T9 Vicarious liability and nervous shock Flashcards
Nervous shock definition
medically recognised/diagnosed psychiatric illness with no grief, sadness, or distress
E.g. PTSD, OCD, clinical depression, anxiety neurosos
Case example (psychiatric damage): Attia v British gas 1988
NEGLIGENCE – PROPERTY DAMAGE – PSYCHIATRIC HARM
Facts
C engaged British Gas (D) to install a new central heating system in her home but returned to find that her loft had caught fire. The house and its contents suffered extensive damage, which C witnessed first-hand. The property claim against D was settled, as their breach of duty had plainly caused the damage C’s house, however C also sued to recover damages for nervous shock, incurred as a result of witnessing her belongings. This claim as dismissed at first instance and C brought an appeal.
Issues
This case raised two distinct issues, one factual and one a matter of policy. The factual question concerned whether, for the purposes of imposing a duty of care on D, it was reasonably foreseeable that the loft would catch fire. The second question, and the more important, concerned whether, in principle, damages were recoverable for recognised psychiatric harm where the harm in question was caused purely to property.
Decision/Outcome
The Court of Appeal found in favour of C, holding that, as a matter of principle, there was no doctrinal or policy reason to limit the recovery of damages to psychiatric harm arising as a result of damage to property. To limit such cases to personal injury would not be ‘fair or convenient’ ([1988] QB 304, per Bingham LJ), nor was such a limitation justifiable as a matter of policy; the only substantive policy reason to reject liability in such circumstances was the fear of opening the ‘floodgates’ to a raft of unmeritorious claims, which the Court dismissed as unfounded. The case was thus remitted to trial for determination of the foreseeability question.
primary victim defiition
Those physically injured in the event caused by defendant and also psychiatrically injured as well
Those put in danger of physical injury to themselves but get psychiatrically injured instead of physically injured
Secondary victim definition
Those not put in physical danger but suffer psychiatric injury as a result of witnessing such injury to others
Subject to very restrictive requirements
Case example (Primary and secondary victims): Alcock v Chief Constable of South Yorkshire 1991
NEGLIGENCE – PSYCHIATRIC DAMAGE – TRAUMATIC EVENT WITNESSED INDIRECTLY – DISTINCTION BETWEEN PRIMARY AND SECONDARY VICTIMS
Facts
A joined action was brought by Alcock (C) and several other claimants against the head of the South Yorkshire Police. C and the other claimants all had relatives who were caught up in the Hillsborough Stadium disaster, in which 95 fans of Liverpool FC died in a crush due, it was later established, to the negligence of the police in permitting too many supporters to crowd in one part of the stadium. The disaster was broadcast on live television, where several claimants alleged they had witnessed friends and relatives die. Others were present in the stadium or had heard about the events in other ways. All claimed damages for the psychiatric harm they suffered as a result.
Issue
The House of Lords were called upon to determine whether, for the purposes of establishing liability in negligence, those who suffer purely psychiatric harm from witnessing an event at which they are not physically present are sufficiently proximate for a duty to be owed, and thus can be said to be reasonably within the contemplation of the tortfeasor.
Decision/Outcome
The House of Lords, in finding for D, held that, in cases of purely psychiatric damage caused by negligence, a distinction must be drawn between ‘primary’ and ‘secondary’ victims. A primary victim was one who was present at the event as a participant, and would thus be owed a duty-of-care by D, subject to harm caused being foreseeable, of course. A secondary victim, by contrast, would only succeed if they fell within certain criteria. Such persons must establish:
A close tie of love and affection to a primary victim
Appreciation of the event with their own unaided senses
Proximity to the event or its immediate aftermath
The psychiatric harm must be caused by a sufficiently shocking event.
Neither C nor the other claimants could meet these conditions, therefore the appeal was dismissed.
Vicarious liability
- Employers are vicariously liable for torts committed by employee- both employer and employee liable
- the employer is responsible for all actions of employees and those working on behalf in the course of employment
2 essentials of vicarious liability
1) the person who committed the tort must be an employee of the defendant
2) the tort was committed in the course of that persons employment
Case example (vicarious liability): Cox v ministry of Justice 2016
Facts
The claimant managed a prison kitchen. Prisoners were obliged to work in the kitchen and were paid a small wage in return. However, they were not legally the prison’s employees. The claimant was accidentally injured by one of the prisoners dropping a bag of rice on her back. She sued the Ministry of Justice, arguing that they were vicariously liable for the prisoner’s negligence.
Issue(s)
Could the relationship between the defendant and the prisoner give rise to vicarious liability?
Was there a sufficiently close connection between that relationship and the relevant tort?
Decision
The Supreme Court held in favour of the claimant. The defendant was vicariously liable for the prisoner’s negligence. This was because the prisoners worked for the defendant’s benefit, which created the risk of negligence.
Case example: Rose v Plenty (vicarious liability)
Claim for liability:
- Has to be a tortoise act
- Has to be something that is expected of you to further the Sims of that business
- Has to Establish relationship of employment between business owner and person that is the tortfeasor
HELD
Yes, because althought it was a ‘frowned upon’ way of conducting business, it was conducting business nonetheless.
“In the present case it seems to me that the course of the milk roundsman’s employment was to distribute the milk, collect the money and to bring back the bottles to the van. He got or allowed this young boy to do part of that business which was the employers’ business. It seems to me that although prohibited, it was conduct which was within the course of the employment”
Control test definition
Under the direction and control of the other party – with regard to the manner in which the work was done
Organizational (or integration) definition
the work done by the individual is an integral part of the employer’s business, in more technical and professional situations
Mutuality definition
there must be an irreducible minimum of mutual obligation for there to be a contract of service: That the engager must be obligated to pay a wage or other remuneration and that the worker must be obliged to provide his or her own work or skill
case example: Autoclenz v Belcher [2011]
Facts:
Twenty car valets (B), worked for Autoclenz Ltd. B claimed that they were entitled to the minimum wage as they were “workers”. However, Autoclenz denied this.
The contract between Autoclenz Ltd and the car valets stated the following:
There was no obligation on the valets to perform any work, or for Autoclenz to provide it;
The valets’ services were required from time to time
They could arrange for a substitute to carry out their valeting duties.
They paid their own tax and had to purchase their own insurance, uniforms, and materials.
Issue:
Were the car valets subcontractors or workers?
Held:
In Autoclenz Ltd v Belcher, the Employment Tribunal held that the valets’ were not workers under s.230(3) Employment Rights Act 1996. However, the valets’ appealed against this decision to the Employment Appeal Tribunal (EAT). The EAT held that the valets’ were workers. The employer appealed against this decision to the Court of Appeal (CofA). However, the CofA dismissed the employer’s appeal. The CofA stated that the above terms did not reflect the reality of what actually happened. Therefore, it was held that the car valets were workers.
Consequently, Autoclenz appealed against the CofA’s decision to the Supreme Court (SC). However, the SC held that the valets’ were workers and agreed with the CofA’s reasoning that the reality of the situation overrode the terms of the contract.
Relationship of employment
Vicarious liability can be imposed in the absence of a traditional employer/employee relationship if a number of factors are proven:
1) tort was committed as a result of activity being undertaken by the tortfeasor on behalf of the defendant
2) the tortfeasor activity is likely to be part of the business activity if the defendant
3) the defendant, by employing the tortfeasor to carry on the activity, will have created the risk of the tort Committee by the tortfeasor
The courts may also consider the fact that the employer is likely to be insured and the employer maintains a degree of control over the employee, but these factors are not as significant
Mohamud v Morrisons Supermarkets plc 2016
The issue
When Mr Mohamud was violently assaulted by a petrol pump assistant employed by Morrisons, he argued that the supermarket should be vicariously liable for his attacker’s actions.
The claim failed at trial and before the Court of Appeal. The Supreme Court had to consider how the law in this area has developed and whether it was in need of significant change.
The facts
Mr Mohamud went to a Morrisons’ petrol station in Birmingham. He asked whether the garage could print off some images from a USB stick.
Amjid Khan worked behind the counter. He responded to Mr Mohamud’s request with foul and abusive language. Mr Mohamud protested at being spoken to in this manner, which led to another barrage of abuse from Mr Khan, who ordered Mr Mohamud to leave.
Mr Mohamud went to his car, but was followed by Mr Khan. Mr Khan opened the passenger door and told him in a threatening manner never to come back. When Mr Mohamud asked him to shut the door, he was punched by Mr Khan. Mr Mohamud got out of the car to close the passenger door. Mr Khan punched him to the ground and severely assaulted him, despite his supervisor telling him to stop.
At trial and appeal it had been held that Morrisons were not vicariously liable for Mr Khan’s actions. Although his job involved some interaction with customers, it involved nothing more than serving and helping them. There was not a sufficiently close connection between what he was employed to do and assaulting a customer.
Mr Mohamud had died before the case went to the Supreme Court, but his family continued with the action and argued that the test of “close connection” was outdated., They sought a new, broader test of “representative capacity”: was Mr Khan acting in the capacity of a representative of the employer at the time of the assault? Alternatively, was Mr Khan was acting within the “field of activities” assigned to him in dealing with Mr Mohamud?
The decision
The Supreme Court allowed the appeal, holding Morrisons vicariously liable for Mr Khan’s actions.
They considered the development of vicarious liability. The test for many years was whether the employee’s conduct was “either (a) a wrongful act authorised by the master or (b) a wrongful and unauthorised mode of doing some act authorised by the master.”
However, in Lister v Hesley Hall Ltd [2001] 1 AC 215, the court recognised that the second leg of this test was ineffective. It introduced the “close connection” test to remedy this. In Lister, children had been abused by a warden employed by a school boarding house. Lord Steyn had posed the question as to whether the warden’s abuse was so closely connected with his employment that it would be just to hold the employer liable. In that case, the court ruled there was a sufficiently close connection.
The court saw no need to alter the test in the way proposed by Mr Mohamud. The close connection test was sufficient. Mr Khan’s job was to attend to customers and respond to their inquiries. His foul-mouthed response and ordering Mr Mohamud to leave was inexcusable but within the “field of activities” assigned to him. There was no break in the chain by Mr Khan then following Mr Mohamud to his car. In Lord Toulson’s view, “It was a seamless episode.” Further, when he opened the passenger door, he ordered Mr Mohamud to keep away from his employer’s premises, which was reinforced by the assault. It was not something personal between them.
The fact that it was a gross abuse of his position was irrelevant, as was Mr Khan’s true motive. Morrisons had entrusted him to deal with members of the public and it was just that they should be responsible for his abuse of this trust.
