Liability of employer for the torts of Servants and

Independent Contractors

SUBMITTED BY:

Arushi Bisht

PRN-16010324310

Division-D

Under the guidance of : Prof. M.V. Chandramati

Symbiosis Law School, Hyderabad.

Symbiosis International University,
Pune.

Submitted On : 04/10/16
 CERTIFICATE

The Project entitled “Liability of employer for the torts of Servants

and Independent Contractors” submitted to the Symbiosis Law School,
Hyderabad for English I as part of Internal assessment is based on my
original work carried out under the guidance of M.V. Chandramati
From 9/8/16 to 3/10/16. The research work has not been submitted
elsewhere for award of any degree.

The material borrowed from other sources and incorporated in the thesis
has been duly acknowledged.

I understand that I myself could be held responsible and accountable for

plagiarism, if any, detected later on.

Signature of the candidate

Date-4/10/2016
 Acknowledgement

I, Arushi Bisht of BBA. L.L.B would like to convey my heartfelt regards

to our respected Director, Mr. M.I. Baig and Deputy Director,
Mr.Sukhvinder Singh without whom such activities would not have been
possible.

I would like to extend my sincere thanks to them.

I am highly indebted to M.V. Chandramathi for their guidance and

constant supervision as well as for providing necessary information
regarding the project & also for their support in completing the project.

I would like to express my gratitude towards my parents and friends for

their kind co-operation and encouragement which help me in completion
of this project.

I would like to express my special gratitude and thanks to collage staff for
giving me such attention and time.
 INDEX

 Introduction ……………………………………………………….…1
 Master and Servant Relationship ………………………….……2
 Doctor in hospitals are servants …………………….…….3
 To lending a servant another person ……………….….4
 Mistake of servant ………………………….….4
 Wilful wrong of servant ………………………………….….5
 Fraud of servant ……………………………..….5
 Due to criminal act of servant ………………………….6
 Independent contractor …………….…………………7
 Distinction between servant and independent contractor ………8
 Liability for the acts of independent contractors ……………….9
 Conclusion …………………………………………………….9
 Introduction

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
for services. The liability of the employer for the wrongs committed by his
servant is more onerous than his liability in respect of wrong committed
by an independent contractor. It is, therefore, necessary to distinguish
between the two. The traditional mode of stating the distinction is that in
case of servant, the employer in addition to directing what work the
servant has 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. The birth of the doctrine of Vicarious Liability took place
during the Anglo- Norman in England. In legal language, the terms,
‘master’ and ‘servant’ are used are used and the doctrine of vicarious
liability which was developed during this period stated that the master
would be held liable for the wrongful acts of their servants or slaves,
though he may not have authorised for the act to be done.

Master and Servant Relationship

A servant is any individual who lives up to expectations for another

individual, the expert, with or without pay. The expert and worker
relationship just emerges when the undertakings are performed by the
hireling under the heading and control of the expert and are liable to the
expert's learning and assent.

A hireling is dissimilar to a specialists, since the worker has no power to

act in his or her manager's place. A hireling is likewise discernable from
an Independent Contractor, who is an individual going into a consent to
perform a specific employment through the activity of his or her own
particular strategies and is not subject to the singular's control by whom
he or she was enlisted.

The expert and worker relationship emerges out of an express get; the
law, be that as it may, will once in a while infer an agreement when none
exists if a man was persuaded there was one by the behaviour of both the
business and the representative. No agreement exists, then again, unless
both expert and hireling agree to it. The agreement can contain whatever
terms and conditions the gatherings consent to, if they are lawful. It is
vital that the terms be adequately unmistakable to be enforceable by a
court if the agreement is ruptured. A work contract is lawfully enforceable
by the honour of harms against either party who breaks it.

For the liability of the master to arise, the following two

essentials are to be present:
1. The tort was committed by the servant.

2. The servant committed the tort in the course of his employment

DOCTORS IN HOSPITALS ARE SERVANTS:

In Hilleyer v. S.L. Barthelomew’s1 it was held that hospital authorities
were not held liable for the activities of their professional staff because
they lack the power of control over the manner in which the work was to
be done, but in Gold v. Essex it was held that hospital authority was held
liable not only for the negligence of nursing staff, but also for the
radiographers in whole time service, resident house surgeon, and whole
time medical officer or surgeon.

In all these cases of professional special skills, law aspects of the

professional man to possess the standard of care.

A man under a ‘contract of service’ is a ‘servant’. According to the lord

Thankerton, there are four essential elements of contract of service.

1
Hileyer v S.L. Barthelomew’s [1909 1 KB 820]
 1) The masters power of selection of a servant.
2) The payment of wages or other remuneration.
3) Masters right to control the method of doing the work.
4) The masters right of suspension.

LENDING A SERVENT ANOTHER PERSON

Sometimes an employer lends his servant to some other employer for a

particular purpose or for a period of time along with machinery on which
he works. If the servant injures a third party then the question arises,
who will be vicariously liable, the first employer or the second employer.

In Mersey Docks and Harbour Board v. Coggins and Griffith2, the

appellant hired out a crane to respondents for the purpose of unloading a
ship, the driver injured a person by negligent working of the crane. It was
observed that the appellant as the general employer of the drive were
liable to injured person. Here, the power of control is presumed to be in
the general employer and the burden of providing the existence of that
power in the hirer rests on the general employer.

Due to mistake of servant:

The servant’s wrong may consist in excess or mistaken execution of an
awful authority, but two things have to be established. In the first place,
it must be shown that the servant intended to do behalf of his master
something which he was, in fact, authorised to do. Secondly it has to be
proved that the act, if done in a proper manner would have been lawful.
In Bayley v Manchester Rly. Co., the defendant company’s porter
violently ejected a passenger from a carriage, mistakenly believing that
he was in the wrong train whereas in fact he was in the correct train an

his act of merely a wrong and mistaken way of doing the work entrusted
to him and not an unauthorised assumption of work that did not pertain 3

3
Mersey Docks and Harbour Board v. Coggins and Griffith [(1847) 1 AC 1]
Bayley v Manchester Rly. Co [1873 LR 8 CP 148]
Limpus v. London General Omnibus Co [1856 1H&c 526]
to him. The porter was doing a blundering way something which he was
authorised to do the defendant company was held liable.

Due to wilful wrong of servant:

If a servant performs some act which indicates recklessness in his
conduct but which is within the course of his employment and is
calculated to serve the interest of his master, then the letter will be
saddled with the responsibility for it. Sometimes master expressively
forbids his servant to do certain acts. But it does not mean that every act
done in contraventions of that forbidden falls outside the scope of
employment. If prohibition were a defence, every employer would escape
the liability by pleading that he had expressively forbidden his servant
from committing any tort.

In Limpus v. London General Omnibus Co., the driver of the

defendant company’s omnibus, wilfully and contrary to express order
forbidding races with and obstructing other omnibuses, drove across the
road in order to obstruct the plaintiff’s omnibus and caused it to upset.
The company was held liable, for the act of driving or racing was not
inconsistent with his employment, especially when explained by his desire
to get before the other omnibus

Due to fraud of servant:

Master is liable for the wrongful acts of his servants done fraudulently.
“even if a servant does fraudently what he is employed to do honestly ,
the master must answer for the fraud”. It is immaterial that te servants
fraud was for his own benefit. The master is liable if he has held the
servant out as having the authority to so the act i.e. the act must be
comprehensive within his austentiable authority. The underlying principle
is that on account of the fraudulent act of the servant the is deemed to
extend tacit invitation to others who enter into dealing or transactions
with him therefore the masters liability for the fraudulent act of his
servant is limited to cases where the plaintiff has been invited by the
defendant who entered into some sort of relationship with wrongdoer.

In Bar Wick v. Joint Stock Bank4, the defendants were held liable for
the fraudulent misinterpretation made to the plaintiff by their branch
manager considering the business under his control and it was laid down

4
Bar Wick v. Joint Stock Bank [1866 LR 2 Ex 259]
that no sensible distinction can be drawn between the case of fraud and
the case of any other wrong because the general rule is that the master is
answerable for every such wrong of the servant or agent as is committed
in the course of service and for the master’s service, no express
command or privity of the master proved.

DUE TO CRIMINAL ACT OF SERVANT:

The vicarious liability of master would even extend, even to the case
where the servant’s act is malicious or constitutes a crime, though there
is no such thing as vicarious liability in criminal proceeding, yet in civil
action, a master is liable for the criminal act of his servant.

In Rooplal v. Union of India5, some military jawans lifted some

firewood belonging to the plaintiff and carried the wood in military
vehicles for the purpose of campfire and fuel. The plaintiff brought a suit
against the Union of India. It was held liable that the acts of the jawans
fall within the course of employment and the union of India was liable for
the same.

EXCEPTION TO THE RULE THAT THE MASTER IS LIABLE

FOR THE SERVANT’S ACT DONE DURING THE COURSE OF
EMPLOYMENT

1) Where master is liable, for the acts not done in the course of
employment.
2) Acts outside the course of employment

LIABILITY OF THE EMPLOYER IN THE CASE OF

INDEPENDENT CONTRACTOR

5
Rooplal v. Union of India [AIR 1972 J&K 22]
This caption focuses an important part of Law of Torts invariably
indicating the concept of vicarious liability of an employer. Law states,
“Qui facet parse alium facit perse” which means he who doers an act
through another are deemed in law to do it himself.

History and background

The concept of state and public laws came very late in human society and
before those policing and enforcing contracts were done in a customary
manner. Self-help system was prevalent in ancient societies. Until the
thirteenth century, one of the procedures was an involuntary collective
responsibility for the actions committed by one of the group. This changed
into the community responsibility system (CRS) which was enforced by a
fear of loss of community reputation. The aggrieved party used to
retaliate if normal compensation was not paid. In some countries where
the political system supported it, collective responsibility was gradually
phased out in favour of individual responsibility. In Germany and Italy,
collective systems were in operation as late as the sixteenth century.

Gradually Court system developed and the responsibility of the employer

for the acts done by the employee was emphasized by law and the
concept of test of control evolved which made the employer made liable
for the torts committed by the employee , if in the course of employment.
It was termed in law as Respondent Superior. Imposition of vicarious
liability in these circumstances has been justified on the following
grounds:

 Exercise of control: It the wrong is a serious one, the concept

emerged rationality of the employer in resisting the employee from
doing such acts and if at all there is a risk involved, the work was
entrusted with independent contractors.
 Risk spreading: The cause of an action is imposed on the person
connected to it rather than the person suffered injury or loss by the
action. This principle is also sometimes known as the "deep pocket"
justification.
 Internalizing the social costs of activities: The system of employer
compensating the customer was developed this imposing a social cost
rather than a private cost.

For example, insurance will increase the ability to do risk spreading,

but will reduce incentives for exercise of control.
The employee and the independent contractor are both entrusted to do
the work for the employer, but there is a change in legal relationship in
these cases. The liability of the employer when the employee commits a
wrong is more grave and onerous than when it is committed in the case
of independent contractor. The wrongful act of the employer is deemed to
be the wrongful act of the employer himself when it is done on the course
of employment. The legal maxim is “Respondent Superior” which means
let the Principal be liable. The liability is joint and several since both the
Principal and Agent are joint Tort feasors.

For Example, Mr. A is the Principal and Mr. .B is the Agent. If Mr. B is the
driver of Mr. A and if Mr. B hits Mr. C while driving Mr. A’s car, Mr. A is
liable to the act of Mr. B.

But if Mr. hires a taxi to go to Airport and if the taxi driver hits Mr. C, Mr.
cannot be made to be liable since the taxi driver is an independent
contractor.

In Dharangadhara Chemical Works Ltd., Vs. State of Sourashtra,

the Honorable Supreme Court of India laid down the traditional “Test of
Control “ principle can vary from business to business and is by its nature
incapable of any precise decision.

One accepted view is that people who have an employment contract of

service (employment contract) are employees and people who have a
contract for services (Service contract) are independent contractors.

The general rule is that when an employer engages an independent

contractor, he is not in the ordinary way liable for any tort committed by
the contractor in the execution of the contract work entrusted.

The liability of the master for the tort which has been committed by his
servant is based on the maxim “ respondent superior” i.e. superior is
responsible. In the law of torts, it is established that he who employs
another to do something does it himself or he whom does an act through
another is deemed in law to do it himself.

LIABILITY FOR THE ACTS OF INDEPENDENT

CONTRACTORS:
An independent contractor is under a contract for service that what is to
be done.

In Govindarajulu v. M.L.A. Govindaraja Mudaaliar, the owner of a

lorry interested it to a repairer for getting it repaired. While it was in the
custody of the repairer, one of the employee of the repairer drove the
lorry, and caused an accident driving the lorry negligently. The injured
sued the owner for compensation. It was held liable that the owner of the
lorry was not liable, the lorry being interested to an independent
contractor to get it repaired. The repairer was held responsible.

The general rule that the employer is not liable for the tortious acts of
independent contractor has the following exceptions:

1) Where the employer personally interferes in or assumes control

over the contractor’s work [Burges v. Gray (1846 1 CB 578)]
2) Where the thing contracted to be done is itself unlawful, and the
employer could himself do it. [Maganbhai v. Ishwarbhai (1948
GUJ 69)]
3) In the case of strict liability, and the employer is liable for the act of
an independent contractor [Rylands v. Fletcher (1868 LR 3 HL
330)]
4) Where the thing contracted to be done, though lawful in itself, is
likely in the ordinary course of events to damage others property
unless preventive means are adopted and the contractor omits to
adopt such means. [Bower v. Peate (1876 1 QBD 321)]
5) Where special or absolute duty is imposed on the employer by
common law or statute to the thing properly, and the contractor
performs it negligently. [Tarry v. Ashton (1876 1 QB 314)]
6) Where the employer was negligent in the selection of the contractor
and that negligence was the cause of tortious act. [Joliffe v.
Willment(1971 1 All ER 485)]

DISTINCTION BETWEEN SERVANT AND INDEPENDENT

CONTRACTOR:

1) Any person who works for another for a salary is a servant whereas
independent contractors a person who, exercising an independent
 employment contract to do piece of work according to his own
methods.
2) The servant is under the control and supervision of the employer while
the independent contractor is not under the control and supervision of
the employer
3) A master can suspend his servant but his employer cannot, unless the
latter violates the terms of contracts.
4) Payment of wages is paid by the employer to his servant under the
labour rules while payment of contractor for a work, service is paid by
the principal to an independent contractor under the provision of
contract act.
5) A servant could not possess the ownership of the tools, vehicles etc.
while the independent contractor has ownership of his tools, vehicles
etc.
6) For the torts done by his servant the employer is liable, as the
respondent’s superior but for the torts done by independent contractor,
the employer is not liable.

Conclusion
From the above discussions, and case citations, it can be seen that the
application of liability of the employer in acts by independent contractor
and master’s liability in case of servants acts is a legal concepts which
indicate social security and wellbeing of a society. That is the reason,
more prominence is given to the act in Civil law rather than Criminal Law.
The status of English law and American law widely differs in application
and Indian courts have adopted the good and social aspects of the law
while implementing vicarious liability.

Law and Court system emerged for the smooth functioning of a society
compensation of social wrongs are the very purpose and aim of laws. In
India, this has been accepted by the Honourable Supreme Courts and
other Courts by the famous decisions above narrated. Vicarious liability is
not a hard and fast rule, but its application changes as to circumstances
of wrongs being committed anywhere. Public good is the final aim always
indicated and protected here which is highly appreciable, especially in
Indian legal system.
 Bibliography

 Michael A.Jones, Textbook on Torts, 2000, p 379\

 Vicarious Liability in Criminal Law, November 8, 2014 by Hariharan
kumar, published in Lawctopus’ Law Journal

 www.legalservicesindia.com

 Paranjpe Book Of Torts

 Law of Torts by Ratanlal and Dheerajlal

 Law of Torts by Dr. R.K. Bangya