Residuary Powers (Art. 248)

Liability in Tort

Liability is of two types: (i) Absolute or strict, and (ii) Vicarious.

(i) Absolute or strict liability- Sometimes 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 the harm, or sometimes he may even have made some positive efforts to avert the same.

In Rylands v. Fletcher, 1868, the House of Lords laid down the rule recognizing ‘no fault’ liability. The liability recognized was ‘strict liability’, i.e. even if the defendant was not negligent or rather, even if the defendant did not intentionally cause the harm or he was careful, he could still be made liable under the rule.

Facts of the case- the defendants got a reservoir constructed, through independent contractors, over his land for providing water to his mill. There were old disused shafts under the site of the reservoir, which the contractors failed to observe and so did not block them. When the water was filled in the reservoir, it burst through the shafts and flooded the plaintiff’s coal-mines on the adjoining land. The defendant did not know of the shafts and had not been negligent although the independent contractors had been. Even though the defendant had not been negligent, he was held liable.

(ii) Vicarious liability- In certain cases, a person is held liable for the act of another person. The common example of such liability are-

a) Liability of the principal for the tort of his agent

b) Liability of partners of each other’s tort

c) Liability of the master for the tort of his servant

a) 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 ‘Qui facit per alium facit per se’ which means 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.

Lloyd v. Grace, Smith & Co. – Mrs. Lloyd, who owned two cottages but was not satisfied with the income therefrom, approached the office of Grace, Smith & Co., a firm of solicitors, to consult them about the matter of her property. The managing clerk of the company attended her and advised her to sell the two cottages and invest the money in a better way. She was asked to sign two documents, which were supposed to be sale deeds. In fact, the documents got signed were gift deeds in the name of the managing clerk himself. He had acted solely for his personal benefit and without the knowledge of his principal. It was held that since the agent was acting in the course of his authority, the principal was liable for the fraud.

b) Partners- The relationship as between partners is that of principal and agent. The rules of the law of agency apply in case of their liability also. For the tort committed by any partner in the ordinary course of the business of the firm, all other partners are liable to the same extent as the guilty partner.

Hamlyn v. Houston & Co.- One of the two partners  of the defendant’s firm, acting within the general scope of his authority as a partner, bribed the plaintiff’s clerk and induced him to make a breach of contract with his employer (plaintiff) by divulging secrets of the firm were liable for this wrongful act committed by only one of them.

c) Master and servant- A servant is a person employed by another to do work under the directions and control of his master. If a servant does a wrongful act in the course of his employment, the master is liable for it. The servant, of course, is also liable. The doctrine of liability of the master for act of his servant is based on the maxim ‘respondeat superior’, which means ‘let the principal be liable’.

For the liability of the master to arise, the following two essentials are to be present:

i) the tort was committed by the ‘servant’;

ii) the servant committed the tort in the ‘course of his employment’.