Vicarious Liability — Master & Servant, State Liability

“He who acts through another acts himself” — qui facit per alium facit per se. One person can be made to answer for the tort of another.

Master & Servant

A master is liable for the torts of his servant committed in the course of employment — respondeat superior (“let the master answer”). The employer has the deeper pocket and set the servant to work, so the loss is placed on the enterprise that created the risk.

• A servant is one whose employer controls how the work is done; an independent contractor decides that himself — and the employer is generally not liable for an independent contractor’s torts.

“In the Course of Employment”

This is the battleground of vicarious liability. It covers:

• an authorised act;
• a wrongful or unauthorised mode of doing an authorised act — Limpus v. London General Omnibus Co. (a driver racing against express orders); and
• even acts done for the servant’s own benefit if within the scope of duty — Lloyd v. Grace, Smith & Co. (a solicitor’s fraudulent clerk).

But a “frolic of his own” — an independent journey on the servant’s private business — takes him outside employment, and the master is not liable.

State Liability for Torts of Servants

The State can be sued for its servants’ torts (Art. 300 traces the liability back to the East India Company). The old line distinguished sovereign functions (immune) from non-sovereign functions (liable):

Modern courts have shrunk the sovereign shield almost to nothing, awarding compensation for breaches of fundamental rights under Arts. 32/226.

✏️ Sample Solved Problem (IRAC Method)

Problem: A bus driver is given printed instructions not to race with or obstruct other buses. In disobedience he races, obstructs a rival omnibus and causes a collision. Is the employer liable?

I — Issue

Whether an employer is vicariously liable when the servant causes harm while disobeying an express prohibition.

R — Rule

A master is liable for a wrongful or unauthorised mode of doing an authorised act, even one done against express orders, so long as it falls within the scope of employment. Limpus v. London General Omnibus Co. (1862) — a driver who, contrary to written instructions, obstructed a rival’s bus was acting in the course of employment; the master was liable.

A — Analysis

The decoy is the express prohibition — it tempts the conclusion that disobedience puts the act outside employment. Limpus rejects that: driving the bus was the servant’s job; racing and obstructing were merely a prohibited way of doing that authorised work, not a separate private venture. He had not gone off on a “frolic of his own.” A prohibition limiting how the job is done does not narrow the scope of employment.

C — Conclusion

The employer is vicariously liable. The driver’s disobedient racing was a wrongful mode of performing his authorised duty, committed in the course of employment (Limpus v. London General Omnibus Co.).

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