Beruflich Dokumente
Kultur Dokumente
Independent Contractors
SUBMITTED BY:
Arushi Bisht
PRN-16010324310
Division-D
Submitted On : 04/10/16
CERTIFICATE
The material borrowed from other sources and incorporated in the thesis
has been duly acknowledged.
Date-4/10/2016
Acknowledgement
I would like to express my special gratitude and thanks to collage staff for
giving me such attention and time.
INDEX
Introduction ……………………………………………………….…1
Master and Servant Relationship ………………………….……2
Doctor in hospitals are servants …………………….…….3
To lending a servant another person ……………….….4
Mistake of servant ………………………….….4
Wilful wrong of servant ………………………………….….5
Fraud of servant ……………………………..….5
Due to criminal act of servant ………………………….6
Independent contractor …………….…………………7
Distinction between servant and independent contractor ………8
Liability for the acts of independent contractors ……………….9
Conclusion …………………………………………………….9
Introduction
The expert and worker relationship emerges out of an express get; the
law, be that as it may, will once in a while infer an agreement when none
exists if a man was persuaded there was one by the behaviour of both the
business and the representative. No agreement exists, then again, unless
both expert and hireling agree to it. The agreement can contain whatever
terms and conditions the gatherings consent to, if they are lawful. It is
vital that the terms be adequately unmistakable to be enforceable by a
court if the agreement is ruptured. A work contract is lawfully enforceable
by the honour of harms against either party who breaks it.
1
Hileyer v S.L. Barthelomew’s [1909 1 KB 820]
1) The masters power of selection of a servant.
2) The payment of wages or other remuneration.
3) Masters right to control the method of doing the work.
4) The masters right of suspension.
his act of merely a wrong and mistaken way of doing the work entrusted
to him and not an unauthorised assumption of work that did not pertain 3
3
Mersey Docks and Harbour Board v. Coggins and Griffith [(1847) 1 AC 1]
Bayley v Manchester Rly. Co [1873 LR 8 CP 148]
Limpus v. London General Omnibus Co [1856 1H&c 526]
to him. The porter was doing a blundering way something which he was
authorised to do the defendant company was held liable.
In Bar Wick v. Joint Stock Bank4, the defendants were held liable for
the fraudulent misinterpretation made to the plaintiff by their branch
manager considering the business under his control and it was laid down
4
Bar Wick v. Joint Stock Bank [1866 LR 2 Ex 259]
that no sensible distinction can be drawn between the case of fraud and
the case of any other wrong because the general rule is that the master is
answerable for every such wrong of the servant or agent as is committed
in the course of service and for the master’s service, no express
command or privity of the master proved.
1) Where master is liable, for the acts not done in the course of
employment.
2) Acts outside the course of employment
5
Rooplal v. Union of India [AIR 1972 J&K 22]
This caption focuses an important part of Law of Torts invariably
indicating the concept of vicarious liability of an employer. Law states,
“Qui facet parse alium facit perse” which means he who doers an act
through another are deemed in law to do it himself.
For Example, Mr. A is the Principal and Mr. .B is the Agent. If Mr. B is the
driver of Mr. A and if Mr. B hits Mr. C while driving Mr. A’s car, Mr. A is
liable to the act of Mr. B.
But if Mr. hires a taxi to go to Airport and if the taxi driver hits Mr. C, Mr.
cannot be made to be liable since the taxi driver is an independent
contractor.
The liability of the master for the tort which has been committed by his
servant is based on the maxim “ respondent superior” i.e. superior is
responsible. In the law of torts, it is established that he who employs
another to do something does it himself or he whom does an act through
another is deemed in law to do it himself.
The general rule that the employer is not liable for the tortious acts of
independent contractor has the following exceptions:
1) Any person who works for another for a salary is a servant whereas
independent contractors a person who, exercising an independent
employment contract to do piece of work according to his own
methods.
2) The servant is under the control and supervision of the employer while
the independent contractor is not under the control and supervision of
the employer
3) A master can suspend his servant but his employer cannot, unless the
latter violates the terms of contracts.
4) Payment of wages is paid by the employer to his servant under the
labour rules while payment of contractor for a work, service is paid by
the principal to an independent contractor under the provision of
contract act.
5) A servant could not possess the ownership of the tools, vehicles etc.
while the independent contractor has ownership of his tools, vehicles
etc.
6) For the torts done by his servant the employer is liable, as the
respondent’s superior but for the torts done by independent contractor,
the employer is not liable.
Conclusion
From the above discussions, and case citations, it can be seen that the
application of liability of the employer in acts by independent contractor
and master’s liability in case of servants acts is a legal concepts which
indicate social security and wellbeing of a society. That is the reason,
more prominence is given to the act in Civil law rather than Criminal Law.
The status of English law and American law widely differs in application
and Indian courts have adopted the good and social aspects of the law
while implementing vicarious liability.
Law and Court system emerged for the smooth functioning of a society
compensation of social wrongs are the very purpose and aim of laws. In
India, this has been accepted by the Honourable Supreme Courts and
other Courts by the famous decisions above narrated. Vicarious liability is
not a hard and fast rule, but its application changes as to circumstances
of wrongs being committed anywhere. Public good is the final aim always
indicated and protected here which is highly appreciable, especially in
Indian legal system.
Bibliography
www.legalservicesindia.com