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1. VICARIOUS LIABILITY
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2. INTRODUCTION
Generally, a person is liable for his own wrongful acts and one does not incur any liability
for the acts done by others. In certain cases, however, vicarious liability, that is the liability
of one person for the act of another person, may arise. In order that the liability of A for the
act done by B can arise, it is necessary that there should be certain kind of relationship
between A and B, and the wrongful act should be, in certain way, connected with that
relationship. This is called "vicarious liability", that is, liability incurred for another.
For e.g. A, is a driver who works for B and while driving B’s car for taking him to his office,
he hits C, a pedestrian due to his negligence in driving. In such a case even though B was not
driving the car he will still be liable for the accident which was caused due to the negligence
of A.
In the words of SALMOND, "In general a person is responsible only for his acts, but there
are exceptional cases in which the law imposes on him vicarious responsibility for the acts of
another, however, blameless himself.“

3. RELATIONS IN WHICH VICARIOUS LIABILITYARISES
These are the major relations in which vicarious liability of a person arises
1.Master and Servant.
2.Partners in a Partnership Firm.
3.Principal and Agent.
4.Company and its Directors.
5.Owner and Independent Contractor.

4. VICARIOUS LIABILITY OF MASTER FOR TORTS BY SERVANT
In a Master-Servant relationship, the master employs the services of the servant and he
works on the command of master and thus a special relation exists between the two and
in case of a tort committed by the servant, his master is also held liable.
There are many cases in which the servant does an act for his master and thus in law, it is
deemed that the master was doing that act himself, therefore if the servant commits an
unlawful act the master will also be held liable for the same. This liability of the master
is based on the following two maxims
1. Qui facit per alium facit per se: – It means that whenever a person gets something
done by another person then the person is viewed to be doing such an act himself.
The reasoning is that any person, who puts another in his place to do a class of acts in his
absence, necessarily leaves to determine, according to the circumstances that arise, when
an act of that class is to be done and trust him for how it is done.

5. CONTD.
Consequently, he is answerable for the wrong of the person so entrusted either in the manner
of doing such an act or in doing such an act under circumstances in which it ought not to
have been done, provided what is done is not done from any caprice of the servant but in the
course of the employment.
Illustration: If A is the owner of many trucks and employs drivers to drive them for the
purpose of trade and in case one of his drivers gets into an accident because of his rash
driving, then even though A did not drive the truck himself, he will be liable for the accident.
2. Respondeat Superior: – It means that the superior should be held responsible for the acts
done by his subordinate. In such cases not only he who obeys but also he who commands
become equally liable.
This rule has its origin, in the legal presumption that all acts done by the servant in and about
his master's business, are done by his master's express or implied authority and are, in truth,
the act of the master.

6. CONTD.
It puts the master in the same position as if he had done the act himself. The master is
answerable for every such wrong of the servant as is committed in the course of his
service, though no express command or privity is proved.
These two maxims have played a significant role in the development of the law of
vicarious liability of the master.

7. ESSENTIALS OFVICARIOUS LIABILITY IN MASTER-SERVANT
RELATIONSHIP
These essential conditions have to be followed for the vicarious liability of master to arise: –
1. The servant has committed an act which amounts to a tort.
2. Such a tortious act is committed by the servant during the course of his employment under the
master.
A servant is a person employed by another to do work under the direction and control of his
master. 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. It, therefore, becomes essential to distinguish between the two.
A servant is an agent who is subject to the control and supervision of his employer regarding the
manner in which the work is to be done. 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.”

8. REASONS FOR LIABILITY OF THE MASTER
There are several reasons behind holding the master liable for the acts of his servants
which are: –
1.An act which is committed by the servant is considered to be done by the master
through him and therefore in the law of torts, it is assumed that if any wrong is done by
the servant, it has been committed by his master indirectly and so the master is held
liable for these wrongs.
2.The master is in a better financial position as compared to his servant and thus in case
of any loss caused by the tortious act of the servant, the master is better suited to pay off
the damages to the victim of the act. Also, since the master is made liable he makes sure
that all reasonable care and precautions are carried so that he can avoid such liability.
3.When a servant does any act, the benefit from such an act is enjoyed by the master and
thus for the liability arising out of the servant’s act, the master should also shoulder that
liability.

9. TEST FOR DETERMINING MASTER-SERVANT RELATIONSHIP
For the determination of a Master-Servant relationship, certain tests have been
developed over a long period of time.
Traditional View – Control Test
As per this test, for the determination of a master and servant relationship, it should be
seen whether the master has the power to not only instruct what should be done but also
the manner of doing the act and if such power exists then as per this test, the master and
servant relationship exists between the two.
Illustration: A is the owner of a big area of land on which farming activities are carried
out and he has hired many workers for farming. A, not only instructs them how to do
their jobs but also how to do it. Here, by the test of control, the relation between A and
his employees is established as that of a master-servant.

10. CONTD.
Modern View
The old Control test is not applicable as an exhaustive test because in cases of work
requiring skill such as a doctor working in a hospital, the owner of the Hospital cannot
instruct the doctor on how to treat a patient and can only instruct him to treat patients. Thus
certain other tests have been developed for determining the Master and Servant Relationship.
The test of work being an Integral Part of Business
In the case of Stevenson Jordan & Harrison Ltd. V Macdonald & Evans (1952) 1 TLR
101, the test of an integral part of the business was applied. Here, a contract of service was
held to be a contract for such work which is an integral part of the business and a contract
for service was held to be a contract for such work which is not an integral part of the
business.
Illustration: In an IT company the programmers are the employees of the company and
there is a master-servant relationship but if the company has hired catering services, the
company does not have a master-servant relationship because the act of providing food is not
an integral part of an IT company.

11. CONTD.
Multiple Test
This test provides that people who are in a contract of service are deemed to be employees
whereas the people who are in contract for service are independent contractors. In the case
of Ready Mixed Concrete v Minister of Pensions and National Insurance (1968) 2 QB 497,
three conditions were laid down for a contract of service
1.The servant agrees to provide his skill and work to the master for performing some service in
exchange for wages or some other consideration.
2.He agrees to be subjected to such a degree of control so as to make the person his master in
performance of his work.
3.The other provisions of the contract are consistent with this provision of being a contract of
service.
This view was also reiterated in the case of The Management of Indian Bank v. The Presiding
Officer.

12. CONTD.
This test also includes other important factors that are used to determine the master-
servant relationship such as who owns the tools being used for the work, is the employee
paid wages monthly or on a daily basis and all other relevant factors.
Thus the old view of using Control test is no longer the only method of determining the
relation of master and servant as it has been realized that in the present complex world
where there are a wide number of factors which affect the process of determining the
relation between the employee and the employer, it is not possible to use just one test
and thus the various aspects of a case are seen to determine the nature of the relationship
and to decide whether such a relation is that of master and servant or not.

13. DIFFERENCE BETWEEN SERVANT AND INDEPENDENT
CONTRACTOR
A servant is an agent who works under the supervision and direction of his employer.
Whereas, an independent contractor is his own master.
A servant is a person employed to obey his master's directions from time to time,
whereas, an independent contractor is a person engaged to do certain works but to
exercise his discretion as to the mode and time of doing it.
A servant is bound by the orders of his master but, an independent contractor is
bound by the terms of his contract.
In case of a servant there is a contract of service which means that along with
instructing what task should be done by the servant, the master also has the right to
instruct the manner in which that act has to be done and thus the servant does not have
autonomy in the performance of his duties.
Illustration: P is the owner of a newspaper in which many editors are working. Here P
as the owner has the right of telling them which news should be covered and how it
should be written.

14. CONTD.
Whereas in the case of an independent contractor there is a contract for service which
means that he can only be instructed as to what should be done but how to do the work is
left at his will and he does not take any instructions from the master.
Illustration: If P is the owner of a newspaper and his machinery is damaged and he calls
J to repair it. Here P can instruct him what to do but how to repair the machinery is left
to be done by J without any instructions from P.
In Morgan v. Incorporated Central Council, (1936) 1 All E.R. 404 the plaintiff, while
he was on a lawful visit to the defendant's premises, fell down from an open lift shaft
and got injured. The defendants had entrusted the job of keeping the lift safe and in
proper order to certain independent contractors. It was held that for this act of negligence
on the part of the independent contractors in not keeping the lift in safe condition, the
defendants could not be made liable.

15. MAIN INCIDENTS OF MASTER'S LIABILITY
There are 6 major ways in which a master becomes liable for the wrong done by servants in
the course of their employment. They are as follows-
1. Wrong done as a natural consequence of an act by Servant for Master with due care-
If the employee does an act which is done in pursuance of the instructions of the master, then
the master will be held liable for any wrong which arises out of such an act even if all due
care is taken by the employee in discharging his work.
In Gregory v. Piper(1829) 9 B & C 591, the defendant and plaintiff had some disputes
between them and the defendant, therefore, ordered his servant to place rubbish across a
pathway to prevent the plaintiff from proceeding on that way and the servant took all care to
ensure that no part of it was touching the part of the plaintiff’s property but with the passage
of some time. The rubbish slid down and touched the walls of the plaintiff and thus he sued
for trespass. The defendant was held liable despite his servant taking all due care.

16. CONTD.
In Indian Insurance Corporation, Association Pool, Bombay V. Radhabai, the driver
of a motor vehicle belonging to the Primary Health Centre of the State was required to
bring the ailing children by bus to the Primary Health Centre. The driver in the course of
driving gave the control of the steering wheel to an unauthorized person.
It was an unauthorized mode of doing the activities authorized by the master. It was held
that in such circumstances, the Government, viz., the owner of the vehicle is vicariously
liable for the negligence of the driver in permitting an unauthorized person to drive the
vehicle.
In B. Govindarajulu v. M.L.A. Govindaraja Mudaliar, A.I.R. 1966 Mad. 332 after a
motor lorry was entrusted by its owner for repairs, while an employee of the repair
workshop drove it, there was an accident. It was held by the Madras High Court that for
this accident, the owner of the lorry was not liable vicariously, because the owner of the
workshop was an independent contractor and not the servant of the lorry owner.

17. CONTD.
Similar was also held to be the position in the decision of the Punjab & Haryana High Court in
Devinder Singh v. Mangal Singh, A.I.R. 1981 P & H 53. In that case, Devinder Singh entrusted his
truck for repairs to a workshop. While the truck was being driven by the owner of the workshop, there
was an accident which resulted in injuries to a cyclist, Mangal Singh. In an action by the injured cyclist
against the owner of the truck, it was held that the owner of the workshop was an independent
contractor and not the servant of the owner of the truck, and, therefore, the owner of the truck could
not be made vicariously liable for the negligence of the owner of the workshop.
The concept of principal-agent relationship and the liability of the former was thus explained by
Bombay High Court in Ramu Tularam v. Amichand, 1968 : When the car is given to the garage for
repairs, the control of the car certainly stands transferred to the owner of the garage. But the point is
that in such a case the owner of the garage is constituted by the owner of the car as his agent.
Everything done or omitted to be done by the agent will be something for which the principal will be
vicariously liable...
It is submitted that extending the principles of agency for making the owner of a vehicle liable for the
acts of repairer of the vehicle is not the correct interpretation of the law. When the repairer test drives
my vehicle, he is doing something in furtherance of his own independent business rather than acting as
my agent.

18. CONTD.
2. Wrong due to Negligence of Worker
A master is also liable for an act of servant which he does negligently or fails to take due
care in carrying out.
In Pushpabai Purshottam Udeshi & Ors. v. Ranjit Ginning & Pressing Co. (P), deceased
was travelling in a car driven by the manager of the respondent company and it met with an
accident as a result of which he died. The dependents of the deceased filed a claim and the
tribunal allowed damages but on appeal to the High Court, it was set aside on the grounds
that the accident does not make the respondent company liable. But the Supreme Court in its
judgement overruled the judgement of the High Court and held that from the facts of the
case it was clear that the accident had occurred due to the negligence of the manager who
was driving the vehicle in the course of his employment and therefore, the respondent
company was liable for his negligent act.

19. CONTD.
Illustration: If H works as a house cleaner for K then there is a master and servant
relationship between them but, if H instead of cleaning the house decides to cook food
even though he has only been hired for cleaning the house and due to his negligence
causes a fire which also causes loss to K’s neighbour L, then K, will not be liable
because H did an act which was outside the course of his employment.
3. Wrong by excess or mistaken execution of a lawful authority
For making the master liable in such a case it has to be shown that: –
1.The servant had intended to do an act on behalf of his master, which he was authorized
to do.
2.The act would have been lawful if it was done in those circumstances which the servant
mistakenly believed were true or if the act would have been lawful if done properly.

20. CONTD.
In Bayley v Manchester S&L Railway (1873) LR 8 CP 148, a porter of a railway company
while working mistakenly believed that the plaintiff was in the wrong carriage even though he
was in the right one. The porter thus pulled the plaintiff as a result of which the plaintiff sustained
injuries. Here, the Court held the railway company vicariously liable for the act of the porter
because it was done in the course of his employment and this act would have been proper if the
plaintiff was indeed in the wrong carriage.
In Anita Bhandari & Ors. v. Union of India, The husband of the petitioner went to a bank and
while entering inside it, the cash box of the bank was also being carried inside and as a result, the
security guard in a haste shot him and caused his death. The petitioner had claimed that the bank
was vicariously liable in the case because the security guard had done such act in the course of
employment but the bank had contended that it had not authorized the guard to shoot. The Court
held the bank liable as the act of giving him gun amounted to authorize him to shoot when he
deemed it necessary and while the guard had acted overzealously in his duties but it was still done
in the course of employment.

21. CONTD.
4. Wrong committed willfully by a servant with the intention of serving the purpose of the
master- If a servant does any act willfully, recklessly or improperly then the master will be held
liable for any wrong arising out of such act, if such an act is done in the course of employment.
In Limpus v. London General Omnibus Co. (1862) EngR 839, the driver of the defendant
company, willfully and against the express orders not to get involved in racing or to obstruct other
omnibuses, had driven to obstruct the omnibus of the plaintiff. In the case, the Court held that the
defendant company was liable for the act of driver because the driver’s act of driving the omnibus
was within the scope of the course of employment.
In Peterson v. Royal Oak Hotel Ltd. (1948) N.Z.I.R. 136, The plaintiff was a customer who on
being intoxicated was refused further drinks by the barman, who was employed under the
respondent and thus the plaintiff threw a glass at him. The barman took a piece of the glass and
threw it at him which hit his eye. The respondent hotel was held liable due to the act of the
barman who had a master-servant relation with them.

22. CONTD.
5. Wrong by Servant’s Fraudulent Act- A master can also be held liable for any fraudulent
act of the servant.
In Lloyd v. Grace Smith & Co. (1912) A.C. 716, the plaintiff was a widow who owned
1000 pounds as dues on a mortgage and a cottage. She went to the manager of the defendant,
which was a firm of solicitors, and she asked for his advice to get richer. The manager told
her to sell her cottage and to call up the amount of mortgage. She authorized the manager to
sell the property and to collect her money but he absconded with the money. Thus, she sued
the defendant company. It was held that the defendant was liable for the fraudulent act of the
manager because even a fraudulent act is not authorized, the manager was authorized to take
her signature and thus it was within the course of employment.
Illustration: If A goes to a bank and deposits a check with C, an employee of the bank and
C fraudulently transfers that amount to his wife’s account. Here for the fraudulent act of C,
the bank will be liable.

23. CONTD.
6. Negligent delegation of authority by the servant- If a servant negligently delegates his
authority and instead of himself carefully performing a duty allows it to be negligently performed
by another person, the master will be liable for such negligence of the servant. Thus, if a driver
instead of himself driving the bus, allows somebody else to drive the same, it would amount to
negligent mode of performance of the duty by the driver. If that other person, whom the driver has
thus authorized to drive, causes an accident, the master will be liable for the consequences. The
reason for such a liability of the master is not that the person (other than the driver) while driving
the bus was acting in the course of employment but that the driver's original negligence in
delegating his authority to drive is the effective cause of the accident.
In Baldeo Raj v. Deowati, 1986 ACJ 906 the driver of a truck sat by the side of the conductor
and allowed the conductor to drive. The conductor caused an accident with a rickshaw as a result
of which a rickshaw passenger died. It was held that the act of the driver in permitting the
conductor to drive the vehicle at the relevant time was a breach of duty by the driver, and that was
the direct cause of the accident. For such negligence of the driver his master was held vicariously
liable.

24. EXCEPTIONS
The general rule that an employer is not liable for the acts of an independent contractor is subject
to some exceptions. In the following exceptional cases, an employer can be made liable for the
wrongs of the independent contractor :
If an employer authorizes the doing of an illegal act, or subsequently ratifies the same, he can be
made liable for such an act. The real reason for such a liability is that the employer himself is a
party to the wrongful act, along with the independent contractor, and, therefore, he is liable as a
joint tortfeasor.
An employer is liable for the act of an independent contractor in cases of strict liability. In
Rylands v. Fletcher,2 the employer could not escape the liability for the damage caused to the
plaintiff, when the escape of water from a reservoir got which was constructed by the defendant
from an independent contractor, flooded the plaintiff's coalmine.
Similar is the position in the case of extra hazardous work which has been entrusted to an
independent contractor,3 and in a case of breach of statutory duty. In Maganbhai v. Ishwarbhai,
A.I.R. 1984 Guj. 69 the chief trustee of the properties of a temple called upon an electric
contractor to illegally divert the electric supply given for agricultural purpose, to the temple for
one month, for providing facility of lighting and mike in the temple.

25. CONTD.
The job was executed in a palpably-obvious hazardous manner, and without informing
the Electricity Board. After about a fortnight, the service line was snapped and the
agriculturist, who was working in his field, got injured by electric current. It was held
that the trustee, who got the hazardous job done, as well as the owner of the field, from
whose meter and with whose knowledge such connection was taken, were liable.
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 liable irrespective of the fact that the act
causing the said damage was done by an independent contractor.
When the tort results in the breach of a master's Common Law duties to his servant, he
would be liable for the same and it is no defence that the master was acting through an
independent contractor.

26. PRINCIPALAND AGENT
Where one person authorizes another to commit a tort, the liability for that will not only
be borne by that person who has committed it, but also of those who authorized it.
It is based on the general principle "Qui facit per alium facit per se" which implies that
"the act of an agent is the act of the principal."
For the acts which are authorized by the principal and performed by the agent, both the
Principal and the agent are liable. Their liability is joint and several.
However, the act may be committed with an express authority or implied. It may seem
improbable that a Principal requires his agent to do any wrongful task, but the only
concern here is whether the wrong was done in the ordinary course of employment of
the agent.
In Ormrod v Crossville Motor Service Ltd, the owner of a car had requested his
companion to drive the said car. In the course of the car being driven by the friend, it
came into collision with a bus. It was held that the friend acted as the agent of the owner,
and the owner was held vicariously liable for such wrong.

27. CONTD.
In State Bank of India v. Shyama Devi, AIR 1978 SC 1263 the plaintiff’s husband gave
some amount and cheques to his friend, who was an employee in the defendant bank, for
being deposited in the plaintiff’s account. No proper receipt for the deposits was obtained.
The bank employee misappropriated the amount. It was held by the Supreme Court that the
employee, when he committed the fraud, was not acting in the scope of bank’s employment
but in his private capacity as the depositor’s friend, therefore, the defendant bank could not
be made liable for the same. In Lloyd v. Grace Smith & Co., (1012) AC 716, the managing
clerk of a firm of solicitors, while acting in the ordinary course of business, committed fraud
against a lady client and got transferred her immovable property for his own benefit was held
liable along with the agent.
Where the agent has done an act without the express or implied authorization of the
principal, the principal may still be made liable if he ratifies the agent’s act but the act that is
ratified must have been done by the agent on his own behalf of the principal.[3] If it is not
done on behalf of the principle but by the agent on his own behalf, the principal cannot be
held liable for such act.

28. PARTNERS
Since the relationship between partners resembles that of an agent and a principal,
therefore, the liability here is also derived from the principle of the rule of agency. Thus,
in the case of a partnership firm, for the wrongs committed by one partner, all the other
partners are equally liable for the act, as the guilty partner. The liability of each partner
in a firm is joint and several.
In Hamlyn v. Houston & Co., (1903) 1 K.B. 81 one of the two partners of the
defendant's firm, acting within the general scope of his authority as a partner, bribed the
plaintiff's clerk and induced him to make a breach of contract with his employer
(plaintiff) by divulging secrets relating to his employer's business.
Both the partners of the firm were held to be liable for this wrongful act (inducing
breach of contract) committed by only one of them.

29. JUDICIAL PRONOUCEMENTS
Performing Right Society Ltd. v Mitchell, etc. Ltd., (1924) 1 K.B. 762.
The defendants engaged a band called ‘The Original Lyrical five’ to play at their dance hall,
and the band played two songs without the permission of the claimants, the owners of the
copyright. It was held that the members of the band were employees of the defendants who
were liable for the breach of copyright.
MCCARDIE J.: The nature of the task undertaken, the freedom of action given, the
magnitude of the contract amount, the manner in which it is to be paid, the powers of
dismissal and the circumstances under which payment of the reward may be withheld, all
these bear on the solution of the question … it seems, however, reasonably clear that the
final test, if there be a final test, and certainly the test to be generally applied, lies in the
nature and degree of the detailed control over the person alleged to be servant. This
circumstances, of course, one only of several to be considered, but it is usually of vital
importance

30. CONTD.
The point is put well in Pollock
“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.”

31. CONTD.
Mersey Docks and Harbour Board v Coggins and Griffith Ltd., (1946) 2 ALL ER 345.
The harbour board hired out a mobile crane, together with a driver, Mr. Newall, to the defendant
stevedores. Mr. Newall was paid and liable to be dismissed by the board, but the contract of hire
stated that he was to be regarded as the employee of the stevedores. The stevedores could tell him
what to do, but not how he was to operate the crane. Mr. Newall negligently injured Mr.
McFarlane. On the question whether the board or the stevedores were to be held vicariously liable
for the negligence of Mr. Newall, the board was liable.
LORD PORTER: Many factors have a bearing on the result. Who is paymaster, who can dismiss,
how long the alternative service lasts, what machinery is employed, have all to be kept in mind.
The expressions used in any individual case must always be considered in regard to the subject
matter under discussion but amongst the many tests suggested I think that the most satisfactory,
by which to ascertain who is the employer at any particular time, is to ask who is entitled to tell
the employee the way in which he is to do the work upon which he is engaged. If someone other
than his general employer is authorized to do this he will, as a rule, be the person liable for the
employee's negligence. But it is not enough that the task to be performed should be under his
control, he must also control the method of performing it. It is true that in most cases no orders as
to how a job should be done are given or required: the man is left to do his own work in his own
way.

32. CONTD.
But the ultimate question is 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.
Where a man driving a mechanical device, such as a crane, is sent to perform a task, it is
easier to infer that the general employer continues to control the method of performance
since it is his crane and the driver remains responsible to him for its safe keeping. In the
present case if the appellants' contention were to prevail, the crane driver would change
his employer each time he embarked on the discharge of a fresh ship. Indeed, he might
change it from day to day, without any say as to who his master should be and with all
the concomitant disadvantages of uncertainty as to who should be responsible for his
insurance in respect of health, unemployment and accident. I cannot think that such a
conclusion is to be drawn from the facts established. I would dismiss the appeal.

33. CONTD.
The Punjab & Haryana High Court in its Full Bench decision in Prithi Singh v. Binda Ram
held that if the driver was otherwise, acting in the course of employment, the master would
be liable, even though the servant acted against the express instructions of the master or in
violation of the Rules framed under a Statute (Motor Vehicles Act).
In this case, the driver of a truck gave lift to a person unauthorizedly in contravention of
Rule 460, Punjab Motor Vehicles Rules, 1940. Due to the negligent driving by the driver, the
truck met with an accident, resulting in injuries and consequent death of the passenger. It
was held that the owner of the truck could not be absolved from his vicarious liability,
simply because the driver, his employee, carried the deceased as a passenger in the truck in
contravention of the provisions of Rule 460, Punjab Motor Vehicles Rules, 1940. The owner
of the truck, therefore, was held vicariously liable.

34. THE DOCTRINE OF COMMON EMPLOYMENT
The rule known as the doctrine of Common Employment was an exception to the rule
that a master is liable for the wrongs of his servant committed in the course of his
employment. The rule was first applied in 1837 in Priestley v. Fowler,1 developed in
1850 in Hutchinston v. York, New Castle and Berwick Rail Co.(1850) 5 Exch. 343.
and it was firmly established as a part of English law by subsequent decisions. The
doctrine was that a master was not liable for the negligent harm done by one servant to
another fellow servant acting in the course of their common employment.
In Priestley v. Fowler, (1837) 3 M. and W. 1., the plaintiff, who was the defendant's
servant, was injured at his thigh due to breaking down of an overloaded carriage in the
charge of another servant of the defendant. Since both the wrongdoer and the injured
person were the servants of the same master, the doctrine of common employment was
applicable and the master was held not liable.

35. POSITION IN ENGLAND
The doctrine was supposed to be based upon an implied contract of service that the servant agreed
to run risks naturally incident to the employment, including the risks of negligence on the part of
his fellow employee.4 If the harm was caused by the employer's own negligence, the employee
could recover,5 unless the employee's claim was defeated because of his contributory
negligence.6 Mere knowledge of the risk by the workmen was, however, no defence.7
The doctrine was obviously unjust. The doctrine was criticized, limited in scope by legislation
and judicial decisions and eventually abolished by the Law Reform (Personal Injuries) Act, 1948.
Beginning with the Act of 1897, a series of Workmen's Compensation Acts were passed. The
most important of these is the Workmen's Compensation Act, 1925. The employer was bound to
pay compensation for any personal injury caused to its servants by an accident arising out of and
in the course of the employment.
The doctrine was eventually abolished by the Law Reform (Personal Injuries) Act, 1948, which
provided that : "It shall not be a defence to an employer who is sued in respect of personal injuries
caused by the negligence of a person employed by him, that the person was, at the time the
injuries were caused, in common employment with the person injured."

36. POSITION IN INDIA
In India, the matter came for discussion in a number of cases. In Secretary of State v.
Rukminibai, A.I.R. 1940 P.C. 225 the plaintiff's husband, and employee in the G.I.P.
Ry. was killed because of the negligence of a fellow employee. The Nagpur High Court
allowed the action. Stone, C.J. expressed the view that the rule was an unsafe guide for
decision in India.
In a later decision, Governor General in Council v, Constance Zena Wells, A.I.R.
1950 P.C. 22 the Privy Council held that the doctrine of Common Employment was
applicable in India, although its scope has been limited by the Indian Employers'
Liability Act, 1938, S. 3 (d). In that case, the plaintiff's husband, who was fireman in the
defendant's railways was killed in an accident caused by the negligence of a fellow
employee, a railway driver. The Privy Council held that the defence of common
employment was available to the defendant and the plaintiff's claim for compensation
was dismissed.

37. CONTD.
Apart from the Employers' Liability Act, 1938, the scope of the doctrine has also been
limited by The Workmen's Compensation Act, 1923, the Employees' State Insurance Act,
1948 and the Personal Injury (Compensation Insurance) Act, 1963 which imposed
liability on the employers to compensate their employees in various cases. Due to the
difficulty created by the Privy Council's decisions in Constance Zena Wells' case, which
still recognized the defence of Common Employment in India, Section 3 of Employers'
Liability Act, 1938 has been amended in 1951. By this amendment, the defence of
Common Employment, as such has been abolished in India.
The law with regard to the vicarious liability is evolving and developing. Over the years,
the approach of the Courts is becoming more liberal and the trend is moving towards
making the master liable for the acts of the servant. Besides, the judicial
pronouncements, the concept of no fault liability has been introduced in the Motor
Vehicles Act, 1988. The trend is, thus, to make the master responsible for the acts of the
servant.