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The purpose of laws and sanctions is to bring a sense of responsibility and most importantly to bring a fear that if you do something wrong you will be punished or if you cause damage to someone even without any intention you will have to compensate the person who you have caused wrong. But what if you are not in the position to compensate? Don’t worry law is not that rigid it does not aim to hurt someone it only aims to do justice, this is the reason why in-laws also there exist exceptions but what if those exceptions are misused? Is the law not being too rigid problematic? In this article, we will look into an exception of tort law that is vicarious liability and we will analyze the uses and abuse of this exception.


Vicarious liability is where a person committing a tort, a third party is involved and is held liable for the actions committed by the person. In this, the third party will be held liable only if they have the right and duty to control the activities of the negligent person. This is an exception to the rule in tort that a person who commits the tort wrong is liable but there should be a certain kind of relationship for example if A works for B and during the course of employment commits a tort then B is also held liable under vicarious liability as they have an employer-employee relationship. This liability is under the principle ‘respondent superior” which means let the master answer. This means that the employee must be performing duties for the employer at the time of committing the wrongful act. This liability also comes under the maxim ‘Qui facit per alium facit per se’ which means the one who acts through another, acts in his interests. Following are examples of those relationships:

  • Principle-agent
  • Partners
  • Employer-employee 
  • Master- servant 


The main elements of vicarious liability are that the wrongful act must be committed during the course of employment, there should be a relationship between the parties and the act should be committed under the scope of the employment. Any act under the scope of employment is an activity that is directed and controlled by the master. For intentional torts or criminal acts to come under vicarious liability either the master should have foreseen the act or the act committed should be required by the employer.


The main reason for vicarious liability being an exception to tort law is that a servant is duty-bound to his master and is supposed to work according to his master so while doing the prescribed work if the servant commits a wrongful act the master is to be held as the servant was only performing his duty as the master asked him to. The profit-maker from the work done by the servant is the master so he must also bear the losses or contribute to compensating the defendant. The master is more financially capable than the servant and is the suitable one to pay the damages.

The doctrine of vicarious liability is to maintain a legitimate position within our justice system; its main purpose is to have an efficient loss distribution system.[1]The main purpose of this exception is to make administration of justice easy, if the defendant has been harmed, he is to be fairly compensated, and the wrongdoer who has caused the harm while performing an activity on behalf of the requestor or on the order of his superior, the wrongdoer becomes a middleman, and it is fair for the superior to pay the damages because he is the one making money and controlling the activity.


However, despite the fact that vicarious responsibility serves a legitimate purpose, there are chances that this exception can be misused, for instance in a master-servant relationship the servant is using the exception of vicarious liability for his personal use or to fulfill his motives in the course of employment and within the scope of employment then holding the master liable could lead to miscarriage of justice as the wrong person will be held liable. There could be another instance where the servant has some personal problems with his master and with a malaise, intention commits a wrong to make the master to be held liable will also be misusing vicarious liability. For another instance let’s take an example to suppose, A owns transportation services and B works as a truck driver under A. A asks B to transport certain goods and B is supposed to transport them at night. During transporting the goods B consumes alcohol. B is well aware that drinking and driving is an offense and could lead him to pay of fine or compensate the one who is hit, but he also knows that as he is in the course of employment even if he hits someone A will be held liable. So this is the reason why he consumes alcohol because after all if you know what you’re doing is wrong but won’t suffer the consequences, would you still do it? You may not commit that wrong, but your chances of doing so will increase, so why would B not drink in the above scenario? Let’s suppose there is no such exception of vicarious liability and B is well aware that he will be the one who will be held liable, now will he still consume alcohol, the chances of him, not drinking becomes high as he will be scared that he will have to compensate. 


According to John Austin law should obligate a person to maintain a course of conduct. Justice is not only compensating the defendant it is also holding the right person liable, even though if the servant is not in the position to compensate and is financially unstable then only the master should be held liable and still there should be a fair distribution of losses. Even though the purpose of this exception is good but it lessens the sense of responsibility and obligation in people. We have seen that individuals do misuse the exceptions given in the law but properly analyzing the case and looking into the fact that such exception should really be applied to that case and also limiting the scope of this exception could lead to fair use of vicarious liability. I agree and believe that vicarious liability is helpful but I also believe that this could be misused in the stated ways and other ways possible which could lead to holding a wrong person liable.

Author(s) Name: Shivanshi Shukla (Nirma University, Ahmedabad)                                                   


[1] McIvor, C., 2006. The Use and Abuse of the Doctrine of Vicarious Liability. Common-Law World Review, 35(4), pp.268-296.