Thus, a master is vicariously liable for the tort committed by his servant only if the same is committed in the course of employment.
The test for relationship of master and servant is that of control, which can be ascertained from the fact that whether a person is employed under a “contact of service” as distinguished from “contract for service”.
I under the “contract of service” a master have the control over the servant by ordering or requiring him, what is to be done and how it shall be done. If a master can control a man by ordering him “what is to be done and how it has to be done” then it is said that the man is a servant, otherwise he is not.
So far as the nature of work is concerned the test is good even today but the second test regarding the manner, in which work is to be done” is no longer viable in respect of professional men like doctors, surgeons or persons having particular skill and experience like the master of a ship, or the captain of an aircraft, because the master cannot order them as to how the work is to be done.
It has, therefore, now been recognised that the absence of such control “how it shall be done” is not conclusive against the existence of a “contract of service”.