Normally and naturally, a person
who has done the wrongful act should alone be made liable for the injurious
consequences arising out of it. A person who is innocent of a crime or any
other wrongful act should not be made liable for it. But, in certain cases,
however, vicarious liability of one person for the act done by another person
may arise. The common examples of such liability are:-
1.
Liability of the Principal for the tort of his Agent,
2.
Liability of the Master and for the tort of his Servant,
3.
Liability of Partners of each other’s tort.
When one person authorizes
another to commit a tort, the liability for that will be only of that person
who has committed it but also of that who authorized it. It is based on the
general principle “Qui facit per alium facit per se” which
means that 'the act of an agent is the act of the principal'.
For the act authorized by the principal and done by the agent, both of them are
liable. Their liability is joint and several.
Similarly if a servant does a
wrongful act in the course of his employment, the master is liable for it. The
servant, of course, is liable. As the wrongful act of the servant is
deemed to be the act of the master as well.
The relationship as 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 the guilty partner. The liability of
each partner is joint and several.
The doctrine of vicarious
liability is also based on another maxim- “Respondeat Superior”,
which means ‘let the principal be liable’ and it puts
the master in the same position as if he had done the act himself. The reason
for this maxim seems to be the better position of the master/principal to meet
the claim because of his larger pocket and also ability to pass on the burden
of liability through insurance. The liability arises even though the servant
acted against the express instructions, and for no benefit of his master.
Essentials of the Rule:-
There are two essentials which
should be satisfied by a plaintiff before he can succeed against the defendant fixing
vicarious liability on him for any wrongful act done by the latter’s servant.
·
Establishment that the relationship of the master and the servant subsisted
between the defendant and the actual wrongdoer.
·
Prove that the wrongful act was done by the servant whilst he was engaged in
the course of employment of the defendant.
Distinction between
Servant and Independent Contractor:-
1. A
servant is one who works under the control of another; while an independent
contractor is one who undertakes to produce a given result, but so that in the
actual execution of the work he is not under the order or control of the person
for whom he does it and may use his own discretion in things not specified
beforehand.
2. A
servant is an agent who works directly under the supervision and direction of
his employer. An independent contractor is one who is his own master.
3. In
case of servant, there should be continuous, dominant and detailed control by
the master over every step in the activities of the servant. Servant is a
person engaged to obey his employer’s orders from time to time; while an
independent contractor is a person engaged to do certain work, but to exercise
his own discretion as to the mode and time of doing it- he is bound by his
contract and not by his employer’s orders.
Eg.- My car
driver is my servant. If he negligently knocks down X, I’ll be liable for that.
But if I hire a taxi for going to railway station and the taxi driver
negligently hits X, I’ll not be liable towards X because the driver is not my
servant but only an independent contractor. The driver alone will be liable for
that.
Servants with two
masters:-
A servant may simultaneously have
different masters in respect of different employments, eg.- where one master
lends his servant to another for a certain transaction. Which of the two is
liable depends upon the nature of the arrangement and the degree of control
exercised for which or under whose control was he working at the time?
Lord Simonds summed up the law by
saying that the hirer does not assume the responsibilities of any employer
unless he can direct not only what the workman is to do but also how he is to
do it.
Course of Employment:-
A master is liable for every tort
which he actually authorises. The liability of a master is not limited only to
the acts which he expressly authorises to be done but he is liable for such
torts also which are committed by his servants in the course of employment.
An act is deemed to be done in
the course of employment, if it is either:
1. A
wrongful act authorized by the master; or
2. A
wrongful and unauthorized mode of doing some act authorized by the master.
However, for an unauthorized act,
the liability arises if that is within the course of employment, i.e., it is a
wrongful mode of doing that what has been authorized. There is, however, no
liability for an act which is neither authorized nor a wrongful mode of doing
what has been authorized because the same is not considered to be within the
course of employment.
Vicarious Liability of the
State:
Article 300 of
the Constitution provides that the Union of India and the States are juristic persons
for the purpose of suit or proceedings. According to Article 300, the Union of
India and the State govt. can sue or be sued in the like cases.
The liability of the State
depends upon the act which it commits: Sovereign functions or
Non-sovereign functions:
The govt is not liable for
the torts committed by its servants in exercise of Sovereign powers;
whereas, it is liable for the torts which have been committed
in exercise of Non-sovereign powers/functions.
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DEFAMATION:-
The good name one bears or the
esteem in which one is held in society is one’s reputation.
Defamation is the publication of
a statement which tends to lower the reputation of a person in the estimation
of right thinking members of the society generally or which tends to make them
shun or avoid that person. Defamation is both a civil
and criminal wrong.
Defamation is of two
types:-
a) Libel
b) Slander.
The term libel indicates
something printed or written but it includes also anything recorded in a more
or less permanent form addressed to the eye or which could be seen, such as a
painting, photograph, statue, effigy, caricature, etc.
Slander is defamation
communicated by spoken words or other sounds addressed to the ears or by
gestures. It is transient. Thus defamatory gestures, made by the deaf, mimicry
and gesticulation will also be slander.
Section 499, IPC defines
defamation-
‘whoever, by words, either spoken
or intended to be read or by signs or by visible representations, makes, or
publishes any imputation concerning any person intending to harm or knowing or
having reasons to believe that such imputation will harm the reputation of such
person, is said to defame that person.’
Publication of the defamatory
matters is an essential ingredient of the offence. Publication implies the
communication to at least one person other than the defamed.
Eg.- If ‘A’, who has written a
highly defamatory letter about ‘B’, sends it to directly to ‘B’, he will not be
liable to ‘B’ for defamation, since there is no publication of the defamatory
letter to a third party.
Essential ingredients of
Defamation:-
· Malice:-
Malice means doing an act
intentionally without any lawful justification or excuse. The plaintiff has to
state that the defendant published the defamatory matter ‘maliciously’.
· Words
must be defamatory:-
Defamatory statements are
of three types:-
(1) Words
prima facie defamatory- In this case, the plaintiff need not prove
anything more than publication and the court will presume damage in the
plaintiff’s favour.
(2) Words
capable of an innocent or defamatory meaning:- In this case, the
language is ambiguous as where it is equally capable on the face of it of two
meanings, the one, defamatory and the other, innocent.
Eg.- If it is said of a person
that he has set his house on fire, it may be that what he has done is a
criminal act or it may be that it is a foolish or careless act.
(3) Words
prima facie non defamatory:- In this case, where the words are not
prima facie defamatory, but innocent, the plaintiff must expressly and
explicitly set forth in his pleadings the defamatory sense which he attributes
to it. Such an explanatory statement is called innuendo.
· Reference
to the Plaintiff:-
To succeed in an action of
defamation, the plaintiff must not only prove that the words were defamatory,
but also, that they are referred to him. He must identify himself as the person
defamed. It is not necessary that the words should refer to the plaintiff by
name. If from the circumstances of the publication, reasonable would think that
the passage refers to the plaintiff then the defendant will be liable.
Group Defamation:-
When the words complained of
reflect on a body or class or group of persons, such as lawyers, clergymen,
etc. no particular member of the body or class or group can maintain an action
against the defendant.
When the defamatory words are
written or spoken of a class or group of persons, it is not open to a member of
that class or group to say that words were spoken of him unless there was
something to show that the words referred to the plaintiff as an individual,
and therefore the defendants won’t be liable.
Publication:-
Publication is an essential
element of the civil law of defamation. Publication is the communication of the
defamatory matter to at least one person other than the person defamed.
If the libellous matter is
delivered only to the plaintiff there is no publication and therefore no action
will lie against the defendant. So also in the case of slander, the words must
be uttered in the hearing of some third person. If they are uttered in the
hearing of the person slandered only, there is no publication and therefore no
action will lie against the defendant.
Eg:- If ‘A’ writes a defamatory
letter and sends directly to ‘B’, then ‘A’ is not liable for defamation. But,
if ‘A’ publishes the letter to ‘C’, then ‘A’ is liable for defamation. But if
‘B’ shows the letter of ‘A’ to others, then too ‘A’ will not be liable, as ‘B’
is responsible for the publication and hence he is defaming himself.
Defences to Defamation:-
· Justification
or Truth:-
Truth is an absolute
justification to a civil action for defamation. The defendant will succeed if
he shows that what he has spoken of the plaintiff is substantially true. The
law has recognized this defence for the reason that since defamation is
essentially an injury to a man’s reputation, when it is shown that what is
spoken of a person is true it means only that his reputation has been brought
down to its proper level and there is no reason for him to complain. The plea
in defence would be a sufficient answer if the accused justified his libel on
the ground that: (a) it was true; (b) its publication was for public good; (c)
such defence cannot be enquired into unless it is expressly pleaded.
But truth in any sense is no
justification in case of defamation of the State, called the sedition, or
speaking ill of one’s religion.
· Fair
Comment:-
Comment is a statement of opinion
on facts. It is the right of every member of the public to express his opinion
on a matter of public interest. But that expression of opinion should be fair.
Thus the rule is that if a statement is a fair comment on a matter of public
interest, it is not actionable. Under the fair comment, it is enough to prove
that there was some substratum of fact on which the comment was made.
· Privileges:-
The privileges are also a good
defence against defamation. The privileges are of two types- absolute privilege
and qualified privilege.
Law gives absolute protection to
statements made by persons on certain occasions; even if those statements
happen to be false and malicious. Such statements are said to be absolutely
privileged.
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