Respondeat superior - Wikipedia
Literally, it means that one person is liable for the torts of another. stated that a servant is a person who subject to the command of his master. Tortious responsibility of a master for the wrongful acts of his servant is based on relatively recent origin, the master-servant relationship, however, is as old as. Master and Servant Acts or Masters and Servants Acts were laws designed to regulate relations Imprisonment, even for non-aggravated breaches of contract, continued when working people failed to comply with court orders for specific.
It was held that the members of the band were employees of the defendants who were liable for the breach of copyright.
The nature of the task undertaken, the freedom of action given, the magnitude of the contract amount, the manner in which it is to be paid, the powers of dismissal and the circumstances under which payment of the reward may be withheld, all these bear on the solution of the question … it seems, however, reasonably clear that the final test, if there be a final test, and certainly the test to be generally applied, lies in the nature and degree of the detailed control over the person alleged to be servant.
This circumstances, of course, one only of several to be considered, but it is usually of vital importance. The point is put well in Pollock on Torts, 12th ed.
Obligations Of The Employee In The Master And Servant Relationship - rss - NHRC
A servant is a person subject to the command of his master as to the manner in which he shall do his work, and the master is liable for his acts, neglects and defaults, to the extent to be specified. An independent contractor is one who undertakes to produce a given result, but so that in the actual execution of the work he is not under the order or control of the person for whom he does it, and may use his own discretion in things not specified beforehand.
The harbour board hired out a mobile crane, together with a driver, Mr. Newall, to the defendant stevedores. Newall was paid and liable to be dismissed by the board, but the contract of hire stated that he was to be regarded as the employee of the stevedores.
The stevedores could tell him what to do, but not how he was to operate the crane. Newall negligently injured Mr. On the question whether the board or the stevedores were to be held vicariously liable for the negligence of Mr.
Newall, the board was liable. Many factors have a bearing on the result.
Who is paymaster, who can dismiss, how long the alternative service lasts, what machinery is employed, have all to be kept in mind.
The expressions used in any individual case must always be considered in regard to the subject matter under discussion but amongst the many tests suggested I think that the most satisfactory, by which to ascertain who is the employer at any particular time, is to ask who is entitled to tell the employee the way in which he is to do the work upon which he is engaged.
If someone other than his general employer is authorized to do this he will, as a rule, be the person liable for the employee's negligence. But it is not enough that the task to be performed should be under his control, he must also control the method of performing it.
It is true that in most cases no orders as to how a job should be done are given or required: But the ultimate question is not what specific orders, or whether any specific orders, were given but who is entitled to give the orders as to how the work should be done. Where a man driving a mechanical device, such as a crane, is sent to perform a task, it is easier to infer that the general employer continues to control the method of performance since it is his crane and the driver remains responsible to him for its safe keeping.
In the present case if the appellants' contention were to prevail, the crane driver would change his employer each time he embarked on the discharge of a fresh ship. Indeed, he might change it from day to day, without any say as to who his master should be and with all the concomitant disadvantages of uncertainty as to who should be responsible for his insurance in respect of health, unemployment and accident.
Vicarious Liability in India
I cannot think that such a conclusion is to be drawn from the facts established. I would dismiss the appeal. The company had engaged an independent haulage contractor to deliver the concrete to customers but that contract was terminated and RMC decided to introduce a scheme whereby concrete was delivered by owner- drivers working under written contracts.
In the company asked the Minister of Social Security for a determination of the employment status of one of the owner-drivers, Mr Latimer. He concluded that the contract was not one of service but of carriage. In his judgment, MacKenna J considered what is meant by a contract of service. In this case the issue was whether an interviewer, who was engaged on a casual basis, was employed under a series of contracts of service or under a series of contracts for services.
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Market Investigations Ltd was a market research company. It employed a small number of full-time interviewers but, for the most part, drew on a panel of casual interviewers and the case concerned this latter group. The facts found included the following: The Minister of Social Security decided that Mrs Irving did work under a contract of service and the company appealed against that decision.
If the answer is 'no' then the contract is a contract of service. No exhaustive list has been compiled and perhaps no exhaustive list can be compiled of the considerations which are relevant in determining whether there is a contract of employment nor can strict rules be laid down as to the relative weight which the various considerations should carry in particular cases. The most that can be said is that control will no doubt always have to be considered, although it can no longer be regarded as the sole determining factor; and that factors which may be of importance are such matters as whether the man performing the services provides his own equipment, whether he hires his own helpers, what degree of financial risk he takes, what degree of responsibility for investment and management he has, and whether and how far he has an opportunity of profiting from sound management in the performance of his task.
Another finding of fact was that each interviewing arrangement was a separate engagement, each of which was of very short duration. Nevertheless, the court held that on each occasion there was a separate contract of service. This provides support for the view that a short-term casual engagement can be a contract of service.
Cooke J commented on the absence of sick pay and holidays as follows: If a man engages himself as an extra kitchen hand at a hotel for a week in the holiday season, there will be no provision for sick pay and holidays, but the contract will almost certainly be a contract of service.
Woodland wanted a hawthorn tree cut down. The tree was 25 feet high and stood 28 feet from the road, and running across the garden diagonally was a pair of telephone wires. Woodland engaged Terence Coombe to cut the tree down and he did so negligently. The tree hit the telephone wires which landed in the roadway. The claimant intended to coil up the wires, but on seeing the third defendant, Mr. Waugh, approaching too fast in his Morris Cooper, he flung himself to the ground to avoid being hit by the wires which would have whipped around being struck by the car.
The claimant had a tumour on his spine and the falling to the ground dislodged this and caused damage to the claimant. It was held on allowing the appeal by Mr. Woodland that he was not liable for the negligence of his independent contractor and the driver was also held partly responsible as he was driving too fast. Conclusion Vicarious Liability deals with cases where one person is liable for the acts of others. So a master is liable for the acts of his servant if the act is done in the course of employment.
But 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 except in certain exceptional cases as dealt above. So the servant and independent contractor are under contract of service and contract for service respectively. The traditional view to distinguish between the two was the control test exclusively. But in modern scenario this is not sufficient test as there is no single test.
The significant outcome can be achieved only by balancing different factors with the help of different tests like: Jones, Textbook on Torts,p Limpus v London General Omnibus Co. However as we all know, it is often not possible to create a contract that can cover all eventualities.
Certain articles could have been missed out or unforeseen new situations could arise in the course of the contract which could give rise to difficulty in managing the contract and the situation. In such situations, we may have to turn to common law for precedent court decisions to help come to a solution to the dispute.
In this connection, we would be highlighting here some of effects of these decisions and opinion of judges concerning the master and servant relationship. The Master and Servant Relationship In Law Master and servant are terms used to describe the legal relationship between an employer master and the employee servant for purposes of determining an employer's liability for acts of an employee, as well as the obligations of the employee to the master.
This relationship is further impacted by the enunciations and opinions of judges when they dispose with court cases concerning the employer and the employee over the centuries. And these decisions are used to guide court cases in the Commonwealth countries today. The principle of the law is that a person who acts through the actions of another is considered to have acted himself. This means that an employer is responsible for the wrongful actions done by his employee in the course of doing his work as if he himself has done it.
This liability includes negligent acts, theft, fraud, mistake and so on. By understanding this, we therefore know the importance for the employer to have total authority over the employee and to exercise control over him in the matter of work performance.
For this reason, the courts have always recognized the right of the employer to dismiss an employee if the employee does not fulfil his obligation to obey the employer or to perform his work properly in the best interest of the employer. The superior of an employee is the representative of the employer to the employee.
The employee must behave to the superior in the same manner as he is expected to behave to the employer himself. Any improper behaviour to the superior is the same as showing the same improper behaviour to the employer. A servant is required to behave honestly and without deceit towards the master and must never act in against interests of the master.
He is expected to be truthful and straightforward, and not act to cover up his mistakes and errors at work. The servant must at all times maintain confidentiality concerning matters of the employer and his business which he gains in the course of employment, which is not known to the public, and shall not in any way by his personal conduct at work bring any disrepute to the master.