It is often the case in commercial operations that various persons and corporate enterprises have to hire persons or corporations to carry out specific tasks which require particular skills.
Such persons or corporations will typically be hired as independent contractors, as distinct from employees.
The distinction between an independent contractor and an employee is that the employer has no direct control over how the contractor’s work is to be done, whereas he does have a greater measure of control over how his employee carries out his duties.
However, this is not the only test used by courts to determine whether a person or entity was hired as an employee or as an independent contractor.
Matters, such as who is paymaster, who can dismiss, how long the service lasts, whose machinery is employed, are all relevant considerations.
Personal control
As a general rule, where the person doing the work is directly under the personal control or supervision of his employer, the inference is that he is employed as an employee and not as an independent contractor, although he may be specially retained as a person skilled in the particular duty or office for which he is engaged.
If the employer has employed an independent contractor to do work on his behalf, the general rule is that the employer is not responsible for any negligence of the contractor, in the course of the execution of the work, and in this regard, it is also the law that the employer of the contractor is not liable for negligence in the execution of the work, by the contractor’s employees.
This applies to torts (wrongs) generally and not only to negligent acts.
There are exceptions to this, however, and these should be carefully noted.
If, for example, there has been negligence in the selection of the contractor and the contractor selected was incompetent to carry out the assigned tasks, then the person or entity responsible for the selection of that contractor and the contractor’s employment may be negligent and, therefore, may be held liable by the court.
It is also a general principle of the law that, where a person is carrying out operations on a highway which may cause danger to persons using it, he may be liable for damage resulting from the negligence of an independent contractor in carrying out those operations.
Furthermore, a person who brings and keeps on his land something which is likely to do damage if it escapes does so at his peril and, consequently, he cannot excuse himself on the ground that he had employed a competent contractor to place and confine the thing in the position from which it escaped.
Therefore, an occupier of land is liable for the escape of fire, which is due to the negligence of his independent contractor.
Generally, therefore, where a person employs a contractor to carry out work which is inherently of a particularly dangerous nature if that contractor is negligent in the performance of his responsibilities, then the party that hired the contractor to carry out that particular task can also be held liable.
It should be noted, though, that it is always a matter for the court’s discretion, to decide whether or not a particular task is or is not, one which is of an inherently hazardous nature to the extreme.
Set out above, is only a brief synopsis of some exceptions to the general principle that the employer of an independent contractor cannot be held liable for the negligence of that contractor in carrying out work that he is hired to perform as an independent contractor.
Accordingly, great care ought always to be taken whenever an independent contractor is being hired.
As well, the terms of engagement and scope of liability should be carefully spelt out in a written contract for the benefit of both the employer and the independent contractor.
Kirk B. Anderson is an attorney with law firm Dunncox, Kingston.
Cases cited
- Clerk and Lindsell on Torts, 18th ed, at paragraph 5-50
- Gray v Pullen – (1864) 34 L.J.Q.B. 265
- Clerk v Lindsell on Torts, 18th ed, at paragraph 5-54
- Perry v Wimbledon Urban District Council – (1899) 2 Q.B. 72
- Rylands v Fletcher – (1868) L.R. 3 H.L. 330
- Black v Christchurch Finance Co – (1894) A.C. 48