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torts:master-servant

Tortious liability between Master and Servant

The relation between a master and servant gives rise to four kinds of liabilities:

  1. Liability of master to third persons;
  2. liability of servant to third persons;
  3. liability of master to servant; and
  4. liability of servant to master.

Liability of master to third persons

A master is liable to third persons for every such wrong of his servant as is committed in the course of his employment, and for the master's benefit, although the master did not authorize, or was not cognisant of, or had even expressly forbidden the act or omission in question.1) But a master is not liable for the torts or negligence of his servant in any matter beyond the scope of the employment, unless he has expressly authorized them to be done, or has subsequently adopted them for his own use and benefit. The principle of the liability of a master for the wrongful acts of his servant is a principle of the law of agency, not merely of the law of torts, and is equally applicable whether the agency is for a corporation in a matter within the scope of the corporate powers or for an individual.2)

Why is master liable

  1. Liability of the master is based on the fiction of an implied command.3)
  2. It is again said, that it is founded on the maxim respondeat superior (let the principal be liable). There are several limitations to this maxim. It would seem that a master is not liable in trespass for wilful act of his servant if done for the servant's own purposes, and not in furtherance of the interests of his master. The maxim does not apply where the relationship existing between the parties has terminated, before the commission of the act complained of. Nor does it apply to make the master responsible to a servant who sustains bodily hurt whilst discharging the duties incidental to the employment, such hurt having been caused by his own carelessness or negligence through a defect in machinery, or a deficiency of hands, of which the injured party must necessarily have been cognizant, or occasioned by the negligence of a fellow servant, provided the master had been reasonably cautious in selecting as his associates persons possessed of ordinary skill and care.
  3. Qui facit per alium facit per se (he who does a thing through another is in the same position as if he does it himself); but this is in terms applicable only to authorized acts, not to acts that, although done by the agent or servant in the course of the service, are specifically unauthorized or even forbidden.
  4. It is said that the master ought to be careful in choosing servants : but if this were the reason, a master could discharge himself by showing that the servant for whose wrong he is sued was chosen by him with due care, and was in fact generally well conducted and competent : which is certainly not the law.
  5. According to Chief Justice Shaw this rule is obviously founded on the great principle of social duty, that every man, in the management of his own affairs, whether by himself or by his agents, or servants, shall so conduct them as not to injure another; and if he does not, and another thereby sustains damage, he shall answer for it. Pollock says that this is somewhat too widely expressed, for it does not in terms limit the responsibility to cases where at least negligence is proved.
  6. A master is considered as bound to guarantee the public against all hurt arising from the carelessness of himself or of those acting under his orders in the course of his business. And it is but reasonable that it should be so, for surely it is more just that he whose orders a servant is bound to receive and obey, should suffer for the misconduct of that servant, in matters within the scope of the authority winch he has given to the servant, than that an innocent third person should be prejudiced by such misconduct.

Servant and master

A servant is a person who voluntarily agrees, whether for wages or not, to subject himself at all times during the period of service to the lawful orders and directions of another in respect of certain work to be done. A master is the person who is legally entitled to give such orders and to have them obeyed. Servants may be roughly classified as:

  1. menial servants, including domestic servants;
  2. persons employed in non-domestic occupations, such as clerks and persons engaged in offices, shops, factories, and other business occupations, labourers, artisans, and other work men, etc.; and
  3. apprentices.

Temporary loan of services

The relation of master and servant exists only between persons of whom the one has the order and control of the work done by the other. A master is under no liability for the acts of the servant whom he has temporarily lent to another person, the acts of the servant being for the time being beyond his control. When, therefore, an individual lends his servant to another for a particular employment, the servant in respect of acts done in such employment must be considered as the servant of the person by whom he is for the time being employed, although he remains the general servant of his master who has temporarily lent him to such person, and this, apparently, whether his master receives consideration for the services of the servant or whether he lends his servant gratuitously.

A person will be considered a servant whether he is hired by the employer personally, or by those who are entrusted by the latter with the hiring of servants or other agents.

If a carriage and horses are left out to hire by the day, week, month or job, and the driver is selected and appointed by the owner of carriage and horses, the latter is responsible for all injuries resulting from the negligent and careless driving of the vehicle, although the carriage and horses may be in the possession and under the control of the hirer.4): but the owner will not be responsible where the hirer drives himself or appoints the coachman and furnishes the horses.5) Where the owner of a carriage, horses and harness, was supplied with a driver by a livery-stable keeper, and provided his own livery for the driver who had driven for him continuously for six weeks, it was held that the driver was the servant of the owner of the carriage, and not of the livery-stable keeper, and the owner therefore was liable for the accident caused by him. A hack-driver, employed on the usual terms of paying so much a day for his hack and keeping the rest for himself, is, as between the cab-proprietor and the public, the servant of the proprietor, who is therefore liable for the cab-driver's negligence while acting within the scope of the purposes for which the cab is intrusted to him. A person who has borrowed a horse and chaise for his own use and enjoyment, and who rides about in it, driven by a friend whom he allows to drive, is responsible for the negligence of the driver.

Some colliery proprietors had agreed with a contractor that he should do some sinking and excavating for them, and that they should place certain of their servants under his entire control. One of these servants, an engineer, fell asleep when he ought to have been particularly wide awake. It was held that the plaintiff, who had suffered injury in consequence, could not maintain an action against the colliery proprietors, because though the engineer remained their general servant, yet he was acting as the contractor's servant at the time of the accident.6) The defendants lent a crane with a man in charge to another firm. While under the orders of the other firm, the man in charge worked the crane negligently and injured the plaintiff. Held, that although the man remained the general servant of the defendants, yet as he was not under their control, they were not responsible for his negligence.7) A ship-owner appointed a captain to his ship A, leaving the appointments of the officers and crew to tire captain. In the course of a voyage down a river, the ship A, through the negligence of those on board caused damage to the ship B. Subsequently in consequence of a storm the ship A sank in the fairway and became a total wreck. Ship C, not knowing of and not being able to see the wreck of ship A, ran foul of it and was damaged. It was held that the ship-owner was liable for the acts of those on board though he did not appoint them and that B could claim compensation from the owner of the ship A as the damage resulted from the negligence of his men; but he was not liable for damage to ship C, as after the wreck of A its owner ceased to have any control over it.8) Shipowners contracted with stevedores to discharge a ship, but agreed with them that the tackle of the ship used in the discharge should be worked by members of the crew, who were to be in the employment and control of the ship-owners. By the negligence of a member of the crew, a winchman, so using the tackle, a labourer in the employ of the stevedores was injured. Held, that as the winchman was not in the employ of the stevedores nor subject to their order and control, the ship-owners remained liable for his negligence.9)

Indian cases: The plaintiffs sued the proprietor of a buggy for damages sustained by them by reason of the negligence of the driver of the buggy who had run against and killed one of the plaintiffs' horses. It was proved that the arrangement between the defendant and the driver was that the driver should be entrusted with the buggy and the use of two horses for the day to be used entirely at the driver's discretion for the purpose of plying for hire. The driver was to pay a certain sum for the use of the buggy and horses, and all that lie made above that sum was his perquisite for his labour. Held, that the relation between the proprietor and the driver was that of the master and servant, and therefore the proprietor was liable.10)

Course of employment

Course of employment and 'scope of authority,' are equivalent terms, and both extend the master's liability beyond the actual authority given to the servant. The injury done by a servant in the course of his service or employment for which the master becomes liable is very admirably classified by Pollock in the following manner:

1) The wrong may be the natural consequence of something being done by a servant with ordinary care in execution of the master's specific orders.

Here the servant is the master's agent in a proper sense, and the master is liable for that which he has truly commanded to be done. He is also liable for the natural consequences of his orders, even though he wished to avoid them and desired his servant to avoid them.11)

Where the defendant, who disputed the plaintiff's right of way through a yard, employed a labourer to lay down rubbish in order to obstruct the way, but gave him orders not to let any of the rubbish touch the plaintiff's wall; the labourer executed those orders as nearly as he could, but some of the rubbish, it being of a loose kind, naturally shingled down towards and ran against the plaintiff's wall : the defendant was held liable.12) A was riding on a public road with B, a groom, accompanying him on horse-back. A pushed on, and B who was behind, in order to keep up with him, spurred his horse just as he was passing a waggoner C. The horse kicked and injured C. B was held to have been acting within the scope of his employment. He was A's instrument and A was answerable to C. Where servants of A brought a coach with two ungovernable horses into a public place to train them, and they being not to be managed ran upon the plaintiff, A was held liable for the damage occasioned.13) Masters have been held liable for negligent driving.14) or for negligently lighting fire.

2) The wrong may be due to the servants' want of care in the carrying on the work or business in which he is employed.

Here it must be established that the servant is a wrong-doer, and liable to the plaintiff, before any question of the master's liability can be entertained. If the servant, instead of doing that which he is employed to do, does something which he is not employed to do at all, the master cannot be said to do it by his servant, and therefore is not responsible for the negligence of his servant in doing it.

Whether the servant is really bent on his master's affairs or not is a question of fact. Not every deviation of the servant from the strict execution of duty, nor every disregard of particular instructions, will be such an interruption of the course of employment as to determine or suspend the master's responsibility. But where there is not merely deviation, but a total departure from the course of the master's business, so that the servant may be said to be “on a frolic of his own” the master is no longer answerable for the servant's conduct.

There is no rule of law to prevent a master being liable for negligence of his servant whereby opportunity was given for a third person to commit a wrongful or negligent act immediately producing the damage complained of. Whether the original negligence was an effective cause of the damage is a question of fact in each case.15)

Master liable: Where a contractor forbade his workmen to leave their horses, or to go home during the dinner hour and owing to disregard of this order, a horse which was left unattended ran away, and injured plaintiff's railings, the master was hold responsible, on the ground that the workman was acting within the general scope of his authority to conduct the horse and cart during the day. In this case, there was a temporary deviation.16) Lipton, a, grocer, had kept a van for the purpose of his business, and in accordance with an arrangement made between him and the other defendants, Farrant and Co., they supplied him with a horse and a driver, named Mears, he himself providing a boy, named Tucker, to deliver goods from the van at the customer's houses. The boy was expressly forbidden to drive, and Mears was expressly forbidden not to leave the van. While the van was being used in Lipton's business, Mears stopped it outside his house in order to get some oil for the lamp which the buy used inside the van, and left the boy in charge of the van. While Mears went into his house to get the oil. Tucker drove the van about 50 yards down the road, in order to turn and so save time, and while so doing he drove the van into the plaintiff's vehicle and injured it. The plaintiff brought an action to recover damages. It was held that defendant Lipton alone was liable, because both Mears and Tucker were in his service, and the defendants, Farrant and Co., were not liable. Lopes, L. J., remarked: If Tucker had not been in the cart, and Mears had left the cart unattended, and the horse had moved on, and an injury had been caused to a passer-by, or if a passer-by had jumped into the cart and driven it and injured some person by negligent driving, Lipton would have been liable. Again, if Mears had asked a passer-by to stand at the head of the horse while he was absent, and the passer-by had left the horse, and the horse had gone on, and injury had been caused to any person, Lipton would be liable.17)

Defendant's coachman struck plaintiff's horses with a whip, in consequence of which they moved forward and the plaintiff's carriage was upset. At the time when the horses were struck the two carriages were entangled. The defendant was held liable. “If a servant driving a carriage, in order to effect some purpose of his own, wantonly strike the horses of another person, and produce the accident, the master will not be liable. But if, in order to perform his master's orders, he strikes, but injudiciously and in order to extricate himself from a difficulty, that will be negligent and careless conduct, for which the master will be liable, being an act done in pursuance of the servant's employment

A master was held liable for the negligent driving of his cart in the city by his servant, although it was proved that it ought not, in carrying out his orders, to have been in the city at all. Where defendant's general manager was possessed of a horse and gig, which he used for the defendant's business as well as his own, and was allowed to keep them on the defendant's premises at his expense; and on one occasion the manager, on putting the horse into the gig told the defendant he was going to S to collect a debt for him (defendant) and afterwards to see his own doctor; but before he got to S he ran the gig against and killed the plaintiff's horse. Held that the defendant was responsible.

The plaintiff, who was a manufacturer of jewellery, hired from the defendant, who was a job-master, a brougham and horse with a driver at £3 a week, the brougham to be used by the plaintiff's traveller for taking out his goods. While the brougham was out one day with the plaintiff's traveller, the latter left it standing outside an hotel where he went in to have his lunch. The driver thereupon went away td have his dinner, leaving the brougham unattended; while so unattended the brougham was driven away and the contents were stolen. In an action to recover the value of the goods lost owing to the negligent act of the driver in leaving the brougham unattended, it was held, that the defendant was liable for the negligence of the driver.18)

Indian case: A boat which S let to G for unloading a ship was lost in consequence of the negligence of the mate. S sued the captain for the damage sustained. Held, that the captain was not absolved from liability because the injury was caused by the negligence of the crew, although they acted contrary to his orders.19)

Master not liable: Where the defendant employed a carpenter to make a sign board, and obtained permission for him to mate it in the plaintiff's shed and the carpenter in lighting his pipe negligently set fire to the shed, it was held that the plaintiff could not recover against the defendant; for the act of the carpenter in lighting his pipe was not connected with the employment on which he was engaged by the defendant.

In cases where the enterprise is entirely the servant's; if, for instance, he takes his master's carriage without leave for purposes entirely his own, the master is not responsible. A city wine-merchant sent a clerk and carman with a horse and cart to deliver wine, and to bring back a quantity of empty bottles. On the homeward journey, after crossing a bridge, they should have tinned to the right instead of that they turned to the left, and went in the opposite direction on some private matter of the clerks. While thus going quite against the orders, they ran over a child. It was held that the wine-merchant was not responsible.

Where defendant's servant burnt down a house demised to the defendant by lighting furze and straw, with a view to cleanse a chimney which smoked, although she had been cautioned against the danger of such a proceeding; where defendant sent his servant on an errand without providing him with a horse and he met a friend who had one and who permitted him to ride, and an injury happened in consequence; where the manager of defendants, the proprietors of a sewage farm, trespassed upon the land of an adjoining owner, without their express authority, to improve the drainage from the farm and benefit the neighbourhood; where a master of a ship signed a bill of lading for goods which had never been shipped; and where defendant employed another to do an act which might be done in a lawful manner, but the latter in doing it committed a public nuisance, it was held in all these cases that the defendants, masters, were not at all responsible.

3) The servant's wrong in excess or mistaken execution of a lawful authority.

To make the master liable it must be shown here that:

  1. the servant intended to do on behalf of his master something of a kind which he was in fact authorized to do;
  2. the act, if done in a proper manner, or under the circumstances erroneously supposed by the servant to exist, would have been lawful.

The master is chargeable only for acts of an authorized class which in the particular instance are wrongful by reason of excess or mistake on the servant's part. For acts which he has neither authorized in kind nor sanctioned in particular, he is not chargeable. Interference with passengers by guards and arrest of supposed offenders by servants fall under this head.

It is not necessary to show that the master expressly authorized the particular act. It is sufficient to show that the servant was engaged at the time in doing his master's business, and was acting within the general scope of his authority ; and this although he departed from the private instructions of the master, abused authority, was reckless in the performance of his duty, and inflicted unnecessary injury.

When the act would not be within the scope of his authority, though done properly, the master is not liable. When the plaintiff, a passenger on the defendants' line, sustained injuries in consequence of being violently pulled out of a railway carriage by one of the defendants' porters who acted under the erroneous impression that the plaintiff was in the wrong carriage; where a passenger was ejected from a railway carriage by the railway company's servants without excessive violence under an erroneous supposition that he was travelling wrongfully in the carriage; where there was authority to arrest a passenger for non-payment of his fare for the benefit of the company and the servants of the Company arrested the plaintiff by mistake; where the servant was authorized by the railway company to arrest persons supposed to be guilty of committing offences for which the company had power to arrest, and the servant made a mistake, and arrested a person whom he supposed to be, but who in fact was not guilty of such an offence ; where a bye-law of a railway company forbade any persons to ride on luggage cars ; and one of the officials, while the train was in motion, ordered a passenger to get off one of the luggage cars ; and on his not complying with it, kicked him off, whereby he fell under the wheels, and was much injured; and where the plaintiff, while standing on the railway platform waiting for her train, was struck and injured by a long bag containing personal luggage which a porter was negligently swinging round; it was held in all these cases that the railway companies were liable.

Where a partially intoxicated passenger in an omnibus refused to get out and pay his fare when the omnibus arrived at its destination, and the conduct or dragged him out violently and recklessly, and caused him to fall under the wheel of a passing cab, it was held that the servant had committed a wrongful act, in the course of his employment about his master's business, and therefore, the omnibus proprietor was responsible for the injury.(Seymour v. Greenwood)) A conductor of a tram car had by the company's by-laws power to collect fares which were payable on demand, and to prevent people travelling without paying. A passenger refused to pay his fare, and thereupon the conductor took him by the collar and pushed him off the car. Held, that the company were liable in respect of the assault upon, and injuries sustained by, the passenger

For acts wholly outside authority, a master is not liable. He is not answerable if the servant takes on himself, though in good faith, and meaning to further the master's interest that which the master has no right to do, even if the facts were as the servant thinks them to be.

Where a station master having demanded payment for the carriage of a horse conveyed by defendant company arrested and detained plaintiff for non-payment thereof until it was ascertained by telegraph that all was right, and the railway company had no power to arrest for non-payment of carriage; it was held that the railway company were not liable, as the station master in arresting the plaintiff did an act which was wholly illegal not merely in the mode of doing it, but in the doing of it at all.

Indian cases: The servant of the defendant, who was staying in the plaintiff's hotel, broke a filter, the property of the plaintiff. In a suit by the plaintiff for damages it appeared that the servant when he broke the filter was not acting within the scope of his employment, nor on the defendant's business, or for his benefit. The defendant offered to the plaintiff as compensation Rs. 30 (which was refused), but without acknowledging any liability. Held, that the defendant was not liable for the act of his servant, and that the plaintiff was not entitled to a decree for Rs. 30.20) On a claim by the Official Receiver for damages for the wrongful felling and carrying away of trees growing on part of the estate held on trust by him, those acts, to the injury of the owners whom he represented, were proved against certain of the defendants holding some employment under others, who were co-defendants with them in this suit. These co-defendants were not proved to have ordered such acts, nor was there any evidence that to cut or carry away timber was within the scope of the employment of any of the defendants. The co-respondent employers were not, therefore, under any legal responsibility in the matter.21)

4) A wilful wrong, such as assault, provided the act is done on the master's behalf and with the intention of serving his purposes.

A master may be liable for wilful and deliberate wrongs committed by the servant provided they be done on the master's account and for his purposes ; and although the servant's conduct is of a kind actually forbidden by the master.22) But he will not be liable for the wilful acts of his servant done contrary to his orders.23)

Liable: The driver of an omnibus wilfully and contrary to express orders from his master, pulled across the road, in order to obstruct the progress of the plaintiff's omnibus. In an action for negligence it was held that if the act of driving across to obstruct the plaintiff's omnibus, although a reckless driving, was nevertheless an act done in the course of the driver's service, and to do that which he thought best for the interest of his master, the master was held responsible.24)

Not liable: A servant who committed an unnecessary assault in levying a distress was not acting within the scope of his authority and did not make his employers responsible.25) It is furthermore necessary, in order that the employer may be rendered liable, that the fraud should be committed by the agent or servant for his employer's benefit. There is no difference between a fraud carried out by means of forgery and any other fraud. Thus a sheriff has been held liable for the fraud of his officer, and an attorney has been compelled to pay costs occasioned by his clerk fraudulently simulating the seal of the Court upon a writ. No sensible distinction exists between the case of fraud and the case of any other wrong. But a master is not liable in an action of deceit for the fraudulent act of a servant committed for the servant's private end.

Delegation of duty

A master is not liable for the tortious acts of a stranger to whom his servant has, without authority, delegated his duties, even though there may be an urgent necessity.

The driver of an omnibus, when within a quarter of a mile of his master's premises, was forbidden by the Police to drive further on the ground that he was not sober. A bystander volunteered to drive the omnibus home, and was authorised to do so by the driver and conductor, no effort being made to communicate with the master. Held, that there was no evidence upon which it could be held that any necessity to delegate the duty of driving to the bystander had arisen, so as to render the master liable. Lord Esher, M. E., said : The principle of agency of necessity does not extend to such a case, but is restricted to certain well-known cases, such as those of the master of a ship, of the acceptor of a bill of exchange for the honour of the drawer, and of salvors. ”

Criminal act of servant

A master may be liable to a civil action in respect of the criminal act of his servant. The defence that the act complained of amounted to a felony will not free the master from liability

The defendant's servant in the course of his employment assaulted the plaintiff and was fined for the assault. The plaintiff brought an action against the defendant for the assault. Held, that the mere fact of the assault being criminal and not merely tortious did not affect the defendant's liability for the acts of his servant.

Compulsory servants

An exception from the rules by which masters are responsible for the acts of their servants is to be found in those cases where they have been obliged by law to employ particular persons, e.g., compulsory pilots. But a master is not relieved from his responsibility for the wrongful act of his servant while doing his master's work, merely because an Act has limited and controlled the choice of the master in the selection of his servants, and has compelled him to choose from a particular class of skilled or educated persons, supposed to be peculiarly fitted for the performance of the duties intrusted to them to discharge.26)

Indian law: Where the employment of a pilot is compulsory on board a vessel, and, such pilot being on board, an accident happens through negligence in the management of the vessel, it lies upon the owners, in order to exempt them selves from liability, to show that the negligence causing the accident was that of the pilot. If such negligence is partly that of the master or crew, and partly that of the pilot, the owners are not exempted from liability. If it be proved on the part of the owners that the pilot was in fault, and there is no sufficient proof that the master or crew were also in fault in any particular which contributed, or may have contributed, to the accident, the owners will have relieved themselves of the burthen of proof which the law casts upon them.27)

Servant under two masters

Where injury is caused by reason of the negligence of defendant's servants, the fact that they are under the direction of another person at the time will not, in all cases, excuse the defendant. Indeed both may be liable.

The lessee of a ferry had hired a steamer of the defendants, with a crew who were the latter's servants. Held, that the defendants were liable for injury to passengers caused by the negligence of the crew, although the passengers had contracted with the lessee of the ferry for conveyance in the steamer, and had paid their fares to him. The ground taken by the Court was that the defendants were by their crew in possession of the vessel; and the liability of the defendants was not changed by the fact that the lessee also might have been liable.

Liability of a servant to third persons

With regard to the liability of a servant to third persons in respect of tortious acts committed by him in the course of his employment, it has been laid down that in respect of acts of non-feasance or negligence in the performance of duty a servant, as such, is under no liability, but in respect of acts of misfeasance or positive wrong is liable. A servant is responsible for his fraudulent acts, and if he knowingly commit a fraud in the course of his master's business, he will be personally liable for it, even if it were authorised by his master, and this in addition to his master's liability.28) He cannot discharge himself from liability on the ground that he acted under unavoidable ignorance.29)

Whoever commits a wrong is liable for it himself, and it is no excuse that he was acting as an agent or servant on behalf of and for the benefit of another. When that other person is also liable the party wronged has his remedy against both or either of them at his choice

The plaintiff entered into a contract with one M, by which the latter was allowed to take loose stones lying, on the surface of certain hills belonging to the plaintiff. In breach of this contract M employed the defendants, his contractors, to excavate and quarry stones. The plaintiff sued the defendants for damages sustained by him by this unlawful quarrying. Held, that the defendants were liable.

Where plaintiff's land was entitled to a supply of water up to a certain date, and the defendant, a Government officer, closed the channel fifteen days too soon, but without any malice or intention to cause harm to the plaintiff, it was held that inasmuch as the plaintiff's right to supply of water was founded on contract, a right of action, in case of the water being improperly withheld, might exist as against Government, but that there was none as against the defendant, by whom no legal injury had been committed. If malicious intention on the defendant's part had been proved the plaintiff might have had a cause of action.

Liability of master to servant

The liability of a master for accident happening to his Servant is, it has been said, not due to principles peculiar to the relation of master and servant, so much as to the Application of the general governing principles of law that where fault is there is liability, culpa tenet suos auctores tantum, and that in the absence of fault there is, prima facie at any rate, an absence of liability. The duty which the master owes the servant is just the same that he owes to every other person with whom he has business relations; he must not conceal from him dangerous circumstances which if known might cause him to alter his position, nor personally be negligent in any respect.

Liability of master to servant for injuries incurred by a servant during service will arise in three different ways:

  1. At Common law;
  2. under the Employers' Liability Act, 1880 ; and
  3. under Workmen's Compensation Acts, 1897 and 1900.

Common law

The Common law rule is that a master is not liable to his servant for injuries received from any ordinary risk of or incident to the service, including acts or defaults of any other person employed in the same service. A servant, when he engages to serve a master, undertakes, as between himself and his master, to run all the ordinary risks of the service, including the risk of negligence upon the part of a fellow-servant when he is acting in the discharge of his duty as servant of him who is the common master of both.

Where several workmen engage to serve a master in a common work, they know, or ought to know, the risks to which they are exposing themselves, including the risks of carelessness against which their employer cannot secure them, and they must be supposed to contract with reference to such risks.

For damage caused by the ordinary risks of employment the master is not liable. First, because there is no fault in the master ; second, because the risk arises out of the very thing to be done; the coming in contact with agencies that may be dangerous and men who may be negligent, with respect to which the master can exercise no absolutely protective power, or does not specifically contract to do so ; third, because workmen undertaking a work must be supposed to have a provision of its ordinary risks as well as of its labours, and as they secure by their engagement remuneration for the one they must be held to secure insurance in their wages against the other. Thus, if the person occasioning, and the person suffering, the personal injury, are fellow-workmen engaged in a common employment, and under a common master, such master is not responsible for the results of the injury. The principle of the master's immunity in such cases, frequently termed the doctrine of collaborateur, is of comparatively recent origin. In the law of England, it can hardly be traced further back than Priestley v. Fowler.

Although a workman may, having full knowledge and appreciation of the risk he runs, nevertheless agree with his employer to run this risk, yet it is no part of the implied contract of service that the workman takes the risk of injury arising from his employer's negligence, neither can such a contract be implied from the workman's continuance in the employment with knowledge of the risk.30)

Common employment does not necessarily imply that both servants should be engaged in precisely the same even similar acts. There are many cases where the immediate object on which the one servant is employed is very dissimilar from that on which the other is employed, and yet the risk of injury from the negligence of one is so much a natural and necessary consequence of the employment which the other accepts, that it must be included in the risks which have to be considered in his wages.31) All persons engaged under the same employer for the purposes of the same business, however different in detail those purposes may be, are fellow servants in a common employment, e.g., a carpenter doing work on the roof of an engine-shed, and porters moving an engine on a turn-table.32); a chief engineer and one of the ordinary seamen employed by the same company.33); a railway guard and a ganger of plate-layers in the service of the same company.34); a builder's labourer and his foreman; the master of a ship and one of the sailors employed by the same company; a labourer employed in loading trucks and a deputy foreman of plate-layers; one of a gang of scaffolders and the foreman of the gang; a miner and an under looker whose duty it was to superintend the mining operations; a manager of barges and a man employed in lowering sacks; a general traffic manager and a miles man. But a compulsory pilot is not a fellow-servant of the crew; nor are the crew of a tug and the crew of the tow; nor the masters and crews of two different ships belonging to the same owners.

One test of common service is that when the two servants are servants of the same master, and where the service of each will bring them so far to work in the same place and at the same time, that the negligence of one in what he is doing as part of the work which he is bound to do, may injure the other whilst doing the work which he is bound to do, the master is not liable to the one servant for the negligence of the other, for it is a common service. The relative rank of servants is immaterial.

Unless the injured person and the servant whose negligence caused the injury were not only engaged in common employment, but were in the service of a common master, the defence of common employment is not applicable. The injured man must be at the time of the injury in the defendant's actual employment in the relationship of master and servant.

At Common law the following duties are imposed on masters or employers

1) The master is bound to provide proper and competent fellow-servants. If he has employed a servant, knowing him to be incompetent, or without satisfying himself that he is competent for the duties required of him, he would be responsible, but not otherwise

2) The master is bound to take all reasonable pre cautions to secure the safety of his servants or workmen. On the master rests “the duty of taking reasonable care to provide appliances, and to maintain them in a pro per condition, and so to carry on his operations as not to subject those employed by him to unnecessary risk”. Every master, who employs servants and workmen to work upon his land, house, or premises, is bound to take all reasonable precautions for their safety, and if hidden and secret dangers exist upon his premises, known to him and unknown to his workmen, it is his duty to disclose them to the latter, that they may take precautions against them. And it is in all cases the master's duty to be careful that his workmen be not induced to work under the notion that the tackle, scaffolding, or rope with which they work is secure, when the master knows or has reasonable ground for believing that it is unsafe and dangerous. He must provide safe and efficient machinery. A negligent system or a negligent mode of using perfectly sound machinery may make the employer liable quite apart from any of the provisions of the Employers Liability Act.

But “the mere relation of the master and the servant never can imply an obligation on the part of the master to take more care of the servant than he may be reasonably expected to do of himself. He is, no doubt, bound to provide for the safety of his servant in the course of his employment, to the best of his judgment, information, and belief

3) The master should not be guilty of personal negligence causing injury to the servants. For his own personal negligence, a master is always liable. This liability exists although there may also be negligence on the part of a fellow-servant. This Common law duty is a personal duty only, and passes from the master when he delegates his duties as employer to other hands. Thus, if a master does not personally interfere and leaves the selection of materials to a competent foreman or superintendent, he is not liable.

Master liable: Where the plaintiff. a collier, was employed by the defendants in their mine and was dangerously wounded by a stone by reason of the unsafe condition of the shaft owing to the defendants negligence, and the mine was worked under the superintendence of one of the defendants, and the plaintiff was not aware of the state of the shaft, it was held that the defendants were liable.35) Where a master ordered a servant to take a bag of corn up a ladder which the master knew and the servant did not know, to be unsafe, and the ladder broke, and the servant was injured, the master was held liable.36)

Where a workman was employed on an elevated tramway and his employers provided no ladder or other safe means of ascending to or descending from it, and the servant in descending from it slipped and was tilled by his fall, it was held that the master was liable.37)

Where two vessels come into collision with each other, belonging to the same owners and the same line, and frequent the same port and river in which the collision occurred, the master and crew of one vessel are not in a common employment with the master and crew of the other vessel

Master not liable: A master is not liable to an action, at the suit of his servant, for an injury to the thigh sustained by the latter caused by the breaking down of a carriage in which the servant was riding on his master's business through a defect in the carriage which was overloaded of which the master was not aware.38) Where the thigh of defendant's servant was fractured owing to the over-loading of a cart in the charge of another servant, it was held that the servant was not entitled to recover damages.39)

The plaintiff was a carpenter in the employ of the defendant company, and was standing on a scaffolding at work on a shade close to the line of a railway, and some porters carelessly shifted an engine on a turn-table, and it struck a ladder supporting the scaffold, and thereby the plaintiff was thrown to the ground and injured ; it was held that the company was not liable on the ground that whenever an employment in the service of a railway company is such as necessarily to bring the person accepting it into contact with the traffic of the line, risk of injury from the carelessness of those managing that traffic is one of the risks necessarily and naturally incident to that employment.40)

Indian case: Where the plaintiff's husband, a plate-layer in the company's services, died from injuries received in a train he was travelling in while in the defendant's service, the accident being occasioned by the negligence of fellow-servants of the company, it was held that the company was not liable, as there was no failure on their part to provide competent workmen and fit tackle and machinery.41)

Volunteers

If a stranger, invited by a servant to assist him in his work, or, who volunteers to assist him, is, while giving such assistance, injured by the negligence of another servant of the same master, he is considered to be a servant pro tempore, and no action will lie against the master. The stranger, by volunteering his assistance, cannot impose upon the master a greater liability than that in which he stands towards his own servant. But a person who, having an interest in what the servants are doing, goes not only to help them but also to attend to a matter in which he as well as the defendant is interested, is not in the position of a mere volunteer, and so has not bound himself to undertake the risks of the employment.

A railway company contracted to carry a heifer by train. The plaintiff travelled by the same train, and on arriving at the place of destination, he, with the assent of the station-master, assisted to shunt the horse-box, in which the heifer was, in order to hasten delivery and while so doing was injured by the servants of the company. Held, that the company was liable.42) Where the servants of a railway company were turning truck on a turn-table, and a person not in the employment of the company volunteered to assist them, and whilst so engaged, other servants of the company negligently propelled a steam-engine, and thereby caused the death of a person who so volunteered ; it was held that the company was not liable.

A passer-by who is casually appealed to by a workman for information respecting a thing, which the latter is doing in a public thorough-fare is not to be considered a volunteer assistant so as to exonerate the workman's master from liability.

Action: In all cases, where the servant sues the master for negligence, he must prove that the master knew or ought to have known of the danger, and that the servant did not. But contributory negligence by the servant is a defence to an action by him for injury suffered through the negligence of his master.

A master, moreover, is not liable to a servant for injuries sustained in the performance of orders which he was not bound to obey, e.g., a servant is not bound to risk his life or limb in obedience to his master's orders.

The Employers' Liability Act, 1880

A very eminent Judge has observed that Priestly v. Fowler introduced a new chapter into the law. By far the greatest blow to the practical utility of the employer's Common law liability was dealt by this case. It decided that the principle expressed by the maxim qui facit per alium facit per se, of universal application to other relationships, should have no application to the relationship between employer and workmen. The application of this maxim would have rendered an employer responsible to a workman for the negligence of his agents and other work men engaged in the execution of his work for his profit. In the case of injuries arising out of another servant's negligence, the workmen stood, before the Employer's Liability Act, at a disadvantage as compared with the world outside. For damage done by the negligence of his servants acting within the scope of their employment, the master, on the principle of respondeat superior, was responsible to strangers. But a workman injured by the negligence of a fellow-workman had no such redress.43)

The general scope and object of this Act is to so far expand the employer's responsibility as to make him liable for the negligent acts or default of those to whom he has delegated his duties of control and management and of those whom he has placed in positions of authority over his workmen. Subject to this inroad the doctrine of common employment is allowed to remain as a defence to the employer, with the exception that in the case of railway servants, owing probably to the hazardous nature of their employment, its application is further restricted.

By the Employers' Liability Act, 1880, “a railway servant, or any person to whom the Employers' Workmen Act, 1875, applies,” i.e., any labourer, servant in husbandry, journey-man, artificer, handicraftsman, miner, or person otherwise engaged in manual labour “not being a domestic or menial servant, or a seaman” can bring an action against his employer where personal injury is caused to him from any of the following causes:

  1. (1) By reason of any defect in the condition of the ways, works, machinery, or plant, connected with or used in the business of the employer.
    (2) By reason of the negligence of any person in the service of the employer who has any superintendence intrusted to him whilst in the exercise of such superintendence.
    (3) By reason of the negligence of any person in the service of the employer to whose orders or directions the workman, at the time of injury was bound to conform or did conform, where such injury results from his having so conformed.
    (4) By reason of the act or omission of any person in the service of the employer done or made in obedience to the rules or bye-laws of the employer, or in obedience to particular instructions given by any person delegated with the authority of the employer in that behalf ; or,
    (5) By reason of the negligence of any person in the service of the employer who has the charge or control of any signal, points, locomotive engine or train upon a railway: The workman, or, in case the injury results in death, the legal personal representatives of the workman, and any persons entitled in case of death, shall have the same right of compensation and remedies against the employer as if the workman had not been a workman of, nor in the service of, the employer, nor engaged in his work.
  2. A workman shall not be entitled under this Act to any right of compensation or remedy against the employer in any of the following cases; that is to say:
    (1) Under sub-section one of the section one, unless the defect therein mentioned arise from, or had not been discovered or remedied owing to the negligence of the employer, or of some person in the service of the employer, and intrusted by him with the duty of seeing that the ways, works, machinery, or plant were in proper condition;
    (2) Under sub-section four of section one unless the injury resulted from some impropriety or defect in the rules, bye-laws, or instructions therein mentioned ; provided that where a rule or bye-law has been approved or has been accepted as a proper rule or bye-law by one of Her Majesty's principal Secretaries of State, or by the Board of Trade, or any other department of the Government, under or by virtue of an Act of Parliament, it shall not be deemed for the purposes of this Act to be an improper or defective bye-law;
    (3) In any case where the workman knew of the defect or negligence which caused him injury, and failed within a reasonable time to give, or cause to be given, information thereof to the employer, or some person superior to himself in the service of the employer, unless he was aware that the employer, or such superior, already knew of the said defect or negligence.

The sum recoverable as compensation is limited to three years' average earnings (s. 3). The injured servant or his representatives, must give notice (stating the cause of injury and the date at which it was sustained; s. 7) of his claim to the employer within six weeks of the accident, unless in the case of death, the judge thinks there was reason- able excuse for not giving it. Money payable under penalty is to be deducted from compensation under the Act (s. 5). The action must be brought in a county Court but may be removed into a superior Court (s. 6). The action must be commenced by the injured servant within six months, or by his personal representatives (if he is killed) within twelve months (s. 4).

The master may rely by way of defence,

  1. on contributory negligence,
  2. on any contract by which the workman has contracted himself out of the Act.

But he cannot set up in cases under the Act, the defences available at Common law,

  1. common employment,
  2. that the servant has undertaken the risk and
  3. contributory negligence.

This Act has not in any way affected the application of the maxim volenti non fit injuria; and if a man voluntarily undertakes with his eyes open exceptional risks incident to an employment, he cannot recover in respect of injuries arising thence, unless his employer has been guilty of a breach of duty, such as that referred to in the proviso to section 1.

When a workman engaged in an employment not in itself dangerous is exposed to danger arising from an operation in another department over which he has no control, the danger being created or enhanced by the negligence of the employer, the mere fact that he undertakes or continues in such employment with full knowledge and under standing of the danger is not conclusive to show that he has undertaken the risk so as to make the above maxim applicable in case of injury. The question whether the servant has so undertaken a risk as to bring himself within the maxim is one of fact and not of law. This is so both at Common law and in cases arising under the Employers' Liability Act, 1880.44) In order that a man may be volensmere knowledge of the danger will not do ; there must be an assent on the part of the workman to accept the risk with a full appreciation of its extent, to bring the workman within the maxim”. The mere fact that a man knew of a danger and yet incurred it, is not conclusive that he incurred it willingly within the meaning of the maxim.45) A workman who never in fact engaged to incur a particular danger, but who finds himself exposed to it, and complains of it, cannot be held as a matter of law to have impliedly agreed to incur that danger or to have voluntarily incurred it because he does not refuse to face it. But Lord Herschell goes further in Smith v. Baker, and says that where a servant has been subjected to risks owing to a breach of duty on the part of his employer, the mere fact that he continues his work, even though he knows of the risk and does not remonstrate, does not preclude his recovering in respect of the breach of duty by reason of the doctrine volenti non fit injuria.

The defence arising from this maxim is not applicable to cases where the injury arises from the breach of a statutory duty on the part of the employer

The Workmen's Compensation Acts, 1897 & 1900

The Act of 1897 is supplemental to the Employers' Liability Act, 1880. The principle upon which it is based is entirely new. It introduces a liability not founded upon any breach of duty, either at Common law or statutory. The employer is to be henceforth an insurer against accidents which occur in the course of the execution of his work, and is to pay a limited compensation in respect of accidents, whether due to want of care on his part or on the part of his servants or not. The measure being a tentative one is applied to part only of the industries of England.

The right of the workmen included in this Act, if they prefer it, to sue under the Employer's Liability Act, or at Common law, is preserved. An employer is not to be liable to pay compensation both under this Act and independently of it.

It will never be worth while for the representatives of workmen killed by accident to bring an action, the dam ages to which they are entitled under this Act being equal to the maximum allowed to be given under the Employers' Liability Act, 1880.

In one case only is the compensation given by the Act to be disallowed. This case is where the injury is attributable to the workman's own serious and wilful misconduct (s. 1 (2) (c) ).

Only those classes of workmen named in the Act are entitled to compensation under it (s. 7). All questions as to liability to pay compensation under this Act, and the amount and duration of the compensation, including any question as to whether or not the employment is one to which this Act applies, are to be settled by arbitration (s. 1, sub-section. 3). No action at law can be brought to decide them, or any of them.

The requirements of notice are similar to the Employer's Liability Act, 1880.

The employer and his workmen can contract themselves out of this Act only if the contract provides a scheme of compensation.

Where the workman is injured in the course of his employment under circumstances creating a legal liability in some person other than the employer, the workman can either proceed at law against such person, or claim his compensation under this Act, but he cannot do both.

By the Workman's Compensation Act of 1900, the provisions of the Act of 1897 have been extended “to the employment of workmen in agriculture by any employer who habitually employs one or more workmen in such employment”(s. 1).

Liability of servant to master

A servant is, no doubt, liable to his master, though not to others, for the consequences of his non-feasances or wrongful omissions. If damages have been recovered from the master by reason of the servant's negligence in doing the master's work, or in executing his orders, these damages may be recovered by the master from the servant.46)

1)
Story. Barwick v. English Joint Stock Bank
2)
Houldsworth V. City of Glasgow Bank
3)
Black stone
4)
Laugher v. Pointer
5)
Hall v. Pickard
6)
Rourke v. White Moss Colliery Co.
7)
Donovan v. Laing
8)
Brown v. Mallett
9)
Union Steamship Co. v. Claridge
10)
The Bombay Tramway Co. v. Khairaj Tejpal
11) , 12)
Gregory v. Piper
13)
Michael v. Alestree
14)
Jones v, Hart
15)
Englehart v. Farrant & Co.
16)
Whatman v. Pearson
17)
Engelhart v. Farrant & Co.
18)
Abrahams v. Bullock
19)
Sutherland v. Shaw Bourke
20)
Gray v. Fiddian
21)
Casperz v. Kishori Lal Roy
22)
Limpus v. The London General Omnibus Co.
23)
Green v. Macnamara
24)
Limpus v. L.G.O
25)
Richards v. The W. M. Waterworks Co. ==== Fraud of servant ==== A person may be liable for fraud committed by his agent or servant, if the agent or servant committed it while acting within the scope of his authority, while doing and purporting to do, something on behalf of his employer, although in doing it he commits a wrong which his employer neither sanctioned nor intended. But if the agent or servant is not acting or purporting to act for his employer, the fraud cannot be treated as the fraud of the employer.((Thorne v. Heard
26)
Martin v. Temperley
27)
Muhammad v. P. & O.
28)
Cullen V. Thomson
29)
Hutchinson v. York and Newcastle
30) , 44)
Smith v. Baker
31) , 32) , 40)
Morgan v. Vale of Neath
33)
Searle V. Lindsay
34)
Waller v. South-Eastern
35)
Mellors v. Shaw
36)
Williams v. Claugh
37)
Williams v. Birmingham
38)
Priestly v. Fowler
39)
Charles v. Taylor
41)
Turner v. S. P. & D.
42)
Wright v. L. N. W.
43) , 45)
Thomas v. Quarter main
46)
Green v. New River Co.


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