Vicarious Liability and Independent Contractors — A Re‐examination
| Author | Ewan McKendrick |
| DOI | http://doi.org/10.1111/j.1468-2230.1990.tb01840.x |
| Date | 01 November 1990 |
| Published date | 01 November 1990 |
Vicarious Liability and Independent Contractors
-
A
Re-examination
Ewan
McKendrick”
Introduction
The Labour market in Britain is presently undergoing significant structural change. The
principal change is a rapid increase in new, flexible forms and patterns of work which
depart radically from the standard employment relationship whereby
an
employee works
regularly (that is, full-time) and consistently for his employer under a contract of
employment. This new flexible, ‘atypical’ workforce consists largely of the self-employed,
part-time workers, casual workers, ‘temps,’ homeworkers and those working on government
training schemes.’ The rise of this workforce has been well documented by labour
lawyers2 but
so
far it has largely escaped the attention of tort lawyers. Yet the emergence
of a large ‘atypical’ workforce is an event of great importance for the law of tort.
The primary significance for tort lawyers lies in the fact that, owing to the flexibility,
lack of continuity and irregularity of their work, many atypical workers are either unable
or have great difficulty in establishing that they are employees employed under a contract
of
employment. If they are not employees then, presumably, they are outside the scope
of the doctrine of vicarious liability. And if they are independent contractors then, as Lord
Bridge recently stated, it is3:
trite law that the employer
of
an independent contractor
is,
in
general, not liable
for
the negligence
or other torts committed by the contractor
in
the course
of
the execution
of
the work.
Yet will the courts actually hold that these atypical workers are independent contractors
for whose torts
the
employer is not liable? If they do, will that not undermine the social
purposes, such as loss di~tribution,~ which have hitherto been furthered by the doctrine
of vicarious liability? On the other hand, if the courts are to conclude that employers are
liable for the torts of such workers how can they achieve this goal? Can the doctrine of
vicarious liability be adapted in order to encompass this new workforce or will the courts
have to create new forms of primary liability?
The aim of this paper
is
to subject these issues to analysis. We shall begin our analysis
by considering the recent changes in the structure of the labour market and then discuss
their implications for the doctrine
of
vicarious liability and for the liability which
an
employer
may incur for the torts of his independent contractors.
~~
*Lecturer in Law, London School of Economics and Political Science.
I
would like
to
thank Professor Carol
Harlow and Simon Deakin for their helpful comments on earlier drafts of this article.
I,
of course, remain
responsible for any defects which remain.
1
See
the
useful account by Leighton ‘Marginal Workers’ in Lewis (ed),
Labour Law
in
Britain
(Oxford:
Blackwell,
1986)
and Leighton, ‘New
Forms
and Aspects of Atypical Employment Relationships’
(1986)
8
Comparative Labor
LJ
34.
See, for example, Leighton
op
cit
n
1.
D
&
F
Estates
Ltd
v
Church
Commissioners
for
England
119891
AC
177, 208.
A detailed consideration
of
the justifications for the existence of the doctrine of vicarious liability is beyond
the scope of this article. For further discussion of this issue see Atiyah,
Vicun’ous
Liubiliry
(London:
Sweet and Maxwell,
1967)
chapter
2
and Williams ‘Vicarious Liability and the Master’s Indemnity’
(1957)
20
MLR
220.
2
3
4
770
The Modem
Law
Review
53:6
November
1990
0026-7961
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