Vicarious Liability | CLATGyan
technical relation of master and servant, but it is not (as it is some- times treated ”) in itself a philosophical basis of vicarious liability- except through the. Vicarious liability is a theme of “Law of Torts” before proceeding to this topic Master and servant are terms used to explain a legal relationship. The doctrine of liability of the master for the act of his servant is also based on the maxim respondeat superior, which derives its validity from the maxim qui facit.
In most instances, a master-servant agreement is a settlement for a service wherein the employer has direct manage the actions of the servant. In contrast, an independent contractor is a character entering into an agreement to perform a carrier without the use of his or her personal methods.
If a master chooses to give orders to his servant, no one can fail to understand why he should be held liable for the consequences of their commission. To regulate the relationship among a worker and an organization.
Initially, as the name may recommend, those legal files had been biased towards employers. These days, employee and organization contracts are usually fairer and greater unique.
Master has a command based nature towards his servant. Lord Brougham in the Duncan vs. Masters liability under express authority Master may knowingly employ a clearly incompetent person. Richards in this master has deliberately employed a servant who was suffering from many ailments like most of the time servant is unconscious then amnesia is observed. Hence if any fault is committed then the master will be responsible. He may consciously fail to provide proper means for the performance of the allotted work.
Co  in this case the master told the servant to light a fire and the servant did in such a manner due to which neighbor had inconvenience hence master will be liable.
Master and Servant Law Law and Legal Definition | USLegal, Inc.
He may fail to give his servant information which he knew to be essential to the right completion of his task. Baltimore in this the company workers after coming returning from their work they used to throw timber near to their homes from train one day while doing so it injured the pedestrian he sought damages from the master and he is liable because even after knowing such thing he failed to give proper information.
He may fail to take adequate precautions against the commission of a tort in his presence. In cases such as these, where the master is directly involved, it is essential to any scheme of law that he should be held liable for such damage as his servant may cause.
An employer can spread his loss to his customers by adding it to the costs of his products. Criticism This theory does not explain why this liability is imposed in cases where the spread of the loss is not possible.
Vicarious Liability in India
For example, it is inconceivable how non-profit entities can spread their loss. Cases In ICI vs. Shatwell [7In this case, there were two brothers who were employed by the defendant. These brothers were carrying out an experiment for the defendant and there was a shortage of the wire. The other worker went to bring more wire but these brothers went ahead and did the experiment with the short wire later claimed damage from the defendant on the basis of rough justice but defendant was held not liable because it was voluntary not fit injuria.
While doing so he negligently hits a passer-by D. Help D to decide who he should sue. Please note very carefully the difference between the facts of this case and case law 4 Servants lend to others When a servant is lent out to another person then the master who still controls the activities of the servant and not just merely directs his actions will be the one who is liable.
Mostly it is the actual master who is held liable and not the person to whom the servant has been lent temporarily. This rule applies unless the permanent master can prove that the servant was completely in the control of the temporary master and he could not have controlled the servants action. While transferring goods the crane driver lost control and the goods fell on a passer-by Q who was seriously injured.
Who should Q sue? Giving lift to strangers: Position in England In England if the driver of a car is prohibited by the owner to strictly not give lifts to strangers and the driver disobeying the order of the master does so then any suit against the master will fail. Compensation can be claimed only against the servant and the master in such a case cannot be made vicariously liable. Position in India However such a rule is not applicable in India where a driver disobeying verbal orders of the master gives lift to a stranger the master can still be held liable.
Solutions to case laws: Clearly the servant has acted negligently and the master then becomes vicariously liable. Though the smoking had nothing to do with the task of the servant it is just a wrongful way of doing an authorized activity. By a clear application of the principle of wrongful delegation, it is quite conclusive that the master is liable.
Hence X will succeed case law 5: Kareena had through her two notices expressly prohibited Katrina from giving a lift. If Katrina still does so and causes an accident then Kareena cannot be made vicariously liable for it. Hence he should be advised not to file a suit against Amir.
Master and Servant Law Law and Legal Definition
Hence the wrongful act is outside the purview of employment. I would dismiss the appeal. The company had engaged an independent haulage contractor to deliver the concrete to customers but that contract was terminated and RMC decided to introduce a scheme whereby concrete was delivered by owner- drivers working under written contracts.
In the company asked the Minister of Social Security for a determination of the employment status of one of the owner-drivers, Mr Latimer. He concluded that the contract was not one of service but of carriage.
In his judgment, MacKenna J considered what is meant by a contract of service. In this case the issue was whether an interviewer, who was engaged on a casual basis, was employed under a series of contracts of service or under a series of contracts for services. Market Investigations Ltd was a market research company.
It employed a small number of full-time interviewers but, for the most part, drew on a panel of casual interviewers and the case concerned this latter group. The facts found included the following: The Minister of Social Security decided that Mrs Irving did work under a contract of service and the company appealed against that decision.
If the answer is 'no' then the contract is a contract of service. No exhaustive list has been compiled and perhaps no exhaustive list can be compiled of the considerations which are relevant in determining whether there is a contract of employment nor can strict rules be laid down as to the relative weight which the various considerations should carry in particular cases. The most that can be said is that control will no doubt always have to be considered, although it can no longer be regarded as the sole determining factor; and that factors which may be of importance are such matters as whether the man performing the services provides his own equipment, whether he hires his own helpers, what degree of financial risk he takes, what degree of responsibility for investment and management he has, and whether and how far he has an opportunity of profiting from sound management in the performance of his task.
Another finding of fact was that each interviewing arrangement was a separate engagement, each of which was of very short duration. Nevertheless, the court held that on each occasion there was a separate contract of service. This provides support for the view that a short-term casual engagement can be a contract of service.
Cooke J commented on the absence of sick pay and holidays as follows: If a man engages himself as an extra kitchen hand at a hotel for a week in the holiday season, there will be no provision for sick pay and holidays, but the contract will almost certainly be a contract of service. Woodland wanted a hawthorn tree cut down. The tree was 25 feet high and stood 28 feet from the road, and running across the garden diagonally was a pair of telephone wires.
Woodland engaged Terence Coombe to cut the tree down and he did so negligently. The tree hit the telephone wires which landed in the roadway. The claimant intended to coil up the wires, but on seeing the third defendant, Mr.
Waugh, approaching too fast in his Morris Cooper, he flung himself to the ground to avoid being hit by the wires which would have whipped around being struck by the car. The claimant had a tumour on his spine and the falling to the ground dislodged this and caused damage to the claimant.
It was held on allowing the appeal by Mr. Woodland that he was not liable for the negligence of his independent contractor and the driver was also held partly responsible as he was driving too fast. Conclusion Vicarious Liability deals with cases where one person is liable for the acts of others. So a master is liable for the acts of his servant if the act is done in the course of employment.
But where someone employs an independent contractor to do work on his behalf he is not in the ordinary way responsible for any tort committed by the contractor in the course of the execution of the work except in certain exceptional cases as dealt above. So the servant and independent contractor are under contract of service and contract for service respectively. The traditional view to distinguish between the two was the control test exclusively.
But in modern scenario this is not sufficient test as there is no single test. The significant outcome can be achieved only by balancing different factors with the help of different tests like: Jones, Textbook on Torts,p Limpus v London General Omnibus Co.
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Pollock on Torts, 15th ed. CC 1 All ER Kahn Freund, 14 Modern Law Review, p. AIR SC