This Article is written by Mridushi Damani student of Hidayatullah National Law University.
The concept of Vicarious Liability and Strict Liability can be found in the Law of Torts which discusses the laws relating to various public wrongs. While it can be stated that the concept of Vicarious Liability relates to the liability of an Employer for the acts done by his employee, the concept of Strict Liability relates to the liability of an individual which does not depend on actual negligence or even the intention to cause harm.
Vicarious Liability refers to the existence of the liability of a person for the act done or omitted by another person. However, for the existence of such vicarious liability, there should be a certain relationship between the two individuals which must exist as a prerequisite, like that of a principal and agent, or the relationship between partners or even that of a master and servant.
It is the existence of this relationship that binds the two individuals together thereby making one liable for the acts of another. The concept of vicarious liability is therefore also considered to be an exception to the general Law of Torts where an individual is liable only for the acts done by him.
While elaborating upon the concept, Lord Chelmsford stated that “It has long been established by law that a master is liable to third person for any injury or damage done through the negligence or unskilfulness of a servant acting in his master’s employ. The reason for this is, that every act which is done by a 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”.
It can thus be inferred that there are 3 main constituents for the existence of vicarious liability, which are namely,
- There must be a certain kind of principal-agent or master-servant or partnership relationship existing between the individuals.
- The wrongful act committed should be related to the relationship.
- The wrong should be done in the course of employment.
The difference in the relationship between an employer, and that of a servant and an independent contractor should be noted in this regard. Though both of them are employed by the employer, the legal relationship which the employer bears with both of them is quite different. While the servant has a “contract of service” with the employer, the independent contractor bears a “contract for services” with the employer. Justice Mckardie stated the difference between the two, in the landmark case of Performing Right Society Ltd. v Mitchell, etc. Ltd. wherein it was held that in the case of a servant, the employer not only directs him as to what to do but also controls the manner in which he works. However, in the case of an independent contractor the employee only has the authority to direct as to what needs to be done, he has no authority to specify and control the process of getting the work done.
It is this Traditional Test i.e. “the control test” which determines the existence of this “contract of service” which in turn determines the existence of vicarious liability of the principal. However, with the passage of time, the modern view is that in the present times, ‘the control test’ is not quite applicable as it bricks down when it is applied to skillful and professional work, and thus, it cannot be treated as an exclusive test. This was also upheld by the Supreme Court in the case of Dharangadhara Chemical Works Ltd. v State of Saurashtra.
Therefore, the concept of vicarious liability which is based on the legal maxim qui facit per alium facit per se, i.e. ‘he who does an act through another is deemed in law to do it himself’ forms an integral part of the law of torts.
In the law of torts, the concept of Strict Liability refers to the liability of an individual as a consequence of certain events even though he had no mal intention of causing harm. In the landmark case of Rylands v Fletcher which forms a leading authority in this concept, it was held that “any person who for his own purposes brings on his lands, collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape”
Thus, if one keeps a cylinder of extremely toxic gas in his warehouse, and the gas leaks, according to the doctrine of Strict Liability, he shall be liable for all the damages caused due to the leakage of the gas irrespective of the fact that the owner of the warehouse had no mal intention of causing harm.
Further, the law imposes the doctrine of strict liability in situations which may be considered as inherently dangerous in nature in order to discourage behaviour of reckless nature and avoid unnecessary loss by forcing potential defendants to take every step and precaution to avoid a mishap.
There are mainly 3 categories of Strict Liability, namely:
- Keeping wild animals
- Ultra-hazardous Activities
- Consumer Product Liability
The first category, which relates to the keeping of wild animals, includes any harm which such an animal can cause to any other person, the second category, relating to ultra-hazardous activities involves any harm caused resulting out of these activities whether during transportation, explosion, leakage, etc. from products which are extremely dangerous in nature such as toxic wastes, poisonous gas, etc. Lastly, consumer product liability refers to all harms caused due to the manufacture and sale of products that have undisclosed side effects, or due to being defective in nature, cause serious injury to the consumer, or contain harmful ingredients which can cause serious damage, etc.
Therefore, even though the three categories are quite different from each other, what they do have in common is a high degree of responsibility on the owner.
In cases of strict liability, the defendant can, however, take the defence of absence of fault, especially in cases involving product liability where the defence may argue that the defect was the result of the plaintiff’s actions and not of the product, that is, no inference of defect should be drawn solely because an accident occurs, as observed in the case of Hinckley v. La Mesa R.V. Center, Inc.
Hence, it can be concluded that both strict liability as well as vicarious liability form an integral part of the law of torts wherein both relate to and establish certain key concepts and factors which are essential for various other areas and applications of the legal world.
- Performing Right Society Ltd. v Mitchell, etc. Ltd. (1924) 1 KB 762.
- Dharangadhara Chemical Works Ltd v. State Of Saurashtra, 1957 AIR 264.
- Rylands v Fletcher,  UKHL 1.
- Hinckley v. La Mesa R.V. Center, Inc., 158 Cal. App.3d 630, 205 Cal. Rptr. 22 (1984).