A reservation of a right to direct or superintend the performance of the task cannot transform into a contract of service what in essence is an independent contract.
A statutory duty to maintain the highway could not be delegated to independent traders.
Lindley LJ identified an innominate class of cases in which an employer will be held liable for the negligence of an independent contractor engaged to perform what is conceived to be a duty owed by the employer to another: ‘It is not always easy to avoid mistakes in applying this, or indeed any other, principle to difficult cases, as is shewn by Gray v Pullen [25] and Butler v Hunter.[26] The latter case is inconsistent with Bower v Peate and Quarman v Burnett, the well-known job-master’s case. I will take the law, however, as it was laid down by Lord Blackburn in Dalton v Angus. Lord Blackburn there said: ‘Ever since Quarman v Burnett it has been considered settled law that one employing another is not liable for his collateral negligence, unless the relation of master and servant existed between them. So that a person employing a contractor to do work is not liable for the negligence of that contractor or his servants. On the other hand, a person causing something to be done, the doing of which casts on him a duty, cannot escape from the responsibility attaching on him of seeing that duty performed by delegating it to a contractor. He may bargain with the contractor that he shall perform the duty, and stipulate for an indemnity from him if it is not performed, but he cannot thereby relieve himself from liability to those injured by the failure to perform it…’ Lord Blackburn in this passage contrasts a contractor’s negligence, which he calls ‘collateral’ with failure on the part of a contractor to perform the duty of his employer. For the first the employer is not liable; for the second he is, whether the failure is attributable to negligence or not. Lord Blackburn’s language in Hughes v Percival shews that this is really what he meant, for he points out that the employer’s duty was to see that his contractor did his work properly. Lord Watson said the same thing.’
Judges:
Lindley, A L Smith LJJ
Citations:
(1896) 65 LJQB 363, (1896) 74 LT 69, [1896] 1 QB 335
Cited by:
Cited – Ready Mixed Concrete Southeast Ltd v Minister of Pensions and National Insurance QBD 8-Dec-1967
Contracts of service or for services
In three cases appeals were heard against a finding as to whether a worker was entitled to have his employer pay National Insurance contributions on his behalf which would apply if he were an employee. He worked as an ‘owner-driver’
Held: The . .
Lists of cited by and citing cases may be incomplete.
Employment
Updated: 18 May 2022; Ref: scu.567823
