Liability for an Independent Contractor
Chapter Fifty-Six
Syllabus topic 3.1, "Vicarious Liability: Basis, scope, Justification, Different types."
Pages 227 to 229 of 434
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.
Liability for an Independent Contractor
The Indian rule goes furthest here. In M.C. Mehta v. Union of India, AIR 1987 SC 1086, the Supreme Court held that an enterprise engaged in a hazardous or inherently dangerous activity owes an absolute and non-delegable duty to the community, so that it cannot escape by pointing at anybody else, and it cannot rely on any of the exceptions available under Rylands v. Fletcher. Section 3 of the Public Liability Insurance Act 1991 makes the same point statutorily, by placing liability on the owner who handles the hazardous substance.
A worked example
A housing society engages a contractor to demolish an old wing and build a new one.
A workman is injured by the contractor's faulty scaffolding. The society is not liable; the claim is against the contractor as his employer.
Debris from the demolition falls into the neighbouring plot and injures a child. Demolition is extra-hazardous work, and the society may be liable notwithstanding the contract.
The excavation withdraws support and the neighbour's wall cracks. The society is liable: the duty not to withdraw support is its own.
The society engaged a contractor with no licence and a record of collapses. That is the society's own negligence in selection.
The contractor stores a large quantity of a hazardous chemical on the site and it escapes. Strict liability attaches to the occupier who brought it on to the land, and if the activity is hazardous or inherently dangerous the rule in M.C. Mehta v. Union of India, AIR 1987 SC 1086, imposes an absolute and non-delegable duty. Under section 3 of the Public Liability Insurance Act 1991 the owner handling the substance is liable to give relief without any proof of fault.
What it does NOT mean
It does not mean the injured person has no remedy. He sues the contractor.
It does not mean a written contract shifts every risk. A non-delegable duty is not delegated by a document.
It does not apply to strict or absolute liability. Those attach to the person carrying on the activity.
It does not protect an employer who chose badly. Negligent selection is his own tort.
Quick revision
- General rule: no liability for the torts of an independent contractor.
- Reason: no control over the manner of the work.
- Exceptions: authorisation or ratification; the employer's own negligence; extra-hazardous work; withdrawal of support and works on a highway; non-delegable duties; and strict or absolute liability.
- Rylands v. Fletcher itself was a case where contractors did the work and the defendants were still liable.
- M.C. Mehta v. Union of India, AIR 1987 SC 1086: an absolute and non-delegable duty on an enterprise carrying on a hazardous activity.
- Section 3 of the Public Liability Insurance Act 1991 places no-fault liability on the owner handling a hazardous substance.
Liability for an Independent Contractor
Test yourself
1. Is an employer liable for the torts of an independent contractor? As a general rule, no. Vicarious liability rests on the right to control the manner in which work is done, and an employer of an independent contractor has no such right: he specifies a result and the contractor, who is in business on his own account, chooses the method. The injured person's remedy is therefore against the contractor. The rule is subject to six exceptions: where the employer authorised or ratified the wrongful act; where he was himself negligent, in selecting an incompetent contractor or in giving defective instructions; where the work is extra-hazardous; where it involves the withdrawal of support or the creation of danger on a highway; where the duty is non-delegable, so that the employer must see that care is taken rather than merely arrange for care; and where liability is strict or absolute, in which case it attaches to the person carrying on the activity regardless of who does the work.
2. What is a non-delegable duty? A duty which the person on whom it lies must see performed, so that he remains answerable even if he entrusts the work to a competent independent contractor. The distinction is between a duty to take care, which can be discharged by employing a competent person, and a duty to see that care is taken, which cannot. Examples are the employer's duty to provide a safe system of work, certain duties of an occupier towards visitors, duties imposed by statute in terms that fix responsibility on a named person, and above all liability for hazardous activities: in M.C. Mehta v. Union of India, AIR 1987 SC 1086, the Supreme Court held that an enterprise engaged in a hazardous or inherently dangerous activity owes an absolute and non-delegable duty to the community, and section 3 of the Public Liability Insurance Act 1991 places the same kind of liability on the owner who handles a hazardous substance.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.