Liability in Negligence Flashcards
What is the tort of negligence?
The concept of a defendant breaching a legal duty of care, leading to a claimant being harmed or suffering loss.
What is a person who commits a tort called?
A tortfeasor
When the law of tort is applied to negligence, judges attempt to meet the 4 aims of tort. Name them
Corrective justice
Compensation
Deterrence
Vindication
What is the aim of corrective justice?
If a person’s livelihood is interfered with by another, then they should be compensated by being put back into the position they would be in had the tort not occurred
What is the aim of compensation?
Justice for the claimant can be achieved in most cases by requiring the defendant to pay damages for any loss suffered after fault has been imposed
What is the aim of deterrence?
Decisions made in the tort of negligence also look to deter future careless activity or behaviour through the imposition of liability
What is the aim of vindication?
Some negligence claims are brought to find out what actually happened. Often, this is to attract publicity in hopes to prevent the reoccurrence of incidents
What are the 3 types of joint liability?
Independent, several, or joint
What are the two types of liability?
Fault (personal) liability and strict liability
What is fault (personal) liability
When a tortfeasor has been found liable, they are responsible for the harm, and therefore the compensation
What is strict liability?
Strict liability refers to a situation where a person will be held liable even if they were not at fault
What is independent liability?
This type of liability occurs when a claimant has suffered harm as a result of two separate torts
Each defendant is liable for the damage they have caused
What is several liability?
When more than one defendant acts independently to cause the same damage to the claimant
Vision Golf Ltd v Weightmans [2005]
In what two ways can joint liability arise?
- Two or more people share a joint purpose to commit the same wrongful act (acting in common design or plan)
- By way of vicarious liability
Each tortfeasor is liable for the full amount of compensation, but the claimant can only recover the amount once
The Civil Liability (Contribution) Act 1978
Section 1
The person looking to claim the contribution must be actually or theoretically liable
Any person liable for any damage suffered by another may recover a contribution from anyone liable in respect of the same harm (if jointly liable or otherwise).
The Civil Liability (Contribution) Act 1978
Section 2
This section deals with the amount of a contribution
The courts will decide what amount is just and equitable
The courts will consider all of the circumstances, including to what degree each party is blameworthy (usually as a percentage)
What is vicarious liability?
When liability may also fall upon somebody who has authorised or voluntarily overlooked a tort
Why does vicarious liability look mainly to economic points?
Employers are responsible for their employees’ actions
Compensation has to come from a solvent (has money) defendant, most likely the employer
The employer should be insured, so can spread the risk, but it also incentivises the employer to reduce risks (e.g. changing work environment, recruitment processes)
Makes rare events even rarer
What did Lord Pearce say in Imperial Chemical Industries Ltd v Shatwell [1965]?
If the worker does something wrong, the employer is liable
What are the two requirements of vicarious liability?
- There must be an employer/employee relationship or a relationship that is ‘akin to employment” between the defendant and the person who has actually caused the harm
- The employee must be acting in the course of employment when the tort is committed
What is an employee?
An employee is employed under a contract of service. An independent contractor is employed under a contract for services. An employer will not be liable for any torts made by an independent contractor.
In Various Claimants v Catholic Child Welfare Society (2012), Lord Phillips found five policy areas regarding the relationship between employers/employees as a whole. Name them
the employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability
the tort will have been committed as a result of activity being taken by the employee on behalf of the employer
the employee’s activity is likely to be part of the business activity of the employer; the employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee
the employee will, to a greater or lesser degree, have been under the control of the employer
Cox v Ministry of Justice [2014]
Facts: An inmate was carrying out paid work under supervision and dropped a large bag of rice on her back
Held: The ministry of justice was found to be vicariously liable
What are the four tests to determine whether someone is an employee?
The control test
The business integration test
The multiple test
The business on their own account test
What is the control test?
Based on the master-servant premise, it considers that the employee must be under the control of the employer when the work was conducted
In what case was the control test created?
Lord Denning created the control test in the case of Ferguson v John Dawson and Partners [1976]
What is the multiple test?
To establish a contract for service, the courts had to satisfy three conditions:
- The ‘worker’ agrees to a wage to provide skills or labour for the other person
- The ‘worker’ agrees to be under the other’s control, making the other the master
- The other terms of the contracts are consistent with the contract being one of service
In what case was the multiple test created?
Ready Mixed Concrete (South East) Ltd v Minister of Pensions and NI (1968)
What is the business integration test?
This looked at whether the employee’s work was an integral part of the business. If it was, then there would be a contract of employment
In what case was the business integration test created?
Lord Denning created the business integration test in the case of Stevenson, Jordan and Harrison Ltd v MacDonald and Evans (1952)
What is the business on their own account test?
The High Court felt that it was important to ask whether the ‘worker’ is conducting the service as a person in business or on their own account.
In what case was the business on their own account test created?
Market Investigations Lt d v Minister of Social Security (1969)
What factors are taken into account for the business on their own account test?
- use of their own premises and equipment
- hiring of their own workers
- taking of financial risk (and to what degree)
- degree of responsibility for investment and management.
What two tests are used to determine whether somebody is acting in the course of employment?
The Salmond test and The close connection test
What is questioned in The Salmond Test?
Whether the employee’s harmful act is a ‘wrongful and unauthorised mode of doing some act authorised by the master
The Salmond Test:
In what two ways can a wrongful and unauthorised mode of doing some act authorised by the master occur?
A wrongful act authorised by the employer
A wrongful and unauthorised way of some act authorised by the employer
What two cases cover a wrongful act authorised by the employer?
Poland v Parr [1927]
Warren v Henleys [1948]
Poland v Parr [1927]
Facts: A carter mistakenly hit a boy on suspicion that he was stealing a company cart
Held: The employer was vicariously liable. The employee has an implied authority to protect company property
Warren v Henleys [1948]
Facts: On threatening to report an incident to an attendant’s employer, the attendant punched a customer
Held: This was an act of personal revenge, not one in the course of employment, so the employer was not vicariously liable
Limpus v London General Omnibus [1862]
The employee ignores a direct instruction not to do something
An omnibus driver’s employers gave instructions not to race or obstruct another omnibus. The driver drove his own across the path of another.
Century Insurance v Northern Ireland Road Transport Board [1942]
The employee acts carelessly
A lorry driver lit a match to light a cigarette, throwing it on the floor while transferring petrol from a lorry to a tank. This caused an explosion.
Rose v Plenty [1976]
Using unauthorised help, so long as this does not benefit the employer
A milkman allowed children to assist him in his milk round, where one child was injured.
Majrowski v Guy’s and St Thomas’ NHS Trust [2006]
The employee breaches a statutory duty
A manager was accused of bullying a worker. The duty under the Protection from Harassment Act 1997 is on the employer as the harassment was during the course of employment
Beard v London General Omnibus [1900]
The employee does something that is not connected with their job
An omnibus conductor drove outside of the bus route quickly, in the absence of the bus driver. He negligently hit and injured a man.
Hilton v Thomas Burton [1961]
The employee diverts from their normal work on a “frolic”
Workmen took an unauthorized break. They left their place of work and when returning in a works van they crashed and killed someone.
Williams v Hemphill [1966]
The employee diverts from their normal work on a “frolic”
A lorry driver deviated substantially from his route against his employers’ instructions. The driver then caused an accident on the detour.
Twin v Bean’s Express [1946]
Giving a lift in a company vehicle
A can driver gave a lift in a works’ van, which the driver had been expressly forbidden to give lifts.
Young v Edward Box [1951]
Giving a lift in a company vehicle
A lorry driver employed by a firm of contractors, contrary to his express instructions, gave an employee of another firm of contractors a lift in his lorry. The passenger was injured.
Makanjuola v Commissioner of Police for the Metropolis [1990]
The employee acts outside of the usual boundaries of work
A plain-clothed police officer gained entry to premises by production of his warrant card whilst off-duty.
Smith v Stages [1989]
Salmond test to and from work
Facts: An employee was in a road traffic incident after working elsewhere. He was paid for the journey
Held: This was in the course of employment so the employer was vicariously liable
Why was the close connection test developed?
The courts developed this test for circumstances where they were faced with allegations of intentional wrongdoing
Under Salmond, the company would not be vicariously liable
In what case was the close connection test developed?
Lister v Hesley Hall [2001]
Facts: The warden of a school for boys sexually assaulted pupils at the school
Held: The warden was there to care for the boys and so the tort was closely connected to employment
Lister v Hesley Hall [2001]
Facts: The warden of a school for boys sexually assaulted pupils at the school
Held: The warden was there to care for the boys and so the tort was closely connected to employment
In what case is an exception to the close connection test found?
N v Chief Constable of Merseyside (2006)
Name three cases that have broadened the boundaries of the close connection test
- Maga v The Trustees of the Birmingham Archdiocese of the RC Church (2010)
- JGE v Trustees of the Portsmouth RC Diocesan Trust (2012)
- Mohamud v WM Morrisons (2016)
Name three cases that have affirmed the authority in Lister v Hesley Hall [2001]
Mattis v Pollock [2003]
Gravil v Carroll [2008]
Ministry of Defence v Radclyffe [2009]
N V Chief Constable of Merseyside [2004]
Facts: A police officer sexually assaulted an intoxicated woman. He was wearing a uniform which made the woman believe she was being detained.
Held: He was in a private car so there was not a close connection
Maga v The Trustees of the Birmingham Archdiocese of the RC Church [2010]
Facts: A non-catholic attended a youth club in a catholic church and was abused by a priest
Held: There was a close connection, even though the boy had nothing to do with the catholic church. The church was vicariously liable
JGE v Trustees of the Portsmouth RC Diocesan Trust [2012]
Facts: A Morrisons employee verbally and physically assaulted a customer
Held: The employee was there to serve customers for Morrisons. There was vicarious liability
Nervous shock
What are the two types of victims?
Primary victims and Secondary victims
Nervous shock
What is a primary victim?
A person who either suffers physical injury as a result of another person’s negligence
Where it was reasonably foreseeable that they could have been physically injured as a result of another person’s negligence and as a result they have suffered a psychiatric injury
In what case was the distinction between primary and secondary victims made?
Bourhill v Young [1943]
What case determined that rescuers are primary victims?
Alcock v CC South Yorkshire [1992]
What two cases affirmed that rescuers are primary victims?
Chadwick v BRB [1967] and Hale v London Underground [1993]
What case changed the position of rescuers as primary victims?
White and others v CC South yorkshire [1998]
What is a secondary victim?
A secondary victim is a person who suffers psychiatric injury as a result of another person’s negligence, but was not exposed to danger.
What are 6 issues with nervous shock?
Reasonable fortitude
Status of rescuers
Immediate aftermath
Sudden shock
Law commission recommendations
Assessment of psychiatric harm
Victoria Railway Commissioners v Coultas [1888]
Psychological harm was too remote
Duleiu v White [1901]
Over-ruled the judgement that psychological harm was too remote
Facts: The claimant was pregnant and behind the bar in a pub. A horse and cart crashed into the pub. The claimant was not physically injured but feared for her safety and suffered shock. She gave birth prematurely nine days later and the child suffered developmental problems
Held: An action could lie in negligence for nervous shock arising from a reasonable fear for one’s own immediate safety
Vernon v Bosley [1997]
Facts: The claimant suffered distress after witnessing fire fighters attempt to rescue her children from the wreckage of a car following a road traffic accident. She suffered no physical harm herself, but sought to recover damages for psychiatric injury.
The authority at the time was Alcock
Held: Distress is not a medically recognised condition but simply a state of mind
Kralj v Mcgrath [1986]
Facts: The defendant negligently delivered twins, causing one to die. The claimant suffered shock and therefore a longer recovery
Held: Grief which delays recovery may give rise to nervous shock and damages may be awarded to reflect this.
Leach v CC Gloucester Constabulary [1999]
Facts: The claimant acted as an appropriate adult during the police questioning of a serial killer. She was given no prior warning about the nature of the crimes and details she would see. She suffered PTSD and a stroke as a result
Held: There was proximity and the defendant assumed responsibility as to the claimant’s wellbeing
Chadwick v BRB [1967]
Facts: Chadwick lived 200 yards from the scene of a train crash and attended the scene to provide some assistance. He worked through the night crawling beneath the wreckage helping the trapped victims. He suffered anxiety and received inpatient treatment
Held: The defendant owed Chadwick a duty of care since it was reasonably foreseeable that somebody might try to rescue the passengers and suffer injury in the process
Bourhill v Young [1943]
Facts: The defendant drove his motorcycle past a tram at excessive speed and collided with a car 50 feet away from where the claimant was standing. The defendant was killed by the impact. The claimant heard the collision but did not see it. A short time later, the claimant walked past where the incident occurred. The body had been removed but there was a lot of blood on the road. She went into shock and her baby was stillborn. She brought a negligence claim against the defendant’s estate.
Held: No duty of care was owed by the defendant to the claimant. There was not sufficient proximity between them when the incident occurred
Alcock v CC South Yorkshire [1992]
Facts: South Yorkshire Police had been responsible for crowd control at a football match and had been negligent in directing an excessively large number of spectators to one end of the stadium which resulted in the fatal crush. People were injured and some died
Held: For secondary victims to succeed in a claim for psychiatric harm they must meet the following criteria:
- A close tie of love and affection to a primary victim
- Witness the event with their own unaided senses
- Proximity to the event or its immediate aftermath
- The psychiatric injury must be caused by a shocking event
Hale v London Underground [1993]
Facts: Some workmen were digging a trench in a pavement. They had nothing to fence of the trench so they left a shovel and pick at one end and a punner at the other end to warn pedestrians. The claimant, a blind man, tripped on the punner and fell hitting his head. As a result of the fall he became deaf. The defendant argued they had done all that was necessary to warn an ordinary person of the danger and there was no need to take extra precautions for blind persons as it was not foreseeable that a blind person would be walking unaided down that street
Held: The defendant was in breach of duty. It was foreseeable that a blind person might walk down the street and they should be given appropriate protection
McFarlane v EE Caledonia [1994]
Facts: The claimant worked on the Piper Alpha but was not on it when the fire broke out. At this time he was on an accommodation vessel that was anchored close by. The vessel was an emergency vehicle and went to provide assistance. The claimant was on board and brought an action claiming he suffered psychiatric injury. He claimed that he feared for his life and had also witnessed men in distress, on fire and jumping into the sea. He was never actually in danger. No physical damage to the vessel was sustained. No personal injuries resulted and no other member of the vessel experienced psychiatric injury
Held: No duty of care was owed. It was not reasonably foreseeable that a man of ordinary fortitude and phlegm would be so affected by what he saw
Brice v Brown [1984]
Facts: Brice had suffered from a hysterical personality disorder since childhood. Due to D’s negligence as a driver he caused an accident in which C’s daughter suffered injury. This had a detrimental effect on P’s mental stability, leaving her in need of constant supervision. C brought an action against D for the psychiatric damage caused as a result of witnessing her daughter’s injuries.
Held: So long as nervous shock was foreseeable, which it was, the extent of the damage should not bar a claim for this
