Prior to discussing whether employers be vicariously liable for the actions of an independent contractor, it should first be understood that according to the case of Stevenson, Jordan and Harrison Ltd v MacDonald and Evans, an independent contractor is a person who, although working for the employer, is not controlled by the employer in the method or conduct relating to the performance of that work. He is one who works under a contract for services.
General Rule
As a general rule, an employer is not liable for the tort committed by his independent contractor. However, there are exceptions to this rule.
Exceptions
An employer may only be liable for the tort committed by his independent contractor if the employer is deemed to have committed a tort himself in following situations:
1) The employer authorised the commission of a tort
A person who instigates, procures or authorises another to commit a tort is deemed to have committed the tort himself. This can be seen in the case of Ellis v Sheffield Gas Consumers Co whereby it was held that while a person employing a contractor to do a lawful act is not responsible for the negligence or misconduct done by said contractor or his servants in executing said act, if the act itself is unlawful, the employer will be vicariously liable for the act of the contractor.
It should be noted that according to Freeman v Rosher,the principle applies even though the authorisation or ratification is made after the commission of the tort.
2) The tort does not require intentional or negligent conduct by the tortfeasor
Liability does not depend on either intentional or negligent conduct on the part of the employer, employee or independent contractor in the torts of nuisance, strict liability and breach of statutory duty.
The tort need not be authorised or instigated by the employer. As long as the requirements under each particular tort are fulfilled, the tort is established and liability may be shifted over to the employer.
For example, in the case of Matania v National Provincial Bank Ltd and The Elevenist Syndicate Ltd, it was held that although the defendant had employed independent contractors, they were liable for the damages caused by the nuisance since the work done (in its very nature) involved a risk of damage being done to the plaintiff.
3) Negligence of the employer
If the damage was caused by the incompetence of the independent contractors in carrying out their duty, it will also count as the employer’s personal negligence for failing to appoint a competent and skilled contractor. For example, in Robinson v Beaconsfield RDC, it was held that the defendant had the duty to dispose of the sewage. Since they did not include such a provision in the contractor’s contract, they were thus liable for the act of the contractor who disposed of the waste on the plaintiff’s property.
4) The duties were non-delegable
According to the case of Datuk Dewan Bandaraya v Ong Kok Peng & Anor, “non-delegable duties” includes activities that are inherently dangerous so that the employer cannot shift his duty of care to the independent contractors.
Examples of this type of activity would be work transporting or handling explosive materials, blasting land to construct roads or buildings, and dealing with wild animals. Due to the increased likelihood for injury and the specialized nature of these activities, an employer will be found liable for these types of acts even if carried out by an independent contractor.
