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Principles on which vicarious liability is based Essay

The doctrine of vicarious liability is based on principles which can be summed up in the following two maxims : (a) Qui facit per alium facit per se :- The maxim means, ‘he who acts through another is deemed in deemed in law as doing it himself’. The master’s responsibility for the servant’s act had also its origins in this principle. The reasoning is that a person who puts another in his place to do a class of acts in his absence, necessarily leaves to determine, according to the circumstances that arise, when an act of that class is to be done and trust him for the manner in which it is done; consequently he is answerable for the wrong of the person so entrusted either in the manner of doing such an act, or in doing such an act under circumstances in which it ought not to have been done ; provided what is done is not done from any caprice of the servant but in the course of the employment.

(b) Respondeat superior :- Another maxim usually referred to in this connection is respondeat superior, i.e., the superior must be responsible or let the principal be liable. In such cases not only he who obeys but also he who commands becomes equally liable. This rule has its origin in the legal presumption that all acts done by the servant in and about his master’s business are done by his master’s express or implied authority and are, in truth, the act of the master. The master is answerable for every such wrong of the servant as is committed in the course of his service, though no express command or privity is proved. Similarly, a principal and agent are jointly and severally liable as joint wrong-doers for any tort authorised by the former and committed by the latter.

(c) Modern view :- In recent times, however, the doctrine of vicarious liability is justified on the principle other than that embodied in the above-mentioned maxims. It is now believed that the underlying idea of this doctrine is that of expediency and public policy. Salmond has rightly remarked in this connection that “there is one idea which is found in the judgements from the time of Sir John Holt to that of Lord Goddard, namely, public policy.”

The view of Lord Pearce can be quoted here with approval, which he expressed in Imperial Chemical Industries, Ltd v. Shatwell “The doctrine of vicarious liability has not grown from any very clear, logical or legal principle but from social convenience and rough justice. The master having (presumably for his own benefit) employed the servants, and being (presumably) better able to make good any damage which may occasionally result from the arrangement, is answerable to the world at large for all torts committed by his servant within the scope of it.” In the words of Winfield, this may not satisfy the jurist or the logician, but it probably represents the prevailing stage of legal opinion on the matter and though the future may bring further extensions of vicarious liability, it is inconceivable that a serious proposal for its abolition will be made so long as the law of tort as we know it remains alive.1

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