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Friday, 4 August 2017

VICARIOUS LIABILITY AND DEFAMATION

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.

Eg: (a) Statements made in Parliament; (b) Judicial proceedings; (c) Statements made by an officer of state in course of official duty; (d) Fair and accurate reports in newspapers, etc.

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