INTRODUCTION
The principle of master-servant relation falls under the chapter of Vicarious Liability which is a civil wrong i.e. tort. The term ‘Vicarious Liability’ means ‘liable for acts done by another’ and the same doctrine is applied in the master-servant relationship where a master can be held liable for the acts done by his servant.
If a servant is not made liable that does not mean that he cannot be made accountable anyway. He might not be charged by the plaintiff. But the master can personally bring a charge against him if the case is as such.
To bring the charge of vicarious liability against the master, two essentials must be fulfilled:
- Tort must be committed by the servant;
- The servant must commit the tort in his course of employment.
For the fulfillment of the first essential it is necessary to assure that person committing the tort is the servant of another or not. A servant is a person employed by another to work under his control and direction. But every person employed for some purpose will not be termed as a servant, e.g. – Independent Contractors.
TEST TO DETERMINE MASTER-SERVANT RELATIONSHIP
TRADITIONAL APPROACH (Test of Control)
The traditional manner of ‘Test of Control’ laid down by Blackburn J. in the case of R. v. Negus[2] , in addition, to assign the work to the employee was to control the mode of performing the task. According to this view, the actions of the servant are completely supervise by the master.
In Collins v. Hertfordshire[3] Hill Bridge differentiated between the two terms ‘contract for services’ and ‘contract of service’. In a contract for services. The master can command what is to be do (what is to be achieve). But in the contract of service, master not only commands for the ultimate object. But also the manner of operation (what is to be achieve and how it shall be achieved).
MODERN APPROACH
Different approaches are require for the contemporary issues to decide. Whether the employment of the services rendered by the serving party. It will yield to the doctrine of vicarious liability or not.
I. Test of Control Not Exclusive
With the advent in time and complexity in the professions of service sector. Solely the application of ‘control test’ fails to render justice in this matter.
In Dharangdhara Chemical Works Ltd. v. State[4]it was observed that the master’s right to direct and control the execution of the work done by the servant is a prima facie test. The nature of control may vary from business to business and is by its nature incapable of any exact definition, that it is not necessary that the employer should be proved to have exercised control over the work of the employee, that the test of control is not of universal application and there are numerous contracts in which the master could not control the manner in which work was done.
II. Hire and Fire Test
This test helps in eliminating the independent contractors from the ambit of the master-servant relationship.
An independent contractor is employ for some person. But he is not bound by the guidance, supervision, or control of the master. For example taxi driver. A taxi driver is just suppose to complete his job like a prudent man, he is not supervise by the customer like a personal car driver. If the personal driver of Mr. A knocks down a pedestrian Mr. A shall be liable but he shall not be liable if he hires a taxi for the route.
An independent contractor is hired or employed to produce a given result but the manner of execution of the work is not under the control of the employer or master. He conducts the work as per his discretion. Mr. A can hire as well as fire (discharge) his car driver from the job but in case of taxi driver he cannot fire him from his job because he is an Independent Contractor.
In Morgan v. Incorporated Central Council[5] the plaintiff fell from the open lift shaft in the premises of the defendant and got injured. The defendant has hired independent contractors to keep the shaft safe and in proper order but carelessness on the part of contractors led to this mishap. The court held that it was the negligence on the part of the independent contractors and the defendant cannot be held liable.
There are various cases where the serving party is neither independent contractor nor under the control of their master but still is cover under the application of this test, like captains of ship or surgeons of hospitals. If only the control test apply then it would have been impossible to sue the state authorities for the torts commit by the medical staff of the state-own hospitals, because control test does not consider them the servant of state as government doctors are not supervise by the health ministry while conducting any operation and same is applicable for engineers of the municipal corporation.
In RSRTC v. K.N. Kothari[6], the state was held liable for the accident of the bus caused by the driver who hired by the state to run the bus on a specified route.
III. Work as an Integral Part of Service
The work done should be an essential or integral part of the service. If the subject matter is not an integral part of the service then for that particular act the doctrine of vicarious liability will not be fetched.
In the case of Stevenson Jordan & Harrison Ltd. V Macdonald & Evans[7], the court observed that a person is considered an employee under a “contract of service” when the work is integrated into that of the business and considered an integral part of the business whereas an independent contractor for services is merely an accessory to the business and, thus, not an employee.
For instance, if a private college hires a catering service provider to run a canteen in the college, this act will not amount to a master-servant relationship because providing meals to the students in the college is not an integral part of the job of the college.
COURSE OF EMPLOYMENT
The master is always liable for the acts of the servant which he expressly authorizes to the servant. The liability of master not only arises in the cases where the servant does a specifically authorized act but also when the servant commits the tort in the course of his employment. An act is deem to be in the course of employment if it is either:
1. a wrongful act authorized by the master; or
2. wrongful and unauthorized mode of doing an authorized act[8]
Thus, the master can also liable for the unauthorize act likewise an authorize act, but the unauthorize act should be perform by the servant in the course of his employment, i.e. wrongful mode of doing the authorize act.
Like if Mr. A orders his servant to clean the house and he mistakenly drops a bucket of water on neighbor’s plants and consequently destroying them, or if hotel manager authorizes a receptionist to attend the customers and she engages in a fight with customers; or if Mr. A authorizes a driver and he mistakenly hits another’s vehicle while parking; in every case mentioned the servant is doing the authorized act in a wrongful manner in the course of his employment which as consequence will make the master vicariously liable.
The reason for vicarious liability of a master for such act was explain in Barwick v. English Joint Stock Bank[9] that though the master has not authorized the tortuous act but as he has put the servant in his place to perform the class of acts so he must be accountable for how servant has performed himself in doing the business which was the act of master to place him in.
In National Insurance Company, Kanpur v. Yogendra Nath[10] the owner of the car authorized his servants to look after his car and keep it dusted while he was out of the town. One other servants took the car to the petrol pump for inflating the tires and knocked down two pedestrians. This act of the servant was cover in the course of his employment make the master vicarious liable for the act.
However, no liability if master arises if the servant does an unauthorized act that too beyond the course of employment. For instance if Mr. A sends his servant to purchase vegetables from supermarket and there the servant engages in a quarrel with a customer in the market and defames him, for such act Mr. A cannot be liable.
Master shall be liable to the third party if the employed servant commits fraud, mistake, or negligence in the course of performance of his duties.
In Lloyd v. Grace Smith and Co[11] the managing clerk of the Smith and Co. on behalf of the company attended their client and fraudulently made her sign the documents to transfer her property to him. This act of the managing clerk was considered a wrongful act in the course of his employment and the company was held vicariously liable.
In State Bank of India v. Shyama Devi[12] a customer of the bank gave a monetary amount to a bank employee (in his capacity as a friend), to be deposited in the bank but the employee instead misappropriated the amount for personal gain. The bank was not liable for the acts of the employee as he act beyond the course of performance of his duty.
In Poland v. Parr and Sons[13], a carter mistakenly on reasonable ground suspected that few boys were stealing the sugar from his employer’s wagon. In order to prevent the sugar from theft, he struck one of the boys, who fell and lost his leg. Though the force use by the caterer was excessive but not much excessive to be outside the course of his performance of duties as safely transporting the wagon to the destination is cover in his course of duty and the master was vicariously liable.
CONCLUSION
Generally it is quite tough to determine the liability of servant or master in practicality. This is so because the civil law or tort has a very wide scope and is uncodified law. Many times different jurists have different opinions on the same civil issue which leads to extending in dates of judgments and pile-up of cases in the courts. Still our judicial system is fighting with the ambiguity in the uncodified law and trying to serve the best.
References:
[1] Baxi Amrik Singh v. Union of India, (1973) 75 P.L.R 1 at p. 7.
[2] (1873) CR 2 CP 34
[3] (1974) K.B. 598.
[4] 1957 AIR 264, 1957 SCR 152
[5] (1936) 1. All E.R. 404.
[6] A.I.R. 1997 S.C. 3444.
[7] (1952) 1 TLR 101.
[8] Salmond, Torts, 18th ed.; 437; Sitaraman v. Santanuprasad, A.I.R., 1966 S.C. , 1967, 1704;
[9] (1867) L.R. 2 Ex. 259 at 266.
[10] A.I.R. 1982 All. 385
[11] (1912) A.C. 716
[12] A.I.R. 1978 S.C. 1263
[13] (1927) 1. K.B. 23
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