ESU-Essex Court Chambers National Mooting Competition

Quarter Final Problem, 2002-2003

In the Court of Appeal (Civil Division)
Allen v. Fields

Mrs Fields is the owner of a public house, the County Arms, situated in a small village in Berkshire. She hired Mr King, a retired plumber. Mr King advertised his services in the local newspaper, stating that he was “a retired plumber of 20 years’ experience and available for small jobs at reasonable rates.” Mrs Fields showed Mr King where the leak was located and left the property leaving him to carry out the repairs. In carrying out the repairs to the pipes Mr king used faulty equipment that he had brought along, which caused a fire that spread onto the neighbouring premises, destroying Mr Allen’s greenhouse and many of the plants and flowers in his garden. Mr Allen brought an action for damages against Mrs Young.

At first instance, Smiley J. held that Mrs Fields was liable in damages, whether in nuisance or in negligence. As for the claim in nuisance, he held that as a general rule, the owner of property from where the nuisance emanates owes a non-delegable duty to his neighbour; as a result Mrs Fields was directly liable for the damage caused by Mr. King. Even if he was wrong on this point, Smiley J held that Mrs Fields was vicariously liable for the negligence of Mr King. Smiley J considered that on the basis of the indications provided by the Court of Appeal in Lane v. Shire Roofing Company (Oxford) Ltd. [1995] IRLR 493, Mr King should be considered, for the purposes of the tort of negligence, as an employee of Mrs Fields. This is because the question should be considered as a matter of policy and in the context of the current employment situation whereby casual workers like Mr King should not be labelled as independent contractors. Consequently, as Mr King’s negligence was in the course of employment, Mrs Fields was vicariously liable for the damage caused by his actions.

Mrs Fields appeals to the Court of Appeal on the following grounds:

  1. As to the claim in nuisance, Smiley J was in error when holding that landowners owe a general, non-delegable duty to their neighbours. The true view is that the landowner is only responsible if he authorises a nuisance or if he adopts or continues a nuisance which he knows originates from his land.

  2. As to the claim in negligence, Smiley J was in error in finding that Mr King could be considered as an employee. The authority relied on by His Lordship did not support such a wide principle for it would render the distinction between employee and independent contractor meaningless. The true test to determine of a person is an employee or an independent contractor is not based on policy considerations but on whether Mrs Young controlled Mr King’s actions, and this was not so: he was a skilled worker who used his own tools and carried out the work using his judgment.


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