LIABILITY BY RELATION: VICARIOUS LIABILITY

Master and Servant

A servant and independent contractor are both employed to do some work of the employer but there is a difference in the legal relationship which the employer has with them. A servant is engaged under a contract of service whereas an independent contractor is engaged under a contract for services.

The liability of the employer for the wrongs committed by his servant is more onerous than his liability in respect of wrongs committed by an independent contractor. It is, therefore, necessary to distinguish between the two.

Traditional View – Test of Control:

In case of a 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 the work.

Master’s power of selection of his servant, payment of wages or other remuneration, master’s right to control the method of doing the work and master’s right of suspension or dismissal are the four indicia of a contract of service.

Modern View – Control Test not exclusive:

The control test fails when applied to skilled and particularly professional work and, therefore, in recent years it has not been treated as an exclusive test.

The existence of the right of the master to supervise and control the execution of the work done by the servant is a prima facie test but the nature of the control may vary from business to business and is by its nature incapable of any precise definition and it is not necessary that the employer should be proved to have exercised control of the work of the employee.

One feature which seems to run through the instances of many cases dealt on this issue is that under a contract of service, a man is employed as a part of the business; and his work is done as an integral part of the business; whereas under a contract for services, his work, although done for the business, is not integrated into it but is only accessory to it.

Control is obviously an important factor in determining whether it is a contract of service and in many cases it may still be the decisive factor, but it is wrong to say that in every case it is decisive.

The degree of control and supervision would be different in different types of business and that ‘if an ultimate authority over the worker in the performance of his work resided in the employer so that he was subject to the latter’s direction that would be sufficient’.

Where a vehicle is let out on hire with the service of a driver, and an accident occurs through the negligent act of the driver causing personal injuries to a third person, one test for determining who is the master for purposes of vicarious liability, is the answer to the question – whether the driver in doing of the negligent act was exercising the discretion given to him by his regular employer, or whether he was obeying a specific order of the hirer for whom, on his employer’s direction, he was using the vehicle.

Ordinarily, when a vehicle is hired with its driver, the driver continues to exercise his own discretion which has been vested in him by his regular master. But, if the hirer intervenes to give directions as to how to drive for which he possesses no authority and the driver, for the occasion, complies with them and an accident occurs resulting in an injury to the third party, the hirer is liable as joint tort-feasor and the general employer is not liable.

Extent of Liability of Master

A master is vicariously liable for the acts of his servants acting in the course of employment. Unless the act is done in the course of employment, the servant’s act does not make the employer liable.

In other words, for the master’s liability to arise, the act must be a wrongful act authorized by the master or a wrongful and unauthorized mode of doing some act authorized by the master.

If the servant, at the time of the accident, is not acting within the course of employment but is doing something for himself, the master is not liable. It is the link of the master’s business with the servant’s wrongful act which makes the master liable. So the plaintiff to obtain a judgment against the master must establish a relationship between the servant’s act and the master’s business.

The question will be whether the servant was just doing the job badly or not doing the job at all, doing his own thing instead.

In other words, if the unauthorized and wrongful act of the servant is not so connected with the authorized act as to be a mode of doing it, but is an independent act, the master is not responsible; for in such a case the servant is not acting in the course of the employment but has gone outside of it.

Effect of Prohibition

It is not the law that whenever a servant does an act which his employer has prohibited him from doing, the act so done falls outside the course of employment. Prohibitions fall under two categories:

Those which limit the scope or sphere of employment; and

Those which merely affect or restrict the mode of doing the act for which the servant is employee.

If a servant violates a prohibition of the first category, his act will be outside the course of employment and the master will not be vicariously liable; but if the violation by the servant is only of a prohibition of the second category, the servant’s act will still be in the course of employment making the master liable.

The drivers of omnibuses were furnished with printed instructions saying that ‘they must not on any account race with or obstruct another omnibus’. Nevertheless, the driver of the defendant’s omnibus did obstruct a rival omnibus and caused an accident in which the plaintiff’s horses were injured. The defendant was liable because what his driver did was merely an unauthorized mode of doing what he was authorized to do, namely, to promote the defendant’s business.

Dishonest and Criminal Acts

A master is not liable for a dishonest or criminal act of his servant where the servant merely takes the opportunity afforded by his service to commit the wrongful act.

For example, if a window cleaner steals an article from the room where he is doing the window cleaning work, his master is not liable. Similarly, when a servant assaults another, whom he meets in the course of his work, out of personal vendetta, and the assault has no relation to the master’s work, the master is not liable.

But if the wrongful act is done for the benefit of the master and while doing his business, the master is liable.

The master is answerable for every such wrong of the servant or agent as is committed in the course of the service and for the master’s benefit; though no express command of the master is proved.

The master will also be liable if the servant while doing the wrongful act was acting within the apparent scope of his authority even though the act was done for his own benefit or for the benefit of some person other than the master.

The managing clerk of a firm of solicitors induced a client of the firm to transfer a mortgage to him by fraudulently representing the nature of the deed and, thereupon, obtained and misappropriated the mortgage money. The solicitors were held liable as their managing clerk in accepting the deed was acting within the apparent scope of his authority although fraudulently for his own benefit.

Employer and Independent Contractor

An independent contractor is one who undertakes to produce a given result without being in any way controlled as to the method by which he attains that result. In the actual execution of the work he is not under the order or control of the person for whom he does it, but uses his own discretion in things not specified beforehand.

A servant is an agent who works under the supervision, control and direction of his employer.

If an independent contractor as distinguished from a servant is employed to do some work and in the course of the work he or his servants commit any tort, the employer is not answerable.

Exceptions:

Where the employer retains his control over the contractor and personally interferes and makes himself a party to the act which occasions the damage.

Where the thing contracted to be done is itself wrongful. In such a case the employer is responsible for the wrong done by the contractor or his servants, and is liable to third persons who sustain damage from the wrong doing.

For instance, if a man employs a contractor to build a house, who builds it so as to darken another person’s windows, the remedy is not against the builder, but the owner of the house.   When the trustees of a temple employed a contractor to get electric connection for use of lighting and mike arrangements in the temple from the well of an agriculturist without informing and obtaining the permission of the electricity board and a person was injured as the wires used by the contractor snapped, the trustees were held liable as the act of diverting electricity without permission of the board was an itself an illegal act.

When legal or statutory duty is imposed on the employer, he is liable for any injury that arises to others in consequence of its having been negligently performed by the contractor.

If a man does work on or near another’s property, which involves danger to that property unless proper care is taken, he is liable to the owners of the property for damage resulting to it from failure to take proper care, and is equally liable if, instead of doing the work himself, he procures another to do it for him.

When a person employs a contractor to work in a place where the public are in a habit of passing, which work will, unless precautions are taken, cause danger to the public, an obligation is thrown upon the person who orders the work to be done to see that the necessary precautions are taken, and if the necessary precautions are not taken, he cannot escape liability by seeking to throw the blame on the contractor.

It is the duty of a person who is causing such work to be executed to see that they are properly carried out so as not to occasion any damage to persons passing by on the highway.

When the work contracted to be done is from its nature likely to cause danger to others, in such cases there is a duty on the part of the employer to take all reasonable precautions against such danger, and if the contractor does not take these precautions, the employer is liable.

It is his duty to use every reasonable precaution that care and skill may suggest in the execution of his works, so as to protect his neighbors from injury, and he cannot get rid of the responsibility thus cast on him by transferring that duty to another.

But the employer will not be liable of the contractor was not acting within the scope of his contract, but was a trespasser when he did the act complained of.

When the defendant employed a contractor to pull down an old house and erect a new one, and the contractor expressly undertook to support the plaintiff’s house, and to be liable for all damage, it was held that the defendant was liable for the damage.