The School Van and the Unlicensed Driver
A private school in Islamabad contracts a transport company to ferry 22 children. The written contract says the company is an independent contractor and must provide licensed drivers and roadworthy vehicles. The school's admin officer tells the company which route to take and requires drivers to wear school uniforms. Driver D, whose licence expired 14 months ago, is driving at 70 km/h in a 40 km/h zone on a wet road; the van's tyres are bald. The van skids, hits a wall, and nine-year-old A suffers a fractured leg. A's father sues the school and the transport company. The school says it is not liable because the driver was an independent contractor. The transport company says A was contributorily negligent because he was not wearing a seatbelt and was standing. The evidence shows the van had no seatbelts and A was seated. A missed three months of school; medical expenses are PKR 600,000; future physiotherapy may cost PKR 200,000.
1. Is the school vicariously liable for Driver D's negligence, or is the transport company solely liable? Does the 'independent contractor' label settle the issue?
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Rule. Vicarious liability depends on control and the relationship, not on the label. An employer is liable for an employee's negligence in the course of employment. Generally, a principal is not vicariously liable for an independent contractor, but exceptions include negligence in selecting the contractor, a non-delegable duty, and control over the very act that caused harm.
Application. The contract calls the company an independent contractor, but the school's admin officer directed the route and required uniforms. Those facts show some control over the transport operation. More importantly, a school owes a non-delegable duty to children in its care to ensure safe transport; it cannot contract out of that duty by using a transport company. The company remains liable as D's employer for failing to check the licence and tyres.
Conclusion. The transport company is liable as employer. The school is also liable, either through its control or through its non-delegable duty; the label does not immunise it. Both may be jointly and severally liable.
2. The transport company alleges contributory negligence because A was standing and not wearing a seatbelt. How should the court assess a nine-year-old's conduct, and does the absence of seatbelts matter?
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Standard. A child is judged by the standard of a reasonable child of the same age, not an adult. A nine-year-old can be contributorily negligent for obvious conduct, but the court must consider capacity and the danger created by the driver.
Standing. If A was standing, that could be a foreseeable contribution, but the evidence says he was seated. The company bears the burden of proving the allegation.
Seatbelt. The van had no seatbelts. A cannot be contributorily negligent for failing to wear something that was not available. Even if seatbelts existed, the defence requires proof that the injury would have been avoided or reduced. Here the bald tyres and 70 km/h speed in a 40 zone are the dominant causes.
Conclusion. The seatbelt allegation fails. If standing is proved, the court may apportion a modest percentage, but on the evidence A was seated. The driver's excessive speed and defective vehicle remain the operative causes.
3. What heads of damages can A claim, and how should the court deal with the school's and company's liability if contributory negligence is found?
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Heads. (i) Special damages: PKR 600,000 medical expenses and proved future physiotherapy of PKR 200,000 if supported by evidence. (ii) General damages: pain, suffering and loss of amenity for the fractured leg, taking into account A's age and three months' missed school. (iii) Future loss of earning capacity if the fracture leaves a permanent disability; the court should not speculate without medical evidence.
Joint and several liability. If both defendants are liable, A may recover the full amount from either; the defendants can claim contribution between themselves. The school's non-delegable duty and the company's employment liability overlap.
Contributory negligence. If A is found contributorily negligent, the damages are reduced by his share. On the evidence, the seatbelt point fails; any reduction for standing should be small because the driver's speed and bald tyres were overwhelming.
Conclusion. Award proved special damages plus proportionate general damages, with joint and several liability; reduce only for proved contributory negligence.