Master - Servant Relationship

WHO IS A MASTER? A master is a person who engages another to work under his direction and control in return for a wage or salary.
WHO IS A SERVANT? A servant is a person employed by another to do work under the directions and control of his master.

Relationship between master and servant

Traditional tests to establish master servant relationship

Masters power to select the servant Payment of wages or other remuneration Masters right to control the method of doing the work Masters right of suspension or dismissal Control test is a product of the primitive society The employer has the competence to instruct the workmen as to the method to be followed in the performance of his work. Recent cases - this test cannot be strictly applied. Right of control of method of work doesnt exist. Test to determine the relationship is hire & fire test.

New age tests

Absence of relationship between master & servant

Employer & independent contractor
Employer & servant of contractor Employer & delegate of the servant

Fellow Servant (i.e. servant who is higher in hierarchy

not liable for acts of servant lower in hierarchy) In cases of domestic relations, parent is not taken as master of child etc.

Independent contractor & servant

Independent Contractors : Who undertakes to produce a

given result, but in actual execution is not under the order or control of the person for whom he does it and may use his own discretion in things not specified beforehand. Contact of services and contract of service

 Course of employment is a legal consideration of all

2) In the "Course of employment "

circumstances which may occur in the performance of a person's job, especially during a period of time where specific objectives are given by the employer to the employee are being fulfilled. Master is liable for every tort he authorizes the servant to do. Not limited to the acts he authorizes. He is liable for torts of the servant that is done in the course of employment. Act is deemed to be done in the course of employment When wrongful but authorized act is done When an authorized act is done in a wrongful way

Is employer liable? Use the following

Where the employer expressly prohibits a particular conduct, the

employees act in breach of the prohibition is generally considered to be outside the scope of the employees services employer not liable

However, an act in defiance of a prohibition which deals with

CONDUCT WITHIN SPHERE (i.e. : how, when, where etc tasks are performed) OF EMPLOYMENT will not be outside the scope of employment - the employee would be doing the right services but in the wrong way: employer is liable

A master will not be liable for the servants negligence in doing

something which he was merely permitted to do and does so for his own purposes.

Course of employment : CASES

Limpus v. London General Omnibus Co. 1862 driving rashly to overtake competitors bus LIABLE Beard v. London General Omnibus Co. [1900] 2 QB 530 -conductor driving the bus in absence of bus driver-NOT LIABLE Pushpabai Purushottam Udeshi v. Ranjit Ginning & Pressing

Co. Pvt Ltd. AIR 1977 SC 1735 Manger driving in Maharashtra- giving lift to someone in company car LIABLE Crook v. Derbyshire Stone Ltd. (1956)2 All ER 447 Driver crossed the road to obtain refreshments merely permitted to do, not the objective hence--NOT LIABLE

HISTORY OF EMPLOYER'S LIABILITY

The first signs of it came with the Health and Morals of

Apprentices Act 1802, followed by the Factory Act 1833 and Factory Act 1844. It was not until the Workmen's Compensation Act 1897 that workers had the means of suing and getting compensation although this was very rare.
Traditionally Employers' liability favoured the employers

as the defences used at that time against the claimant were purely advantageous for the employer. The three main defences were:

Volenti non fit injuria- this meant that the workers in accepting the work was said to have accepted the risks and dangers that come with the work. 2. Contributory negligence - if the employer could show that the employee was engaging in unsafe working conditions, there could be no claim even if it was the employer who commanded the employee to do the work. This was also limited in that contributory negligence became a partial defence which only affected the amount of damages to be awarded rather that completely removing liability of the employer.
1.

3. Fellow servant rule- if an employee was injured by a fellow employee's actions, the employer would deny or reject responsibility for the employees action and the employer would have no claim against him.

 4. A safe place of work: an employer must take

reasonable steps to ensure a safe work place but this does not necessarily mean that the workplace should be completely safe. Case example :Latimer v AEC Ltd 1953

The defendant's factory got flooded as a result of heavy rainfall. The water mixed with oily liquid collected in channels in the floor meaning that the floors became very slippery. The defendants used sawdust to control this. The majority of the floor was covered but the claimant slipped and broke his ankle. It was held that the defendants were not liable since they had done everything that they could have reasonably done to ensure the safety of their employees. It would be unreasonable for them to suffer further loss by closing down the factory.