Vicarious Liability and Independent Contractors - A Re-Examination 53 Modern Law Review 1990

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53 Mod. L. Rev. 770 (1990)
Vicarious Liability and Independent Contractors - A Re-Examination

handle is hein.journals/modlr53 and id is 792 raw text is: 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.I 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 distribution,4 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 LI 34.
2 See, for example, Leighton op cit n 1.
3 D & F Estates Lid v Church Commissioners for England [1989] AC 177, 208.
4 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, Vicarious Liability (London:
Sweet and Maxwell, 1967) chapter 2 and Williams 'Vicarious Liability and the Master's Indemnity' (1957)
20 MLR 220.

770 The Modern Law Review 53:6 November 1990 0026-7961