The doctrine of vicarious liability is one of the most controversial types of law. For years, practitioners and scholars have described it as a law that is underpinned on one of the most ambiguous jurisprudence. Generally, the academic literature on vicarious liability fails to separate agency and secondary liability as applied in the doctrine. Vicarious liability entails the apportionment of liability to another person other than the tortfeasor. The doctrine is mainly applied within organization where there exists an employer-employee relationship. An employer will be liable for the tortious acts of the employee when the said employee is within the scope of employment. Hypothetically, the doctrine of vicarious liability can be illustrated as a situation where X may incur to Y for the damage caused by Z although X may not have participated in the commission or omission leading to the damage. The doctrine is based on the maxim that the principal should be liable; and, anyone who does an act through another does it himself.
An employee works on behalf of the employer. The two parties have an agency relationship. That means that the employee works for and on behalf of the employer. Based on the maxims underpinning the doctrine of vicarious liability, the employer being the principal takes liability since whatever the employee does, he does on behalf of the employer meaning that it is the employer doing the act (Shao, 2019). Thus, the doctrine of vicarious liability has four limbs. First person A must have committed a tort. Second, A must be at the time of the commission of the tort have been an employee or agent of B. Third, when committing the tort, A must have been in the line of duty for B to be liable. Finally, liability of B does not necessarily exempt A from personal liability and thus they can be held as joint tortfeasors. Despite the ambiguity of the doctrine and its seemingly unjust approach as described by various scholars, the doctrine of vicarious has successfully thrived over the history.
It has become entrenched in common law gaining firm roots within Indian law, which borrows a lot from the commonwealth jurisprudence. The employer does not necessarily have to commit the torts. However, the law in India considers that the employers have an obligation to supervise their employees. Besides, the employer is reasonably supposed to come up with guidelines and internal policies that can prevent the employees from committing torts (Nolan, 2020). Since the employer is the principal, and the employer acts within the ambit of his instructions, it means that the employer has the capacity to exercise reasonable care to prevent harmful behavior. Furthermore, the courts also take various tests to establish whether the employer was vicariously liable. For instance, the court must establish that the employee’s conduct must be inexcusable and he must have been operating within the scope of employment (Jadhav, 2020). Therefore, one of the fundamental considerations that the court establishes is the relationship between employee and the employer. If the court establishes the person was an independent contractor, the employer is exempted.
Therefore, one of the most fundamental principle that the courts consider on matters regarding vicarious liability is the whether a person was an employee or an independent contractor. Ideally, the employer will not be liable for the acts or omissions of the independent contractor (Jadhav, 2020). However, it is imperative to note that the line between an independent contractor and an employee continues being thin as the work patterns and dynamics keep changing. Some workers will occupy an ambiguous position, which has them possess both the characteristics of an independent contractor and those of an employee (Shao, 2019). An employee is always under the close supervision of the employer. Thus, he is regarded as to be working under the instructions become an agent of the principal. On the other hand, an independent contractor, just as the name suggests works without supervision. They are self-employed and they work based on the work tendered for (Jadhav, 2020). However, there are dependent contractors who depend on a single client for work. Dependent contractors lead to liability to the employers.
Therefore, in the current case facing EIC Ltd, the issues to be considered is about the contractual obligations between the company and the two individuals. The question is all about the kind of employment relationships the parties had with the company (Shao, 2019). On the issue of the site manager, it is straightforward that he was an employee of the company. During the confrontation that ensued leading to the injuries of a local resident, the site manager was under the scope of employment. All along the site manager has been an employee of EIC Ltd. The general presumption is that the company should have proper guidelines, policies, and supervisions, which ensure that the employees abide by professionalism and comply with the laws of the land (Shao, 2019). The site manager was an agent of the company and thus his actions are deemed to be those of the employer. Thus, as held in the Supreme Court of India, when an agent commits a tortious act in the course of employment, the employer is equally liable.
On the other hand, the driver of the crane was also working for the company. Firstly, the facts provided indicate that he was not an employee of the company but a contractor. The issue of employment is wide within the scope of the doctrine of vicarious liability. However, it mainly entails the issue of whether the employer has direct supervision on the employee (Butlin & Allen, 2018). Besides, the issue of insurance and superannuation guides the courts in establishing whether a person falls within the scope of an employee. However, as previously mentioned some individuals although falling under the scope of contractors, they are dependent on the single client (Silink & Ryan, 2018). They may not be entitled to fixed wages or salary but they always work for the single client. That is the case with the driver who caused injuries to a passerby in the course of his duty. Although he is not an employee per se, he is a dependent contractor depending on EIC and the company ought to have issued him with proper training and guidance on how to avoid harmful behavior.
Butlin, S. F., & Allen QC, R. (2018). Worker status and vicarious liability: the need for coherence. University of Cambridge Faculty of Law Research Paper, (21).
Jadhav, V. V. (2020). Vicarious Liability.
Nolan, D. (2020). Reining in Vicarious Liability. Industrial Law Journal, 49(4), 609-625.
Shao, Y. (2019). Evolution of Vicarious Liability: How the Independent Contractor Defence Was Lost. Pub. Int. LJNZ, 6, 63.
Silink, A., & Ryan, D. (2018). Vicarious liability for independent contractors. The Cambridge Law Journal, 77(3), 458-461.