“at all times, he dresses smartly and wears at all times a visible original [Security Industry Authority] badge, black tailored trousers, black shoes (no trainers), shirt with collar (no polo shorts) and tie. A waistcoat, formal jacket or crombie coat is optional; the uniform provided by [Risk Solutions], in particular wearing at all times a visible badge or other marking identifying him as the employee of [Risk Solutions].”
“3.7 [Risk Solutions] acknowledges and agrees that it will … remain responsible for the direction, management and control of each of the Security Staff who shall be involved in the performance of the Services. [Risk Solutions] shall instruct, manage, control and direct each of the Security Staff in the performance of the Services required hereunder, in a thorough, appropriate and sufficient manner so that each of the Security Staff shall perform the Services in accordance with the terms of this Agreement. 3.8 Neither JDW nor its servants, agents, employees or sub-contractors (save only for [Risk Solutions] and its servants, agents, employees and sub-contractors) shall be responsible for the direction, instruction, management or control of the Security Staff.”
“But the liability, by virtue of the principle of relation of master and servant, must cease where the relation itself ceases to exist: and no other person than the master of such servant can be liable, on the simple ground, that the servant is the servant of another, and his act the act of another; consequently, a third person entering into a contract with the master, which does not raise the relation of master and servant at all, is not thereby rendered liable; and to make such person liable, recourse must be had to a different and more extended principle, namely, that a person is liable not only for the acts of his own servant, but for any injury which arises by the act of another person, in carrying into execution that which that other person has contracted to do for his benefit. That, however, is too large a position, as Lord Chief Justice Eyre says in the case of Bush v. Steinman (1 Bos. & P. 404), and cannot be maintained to its full extent, without overturning some decisions, and producing consequences which would, as Lord Tenterden observes, ‘shock the common sense of all men:’ not merely would the hirer of a post-chaise, hackney-coach, or wherry on the Thames, be liable for the acts of the owners of those vehicles if they had the management of them, or their servants if they were managed by servants, but the purchaser of an article at a shop, which he had ordered the shopman to bring home for him, might be made responsible for an injury committed by the shopman's carelessness, whilst passing along the street.”
“the fundamental test to be applied is this: ‘Is the person who has engaged himself to perform these services performing them as a person in business on his own account?’ If the answer to that question is ‘yes,’ then the contract is a contract for services. If the answer is ‘no,’ then the contract is a contract of service. No exhaustive list has been compiled and perhaps no exhaustive list can be compiled of the considerations which are relevant in determining that question, nor can strict rules be laid down as to the relative weight which the various considerations should carry in particular cases. The most that can be said is that control will no doubt always have to be considered, although it can no longer be regarded as the sole determining factor; and that factors which may be of importance are such matters as whether the man performing the services provides his own equipment, whether he hires his own helpers, what degree of financial risk he takes, what degree of responsibility for investment and management he has, and whether and how far he has an opportunity of profiting from sound management in the performance of his task.”
“To distil it to a single sentence I would say that an employee is one who is paid a wage or salary to work under some, if only slight, control of his employer in his employer’s business for his employer’s business. The independent contractor works in and for his own business at his risk of profit or loss.”
“84. On the facts of the present case, the answer to the question ‘who was entitled and therefore obliged to control Mr Warren’s act so as to prevent it?’, on the judge’s findings, is Luminar. ASE had no immediate or effective control over the activities of Mr Warren. Any general duty of control which the head doorman had to exercise over the other doormen was very much subject to Luminar’s de facto control. If anyone was going to prevent Mr Warren’s behaving badly and this particular act, it was Luminar’s manager. ASE’s sole role seems to have been employing Mr Warren in the first place, providing him as a doorman at the club and paying his wages for as long as Luminar were happy to use his services. If relevant to this question, any training seems to have been left for the most part to others. 85. Mr Warren may have been paid by ASE and could have been dismissed by them but in all other respects he and his head doorman answered to Luminar for their activities at the club, including the sort of behaviour that led to the damage. ASE’s only right, as the judge found, was to nominate who would turn up on any particular day for duty. But even then they could not send just anyone. Luminar had the last word.”
“76. The Luminar manager was in overall charge of security. She had much more than a merely supervisory role as far as the ASE employees were concerned. She was in charge of them too. She treated all those employed at the club the same; house employees and ASE employees were all part of her team. All the doormen including the head doorman took their orders from her. When she said jump, they jumped. The head doorman seems to have done virtually nothing without her instructions. His role seems to have been minimal in practice. 77. Luminar management decided which customers to admit, which to exclude and which to reject. They told the doormen where to stand and when to move. The fact that on this occasion [the manager] did not get a chance to authorise their involvement outside the club does not detract from the fact that she was in charge of what they did. When the doormen stepped in they knew that they took their authority to act from her. It was Luminar who instructed the doorman not to use force unless absolutely necessary and to use as little force as possible …. 78. … The learned judge found: ‘Luminar management exercised detailed control not only over what the door stewards did but how they were to do it.’ To put it at its lowest, that was a finding which, in our clear view, he was entitled to make. 79. Thus, the fact that Luminar did not involve themselves in the detail of, or training in, methods of restraint, does not mean that the judge was wrong to find that effective control of the doormen had vested in Luminar. Luminar had control of and responsibility for ASE’s employees in fact and by virtue of the contractual provisions. One cannot ignore the contractual provisions as Mr Sweeting appeared to suggest. They are plainly relevant. The fact that by insisting on the ‘control provisions’ being incorporated into the contract Luminar was complying with their obligations to others cannot, in our view, and in the judge’s view, detract from the reality of the situation. 80. Further, it appears to us that there can be no doubt that any customer, passer by or police officer seeing the doormen decked out in Luminar uniforms would have assumed they were Luminar staff. In effect this is what they were held out to be. The doormen were not recognisable physically as the employees of ASE. For over two years any regular visitor would have seen Warren dressed in Luminar’s uniform working at the club answering to Luminar management on the detail of his job. It was his sole or certainly primary place of employment for that entire period.”
“There is no difficulty in identifying a number of policy reasons that usually make it fair, just and reasonable to impose vicarious liability on the employer when these criteria are satisfied: (i) the employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability; (ii) the tort will have been committed as a result of activity being taken by the employee on behalf of the employer; (iii) the employee’s activity is likely to be part of the business activity of the employer; (iv) the employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee; (v) the employee will, to a greater or lesser degree, have been under the control of the employer.”
“56 In the context of vicarious liability the relationship between the teaching brothers and the institute had many of the elements, and all the essential elements, of the relationship between employer and employees. (i) The institute was subdivided into a hierarchical structure and conducted its activities as if it were a corporate body. (ii) The teaching activity of the brothers was undertaken because the provincial [i.e. the person heading one of the ‘provinces’ into which the institute was divided] directed the brothers to undertake it. True it is that the brothers entered into contracts of employment with the Middlesbrough defendants, but they did so because the provincial required them to do so. (iii) The teaching activity undertaken by the brothers was in furtherance of the objective, or mission, of the institute. (iv) The manner in which the brother teachers were obliged to conduct themselves as teachers was dictated by the institute’s rules. 57 The relationship between the teacher brothers and the institute differed from that of the relationship between employer and employee in that: (i) The brothers were bound to the institute not by contract, but by their vows. (ii) Far from the institute paying the brothers, the brothers entered into deeds under which they were obliged to transfer all their earnings to the institute. The institute catered for their needs from these funds. 58 Neither of these differences is material. Indeed they rendered the relationship between the brothers and the institute closer than that of an employer and its employees.”
“The boundaries of vicarious liability have been expanded by recent decisions of the courts to embrace tortfeasors who are not employees of the defendant, but stand in a relationship which is sufficiently analogous to employment: Various Claimants v Catholic Child Welfare Society[2013] 2 AC 1 . But it has never extended to the negligence of those who are truly independent contractors, such as Mrs Stopford appears to have been in this case.”
“a relationship other than one of employment is in principle capable of giving rise to vicarious liability where harm is wrongfully done by an individual who carries on activities as an integral part of the business activities carried on by a defendant and for its benefit (rather than his activities being entirely attributable to the conduct of a recognisably independent business of his own or of a third party), and where the commission of the wrongful act is a risk created by the defendant by assigning those activities to the individual in question”
“By focusing upon the business activities carried on by the defendant and their attendant risks, it directs attention to the issues which are likely to be relevant in the context of modern workplaces, where workers may in reality be part of the workforce of an organisation without having a contract of employment with it, and also reflects prevailing ideas about the responsibility of businesses for the risks which are created by their activities. It results in an extension of the scope of vicarious liability beyond the responsibility of an employer for the acts and omissions of its employees in the course of their employment, but not to the extent of imposing such liability where a tortfeasor’s activities are entirely attributable to the conduct of a recognisably independent business of his own or of a third party. An important consequence of that extension is to enable the law to maintain previous levels of protection for the victims of torts, notwithstanding changes in the legal relationships between enterprises and members of their workforces which may be motivated by factors which have nothing to do with the nature of the enterprises’ activities or the attendant risks.”
“the significance of control is that the defendant can direct what the tortfeasor does, not how he does it. So understood, it is a factor which is unlikely to be of independent significance in most cases. On the other hand, the absence of even that vestigial degree of control would be liable to negative the imposition of vicarious liability.”
“The question therefore is, as it has always been, whether the tortfeasor is carrying on business on his own account or whether he is in a relationship akin to employment with the defendant. In doubtful cases, the five ‘incidents’ identified by Lord Phillips may be helpful in identifying a relationship which is sufficiently analogous to employment to make it fair, just and reasonable to impose vicarious liability. Although they were enunciated in the context of non-commercial enterprises, they may be relevant in deciding whether workers who may be technically self-employed or agency workers are effectively part and parcel of the employer’s business. But the key, as it was in Christian Brothers … and Armes … , will usually lie in understanding the details of the relationship. Where it is clear that the tortfeasor is carrying on his own independent business it is not necessary to consider the five incidents.”
“Clearly, although Dr Bates was a part-time employee of the health service, he was not at any time an employee of the bank. Nor, viewed objectively, was he anything close to an employee. He did, of course, do work for the bank. The bank made the arrangements for the examinations and sent him the forms to which it wanted answers. But the same would be true of many other people who did work for the bank but were clearly independent contractors, ranging from the company hired to clean its windows to the auditors hired to audit its books. Dr Bates was not paid a retainer which might have obliged him to accept a certain number of referrals from the bank. He was paid a fee for each report. He was free to refuse an offered examination should he wish to do so. He no doubt carried his own medical liability insurance, although this may not have covered him from liability for deliberate wrongdoing. He was in business on his own account as a medical practitioner with a portfolio of patients and clients. One of those clients was the bank.”
“The test at stage 1 is whether the relationship between the defendant and the tortfeasor was one of employment or akin to employment. In most cases, there will be no difficulty in applying this test because one is dealing with an employer-employee relationship. But in applying the ‘akin to employment’ aspect of this test, a court needs to consider carefully features of the relationship that are similar to, or different from, a contract of employment. Depending on the facts, relevant features to consider may include: whether the work is being paid for in money or in kind, how integral to the organisation is the work carried out by the tortfeasor, the extent of the defendant’s control over the tortfeasor in carrying out the work, whether the work is being carried out for the defendant’s benefit or in furtherance of the aims of the organisation, what the situation is with regard to appointment and termination, and whether there is a hierarchy of seniority into which the relevant role fits. It is important to recognise, as made clear in Barclays Bank, that the ‘akin to employment’ expansion does not undermine the traditional position that there is no vicarious liability where the tortfeasor is a true independent contractor in relation to the defendant.”
“The important features here rendering the relationship akin to employment were as follows: that as an elder Mark Sewell was carrying out work on behalf of, and assigned to him by, the Jehovah’s Witness organisation; that he was performing duties which were in furtherance of, and integral to, the aims and objectives of the Jehovah’s Witness organisation; that there was an appointments process to be made an elder and a process by which a person could be removed as an elder; and that there was a hierarchical structure into which the role of an elder fitted.”
“74. Whilst Hawley demonstrates how significant (and near exclusive) control can lead to a finding that a relationship with staff provided by another business is ‘akin to employment’, the framework for this analysis has been refined. The core question in the present case, informed by Barclays Bank and BXB, is whether the contractual and working reality of the relationship between Wetherspoons and the security staff engaged via contractors points to a relationship ‘akin to employment’ or to that of a ‘true independent contractor’ carrying on their own business. This involves considering the various features listed in BXB if the relationship is not clearly one or the other, rather than focusing predominantly on control as was the emphasis in Hawley. 75. I accept [JDW’s] submission that the Recorder erred in his approach. The starting point must be the contractual relationship between JDW and Risk Solutions, which was for the provision of security services by an independent third party. The factors relied upon by the Recorder, while indicative of some interaction and control between JDW and the door staff, are, in my judgment, entirely consistent with a business engaging a specialist independent contractor to perform services on its premises for pragmatic commercial reasons.”