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Vicarious liability 263

These two Court of Appeal cases do not disagree with each other. There were important
differences which enabled the court in Massey vCrown Life Insurance Coto distinguish
Ferguson vJohn Dawson Ltd. First, Massey had asked to become an independent con-
tractor, whereas Ferguson had little choice but to be called an independent contractor.
Second, Ferguson was unskilled, whereas Massey was skilled. Third, Ferguson’s claim
was for personal injury and in such cases the courts are more willing to find employment
because they want to make sure that workers are compensated for their injuries.
The status of agency workers has recently caused difficulty.

Ferguson vJohn Dawson Ltd (1976) (Court of Appeal)

The claimant was paid an hourly rate for working as a casual labourer on the defendants’

building site. The claimant was told that no cards were required because he was an inde-

pendent contractor. No tax or national insurance was deducted from the claimant’s pay

because the work was ‘off the cards’. The claimant did what the foreman told him and tools

were provided for him. The claimant was injured at work and wanted to sue the defendants.

This would only have been possible if he was an employee.

HeldThe terms of the contract indicated that the claimant was an employee. This intention

could be found by looking at all of the circumstances.

Massey vCrown Life Insurance Co (1978) (Court of Appeal)

From 1971 to 1973 the claimant was an employee of the defendant insurance company,

working as branch manager. In 1973, for tax purposes, he and the employer agreed that he

should work exactly as before but on a self-employed basis. When the defendant ended

the relationship in 1975, the claimant claimed unfair dismissal (see Chapter 13 at p. 366).

This claim could only succeed if the claimant was an employee.

HeldThe claimant was an independent contractor and so he could not claim unfair

dismissal. The parties had genuinely intended that the claimant should become an inde-

pendent contractor.

Johnson Underwood Ltd vMontgomery (2001) (Court of Appeal)

The claimant was registered with the defendants’ employment agency. The defendants

sent the claimant to a local firm where she worked as a telephonist for two and a half years.

The defendants paid the claimant’s wages. The local firm asked the defendants to get rid

of the claimant as they were dissatisfied with her. The defendants therefore withdrew the

claimant from the local firm and sent her to work for a different firm. The claimant refused

to accept this and sued both the defendants and the firm where she had worked for unfair

dismissal.

HeldNeither of the claims succeeded. The claimant was clearly not an employee of the

firm where she had worked. Nor was she an employee of the defendants, because the

defendants had no control over her work.

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