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One who employs a contractor to execute a work incurs no liability (except in the cases mentioned below) for the acts of the contractor, or sub-contractor, or his servants.
This principle has been at length firmly established. But it was not at once adopted. There was for a long time a disposition to extend the liability of persons who set on foot or ordered the execution of works to the negligent or other tortious acts of contractors. It was not until after much discussion that the doctrine which is now recognised was adopted. Thus it was supposed that owners of fixed property, as distinguished from movable chattels, were liable for acts done thereon, even though not done by their servants. It was thought to be highly convenient that the owner of a house or other real property should be responsible for all injuries done in the course of work on his property or for his benefit (P). Persons who employed contractors were in some of the early cases made responsible for the acts of the latter ; bailors answered for bailees. Now, however, it is well settled, subject to the exceptions hereafter stated, that an employer is not answerable for the conduct of a contractor, a sub-contractor, and their servants; and the only difficulty is in distinguishing in practice contractors from servants.
The defendants in Peachey v. Rowland (1), entered with two the change. As an instance of such (p) Bush v. Steinman (1799), 1 fictions, the following may be cited : B. & P. 404. (A. who had “A railroad corporation is to be re- house by the wayside, engaged B. to garded as constructively present in repair it. B. contracted with C., all acts performed by its agents and and C. with D. to furnish the servants within the range of the ordi- materials. The servant of D. placed nary employments." Wharton on a quantity of lime on the road, Negligence, s. 158. It is not every whereby plaintiff was injured. A. fraud of a servant or agent for which held answerable on the ground a master or principal will be answer- according to Eyre, C.J., stated above. able. See Giles v. Norway ; Burnes This case was questioned in GayV. Pennell (1849), 2 H. of L. 497 ; ford v. Nicholls (1854), 9 Ex. 702, Coleman v. Riches (1855), 16 C. B. and disapproved of in many other 104; 1 Jur. N. S. 376 ; 24 L. J. C. P. 125. Almost all the authorities (9) (1853), 13 C. B. 182 ; 22 L. J. are collected in the argument in C. P. 81; 17 Jur. 764. No notice is Houldsworth v. City of Glasgow Bank taken in the judgment of the fact (1880), L, R. 5 Ap. 317.
that one of the defendants saw the
contractors into a contract, by which they agreed to construct a drain in the road in connexion with the houses of the defendants. The contractors employed A. to excavate and fill in the work. A. did this negligently; and the plaintiff was thereby injured. Yet the defendants were not liable; A. not being the servant of the defendants, and the contractors having been employed by them to do a lawful work. So, too, in the leading case of Reedie v. The London and North-Western Railway Company (r). The defendants engaged a contractor to construct a portion of their railway, but reserved the right to the company to dismiss any incompetent workmen. Through the negligence of the workmen of the contractor, a stone fell upon the plaintiff's husband, who was passing under a bridge, and killed him. The company were exonerated from liability.
In another case, Rapson v. Cubitt (8), the defendant, a builder, was employed by the committee of a club to do certain work, including the putting up of gas-fittings at a club-house. He made a sub
improper manner in which the work was being done.
(r) (1849), 4 Ex. 244. See also Knight v. Fox (1850), 5 Ex. 721. (A. contracted with a railway company to complete a portion of their line. B. contracted with A. to erect a bridge. B. had in his service C., who acted as general servant of B., and as his surveyor. B. entered into & contract with C., by which the latter was to supply scaffolding for the bridge, the defendant, B., to provide the requisite materials and lights. One of the poles of the scaffolding improperly projected on the footway. In consequence of this, and owing to the want of sufficient light, D. was injured. No action by D. lay against B. The circumstance that C. was the general servant of B. did not the less make him a contractor in regard to the scaffold
(8) (1842), 9 M. & W. 710. Milligan v. Wedye (1840), 12 A. & E. 737. (The defendant, a butcher, employed à licensed drover to drive
a bullock from Smithfield. The
contract with a gasfitter to execute this part of the work. An explosion of gas took place by reason of the carelessness of the latter, and the plaintiff was injured. Yet no action lay against the defendant.
A person who employs a contractor to do work which is necessarily unlawful is liable for the acts of the contractor.
In such a case the contractor's acts are really his employer's. The latter has done just what he was ordered to do, and that which was ordered was itself wrong. A gas company, for example, entered into a contract with W., to open trenches and lay their mains in the streets of Sheffield. W. employed men to do the work. They left a heap of work and stones in such a position that the plaintiff fell over them and was injured. The company were responsible inasmuch as they had no right to make excavations in the streets (x). Distinguishing the case from Peachey v. Rouland (y), Overton v. Freeman (-), and other cases in which employers of contractors were exonerated, Lord Campbell observed, “In these cases nothing was ordered except what the person giving the order had a right to order, and the contract was to do what was legal, and the employer was held properly not liable for what the contractor did negligently, the relation of master and servant not existing. But here the defendants employ a contractor to do that which was unlawful, and an act done in consequence of such employment is the cause of the injury for which the action is brought. It is simply the case of persons employing another to do an unlawful act, and a damage to the plaintiff from the doing of such unlawful act.” Sometimes the distinction is put in
(x) Ellis v. Sheffield Gas Co. (1853), 23 L. J. N. S. Q. B. 42.
(y) (1853), 13 C. B. 182 ; 22 L.
J. C. P. 81 ; 17 Jur. 764.
(7) See note (8).
It is said that, when the act which was ordered caused the injury, the person who gave the order is liable. When the cause of action is something collateral, done in the course of the work, the responsibility rests with the contractor. If the contractor have done in an improper manner that which might well have been done in a proper manner, there is no redress against the person who set the contractor in motion. The owner of a house employed a builder to take down and reconstruct the front. The contractor removed a brest-summer inserted in a party-wall, without taking proper care to shore up the adjoining house. The employer was not bound to make good the damages. He had a right to suppose that the builder would take ordinary precautions (a).
A person who employs a contractor to execute work is liable for the nonperformance of duties which the former is bound at Common Law or by Statute to fulfil.
This is scarcely distinguishable from the last class of cases. At Common Law there is a duty incumbent upon persons not to have their house or premises in such a state as to be a nuisance or to be dangerous to passers by, and they will not be heard to say that they entrusted the performance of their duty to an independent contractor, and that they are not answerable for what has befallen travellers or passers by. This is illustrated by Pickard v. Smith (b). A passenger by a railway train fell into the coal-cellar of a refreshment room at a railway station; the servants of a coal merchant had been putting coals into the cellar and had negligently left the trap-door open and unguarded. The lessee and occupant of the refreshment room was held liable to the
(a) Butler v. Hunter (1862), 7 H. Co. (1872), 9 S. L. R. 254. Pick& N. 826 ; 31 L. J. Ex. 214 ; Hole v. ard v. Smith is sometimes quoted as Sittingbourne Ry. Co., 2 E. & B. 767. if reaffirming the principle stated in
(6) (1861), 10 C. B. N. S. 470 ; Bush v. Steinman. It;is submitted 4 L. T. N. S. 470; and compare that the principle of the former in no
Dixon (1852), 14 D. way peculiarly refers to real property. 973, and Grant v. West Calder Oil
plaintiff on the ground that the employment of an independent contractor did not absolve him from the duty of taking reasonable precautions to prevent mischief from the opening of the trap-door. The duty was incumbent upon the lessee, and he was liable for its non-fulfilment. For similar reasons, one who is bound by statute to perform certain duties cannot shield himself from responsibility by employing a competent contractor. His duty is to do the particular thing which the Legislature ordered—not merely to do his best to perform it. A company was authorised by a private Act of Parliament to construct a bridge which opened, and it was bound by the Act not to detain vessels navigating the river longer than was required to allow carriages, &c., to cross. A vessel having been delayed for a longer period owing to a defect in the construction of the bridge, it was held to be no defence to an action against the company that it had employed a competent contractor (c).
A person who employs a contractor to do work which is lawful, but which is dangerous, and is likely in the natural course of things to cause injury, is liable, if injuries result therefrom.
This principle—which is really only an instance of the last—may be collected from Bower v. Peate (d), Tarry v.
(c) Hole v. Sittingbourne Ry. Co. (1861), 6 H. & N. 488 ; 30 L. J. Ex. 81. This is stated in some judg. ments to be in principle the same as Ellis v. Sheffield Gas Co., already mentioned, but in the latter the contractor was employed to do what must have been a nuisance. See also Gray v. Pullen (1864), 5 B. & E. 971 ; 32 L. J. Q. B. 169 ; 34 L. J, Q. B. 265. (Defendants being empowered under a Local Manage. ment Act to make a drain, employed a contractor, who negligently executed the work ; held liable.) Hyams v. Webster (1867), 36 L. J. Q. B. 166 ; Wood on Master and Servant, 626.
(d) (1876), L. R. 1 Q. B. D. 321 ; 45 L. J. Q. B. 446. The resemblance between this case and Butler v. Hunter-which does not seem to have been referred to in the argument-is close. The final ground upon which the Court put their decision in Bower v. Peate was, “ that a man who orders a work to be executed, from which, in the natural course of things, injurious consequences to his neighbour must be expected to arise, unless means are adopted by which such consequences may be prevented, is bound to see to the doing of that which is necessary to prevent the mischief, and cannot