Who Is a Servant

In one line

A servant works under a contract of service and is subject to the employer's control; an independent contractor works under a contract for services and decides how the work is done.

In the wording a student can write in an exam: a servant is a person employed by another to do work under a contract of service, in which the employer has the right to control not only what work is done but the manner of doing it, while an independent contractor works under a contract for services and is bound only to produce a result, choosing the method himself; the traditional test is the control test, which is supplemented by the organisation or integration test and by the modern multiple test, and the distinction matters because a master is liable for the torts of his servant in the course of employment while an employer is ordinarily not liable for the torts of an independent contractor.

The three tests

1. The control test. Does the employer have the right to control not merely what is done but how it is done? This works well for a driver or a factory hand and badly for a surgeon or a pilot, whom no hospital or airline can tell how to operate or to fly.

2. The organisation or integration test. Is the work done as an integral part of the business, or is it merely accessory to it? A staff surgeon is part of the hospital; a visiting consultant who brings his own team may not be.

3. The multiple test. The modern approach weighs everything: who provides the tools and premises, who bears the financial risk, how payment is made, whether the person may work for others, whether he may send a substitute, and the description the parties themselves give. No single factor decides.

Say in an answer that the control test survives as the starting point and that the courts now look at the whole relationship, because that is the accurate position and it is what a good answer shows.

Why the distinction matters

A master is liable for a servant's tort committed in the course of employment. An employer is ordinarily not liable for the tort of an independent contractor, subject to the exceptions in chapter [Liability for an Independent Contractor].

The lent servant, and the presumption about vehicles

Where A's servant is lent to B, the question is who had the right to control the manner of doing the work at the moment of the tort. The burden of shifting liability from the general employer to the temporary one is heavy, and it is not discharged merely by showing that the temporary employer told the servant what to do.