There are numerous circumstances that exist, where a person can be held liable for his actions. Sometimes this liability can be intentional, unintentional or through no fault of his own. We must now consider the circumstances in which a person may be held liable for a tort committed by another, that is, where A is held liable for the tort of B committed against C, although A is no party to the tort. This is called vicarious liability.
Liability of a Master for the Torts of his Servant:
The relationship of master and servant usually exists when one person employs another to do work for him on the terms that he, the servant, is to be subject to the control and direction of his employer in respect of the manner in which the work is to done. If the employer controls the way in which the work is to be done, then the relationship of master and servant exists.
A master is liable for all torts committed by his servant in the course of his employment. Whether a particular tort is committed in the course of the servant’s employment is a question of fact. The following principles may be laid down, however. A tort is committed by the servant in the course of his employment if it consists of:
(i) A wrongful act or omission expressly or impliedly authorized by the master; or
(ii) A wrongful act or omission which is an unauthorized manner of doing something authorized by the master; or
(ii) A wrongful and unauthorized act or omission which is subsequently ratified by the master.
A tort is not committed in the course of the employment if the servant was acting wholly for his own purposes, not for his master’s. (The servant is sometimes then described as being “on a frolic of his own”.)
The basis of his liability of a master is that a person who employs others to do for him what he would otherwise have to do for himself is liable to answer to third parties not merely for the instructions that he gives but also for the manner in which those instructions are carried out. A master is therefore responsible not only for what he authorizes his servant to do, but also for the way in which the servant does it. If a servant performs his duties negligently his master will be liable, for the servant is merely doing in an improper way what he was employed to do properly.
Liability of an Employer for the Torts of his Independent Contractor:
“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 before hand”.
An employer who employs an independent contractor to do work for him is, in general, not liable for the torts of the independent contractor.
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