TORT 2.6D VICARIOUS LIABILITY (INDEPENDENT CONTRACTORS)
LIABILITY FOR ACTS OF INDEPENDENT CONTRACTOR.
So far, we have been discussing master-servant (i.e. employer-employee) relationship but now, we shall briefly look at the independent contractor situation.
An independent contractor is a person employed under a contract for services. Meaning that the employer can tell him what to do but cannot control how he does the work. On the other hand, a servant is a person employed under a contract of service where the master can control what is to be done and how it can be done.
:: Vicarious Liability is generally applicable in cases of master-servant relationship rather than employer-independent contractor relationship.
:: Direct liability rather than vicarious liability can arise in employer-independent contractor relationships where the employer has done either of these two things:
One: Where the employer has expressly authorised the independent contractor to commit a tort. E.g. Ade arranges boys to beat/mal-handle Jide. i.e. tort of Battery. I would have said contracting an assassin to assassinate a person but that is going too far.
Two: Where the employer has given the independent contractor a “non-delegable duty”: A non-delegable duty is that which is to be done by the employer or is so important that it cannot be escaped notwithstanding delegation to another. See Cassidy V Minister of Health; Roe V Minister of Health; Hillyer V Governord of St. Bartholomew Hospital. Non-delegable duties (listed by Neill LJ in Alcock V Wraith) include:
– The duty to take care (Negligence): employer must ensure that care is taken not to cause damage to a neighbour. So if he contracts an independent contractor, he (employer) is still to make sure there is no negligence. See the cases of Padbury V Holiday and Greenwood ltd; Cassidy V Minister of Health; Barnett V Chelsea and Kensington HMC; Latimer V AEC ltd.
– Absolute duties imposed by statute on the employer cannot be escaped by employing an independent contractor.
– Strict liability duties arising under the rule in Rylands V Fletcher cannot be escaped like that too. Except the independent contractor was very careless.
– The duty of an employer regarding safety of an employee.
In conclusion/summary, in circumstances where the tortfeasor is an independent contractor, the liability may rest on him but liability may rest (directly rather than vicariously) on the employer where he has expressly authorised the independent contractor to commit a tort or the work for which the independent contractor is hired involves a non-delegable duty as discussed above.