2.2 Tort Defences and Vicarious Liability

Question 1

What is the defence of contributory negligence?

Answer 1

Partial defence - the claimant’s injuries have been caused partly by D’s negligence and partly by C’s own carelessness.

Question 2

How is contributory negligence determined?

Answer 2

1. Carelessness on the claimant’s part
2. Carelessness contributed to the claimant’s damage

Test: C has failed to take reasonable care for his own safety. Behaviour measured against ordinary reasonable person in the circumstances.

Question 3

What is the defence of illegality?

Answer 3

‘No action arises from a disgraceful cause’. It would be contrary to public policy to allow C a remedy.

There must be a very close connection between the illegal activity of C and the injury which he suffers.

Question 4

What is the defence of ‘volenti no fit injuria’ - the voluntary assumption of risk?

Answer 4

1) C had full knowledge of the nature and extent of the risk; and

2) C willingly consented to accept the risk of being injured to D’s negligence

N.B: Knowledge of consent is not sufficient to imply consent to the risk.

Question 5

What is meant by an employer’s non-delegable duty?

Answer 5

An employer cannot escape liability for the negligent performance of its duty by delegating its performance to someone else (e.g independent contractor, one of its own employees)

Question 6

What does the employer’s common law non-delegable duty comprise of?

Answer 6

The employer taking reasonable steps to provide four separate duties:
1. Safe system of work and supervision
2. Safe place of work
3. Competent staff
4. Adequate plant and equipment (material)

Question 7

When will an employer be in breach of its duty?

Answer 7

The employer would have failed to meet the standard of care expected of a reasonable employer in its position.

The court will assess the S of C expected by looking at the circumstances of the case (magnitude of the foreseeable risk, cost and practicality of precautions)

Question 8

If there is a breach in the employer’s duty of care, what else must be established?

Answer 8

The issues of:
- causation
- novus actus interveniens
- remoteness
(applying the usual tests)

Question 9

What are the main defences that can be raised by an employer?

Answer 9

Volenti non fit injuria (consent) and contributory negligence

Question 10

What is meant by vicarious liability?

Answer 10

The liability of one person for torts committed by another.

Question 11

When is an employer vicariously liable for an employee?

Answer 11

An employer is liable for the tort of an employee committed in the course of his employment.

C can sue either the employer (as vicariously liable) or the employee (as primarily liable) or both of them (as jointly liable)

Question 12

What are the conditions for establishing an employer as vicariously liable?

Answer 12

1. [Employee] Worker must be an employee or in a relationship akin to employment (employee)
2. [Tort committed] Worker must have committed a tort (tort committed)
3. [Course of employment] Tort must have been committed in the course of the worker’s employment (course of employment)

Question 13

What instances for tort could occur in the course of employment?

Answer 13

An employer will be vicariously liable for:

a) wrongful acts which it has authorised;

b) wrongful and unauthorised modes of carrying out an authorised act (Rose v Plenty)

Question 14

What is meant by being ‘on a frolic of his own’?

Answer 14

The employee is acting outside his course of employment when he commits a tort. This involves two issues: 1) geographical divergence and 2) departure from the task set