Law cap this Friday Flashcards
Vicarious liability introduction/ definition
- The D may be liable for the tortfeasors actions under vicarious liability
-Vicarious liability is where the employer (the D) is liable for the negligence of employees (the tortfeasor). Two conditions must be proved as clarified in (Trustees of Barry’s congregation vs BXB).
Vicarious liability stage 1 part 1- obvious cases
- Stage one asks whether the worker is an employee or an independent contractor. For obvious cases, we use the multiple test:
Ready mix concrete vs Minister of pensions- held the following factors were important when establishing who is an IC or an employee:
1- Whether a wage, national insurance, and tax is being payed
2- who provides tools/ equipment?
3- whether the worker has to obey orders
4- The exercise of control over how work is done
5- the acceptance of any business risk.
6- The power to hire/ fire replacements
Vicarious liability stage 1 part 2- less obvious instances
For times when it is not obvious, we use the akin to employment test established in Christian Brothers:
1- The employer is more likely to have insurance/ be able to compensate the victim
2- The act is committed by the employee on behalf of the employer.
3- The employees activity is likely to be part of the business activity of the employer
4- The employer by employing the employee created the risk of the act being committed
5- The employee will have been under the control of the employer
- or they are an IC, and the employer will not be liable
Vicarious liability stage 2 introduction/ summary
- Secondly, we need to question, “Whether the employees acts were so closely connected with acts the employee was authorised to do that, it may fairly and properly be regarded as being done in the ordinary course of their employment.” (Morrisons vs Various claimants)
- Explain and apply all relevant factors as to whether they were or were not acting within the course of their employment
-Consider side rules
Vicarious Stage 2- when will employer be liable?
An employer will still be liable even if the employee was:
1- Acting excessively (Vasey)
2- Negligently (Centuries Insurance)
3- In an unauthorised way (Rose v Plenty)
4- Criminal act (Morrisons vs Mohamud)
5- abused students (Lister vs Hesley hall)
- Note- if the abuse is towards an adult, it is for the courts to carefully consider on the facts, the extent of the connection between the wrongful act and the acts that the tortfeasor was authorised to do (Trustee’s of Barry congregation vs BXB)
Vicarious stage 2- when will an employer not be liable
- An employer will not be liable if the employee was:
1- Doing something completely unrelated to their job (Heasemans vs Clarity cleaning)
2- Committing a frolic of their own (Storey vs Ashton)
3- Personal vendetta (Morrisons vs various claimants)
4- Abuse to colleague/ adult, outside of work (Trustees of Barry congregation vs BXB)
Vicarious stage 2 side rule
- Travelling to and from work- employer will usually not be liable unless expenses are being payed (Smith vs Stages)
Name the stages of negligence
Negligence has a three stage test:
- Did the D owe a duty of care?
- Was this duty breached?
- Did the breach cause damage to the C?
Stage 1 of negligence
-Firstly it must be proved that the D owes the C a duty of care.
- Donoghue vs Stevenson established the test for Duty of Care through the neighbour principle, you will owe your neighbour a duty to your neighbour in law- which means you owe a duty to anyone affected by your actions.
-This is updated in the case of Robinson vs CCWY. This stated when there is an obvious relationship, then it is fair just and reasonable to establish this duty.
Full test for negligence stage 1- when duty is not obvious
- In a novel situation, the Caparo test must be used.
1- Was the loss reasonably foreseeable (Kent vs Griffiths)
2- Was there a relationship of close proximity between the D and C (Bourhill vs Young)
3- Is it fair, just, and reasonable to impose the duty (Hill vs Chief constable of West Yorkshire Police)
Stage 2 negligence introduction (Part 1)
- The D must have breached their duty of care to the C.
- This is an objective test. Alderson B in (Blyth vs Birmingham Waterworks) defined a breach as, “Doing something that a reasonable man would not do or not doing something that the reasonable man would do”.
-Therefore, the defendant will be in breach if they did not act reasonably.
Negligence stage 2- Standards of care (Part 2)
- Expert/ special skill= Judged by the standards of another reasonably competent professional (Bolam vs Bolitho)
- Inexperienced/ Learner= Judged by the standards of someone experienced and competent (Nettleship vs Weston)
-Children= Judged by the standards of another reasonably competent professional (Mullins vs Richards)
-If D does not fall into any category= Judged to the standard of another reasonable man performing the same task (Vaughan vs Menlove)
Negligence stage 2- risk factors (Part 3)
- Risk factors lower or raise the standard of care required by the defendant. There are three types:
1- Probability of Harm= needs to take precaution against bigger risks, or those that happen more frequently (Bolton vs Stone)
2- Seriousness/ Magnitude of the risk= More serious the risk, more precaution needs to be taken (Paris vs Stepney Council)
3- Cost/ Practicality of taking precaution (Latimer) - Side rule= Benefits of the risk (Watt vs Hertfordshire council)
- Conclude stage 2
Negligence stage three part 1
-Factual causation asks was the D the cause of the damage in fact, so apply the “but for” test
- “But for the D’s actions, would the damage have occurred anyway ? (Barnett vs Chelsea Hospital )
Negligence stage 3 part 2
- Legal causation- relates to the remoteness of the damage, meaning whether the damage to the C was reasonably foreseeable or was it too remote. If the damage was unforeseeable, then it my be too remote for the D to be the cause in law (Wagon Mound No1)
- Side rule- D need not predict the precise way in which the injury was caused so long as injury of the same type was foreseeable (Hughes vs Lord Advocate)
Negligence stage 3 part 3
- There must be no intervening acts which break the chain of causation.
- Thin skull rule- (Robinson v Post office/ Smith vs Leech Brain Co): The D must take his victim/ claimant as he finds them.
Negligence risk factor 1
Probability of harm- More care would need to be taken if there is a higher probability of harm. The reasonable man does not need to take precautions against smaller risks, but does against bigger risks, or risks that are more likely to happen (Bolton vs Stone)
Negligence risk factor 2
Seriousness/ magnitude of the risk- The court needs to consider how serious the injury could potentially be, the bigger the risk of a serious injury, then the more care that needs to be taken (Paris vs Stepney Council)
Negligence risk factor 3
The cost and practicality of the precautions. If the cost of taking precautions to eliminate the risk is too great, the D may not be in breach of duty (Latimer)
- Side rule= possible benefits to the risk(Watt vs Hertfordshire council)
