Table of Contents

EMPLOYEE.......................................................................................................................................... 2DISTINCTION BETWEEN EMPLOYEE AND INDEPENDENT CONTRACTOR...................................................2

What Test?....................................................................................................................................................... 2What is Relevant?......................................................................................................................................... 2Borrowed.......................................................................................................................................................... 3

COURSE OF EMPLOYMENT............................................................................................................4WITHIN COURSE OF EMPLOYMENT..................................................................................................................4CLOSENESS OF WRONGFUL ACT TO EMPLOYMENT.......................................................................................5

Pre-Lister.......................................................................................................................................................... 5Lister v Hesley Hall....................................................................................................................................... 5

APPLICATION....................................................................................................................................................... 6VIOLENT EMPLOYEES.........................................................................................................................................6

EMPLOYER’S LIABILITY................................................................................................................. 6PROVISION OF SAFE TOOLS................................................................................................................................7PROVISION OF A SAFE WORKPLACE..................................................................................................................7PROVISION OF SAFE SYSTEM OF WORK............................................................................................................8PROVISION OF COMPETENT EMPLOYEES.........................................................................................................8INDEPENDENT CONTRACTORS..........................................................................................................................8

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Bartonshire Coal v McGuire. Early vicarious liability case. Strict. Person liable for the actions and harm caused to another.

Employer has deeper pockets. Atiyah, Viacrious Liability in the Law of Torts.

Encourages accident prevention An employer makes a profit, so he should bear the loss. Viasystems Ltd v

Thermal Transfer Ltd.) An employer can recoup the losses increasing prices of the

commodities/services they sell. Reedie v London and NW Ry)

Employee

Distinction between Employee and Independent Contractor

What Test?Explored in JGE v Portsmouth Roman Catholic Diocesan Trust. Control

Collins v Herts CC per Hilbery LJ. IC: what is to be done. E: How it is to be done.

Viasystems May LJ. Emphasised that both employers were responsible for tortfeasor.

Colour Quest v Total Downpour “the most telling indicium” is the “identity of the person who has the right to control the employee’s method of work”. David Steel J.

Integration Denning in Stephenson, Jordan and Harrison v MacDonald & Evan. “part of the business” vs “accessory to it”

Rix LJ in Viasystems.

Need for both/more? Biffa Waste Services v Outukumpu where it was stressed that supervision

was not enough and actual control was required. Applied both control and integration test.

JGE v Portsmouth Roman Catholic Diocesan Trust. MacKenna J I Ready Mixed Concrete v Ministry of Pensions. Also question of

whether contract was consistent with that of a contract of service. o Ownership of assets (tools)o Financial liability

What is Relevant?Objective Visual Affinity with the Employer.

Hawley v Luminar. Doorman in Luminar’s uniform. Luminar employer Ready Mixed Conrete. Had to wear company uniform. Lorry had to be

company colour. Nevertheless independent contractors. Autoclenz v Belcher workers wore overalls bearing company’s logo. Also

used company equipment.

Ownership of assets and tools

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Ready Mixed Concrete. Owned their own lorries and paid for their own fuel. Independent contractors.

Autoclenz v Belcher. Used company equipment, although they were charged a menial 5% service charge.

Independence Autoclenz v Belcher. Clear that the valets were not independent, but

subordinated to the company. Therefore, indiciative of a contract of service and not for services.

Intention of parties Hawley v Luminar. It was clear that the employer of the doorman was only

to eschew financial consequences of employment (e..g NI contributions) Autoclenz v Belcher. Signed a contract saying they were IC. Neverhtless SC

held they were employees.

BorrowedMersey Docks and Harbour Board v Coggins. Board let out a crane, with an operator, to a firm of stevedores from whom he would take orders. House of Lords held that the Board was still liable when he negligently caused property damage on the basis that there had been “no clear evidence” that the employment “had been transferred” per Lord MacMillan.

Viasystems v Thermal Transfer control May LJ. Focus on relevant negligent act and then ask whose responsibility

it was to prevent it. Clear emphasis on control. Here, both defendants controlled the

tortfeasor and therefore jointly liable Departed from the typical approach that only one employer may be liable

for one act. Confined it to a historical misreading of Littledale J in Laugher v Pointer.

Rix LJ emphasized the integration element.

Hawley v Luminar. Luminar’s bouncer punched a rowdy clubber, resulting in brain damage. The club contracted ASE (now in liquidation) to provide staff. CA found that only Luminar should be responsible.

1. More than capable of selecting their won staff themselves. Only used ASE to bypass employment laws

2. ASE undertook to find suitable employees, but this did not extend to control the tortfeasor’s behavior.

Control absent3. Fully integrated. Wore club uniform and took orders from Luminar.

Integration absent

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Course of Employment

Within course of Employment

TimeQuestion of what is not unreasonably disconnected:

Ruddiman & Co v Smith. Clerk’s employer’s liable for property damage caused by his leaving a tap on shortly after his formal daily hours of employment ended.

To and from work?Smith v Stages. Employee found to be within course of employment when he was driving so that he could present himself at his usual place of work the next day.

Lowry Ordinarily, employees will not be in the course of employment travelling to and from work, unless their transport is provided by their employer. However, travelling to an alternative place of work or to a workplace, during the employer's time, will be in the course of employmen

Work where travel is essential Parke B in Joel v Morison. “going out of his way” vs “a frolic of his own”

o Drove cart home for midday meal, unauthorized. outside course of employment. Whatman v Pearson

o On return journey after picking up empty casks the driver stopped off at the accompanying clerk’s home to pick up another empty barrel. Within course of employment. Storey v Ashton.

o Cook v Darby. Not in the course of his employment when a lorry driver actually left the vehicle.

Express provisionsPlumb v Cobden Flour Mills.

Transgressing Prohibitions limiting sphere of employment means that the tortfeasor is no longer acting in the course of employment

o Rand v Caig. Servants to carry rubbish from X to specifically Y. When they simply dumped it on adjoining land their employers were not vicariously liable for trespass as they were acting outside of the course of duty.

o Twine v Bean’s Express Lts. Tortfeasor employed as a mail porter. When his effectively offered a free taxi service to a young lady, this was outside the scope of employment. Clear signs that that he was not allowed to do so, and he told her he was not allowed.

Transgressing restrictions on the conduct within sphere of employment means he still is within the course of employment.

o Canadian Pacific Railway v Lockhart. Tortfeasor, contrary to prohibition drove an uninsured vehicle. Driving in itself was not prohibited, it was the uninsured mode of doing so that was.

o Rose v Plenty. Going against Prohibition on carrying children meant that the tortfeasor was only derogating from the manner in which

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he was delivering milk (i.e. not to be assisted by children). Therefore liable.

Closeness of Wrongful act to employment

Pre-ListerPoland v John ParrIn the belief that the claimant was stealing goods he had to transport, he unreasonably struck the claimant (i.e. committed the tort of battery). Nevertheless the employer was found liable as the tortfeasor’s purpose was closely connected with the employer’s interests and thus was within the scope of employment.

Makanjuola v Metropolitan Polcie Commissioner. Policeman extracted sexual favors from an immigrant. Employers not vicariously liable as this plainly was far outside what the employee’s work.

But, had they known of the employer’s proclivities they could have been liable for the non-delegable duty to provide competent staff.

Lister v Hesley Hall. Cases where employee does not further any purpose of the employer but the situation of their commission is so closely wrapped up with the conditions of employment. Warden Systematically abused children within his care. No negligence for the selection of the employee on behalf of the boarding house (first instance)

CA confirmed no vicarious liability, on the basis of a similar case Trotman v Nth Yorkshire CC, headmaster’s school not found liable for his sexual acts of abuse on a girl as they were not in the course of his employment.

HoL overruled the Trotman case. Lord Steyn found him liable following “”intense focus on connection” between “nature of employment” and “tort of employee”.

o Millett. Very broad. School liable for risks reasonably incidental to employment

o Hobhouse. Defendant themselves assumed responsibility for the children. This means two things

Relationship between defendant (not tortfeasor) and aggrieved party becomes of critical concern

Not really vicarious liability. As it implies the defendant committed the tort.

Vicariously liable for the assault of the boys (A v Hoare)

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ApplicationDubai Aluminium v Salaam. Nicholls. Question of whether the wrongful conduct was “so closely connected” with acts supposed to be carried out, that it may be “fairly and properly be regarded” as forming part of the course of employment.

Maga v Roman Catholic Archdiocese Trustees and JGE v Portmouth Roman Catholic Diocesan Trust.

1. Dressed in classical garb in his interaction2. Duty to evangelize, thus performing his duty when etting to know the

plaintiff. C’s role as a priest gave him the opportunity to sexually assult him.

Steyn in Bernard v AG Jamaica. Stressed that the principle is not infinitely extendable. Regard to be had to fairness.

Violent EmployeesMattis v Pollock. Defendant employed C, known to his employers to be very violent, and unlicensed, as doorman. Upon meeting resistance one night, he went back home grabbed a weapon and rendered the claimant paraplegic.

Nightclub owner vicariously liable for assault.

Anthony Clarke MR in Gravil v Caroll and Redruth RFC. A member of a rugby team punched another in the face. The claimant successfully argued that the tortfeasor’s club was vicariously liable as the tort committed (the punch) was “a risk reasonably incidental to employment” (playing rugby). Further, the contract of employment anticipated the risk of assault, and contained a clause preventing such actions.

Employer’s Liability. Personal Duty of Care, four duties as per Lord Wright in Wilsons. Pearce LJ in Wilson described the categories in Wilsons as being subdivision of the general duty incumbent upon employers to take reasonable care to not subject their employees to unnecessary risk.

Only a duty to take reasonable care. Withers v Perry Chain where the employers were not liable for their employees contraction of dermatitis as they had done everything they reasonably could to prevent it, bar not employing her at all.

Question of fact.o Wilson v Tybnesideo HoL in Qualcast v Hayes found gthe judge erred in law as treating

previous conclusions as binding in law. They were simply findings of fact, per Lord Sommervell.

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Provision of safe toolsToronto Power Company v PaskwanFacts Claimant employee killed by a block falling from a crane due to its negligent operation. Held: they were negligent in failing to employ a competent signalsman and install proper safety devices.

A master is not bound to adopt all the lastest improvements and appliances. It is a question of fact in each case, was it in the circumstances a want of reasonable care not to have adopted them.

Duty a duty to take reasonable care to provide proper appliances, and a duty to maintain them in proper condition — also covers a duty to give the employee adequate instruction in the use of the appliance, where necessary

Vaughan v Roper & Co. Failure to provide spare ropes on a sea voyage.

BUT: Winter v Cardiff RDC. Not liable where employee failed to use the securing

system properly. Lord Porter said there were “sufficient and adequate provisions”.

Richardson v Stephenson Clarke. Employer supplied a range of well-maintained tools, but the claimant chose negligently and injured himself. Employers not liable. No fault.

Provision of a safe workplaceWide meaning: “Setting of the stage” per Lorde Greene MR in Speed v Thomas Swift.

Includes instructions: Lord Oaksey. “frequently if not habitually careless” Christmas.

Wilson v Tyneside Window CleaningFacts Plaintiff window cleaner injured himself when he fell after a window he was holding on to gave way. Held The factual question of whether the employer has discharged his duty is “greatly circumscribed by the fact that the workplace is under the control of a stranger” Pearce LJ. No liability:

Greatly experienced 14 years of work with them. Cleaned the window before, knew the wood work was rotten.

Thomson v Cremin. Lord Wright found that a master stevedore was not liable to his employees when they boarded a ship and were injured.

Master stevedore cannot interfere with the structure of the ship The ship was maintained to Australian standards Entitled to assume that the shipowner has discharged his duty of care. Unless there si cause for suspicion.

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Cook v D Square. Electronics engineer employed by a UK based company was sent abroad to complete a computer control system and slipped on the floor near completion. Held. Consider everything. No liability

Well known international companies What of McDermid. Authority for the proposition that an employer cannot

delegate the personal duty. However, this was a case where the defendant employer and the controlling Dutch company were working together in a small team of three to perform a contract they were carrying out together. The duty of the employer was “much more direct” Farquharson LJ.

Provision of safe system of workGeneral Cleaning Contractors v Christmas. Injured himself. Liability because they failed in their duty to provide a reasonably safe system of work in that

1. They failed to give instructions to test windows2. Provide wedges to ensure they remained immobile. 3. Essentially left all to the initiative of their employees.

Provision of competent employees. Hudson v Ridge Manufacturing. Facts Frequently engaged in skylarking and playing foolish pranks on other employees. Employers issued frequent reprimands but no more. Not a question of vicarious liability Held: Liable on the facts. Obiter, expressed the opinion that if it had only been an isolated occaision with no further occurrences, there would have been no liability, as in the case of Smith v Crossley Brothers. Smith v Crossley Brothers [1951]

Two motor mechanics played a practical joke on their colleague, Smith. They removed his trousers, inserted a rubber hose into his anus and filled him with compressed air. Not liable because it was the only instance of such misbehavior.

Black v Fife coal. Employer negligent in employing a colliery manager, with no experience of how to manage carbon monoxide, to supervise a pit with known CO risks.

Attorney General of BVI v Hartwell. (Also Waters v MPC, 2000 HoL)Facts: A police officer, aiming to shoot his partner in a crowded bar, accidentally harmed a tourist. Held. Government not vicariously liable for the tortfeasor’s actions. However, there was a breach of the duty of care to

Independent Contractors. Alcock v Wraith.

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The neighbours of the plaintiff contracted the defendants to re-tile their roof. They did so negligently, but also encroached on the plaintiff’s roof. General cases where an independent contractors will be held liable:

1. Employer under statutory duty2. Withdrawal of support from land

a. Bower v Peate. Liable to the neighbor when the independent contractor pulled down his house, to the detriment of his neighbours’, having failed to prevent unreasonable damage thereto. A

b. Approved in HoL of Dalton v Angus. Restricted in in Hughes v Percival, the principle was applied in Alcock in the context of an interference with the edge of a continuous roof, suggesting that Hughes is perhaps outdated.

3. Escape of fire4. Rylands v Fletcher escape

a. Matania v National Provincial Bank. 5. Operations on the highway

a. Salsbury v Woodland. 6. Extra-hazardous acts.

a. Honeywill and Stein v Larkin Brothers. Not liable for the work of an independent contractor simply because it poses a risk if done negligently. Must some “special danger” to others, as did the taking of photos involving the combustion of magnesium powder.

b. Salsbury v Woodland. Plaintiff injured when the defendant’s independent contractor negligently felled a tree on their land. Not liable as the work would nothave posed a danger had it been performed properly.

Breach of Statutory DutyMcWilliams v Sir William Arrol

Vicariously liable for the tort of their employeeJGE v The Trustees of the Portsmouth Roman Catholic Diocesan Trust. Here, the defendants were vicariously liable for the torts of Father Baldwin, notwithstanding he was not an employee per se. The situation was likened to that of a Health Trust and surgeon, and on the various analyses (organizational, integrational and entrepreneurial) he was akin to an employee.

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