An independent contractor is one who undertakes to produce a given result without being in any way controlled as to the method by which he attains that result.
General Rule: The general rule as to independent contractor is that although an employer is responsible for the negligence and other wrongs of his servant, he is not responsible for that of an agent who is not a servant but an independent contractor. If an independent contractor
is employed to do a lawful act and in course of the work he or his servants commit some causal act of wrong or negligence, the employer is not answerable.
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In Salsbury Vs. Woodland the defendant employed a competent contractor to cut a tree in his front garden near the highway. Owing to the negligence of contractor the tree feel on telephone wires causing them to fall on highway which resulted in an accident in which the plaintiff was injured. It was held-that the defendant was not liable for the negligent
act of the contractor.
Exceptions: There are, however, certain exceptions to the rule that a person employing an independent contractor is notliable for his wrongful acts, which are as under:
(i) Where the employer retains his control over the contractor and personally interferes and makes himself a party to the act which occasions the damage. In such case the employer remains liable for the wrongful acts authorized by him.
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In Burgess vs. Gray, B, the owner and occupier of premises adjoining a highway, employed C to make a drain therefrom to communicate with the common sewer. While performing the work contracted, the workman employed by C placed gravel in the highway, in consequence of which A, in driving along the road, sustained injuries. Before the accident the dangerous position of the heap was pointed out to B, who promised to remove it. C had the sole management of the work and employed and paid the workman to remove the heap and charged from B in his bill. It was held that B was liable to A.
(ii) Where the thing contracted to be done is itself wrongful. In such case the employer is liable for the wrongful acts authorized by him and done by the contractor or his servant.
In Ellis vs. Sheffield Gas Consumers Co, a gas company employed an independent contractor for opening up the trenches on the streets of She field and laying gas pipe against the statutory provision. The contractor’s servants, in doing so, left a heap of stones on the road over which the plaintiff fell and injured. It was held that the defendant company was liable, as the interference with the streets of Sheffield was in itself a wrongful act.
(iii) Where under a legal or statutory duty,,it is incumbent on the employer to carry out a particular work efficiently, and if the contractor either omits or negligently performs such duty, the employer will remain liable.
In Hole vs. Sitinghourne & Sheerness Railways the defendant, a Railway company, was authorized by the Act of Parliament to construct a railway bridge across a navigable river. A contractor was employed by the company to construct a bridge. But before the work was completed the bridge from some defects, in its construction, could not be opened and the plaintiff’s vessel was prevented from navigating the river. It was held that the defendant was liable.
In Gray Vs. Pullen, A was empowered under an Act to make a drain from his premises to a sewer, by cutting a trench across a highway, and filling it up after the drain should be completed. For this purpose, a contractor was employed, by the negligence of the contractor it was filling up improperly, which cause damages to B. It was held-that A was responsible in an action by B for damages.
(iv) Work contracted to be done is likely to cause damages to another: Where the work contracted to be done is from its nature likely to cause damages to another’s property, though the work contracted to be done is lawful in itself the employer is responsible for such damages unless preventive means are adopted and contractor omits to adopt such means.
In Bower vs. Peato the defendant and the plaintiff were the neighbouring house owners. The plaintiff’s house was being supported by a wall of the defendant. The defendant employed an independent contractor to pull down his house and build a new one. Due to the negligence of an independant contractor, the plaintiff’s house was damaged. It was held that the defendant was liable for damage caused to the plaintiff’s property.
(v) Under the provisions of Section 6 of the Workmen’s Compensation Act, 1923, if the principal employs a contractor; such contractor’s servants are able to recover compensation from the principal without prejudice to the principal’s right to be indemnified by the contractor if the contractor is himself under the Act.
(vi) Implied warranty: Where there is an implied warranty by the employer, he is liable for the negligent act of an independent contractor.
In Fravies vs. Cocksell, the defendants got a racestand erected by a competent builders but it was constructed negligently. It was held that-the defendants were liable to the plaintiff who was injured by the fall of that negligently.
(vii) Incompetent Contractor: Where an incompetent contractor is employed, the employer cannot escape the liability arising from the negligence of such incompetent contractor.