This Article is written by Maria Sharwari from Surendranath Law College, Kolkata

Introduction

A tort is a civil wrong which involves the infringement of an individual’s legal rights and for which the remedy is in terms of unliquidated damages (where the value is not fixed, it changes with respect to the facts of the case and as per the jurisdiction of the court). Common torts include: Negligence, battery, assault, etc.

Thus, a tortfeasor is the person who commits a tort. Employers happen to be vicariously responsible for the torts committed by their employees in the course of their employment, hence vicarious liability is the imposition of liability on the principal employer for the negligence of the employee or the person to whom the principal employer has entrusted or delegated the authority to perform a certain task.^[1]

Vicarious Liability

The principle of vicarious liability is based on the master-servant or principal-agent relationship. The basic idea of vicarious liability is that the master will be the person who is liable for the acts of his servant which are done under the course of the employment of the servant.

The principal-agent liability relationship is based on the maxim “respondeat superior” which translates to “let the principal be liable” and hence according to this maxim the master/principal shall be liable for all the acts that his servant does in the course of that servant’s employment.

This does not necessarily mean that the servant will not be liable at all, he will be liable but up to a certain extent of the offence committed.

The master/principal shall be liable for the acts of the servant or agent as if he himself has done the act, the maxim that represents this statement is “qui facit per alium facit per se” meaning of which is, “he who does an act through another, does the act through himself”.

In such cases, the victim or the person against whom a tort has been committed or the plaintiff can sue either of them i.e. he can sue either the master or the agent/servant hence their liability is joint and several which makes them joint tortfeasors under the law of torts.^[2]

What are the reasons for Vicarious liability?

A person can be vicariously liable for the negligence of another even if the person had taken reasonable care, it does not matter whether the person was careful in all relevant concerns, such as selecting and supervising others.

Vicarious liability encourages accident prevention by giving a principal employer financial interest in encouraging his employees to take care of the safety of others.

As the employer profits from the acts of his employees, he should also bear to any losses that may arise because of those activities.^[3]

Servant and Independent Contractor

A servant is an agent who is subject to the control and supervision of his employer regarding the manner in which the work is to be done. An independent contractor is not subject to any such control. He undertakes to do certain work and regarding the manner in which the work is to be done.

He is his own master and exercises his own discretion. An independent contractor is one “who undertakes to produce a given result, but so that in the actual execution of the work, he is not under the order or control of the person for whom he does it, and may use his own discretion in things not specified beforehand.”

My car driver is my servant. If he negligently knocks down X, I will be liable for that. But if I hire a taxi for going to railway station and the taxi driver negligently hits X, I will not be liable towards X because the driver is not my servant but only an independent contractor. The taxi driver alone will be liable for that.^[4]

Liability of the employer for the acts of an independent contractor

As a general rule, the master is liable for the torts committed by his servant, but an employer is not liable for the torts committed by an independent contractor employed by him.

In Morgan v. Incorporated Central Council, the plaintiff, while he was on a lawful visit to the defendant’s premises, fell down from an open lift shaft and got injured. The defendants had entrusted the job of keeping the lift safe and in proper order to certain independent contractors. It was held that for this act of negligence on the part of the independent contractors in not keeping the lift in safe condition, the defendants could not be made liable.^[5]

Exceptions

The general rule that an employer is not liable for the acts of an independent contractor is subject to some exceptions. In the following exceptional cases, an employer can be made liable for the wrongs of the independent contractor:

1. If an employer authorizes the doing of an illegal act, or subsequently ratifies the same, he can be made liable for such an act. The real reason for such a liability is that the employer himself is a party to the wrongful act, along with the independent contractor, and, therefore, he is liable as a joint tortfeasor.
2. An employer is liable for the act of an independent contractor in cases of strict liability.

In Rylands v. Fletcher, the employer could not escape the liability for the damage caused to the plaintiff, when the escape of water from a reservoir which was got constructed by the defendant from an independent contractor, flooded the plaintiff’s coalmine.

In Maganbhai v. Ishwarbhai, the chief trustee of the properties of a temple called upon an electric contractor to illegally divert the electric supply given for agricultural purpose, to the temple for one month, for providing facility of lighting and mike in the temple. The job was executed in a palpably obvious hazardous manner, and without informing the Electricity Board. After about a fortnight, the service line was snapped and the agriculturist, who was working in his field, got injured by electric current. It was held that the trustee, who got the hazardous job done, as well as the owner of the field, from whose meter and with whose knowledge such connection was taken, were liable.

The liability of the employer also arises for the dangers caused on or near the highway

In Tarry v. Ashton, the plaintiff was injured by the fall of a lamp overhanging the footway adjoining the defendant’s house. The lamp was attached to his house by the defendant through some independent contractors.

It was held that it was the defendant’s duty to see that the lamp was reasonably safe there and he could not escape his liability by getting the job done through independent contractors.

If the wrong caused to the plaintiff is nuisance in the form of withdrawal of support from the neighbour’s land, the defendant would be liable irrespective of the fact that the act causing the said damage was done by an independent contractor.

When the tort results in the breach of a master’s Common Law duties to his servant, he would be liable for the same and it is no defence that the master was acting through an independent contractor.^[6]

Conclusion

In conclusion it can be said that, an independent contractor is one who works for the principal employer with respect to an expressed or implied agreement, the things that he does for the objective shall be performed by him or her or any other individual worker hired by him or her.

It will not make the principal employer responsible for the actions or the things that he had done whilst in the course of the employment unless the things that he does, involves something that is inherently dangerous to the society.

1. Aditya Dubey, “Vicarious Liability in case of Owner-Independent Contractors in Law of Torts” available at: https://blog.ipleaders.in/vicarious-liability-of-independent-contractor/ (last visited on December 12, 2023) ↑
2. Supra note 16 ↑
3. Supra note 16 ↑
4. Dr R.K.Bangia, Law of Torts,p.80 (Allahabad Law Agency, Haryana, Twenty-sixth Ed, 2021) ↑
5. Ibid ↑
6. Id, p.82,83. ↑