Normally the liability for the wrong done lies on the person who has committed it. But to this general rule there are exceptions.
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The exceptions are provided by the doctrine of vicarious liability, where one person is made liable for the wrongful act of another. Criminal law is never vicarious. It is only in civil law that vicarious liability is recognised in two eases. They are as under:
1. Master and Servant:
ADVERTISEMENTS:
The liability of a master for the torts of his servant is an example of vicarious liability, i.e., where is liable, for the tort of B committed against C, though A is no party to the tort. B himself is, of course, usually liable.
A servant is one whose work is under the control of another. Unless the wrong done falls within the course of the servant’s employment, the master is not liable.
Thus, a master is liable if the wrong be the natural consequences of something done by the servant in execution of the specific orders of the master.
The master is also liable for the servant’s want of care in carrying out the work entrusted to him or if the servant exceeds the authority given to him in mistaken notion of his duty provided the servant purported lo act on behalf of his master.
ADVERTISEMENTS:
The master is also liable for willful wrongs done by the servant on behalf of the master because that act done may still be in the course of employment even if it was forbidden by the master.
Thus, the master is liable if any accident occurs due to the driver racing with other omnibuses in spite of his (master’s) instruction not to do so, because the driver intended to benefit his master to get more passengers. The master is similarly liable for the mistake of his servant as a misguided enthusiast.
Salmond justifies the responsibility of the master for the acts or omissions of the servant because, when the act is done in the course of employment on the master’s business, the presumption is that it was done with his implied consent; because it would be difficult to furnish proof that the act was done under the orders of the master; because the master should suffer for his negligence in employing a servant who has committed wrongful acts and, lastly, because damages could easily be obtained from the employers who are usually capable of the burden of civil liability.
2. Representatives of a Dead Man:
Another form of vicarious liability is that of living representatives for the acts of dead persons. The Common Law maxim was action personal is marital cum persona, i.e., a personal action dies with the person, or death extinguishes liability in tort. This rule of law has to a great extent been abrogated by statutory provisions, as also at Common Law.
ADVERTISEMENTS:
(i) At Common Law (a) Actions on contract—Death is no discharge of a debt, (b) Where property of the proceeds or value of property belonging to the plaintiff have been appropriated by a person since deceased and have been added to his own estate, the plaintiff can sue the deceased’s personal representatives for the recovery of such property, value or its proceeds.
(ii) By statute the statutory exceptions are now embodied in the Law Reform (Miscellaneous Provisions) Act, 1934, whereby it is provided that:
(a) All causes of action subsisting against or vested in any person on his death shall survive against or, as the case may be, for the benefit of his estate. But this does not apply to causes of action for defamation, seduction inducing one spouse to leave or remain apart from the other, or damages for adultery;
(b) Where a cause of action survives, the damages recoverable for the benefit of the estate shall not include exemplary damages;
(c) No proceedings in tort are maintainable under the Act against the estate of a deceased person unless either the proceedings were pending against him at the date of his death, or the cause of action arose not earlier than six months before his death and proceedings are taken in respect thereof not later than six months after his personal representative look out representation; and
(d) Where damage has been suffered by reason of any act or omission in respect of which a cause of action would have subsisted against any person if that person had not died before or at the same time as the damage was suffered, there shall be deemed to have been subsisting against him before his death such cause of action in respect of that act or omission as would have subsisted if he had died after the damage was suffered.