Vicarious Liability [Medical Negligence] Medical Malpractice [Liability of the hospital]

Whenever a person commits an act which is unlawful, that person is held liable for violating the law and thus he is punished accordingly, that is the general rule of torts, but in some situations a person can be made liable even if he has not done any wrong, if it is done by some other person with whom he shares a certain relation, such as master and servant or principal and agent and in these cases his liability is called vicarious liability.

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

There are many cases in which the 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 will also be held liable for the same. This liability of the master is based on the following two maxims

1.Qui facit per alium facit per se: – It means that whenever a person gets something done 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 the purpose of 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.

2. Respondant 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.

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.

Traditional View: Test Of Control

A master is one who not only prescribes to the workmen the end of his work but directs or at any moments may direct the means also; retains the power of controlling the work.

The traditional mode of stating the distinction is that in case of servant, the employer in addition to directing what work the servant is to do, can also give directions to control the manner of doing the work; but in case of an independent contractor, the employer can only direct what work is to be done but he cannot control the manner of doing work.

Vicarious Liability deals with cases where one person is liable for the acts of others. In the field of Torts it is considered to be an exception to the general rule that a person is liable for his own acts only. It is based on the principle of qui facit per se per alium facit per se, which means, “He who does an act through another is deemed in law to do it himself”. So in a case of vicarious liability both the person at whose behest the act is done as well as the person who does the act are liable. Thus, Employers are vicariously liable for the torts of their employees that are committed during the course of employment. In order that the liability of A for the act done by B can arise, it is necessary that there should be certain kind of relationship between A and B, and the wrongful act should be, in certain way, connected with that relationship. So a master is liable for the acts of his servant if the act is done in the course of employment. But where someone employs an independent contractor to do work on his behalf he is not in the ordinary way responsible for any tort committed by the contractor in the course of the execution of the work except in certain exceptional cases as dealt above.