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BEFORE THE DISTRICT COURT OF VISHAKAPATNAM

……………………………………………………………………………………….

Clean Water Initiative…………………………………………………...(Appellant)

v.

Raymond Tusk………………………………………………………...(Respondent)

…………………………………………………………………………………….....

THE 5th NOVICE MOOT COURT COMPETITION, 2017

Memorial for the Appellants

(Counsel on behalf of the Appellants)

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TABLE OF CONTENTS

INDEX OF AUTHORITIES……………………………………………..03

List of abbreviation ……………………………………………………….04

Books………………………………………………………………………04

Other authorities……………………………………………………………04

Table of cases…………………………………………………………........05

STATEMENT OF JURISDICTION……………………………………... 06

STATEMENT OF FACTS......................................................................... 07

STATEMENT OF ISSUES......................................................................... 08

SUMMARY OF ARGUMENT...................................................................09

ARGUEMENTS ADVANCED…………………………………………..10

PRAYER......................................................................................................15

LIST OF ABBREVATIONS
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 AIR ……………………… All India Report

 ALL ER ………………………. All England Law Reports
 CWI ……………………… Clean Water Initiative
 Edn. ……………………… Edition
 HC ……………………… High Court
 Ltd. ……………………… Limited
 No. ……………………... Number
 Ors. ……………………... Others
 Pvt. ……………………... Private
 US ……………………… United States
 UK ……………………… United Kingdom
 v. ……………………… Versus
 & ……………………… And

LIST OF AUTHORITIES

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BOOKS

1. Ratanlal & Dheerajlal, ‘The Law of Torts’, (Lexis Nexis Publications, New
Delhi, Edn. 26, 2016).
2. Dr. Avtar Singh & Dr. Harpreet Singh, ‘Introduction to the Law of Torts’
and Consumer Protection, (Lexis Nexis Publications, Butterworths Wadha,
Nagpur, Edn, 02, 2009).
3. Winfield & Jolowicz, ‘Tort’, (Thomson Sweet & Maxwell, London, Edn,
17, 2006).
4. P.S.Atchuthen Pillai, ‘Law of Tort’, (Eastern Book Company, Lucknow,
Edn. 09, 2004).
5. Kirsty Horsey & Erika Rackley, ‘Tort Law’, (Oxford University Press, UK,
Edn. 04, 2015).
6. Dr.R.K.Bangia, ‘Law of Torts Including Compensation Under The Motor
Vehicles Act And Consumer Protection Laws’, (Allahabad Law Agency,
Faridabad, Haryana, Edn. 24, 2017).

WEBSITES

 HeinOnline.com
 Manupatra.co.in
 WestLawIndia.com

STATUTES

 The Andhra Pradesh Civil Courts Act, 1972

 The Factories Act, 1948

CASE LAWS

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1. Woodward v. Mayor of Hastings [1945] 1 K.B. 174 (C.A.)

2. Morgan v Incorporated Central Council, [1936] 1 ALL ER 404
3. Morgan v Incorporated Central Council 1936] 1 ALL ER 404
4. Pickard v. Smith (1861) 10 CB NS 470
5. Stevenson Jordan and Harrison v. MacDonald [1952] 1 TLR 101
6. B. Govindarajulu v. M. L. A. Govindaraja Mudaliar
7. Lakshmi Narayan v. Hyderabad (1955)SCR395
8. Donoghue v. Stevens [1932] A.C. 562, [1932] UKHL 100,
9. Phillips v. Britannia, etc., Co. [1.923] 1 K.B. 539,
10. Stennett v. Hancock [1939] 2 All E.R. 578;
11. Herschtal v. Stewart &t Ardern [1940] 1 K.B. 155;
12. cf. Haseldine v. Daw [1941] 2 K.B. 343 (C.A.).
13. Century Insurance Co. Ltd. v. Northern Ireland Road Transport Board, (1942) 1 All E.R.
491 : (1942) A.C. 509.

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STATEMENT OF JURISDICTION

Appellant have humbly submitted to the honorable district court of Vishakapatnam ,under
section 17 of Andhra Pradesh civil courts act, 1972 and section 96 of civil procedure court.

STATEMENT OF FACTS

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1.The Clean Water Initiative (CWI) is a large US based Multi-National Company which
production of Packaged Water Bottles, Water Cans and Containers and a site is situated in
Visakhapatnam. Due to high rise in inflation and fluctuation in the currency Experienced
professionals were asked to leave, making way for junior and inexperienced professionals who
were given lesser salary as compared to those who were asked to leave the company.

II. The Company offered certain retired ex-employees an opportunity to join the office on a part-
time basis to help in training the new staff. The staff were made to sign a fixed-term agreement
under which they were designated as ‘Part-Time Labour only Contractors’ and were paid a lump
sum based on the productive hours they put in and a Loyalty Bonus of INR 1000. 20 ex-
employees, including Frank Underwood and Peter Russo agreed work on these terms.

III. Zoe Barnes, CWI’s Visakhapatnam On-Site Manager, checked the work records of all the
ex-employees, asked Frank and Peter to replace the current water de-silting machine with the
new improvised one and Zoe Barnes advised the workers to take the help of the small crane
rather than using the larger one as, the small crane was recently repaired and was under a
warranty period, whereas the larger one was not given proper servicing and maintenance since
the last 5 years. The small crane will have less probability of breaking down as compared to the
larger one

IV. Once Zoe Barnes departs, Frank Underwood, who has 30 years of experience, insists on
using the larger crane. In the process of moving the new de-silting machine to the proposed area,
the crane, due to the negligence of the crane driver, hits the standby diesel generator, causing an
oil spill. At the same time, Peter Russo had lit a cigarette right outside the place fixed for setting
up the de-silting machine. Hearing this, he rushed inside, throwing the half lit cigarette on the
ground. Within 30 minutes, the oil spread to the outside of the building, coming in contact with
the half-burnt cigarette, resulting in a huge fire accident.

Everyone was escorted out safely as per the Fire Drill training provided to the staff. But one of
the office workers, Raymond Tusk, was severely injured by the flying debris.

V. At the trail court, the court passed decree in favor of the plaintiff i.e., raymond tusk .

STATEMENT OF ISSUES

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1. Are Frank Underwood and Peter Russo were the employees of CWI?
2. Can CWI be held liable for the acts which are done by the Frank Underwood and Peter
Russo?
3. Whether the act of peter Russo comes under the course of employment or not?

SUMMARY OF ARGUMENTS

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Are Frank Underwood and Peter Russo were the employees of CWI?
No, as mention in the facts of the preposition frank and peter were not the employees of the CWI
they are the independent contractors. They were not the employees of the company since the
employees are an agent who is subject to the control and supervision of his employer regarding
the manner in the work is to be done. An independent contractor is not subject any such control.

Can CWI be held liable for the acts which are done by the Frank Underwood and Peter
Russo?

No, as a general rule, the master is liable for the torts committed by his servant, but an employer
is not liable for the torts committed by an independent contract employed by him. An
independent contractor is one who undertakes to do a certain work or produce a certain result for
another but in the actual execution is not under the other’s control.

Whether the act of peter Russo comes under the course of employment or not?
The Indian Revenue Service (IRS) in SS-8 form distinguishes between an independent contractor
and an employee for the purpose of payroll taxes and withholding taxes. Basically, an
independent contractor is an independent business person who runs his or her own business but
who does work for another business. An employee is hired by a company to perform specific
work at the direction of the employer. That independent contractor according to the IRS which is
given in the SS-8 form that independent contractor is not an employee under employer or
specific company or both employee and independent contractor are not same.

ARGUEMENTS ADVANCED

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1. Are Frank Underwood and Peter Russo were the employees of CWI?

No, as mention in the facts of the preposition frank and peter were not the employees of the
CWI they are the independent contractors. They were not the employees of the company since
the employees are an agent who is subject to the control and supervision of his employer
regarding the manner in the work is to be done. An independent contractor is not subject any
such control.1

An independent contractor may be defined for the present purpose as any person, other than a
servant, who is employed to do work. The definition includes such diverse persons as a builder, a
road construction engineer, an electrician, a dentist or doctor attending a private patient, a shoe-
repairer, a launderer, a dressmaker, a barber, an airline company, a taxidriver, a copy-typist, an
advisory expert,2 and a charwoman if not a servant.3

An employee is a person employed by another to do work under the direction and control of
his master. As a general rule, employer is liable for the tort of his employee but he is not liable
for the tort of independent contractor.

The main difference between the employee and the independent contractor are a servant and
an independent contractor are both employed to do some work of the employer but there is a
huge difference in the legal relationship which the employer has with them. A servant is engaged
under a contract of service whereas an independent contractor is engaged under a contract for
services. An employee is an agent who is subjected to control and supervision of his employer
regarding the manner in which the work is to be done. An independent contractor is not
subjected to any such control. He undertakes to do certain work and regarding the manner in
which the work is to be done.

1
Pollock on Torts, 15th ed., p. 62. Adopted be McKardie, J. in Performing Rights Society Ltd. v. Mitchell, etc. Ltd.,
(1924) 1 K.B. 762, 767-768. Also see Century Insurance Co. Ltd. v. Northern Ireland Road Transport Board, (1942)
1 All E.R. 491 : (1942) A.C. 509.
2
The Pass of Balloter [1942] P. 112.
3
Woodward v. Mayor of Hastings [1945] 1 K.B. 174 (C.A.)

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He is his own employer and exercises his own discretion. An independent contractor is one
“who undertakes to produce a given result, but so that in the actual execution of the work,
he is not under the order or the control of the person for whom he does it, and may use his
own discretion in things not specified beforehand”

Since they were not the employees of the company the company should not be held liable for
the act which is done by the independent contractors.4

2. Can CWI be held liable for the acts which are done by the Frank Underwood and
Peter Russo?

No, as a general rule, the master is liable for the torts committed by his servant, but an
employer is not liable for the torts committed by an independent contract employed by him. An
independent contractor is one who undertakes to do a certain work or produce a certain result for
another but in the actual execution is not under the other’s control.5

In Morgan v Incorporated Central Council6 it was held that defendant was not liable when
plaintiff got injured in his premises by falling down from an open lift because that work was
under control of the independent contractor & it was his duty to keep safety.

The way in which Lord Blackburn's rule of non delegable duty begs the question is well
illustrated by Pickard v. Smith7 (1861).' The defendant occupied a refreshment room and coal
cellar on a railway station, and employed a coal merchant to discharge coal into the cellar. While
the trap door was raised, a passenger by the railway fell into the cellar. It was held that the
defendant was liable.

4
Morgan v Incorporated Central Council, [1936] 1 ALL ER 404
5
Lakshmi Narayan v. Hyderabad (1955)SCR395
6
[1936] 1 ALL ER 404
7
(1861) 10 CB NS 470

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The liability of the employer for the wrongs committed by his servant is more onerous than
his liability in respect of wrongs committed by an independent contractor in Stevenson Jordan
and Harrison v. MacDonald8 and Evens referred to the distinction between a contract of service
and a contract for services. It is almost impossible to give a precise definition of the distinction. ”

It was held that for this act of negligence on the part of the independent contractors for the
negligent act of independent contractors, the defendants could not be made liable. B.
Govindarajulu v. M. L. A. Govindaraja Mudaliar9 In this case, after a motor lorry was entrusted
by its owner for repairs, while an employee of the repair workshop drove it, there was an
accident.
It was held by the Madras High Court that for this accident, the owner of the lorry was not
liable vicariously, because the owner of the workshop was an independent contractor and not the
servant of the lorry owner.

Similarly, the duty under Donoghue v. Stevenson10 may be delegated.11 “The owner of a
motor-vehicle who has it repaired is not vicariously liable if, owing to bad repair, a third person
is injured.12" These illustrations are enough to show that it is never a reason for a decision to
assert, with Lord Blackburn, that a person cannot escape from the responsibility of seeing a duty
performed by delegating it to a contractor.
3. Whether the act of peter Russo comes under the course of employment or not?

8
[1952] 1 TLR 101
9
AIR 1966 Mad 332
10
[1932] A.C. 562, [1932] UKHL 100,
11
Of course, the language of delegable and nondelegable duties is merely one way of referring to duties in respect of
which there is not or is liability for an independent contractor engaged to perform them. Strictly speaking, no duty in
tort is delegable; the point about the duty under Donoghue v. Stevenson is not that the duty can be delegated but that
its performance can be delegated in such a way that the person under the duty is not responsible for a default in
performance. In short, he performs his duty by delegating it to an apparently proper contractor.
12
Phillips v. Britannia, etc., Co. [1.923] 1 K.B. 539, affd. [1923] 2 K.B. 832 (C.A.); Malfroot v. Noxal (1935) 51
T.L.R. 551; Stennett v. Hancock [1939] 2 All E.R. 578; Herschtal v. Stewart &t Ardern [1940] 1 K.B. 155; cf.
Haseldine v. Daw [1941] 2 K.B. 343 (C.A.).

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The Indian Revenue Service (IRS) in SS-8 form13 distinguishes between an independent
contractor and an employee for the purpose of payroll taxes and withholding taxes. Basically, an
independent contractor is an independent business person who runs his or her own business but
who does work for another business. An employee is hired by a company to perform specific
work at the direction of the employer1415.

It also distingue the how employee and independent contractor is distinguished through their
work status

To help distinguish between employees and independent contractors, the IRS has set up three
general criteria1617:

Behavioral Control:- If an employer trains and directs work, including hours of work, what tools
or equipment to be used, specific tasks to be performed and how the work is to be done, the
worker is likely an employee. If the worker can set his or her own hours and works with little or
no direction or training, he or she is probably an independent contractor.

Financial Control: - This factor includes how the worker is paid, whether the worker may work
for others at the same time, and whether the worker can incur a profit or loss. A worker who is
paid a salary is restricted from working for others, and who does not participate in company
profits or losses, is probably an employee.

Type of Relationship: - The presence of a specific contract may indicate an independent

contractor, but this factor alone is not controlling. If the worker is entitled to benefits, this would
indicate an employment relationship. Another factor would be the type of work the person does;
if it is directly related to the company's core work, he or she is probably an employee. For

13
Firms and workers file this form to request a determination of the status of a worker for purposes of federal
employment taxes and income tax withholding.
14
https://www.irs.gov/pub/irs-pdf/fss8.pdf
15
https://www.thebalance.com/independent-contractor-or-employee-what-s-the-difference-397912, by Jean Murray
16
http://www.oregon.gov/ODA/shared/Documents/Publications/NaturalResources/20FactorTestforIndependentContr
actors.pdf
17
http://www.hpccpa.com

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example, a maintenance worker would not be doing 'company' work if he or she were working
for a bank.

So, here appellant’s contention is that independent contractor according to the IRS which is
given in the SS-8 form that independent contractor is not an employee under employer or
specific company or both employee and independent contractor are not same. So, in the given
facts Peter Russo is not an employee because he is an independent contractor. Therefore, his act
does not come under in the course of employment.

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PRAYER
In light of the facts stated, arguments advanced, list of authorities cited the appellant humbly
prayed to the Honorable District Court of Visakhapatnam that the company no were held liable
for vicarious liability because employee not directly assisted by the company he was assisted by
the independent contractor. Here the humble request to the honorable court to consider this
(independent contractor liability) and make liable for the compensation to which the damages
done by the independent contractor.
May pass order, decree or judgment in the light of equity, justice and in good conscience and for
this act of kindness of your lordships, the appellant shall be ever grateful.

ALL OF WHICH IS HUMBLY PRAYED.

COUNSEL FOR APPELLANTS.

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