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Table of Contents
EMPLOYEE ........................................................................................................................................... 2
DISTINCTION BETWEEN EMPLOYEE AND INDEPENDENT CONTRACTOR ................................................ 2
What Test? ......................................................................................................................................................... 2
What is Relevant? ........................................................................................................................................... 2
Borrowed ............................................................................................................................................................ 3
COURSE OF EMPLOYMENT ............................................................................................................ 4
WITHIN COURSE OF EMPLOYMENT ............................................................................................................... 4
CLOSENESS OF WRONGFUL ACT TO EMPLOYMENT ..................................................................................... 5
Pre-Lister ............................................................................................................................................................ 5
Lister v Hesley Hall. ....................................................................................................................................... 5
APPLICATION .................................................................................................................................................... 6
VIOLENT EMPLOYEES ...................................................................................................................................... 6
EMPLOYERS LIABILITY. ................................................................................................................. 6
PROVISION OF SAFE TOOLS ............................................................................................................................. 7
PROVISION OF A SAFE WORKPLACE ............................................................................................................... 7
PROVISION OF SAFE SYSTEM OF WORK ......................................................................................................... 8
PROVISION OF COMPETENT EMPLOYEES. ..................................................................................................... 8
INDEPENDENT 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 employees 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 Luminars 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 companys logo. Also
used company equipment.


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Ownership of assets and tools
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.

Borrowed
Mersey 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.
Luminars 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 tortfeasors behavior.
Control absent
3. Fully integrated. Wore club uniform and took orders from Luminar.
Integration absent
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Course of Employment
Within course of Employment

Time
Question of what is not unreasonably disconnected:
Ruddiman & Co v Smith. Clerks employers 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 clerks 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 provisions
Plumb 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 Beans 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-Lister
Poland v John Parr
In 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 tortfeasors purpose was
closely connected with the employers 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 employees work.
But, had they known of the employers 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, headmasters 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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Application
Dubai 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 interaction
2. Duty to evangelize, thus performing his duty when etting to know the
plaintiff. Cs 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 Employees
Mattis 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
tortfeasors 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.
Employers 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 Tybneside
o 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 tools
Toronto Power Company v Paskwan
Facts 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 workplace
Wide 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 Cleaning
Facts 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 work
General 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 windows
2. 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 tortfeasors 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 plaintiffs roof.
General cases where an independent contractors will be held liable:
1. Employer under statutory duty
2. 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 fire
4. 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 defendants
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 Duty
McWilliams v Sir William Arrol

Vicariously liable for the tort of their employee
JGE 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.