law of tort

This article has been written by Shivani Kumari, a first-year law student of Lloyd law college. In this article, the author has researched an important field of tort- “Is the employer vicariously liable for the acts of the independent contractor”

INTRODUCTION

Whenever a person does or omits to do any act and if this act or omission cause any injury to the other person, the first person will be held liable for the injuries done to the second person. It is because there is a legal duty of every person to protect the legal rights of others. This is known as a tort. A tort is a civil wrong and its liability arises from a breach to duty toward another person and such breach is redressible by an action for unliquidated damages i.e. not prefixed.

Vicarious Liability

It is generally known that whenever a person commits wrong (infringes on the rights of others), the person is liable for a tort. But there is some exception to the general rule because in some special cases a person may be held liable for the tort committed by another. Vicarious liability is a civil wrong where one person is held liable for the acts of another. The basis of the rule has been variously stated: on the maxim Respondeat Superior which means Let the principal be liable or on the maxim Qui facit per alium facit per se which means he who does an act through another is deemed to do it himself. This liability arises only if there is a relationship between the two persons. The relationship must be either of (a) principal-agent, (b) master-servant, or (c) partners in a partnership firm. There are mainly three requirements for a claim in vicarious liability-

1. There must be a tort

It means that there must be some act or omission done by one which infringes on the rights of another.

2. Tort must be committed by the defendant’s employee

Vicarious liability is one in which employers are held liable for the action of their employees. So the wrong here, must be committed by the employee and not the employer. It is also important here that the employee is working under the control of the employer and the employer must be able to hire and fire his employee.

3. It should be committed in the course of his employment:

The employer is legally responsible for the damages if the employee caused them while performing a job. 

For instance, If Y is a driver of X and his duration of work is 10 a.m to 6 p.m. and after that Y goes to his house and beats his wife at night, then X is not responsible for the same, because Y is not in his course of employment.

Employer and Employee Relationship

For an employer to be held vicariously liable for the act done by his employee, there must be a relationship between the two. This can be bagged by certain tests to check whether there is an established employer-employee relationship.

1. The control test

The traditional test, that is used for an employment relationship is one of control. In the case of Cassidy v ministry of health, it was held that this test checks the versatility of an employer that whether he controls (a) what his employee does (b) how he does it or both. This test was formulated upon the social conditions and can govern the relationship between a household and servant, farmer and agricultural labourer, etc. This test is no longer appropriate because it cannot be applied to skilled labourers/employees. 

2. Contract of service

It represents the employer and employee relationship. It defines the contractual obligation between two parties (It can be held between a business and an independent contractor). This test ensures that there is a legal relationship between the two and no one can withdraw himself after the wrong done.

3. Hire and fire test

This test is done to check whether the employer is in a position or has the authority to hire and fire his employee. If an employer has the authority to do this then, he would be liable for the acts done by his employee.

4. Mode of compensation

The mode of compensation is one of the most important criteria to distinguish whether he is an independent contractor or servant. Payment to an independent contractor is done after the completion of assigned work whereas a servant gets compensation on a periodical basis.

5. Nature of work

Works assigned to independent contractors are particularly time- based and they bring their tools to complete their work whereas employees and servants get all the necessary facilities by their employer.

Independent Contractor

An independent contractor is an individual who works for another individual (employer). He is not subject to any control over him by the employer (principal or master). He is his master. An independent contractor exercises his duties at his discretion. An independent contractor undertakes to produce a given result, but in the execution of that work, he is not under the order and control of the person to whom he is giving the service. Generally, a contractor supervises the worker community and compensates them for their service. 

For instance – builders, cab drivers, etc.

Difference between an Independent Contractor and Servant

A servant is a person employed by another to do work under the discretion and control of his master. Whereas, an independent contractor is a person employed by another to do work under the discretion of himself. He is the master of himself. He controls all his works. A master can have a check on the work and the method adopted to complete that work of a servant but he cannot check the same of an independent contractor.

For instance – My truck driver is my servant. If he negligently knocks down someone in his course of employment then I will be responsible for that. If I hire a driver from a transport company and if he negligently knocks down someone, then I will not be responsible for that.

Employer and Independent Contractor

Where an employer is liable for the acts an independent contractor

 An employer is vicariously liable for the torts of an independent contractor committed in the course of their employment. There are certain situations in which the liability of an employer arises in the case of an independent contractor. Some of these are as follows-

When an employer authorizes him to do a tort

This situation arises when an employer hires an independent contractor to do some work and in the course of that work, he(employer) authorizes him(contractor) to do some wrong act which somehow constitutes a tort.

For instance- If a person hires a cab for reaching railway station and in the course of traveling, he forces the driver to run the cab faster and faster and if this leads to any road accident then, the passenger would be held liable for that because he authorizes the work to the driver.

In the tort of strict liability

The case of Strict liability was established with the very famous case of Ryland v. Fletcher, in this case, the defendant employed an independent contractor to construct a reservoir on their land. While digging the land the contractor founds some shafts but he didn’t bother to seal them properly. When the water was filled in the reservoir, water flooded the mine shafts into the plaintiff’s mines on the adjoining property. It was held in this case that the defendant is liable for the acts of the contractor and hence established the rule of strict liability. The main elements of this rule are-

  • The defendant must bring some dangerous thing into his land (non- natural use of land)
  • The thing escapes from that place
  • Escaped thing cause some harm to the plaintiff

So, if any independent contractor do something like above mentioned then the employer will be held liable for the same. Some of the defenses to this rule are  Consent of the plaintiff, Common benefit, Act of the third party, Act of God (unforeseen event), Statutory authority

Negligence of independent contractor

In this situation, the employer is held liable for the negligent act/omission committed by their employees in the due course of employment. It also includes the “collateral negligence” of both the employer and the employee.

For instance– If a contractor is appointed to construct a building and he( his workers) negligently leave something (tool) in the window case and the heavy wind blew the window open and that tool fell hurting some passerby, then the employer will also be liable for the negligent act of the employee.

Where an employer is not liable for the acts of an independent contractor

An employer is not liable for the tort of an independent contractor if he has taken care of while appointing a contractor. If a reasonable person takes due diligence and avoids every foreseen situation with care then he will not be held liable for any action of tort.  

For instance-In Philips v. Britania Hygienic Laundry Co. (1923), the owner of the lorry was held not liable when a third-party’s vehicle was damaged, in consequence of the negligent repair of his lorry by a garage proprietor.

CONCLUSION

To sum it up, it can now be well established that vicarious liability is a tort in which one person is held liable for the actions of another and an independent contractor is one who works for another but with his discretion. So an employer is held vicariously liable for an independent contractor if they are negligent in performing their work, in case of strict liability, and when the employer authorizes the work to the contractor. But, if the employer will take all the necessary care in appointing the contractor then he will not be held liable for any tort.

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