Date: Thu, 2 Feb 2006 12:00:01 -0500

From: Jason Neyers

Subject: Hawley v. Luminar Leisure

Colleagues:

I just read Hawley v. Luminar Leisure (brought to our attention by Andrew Dickinson) which, attempts to apply Viasystems. As was noted by Andrew, the court found in favour of the imposition of vicarious liability solely upon the owner of a nightclub, the temporary employer of a nightclub bouncer who assaulted the claimant, rather than for dual vicarious liability.

I have to say that the courts attempted application of the reasoning in Viasystems seems off to me (see [82-85]). If the test employed from Viasystems is May LJ’s test “who is entitled to control” I have difficulty understanding how the foreman provided by the general employer is not a person who is “entitled” to control. Likewise, if the test employed is Rix LJ’s “organizational test” I fail to see how lending out a temporary employee is not also an integral part of a temp service’s business.

Cheers,

--
Jason Neyers
January Term Director
Assistant Professor of Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435

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