Topic 1: Vicarious Liability Flashcards

Question

ILKIW v. SAMUELS

Answer 1

Principle When a servant improperly delegates his task to an unqualified third part, the master will not be liable for any negligence of that third party, but he will be liable for the Negligence if tbe servant in allowing an unqualified person to act. Facts A Lorry driver employed to drive sugar to a warehouse with express instructions not to allow anyone else to drive it. Subsequently he allowed a warehouseman to move the lorry. An Accident caused by warehouseman's incompetence which resulted in injury to the pltff. Held. The def was held liable, not for any careless on the part of the workman since he was not the defs servant, but on account of the driver's negligence during the course of his employment in allowing an incompetent to drive the vehicle.

Answer 2

The principle and rationale in Ilkiw v Samuels was applied here. Where a bus driver employed by the defs allowed a timekeeper, also employed by the defs, to drive a bus, which, owing to the timekeepers Carelessness, crashed through the wall of the pltffs factory, causing extensive damage. As in the cases supra the defs were held liable on the same basis

Answer 3

Principle A master may be liable for his servants fraud perpetrated in the course of the masters business whether the fraud was committed for the masters benefit or not. Facts An employee who worked for a firm of solicitors in the capacity of a conveyancing manager (managing clerk) was given the authority to arrange and negotiate the sales of real estate. Mrs Lloyd, the plaintiff, was a client of the firm and she was dealing with the managing clerk regarding the sale of two of her properties. The employee fraudulently induced and convinced the plaintiff to transfer ownership of her property to himself. He then used it for personal gain. Held The court concluded unanimously that the defendants should be held vicariously liable for the fraud. Lord Macnaghten was convinced that a principal was liable for the fraud of his agent if the fraud was committed in the course of the agent’s employment and did not go beyond the scope of his agency. This was the case regardless of whether the fraud was committed for the benefit of the principal or not. The client had been invited by the firm to deal with their managing clerk. The fact that the agent acted dishonestly for his own benefit was irrelevant.

Answer 4

Principle Same as previous case. Facts. The def a transport contractor sought business from the plaintiffs. He introduced them to two men whom he said were his driver and clerk and stated that whenever the plaintiffs had any goods to be transported they should give the goods to the 2 men. The plftt did this but the goods were never delivered and the driver and clerk were subsequently convicted of stealing the goods. Held Since the conversion was in the course of the employment of the defs servants the def was held vicariously liable

Answer 5

Principle Same as previous case Facts The def a licensed goldsmith employed R as his journeyman. The pltff a customer if the def gave R some gold ornaments to deliver to the def, in the belief that the def sent R to collect them. R absconded with the ornaments and the pltff sought to recover damages from the def. Held The def was held liable. By his previous conduct in sending R to collect work from the pltff, the def held himself out to the pltff as having authorized R to transact on such business ( though he hadn't done so in that precise occasion)

Answer 6

Principle The tort of an independent contractor can be authorized. Facts The defendants without having sought any actual authority to do so hired contractors to dig a hole in the road. The contractors failed to properly replace the hole and the claimant was injured as a result. Held The defendants were held vicariously liable because the contractor had only been carrying out the task set by the defendants who had in effect sanctioned the tort.

Answer 7

Principle Vicarious liability for independent Contractors neg in circumstances where the duty of care is non-delgable Facts Plaintiff contracted Defendant to take pictures on the inside of X’s cinema and due to Defendant’s negligence there was fire damage Held CA held that Plaintiff would be liable to X and therefore was entitled to recover for negligence from Defendant. See also Black v Christ Church Finance Co

Answer 8

Principle Same as previous case Facts the plaintiff, Mr. Holiday, was injured when he fell into an uncovered manhole on a public road. The manhole belonged to the defendant, National Telephone Co. Mr. Holiday sued the company for negligence, claiming that they failed to maintain the manhole properly, leading to his injury. Held The trial court ruled in favor of Mr. Holiday, finding the National Telephone Co. negligent and liable for his injuries. The company appealed the decision.

Answer 9

Principle Non delegable duties if independent contractors Facts a doctor was found to be in breach of his duty but not liable as the cause of injury would not have been prevented in any event regardless of doctor’s negligent or not.

Answer 10

Principle: Joint tortfeasors include 1. Principal & Agent 2. Employer & Employee 3.Employer & Independent Contractors with a few exceptions 4. A person who instigates another to commit a tort 5. A person who takes concerted action to a common end and commits a tort in the course of execution.

Answer 11

Principle: As a general rule, an employer who lends out his servant will remain liable unless he can prove that at the time the tort was committed, he had divested himself of all control over the servant. Fact: The appellant hired a lorry together with the driver from the respondent, to convey cargo from lbadan to Abeokuta. The respondent's driver drove negligently and collided with a tree, injuring the appellant hirer who was in the lorry. Held: The respondent permanent employer was vicariously liable for the injuries sustained by the appellant, the respondent having failed to discharge the burden of proving, that control of the driver had passed to the appellant hirer at the time of the accident. In this case BRETT FJ said: "That where the owner of a machine lets it out on hire and sends his servant to operate it, the burden of proving that the responsibility for the negligence of the servant has passed to the driver rests on the permanent employer and... The burden is a heavy one which can only be discharged in quite exceptional circumstances...

Answer 12

Principle: Lord Denning held that to determine whether a trot has been committed by a servant involves two questions. 1. Is the employee/servant personally liable in tort? (Primary responsibility) 2. Should the master be held responsible? (principal liability).

Answer 13

Principle: Contractual test determining whether a person is a servant or merely an independent contractor; It is immaterial that the contractual term expressly states it, attention must be given to the whole of the contract comprehensively. Fact: The plaintiff had fallen from a roof whilst working for the defendants, and had claimed damages for breach of statutory duty. The parties disputed whether the plaintiff was an employee or a self-employed independent contractor. Held: A building labourer was an employee and therefore protected by certain safety legislation, on the basis of the type of work done and the degree of control exercised over it. This was despite a specific contractual term stating that he was self-employed, and it means that employers cannot evade certain responsibilities simply by choosing to describe their workers as self-employed. The real relationship of the parties was that of master and servant.

Answer 14

The appellant, an employer, expressly prohibited its staff from driving uninsured company cars on the company 's business. One of the employee drove an uninsured car in disobedience of the instructions while in the course of his employment and negligently injured the respondent. Held: The general rule is that mere prohibition limiting the manner of performing a job will not relieve the employer of liability if it is disobeyed. LORD THANKERTON said that in this case, it was not the acting as driver that was prohibited, but the non insurance of the motor car, if used as a means incidental to the execution of the work which he was employed to do. It follows that the prohibition merely limited the way in which, the servant was to execute the work which he was employed to do, and that breach of the prohibition did not exclude the liability of the master to third parties . The appellant were therefore liable.

Answer 15

Deviation to please children of the employer is still within the course of employment, thus the employer remains liable.

Answer 16

Principle: Works done over or adjoining a highway are non-delegable. Fact: The defendant, A, was an occupier of a house, on which front a heavy lamp protruded near a highway. The lamp fell into disrepair and the defendant instructed an independent contractor to inspect and repair it. The contractor negligently repaired the lamp which later collapsed and injured the plaintiff passerby. Held: The defendant was liable. His duty to repair the lamp was not discharged. the repair of the lamp near the highway was for a purpose other than the normal use of the highway. It was no excuse that the injury was caused by the negligence of the contractor who failed to do a proper job.

Answer 17

The claimant in the case, Ms Majrowski, worked for the NHS Trust. She claimed that her manager there had subjected her to a course of conduct which amounted to harassment under the Protection from Harassment Act 1997. As you will know from reading Chapter 13, the Act provides a civil right to sue for harassment, and so Ms Majrowski sued her employers, claiming they were vicariously liable for the manager's behaviour. Held: The Court of Appeal agreed that it was possible for an employer to be vicariously liable in this situation, and the test to be applied was the same as that applied in Lister and subsequent cases, looking at the closeness of the connection between the breach of duty and the employment, whether the risk was incidental to the business, and whether it was fair and just to hold the employer responsible. The courts would also need to look closely at the words of the statute, to determine whether it was intended to exclude vicarious liability, and in this, the Court of Appeal held, they could be guided "where appropriate" by questions of policy. It was held that an employer can also be liable for an employee's breach of a statutory duty, even if the statute appears to impose liability only on individuals.

Answer 18

The case itself is fairly straightforward in terms of vicarious liability: Dubai Aluminium had been defrauded of $50 million, by two people referred to as Mr S and Mr T, with the help of a solicitor, Mr A. Mr A was a partner in a firm called Amhersts, and the Partnership Act 1890 provides that where a partner in a firm commits a wrongful act ",in the ordinary course of business of the firm', the firm effectively has vicarious liability for that act. Accordingly, Dubai sued Amhersts for compensation, and Amhersts settled the case for $10 million. They then sought to get back some of this from Mr S and Mr T, under the Civil Liability, (Contribution) Act 1978. Mr S and Mr T, however, claimed the Act did not apply because Amhersts were not vicariously liable for the fraud; one of their reasons was that the fraud had not been committed in the course of business. Held: The House of Lords held that it had, and confirmed that the correct test was whether there was a "close and direct connection" between the employee's duties and the criminal act: "The wrongful conduct must be so closely connected with acts the . . . employee was authorised to do that . . . the wrongful conduct may fairly and properly be regarded as done while acting on the ordinary course of . . . the employee's employment."

Answer 19

The employer was held vicariously liable for the act of the porter who sexually harassed the boys in the hostel. See also, Various claimant v Catholic Child Welfare.

Answer 20

Principle: Private act of spite, passion and resentment don't fall under the test of close connection. Fact: The IT guy who worked for the appellant uploaded the information of the appellant's Customers in spite and resentment of his employer. The court held that though such a case would be closely connected so as to recognise it as a tort committed in the course of employment, in this circumstance, he wasn't acting in the course of employment. Therefore, the employer couldn't be vicariously liable.