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Liability for Independent Contractors

Published online by Cambridge University Press:  16 January 2009

Glanville Williams
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Extract

One of the most disturbing features of the law of tort in recent years is the way in which the courts have extended, seemingly without any reference to considerations of policy, the liability for independent contractors. An independent contractor may be defined for the present purpose as any person, other than a servant, who is employed to do work. The definition includes such diverse persons as a builder, a road construction engineer, an electrician, a dentist or doctor attending a private patient, a shoe-repairer, a launderer, a dressmaker, a barber, an airline company, a taxi-driver, a copy-typist, an advisory expert, and a charwoman if not a servant. But a vendor is clearly not a contractor for this purpose (so that if, for example, I order a particular type of gunpowder to be made for me as a purchaser, I am not to be regarded as an employer of an independent contractor, and will not be liable, if the seller's works blow up, under any of the heads of liability to be discussed presently). Similarly it is submitted that a landlord who covenants to repair is not an independent contractor for the tenant; hence such rules of liability for contractors as have been developed would not apply to the tenant. The landlord would be an independent contractor for the law of tort only if it were contemplated that he was to do the repairs himself or by his servants.

Type
Research Article
Information
The Cambridge Law Journal , Volume 14 , Issue 2 , November 1956 , pp. 180 - 198
Copyright
Copyright © Cambridge Law Journal and Contributors 1956

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References

1 The Pass of Ballater [1942] P. 112.Google Scholar

2 Woodward v. Mayor of Hastings [1945]Google Scholar 1 K.B. 174 (C.A.).

3 See also Hobson v. Bartram & Sons, Ltd. [1950]Google Scholar 1 All E.R. 412 (C.A.) (purchaser of ship who is on board during test is not a contractor for whose act vendor is liable).

4 (1881) 6 App.Cas. 740 at 829.

5 Lord Watson's words were: “When an employer contracts for the performance of work, which properly conducted can occasion no risk to his neighbour's house which he is under obligation to support, he is not liable for damage arising from the negligence of the contractor. But in cases where the work is necessarily attended with risk, he cannot free himself from liability by binding the contractor to take effectual precautions”: 6 App.Cas. at 831. It will be seen on close scrutiny that this passage points a false opposition. The fallacious mode of statement goes back to the judgment of Cockburn C.J. in Bower v. Peate (1876)Google Scholar 1 Q.B.D. 321 at 326: “There is an obvious difference between committing work to a contractor to be executed from which, if properly done, no injurious consequences can arise, and handing over to him work to be done from which mischievous consequences will arise unless preventive measures are adopted.”

6 10 C.B.(N.S.) 470.

7 See Stennett v. Hancock [1939] 2 All E.R. 578.Google Scholar

8 Cf. Clelland v. Lloyd Ltd. [1938] 1 K.B. at 276Google Scholar (C.A.); Canter v. Gardner & Co. [1940] 1 All E.R. 325.Google ScholarWoodward v. Mayor of Hastings [1945] 1 K.B. 174Google Scholar (C.A.) may be explained on the ground that the “contractor” there was a menial servant who needed responsible supervision; in any case the liability of an occupier, there considered, has since been extended to embrace vicarious responsibility for contractors.

9 [1932] A.C. 562.

10 Of course, the language of delegable and nondelegable duties is merely one way of referring to duties in respect of which there is not or is liability for an independent contractor engaged to perform them. Strictly speaking, no duty in tort is delegable; the point about the duty under Donoghue v. Stevenson is not that the duty can be delegated but that its performance can be delegated in such a way that the person under the duty is not responsible for a default in performance. In short. he performs his duty by delegating it to an apparently proper contractor.

11 Phillips v. Britannia, etc., Co. [1923] 1 K.B. 539, affd. [1923] 2 K.B. 832Google Scholar (C.A.); Malfroot v. Noxal (1935) 51 T.L.R. 551Google Scholar; Stennett v. Hancock [1939] 2 All E.R. 578Google Scholar; Herschtal v. Stewart & Ardern [1940] 1 K.B. 155Google Scholar: cf. Haseldine v. Daw [1941] 2 K.B. 343Google Scholar (C.A.).

12 Cassidy v. Ministry of Health [1951] 2 K.B. 343Google Scholar (C.A.).

13 [1955] 2 W.L.R. 479 at 482, 491.

14 (1956) 72 L.Q.R. 522.

15 Cf. Mulready v. J. H. & W. Bell, Ltd. [1953] 2 Q.B. 117Google Scholar (C.A.). Strict liability naturally involves liability for contractors, but the converse is not true. Where a defendant is only liable for an independent contractor, and the case is not one of strict liability, the defendant will go quit if the contractor was not negligent: Canter v. Gardner & Co. [1940] 1 All E.R. 325.Google Scholar

16 [1896] 1 Q.B. 335 (C.A.).

17 See per A. L. Smith L.J. at p. 346, quoting Lord Watson's dictum in Dalton v. Angus, cited previously.

18 [1950] 2 All E.R. 793.

19 [1934] 1 K.B. 191 (C.A.); cf. The Pass of Ballater [1942] 2 K.B. 102.Google Scholar

20 It should be said that no hardship was caused by the decision on the actual facts. The employer of the contractor had paid the damages to the owner of the theatre and sought an indemnity against the contractor, which the court gave him. It would have been sufficient for the decision to say merely that the plaintiff having paid by way of reasonable compromise was entitled to the indemnity, the contractor clearly being liable to the owner of the theatre. As the case was decided, however, it becomes an authority for the proposition that the employer of the contractor is liable for him where the contractor is insolvent, so that the right of indemnity is worthless.

21 Matania v. Nat. Prov. Bank, Ltd. [1936] 2 All E.R. 633Google Scholar; Spicer v. Smee [1946] 1 All E.R. 489.Google Scholar The principle may explain the controverted decision in Tarry v. Ashton (1876) 1 Q.B.D. 314Google Scholar, which, though a case of a danger in the highway, was one where the danger was not created but “permitted.”

22 Haseldine v. Daw & Son, Ltd. [1941] 2 K.B. 343Google Scholar (C.A.). Cf. Woodward v. Mayor of Hastings [1945] 1 K.B. 174Google Scholar (C.A.). The contrary decision in Grote v. Chester and Holyhead Ry. (1848) 2 Ex. 251Google Scholar had dropped out of legal currency.

23 The case was first reported in (1941) 71 Ll.L.R. 1, where it attracted no attention; it was later rediscovered in the Lords Journal by Mr. Heuston in preparing the 11th edition of Salmond on Torts, and consequently reported in [1953] 2 All E.R. 1185 and [1956] 1 W.L.R. 103.

24 (1941) 57 L.Q.R. 306.

25 Third Report (Cmd. 9305 of 1955), p. 14.

26 [1952] 2 All E.R. 418.

27 L.R. 5 Q.B. at 510.

28 e.g., Buckland v. Guildford Gas Light & Coke Co. [1949] 1 K.B. 410Google Scholar; Davis v. St. Mary's Demolition, etc. Co., Ltd. [1954] 1 W.L.R. 592.Google Scholar The decision contra in Ball v. L.C.C. [1949] 2 K.B. 159Google Scholar (C.A.) is unlikely to control the future course of decisions; see Riden v. Billings & Sons, Ltd. [1956] 3 W.L.R. 704.Google Scholar

29 Read v. J. Lyons & Co., Ltd. [1947] A.C. 156.Google Scholar

30 Morgan v. Girls' Friendly Society [1949] 1 All E.R. 404Google Scholar; Haseldine v. Daw, above. But it probably extends in favour of the occupier's “contractees.”

31 The above statement represents the majority view in Wilsons & Clyde Coal Co. v. English [1938] A.C. 57. But Lord Macmillan, at p. 75, regarded the master's liability as vicarious. His opinion must now be taken subject to the remarks in the Staveley case, below.Google Scholar

32 [1938] A.C. 57 at 78. The first of Lord Wright's two statements was reaffirmed in Rands v. McNeil [1955] 1 Q.B. 253 (C.A.).Google Scholar

33 Paine v. Colne Valley Electricity Supply Co., Ltd. [1938] 4 All E.R. 803 at 807.Google Scholar Yet see Szumczyk v. Associated Tunnelling Co., Ltd. [1956] 1 W.L.R. 98.Google Scholar from which it appears that the master may not be liable if he has reasonably relied on the advice of an expert.

34 Staveley Iron & Chemical Co., Ltd. v. Jones [1956] 2 W.L.R. 479 at 482, 491.Google Scholar

35 e.g., in the Staveley Case [1956] 2 W.L.R. at 491.Google Scholar

36 [1921] 2 A.C. 465 at 477, 490.

37 [1899] 2 Q.B. 72 (C.A.).

38 Essays in Jurisprudence and Ethics 129.

39 (1934) 50 L.Q.R. 71. Winfield, Text Book, calls it “admirable” (6th ed. 168). For the same point of view see Douglas in (1929) 38 Yale L.J. 584.

40 (1942) 6 M.L.R. 84.

41 The argument from choice applies partly to contractors, because the employer can choose the contractor, and frequently the contractor's servants also. The argument from control partly applies, because there may be considerable control of a contractor. The argument from power to dismiss partly applies, because the employer may have power to dismiss the contractor, and even the contractor's servants. See Holmes in 5 H.L.R. 15.

42 Cf. Pollock and Maitland, 2nd ed. ii 533: “Should we nowadays hold masters answerable for the uncommanded torts of their servants if normally servants were able to pay for the damage that they do?”

43 [1932] A.C. 562.

44 Above, note 28.

45 (1923) 23 Col.L.Rev. 444 at 461.

46 (1929) 38 Yale L.J. 584 at 594 et seq.

47 Reedie v. L. & N.W.R. (1849) 4 Exch. 244.Google Scholar

48 (1934) 29 Ill.L.Rev. 339, in effect expanding an argument suggested in (1916) 29 H.L.R. 808–810. See also Fleming James, Jnr., in (1954) 28 Tul.L.Rev. at 193 et seq.