Employer and Independent Contractor It is to be remembered that an employer is vicariously liable for the torts of his servants committed in the
course of their employment, but he is not liable for the torts of those who are his independent
contractors.
A servant is a person who is employed by another (the employer) to perform services in connection
with the affairs of the employer, and over whom the employer has control in the performance of these
services.
An independent contractor is one who works for another but who is not controlled by that other in his
conduct in the performance of that work. These definitions show that a person is a servant where the
employer “retains the control of the actual performance” of the work.
Where Employer is Liable for the acts of Independent Contractor
The employer is not liable merely because an independent contractor commits a tort in the course of his
employment; the employer is liable only if he himself is deemed to have committed a tort. This may
happen in one of the following three ways:
(i) When employer authorizes him to commit a tort.
(ii) In torts of strict liability
(iii) Negligence of independent contractor
Where Employer is not Liable for the acts of an Independent Contractor
An employer is not liable for the tort of an independent contractor if he has taken care in the
appointment of the contractor.
In Philips v. Britania Hygienic Laundry Co. (1923), the owner of lorry was held not liable when
a third-party‟s vehicle was damaged, in consequence of the negligent repair of his lorry by a garage
proprietor.
Employers of independent contractors are liable for the “collateral negligence” of their contractors in
the course of his employment. Where A employed B to fit casement windows into certain premises.
B's servant negligently put a tool on the still of the window on which he was working at the time. The
wind blew the casement open and the tool was knocked off the still on to a passer by. The employer
was held to be liable, because the harm was caused by the work on a highway and duty lies upon the
employer to avoid harm.
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