INTRODUCTION
Winfield’s definition of tort was as follows: “Tortious liability arises from the breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is redressable by an action for unliquidated damages.”
The tort is a legal term representing a violation where one person induces damage, injury, or harm to another person. The violation may emerge from intentional actions, a breach of duty as in negligence, or a breach of statutes.
The party that perpetrates the tort is called the tortfeasor. A tortfeasor incites tort liability, which means that they will have to compensate the victim for the harm that they bred them. In other words, the tortfeasor who is perceived to be “liable” or responsible for a person’s injuries will likely be obligated to pay damages.
Under most tort laws, the injury sustained by the plaintiff does not have to be physical. A tortfeasor may be asked to pay damages for additional types of harm, including emotional distress or a violation of personal rights.
The author will endeavour to explain the kinds of tortious liabilities and the concerned remedies in this article.
KINDS OF TORTIOUS LIABILITY
I. VICARIOUS LIABILITY
According to Pollok, I am responsible for the wrongful acts and not for the of my servant or agent because he does my act and therefore, it is my duty to see that he must do my act keeping in view the security of others.
Vicarious liability means the liability of a person for an act committed by another person and such liability arises due to the nature of the relation between the two. E.g., A is a driver who works for B and while driving B’s car for taking him to his office, he hits C, a pedestrian due to his negligence in driving. In such a case even though B was not driving the car he will still be liable for the accident which was caused due to negligence of A.
CONSTITUENTS OF VICARIOUS LIABILITY
So, the constituents of vicarious liability are:
1. There must be a relationship of a certain kind.
2. The wrongful act must be related to the relationship in a certain way.
3. The wrong has been done within the course of employment.
RELATIONS IN WHICH VICARIOUS LIABILITY ARISES
1. Master and Servant.
In a Master-Servant relationship, the master employs the services of the servant and he works on the command of the master and thus a special relation exists between the two and in case of a tort committed by the servant, his master is also held liable.
There are many cases in which a servant does an act for his master and thus in law, it is deemed that the master was doing that act himself, therefore if the servant commits an unlawful act the master was doing the act himself if the servant commits an unlawful act the master will also be held liable for the same. This liability of the master is based on the following two maxims:
A. Qui facit per alium facit per se:
It means that whenever a person gets something upon by another person then the person is viewed to be doing such an act himself.
Illustration: If A is the owner of many trucks and employs drivers to drive them for trade and in case one of his drivers gets into an accident because of his rash driving, then even though A did not drive the truck himself, he will be liable for the accident.
B. Respondent Superior:
It means that the superior should be held responsible for the acts done by his subordinate.
These two maxims have played a significant role in the development of the law of vicarious liability of the master.
- Essentials of Vicarious Liability in Master-Servant Relationship
These essential conditions have to be followed for the vicarious liability of the master to arise:
1. The servant has committed an act that amounts to a tort.
2. Such a tortious act is committed by the servant during his employment under the master.
- Various ways in which liability of the Master arises:
1. Wrong done as a natural consequence of an act by Servant for Master with due care
2. Wrong due to Negligence of Worker
3. Wrong by excess or mistaken execution of a lawful authority
4. A wrong committed willfully by a servant to serve the purpose of the master.
5. Wrong by Servant’s Fraudulent Act.
2. Partners in a Partnership Firm.
The relationship between partners is that of principal and agent. For the tort committed by any partner in the ordinary course of the business of the firm, all the other partners are liable therefore to the same extent as a guilty partner. The liability of each partner is joint and several.
3. Principal and Agent.
Where one person authorizes another to commit a tort, the liability for that will be not only of that person who has committed it but also of that who authorized it. it is based on the general principle that the act of an agent is the act of the principal. For any act authorized by the principal and done by the agent, both of them are liable. Their liability is joint and several. The authority to do the act may be express or implied.
4. Employer and Independent Contractor
In general, the employer is not liable merely because the independent contractor commits a tort in the course of his employment. However, the employer is liable only if he deemed to have committed a tort, this may happen in one of the following three ways:
1. When the employer authorizes him to commit a tort;
2. In torts of strict liability;
3. Negligence of independent contractor
4. State and its employees and servants: In England, the Crown is vicariously liable for the torts of its servant.
In India, the Government is liable for the acts and defaults, of its employees and servants, done in the exercise of its non-sovereign functions. If it is a sovereign function, it could claim immunity from the vicarious liability, otherwise not. Generally, the activities of commercial nature or those which are carried out by the private individuals are termed as non-sovereign functions.
5. Company and its Directors
6. Firm and its Partners
7. Guardian and Ward.
II. STRICT AND ABSOLUTE LIABILITY
There are situations when a person may be liable for some harm even though he is not negligent in causing the same, or there is no intention to cause them harm, or sometimes he may even have made some positive efforts to evert the same. In this connection, the rules laid down in two cases, firstly, in the decision of the House of Lords in Rylands vs. Fletcher (1868) and, secondly, in the decision of the Supreme Court of India in M.C. Mehta vs. Union of India (1987) may be noted.
The rule laid down in Rylands vs. Fletcher is generally known as the “Rule of Strict Liability”. While formulating the rule in M.C. Mehta vs. Union of India, the Supreme Court itself termed the liability recognized in this case as “Rule of Absolute Liability”.
- The Rule of Strict Liability
In Rylands vs. Fletcher (1868), the House of Lords laid down the rule of ‘No fault ‘liability. The liability recognized was Strict Liability, i.e., even if the defen