vicarious liability

What is meant by vicarious liability

A man is liable for his own acts. Generally no one is responsible for others wrongful acts. But certain circumstances, a man may be held liable for wrongful acts of others. If he is liable for others, it is called vicarious liability.


Example:

Liability of principal for wrongful acts of his agent
Liability of Master for wrongful acts of his servant
Liability of Partners for each others tort.

The doctrine makes the employer responsible for a lack of care on the part of an employee in relation to those to whom the employer owes a duty of care. For respondeat superior to apply, the employee's negligence must occur within the scope of her employment

Exmple: A referred as Master B referred as servant. A has got car. A allows B to drive a car. B has no driving licence and also not perfect driver.In case B commits accident, A is liable. That means A is vicariously liable i.e wrongful acts of his servant.

If the servant distrubs the public while performing his duty entrusted by his principal, then the Principal is liable for public nusiance.

Intersting case about vicarious liability - source legalserviceindia.com
State of Haryana v. Santra
The ratio of this case was on the principles of state liability for negligence. Here it was clearly established that the doctor while performing the operation was acting as a government servant and acting in the course of employment of the government. Hence when there was negligence, it amounted to acting in bad faith, and so the defence of sovereign immunity could not be used by the state. Moreover it was also held that such negligence which could have been perceived by a professional who had a duty to do so should take into consideration these matters and cannot escape liability by claiming defence of consent by the petitioner.

The respondent in the above case was a poor lady who went under a sterilization operation at the General Hospital, Gurgaon, as she already had seven children and wanted to take advantage of the family planning scheme launched by the State Government of Haryana. Smt. Santra was informed that she would not conceive in future. Smt. Santra approached the Chief Medical Officer, Gurgaon, for her sterilization in 1988. But she gave birth to a female child. This led her to file a suit claiming Rs. 2 lakhs as damages for medical negligence due to “failed sterilization” which was decreed for a sum of Rs. 54,000/- with interest at the rate of 12 per cent per annum from the date of institution of the suit till the payment of the decretal amount. Two appeals were filed against this decree in the court of District Judge, Gurgaon, which were disposed of by Addl. District Judge, Gurgaon, by a common judgment dated 10.5.1999. Both the appeals - one filed by the State of Haryana and the other by Smt. Santra were dismissed. The second appeal filed by the State of Haryana was summarily dismissed by the Punjab & Haryana High Court on 3.8.1999.

There are two major issues involved in the case. One is that there was negligence on the part of the doctor who operated on her as the operation was a failure. Moreover as the operation took place in a Government Hospital, the state should be vicariously liable for the negligent act of its servant in the course of employment. This law also deals with the Hindu Adoptions and Maintenance act, 1956, Ss.20 and 23.the principle involved for the above claim is the vicarious liability of the state for the negligence of its doctors.

In reply to the claim of compensation of Rs. 2 lakhs by the respondent, the officers defending the state argued that during the time of the operation only the right Fallopian tube was operated on and the left tube was left untouched. The appellants also argued that the negligence on the part of the doctors would not make the state vicariously liable and that the damages paid to her for the maintenance of the child could not be decreed as there was no element of tort involved. It was further pleaded that Smt. Santra had herself put her thumb impression on a paper containing a recital that in case the operation was not successful, she would not claim any damages. It was pleaded that she was estopped from raising the plea of negligence or from claiming damages for an unsuccessful sterilization operation from the State.

After the District Court dismissed the matter giving a compensation of Rs 54,000 and an interest rate of 12% per annum, the State filed a suit in the Supreme Court challenging the decision. Due to the failure of the operation and the conceivement of the child, the respondent had filed a suit claiming for damages worth Rs. 2 lakhs for the maintenance of the child and herself as she already as seven children. The respondent claimed that if she had offered herself for complete sterilization operation, both the Fallopian tubes should have been operated upon. The doctor who performed the operation acted in the most negligent manner.

Moreover she also stated that as the operation was carried out in a government hospital and the doctor being a government servant, the state was vicariously liable for the act of the doctor as a servant of the State.

Judgment:
The explanation given by the appellants for absence of state liability was rejected by the trial court which the suit for a sum of Rs. 54,000 with pendate lite and future interest at 12% per annum. The decision was confirmed by the Appellant Court and State High Court. The trial court as also the lower appellate court both recorded concurrent findings of fact that the sterilisation operation performed upon Smt. Santra was not 'complete' as in that operation only the right Fallopian Tube was operated upon while the left Tube was left untouched. The courts were of the opinion that this exhibited negligence on the part of the Medical Officer who performed the operation. Smt. Santra, in spite of the unsuccessful operation, was informed that sterilisation operation was successful and that she would not conceive any child in future. The plea of estoppel raised by the defendants was also rejected. The amount of Rs. 54,000/- which has been decreed by the courts below represents the amount of expenses which Smt. Santra would have to incur at the rate of Rs. 2,000/- per annum in bringing up the child up to the age of puberty.

Having regard to the above facts the court said that Smt. Santra was entitled to full compensation from the State Government and appeal was dismissed but without any order as to cost.


Conclusion: By allowing innocent party to pay compensation for tort committed by others i.e. servant/agent/employee. it is unjust.