme Court upheld the above sentence expressed by the Rajasthan High Court.
- Kasturi Lal vs the State of UP
One of the partners of a firm of jewelers had gone to Meerut, to sell gold and silver. While walking through the market with his goods, he was intercepted and arrested by the police on grounds of suspicion that he was in possession of stolen goods. He was kept in the police lock-up and his goods were kept in the police custody. In the meanwhile, Kasturilal was released but the goods could not be returned, as the head constable had run away with them. In a suit brought against the State of UP for damages, it was held that the state was not liable, for the loss had occurred while the government was discharging a sovereign function (police function).
- Rylands vs Fletcher
The owner of a mill, employed a contractor to construct a reservoir on his land to provide water to his mill. While digging, the contractor failed to notice some disused shafts beneath the ground and as such, did not block them up. Thereafter, he filled the reservoir with water. That night, the water broke through some of the shafts and flooded the neighbor Y's mine. The court held that X was liable for the damage caused to Y, even though the damage could not be attributed to his negligence.
- Donoghue vs Stevenson
A man bought a bottle of ginger beer for his girlfriend manufactured by the defendant. The lady drank the contents of the bottle directly. Later, she poured the remaining contents into a glass. To her utter shock, she noticed a dead snail popping out of the bottle. She fainted and fell ill, as she had already consumed a portion of the drink. It was held that the manufacturer was liable to the lady for 'negligence'.