One employing another is not liable for his collateral negligence, unless the relation of master and servant existed between them.1) Thus, if an independent contractor is employed to do a lawful act, and in the course of the work he or his servants commit some casual act of wrong or negligence, the employer is not answerable, Such negligence is sometimes called casual or collateral negligence.
An independent contractor is one who undertakes to produce a given result, without being in any way controlled as to the method by which he attains that result. In the actual execution of the work he is not under the order or control of the person for whom he does it, but uses his own discretion in things not specified beforehand. He who controls the work is answerable for the workman; the remoter employer who does not control is not answerable when work which can lawfully be done without injury to others is placed in the hands of a contractor. The test whether a man employed to do work is a servant or an dependent contractor is the question: does the employer exercise, or has he right to exercise, control over the workman2), and direct him how to do his work ? If so, the relation is that of master and servant.
The principle respondeat superior does not extend to make an employer responsible for the unlawful act of a person, not in his service, with whom he has contracted to do the work, in the course of which the default occurred.3) A person who employs another to do a lawful act is presumed, in the absence of evidence to the contrary, to employ him to do it in a lawful and reasonable manner.
Employer's right to inspect works, to decide as to the quality of materials and workmanship, to stop the works or any part thereof at any stage, to modify and alter them, and to dismiss disobedient or incompetent workmen employed by the contractor, will not thereby render himself liable to third persons for the negligence of the contractor in carrying out the works.
Some bales of cotton were insecurely piled in a warehouse by cotton porters acting under the control of the warehouse-keeper, but in the employ of the defendant, a cotton merchant, to whom the bales belonged. The plaintiff, being lawfully in the warehouse to re-canvas the bales of another cotton merchant, was injured by the fall of one of the defendant's bales. Held, that the defendant was responsible.4) A labourer, particularly skilful in making drains, who was employed to cleanse a drain for the defendant, who paid him five shillings for the job, was held not to be s contractor, and the defendant was held liable for injuries caused through the labourer's negligence.5)
There are five exceptions to the rule that a person employing a contractor is not liable for his (contractor's) wrongful acts:
Exception 1: Where the defendant employed a contractor to make a drain, and he left some of the soil in the highway, in consequence of which an accident happened to the plaintiff, and afterwards the defendant, on complaint being made, promised to remove the rubbish, and paid for carting part of it away, and it did not appear that the contractor had undertaken to remove it ; it was held that the defendant was liable. Under a contract to discharge a ship the whole work was not to be done by the stevedores, but the shipowners were to control and employ members of the crew to work the tackle. Held, that the shipowners were liable for injury to a servant of the stevedores occasioned by the negligence of a winchman who was a member of the crew and not in the employ nor under the control of the stevedores.8)
Exception 2: A gas company, not authorized to interfere with the streets of Sheffield, directed their contractor to open trenches therein, the contractor's servant in doing so, left a heap of stones, over which the plaintiff fell and was injured ; it was held that the defendant company was liable, as the interference with the streets was in itself a wrongful act.9)
Exception 3: Where the defendants were authorized, by an Act of Parliament, to construct an opening bridge over a navigable river, and the plaintiff having suffered loss through a defect in the construction and working of the bridge, it was held that the defendants were liable, and could not excuse themselves by throwing the blame on their contractor.
The occupier of the refreshment room at a railway station was held liable for an injury caused by the trap of his coal-cellar being negligently left open by the servants of the coal-merchant who had been delivering coal there. But in another case the coal merchant was held liable.10)
A person maintaining a lamp projecting over a high way for his own purposes is bound to maintain it so as not to be dangerous to passengers, and if it causes injury owing to want of repair it is no answer on his part that he employed a competent person to put it in a safe state of repair. A contractor employed to make a sewer, negligently omitted to keep a gas pipe properly supported during excavations so that it broke and the gas escaping caused injury to the plaintiff. Held, that his employers, though acting under statutory authority, were responsible.
A contractor was employed to make up a road, and in carrying out the work, he negligently left on the road a heap of soil unlighted and unprotected. A person walking along the road after dark fell over the heap and was injured. Held, that his employers, though acting under statutory authority to make the road, were liable, because, from the nature of the work which they had employed the contractor to do, danger was likely to arise to the public using the road.11)
Defendants employed a contractor to make up a road. Plaintiff was driving on the road and was seriously injured by being jolted against a girder of a railway bridge owing to a ridge having been left in the road. The defendants were held liable although the injury was caused by the neglect of the contractor. A company was laying telephone wires underneath the pavement of a street and contracted with a plumber to solder the joints of the pipes in which the wires were laid. To do this the soldering material was melted in an iron pot put on the pavement, and in accordance with a common and proper practice a. benzoline lamp was dipped into the molten metal for the purpose of getting a flare. In consequence of the negligent way in which this was done, an explosion ensued and the plaintiff, who was passing along the high way, was injured. The district council was held liable, as they were bound to take care that the public using the highway were protected against any act of negligence by a person acting for them in execution of the works. A barge of defendants was sunk in the Thames. They employed an underwater man to raise her: but owing to the guard-vessel placed by him, with lights upon it, to mark the submerged barge, having been negligently allowed to get out of position, the plaintiff's steamship coming up the river, without negligence, ran upon the wreck and sustained damage. Held, that the defendants were personally responsible, and could not escape the liability by throwing the blame on the contractor(underwater man) employed by them.
Indian cases: The plaintiff claimed to recover Rs. 63,500 for damages sustained by him in consequence of his having fallen into a hole dug on the land of the first defendants, by an employee of the second defendant. The plaintiff occupied a house near the land and had been in the habit of crossing the land daily in going to and from his place of business. There was a regularly constructed road from his house to the high road, which he might have used, but, as a short cut, he and others were in the habit of using the beaten track across the land. No express permission had ever been given to any of the persons who were in the habit of using it. On one day the plaintiff had gone to his place of business as usual by the short cut across the land : while returning at about 11 O'clock at night he fell into a hole which had been dug during the day right across the pathway by the employee of the second defendant, for the purpose of ascertaining the suitability of the soil for building purposes, for which purposes the second defendant had obtained an agreement to lease the land from the first defendants. The hole was several feet deep and was unfenced and unlighted. Held, that there had been negligence on the part of the employee of the second defendant, for which the second defendant alone was liable; and a sum of Rs. 17,000 was awarded as damages.12)
Plaintiff was driving a buggy along a street in Calcutta by night and fell into a hole opened in the road, which was left unfenced and insufficiently lighted, and had been badly injured. It appeared that the road had been opened by an engineer in the employment of the Government, who had applied to and obtained permission from the corporation to open the road, subject to the condition that he employed one of the contractors licensed by the Municipality to do such works, and such a contractor had been employed. The plaintiff sued for damages, making the Secretary of State, the corporation, and the contractor, defendants. It was held that the Secretary of State was not liable, because he came within the established rule that one who employs another to do what is perfectly legal must be presumed to employ that other to do this in a legal way; that the Corporation who had a statutory obligation imposed upon them to repair and maintain the roads were liable to the plaintiff for a breach of their statutory duty; that where there was a dangerous obstruction, and a fortiori where such dangerous obstruction resulted from a permission granted by the Commissioners, they were liable for damages caused by it ; and that the contractor also was liable.13) The Municipal Committee of Lahore, having resolved to repair a certain public road within the limits of the Municipality employed a contractor to perform the work. Though, in order to avoid danger to persons driving along the road at night, it was necessary that the road should be lighted, the contractor negligently omitted to light the road at night while under repair, and in consequence, of his omission the plaintiff, while driving along the road, sustained damage. Held, that the Municipal Committee was liable for the negligence of the contractor, and was bound to make good to the plaintiff the damage he had sustained.14)
Exception 4: Defendant liable Where defendant employed a contractor to pull down an old house and erect a new one; and the contractor expressly undertook to support the plaintiff's house, and to be liable for all damage, it was held that the defendant was liable for the damage. Defendant employed a contractor to take down his house. and rebuild it. In doing this the contractor negligently cut into the party-wall between the defendant's house and the adjoining house of B, and this caused the defendant's house to fall and do damage to the plaintiff's house. There was no question whether the plaintiff had any right of support from the defendant's house. Held, that the defendant was liable, upon the ground that the work ordered by him was necessarily attended with risk to the plaintiff's house, and that it was therefore the defendant's duty to see that proper precautions were taken to prevent injury to that house.
Defendants, landowners, contracted with a man to fell and to burn bush on their land, and they made certain stipulations as to the time when the burning was to take place. The contractor disregarded these stipulations and negligently made a fire which spread to the plaintiff's land and injured his buildings and crops. Held, that the defendants were liable.15)
Indian case: The plaintiffs were owners of a house consisting of a ground floor and upper story and measuring 77 feet in length. On the south side of the house was a gully, 3 feet and 6 inches wide, separating it from another upper-storied house. The plaintiffs in this suit complained that in January 1891 the defendant by his servants dug a trench, 8 feet deep, along the whole length of the gully for the purpose of laying a drain pipe, and that the work was done so negligently that the plaintiffs' house was injured and became in such a dangerous condition that it had to be pulled down. The plaintiffs claimed Rs. 3,996 as damages. The defendant denied the negligence, and alleged that the work was not done by his servants or agents, but by a contractor. Held that the defendant was liable for the act of his contractor. The work was necessarily attended with risk, and the defendant could not free himself from liability by employing a contractor. The defendant as well aa the contractor were liable to the plaintiffs.16)
Defendant not liable: Two ladies, being possessed of a carriage of their own, were furnished by a job-master with a pair of horses and a driver by the day to drive. They gave the driver a gratuity for each day's drive, and provided. him with a livery hat and coat, which were kept in their house; and, after he, had driven them constantly for three years, and was talking off his livery in their hall, the horse started off with the carriage, and inflicted an injury upon the plaintiff. It was held that the ladies were not responsible, as the coach- man was not their servant, but the servant of the job-master.17)
Where a company, empowered by an Act of Parliament to construct a railway, contracted under seal with certain persons to make a portion of the line, and by the contract reserved to themselves the power of dismissing any of the contractor's workmen for incompetence, and the workmen, in constructing a bridge over a highway, negligently caused the death of a person passing beneath along the highway, by allowing a stone to fall upon him, it was held, in an action against the company by the administratrix of the deceased, that they were not liable.18)
A person who erects a building by contract and employs a clerk of the works to superintend the erection, is not liable for injury to a workman in the building by reason of its negligent construction, unless he personally interfered, or negligently appointed an incompetent clerk of the works, with knowledge of his incompetency.
The owner of a ship who employed a master stevedore to execute the work of unloading the vessel was held not liable for the negligence of a man employed by the stevedore, though the man, being one of crew, was the defendant's general servant.
Where a butcher bought a bullock and employed a licensed drover to drive it home, and the drover employed a boy, through whose negligence the bullock injured the plaintiff's property; it was held that the butcher was not liable as the drover exercised a distinct calling, and the boy who caused the mischief was his servant, not the servant of the butcher.
A contractor employed by navigation commissioners, in the course of executing the works, flooded the plaintiff's land, by improperly, and without authority, introducing water into a drain insufficiently made by himself, it was held that the contractor was liable and not the commissioners.19)
Indian case: In a suit for alleged damage done to the plaintiff's premises by excavations for drainage purposes, which the defendants were authorized to make by Beng. Act VI of 1836, it being shown that the defendant Justices had entrusted the execution of the work to skilled and competent contractors ; it was held that the Justices were not liable.20)
If one contracts for the performance of an entire work, and then sub-contracts for a portion of the entire work, and that is done under the immediate control and superintendence of the sub-contractor, the latter is alone liable for any wrong done by his workmen.
A builder was employed to make certain alterations in a club-house. He sublet to a gas-fitter the work of preparing the gas-fittings. In consequence of the negligence of the latter or of his servants, the gas exploded and injured the plaintiff. It was held that the plaintiff's remedy was against the gas-fitter and not against the builder.21) A had contracted with parish officers to pave a certain district, and made a sub-contract with B, by which the latter was to lay the paving of a certain street with materials to be furnished by A. Preparatory to paving, the stones were laid by servants of B on the path- way and there left in such a manner as to obstruct the same. C fell over them and broke his leg. It was held that C could not maintain an action against A as the injury was not caused by his workmen.22) A sub-contractor, was, for some purposes, the servant of defendant. The defendant had employed him as his general servant and surveyor; and he had the management of the defendant's business, for which he received an annual salary. In this particular case the defendant engaged him by contract for £40 to erect a scaffold, which had become necessary in building a bridge; and the defendant was to furnish materials. It was held that the defendant was not liable for damages sustained by reason of the negligence of his sub-contractor's workmen.23)