Who Is a Servant

For vehicles Indian law starts from a presumption, and one Supreme Court case sets its limits.

Facts. Sitaram Motilal Kalal v. Santanuprasad Jaishankar Bhatt, AIR 1966 SC 1697, decided on 8 February 1966. The owner of a taxi entrusted it to a man who drove it, collected the fares, met the expenses and handed the balance and the accounts to the owner. A cleaner, employed either by the owner or on his behalf by the driver, was trained by the driver to drive and was taken to obtain a licence. While taking the driving test the cleaner injured the respondent. The driver was not in the vehicle.

Held. By a majority the owner was not liable. There is a presumption that a vehicle is driven on the master's business by his authorised agent or servant, but the presumption may be rebutted, and it was rebutted here: the evidence did not show that the owner had employed the cleaner to drive, or permitted him to drive, or asked him to take a test, or authorised the driver to employ strangers to drive; and the driver was not in the vehicle so as to be in control on the owner's behalf. For a master's liability to arise, the act must be a wrongful act authorised by the master, or a wrongful and unauthorised mode of doing some act authorised by him.

Why it matters here. It gives both the presumption and the way to rebut it, and it supplies the formula for the course of employment that chapter [Course of Employment] then works out.

And the case on the other side. State of Maharashtra v. Kanchanmala Vijaysing Shirke, (1995) 5 SCC 659, held the State liable where a jeep was driven by an employee who was not the appointed driver, because the appointed driver was sitting beside him and had allowed it with his knowledge and consent. Read the two together: what mattered in each was whether the master's servant remained in control.

A worked example

A hospital engages four people.

A staff nurse, paid a monthly salary, working the hospital's shifts with the hospital's equipment. A servant on any test.

A visiting surgeon, who operates twice a week, uses the hospital's theatre, is paid per operation and also practises elsewhere. The control test is unhelpful, since nobody tells a surgeon how to operate. The organisation test asks whether the surgical service is an integral part of what the hospital offers, and it usually is, so the hospital is generally liable to the patient for negligence in its theatre; Achutrao Haribhau Khodwa v. State of Maharashtra, (1996) 2 SCC 634, made the State liable for a mop left inside a patient in a government hospital.

A contractor who builds a new wing, choosing his own methods and workers. An independent contractor, and the hospital is not liable for his negligence, subject to the exceptions in chapter [Liability for an Independent Contractor].

A driver lent by an ambulance company to drive the hospital's vehicle for a week. The general employer remains liable unless the hospital had the right to control the manner of his driving, which is a heavy burden to discharge.

Distinctions that carry marks

What it does NOT mean

The label the parties use does not decide. A contract that calls a person a contractor may still create a contract of service.

Control is not the only test today. Integration and the multiple test supplement it.

A skilled professional is not outside the doctrine. The control test simply gives way to the others.

A lent servant is not automatically the temporary employer's. The burden of shifting liability is heavy.

Quick revision

1. Servant: contract of service, control over the manner of work. Independent contractor: contract for services, control over the result only.
2. Three tests: control, organisation or integration, and the modern multiple test.
3. The label the parties choose is not conclusive.
4. A master is liable for a servant's torts in the course of employment; an employer is ordinarily not liable for a contractor's.
5. Lent servant: the general employer remains liable unless the right to control the manner of the work passed.
6. Sitaram Motilal Kalal v. Santanuprasad Jaishankar Bhatt, AIR 1966 SC 1697: a vehicle is presumed to be driven on the master's business, but the presumption may be rebutted; the owner was not liable where a cleaner drove during a licence test.
7. State of Maharashtra v. Kanchanmala Vijaysing Shirke, (1995) 5 SCC 659: liability where the appointed driver let a colleague drive with his knowledge and consent while he sat beside him.

Test yourself

1. Distinguish a servant from an independent contractor and state the tests. A servant works under a contract of service, in which the employer has the right to control not only what work is done but the manner of doing it. An independent contractor works under a contract for services and undertakes to produce a result, choosing the method himself. Three tests are used. The control test asks who directs the manner of the work; it is the traditional starting point and fails for skilled professionals whom nobody can instruct in their craft. The organisation or integration test asks whether the work is done as an integral part of the business or is merely accessory to it. The modern multiple test weighs all the circumstances: the provision of tools and premises, who bears the financial risk, the mode of payment, whether the person may work for others or send a substitute, and the parties' own description, which is not conclusive. The distinction matters because a master answers for his servant's torts in the course of employment while an employer ordinarily does not answer for a contractor's.

2. Who is liable when a servant is lent to another employer? The general employer remains liable unless the right to control the manner of doing the work passed to the temporary employer, and the burden of establishing that shift is a heavy one. Telling the workman what to do is not the same as controlling how he does it, and the presumption is that the person who selected, employs and pays him retains that control. In India the question most often arises about vehicles, and Sitaram Motilal Kalal v. Santanuprasad Jaishankar Bhatt, AIR 1966 SC 1697, sets out the framework: there is a presumption that a vehicle is being driven on the master's business by his authorised servant, but it may be rebutted, and it was rebutted where a cleaner drove the taxi during a licence test without the owner's authority and without the driver being present to control the vehicle on his behalf.

3. Is a hospital liable for the negligence of its doctors? Generally yes, where the doctor is part of the hospital's organisation, even though nobody can control the manner in which a doctor exercises clinical judgment. The control test gives way to the organisation or integration test: treatment is an integral part of what a hospital offers, so negligence in its wards and theatres is the hospital's responsibility. Achutrao Haribhau Khodwa v. State of Maharashtra, (1996) 2 SCC 634, is the Indian authority: a mop was left inside a patient during an operation in a government hospital, and the Court held that once death by negligence in the hospital is established the State is liable to pay damages. The position may differ where a patient engages a consultant independently and the hospital merely provides facilities.