The claimant underwent a routine operation on his hand. The operation was incompetently performed, and made the claimant's condition much worse. He sued the health authority both in its own capacity, and as the employer of the medical staff involved under the principle of Vicarious Liability. The question arose whether there was a `master-servant' relationship between the health authority and the surgeon. it was suggested by the Health Authority that a surgeon was not the `servant' of his employer, and his contract was a `contract for services' and not a `contract of service'. The CA rejected the distinction, and decided that the heath authority in this case were the `masters' of people it employed on a routine basis, despite the professional nature of their duties.
Somervell LJ: Absence of control does not prevent their being “a contract of service” e.g. A ship owner does not control how a ship captain manages the sailors and yet the captain is a servant. It is impossible to give a precise definition of a “contract of service” and the test is really whether an ordinary person would recognise there to be one.
