Detail of MASTER AND SERVANT

MASTER AND SERVANT

MASTER AND SERVANT

Rule of vicarious liability

"A master is liable for any tort which the servant commits in the course of his employment. There is no doubt that the servant is liable for his act." Normally a person who has done the wrongful act should alone be made liable for the injurious consequences arising out of it. Persons who are innocent of a crime or any other wrongful act should not be made liable for it. But the principle of various liability is an exception to it. By this principle, a master is made liable for a wrong committed by his servant in the course of his employment. An innocent man is made answerable for the wrongful acts of another. This may appear to be highly objectionable and immoral on the face of it. Indeed, in modern criminal law, penal liability is not vicarious except in very special circumstances and in some of its  less serious forms. In more primitive systems, however, the impulse to extend vicariously the incidence of liability received free scope in a manner altogether alien to modern notions of justice.

Reasons of the rule

Various reasons are attributed for the rule. Some said that it was more reasonable that the master should suffer for the wrongs of his servants than any other, because the master trusts the servants; others that no man shall be allowed to take advantage of his own wrong, while others still based the rule on the latin maxims qui facit peralium facit per se (he who acts through another is deemed to act in person) and respondeat superior (let the principal answer).

 Liability of master (tort in the course of employment)

A master is not responsible for a wrongful act unless it is done in "the course of employment". Normally we would not expect of any sane or law-abiding person to direct his servant to go and assault another person or to speak ill of another. In such cases of positive direction both the master and the servant will be equally liable as joint tortfeasors. Such persons are called abettors in crime in criminal law. But the difficulty arises only in cases where the innocent  master is sought to be made liable for any wrongful act that may have been done by his servant in the course of his employment. Under the rule it is sufficient to fix a master with liability if the wrong is committed as an incident to something that the servant is employed to do.

     Wrongful acts are deemed to be done "in the course of employment" if they are:

     (a) authorised by the master; or

     (b) wrongful and unauthorised modes of doing some acts authorised by the master.

An act is said to be within the scope of the servant's employment" when, although itself unauthorised, it is so directly incidental to some acts of class f acts which the servant was authorised to do that it may be said to be a mode, though no doubt an improper mode, of performing it or them. In short, the master's liability for the unauthorised torts of his servants is limited to the unauthorised modes of doing authorised acts. 


REMEDIES

Remedies in tort are two kinds: Judicial and extra-judicial. judicial remedies are those which are obtained through courts of law, while extra-judicial remedies are secured by means of self-help. The various types of extra-judicial remedies are the right of distress, the right of retaking property, the abatement of nuisance and the right of re-entry on land.

      The main types of judicial remedies are three in number. They are (1) damages, (2) injunction, and (3) specific restitution of property.

Injunction

An injunction is an extraordinary judicial remedy resorted to by parties and given effect to by Judges in exceptional cases. An injunction is an order by a court a party to the effect that he shall do or refrain from doing a particular act. Since it is an order to do or refrain from doing a thing, the order is called mandatory or restrictive. The former will be awarded where the latter would be meaningless, the fearful anticipations of the plaintiff having been translated into accomplished fact.

     A prohibitory or restrictive injunction is an order restraining the defendant from committing or repeating an injurious act such as trespassing on someone's property.

Interlocutory and perpetual injunctions

An interlocutory injunction is one issued provisionally before the final hearing of the action or in order to prevent the commission or continuance of an alleged injury in the meantime pending an inquiry into the case and final determination of the right of the plaintiff to a perpetual injunction. A perpetual injunction on the other hand is one issued after the final hearing and determination of the question at issue between the parties. An interlocutory or temporary injunction can only be issued in cases where there is a prayer for a perpetual injunction.

     Sometimes an ex parte injunction may be issued by the court in favour of a party when the latter insists that unless immediate injunction is issued restraining the other party from pursuing a particular course, irreparable damage will be caused to him. There are special provisions in our Civil Procedure Code enabling courts to issue injunctions. It is always a discretionary remedy which the court may issued whenever it appears "just and convenient '' to it to do so.

      Injunction are often issued ether (1) against the continuance of an (2) against the repetition of one, or (3) against the commission of one. Of these the first is the most common under which injunctions are issued restraining parties from continuing to commit a particular nuisance or obstructing a right to light. Again, if a person has once trespassed on my land under a claim of right of way he may be served with an injunction not to repeat the same wrong.

     One of the basic rules with regard to the issue of injunction is that an injunction should not be granted where the damages would form an adequate remedy. Nor will an injunction be granted where the case is not one of legal injury but of mere inconvenience. Moreover, an injunction will not be granted in a trivial case.

     Interlocutory injunctions are only granted in the clearest cases, and where the plaintiff is able to establish a sufficiently strong case.

Damages in lieu of injunction

The torts for which an injunction is usually sought are nuisance, continuing trespass, infringement of copyright, trade marks and parents and passing off one's goods off one's goods as those of another. But the remedy of injunction is impossible in the torts of assault and battery, false imprisonment and malicious prosecution.

     If an injunction is disobeyed by any person he may be proceeded against for contempt of court and punished by imprisonment and attachment of his property.

Specific restitution

Under this form of remedy the injured party is entitled to recover the specific item of property itself the wrongdoer. Thus he who is wrongfully dispossessed of his land is entitled to recover, not the value of the land as damages, but the land itself: and a judgment in his favour by force, if need be. So in the case of chattels wrongfully taken or detained, the owner has the option of claiming either their value as damages or specific restitution of possession.

Tart remedies under public law

Public law remedies have also been extended by the Supreme Court to the realm of tort. The claim in public law for compensation for unconstitutional deprivation of fundamental right to life and liberty, the protection of which is guaranteed under the Constitution, is a claim based on strict liability and is in addition to the claim available in private law for damages for tortious acts of public servants.

      In Sharma v. State of A.P. the State Government was directed to pay 3,00,000 by way of compensation. The petitioner was admitted in a government hospital for her third delivery. In the course of the Caesarean operation, the petitioner received serious injuries in her abdomen. She had to undergo further two operations and a cotton  (mop) was removed from her abdomen. The State Government was also directed to provide all necessary medical care to her until she was perfectly cured.