Qui facit per alium facit per se

is a Latin legal term that means,

"He who acts through another does
the act himself.“
What Is Vicarious Liability?
Vicarious liability can arise in situations where one party is supposed to be responsible for (and have control over) a
third party and is negligent in carrying out that responsibility and exercising that control
several reasons have been advanced as a justification for the imposition of vicarious liability:
(1) The master has the ‘deepest pockets’. The wealth of a defendant, or the fact that he has access to resources via insurance.
(2) Vicarious liability encourages accident prevention by giving an employer a financial interest in encouraging his employees
to take care for the safety of others.
(3) As the employer makes a profit from the activities of his employees, he should also bear any losses that those activities
cause.
In the words of Lord Chelmsford: “It has long been established by law that a master is liable to third persons for any injury or
damage done through the negligence or unskillfulness of a servant acting in his master’s employment. The reason of this is,
that every act which is done by servant in the course of his duty is regarded as done by his master’s order, and, consequently it
is the same as if it were master’s own act”.
Constituents Of Vicarious Liability
So the constituents of vicarious liability are:
(1) There must be a relationship of a certain kind.
(2) The wrongful act must be related to the relationship in a certain way.
(3) The wrong has been done within the course of employment
Respondent Superior —The literal meaning of the doctrine is “let the master answer”. Master is answerable to the wrongs
committed by his servant. Master is superior thus he ought to take care hence he would be questioned if something wrong
happens.
Principal and Agent
• There must be an authority assigned by the principal to his agent
• Ostensible and apparent authority
• Authority may be express or implied
• agent must act within the course of employment
Lloyd v Grace , Smith&co, 1912 UKHL 606 (19 July 1912)

Mrs Lloyd, who owned two cottages but was not satisfied with the income therefrom and also She had doubts about having
got her money’s worth approached the office of Grace, Smith & Co., a firm of solicitors, to consult them about the matter of
her property. one Sandles, the defendant’s managing clerk of the company attended her and advised her to sell the two
cottages and invest the money in a better way. She was asked to sign two documents, which were supposed to be sale
deeds. In fact, the documents got signed were gift deeds in the name of the managing clerk himself. He then disposed of the
property and misappropriated the proceeds. He had acted solely for his personal benefit and without the knowledge of his
principal.
Held: Vicarious liability can extend to fraudulent acts or omissions if those were carried out in the course of the employment
or within the scope of the apparent authority, albeit by an employee or a partner conducting the business of a type which
he had a right to conduct. The principal was liable for the fraud of the agent because conveyancing is part of the ordinary
business of solicitors. The client had been invited by the firm to deal with their managing clerk. It was irrelevant that the
agent acted with a dishonest purpose for his own ends. His act was of the class or kind of acts which fall within the ordinary
business of solicitors
State Bank of India v Shyama Devi, 1978 AIR 1263, 1978 SCR (3)1009
On September 17, 1945, the respondent opened a Savings Bank Account, with the appellant's predecessor, the imperial Bank of
India at its Allahabad Branch. She was introduced to the Bank by one Kapil Deo Shukla, who was an employee of the Bank, and
admittedly a close neighbour of the respondent and a friend of her husband, Bhagwati Prasad.
On November 30, 1948, the respondent made a petition in forma pauperis for the recovery of Rs. 15,547 together with
pendente lite (during the or pending the litigation or awaiting the litigation) and future interest from the Imperial Bank. This
petition was later registered as a regular suit in 1950.
The plaintiff had, apart from 1,932 admitted by the defendant-Bank, also deposited from time to time a sum of Rs.12205 in the
Bank. The 12205 was deposited in toto. There was a permanent clerk named Kapil Deo Shukla in the employment of the
defendant Bank, who exercised much influence on other employees of the Bank and used to work at different counters. The
Bank viewed his actions with approval and acted with negligence. The plaintiff as well as other constituents regarded him as an
employee and a responsible person of the Bank, send letter of instructions to him, while this clerk used to obtain the signature
of the officer on the Pass Book as usual. The plaintiff used to believe that the money had been deposited and she was satisfied
on perusal of the Pass Book. She never had any occasion for suspicion.
In August 1946, the plaintiff's husband felt some suspicion in the Bank's affairs. She thereupon sent a notice, dated August 13,
1948 to the defendant Bank. The Bank replied by letter, dated August 14, 1948, in which it accepted the deposit of Rs. 1,932 and
denied the other deposits. The defendant-Bank was responsible for the acts and omissions of its employees which they did
during their service, and if Shukla or any other employee of the Bank had committed embezzlement and defrauded the plaintiff,
the Bank was responsible for making good that loss.
The defendant-Bank in its written statement admitted that Kapil Deo Shukla was one of its employees and he used to work at
the counter, but not at the Savings Bank counter, where the Savings account of the plaintiff was dealt with. Shukla was no longer
in the service of the Bank. The Bank further pleaded that the amount of Rs. 12,205 as detailed above, was never deposited with
it, nor were the alleged deposits constituting this amount ever confirmed or ratified by it. The Bank further stated that only an
aggregate amount of Rs. 1,932 had been deposited by the respondent on the diverse dates, as indicated below
The point to be noted in this case is that the plaintiff has given the money to K. D. Shukla not in the usual course of business as
per the facts of the case. Moreover the procedure mentioned above while depositing money in the bank by a customer was not
followed by her. So the question which arises is that whether K.D.Shukla acts as an agent of the bank or that of the customer. K. D.
Shukla, instead of depositing it with the Bank, manipulated to appropriate it himself in such a situation, the act which caused the
loss to the customer could not be said to have been committed by Shukla in the course of his employment with the Bank. At the
most, it could be said that the fact of his being an employee of the Bank and a friend of Bhagwati Prasad, gave him an opportunity
to commit this fraud.

The rule in Leesh River Tea Co.'s case, squarely applies to this situation. The appellant-Bank was therefore, not liable to make
good the loss caused to the Respondent, by the act of K. D. Shukla, while the latter was acting as an agent of the customer and
not within the scope of his employment with the Bank. Nor could the fact that false and fictitious entries to cover up his fraud,
were made by K. D. Shukla in the Pass Book of the respondent and in the Ledger Account of Bhagwati Prasad & Sons, make the
embezzlement committed by Shukla an act committed in the course of his employment with the Bank.

Ormrod v Crossville Motor Services Ltd, 1953

Leesh River Tea Co. Ltd. & Ors. v. British India Steam Navigation Co, [1966] 3 All E.R. 59
Trilok singh v kailash Bharti, 1986
Master and servant
A servant is a person employed by another to do work under the direction and control of his master. The
relation of master and servant exists only between persons of whom the one has the order and control of the
work done by the other. A master is one who not only prescribes to the workman the end of his work, but
directs or at any moment may direct the means also, or, as it has been put, ‘retains the power of controlling the
work’. A servant is a person subject to the command of his master as to the manner in which he shall do his
work, and the master is liable for his acts, neglects and defaults, to the extent to be specified. An independent
contractor is one who undertakes to produce a given result, but so that in the actual execution of the work he is
not under the order or control of the person for whom he does it, and may use his own discretion in things not
specified beforehand.”
As a general rule, master is liable for the tort of his servant but he is not liable for the tort of an independent
contractor . An independent contractor is not subject to any such control. He undertakes to do certain work
and regarding the manner in which the work is to be done. He is his own master and exercises his own
discretion. And independent contractor is one “who undertakes to produce a given result, but so that in the
actual exclusion of the work, he is not under the order or control of the person for whom he does it, and may
use his own discretion in things not specified beforehand.”
For the liability of the master to arise, the following two essentials are to be present:
(1) The tort was committed by the servant.
(2) The servant committed the tort in the course of his employment.
. It, therefore, becomes essential to distinguish between the two.
Control test
1) Master’s power of selection of his servant;
(2) Payment of wages or other remunerations;
(3) Master’s right to control the method of doing the work, and
(4) Master’s right of suspension or dismissal.
The test of control as traditionally formulated was based upon the social conditions of an earlier age and “was well suited to
govern relationship like those between a farmer and an agricultural labourer (prior to agriculture mechanisation), a craftsman
and a journeyman, a householder and a domestic servant and even a factory owner and an unskilled hand”. The control test
bricks down when applied to skill and particularly professional work and, therefore, in recent years it has not been treated as
an exclusive test

The multiple test

First of all, if the remuneration of the worker is paid monthly, then he is an employee. If it is paid hourly, then he is an
independent contractor. Secondly, if the worker is a member of the company’s pension scheme, then he is an employee, if not
he is an independent contractor. Thirdly, if the worker has all the benefits such as annual leave medical leave, hospitalization,
paid holidays and so on, then he is an employee, if not, he is an independent contractor. Fourthly, if the worker has
prohibition from working for a third party or a rival company, then he is an employee, if not, he is an independent contractor.
If the worker gets a uniform to wear, and he is an employee, if not, he is an independent contractor. Finally, if the worker gets
the tools from the company, then he is an employee, if he uses his own tools, he is an independent contractor.
The integration test
The integration test which also known as the organization test, was brought in due to the control test was not suitable for the
employees who have high skills. The integration test is done to find out whether, if a person who is doing the work and the
work he does is integral or component to the business, then he is an employee. If the work he does is just an accessory to the
business or the organization, then he is an independent contractor.
Servant And Independent Contractor
A servant and independent contractor are both employed to do some work of the employer but there is a difference in the
legal relationship which the employer has with them. A servant is engaged under a contract of services (employment
contract) whereas an independent contractor is engaged under a contract for services. The liability of the employer for the
wrongs committed by his servant is more onerous than his liability in respect of wrongs committed by an independent
contractor. If a servant does a wrongful act in the course of his employment, the master is liable for it. The servant, of
course, is also liable. The wrongful act of the servant is deemed to be the act of the master as well. “The doctrine of liability
of the master for act of his servant is based on the maxim respondeat superior, which means ‘let the principal be liable’ and
it puts the master in the same position as if he had done the act himself. It also derives validity from the maxim qui facit per
alium facit per se, which means ‘he who does an act through another is deemed in law to do it himself’.” Since for the wrong
done by the servant, the master can also be made liable vicariously, the plaintiff has a choice to bring an action against
either or both of them. Their liability is joint and several as they are considered to be joint tortfeasors. The reason for the
maxim respondeat superior seems to be the better position of the master to meet the claim because of his larger pocket
and also ability to pass on the burden of liability through insurance. The liability arises even though the servant acted
against the express instruction, and for no benefit of his master.
An independent contractor may be defined for the present purpose as any person, other than a servant, who is employed to
do work. The definition includes such diverse persons as a builder, a road construction engineer, an electrician, a dentist or
doctor attending a private patient, a shoe-repairer, a launderer, a dressmaker, a barber, an airline company, a taxi-driver, a
copy-typist, an advisory expert, and a charwoman if not a servant. But a vendor is clearly not a contractor for this purpose (so
that if, for example, I order a particular type of gunpowder to be made for me as a purchaser, I am not to be regarded as an
employer of an independent contractor, and will not be liable, if the seller's works blow up, under any of the heads of liability
to be discussed presently). Similarly it is submitted that a landlord who covenants to repair is not an independent contractor
for the tenant; hence such rules of liability for contractors as have been developed would not apply to the tenant. The
landlord would be an independent contractor for the law of tort only if it were contemplated that he was to do the repairs
himself or by his servants.
 Vicarious Liability of vehicle Owners & Lessors
Generally at common law, the owner of a motor vehicle is not liable for injuries caused by the negligence of another person
like mechanics, repairers or owners of the workshops driving the vehicle (i.e., vicariously liable) unless the driver was acting as
an employee or agent of the owner. ( Rama Tularam v Amichand, 1968) Both English and U.S. common law have traditionally
relied on a tort system based on fault.
B. Govindarajulu v M.L.A. Govindaraja Mudaliar, A.I.R. 1966 Mad. 332
Devender Singh v Mangal Singh, A.I.R. 1981 P& H 53

Exception to the independent contractor rule

The Control Over Work Exception
When either a general contractor or an owner retains control over an independent contractor’s work, it has a
duty to use reasonable care to prevent injuries to the workers. In order to impose liability for injury to a
subcontractor’s employee, however, the control must include the ability to dictate how the work is performed; it
cannot be just a general right to stop work, inspect progress, or make suggestions. In particular, the general
contractor or owner must have
(1) supervised the work that caused the injury,
(2) (2) had actual or constructive knowledge of the danger that caused the injury, and
(3) (3) had the opportunity to prevent the injury.
•General rule is that employer is not liable for negligence of independent contractors. There are exceptions to
general rule with respect to work that is unlawful, nuisance inherently dangerous or will in natural course of
events produce injury unless special precautions are taken. Several citations to pertinent cases
 • If an employer authorizes the doing of an illegal act, or subsequently ratifies the same
•An employer is liable for the act of an independent contractor in cases of strict liability
Rylands v Fletcher, 1868
•The liability of an employer also arises for the dangers caused on or near the highways
Tarry v Ashton, 1876. the plaintiff was injured by the fall of the lamp overhanging the footway adjoining the defendant’s
house. The lamp was attached to his house by the defendant through some independent contractors. It was held that it was
the duty of the owner to see that the lamp was reasonably safe there and he could not escape his liability by getting the job
done through independent contractors
•If the wrong caused to the plaintiff is nuisance in the form of withdrawal of support from the neighbour’s land, the defendant
would be held liable irrespective of the fact that the act causing the said damage was done by an independent contractor
• If the employer is negligent in selecting, instructing, or supervising the contractor, they may be liable for torts committed by
the contractor.
Lending a servant to another person
Hull v Lees, 1904 2 KB 602
Mersey Dock & Harbour boards v Coggins & Griffiths (Liverpool) ltd, 1947 Mersey Dock is in charge of training and providing crane
operator to companies in the carrier business. On one occasion one of Mersey Dock's operators who was let to a stevedore company caused
injuries through his negligent operation of the crane. The contract between the stevedores and Mersey Dock provided fact that the crane operator
was an employee of the stevedores.
The House upheld decisions that the Board, as the crane driver’s general employer, retained responsibility for his negligence.
Decisions of this kind depend on the particular facts and many factors may bear on the result. Considerations include: (a) the
burden of showing that responsibility does not remain with the general employer is on the general employer and is a heavy
one (b) by whom is the negligent employee engaged? Who pays him? Who has power to dismiss him? (c) who has the
immediate direction and control of the relevant work? Who is entitled to tell the employee the way in which he is to do the
work upon which he is engaged?
‘The proper test is whether or not the hirer had authority to control the manner of execution of the act in question.
Given the existence of that authority its exercise or non-exercise on the occasion of the doing the act is irrelevant’. (d) the
inquiry should concentrate on the relevant negligent act, and then ask whose responsibility it was to prevent it. In the
Mersey Docks case, the stevedores had no responsibility for the way in which the crane driver drove his crane, and it was
this which caused the accident. The ultimate question may be, not what specific orders or whether any specific orders
were given, but who is entitled to give the orders as to how the work should be done. (e) a transfer of services can only
be effected with the employee’s consent. (f) responsibility should lie with the master in whose act some degree of fault,
though remote, may be found
Viscount Simon said that a heavy burden of proof lay on the general or permanent employer to shift responsibility for the
negligence of servants engaged and paid by such employer to the hirer for the time being who had the benefit of the
services rendered. This could only be achieved where the hirer enjoyed the right to ‘control the way in which the act
involving negligence was done.’
Smt.kundan Kaur v Shankar Singh, 1966
Casual Delegation of Authority
Ormrod v Crosville Motor Service Ltd,1953

Act within the course of employment and a negligent act

National insurance co, Kanpur v Yogendra Nath, 1982
Theft by servant
theft of bailed goods
Cheshire v Bailey, 1905 . The decision given in this case was overruled in
Morris v C.W. Martin & sons Ltd, 1966
In course of employment if the servant was entrusted with the goods if the theft is committed, master will be held liable.
If the servant is not entrusted with the goods and if he commits theft, it is out side the course of employment and the master
is not liable if he takes reasonable care
Theft of goods not bailed
Roop Lal v Union of India, 1972
Fraud of servant
A master is not liable for a dishonest or criminal acts of his servant where the servant merely takes the opportunity afforded
by his service to commit the wrongful act
Liable if it is committed for the master’s benefit
The master is answerable for every such wrong of the servant or agent as is committed in the course of the service and for the
master’s benefit, though no express command or privity of the master is proved
Barwick v English Joint Stock Bank, 1867
Even though the benefit of master is not there, still liable if he acts with In the course of employment
Lloyd v Grace Smith & Co
State bank of India v Shyama devi

Mistake of servant
to make master liable, the servant must have Lawful authority,
excessive use or erraneous use of that authority, implied authority to protect the master’s interest.
Poland v john Parr & sons, 1927
Bayley v Manchester, Sheffield and Lincolnshire Ry, 1872
Negligent act of servant
In course of employment, mode of doing is also important
Williams v Jones, 1885
For his own convenience and comfort
Century insurance co. v Northern Ireland Road Transport Board, 1942

Act within the course of employment and a negligent act

National insurance co, Kanpur v Yogendra Nath, 1982
Acts out side the course of employment
Harvey v R.G.O Dell ltd, 1958
Storey v Ashton , 1869
Beard v London General Omnibus co, 1900
Hilton v Thomas Burton ltd, 1961
Negligent delegation of authority by servant
Ricketts v Thomas Tilling Ltd, 1915
Gwillium v Twist, 1895
Sitaram v Santanuprasad, 1966

Effect of prohibition
Limpus v London General Omnibus co, 1862
Giving lift to an unauthorised third party
Twine v Bean’s express ltd
Conway v George wimpey and co.ltd
The decision given in Twine”s case not followed in India by many High courts
Marium Jacob v Hematlal, 1982
Narayanlal v Rukhmanibai, 1979
Giving lift with justification
Pushapabai v Ranjit Ginning and Pressing company, 1977

Doctorine of Common employment

Priestly v flower, 1837
T and J Brocklebank ltd v Noor Ahmode, 1940