Is the tortfeasor an employee?

Yewen’s v Noakes - traditional employment

Established the control test:

• Employee = Someone whose employer controls the specific steps and methods of their tasks.

• Independent contractor = Someone who is hired for a result but maintains control over the method of performance.

Coggins & Griffiths (Mersey Docks and Harbour Board v Coggins & Griffith Ltd) - traditional employment

Refined control test from Yewens v Noakes:

• Hirers control: The hirers could only direct what was to be moved and where.

• General Employer's Control: The Board retained control over how the crane was operated and the technical manipulation of its controls

stevenson, Jordan & Harrison Ltd v MacDonald & Evans - traditional employment

The “Integration” test, better than control test for highly skilled professionals:

• Contract of Service (Employee): A person is employed as an integral part of the business.

• Contract for Services (Independent Contractor): The work is done for the business but remains accessory to it.

Ready Mixed Concrete v Minister for Pensions - traditional employment

Three part “Economic Reality Test”:

1. The employee agrees to provide work or skill in return for a wage

2. The employee expressly or impolitely accepts that the work will be subject to the control of the employer

3. All other considerations in the contract of employment rather than any other relationship - weigh up factors

Christian Brothers

Lord Philips’ 5 points:

1. Is ‘employer’ better placed to be able to compensate and could be expected to insure against such risk

2. Was tort committed during activity undertaken on behalf of employer/organisation

3. Is employee’s activity part of the business of the employer/organisation?

4. Is employer/organisation using the ‘employee’ created a risk?

5. Is ‘employee’ under control of employer/organisation to greater or lesser extent

Cox v MoJ

Not all 5 points of ‘Christian Brothers’ case needed - highlights 2-4 as most important:

1. Was tort committed during activity undertaken on behalf of employer/organisation

2. Is employee’s activity part of the business of the employer/organisation?

3. Is employer/organisation using the ‘employee’ created a risk?

Barclays v Various

Lady Hale uses the points from ‘Christian Brothers’ as a ‘guide’ not a test.