Liability of an Employer for Tortious acts of an Independent Contractor

Meaning of an independent contractor:

An independent contractor is a natural person, business, or corporation that provides goods or services to another entity or person under terms specified in a contract or within a verbal agreement. Unlike an employee, an independent contractor does not work regularly for an employer but works as and when required, during which time she or he may be subject to the Law of Agency. Independent contractors are usually paid on a freelance basis. This is because, an independent contractor undertakes to produce a given result, and in the actual execution of the work is not under the control of the person for whom he does it. 

General rule: Employer and Independent Contractor's Relationship

The general rule is that; an employer is not liable for the tort of his independent contractor. This rule was reiterated by Neill L.J in ALCOCK v. WRAITH, that "where someone employs an independent contractor to do work on his behalf he is not in the ordinary way responsible for any tort committed by the contractor in the course of the execution of the work …". Evidently, in PADBURY v. HOLLIDAY AND GREENWOOD, an employee of a contractor engaged to fit windows, negligently left a hammer lying on a window sill. A gust of wind caught the window which, as it moved, knocked the hammer onto plaintiff, a passer-by. The defendant was not held liable since the tort was committed by an employee of their independent contractor. The reason usually stated by the courts is that one ought not to be responsible for the torts of those over whom he has no control. There are, however, occasions where the employer will be primarily responsible for the damage caused by his independent contractor.

Liability of an Employer for tortious acts of an Independent Contractor 

The employer may be liable for torts of his independent contractor in the following circumstances;

The Court, in some instances, have invoked the rule under RYLANDS v. FLETCHER in all cases involving the escape of substances, such as explosives, excavations, open trap-doors, obstructions, which have been brought on to the land and which are likely to do damage if they escape, to hold the employer accountable for torts of an independent contractor.

Where the employer was negligently in the hiring of the independent contractor or that the employer has knowingly selected an incompetent contractor. In the cases of BRANNOCK v. ELMORE, and NORWALK GASLIGHT CO. v. NORWALK respectively, the Court took the view that the employer will be responsible if he is negligent in employing an incompetent contractor. Additionally, as per PINN v. REW, the employer is equally liable if he fails to instruct the contractor properly or fails to check the work where he is competent to do so. Prof. Granville William and, Prof. Morris affirm this position. 

Where the duty is personal (i.e. non-delegable duty ), here the employer is under some statutory (or contractual) duty which he cannot delegate, for example an employer has a duty to provide employees with reasonably safe plant and a reasonably safe system work. If he employs a contractor in the discharge of this duty he remains liable for any negligence by the contractor. The House of lords in STAVELY IRON & CHEMICAL CO., LTD. v. JONES , it was said, obiter, that where a duty is personal or non-delegable, the act of the subordinate (servant or contractor) is attributed to the employer as the employer's own act; but where the duty is delegable the employer is not liable. In the case of HOLE v. S. S. R. R. CO., the Company was empowered by Act of Parliament to build a bridge across a navigable stream. The Act provided that it should not be lawful to detain any vessel navigating the stream for a longer time than was necessary to enable those crossing on the bridge to pass over, when it should be opened to admit the vessel. The R.R.Co., employed a contractor to build the bridge in conformity with the Act, but before its completion, from some defect in its construction, the bridge could not be opened and a vessel was prevented from navigating the river. The R. R. Company was liable because there was a breach of non-delegable duty imposed by law and therefore the owner could not rid himself of that duty by letting the job to a contractor. The rationale of this exception can be found in Lord Blackburn in his famous dictum in DALTON v. ANGUS that "a person causing something to be done, the doing of which casts on him a duty, cannot escape from the responsibility attaching on him of seeing that duty performed by delegating it to a contractor."

Where the work contracted to be done by the independent contractor is in itself a nuisance or results in a nuisance i.e. it is a duty to refrain from using one's property either the employee or contractor so as to create a nuisance or injure another, if that happen, henceforth an employer will be liable for the resulting nuisance. In VAN DAM v. DOTY-SALISBURY CO., the contractor was negligent in removing ice on water tank which was so dangerous as to be a nuisance, thus the employer laws held liable. Likewise, the case of CITY OF CHICAGO v. ROBBIN illustrates this point as the Court held that "a hole cannot be dug in the sidewalk of a large city and left without guards and lights at night, without great danger to life and limb, and he who orders it to be dug and makes no provision for its safety is chargeable. If the nuisance necessarily occurs in the ordinary mode of doing the work, the occupant or the owner is liable."

Also, an employer is personally liable in cases involving operations on the highway which may cause danger to persons using the highways or streets as it was reiterated in the case of GRAY v. PULLEN. Besides, in REEDIE v. LONDON & N. W. RY., the employer was liable as the workmen negligently allowed a stone from a railroad bridge they were constructing over a highway to fall on plaintiff.

Furthermore, the employer is often made responsible where the injury may be traced more or less directly to defective plans or defective machinery furnished by him. This was the position of the Court in STARR v. STANARD-TILTON MILLING CO., where a defectively planned building caused land under plaintiff's building to give way, while in JOHNSON v. J. I. CASE THRESHING MACH. CO., fire erupted due to defect in threshing machine. In both cases the employers were held liable for torts of independent contractors.

Moreover, where an employer has exercised control or direction in the discharge of independent contractor's work becomes liable. In addition, the employer becomes a joint tortfeasor with the independent contractor, where he has authorised the latter to commit a tort as per ELLIS v. SHEFFIELD GAS CONSUMERS CO. 

Where the work is unlawful in itself the employer is liable. The clearest cases falling within this rule are those where the actual work contracted for is in itself a tort or a violation of a statute, for example, in NORTH AMERICAN DREDGING CO. v. PUGH, the contracted work of dredging channel involved pumping silt on plaintiff's land. This point is demonstrated by the case of CONGREVE v. MORGAN, the Court held that where "one employs a contractor to enter upon the land and do a certain work, and it turns out that the entry was a trespass, the employer is liable."

Finally, the employer is liable where the contracted work is "extra hazardous" or "inherently dangerous". Usually, the employer will be liable for the tortuous act of a contractor if the work so contracted is dangerous per se, the rationale is that a prudent employer is presumed to have foreseen such dangers before he contract them. For instance, in HONEYWILL AND STEIN v. LARKIN BROTHERS, an independent contractor used magnesium flares to take pictures of the inside of a cinema. The negligence of the contractor caused a fire to start. In this case the employer of the contactor was held liable since he had ordered the performance of what was regarded as a hazardous activity. Further, in BOWER v. PEATE, a case involving injury to the plaintiff's house from excavations by a contractor on an adjoining lot, the defendant's responsibility was placed upon the broad ground that "if an employer orders work from which in the natural course of things injurious consequences will flow unless means are taken to prevent them, he is bound to see the doing of that necessary to prevent the mischief and cannot relieve himself by employing another."

Conclusion:

In the outset it may be well to state that, the relationship between "employer and independent contractor" differs from that of "master-servant" in that there is neither control nor continuity of employment. This is because, the contact between employer and independent contractor, is the contact for service, while the contact between the master and the servant is the contract of services. 

NB: This Document is also available in Pdf & iPaper (with footnotes) at: www.scribd.com/jabashadrack

REFERENCES:

BOOKS:

Abbott, K, (2002) Business Law 7th Ed, Continuum publishers, London

Binamungu, C.S (2002), Law of Torts in Tanzania, Research and Publication Department, Mzumbe

Bryan A. Garner, (2004), Black's Law Dictionary, 8th Ed, Thomson West

Cooke John, (1999), Law of Tort 4th Ed, Financial Times Pitman Publishing 

Juma. I.H (2007) Learning materials: Law of Tort, DUP 

Lewthwaite, J (2004), Tort Law, Oxford University Press, New York

Salmond & Huston, Law of Tort 20th Ed, Sweet & Maxwell, Universal Law Publishing Co. Pvt. Ltd, London.