By Sacha Hartmann
The most significant instance of vicarious liability arises in cases where the master is responsible for the actions of his servant. In such cases it is understood that the servant is acting on the master’s behalf, or at his request, and as such it is assumed that the servant has the master’s permission to perform these actions. To understand this further, it must be made clear when the relationship between a master and servant exists and when it does not, in which case one typically refers to an ‘independent contractor’.
Specifically, this relationship exists when the one person, the master, has the order and control over the work done by another, the servant. A master is thus not someone who merely directs what work is to be done by the servant, but someone who has the authority to tell the servant how the work is to be done.
An independent contractor, conversely, is someone who is hired to complete a certain task without being controlled as to the manner in which he achieves this result. For this reason it is generally held that an employer is not responsible for the actions of an independent contractor. It should also be understood that a master can be a single individual as well as a ‘person’ in the sense of a corporation or business.
Mersey Docks Board v. Coggins, (1946). A firm of stevedores had hired, from the Mersey Docks Board, a crane operator as well as a crane to assist with the unloading of a ship. The operator of the crane was a skilled workman paid by the Board. The stevedores had the authority to tell him what work to do, but they could not tell him in what manner the work was to be done. Due to the negligence of the operator a man was injured. It was ruled that the employers of the operator, namely the Board, was responsible for the operator’s actions. Although the stevedores were responsible for what work was done, it was solely the Board’s responsibility to direct how it was done.
Once it has been determined that the master-servant relationship exists, the ‘test of control’ has been established. Once this is the case, it need not even be proved that any payment of wages or recompense existed. A person may be the servant of another gratuitously, that is to say, he may act as a servant without asking for or expecting to receive any form of compensation.
It is important to realise that an individual can be a servant for a very short period of time, for example a single task that may not even take as long as an hour to complete. There need not be any long standing employment. Thus, if someone allows a friend to drive his car, without giving up his right to control the car, then that person is responsible for any negligence (or wilful wrong) on the part of his friend. If the owner of the car had been incapacitated, for example either asleep or drunk, then he is not liable for any damage incurred by his friend.
Samson v. Atchison, (1912). The defendant took a customer and his son for a drive in a car for the purpose of demonstrating it. During the demonstration the defendant allowed the customer’s son to drive the car. The latter then caused an accident due to his negligence. It was ruled that the defendant was liable for the damage since he had not given up his right to control the car. (‘No doubt if the actual possession of the [car] has been given by the owner to a [customer]… [or] if there has been a bailment by the owner to the third person, the owner has given up his control.’)
Morgans v. Launchbury, (1972). A car belonging to the wife (M, the defendant) was also used by the husband to drive to and from his place of work. One day, before going home, the husband got drunk and wisely handed over the keys to a friend (C) and fell asleep. C, instead of driving directly to the husband’s home, went in the opposite direction to get a meal. On this trip, as a result of negligent driving, C collided with a bus and injured the plaintiff (L). L brought a suit against M, as the owner of the car, making her liable for C’s negligence. It was ruled that M was not liable as no agency, or relationship, had been established between her and C.
Further, it was held that: (a) there was no evidence that the husband used the car to drive to work as the wife’s agent; (b) when the husband asked C to drive the car, it was not enough to make C the wife’s agent; and (c) at the time of the accident C was not driving the car with the intention of returning it to the wife, but rather away from her home with some ulterior motive of his own.
The test of control has also been used in cases involving borrowed servants. A man cannot serve two masters, but a man in the permanent employment of one person can temporarily become the servant of another for a particular task. In this case the person who has temporarily acquired the services of this servant is liable for any torts committed by that servant.
Again, it is important to remember that a person is not another’s servant unless the other can control not only what work he does, but the manner in which he does it. So if A instructs his servant to do a task for B, without ever giving B control over the servant, then B is not liable for any negligence on the servant’s part, but A would be. If B had borrowed the servant from A, and B had the control to tell the servant how to do the task, then B would become liable for the servant’s negligence.
This same rule applies in cases where a superior servant has another servant put under his charge. Although the superior servant is responsible for the other’s actions, he cannot be held liable for them because the other already has a master. Furthermore, they both serve the same master. This can lead to complications, especially if the one servant’s negligence leads to the injury of a fellow servant. This was originally dealt with in the doctrine of common employment, but this was later replaced by acts of law in both India and England.
Although a master is liable for his servant’s actions, the servant himself is also liable because everyone is responsible for their own actions. That the servant was acting on behalf of, or for the benefit of, another provides no defence. The two most common ways that vicarious liability occurs are:
• Where the defendant has authorised that particular wrong, either before its commission or by ratifying it after the fact.
• When such a relationship exists between the defendant and the person who committed the wrong that the defendant becomes liable for that wrong.