Ready Mixed Concrete Ltd v Minister for National Insurance and Pensions [1968]

Facts
(RMC is in the business of selling concrete; previously they had hired a contractor to deliver the
concrete to the customers, but had terminated his contract and decided to offer the jobs to RMC's
current staffs. Mr Latimer signed up for the hire-purchase agreement for the lorry and started to
deliver concrete for RMC. The employer RMC argued that because Mr Latimer was an
independent contractor they needed not pay for his national insurance).
Ready Mixed Concrete contracted with others to provide delivery services for their concrete
These contracts required the others to provide their own lorries as independent contractors to
assist with concrete delivery
Issue
Were these others employees or contractors? If employees, Ready Mixed Concrete Ltd would
be liable to pay national insurance contributions for the others
Decision
Independent contractors
Reasoning
Three factors determine whether a person is an employee rather than an independent contractor:
a wage or remuneration; control over the employees activities and compliance of all other terms
with the nature of employment contracts
Ready Mixed Concrete did not have enough control to be able to class its contractors as
employees
Ferguson -v- John Dawson & Partners (Contractors) Ltd; CA 22-Jul-1976
The plaintiff had fallen from a roof whilst working for the defendants, and had claimed damages
for breach of statutory duty. The parties disputed whether the plaintiff was an employee or a selfemployed independent contractor.
Held: The real relationship of the parties was that of master and servant and that they had put the
wrong label on it by regarding him as working on the lump.
Lawton LJ (dissenting) thought that the partners had deliberately put the right label on their
relationship. The man was on the lump. He had had all the benefits of it by avoiding tax. It was
contrary to public policy that, when he had an accident, he could throw over that relationship and
claim that he was only a servant.
[The facts: a builders labourer worked on the lump he was paid his wages without deduction
of income tax or National Insurance contributions and worked as a self-employed contractor
providing services. But his employer could dismiss him, decide on which site he would work,
direct him as to the work he should do and also provided the tools which he used. He was injured

in an accident and sued his employers on the basis that they owed him legal duties as their
employee. Held: on the facts taken as a whole, he was and emplyee working under a contract of
employment.]
Massey v Crown life Assurance 1978
The facts: M was originally employed by an insurance company as a departmental manager; he
also earned commission on business which he introduced. At his own request he changed to a
self-employed basis. Tax etc was no longer deducted by the employers but he continued to
perform the same duties. The employers terminated these arrangements and M claimed
compensation for unfair dismissal on the basis that he had continued to be an employee. Held: as
he had opted to become self- employed and his status in the organisation was consistent with that
situation, he must abide by his decision. His claim to be a dismissed emplyee failed.

Hall v Lorimer 1994

The case of Hall v Lorimer 1994 STC 23 indicates that it is necessary to consider the personal
factors existing outside the terms of each individual contract. In this case, a vison mixer who
worked under a series of one and two-day contracts for a wide range of paymasters, employed no
staff and did not use his own equipment, was held to be self-employed.
The case of Hall v Lorimer illustrates the sort of factors that would be personal to the worker. Mr
Lorimer worked as a vision mixer and the judgement of the Court of Appeal made it clear that an
outstanding feature in that particular case was that Mr Lorimer customarily worked for 20 or
more production companies and that the vast majority of his engagements lasted for only a single
day
In Hall v Lorimer a vision mixer was found to be self employed when the terms, conditions and
facts surrounding his engagements were considered as a whole. This was despite the fact that the
substantial and expensive equipment needed was provided by his engagers. Mummery J, in the
High Court, considered that the provision of equipment by Lorimers engagers undoubtedly
pointed towards the existence of employment but this was not sufficient, by itself, to outweigh
other pointers towards self employment that were present in that particular case. It is clear from
the decision in Hall v Lorimer that, in reaching a balanced judgement on status, it is not
appropriate to look solely at the terms and conditions of the individual engagement. The decision
may be affected by the way in which the worker generally carries on his occupation. In particular
engagements may need to be looked at in the context of the workers business activities as a
whole including matters such as the workers exposure to bad debts and the amount spent on
organising, obtaining, or carrying out the work it may be appropriate to take into account the
length of the particular engagement and the number of other persons for whom similar work is
performed.

Carmichael -v- National Power 1999

In this case Mrs Carmichael and her colleague worked at a power station as visitor guides.
The work was part-time. There was some correspondence between the ladies and National
Power that the ladies relied on as a contract of employment. The relationship between the
ladies and National Power was described as that of a station guide on a casual as-required
basis. National Power argued, therefore, that the work was on a casual basis and that there
was no obligation to provide work. On that basis the relationship was not one of employer
and employee. It was also noted that on 17 occasions Mrs Carmichael had been unable to
work, and her colleague had been unable to work on eight occasions. On none of these
occasions had National Power taken any disciplinary action.
The employment tribunal agreed that there was no employment relationship. Eventually, the
Court of Appeal overturned this decision. National Power appealed against this decision and
the House of Lords found in favour of the employer so the relationship in this case was not
one of employer and employee.
The basis for the decision was that the relationship, as described, failed the first stage of the
test of mutuality. National Power had no obligation to provide work, and Mrs Carmichael and
her colleague had no obligation to work even if there was work available
Staff who worked only as and when required, and who then had the right to turn down work
offered were not employees and were not therefore entitled to written particulars of employment.
The absence of mutuality and the discontinuity of any contractual relationship in between
occasions when work was offered showed that the parties had not understood it as a relationship
of continuous employment. Unless the parties to an agreement had agreed that a document or
series of documents was intended to constitute an exclusive record of their agreement, any
question arising as to the nature or terms of the contract was a question of fact, to be determined
upon consideration of all the evidence, including written documents, oral statements and
conduct.
Lord Hoffmann said: The evidence of a party as to what terms he understood to have been
agreed is some evidence tending to show that those terms, in an objective sense, were agreed. Of
course the tribunal may reject such evidence and conclude that the party misunderstood the effect
of what was being said and done.
A decision that seems to contrast with this is that of:
Cornwall County Council v Prater (2006) EWCA Civ 102
Prater was a teacher working with children who were unable to attend school. She worked
under a series of contracts, with no obligation to take a further contract once one had been
completed and the Council were under no obligation to offer her any future contracts.
There were some breaks between contracts, but both parties accepted that they would not be
seen to break her continuity of employment if she were found to be an employee.
The Court of Appeal held that Prater was working under a series of contracts of employment
and that they added together to give her sufficient service to accrue employment rights.
They distinguished this case from Carmichael by stating that the Carmichael case was

determining whether there was an umbrella contract that amounted to employment rather
than focusing on the actual status of Carmichael when she was working. In the case of Prater
the focus was on her status when she was actually working, and it was found that this status
amounted to employment
Mersey Docks & Harbour board v Coggins & Griffiths 1947
The facts: stevedores hired a crane with its driver from the harbour board under a contract which
provided that the driver ( appointed and paid by the harbour board) should be the employee of
the stevedores. Owing to the drivers negligence a checker was injured. The case was concerned
with whether the stevedores or the harbour board were vicariously liable as employers.
Held: in the House of Lords, that the issue must be settled on the facts and not on the terms of the
contract. The stevedores could only be treated as employers of the driver if they could control in
detail how he did his work. But although they could instruct him what to do, they could not
control him in how he operated the crane. The harbour board( as general employer) was therefore
still the drivers employer.
Mersey Dock is in charge of training and providing crane operator to companies in the carrier
business. On one occasion one of Mersey Dock's operators who was let to a stevedore company
caused injuries through his negligent operation of the crane. The contract between the stevedores
and Mersey Dock provided that the crane operator was an employee of the stevedores.
The court found that the agreement as to the employment was inconclusive, unless there is a real
transfer of employment, Mersey Dock remains the employer. Because the crane operators
worked through Mersey Dock and were trained by Mersey Dock, Mersey Dock's whole
operation was based on letting out crane operators, Mersey Dock cannot be said to have
effectively transferred the tortfeasor's employment. According to Lord Porter to determine who
the employer is the court must ask who has the power to tell the operator the way in which his
work should be conducted?
Master/servant relationship persons who must be protected. Direct control, only if control over
what work and how it is done.
Facts
Coggins and Griffiths hired a crane and driver from the Mersey Docks and Harbour Board. the
driver, Mr Newall, drove the crane negligently and trapped Mr Mcfarlane injuring him. The
contract between the Board and the hirers stated that the driver was to become their employee for
the duration of the hire. The question was whether the Board were liable to Mr Mcfarlane as Mr
Newalls principal employers or whether the hirers now bore responsibility. It was held as a fact
that the hirers had power to control what Mr Newall lifted with the crane but not how he lifted it.
The Decision
Control over Mr Newall's work had not passed to the hirers. It is not to be held that control had
readily passed. Only if there is control over what work the person does and how he does it will

control be held to pass. The trial judge awarded damages against the appellants. An appeal
against this decision was dismissed. The Board appealed to the House of Lords. The appeal was
dismissed.
Note
Lord Macmillan: "That the crane driver was in general the servant of the appellant board is
indisputable. The appellant board engaged him, paid him, prescribed the jobs he should
undertake and alone could dismiss him." The person hiring the crane had some control but the
real control was with Mersey Docks. The ultimate control is the right to dismiss.
A servant is one who is subject to the orders and control of an employer.... whether or not the
persons are running their own business
Lister v Hesley Hall Ltd [2001] UKHL
Lister v Hesley Hall Ltd [2001] UKHL 22 is a House of Lords decision regarding vicarious
liability, famous for overturning the Salmond test, and articulating the modern test for "acting in
the course of employment" the Close Connection test. The judges in this case was heavily
influenced by the Canadian Supreme Court's decision in Bazley v Curry (a case with almost
identifcal facts). The Close Connection test existed before Lister, it had been used in Morris v
CW Martin and Heasmans v Charity Cleaning but was never expressly articulated until Lister.
Facts
Hesley Hall was a boarding house for students with severe emotional problems, the warden Mr
Graine had supervision of the pupils at Hesley Hall and their daily routine. It transpired during
the early 90s that Mr Graine had sexually abused these children and they have suffered
psychiatric injuries. Hesley Hall was sued in all sorts of tort from battery to negligence. As such
situations, it is very complex to deal with due to the fact that it is a total mishap and other
problems due to such law given.
Judgment:
If the court was to uphold the Salmond test which required:
The wrongful act must be authorised by the employer; or
The wrongful mode was authorised.
This draconian rule meant that an employee engaging in a criminal act (such as the current case)
will never be acting in the course of employment, would therefore in the context of the current
case cause significant injustice. In the Court of Appeal the judges followed the case of Trotman
and held that Hesley Hall is not liable.
When the case went up to the House of Lords, the Law Lords unanimously held that vicarious
liability is established, hence overruling Trotman. The House of Lords found:
The purpose of the warden's duty was to develop trust with the children, that trust gave him
access to the boys and allowed the abuse;

There was geographical and temporal proximity to the employment, as the abused occured on the
premise of his employment and during the time which he should be carrying out his employment
duties;
There is an inherent risk of sexual abuse in these types of occupations, for the courts to find
Hesley Hall liable could potentially be a deterrent to potential abusers.
Lord Steyn whose judgment is the most often cited said that the warden's criminal acts are
inextricably interwoven with his duties, hence it is closely connect to his work therefore Hesley
Hall is liable under vicarious liability.
Lord Hobhouse on the otherhand reject the whole notion of vicarious liability, and argued that
Hesley Hall owned a direct duty to the children, therefore they are directly liable in tort for
systemic negligence.
Rose -v- Plenty; CA 7-Jul-1975
Contrary to his employers orders, a milkman allowed children to assist him in his milkround.
One was injured, and sued the milkmans employer.
Held: The milkman had not gone so far outside the activities for which he was employed for the
employer to escape liability.
The servant was, of course, employed at the time of the accident to do a whole number of
operations. He was certainly not employed to give the boy a lift, and if one confines ones
analysis of the facts to the incident of injury to the plaintiff, then no doubt one would say that
carrying the boy on the float giving him a lift was not in the course of the servants
employment. After referring to Ilkiw. he was employed as a roundsman to drive his float round
his round and to deliver milk, to collect empties and to obtain payment. That was his job. . . He
chose to disregard the prohibition and to enlist the assistance of the plaintiff. As a matter of
common sense, that does seem to me to be a mode, albeit a prohibited mode, of doing the job
with which he was entrusted. Why was the plaintiff being carried on the float when the accident
occurred? Because it was necessary to take him from point to point so that he could assist in
delivering milk, collecting empties and, on occasions obtaining payment
Mattis v Pollock [2003]
A night club owner was vicariously liable for the damage sustained by the claimant at the hands
of a doorman employed by him even though the incident during which the claimant was injured
occurred outside the club. The doorman had been encouraged to perform his duties in an
aggressive and intimidatory manner, which included physical man-handling of customers and the
stabbing of the claimant represented the culmination of an unpleasant incident which had started
within the club, and could not fairly and justly be treated in isolation from earlier events, or as a
separate and distinct incident
Facts[edit]
Mr Cranston, an employee of Flamingos night club, in London, was employed as a bouncer to
keep order at the club's doors, and to break up scuffles and fights.[4] On 18 July 1998, an

incident occurred involving a customer, Mr Fitzgerald, and Mr Cranston, who threw a friend of
his across a room. It was submitted that Mr Pollock had given Mr Cranston instructions to
"impress upon Mr Fitzgerald that Mr Cranston was prepared to use physical force to ensure
compliance with any instructions that he might give to Mr Fitzgerald or any of his companions".
[5]
Subsequently, on 24 July, Mr Mattis was attending the club with a friend, Mr Cook. Mr Cranston
was instructed that Cook should be barred from the club, and was ejected. A week later, Mr
Mattis attended the club with other friends, at around 11:15pm. Mr Cook turned up with Mr
Fitzgerald, at around 1am, and upon seeing them, Mr Cranston violently assaulted Mr Cook and
one of his friends.[6] Upon witnessing this, Mr Mattis attempted to pull Cranston from Cook,
whereupon several other customers surrounded Cranston, who was forced to flee. Upon arriving
back at the club, he grabbed Mr Mattis, and stabbed him in the back.[7] As a result, Mr Mattis
was rendered paraplegic.
Judgment[edit]
The trial judge found the club's owner, Mr Pollock, was not liable for the stabbing of Mr Mattis.
This event was not part of one continuous string of events; as Mr Cranston had fled home,
leaving his duties, he was no longer within the course of his employment
Storey v. Ashton 1869
A driver took a different route to make a frolic of his own.
On this way he caused an accident because of his negligence.
No liability of the company.
Though this was just a little detour, the driver was carrying out his own business.