Liability for an Independent Contractor

In one line

An employer is not liable for the torts of an independent contractor, except where the duty he owes cannot be delegated.

In the wording a student can write in an exam: the general rule is that a person who employs an independent contractor is not liable for torts committed by the contractor or his servants in the execution of the work, because the contractor is not under his control as to the manner of doing it; the exceptions are where the employer authorises or ratifies the wrong, where he is himself negligent in selecting the contractor or in giving directions, where the work is extra-hazardous, where it involves a withdrawal of support or interference with a highway, where the duty is a statutory or a common law duty which cannot be delegated, and where the liability is strict or absolute.

The general rule and its reason

The reason follows from chapter [Who Is a Servant]. Vicarious liability rests on control of the manner of the work, and an employer of an independent contractor has none: he specifies a result and leaves the method to a person who is in business on his own account.

The consequence is that the injured person's remedy is against the contractor. Where the contractor is not worth suing, the plaintiff will try to bring the case within one of the exceptions, and that is what most litigation on this topic is about.

The exceptions

1. Authorisation or ratification. Where the employer authorised the very act complained of, or adopted it afterwards, he is liable as a joint tortfeasor and not vicariously at all.

2. The employer's own negligence. Choosing a contractor known to be incompetent, giving him defective plans or instructions, or failing to check work he was bound to check, is the employer's own breach.

3. Extra-hazardous work. Where the work carries a special risk of danger to others, for example blasting, demolition or work with fire near neighbouring property, the employer cannot escape by employing a contractor.

4. Withdrawal of support and works on a highway. Excavations that remove support from a neighbour's land, and works that create a danger on a highway, engage a duty of the employer himself.

5. Non-delegable duties. Some duties are personal: the employer must see that care is taken, not merely take care to arrange for it. Examples are the duty of an employer to provide a safe system of work, the duty of an occupier towards visitors in certain circumstances, and duties imposed by statute in terms that make the person on whom they lie answerable however the work is done.

6. Strict and absolute liability. Where liability does not depend on fault at all, the employment of a contractor is beside the point. The rule in Rylands v. Fletcher attaches to the person who brings the dangerous thing on to the land, and it was in Rylands v. Fletcher itself that independent contractors did the work and the defendants were still liable.