Answer:- In modern times, To determine the relationship of master and servant, the traditional test is not considered conclusive and it cannot be applied in every case. ‘Control’ is an essential element but it is not conclusive test. Along with control existence of other factors are also essential, such as, who has the power to appoint and who has the power to dismiss him. The control test was good for unskilled servants where there was development of technology, for example, agricultural labourers, or a house holder and domestic servants, etc. The control test cannot be applied to skilled and professionals workers and, therefore, in recent times it is not treated as a conclusive test. In modern times the “hire and fire” test, that is, who has the power to appoint and dismiss the servants is regarded an important test.
In Montreal v. Montreal Locomotive Works Ltd., Lord Wright said that in the more complex conditions of modern industry, more complicated test are applied. According to him, in applying the complex test the following things have to be considered :
(1) control;
(2) ownership of tools;
(3) chance of profit;
(4) risk of loss.
In Silver Jubli Tailoring House v. Chief Inspector of Shops and Establishments, the Supreme Court of India, after reviewing all the important English cases on the point, held that in recent years the ‘control test’ as traditionally formulated has not been an exclusive tort. The Court
observed:
“In recent years the control test as traditionally formulated has not been treated as an exclusive test. It is exceedingly doubtful today whether the search for a formula in the nature of a single test to test a ‘contract of service from a ‘contract for service’ will serve any useful purpose. The most that profitable can be done is to examine all the factors that have been referred to in the cases on the topic. Clearly, not all these factors could be relevant in all these or have the same weight in all cases. It is equally clear that no magic formula can be propounded which factors, would in any case be treated as determining ones. The plain fact is that in a large number of cases, the Court can only perform a balancing operation weighing up the factors which point in one direction and declaring them against those pointing in the opposite direction.”
The Court also pointed out that control is clearly an important factor and in many cases it may still be the decisive factor but it is wrong to say that in every case it is a decisive factor. It was observed that the degree of control and supervision would be different in different types of business and that if an ultimate authority over the worker in the performance of his work resided in the employer so that he was subject to the later’s direction, that would be sufficient.
Also Read Question:- Discuss the conditions which must be present before liability in Tort may arise.
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In Bharat Sangh v. Abdul Rahman, the question before the Court was whether the Union of India was liable for the negligence of the members of Border Security Force (BSF). In this case the accident occurred due to the negligence of the driver of the BSF’s truck. On behalf of the State it was contended that since the Union of India has no control on the manner in which the Border Security Force personnels exercises the functions, therefore they are not its servants and the State is not liable for their negligence. The Court rejected this argument and held that there is master and servant relationship between the Border Security Force and Union of India. It is true that the Border Security Force Act regulates the functions of the force but because of this it does not mean than they cease to be the servants of the State. The preamble of the Act declares that the Border Security Force is the force of the Union of India. The control and supervision of the BSF is vested in the Union of India. The Government of India has the power to appoint and dismiss them. Such persons are also included under the definition of servant’ who does not work under the control of the master. For example, such cases where occupational skill is required or where the servant performs certain works of a technical nature. In such cases the ‘control test’ does not apply.
Hospital staff
Also Read Injuria sine Damnum
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The courts have often been concerned to decide which members of the hospital staff arc servants of the hospital authorities. After much uncertainty, it has now been settled, that radiographers, house-surgeons and assistant it has now been settled, that radiographers, house-surgons and assistant medical officers in the full time service are servants. Part time anesthetists have also been held to be servants on the ground that they are members of organisation of the hospital.
On the basis of control test the hospital authorities were not held liable for the negligence of its staff in matters where professional skill was required.
But this position has now changed and the legal position is that the control test is not regarded a decisive factor in all cases particularly cases involving professional skill. A hospital authority is now held to be liable for negligence of its professional staff. Such as radiographers, resident house surgeons, assistant medical officers, and nurses and part-time anesthetists and the distinction made earlier between professional duties and ministerial or administrative duties have now been disapproved.
In Cassidy v Ministry of Health, the hospital authorities were held liable for the negligence of the house surgeon and other staff. Explaining the position of law regarding the liability of hospital authorities, Denning, L.J., observed:
It is no answer for them (the hospital authorities) to say that their staff are professional men and women who do not tolerate any interference by their lay master in the way they do their work. The doctor who treats a patient in the Wallon Hospital can say equally the ship’s captain who sails ship from Liverpool, and with the crane driver who works his crane in the docks. “I take no orders from any body” that “sturdy answer” as Lord Simonds described it, only means in each case that he is skilled man who knows his work and will carry it out in his own way, but it does not mean that the authorities who employ him are not liable for his negligence.”
In A.V. Janaki Amma v. Union of India, the wife of an Army Personnel died due to negligence of respondent doctors in military hospital. The respondents and their associates claimed themselves to be specialist officers. It was held by the Court that the Army doctors were guilty of negligence. The duty to care required by them even if they are army officers, is pretty high and is like any other doctor of his standard elsewhere. The Army doctors were liable for negligence. The Union Government and higher authorities in Armed Medical Services cannot escape from tortious liability.