The concept of vicarious liability arises from the common law doctrine of agency and respondeat superior primarily. It is an indirect or secondary liability. The superior is responsible for the acts of his subordinates. In a broader sense, vicarious liability is the responsibility of any third person who supervises and controls the person who has committed a tortious act.
The relationship of employee and employer is a typical example of the superior authority’s responsibility in the employee’s wrongdoings in the course of employment. Employers are vicariously liable for their employees under the doctrine of respondeat superior for the negligent acts they commit in the course of employment. It is necessary to determine whether the employer is liable to the acts or omissions of the employee, the difference between the independent contractor and employee. To establish the employer’s vicarious liability for a subordinate’s wrongdoings is examined by the three tests, the control test, the organization test, and the sufficient relationship test. The employer would be held vicariously liable if the employee committed a tortious act while performing his duties assigned by the employer. An employer would be liable for the criminal acts or omissions of an employee if it is in his employment scope. If an employee is guilty of any offense that he committed without being authorized by the employer, in such a case, the employer would not be vicariously liable for the offense of the employee.
In case of principal and agent, the principal would be liable for the agent’s acts and omissions. For example, a car owner would be liable to the driver’s acts as an agent of the owner, who is principal would be vicariously liable if the driver is using the car for performing a duty assigned by the owner of the car. Similarly, the plane owner would be vicariously liable for the pilot’s acts, who is flying the plane for the owner’s purpose. The vicarious liability for automobiles in the United States has been abolished for car leasing and rental. A corporation can act on behalf of its agents and employees in English Law. So it is required to decide in what circumstances the doctrine of vicarious liability would be applicable in case of frauds committed by the directors and manager of the corporation who act on behalf of the corporation. A hospital can be held vicariously liable for the misconduct of its employees. The doctors and nurses, and other staff committing any misconduct or negligence while performing their duties, the hospital would be held vicariously liable for its staff’s acts and omissions. However, the hospitals would not be liable in the case of the independent contractors—the persons who have been hired for providing particular services to the hospital. The hospital would also be liable for hiring an inexperienced person to operate equipment and inadequately maintaining medical instruments negligently. It would be liable for the misdiagnoses made by a doctor or performing a surgery negligently or wrongly prescribing or administering medication. The hospitals would be liable for inadequately reviewing physicians and other staff’s credentials and practice when they hire. There are particular circumstances where religious institutions would be vicariously liable for the misconduct of their clergy. A religious institution’s vicarious liability depends on whether it was negligent while hiring, retaining, or supervising the clergy members. The employers should know about the past of the members they hire. The franchisors should be aware of the statutory violations which possibly be committed by their franchisees. The franchisors would be held liable for the franchisees’ statutory violations when there is a principal and agent relationship or a master and servant. The franchisors can reduce the risk of vicarious liability by minimizing the control over franchisees. However, the exertion of little control might affect the uniformity of its brand.
Generally, in criminal law, there is no concept of vicarious liability. A crime is composed of two elements actus reus, meaning the guilty act, and mens rea, meaning guilty mind. Criminal law reflects that the person should only be held convicted if he is directly responsible for causing both the elements to occur simultaneously. Vicarious liability or holding one person liable for another’s actions is an exception to this criminal law rule. This exception’s objective is to protect the public interest to deter or encourage the employers to impose stringent rules and supervise more closely, the vicarious liability is imposed. However, many jurisdictions impose a higher burden of proof in a case of vicarious liability, and the prosecution is necessarily required to prove that the employer knowingly and intentionally abetted, guided, or encouraged the employee’s criminal conduct. It would not be wrong to say here that vicarious liability is a civil liability by nature, but with the evolution of law, the courts have started to apply the doctrine of vicarious liability to criminal cases as well. In the meantime, it is necessary to compensate the aggrieved party and to avoid delay in the process of justice by blaming one person and punishing him only and do not compensate the victims because of the weak financial background of the offender. To hold a supervisor or a superior person liable for his subordinate’s offense to compensate victims in public interest defying private interest and public interest is more important than private interest.