An independent contractor is a person appointed by the employer to turn out a piece of job. He is different from a servant in as much as a servant is a person who works under the control and supervision of the master. For the acts of independent contractor, the general rule is that the employer is not liable. There are a number of exceptions. These are the non-delegable duties.
According to Winfield the question is always whether the damage is caused due to the employer’s breach of duty. The duties of the employer are divided into delegable and non-delegable. This means, the non-delegable functions must be performed by the employer himself. But if he delegates such a function to an independent contractor, the employer himself becomes liable.
There are a number of non-delegable duties:
i) Delegation may be a breach of duty itself and the employer may be negligent in giving instructions or information to the independent contractor. In a case, a gas company had no authority to interfere on the Highways. Independent contractor’s servant negligently left a heap of stone over which the plaintiff fell and was injured. Held, the employer was liable. (Ellis V. S. G. Co.)
ii) Obligations of the employer are to provide, a competent staff of men, adequate material and a proper system of effective supervisor If he does not follow these, the employer becomes liable.
iii) Operations on or adjoining the highways: In Tarry V. Ashton there was a over-hanging lamp of D on the foot way. D appointed independent contractor to repair who did it negligently. The lamp fell on P a passer-by. It was held that the employer D was liable.
In Grey V. Pullon the defendant D had statutory authority to make a drain from his house to a sewer across the road. He appointed independent contractor to cut trenches, who did it but negligently filled it up. The plaintiff P a passenger, was injured. D was held liable.
iv) Case of strict liability: The rule in Ryland V. Fletcher is applicable in respect of bringing and storing of items which cause injury when they escape. In such case the employer is liable.
v) Cases of statutory authority: The recent enactments have fixed the liability of the employer under the Factories Act, Workmen’s Compensation Act etc.
In Padbury’s case, D employed a subcontractor to put casements to the windows. In so putting, an iron tool which had been kept by the servant on the window sill, fell and injured P on the street. P sued D. The court held that D was not liable as the tool was not placed in the ordinary course of doing work. There was only a collateral negligence of D.
vi) When the employer personally interferes and gives directions to the independent contractor the employer becomes personally liable.