A concrete-manufacturer introduced a scheme whereby its concrete would be transported by a team of ‘owner drivers’ who would be paid fixed mileage rate for service. The plaintiff driver’s contract described him as an independent contractor, and he was obliged to maintain his vehicle in good order at his own expense. He had no fixed hour of work and could choose his own routes and he was free to employ a competent driver when necessary. However, he undertook to make his lorry available whenever the company wanted it and to adorn the company colours. The issue was whether the owner-drivers were employees of the company: if so the company was liable to pay national insurance to them.
It was held that the driver was working under a contract for services. They owned the lorry, bore the financial risk and was, running his own business. Where the parties have specified that a person will be self-employed, and the other terms of the contract do not show otherwise, the contract will be regarded as a contact for services. An obligation to perform work personally points towards the relationship being one of employment, whereas the fact that the payment is wholly dependent on the satisfactory completion of the work is a pointer towards self-employment.
Factors
Mersey Docks & Harbour Board v Coggins & Griffins
A mobile crane and a driver had been hired out to a firm of stevedores under a contract, which stipulated that the driver was to be the employee of the stevedores. In spite of this term, his original employer, the Board, pain his wages and retained the right to dismiss him. The hirer directed the tasks, which were to be performed by the driver, but not how he was to operate the crane. In the course of work, the driver negligently injured the plaintiff and the question to be determined was whether the stevedores or the bard was to be vicariously liable.
HoL held that several factors have to be considered but the decisive question was to be asked who bore ultimate control over the manner in which the work was performed. On the facts, the Board remained liable.
The burden of proof remains with the original employer to show that responsibility for the torts of the employee has shifted to the second employer.
It was also held that an express term in the contract of hire stating that the worker is the employee of the hirer is not treated to be conclusive.
Course of Employment
Smith v Stages [1989]
S and M were instructed by their employer to do a week's work in a distant part of the country. They were paid travelling expenses, and for travelling time. They set off on the return journey in S's car, and were later involved in a collision in which M suffered serious injury. M, and later his widow, sued S, and the employer on the basis that S and M were acting within the course of their employment on the return journey.
It was held that they were acting in the course of their employment, and accordingly the employer was liable for S's negligence. In determining whether an employee was acting in the course of his employment when travelling on the highway the material question was whether he was going about his employer's business at the material time. The following general propositions for journeys to and from work were put forward by the court:
(1) When an employee was travelling between his ordinary residence and work by any means of transport whether or not provided by his employer he was not acting in the course of his employment unless contractually obliged to do so.
(2) Travelling between workplaces was in the course of employment.
(3) When an employee was paid for travelling in his employer's time the fact that the employee could choose the time and mode of transport did not take the journey out of the course of his employment.
(4) When an employee was travelling from his ordinary residence to an unusual place of work or to an emergency, the employee would be acting in the course of his employment. (5) A deviation or interruption of a journey would for that time take an employee out of the course of his employment.
The employees were instructed to deliver some wine on the return journey one of the employees persuaded the other, since it was by then after hours, to set off in a different direction to visit some relatives. On the way there, the plaintiff was injured by the employee’s negligent driving.
It was held that the driver was not acting in the course of employment, it was a new and independent journey which was entirely his own.
When considering the scope of employment it is enough to show that the employee was generally doing his job at the time, and doing a job negligently does not ake an employee outside the course of employment.
Century Insurance v NI Road Transport [1942]
Under a contract with a petroleum company for the carriage and delivery of their petrol in its lorries, a transport undertaking agreed to keep the petrol while in transit insured against fire and spillage.
The careless act of the driver was done in the course of his employment so that the undertaking was responsible for the consequences, and, accordingly, entitled to be indemnified under the policy.
Disobedience
An express prohibition may be regarded as merely directed to the methods by which a job is done. Therefore, an act may be within the course of employment even though it has been expressly forbidden by the employer.
Limpus v London General Omnibus Co. (1862)
A bus driver was instructed not to race with or obstructs the buses of rival companies. He disobeyed the instruction and caused an accident where the plaintiff’s horses were injured.
It was held that despite the prohibition, the employers were liable since this was simply an improper method of adopted by the employee in performing his duties.
It is outside the course of employment for an employee to do something which is not connected with what he is employed to do.
Beard v London General Omnibus Co. (1900)
A bus conductor, in the driver’s absence, decided to turn the bus around for the return journey. As a conductor, he was not acting in the course of his employment and therefore, acting outside the course of his employment.
Twine v Beans Express (1946)
It was held that there was no vicarious liability for a driver giving a lift.
Where a prohibited act is performed in furthering the employer’s business, it is usually within the course of employment.
Rose v Plenty (1976)
A milkman employed a 13yr old boy to help deliver milk despite the express instruction not to do so.
It was held that the driver was well within the course of employment despite the express prohibition because he was still acting for the master’s purpose, business and benefit.
Assault
Lister v Hesley Hall [2001]
Warden at a boarding annexed to a school for boys with emotional behavioural difficulties sexually abused Cs.
HoL held that it is necessary to consider the relative closeness of the connection between the nature of the employment and the tort and to take a broad approach to the nature of employment. On this basis, H had undertaken to care for the boys through the services of the warden; there had been close connection between his employment and his tort. The torts were committed at a time on the premises while he was caring for the children I the course of his duties. The acts were so closely connected that it was fair and just to hold H vicariously liable.
Where a deliberate assault is involved, the courts are reluctant to find that the employee was acting in the course of employment.
Warren v Henlys (1948)
An employee engaged as a petrol pump attendant by the defendant mistakenly thought that the plaintiff was attempting to drive away without paying. He made the accusation to the plaintiff in violent language. The plaintiff paid the bill, called the police and when he threatened to report the pump attendant to his employers, he was assaulted and injured by him.
It was held that the defendants were not liable; the assault was a mere act of personal vengeance and outside the course of employment.
Kepple Bus v Ahmad UKPC
A bus conductor assaulted a passenger in the bus.
It was held that the conductor's duties extended to keeping order; there was no evidence of any disorder so that the conductor was not acting in the course of his duties by striking the passenger.
Vasey v Surrey Free Inns [1974]
He had visited a nightclub owned by S and, having been refused entry, kicked the door of the premises breaking the glass. He was pursued into the car park of the premises by two doormen, P and M, and the manager and was attacked.
- the conduct of the assailants was a reaction to the damage to the door for the protection of S's property and was not a private quarrel unrelated to the employee's duties.
- It was an unlawful and unauthorised manner of carrying out their duty; (2) it was an unauthorised act, which was within the province of their proper duty generally to preserve the integrity of the club. This was not a frolic of his own but an act for which the employer must be held vicariously liable.
- It was the duty of the manager of such an establishment to exercise proper control over employees to prevent unwarranted assaults on customers.
Other Misconduct
Kooragang v Richardson & Wrench [1982]
D's employee was instructed not to carry out valuations for a group of companies because of the group's failure to pay for past services. The employee later became a director of one of the companies and, without the employer's knowledge performed a number of valuations for them, using D's notepaper and signing the valuations with D's corporate signature. The group passed certain valuations to P who relied on them. The valuations had been done negligently and P sued D in respect of D's employee's negligence.
It was held that there was no authority to perform these valuations could be inferred from the fact that D had authorised the employee to perform others. Since D had forbidden the employee to make valuations for the group and had not taken part in or benefited from them the employee had been acting outside the course of his employment and D were not vicariously liable for his negligence.
An employer's actual authority to his servant to do a particular act cannot be inferred merely from the fact that the act itself was of a class, which the employer had previously authorised the servant to do.
Gen. Eng. Scv. v Kingston [1989]
A local authority was held not to be vicariously liable when firefighter deliberately delay their arrival at a fire until the building was destroyed as part of a ‘go slow’ policy in support of a pay claim. An act, which is done with the aim of frustrating the employer’s business purpose is unlikely to be classified as merely an unauthorized mode of performing the job.
There are occasions when an employer will be vicariously responsible for the deliberate criminal conduct of an employee.
Fraud
Lloyd v Grace Smith & Co. [1912]
The defendant, a firm of solicitors employed a clerk who fraudulently induced a client into transferring some cottage over to him. He then dishonesty disposed of the property and disposed of the proceeds.
HoL: Even though the fraud was not committed for the benefit of the employers and they were ignorant of his schemes, they were liable because they had held the clerk out as having authority to perform the type of transaction in question.
Armagas v Mundogas [1986]
Manager who had been bribed entered into an unauthorised charter of a ship. Manager assured A that he has express authority.
It was held that:
- No contract between A and D as manager was known to have no general authority to make contract and neither was there any ostensible authority.
- When an employee made a fraudulent misrepresentation, which caused loss to an innocent party contracting with him, his employer, would be vicariously liable for the act if the employer had himself by words or conduct induced the injured party to think that the agent was acting in the lawful course of the employer’s business.
Theft
Morris v Martin [1966]
The owner of goods may sue a sub-bailee directly for any loss or damage occurring through the fault or theft of the sub-bailee's servants. When a principal has in his charge the goods or belongings of another in such circumstances that he is under a duty to take all reasonable precautions to protect them from theft or depredation, then, if he entrusts that duty to a servant or agent, he is answerable for the manner in which that servant or agent carries out his duty. If the servant or agent is careless so that they are stolen by a stranger, the master is liable. Also, if the servant or agent himself steals them or makes away with them.
Liability for Agents
Launchberry v Morgans [1973]
It was held that to fix vicarious liability on the owner of a motor car in a case such as the present it must be shown that the driver was using it for the owner's purposes under delegation of a task or duty; that the owner's interest in or concern for the safety of the car or its occupants was not sufficient.
Hewitt v Bonvin [1940]
A son obtained from his mother, who had authority to grant it, permission to drive his father's motorcar. The son wanted the car for his own purposes. On the way back, through the negligent driving of the son, the car was upset and a friend who had accompanied the party was killed. In an action by the administrator of the deceased man against the father, the owner of the car:-
It was that the son was not driving the car as his father's servant or agent or for his father's purposes, and that therefore the father was not liable for his son's tortious act.
Independent Contractor
Employers are not generally liable for their contractor’s torts. But, an employer will be responsible for the acts of independent contractors who carry out extra hazardous activities. Where the task is inherently dangerous, the duty on an employer is so onerous that it cannot be delegated to anyone else.
Honeywell & Stein Ltd v Larkin Bro [1934]
The plaintiffs did some work in the cinema. Having obtained the permission of the cinema owners, engaged the defendants as independent contractors to take photographs of their work. It involved igniting magnesium powder and in doing so, the defendant’s employee negligently set the curtains on fire. The plaintiffs paid the cinema owners for the damages caused by the fire and sought to recover from the defendants.
It was held that the plaintiffs had remained liable for the damage caused by the independent contractor because the task involved was extra hazardous. A duty is non-delegable where acts ‘in their very nature, involve…special danger to others’.
Salisbury v Woodland [1970]
The basic rule is that there is no liability in negligence of independent contractor. Cases of liability for such negligence are in truth cases of direct non-delegable duty owed y the employer. Acts close to the highway held not to fall within the non-delegable duty of dangers on or adjoining the highway.
D&F Estates v Church Comr.
Building contractors owe no non-delegable duty in relation to work of a subcontractor although his contractual responsibility would be non-delegable.
Rylands v Fletcher
Emanuel v GLC [1971]
An occupier is liable for the escape from his land of fire caused by the negligence of an independent contractor or anyone else on his land with his leave and licence.
The only occasion when an occupier was not liable for such negligence was when it was the negligence of a "stranger," which (per Lord Denning M.R.) would include a person on the land with the occupier's permission who in lighting a fire or allowing it to escape acted contrary to anything which the occupier could anticipate; but in this case the G.L.C. had had control over the site and could have anticipated that K's men might light a fire, although forbidden to do so; alternatively they were liable for the Ministry of Works' negligence in failing properly to supervise K's activities; and also they were personally negligent in failing to exercise any supervision over his activities.
An exception to the rule that an employer is not liable for the negligence of independent contractor is where the work is carried out on or adjoining the highway.
Terry v Ashton
An occupier of a public house adjoining the highway was liable when a heavy lamp attached to the building injured a passer-by. Although the occupier had argued that he had employed an independent contractor to keep the lamp in good repair, it was held that the duty to maintain premises so close to the highway could not be delegated.
Employer’s Liability (Defective Equipment) Act 1969
Rivers v Cutting [1962]
A car was illegally parked. The police called a garage to move it. While doing so the car was damaged.
It was held that the plaintiffs were not vicariously liable for the independent contractor unless they were negligent in selecting a contractor.
Padbury v Holiday (1912)
