Law of Torts
Servant or Independent Contractor: The Tests, the Rule of Non Liability, and the Non Delegable Duties
A master answers for his servant. He does not, as a rule, answer for an independent contractor, who is his own master in the doing of the work and is liable for his own wrongs. The distinction therefore decides whether anybody besides the wrongdoer is worth suing. It rests on the difference between a contract of service and a contract for services, and the courts have moved from a simple control test to a multiple test looking at the economic reality of the arrangement. The rule of non liability has so many exceptions that the exceptions now carry most of the traffic, and the most important of them, the non delegable duty, is not really an exception at all.
Contract of service against contract for services, the tests, and the routes to liability for a contractor
1. The Distinction
A servant: a contract of service | A contractor: a contract for services | |
The relationship | Employed as part of the business | Employed for the business but not as part of it |
What he is told | Not only what to do but how to do it | What result to produce, and left to decide how |
Integration | Integral to the organisation: on the payroll, subject to discipline, using the employer's tools and premises | Accessory to it: paid by the job, free to work for others, using his own equipment and his own helpers |
Financial risk | Bears none, and provides no capital | Bears the risk of the job and stands to profit from managing it well |
Who bears tax and statutory dues | Deducted by the employer, who also bears the statutory obligations of employment | His own affair |
Who answers for his torts | The employer, vicariously | He does, and as a rule nobody else |
2. The Tests, and Why There Is No Single One
- The control test asked who had the right to direct not only what work was done but the manner of doing it. It works for a driver or a labourer, and fails completely for a surgeon, an airline pilot or a research chemist, none of whom any employer is competent to direct in the performance of the skill.
- The integration or organisation test asked whether the work was done as an integral part of the business or was merely accessory to it. It captures the idea better but is hard to apply at the margins.
- The multiple or economic reality test is the one now used. Its classic statement is in Ready Mixed Concrete (South East) Ltd. v. Minister of Pensions and National Insurance [1968] 2 QB 497: a contract of service exists where the servant agrees to provide his own work and skill in return for a wage, expressly or impliedly accepts that he will be subject to the other's control in a sufficient degree, and the other provisions of the contract are consistent with its being a contract of service.
- The label the parties put on the arrangement does not decide it. A document describing a man as a contractor is evidence and no more, and the court looks at the substance of what was agreed and what actually happened.
- The test is applied to the relationship, not to the particular act. A servant does not become a contractor because on one occasion he was left to himself.
3. The Borrowed Servant
- Where a servant is lent or hired out by his general employer to another, the question is which of them had the right to control the manner of the work at the moment of the wrong.
- The burden of showing that control was transferred rests on the general employer, and it is a heavy burden.
- It is more readily discharged where the servant is lent alone than where he is lent with complex equipment he alone knows how to operate, since the hirer cannot then direct the manner of the work at all.
- Both employers may be liable where control was in substance shared, and the loss is then apportioned between them.
4. When the Employer Answers for a Contractor Anyway
The route | Why the employer answers |
His own negligence in selection | He engaged a contractor he knew or ought to have known was incompetent, unqualified or unlicensed for the work |
His own negligence in the instructions | The harm followed from what he told the contractor to do, or from the manner he insisted upon |
Authorisation or ratification | He authorised the very act complained of, or adopted it afterwards |
Interference in the work | He took a hand in the work himself and caused the harm by doing so |
Casual or collateral negligence excluded | The employer does not answer for negligence purely collateral to the work: an act of carelessness by a workman that is no part of the risk the employer was responsible for |
A non delegable duty | The duty was not merely to take care but to see that care is taken, and it cannot be discharged by engaging a competent person |
5. Non Delegable Duties
- A non delegable duty is a duty to see that care is taken, as distinct from a duty to take care. A person subject to it may delegate the performance of the work but not the responsibility for its being done carefully.
- So it is no defence that he chose a competent contractor, supervised so far as he could, and had no reason to expect anything to go wrong.
- And the liability is not vicarious at all. It is the employer's own duty, broken by him, though performed through another. That is why the ordinary defence of having engaged a competent independent contractor is no answer to it.
Where non delegable duties arise | The illustration |
Extra hazardous acts | Honeywill and Stein Ltd. v. Larkin Brothers Ltd. [1934] 1 KB 191: photographers engaged to take interior photographs used magnesium flash powder and set fire to the premises. The employer was liable, the work being of an intrinsically dangerous kind |
Withdrawal of support from a neighbour's land | An owner who excavates cannot escape by saying that he engaged an excavation contractor: Bower v. Peate (1876) 1 QBD 321 |
Work on or near a highway | The danger is to the public at large, and the person for whom the work is done answers for it |
The employer's duty to his own workmen | To provide safe plant and appliances, safe premises, a safe system of work and competent fellow workmen. The duty is personal and cannot be delegated |
Strict statutory duties | Where the statute imposes the obligation on a named person, engaging a contractor does not shift it |
Hospitals | A hospital that holds itself out as providing the treatment owes a duty to see that reasonable care is used in providing it |
Hazardous enterprises in India | M.C. Mehta v. Union of India, (1987) 1 SCC 395: the duty of an enterprise engaged in a hazardous activity is absolute and non delegable |
6. Why the Distinction Is Worth Keeping Straight
Vicarious liability | A non delegable duty | |
Whose wrong | The servant's, attributed to the master | The employer's own, performed through another |
What must be shown | A relationship, a tort, and the course of employment | A duty of the special kind, and a failure of care by whoever performed it |
Is a contractor covered | No. A true independent contractor is outside it | Yes. That is the whole point of it |
Is care in selection a defence | It is irrelevant, because no fault in the employer is alleged | It is no defence, because the duty is to see that care is taken |
The effect on the plaintiff | He must show the wrongdoer was a servant | He need not, so long as the duty was of the special kind |
⚠ The practical importance of the distinction today The question whether a person is a servant or a contractor was once a mechanical inquiry about who could give orders. It has become a matter of economic substance, and it is contested in a growing range of modern arrangements: workers engaged through agencies, through labour contractors, through franchises, and through platforms that describe everybody as a partner. The courts look past the documents at who bears the risk, who supplies the equipment, who sets the terms, who takes the profit, and whether the person is genuinely in business on his own account. Where the answer is that the arrangement is employment in substance, the label will not save the employer. And where it is genuinely a contract for services, the plaintiff should look instead at whether the duty in question was non delegable, because that route does not depend on the classification at all. |
7. The Position Stated Shortly
1. A master is liable for his servant and, as a rule, not for an independent contractor.
2. A servant works under a contract of service and is part of the business; a contractor works under a contract for services and is accessory to it.
3. The control test asked who directed the manner of the work; it fails for skilled professionals whom no employer can direct.
4. The integration test asked whether the work was integral to the business or merely accessory to it.
5. The multiple or economic reality test in Ready Mixed Concrete is the one now used, and the label the parties chose does not decide the question.
6. Where a servant is lent, the question is who had the right of control at the moment of the wrong, and the burden of showing a transfer is heavy.
7. An employer answers for a contractor where he was negligent in selecting him, in the instructions he gave, where he authorised or ratified the act, or where he interfered.
8. He does not answer for negligence purely collateral to the work he engaged the contractor to do.
9. A non delegable duty is a duty to see that care is taken, and engaging a competent contractor is no answer to it.
10. Such duties arise for extra hazardous acts, withdrawal of support, work on the highway, an employer's duty to his own workmen, strict statutory duties, and hazardous enterprises after M.C. Mehta.