(i) The servant agrees that, in consideration of a wage or other remuneration, he will provide his own work and skill in the performance of some service for his master. (ii) He agrees, expressly or impliedly, that in the performance of that service he will be subject to the other's control in a sufficient degree to make that other master. (iii) The other provisions of the contract are consistent with its being a contract of service."
As to (i): "There must be a wage or other remuneration. Otherwise there will be no consideration, and without consideration no contract of any kind. The servant must be obliged to provide his own work and skill. Freedom to do a job either by one's own hands or by another's is inconsistent with a contract of service, though a limited or occasional power of delegation may not be . . As to (ii). Control includes the power of deciding the thing to be done, the way in which it shall be done, the means to be employed in doing it, the time when and the place where it shall be done. All these aspects of control must be considered in deciding whether the right exists in a sufficient degree to make one party the master and the other his servant. The right need not be unrestricted." and
"'To find where the right resides one must look first to the express terms of the contract, and if they deal fully with the matter one may look no further. If the contract does not expressly provide which party shall have the right, the question must be answered in the ordinary way by implication.
The third and negative condition is for my purpose the important one, and I shall try with the help of five examples to explain what I mean by provisions inconsistent with the nature of a contract of service.
(i) A contract obliges one party to build for the other, providing at his own expense the necessary plant and materials. This is not a contract of service, even though the builder may be obliged to use his own labour only and to accept a high degree of control: it is a building contract. It is not a contract to serve another for a wage, but a contract to produce a thing (or a result) for a price.
(ii) A contract obliges one party to carry another's goods, providing at his own expense everything needed for performance. This is not a contract of service, even though the carrier may be obliged to drive the vehicle himself and to accept the other's control over his performance: it is a contract of carriage.
(iii) A contract obliges a labourer to work for a builder, providing some simple tools, and to accept the builder's control. Notwithstanding the obligation to provide the tools, the contract is one of service. That obligation is not inconsistent with the nature of a contract of service. It is not a sufficiently important matter to affect the substance of the contract.
(iv) A contract obliges one party to work for the other, accepting his control, and to provide his own transport. This is still a contract of service. The obligation to provide his own transport does not affect the substance. Transport in this example is incidental to the main purpose of the contract. Transport in the second example was the essential part of the performance.
(v) The same instrument provides that one party shall work for the other subject to the other's control, and also that he shall sell him his land.
An obligation to do work subject to the other party's control is a necessary, though not always a sufficient, condition of a contract of service. If the provisions of the contract as a whole are inconsistent with its being a contract of service, it will be some other kind of contract, and the person doing the work will not be a servant. The judge's task is to classify the contract (a task like that of distinguishing a contract of sale from one of work and labour). He may, in performing it, take into account other matters besides control.'
It is often easy to recognise a contract of service when you see it, but difficult to say wherein the difference lies. A ship's master, a chauffeur, and a reporter on the staff of a newspaper are all employed under a contract of service; but a ship's pilot, a taxi-man, and a newspaper contributor are employed under a contract for services. One feature which seems to run through the instances is that, under a contract of service, a man is employed as part of the business; whereas, under a contract for services, his work, although done for the business, is not integrated into it but is only accessory to it. Morris v
CW Martin & Sons Ltd 
Mrs Morris, the owner of a mink stole, sent her coat to a furrier in London, named Solomon Mark Beder. In a telephone exchange, Mr Beder stated that he did not do any cleaning himself, and that it was sub contracted to the D firm, CW Martins & Sons Ltd. They themselves were 'well-known', 'reputable' cleaners, and it was agreed that the fur coat would be sent to them. Upon collecting the fur coat, the D company did so under the terms of " . The Fur Dressers and Dyers Conditions of Trading, 1955" . ; while it was in their POS, it was lost. Mrs Morris sued CW Martins & Sons Ltd, claiming that they had not exercised reasonable care in maintaining the coat;
"Whenever there is an accident, the negligent driver must bear by far the greater share of responsibility. It was his negligence which caused the accident. It also was a prime cause of the whole of the damage. But in so far as the damage might have been avoided or lessened by wearing a seat belt, the injured person must bear some share. But how much should this be? Is it proper to inquire whether the driver was grossly negligent or only slightly negligent? or whether the failure to wear a seat belt was entirely inexcusable or almost forgivable? If such an inquiry could easily be undertaken, it might be as well to do it. In Davies v. Swan Motor Co. (Swansea) Ltd. the court said that consideration should be given not only to the causative potency of a particular factor, but also its blameworthiness. But we live in a practical world. In most of these cases the liability of the driver is admitted, the failure to wear a seat belt is admitted, the only question is: what damages should be payable? This question should not be prolonged by an expensive inquiry into the degree of blameworthiness on either side, which would be hotly disputed. Suffice it to assess a share of responsibility which will be just and equitable in the great majority of cases.
Sometimes the evidence will show that the failure made no difference. The damage would have been the same, even if a seat belt had been worn. In such case the damages should not be reduced at all. At other times the evidence will show that the failure made all the difference. The damage would have been prevented altogether if a seat belt had been worn. In such cases I would suggest that the damages should be reduced by 25 per cent. But often enough the evidence will only show that the failure made a considerable difference. Some injuries to the head, for instance, would have been a good deal less severe if a seat belt had been worn, but there would still have been some injury to the head. In such case I would suggest that the damages attributable to the failure to wear a seat belt should be reduced by 15 per cent."
plaintiff must 'share in the responsibility for the damage' for the Act to apply, and this involves consideration not only of the blameworthiness of each party but also of the relative importance of a plaintiff's acts in causing damage, apart from his blameworthiness. The court is concerned with the causative potency matters giving rise to the result of the accident, not just to the accident itself. The question as to what caused an accident must be determined as a properly instructed and reasonable jury would decide it, by applying common sense to the facts of each particular case.
Sellers J. reduced the damages by one half, holding both parties equally to blame. Normally one would not disturb such an award, but Sellers J. does not appear to have taken into account the fact that Stapley deliberately and culpably entered the stope. By doing so it appears to me that he contributed to the accident much more directly than Dale. The Act directs that the damages 'shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage' (section 1(1)). A court must deal broadly with the problem of apportionment and in considering what is just and equitable must have regard to the blameworthiness of each party, but 'the claimant's share in the responsibility for the damage' cannot, I think, be assessed without considering the relative importance of his acts in causing the damage apart from his blameworthiness. It may be that in this case Dale was not much less to blame than Stapley, but Stapley's conduct in entering the stope contributed more immediately to the accident than anything that Dale did or failed to do. I agree with your Lordships that in all the circumstances it is proper in this case to reduce the damages by 80% and to award 20%. of the damages to the appellant.
One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes it is proper to discard all but one and to regard that one as the sole cause, but in other cases it is proper to regard two or more as having jointly caused the accident. I doubt whether any test can be applied generally.
2 Extent of occupier's ordinary duty
(1)An occupier of premises owes the same duty, the "common duty of care", to all his visitors, except in so far as he is free to and does extend, restrict, modify or exclude his duty to any visitor or visitors by agreement or otherwise.
(2)The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.
(3)The circumstances relevant for the present purpose include the degree of care, and of want of care, which would ordinarily be looked for in such a visitor, so that (for example) in proper cases—
(a)an occupier must be prepared for children to be less careful than adults; and
(b)an occupier may expect that a person, in the exercise of his calling, will appreciate and guard against any special risks ordinarily incident to it, so far as the occupier leaves him free to do so.
(4)In determining whether the occupier of premises has discharged the common duty of care to a visitor, regard is to be had to all the circumstances, so that (for example)—
(a)where damage is caused to a visitor by a danger of which he had been warned by the occupier, the warning is not to be treated without more as absolving the occupier from liability, unless in all the circumstances it was enough to enable the visitor to be reasonably safe; and
(b)where damage is caused to a visitor by a danger due to the faulty execution of any work of construction, maintenance or repair by an independent contractor employed by the occupier, the occupier is not to be treated without more as answerable for the danger if in all the circumstances he had acted reasonably in entrusting the work to an independent contractor and had taken such steps (if any) as he reasonably ought in order to satisfy himself that the contractor was competent and that the work had been properly done.
(5)The common duty of care does not impose on an occupier any obligation to a visitor in respect of risks willingly accepted as his by the visitor (the question whether a risk was so accepted to be decided on the same principles as in other cases in which one person owes a duty of care to another).
11 The "reasonableness" test
.(1)In relation to a contract term, the requirement of reasonableness for the purposes of this Part of this Act, section 3 of the M6 Misrepresentation Act 1967 and section 3 of the M7 Misrepresentation Act (Northern Ireland) 1967 is that the term shall have been a fair and reasonable one to be included having regard to the circumstances which were, or ought reasonably to have been, known to or in the contemplation of the parties when the contract was made.
(2)ln determining for the purposes of section 6 or 7 above whether a contract term satisfies the requirement of reasonableness, regard shall be had in particular to the matters specified in Schedule 2 to this Act; but this subsection does not prevent the court or arbitrator from holding, in accordance with any rule of law, that a term which purports to exclude or restrict any relevant liability is not a term of the contract.
(3)In relation to a notice (not being a notice having contractual effect), the requirement of reasonableness under this Act is that it should be fair and reasonable to allow reliance on it, having regard to all the circumstances obtaining when the liability arose or (but for the notice) would have arisen.
(4)Where by reference to a contract term or notice a person seeks to restrict liability to a specified sum of money, and the question arises (under this or any other Act) whether the term or notice satisfies the requirement of reasonableness, regard shall be had in particular (but without prejudice to subsection (2) above in the case of contract terms) to—
(a)the resources which he could expect to be available to him for the purpose of meeting the liability should it arise; and
(b)how far it was open to him to cover himself by insurance.
(5)lt is for those claiming that a contract term or notice satisfies the requirement of reasonableness to show that it does.
appeal was allowed. The Claimant may have been aware of the danger of the job, but had not consented to the lack of care. He was therefore entitled to recover damages.
"In its application to questions between the employer and the employed, the maxim as now used generally imports that the workman had either expressly or by implication agreed to take upon himself the risks attendant upon the particular work which he was engaged to perform, and from which he has suffered injury. The question which has most frequently to be considered is not whether he voluntarily and rashly exposed himself to injury, but whether he agreed that, if injury should befall him, the risk was to be his and not his masters. When, as is commonly the case, his acceptance or non-acceptance of the risk is left to implication, the workman cannot reasonably be held to have undertaken it unless he knew of its existence, and appreciated or had the means of appreciating its danger. But assuming that he did so, I am unable to accede to the suggestion that the mere fact of his continuing at his work, with such knowledge and appreciation, will in every case necessarily imply his acceptance. Whether it will have that effect or not depends, in my opinion, to a considerable extent upon the nature of the risk, and the workman's connection with it, as well as upon other considerations which must vary according to the circumstances of each case."
defence of volenti was unsuccessful. Whilst it he may have been volens in relation to the risks inherent in Jalopy racing, he had not accepted the risk of the N construction of the ropes. However the D had successfully excluded liability
People go to race meetings to enjoy the sport. They like to see the competitors taking risks, but they do not like to take risks on themselves, even though it is a dangerous sport, they expect, and rightly expect, the organisers to erect proper barriers, to provide proper enclosures, and to do all that is reasonable to ensure their safety. If the organisers do everything that is reasonable, they are not liable if a racing car leaps the barriers and crashes into the crowd - see Hall v. Brooklands (1933) 1 K.B. 206. But, if the organisers fail to take reasonable precautions, they cannot excuse themselves from liability by invoking the doctrine of volenti non fit injuria: for the simple reason that the person injured or killed does not willingly accept the risks arising from their want of reasonable care
Lim Poh Choo v Camden and Islington Area Health Authority
The total of damages
submitted that an award of damages, being a " . jury question " . , must be fair to both sides, and that in a case such as the present a judge should bear in mind: - comparable cases, the effect of high awards upon the level of insurance premiums or, if, as here, the taxpayer foots the bill, upon the taxpayer, and the availability of care for the victim under the National Health Service, public policy.
awards must be fair. But this means no more than that they must be a proper compensation for the injury suffered and the loss sustained. Nor in this case do I find helpful a comparison of one total award with another. In so far as an award consists of " . conventional" . items, e.g. for pain and suffering, comparability with other awards is certainly of value in keeping the law consistent. But pecuniary loss depends on circumstances: and, where (as in the present case) such loss predominates, comparison with total awards in other cases does not help, and may be misleading.
principle of the law is that compensation should as nearly as possible put the party who has suffered in the same position as he would have been in if he had not sustained the wrong: (Lord Blackburn, Livingstone v. Rawyards Coal Co. (1880) 5 A.C.25 at p.39). There is no room here for considering the consequences of a high award upon the wrongdoer or those who finance him.
The attack, therefore, on the total of damages awarded as being excessive, merely by reason of its size, fails. If the appellants are to succeed, they must show that one or more of the component items of the award are wrong.
that the fact of unconsciousness does not eliminate the actuality of the deprivation of the ordinary experiences and amenities of life (see the formulation used by Lord Morris of Borth-y-Gest at p.349);
that, if damages are awarded upon a correct basis, it is of no concern to the court to consider any question as to the use that will thereafter be made of the money awarded.
draw a clear distinction between damages for pain and suffering and damages for loss of amenities. The former depend upon the plaintiff's personal awareness of pain, her capacity for suffering. But the latter are awarded for the fact of deprivation—a substantial loss, whether the plaintiff is aware of it or not. Secondly, they establish that the award in Benham v. Gambling  A.C.157 (assessment in fatal cases of damages for loss of expectation of life) is not to be compared with, and has no application to, damages to be awarded to a living plaintiff for loss of amenities.
Dr. Lim's loss of the amenities of her good and useful life is total." . Accordingly, I think Mr. Davies' attack upon this head of the award fails
substantial loss=> substantia award
As long, therefore as the sum awarded is a substantial sum in the context of current money values, the requirement of the law is met. A sum of £20,000 is, even today, a substantial sum. The judge cannot, therefore, be shown to have erred in principle, and his award must stand.
cases of overlap between heads of damage
Pearson Commission (7054-1 para.759) considers it wrong in principle to reduce the one by reason of the size of the other.
It is better described as a sensible rule of practice, a matter of common sense. Lump sum compensation cannot be a perfect compensation for the future. An attempt to build into it a protection against future inflation is seeking after a perfection which is beyond the inherent limitations of the system. While there is wisdom in Lord Reid's comment (Taylor v. O'Connor at p. 130) that it would be unrealistic to refuse to take inflation into account at all, the better course in the great majority of cases is to disregard it. And this for several reasons. First, it is pure speculation whether inflation will continue at present, or higher, rates, or even disappear. The only sure comment one may make upon any financial prediction is that it is as likely to be falsified as to be borne out by the event. Secondly, as Lord Pearson said in Taylor v. O'Connor, supra, at p.143, inflation is best left to be dealt with by investment policy. It is not unrealistic in modern social conditions, nor is it unjust, to assume that the recipient of a large capital sum by way of damages will take advice as to its investment and use. Thirdly, it is inherent in a system of compensation by way of a lump sum immediately payable, and, I would think, just, that the sum be calculated at current money values, leaving the recipient in the same position as others, who have to rely on capital for their support to face the future. The Court of Appeal, having referred to Donnelly v Joyce (1974) QB 454, concluded that 'where services are voluntarily rendered by a tortfeasor in caring for the plaintiff from motives of affection or duty they should, in our opinion, be regarded as in the same category as services rendered voluntarily by a third party, or charitable gifts, or insurance payments. They are adventitious benefits, which for policy reasons are not to be regarded as diminishing the plaintiff's loss.'
In Donnelly's case, the Court of Appeal said that the question from what source the plaintiff's nursing needs had been met, who paid the money or gave the services, or whether the plaintiff was under a legal or moral obligation to repay the provider, were, so far as the defendant and his liability were concerned, all irrelevant. The plaintiff's loss was 'the proper and reasonable cost of supplying those needs'.
His Lordship was not convinced. The basis of the plaintiff's claim for damages might consist in his need for services but the question from what source that need had been met was not irrelevant. If he was treated in hospital as a private patient, he was entitled to recover the cost; but if he received free treatment under the National Health Service, his need had been met without cost to him and he could not claim the cost of the treatment from the tortfeasor.
By concentrating on the plaintiff's need and loss as the basis of an award in respect of voluntary care received by him, the reasoning in Donnelly diverted attention from the award's central objective of compensating the voluntary carer. Once that was recognised it became evident that there could be no ground in public policy or otherwise for requiring the tortfeasor to pay to the plaintiff, in respect of the services which he himself had rendered, a sum of money which the plaintiff must then repay to him.