Master and Servant Relationship



Generally in law punishment is given to the person who does the act but in the case of vicarious liability the liability goes to a person because of the act done by another person. Vicarious liability arises only with a certain type of relationships.1) Principal and agent 2)Partners in Partnership firm 3) Master and Servant

In this paper, we are only going to discuss Master and Servant relationship

Master- Who hires another subject to work under his order with certain terms and conditions. Servant- Who works for another individual with or without salary under his direction and guidelines.

Therefore, when the task performed by the servant is done under the control and direction of master with his consent and knowledge then it gives rise to Master and Servant relationship.

Note- Master always give directions to the Servant that how work should be done.

There’s a difference between Servant, Agent and Independent Contractor.

Servant v/s Agent – Servant is completely different from Agent because Servent has no right or authority to act in his or her own in the place of the employer.

Servant v/s Independent Contractor – Independent Contractor individually enters into an

agreement to perform a certain task but by his own methods and is not controlled by whom the whom he was hired.

Note – Out of an express contract Master and Servant relationship arises.

Master and Servant

The wrongful act of the servant is deemed to be an act done by his master but it is essential that act must be done in the course of employment.

Legal Maxims which are related to this

  1. Respondent Superior – Let the principle be liable. It puts master in the same place as if he had done the act himself1.
  2. “Qui Facit Per Alium Fasit Perse”- If he does an act through another is deemed in law to do it himself

The plaintiff has a choice to bring an action against either one or both Master and Servant.

There are 2 essential things required for Master liability

  1. Servant committed the tort
  2. The Servant committed the tort in the course of employment

A Servant, however, is different from an “independent contractor” who is asked to do certain work by another but is not under the direction and control. There are 3 things which identity a Master and Servant relationship.

  1. The Hire and Fire Test- The Master can hire and fire his Servant at his won will. Nothing stops the Master from doing so.
  2. The Direction and Control Test – The work of the Servant is directed and controlled by the Master. The Servant is bound to follow the direction. The important thing here is an independent contractor is not bound to follow our directions and are not under the control.
  3. The course of employment- This is not sufficient if the person for whose act another person is being held liable is a “Servant” of the latter. In order to proceed under the principle of vicarious liability, another ingredient needs to be made out – the act must be done “in the course of employment”. Determining what acts are in the “course of employment” has proved to be a tough task for the courts, but there are some rough-and-ready solutions.

Note- When an authorized act is done wrongly even then the master is liable.

The act has been directly authorised by the master or comes within a group of acts that the Master impliedly requires the Servant to perform. Authorised acts can be done by a Servant in one of two ways – Rightly or Wrongly. Both would fall within the course of employment.

Case Laws:

Salsbury v Woodland, (1969) 3 All ER 863.

Mr Woodland wanted a hawthorn tree cut down. The tree was 25 feet high and stood 28 feet from the road, and running across the garden diagonally was a pair of telephone wires. Mr Woodland engaged Terence Coombe to cut the tree down and he did so negligently. The tree hit the telephone wires which landed in the roadway. The claimant intended to coil up the wires, but on seeing the third defendant, Mr Waugh, approaching too fast in his Morris

Cooper, he flung himself to the ground to avoid being hit by the wires (which would have whipped around being struck by the car). The claimant had a tumour on his spine and the falling to the ground dislodged this and caused damage to the claimant. It was held on allowing the appeal by Mr. Woodland that he was not liable for the negligence of his independent contractor and the driver was also held partly responsible as he was driving too fast2.

The case of Cox v/s Ministry of Justice concerned a prisoner who, in the course of carrying out compulsory work in the prison kitchen, dropped a sack of rice onto the catering manager, resulting in a back injury. The issue to be decided was whether the Ministry of Justice (MoJ) was liable for the prisoner’s negligent actions. Whilst the county court found that the MoJ was not vicariously liable for the prisoner’s actions, because the relationship between the prisoner and the MoJ was not akin to the relationship between an employer and employee, the catering manager successfully appealed to the Court of Appeal. The MoJ then appealed to the Supreme Court, arguing that the relationship between the prison service and prisoners was fundamentally different from that of employer and employee3.

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