LIABILITY CASES

Question 1

WOODHEAD v GARTNESS MINERAL CO (*)

Answer 1

Culpa Tenet Suos Auctores (fault binds its authors)- principle behind strict liability

Question 2

Consumer Protection Act 1987 s2

Answer 2

Specific application of strict liability

Question 3

Animals (s) Act 1987 s1

Answer 3

Specific application of strict liability

Question 4

Anderson v St Andrews Ambulance Service (*)

Answer 4

FACTS: car and ambulance collide. Passenger in ambulance injured. Both at fault.
POL: “Must bear the loss equally between them.”- Lord Stevenson.
Use: Joint and several liability example. Use to distinguish with several liability

Question 5

Hook v Mccallum (*)

Answer 5

FACTS: Maid. Separate issues. Firstly wife calls thief then husband calls later on and in an argument also calls a thief. Tried to bring claim against them both. Not joint as two distinct incidents.
POL: “without any allegation of conspiracy between the two.”- LORD JUSTICE-C;ERL
Use: Several liability- distinguish from joint and several .

Question 6

Erskine 3.1.15 (joint and several liability)

Answer 6

“each of them may be sued for the whole damage”… “an obligation founded solely upon damage cannot possibly continue after the damage ceaseth exist.”

Question 7

Steven v Broady Norman & Co.(***)

Answer 7

FACTS: Traffic accident, individual fled. Awarded compensation in absence. Found out later it was a company car. Can sue the company in their absence.
POL: “A litigant is entitled to sue, and to keep on suing, until he has obtained satisfaction for his wrong.” Lord Anderson.
- Joint and several liability, victim can sue until she gets full compensation

Question 8

Balfour v Baird (*)

Answer 8

FACTS: Illness from work through dust in lungs. Legal action against one employer and won. Tried to sue another later. Previous action was full harm so no.
POL: “it is beyond dispute, ut sit finis litium, that is in the case of single defender damages must be claimed once and for all. A pursuer must conclude for the whole loss which he expects to suffer and hopes to recover.” - LORD JUSTICE-CLERK THOMSON

Question 9

LAW REFORM (MISC. PROVS.) (SC.) ACT 1990, S3(2) (*)

Answer 9

“he shall be entitled to recover from any other person who, if sued, might also have been held liable in respect of the loss or damage on which the action was founded… as the court may deem just.” RIGHT OF RELIEF.

Question 10

NCB v Thomson (*)

Answer 10

FACTS: Collision between two vehicles. Passenger in one car hurt. NCB (company owning one car) agreed to settle out of court. Tried to exercise right of relief. Not possible.
POL: need some instrument (e.g. an agreement with the other party or a court exchange) constituting the debt as a pre-requisite before right of relief- LORD JUSTICE CLERK THOMSON.

Question 11

FARSTAD v ENVIROCO

Answer 11

FACTS: Ship on contract 2 parties. 1 company hires Enviroco to clean. Accidentally set fire. Farstad claim and win. Cleaners think other company who hired should be joint. Company actually had a separate contract excluding liability through an indemnity clause. Fair as they could have enquired before taking job.
POL: Pre existing contract between parties can act as a defence to the operation of right of relief.

Question 12

LISTER v ROMFORD ICE AND COLD STORAGE CO.

Answer 12

FACTS: Lorry in loading bay. Crushed someone agains t the wall and injured. Liability clear and company was sued. Victim was lorry drivers father. Explicitly told not to take. Pursued for right of relief.
POL: The right of relief is rarely used in vicarious liability situations from an employer to an employee.

Question 13

MAIROWSKI v GUY’S AND THOMAS’S NHS TRUST (*)

Answer 13

POL: “vicarious liability is a common law principle of strict, no fault liability.”
“a blameless employer is liable for a wrong committed by his employee while the latter is about his employer’s business.” - LORD NICHOLLS.

Question 14

STEVENSON, JORDAN AND HARRISON LTD v MCDONALD AND EVANS (*)

Answer 14

POL: Employer-employee rel required. “It is often easy to recognise a contract of services when you see it, but difficult to say where the difference lies.” - DENNING LJ.

Question 15

MASSEY v CROWN LIFE INSURANCE

Answer 15

FACTS: Constructive dismissal. Life insurance officer who had continual shift in work over the year.
POL: “the parties cannot alter the truth of that relationship by putting a different label upon it.” DENNING.
HOWEVER, “if the parties’ relationship is ambiguous (…), then the parties can remove the ambiguity, by the very agreement itself which they make.”
- LABEL APPLIED TO WHETHER CONTRACT OF OR CONTRACT FOR SERVICES CAN BE USEFUL BUT IT IS NOT DECISIVE.

Question 16

YEWENS v NOAKES (*)

Answer 16

Control test is used to ascertain employment relationship. Can still be substantial enough in contemporary cases. “A SERVANT IS A PERSON SUBJECT TO THE COMMAND OF HIS MASTER AS THE MANNER IN WHICH HE SHALL DO HIS WORK.”

Question 17

READY MIXED CONCRETE (SOUTH EAST) LTD V MPNI (***)

Answer 17

Multiple test requirements for employee-employer relationship in vicarious liability.

a) Work, skill or performance for master for remuneration.
b) Control of master (expressed or implied)
c) consistency with contract of services.

Question 18

PIMLICO PLUMBERS LTD v SMITH (*)

Answer 18

FACTS: Had to do job personally and if not had to get another Pimlico plumber to do job. Other requirements as well. It was an overarching/umbrella contract compared to series of separate arrangements. Consistent with multiple test
POL: 1) Employee 2) Self employed 3) Self employed and provide work for others.

Question 19

MERSEY DOCKS v COGGINS (*)

Answer 19

FACTS: Harbour port authority. Unload ships but often need crane to do this. Owned by the port authority. Company doing unloading normally hires it out. All about the control test. Who is in control? Therefore shows how vital the control test still is to making the decision.
POL: impact of hiring out employees etc for vicarious liability.

Question 20

TOMS v ROYAL MAIL GROUP PLC. (*)

Answer 20

FACTS: Lorry driver for RMG plc during the night. Over worked as had other job in the day and really too tired to drive. Causes accident where he dies. Not actually employed by RMG as hired through agency. Used multiple test and failed. Lack of mutuality as RMG does not directly pay the wage. Shifts the liability.

Question 21

KIRBY v NCB (***)

Answer 21

FACTS: Mine workers. Section closed off because of the methane gas. Unauthorised break to go in there and smoke. Explosion. Court had no sympathy.
POL: set out four scenarios for scope of employment test.
1) Master authorised particular act.
2) Workman does work he is appointed to do but in a way his master did not authorise and would not have authorised.
3) Servant, employed to do a particular work, does something outside the scope.
4) Servant uses his master’s time or place or tools for his own purpose.
THIS IS AN EXAMPLE OF SCENARIO 4.

Question 22

TAYLOR v GLASGOW DISTRICT COUNCIL. (*)

Answer 22

FACTS: Building warrants . In cahoots with criminals and producing fraudulent warrants. Still within his job of processing applications.
POL: Kirby test- 3 hollowed out to benefit of 2 making liable. “Could perhaps be regarded as an improper mode of exercising his authority and if that be so the defenders would be vicariously liable.” LORD SUTHERLAND.

Question 23

ROSE v PLENTY (*)

Answer 23

FACTS: Milk delivery. pays boy to jump out and deliver. falls. forbidden practice. still liable.
POL: SCENARIO 2 KIRBY TEST- “if it is done for his employers’ business, it is usually done in the course of his employment.” LORD DENNING.

Question 24

WILLIAMS v A&W HEMPHILL LTD (*)

Answer 24

FACTS: Lorry driver taking party on trip. Convinced to take different route back. Accident. Still in course of employment.
POL: Even if in completely unauthorised manner still in scenario 2 of the Kirby test.

Question 25

LISTER V HESLEY HALL LTD (***)

Answer 25

FACTS: Warden sexually abusing kids. Not liable according to Kirby so use Lister test. New exceptional test.
POL: CLOSE CONNECTION TEST- “The question is whether the warden’s torts were so closely connected with his employment that it would be fair and just to hold the employers vicariously liable.”- LORD STEYN