Tort Law - Paper 2 Section B Flashcards
1
Q
negligence
negligence
A
- can be personal injury and damadges
- only liable if;
- .1. the defendant owes the claimant a duty of care
- .2. the defendant breached the duty of care
- .3. does the breach cause reasonable forseeable damadge
2
Q
Duty of care
negligence - duty of care
A
- according to the case robinson - you look at the situation and if there is a duty established (doctor-patient) in past cases which are similar you dont need to do duty of care
- neighbour principle - anyone in your contemplation who might be directly affected by your actions
- important case for duty of care
- donoghue v stevenson - shows the neighbour principle
- drinks sealed ginger beer that was bought by friend who got from cafe who got from factory
- had snail in it
- who to sue
3
Q
Caparo V Dickman
negligence - duty of care
A
- three part test;
- .1. was the damadge or harm forseeable
- .2. is there a sufficently proxminate relationship between the calimant and the defendant
- .3. is it fair just and reasonable to impose a duty
4
Q
.1. is the harm or damdage forseeable
negligence - duty of care
A
- the harm to the victum must be reasonably forseeable
- kent v griffiths - ashtma attack, ambulance wasnt there in time, liable, call centre promised
- jolley v sutton london borough council - kids playing on rotton boat, boat landed on them, liable
5
Q
.2. the claimant and defendant have a aproximate relationship
negligence - duty of care
A
- bourhill v griffiths
- preganat lady saw motor bike accident
- lost her baby as so much shock
- tried to sue parents but couldnt as motorcyclisst didnt owe a duty of care
- hill v cheif constable of west yorkshire
- serial killer been murdering people
- police had enough infomation but was to late
- next victums parents tried to sue police
- relationship between police and victum were not proxitmate
- mcloughlin v o’brien
- claimants family in tragic lorry accident
- c suffered shock after seeing family in court
- sued successfully
6
Q
.3 fair just and reasonable
negligence - duty of care
A
- relucant to find that it is ‘fair just and reasonable’ to impose a duty on public officers
- hill v chief constable of west yorkshire - if police always had a duty then they would start defensive policing
- capital and counties v hampshire county council - fire broke out and fire brigade turned off the sprinklers so destoryed building,
- duty held as turning off the sprinklers increased damadge
7
Q
breach of duty
negligence - breach of duty
A
- two part test
- .1. objective standard of care
- .2. the degree of risk
8
Q
.1. the objective standard of care
negligence - break of duty - the objective standard of care
A
- the standard of care is measured objectivly by the reasonable man test
- created by the case blyth v birmingham waterworks
- if a defendant falls below the standard of care , then there will be a breach of duty
- there are characterics that the court can consider
- experts
- inexperienced people (learners)
- children
9
Q
experts
negligence - break of duty - the objective standard of care
A
- where the defendant has some expertise
- doctors
- bolam v friern hospital managment
- c was getting shock treatment for mental health , signed consent but has no info about broken bones
- no breach
- montgomery v lanarkshire health board
- gave birth to a baby with cerebal palsy due to complications
- doctor didnt say all the risks
- doctor was liable
10
Q
learners
negligence - break of duty - the objective standard of care
A
- nettleship v weston
- driving lesson
- got in crash and hurt dirivng instructor
- liable
- learners are still held to the same standard as a reasonable man
11
Q
children
negligence - break of duty - the objective standard of care
A
- mchale v watson
- threw a dart and it hit a girl in the eye
- not liable
- expect kids to be more reckless
- mullin v richards
- two girls player with plastic rulers
- snapped and went in eye
- not liable as only two teengae girls playing
12
Q
degree of risk
negligence - break of duty - the degree of risk
A
- court decides wether there has been a breach
- there are risk factors that may be considered
- .1. does the claimant have any special characteritics which should be taken into acount?
- .2. what is the size of the risk?
- .3. is it practicable to take precautions?
- .4. is the risk forseeable
- .5. is there a public benifit to the risk?
13
Q
.1. does the claimant have any special characteristics
negligence - break of duty - the degree of risk
A
- paris v stepney borough council
- blind in one eye
- worked where there was a risk to the eyes
- not given protective goggles
- liable
- even tho the characteritics are special they should have taken precautions whne there is a known risk
14
Q
.2. what is the size of the risk?
negligence - break of duty - the degree of risk
A
- when the risk is small there is unlikly to be a duty of care
- bolton v stone
- got hit by a cricket ball walking past a cirkcet pitch
- had a 17 foot fence protecting the road
- only 6 balls had left the ground in 30 years
- not liable as they have done everything they can
- HOWEVER if there is a known risk and little precautions have been taken then more likly to be liable
- haley v london electricity board
- dug ground out to put wires in it
- put signs but no barriers
- blind claimant fell in the hole
- liable
15
Q
.3. is it practible to take precautions
negligence - break of duty - the degree of risk
A
- court have to consider the balanceof risk involed against the cost and effort of taking precautions
- latimer v AEC ltd
- factory was flooded and floor was slippery
- sawdust was put on floor
- perosn slipped
- not liable
16
Q
.4. is the risk forseeable?
negligence - break of duty - the degree of risk
A
- if the risk of harm is not known there is no breach
- roe v minister of health
- anaesthic was kept in glass tubes which were sterrilised
- glass had unkown cracks
- claimant got paralised
- not liable
17
Q
.5. is there public benefit to the risk?
negligence - break of duty - the degree of risk
A
- if there is an emergency then greater risks can be taken and lower standard of care
- emergency survices
- watt v hertfordshire county council
- claimant was firefighter
- went to save lady under lorry
- didnt have proper equipment and he got crushed
- not liable - emergency
- day v high performance sports
- claimant was experienced climber and fell
- wasnt rescued properly
- not liable - acting in emergency
18
Q
damage
negligence - damage
A
- the loss suffered was caused by the breach of duty and that the damdge is remote
- causation - the idea that the breach of duty factually and legally caused the damage
- remotness of damage - the idea that the damadge has to be reasonably forseeable
19
Q
causation
negligence - damage
A
- .1. factual causation
- use the but for test
- barnett v chelsea and kengsington hospital
- 3 men went to hosptial after not feeling after drinking tea
- doctor told go home
- man died
- not liable as to far gone
- multiple causes - dont have to prove defendant breach was the main just that they contributed
- .2. legal causation
- de minimis
- intervening act break the chain of causation
- wether the injury was forseeable consequence of the orginal negligence or omision
20
Q
remotness of damage
negligence - damage
A
- must not be too remote
- type of harm
- egg shell skull rule
21
Q
remotness of damage - not be too remote
negligence - damage
A
- the damage can not be too remote from the d negligence
- the injury or damage must be reasonable foreseeable
- the wagon mound- important
- oil spilt on water and set fire
- not forseeable that it would catch light
- crossly v rawlinson
- lorry caught fire man went to help and fell
- tried to see
- not forseeable he would have fallen
22
Q
remotness of damage - type of harm
negligence - damage
A
- the damage must be of the same type/kind as the harm that could have been forseen
- the case even if the precise way the harm actually happened wasnt necessarliy forseeable
- hughes v lord advocate
- man hole - kids played in it and fell and caught fire
- liable - forseeable injury
- bradford v robinson rentals
- c was sent by employer to get a new van bc the old one didnt have heaters
- got frostbite
- liable - injuries were unusal but forseeable
23
Q
remotness of damage - eggshell skull rule
negligence - damage
A
- must take the victum as he finds them
- smith v leech brain
- man working in factory got burnt by molton iron
- already had pre-cancerous condition
- caused cancer
- liable
24
Q
defences to negligence
negligence defences
A
- contributory negligence - part defence
- consent - full defence
25
contributory negligence
| negligence defences
* where both defendant and claimant are to blame
* can be reduced to the extent which the claimant contributed
* decided by the judge
* **sayers v harlow urban district council** - reduced 25% due to recklessness
* **jayes v imi ltd** - reduced 100% as took guard off
* **o'connel v jackson** - reduced 15% wasnt wearing a helmet
* **froom v butcher** - reduced 20% as wasnt wearing a seatbelt
26
consent - volenti
| negligence defences
* no injury is done to somebody who consents to the risks
* defendant has to show
* .1. knowledge of the precise risk
* ,2, exercise of free choice by claimant
* .3. a voluntary acceptance of the risk
* THIS DEFENCE CAN NOT BE USED FOR ROAD TRAFFIC ACCIDENTS
27
,1, knowledge of the precise risk involved
| negligence defences - consent
* defendant must have full undertsnading of the nature of the actual risk
* **stermer v lawson**
* borrwed a motor bike and got injured
* no defence - not been shown how to properly use
28
.2. exercise of free choice by claimant
| negligence defences - consent
* claimant has must voluntarily accept the risk and undertake it
* **smith v baker**
* injured on contruction site
* knew risks but didnt consent to the lack of care
* could make claim
29
.3. a voluntary acceptance of the risk
| negligence defences - consent
* where a person has a duty to act and is then injured because of the defendants negligence - NO DEFENCE
* means the claimant had no choice but to act
* **haynes v harwood**
* police officer injured by holding horse which was tied properly
* no defence - officer was working to protect not acting volentaryily
* **ogwo v taylor**
* fire fighter got injured putting a reckless fire out
* no defence
30
strenghts of duty care
| evaluations of negligence
* **using the case robinson**
* provides clearer advide for claimants (similar cases) , more efficent
* **proximate test (c v d)**
* flexable with new situations (but unclear and undefined)
* **duty of care is important to establish posisble fault**
* fairness for defendant
* making sure you are sueing the correct people
31
weakness of duty of care
| evaluations of negligence
* **the c v d test lacks clarity**
* makes it difficult for lawyers to advise clients - extremly objective
* judges deciding cases
* **"fair","just","reasonable"**
* judge decides that these words mean
* **"blanket immunity"**
* police force are imune from being sued
* hill v west yourkshire police
32
reforms for duty of care
| evaluations of negligence
* use dictionary
* clear guidlines
* be able to sue the police - change some rules
33
strenghts of breach
| evaluations of negligence
* **allows defedants characteristics to be taken into account**
* allows law to be applied fairly
* vunreable claimants protected
* nettleship v weston - unfair to be held to an expert
* **holds experts to a high standard**
* poeple have to stay ta a high standard
* quality of provisions
* however could put of surgeons doing big risky surgerys
* **forseeable risk + practical precautions**
* fairer for defendant
* bolton v stone , small risk led to big outcome
* **expect less from children**
* however how do we decided the age - all mature differently
34
weaknesses of breach
| evaluations of negligence
* **standards are the same no matter the experience**
* nettleship v weston
* junior doctors & experts
* **bolton v stone**
* claimant got no compensation as risk was small
* all precautions taken
* still injured
* **what is reasonable?**
* vauge, objective
* judges decided and all different]
* therefore not consitent
35
reforms for breach
| evaluations of negligence
* change depending on what type of experience somebody has
* easier to sue sports grounds
* guidlines for medical experts
36
strength of caustation/remoteness
| evaluations of negligence
* **factual causation**
* fair
* makes sure d is at fault
* **egg shell skull rule**
* justice for claimants whos not at fault
* **remotness**
* good for d
* only liable for forseeable harm
* reinforces motion of "mitigation of loss"
37
weakness of causation/remotness
| evaluations of negligence
* **inconsistent**
* remotness is decided by judge - to much power
* **inconsistent application of causation**
* factual causation discrepancies about hospitals
* barnett, chester v asfar
* some hospitals liable and some not
* **problem when more than one defendant**
* claimant cant prove which one did it
* **remotness**
* unfair on claimant , limits liablity on d
* **issues with intervening act**
* steamship case
* natural disaster but ship was already damadged
* d only liable for first damadge - unfair for claimant
38
occupiers liability
| occupiers liability - A01 for both
* claimants injury or loss to property suffered while on the occupiers premises
* occupiers liability act 1957 (lawful visitors)
* occupiers liability act 1984 (tresspassers)
*** first need to prove occipur and premises**
* loss for lawful - personal injury and property
* loss for tresspasser - only personal injury
39
.1. occupier
| occupiers liability - A01 for both
* no statutory defintion
* section1(2) states "someone in control of the premises"
* the test is found in the case **wheat v e lacon**
* doesnt have to be the owner or tennant , can be manager or emplyer
* more than one person can be in control
* defendant doesnt need proprietary interest
* **harris v birkenhead**
* council put up sign in house, abbanded
* 4 yr old gets injured, council in control
* **bailey v armes**
* the supermarket nor family were in control of the roof
40
.2. premises
| occupiers liability - A01 for both
* section 1(3)(a)
* "any fixed or moveable structure including any vessel, vehicle or aircraft
* **london graving dock v horton** - ship in a dry dock
* **hartwell v grayson** - vehicles
* **haseldine v daw and son** - lifts
* **wheeler v copas** - ladders
41
lawful visitors
| occupier liability for lawful visitors (1957)
* invitees (any invited to enter)
* licensees (permission to be there for a particular period)
* contractual permission (person who has bought a ticket for an event)
* statutory right (police)
42
owe a duty
| occupier liability for lawful visitors (1957)
* section 2(2) - have to keep a visitor reasonably safe not completly
* **laverton v kiapasha takeaway supreme**
* slip resistant floors , been cleaned
* c slipped and hurt ankle - not liable , kept reasonably safe
* the duty doesnt extend to liability for pure accidents
* **cole v davis-gilbert**
* injured from falling in a maypole hole
* tried to sue royal legion
* happened 2 yrs after removal
* duty cant last that long and accident
43
duty for children
| occupier liability for lawful visitors (1957)
* additonal special duty - section2(3)
* must be prepared for children to be less careful , must be reasonaly safe for a child of that age
* children are attracted to allurments
44
duty for children cases
| occupier liability for lawful visitors (1957)
* *may not pose a threat to an adult may be dangerous to a child* - **glasgow corporation v taylor**
* 7yr old ate wild berries in park and died
* council aware of fanger and didnt htink of children - liable
* *should guard against allurments* - **jolley v london borough of sutton**
* rotton boat
* kids played on it and injured
* council liable
* *parents*- **phiips v rochester corporation**
* 5 and 7 yr playing on council land
* fell down hole
* council not liable - no parents
45
liability for tradesman
| occupier liability for lawful visitors (1957)
* owe a duty for a tradesman coming onto their premises
* section2(3)(b) - if injured related to his traid then not liable
* but should be told about special risks
* **roles v nathan**
* chimney sweeps died while working
* not liable - know the risks of the job
46
liability for torts comminted by independant contractor (defence)
| occupier liability for lawful visitors (1957)
* if visitor is injured by a workmans negligent work
* section2(4)
* occupier must prove that
* *.1. must be reasonable for the occupier to give the work to the contractor (was specilst or complex work)* - **haseldine v daw and son**
* lift shaft fell
* not liable as it was specialst work and should have been given to a specilst firm
* *.2. the contractor must be competent and insured* - **bottomly v todmorden cricket club**
* cricket club used stunt team for fireworks
* went wrong and got injured
* liable - didnt choose competant contractor
* *.3. occupier must check the work has been done propely (even if requires an expert)* - **woodward v mayor of hastings**
* need all of these
47
defences for lawful vistors
| occupier liability for lawful visitors (1957)
* contributory negligence
* consent
* warning notices - complete defence
* must be effective enough
* exclusion clauses
48
occupier liability for tresspassers
| occupier liability for tresspassers (1984)
* section 1(1)(a)
* duty applies in respect of people other than lawful
* the duty - section1(4) - to take such care as is reasobale in the cirsumstance to see that the tresspasser is not injured by reason of the danger
* the greater the risk the more precautions
49
duty test
| occupier liability for tresspassers (1984)
section 1(3)
* .1. he is aware of the danger or beleives it exists
* .2. to beleive that the other is in the vicinty of the danger or may come of the vicinity
* .3. offer the other some protection
50
adult tresspassers
| occupier liability for tresspassers (1984)
* *not liable if tresspaper was injured by obvious danger* - **ratcliff v mcconnel**
* broke into swimming pool, dived in and no sign, dont need sign for obvious danger
* *the time of day/year is relevant* - **donoghue v folkstone properties**
* went to harbour and swam at midnight in december, slipped, no liable
* *occupier doesnt have to spend a lot of money to make the premises safe* - **tomlinson v congleton bc**
* resiviour, dont need to put fence up, sign was enough
* *occupier doesnt expect tresspassers* - **higgs v foster**
* expection pit for trucks, someone in there, no warning , not liable
* *wasnt aware of danger* - **rhind v astbury water park**
* didnt know submerged glass block was there , not liable
51
children tresspapers
| occupier liability for tresspassers (1984)
* same approach applies to child tresspapssers as adult
* **keown v conventury healthcentre nhs trust**
* children running up and down staircase
* slipt on ice
* not liable
52
defences for occupier liability for tresspassers (1984)
| occupier liability for tresspassers (1984)
* contributory negligence
* consent (volenti)
* warning signs
53
occupiers liablity evaulation
| occupiers liablity evaulation
* inconsitentcies between the damadge covered by 1957 and 1984
* should tresspassers be abllowed to claim
* obvious dangers
54
inconsitencies between the damadge covered by the 1957 and 1984 acts
| occupiers liablity evaulation
* .1. 1957 allows for personal injury and damadge but 1984 only personal injury - compensation is limited for tresspassers
* .2. 1957 test is reasonable care to keep visitors reaosnably safe , 1984 is about being aware of the danger and people coming in
* .3. 1984 test is inconsistent with usual objective tests - requires specifc knowledge
55
should tresspasers be able to claim?
| occupiers liablity evaulation
* judges reflect public opinoin by trying to not allow tresspapssers compensation
* obvious dangers test to limit liability of occupiers
* howver judges dont always represent the public
* **revill v newbery** - 82 yr old was injured by a tresspasser and still have to pay compensation
56
obvious dangers
| occupiers liablity evaulation
* no duty owed to an occipuer if the injury is from an obvious danger
* test is now in both
* good thing
* still inconsistent
57
reforms for occupiers liability
| occupiers liablity evaulation
* introduce no fault liability- go through insurance instead of courts
* state run compensation scheme paid by taxes
* change in approach of judges
58
private nuisance
| private nuisance
* **"the unlawful interference with a persons use or enjoyment of their land coming from the unreasonable use of neigbours land"**
* **claimant** - anyone who has had the use or enjoyment of their land affected, have to have propiority interest
* **hunter v canary wharf** - claim was about their view but they dont own the view
* **defendant** - either caused or allowed or failed to deal with problem , dont need propiroty interest
* **sedleigh-dunfeild v o'callaghan** - council came to fit pipe , monks knew it was broken didnt do anything, liable
59
direct inference
| private nuisance
* roots
* sewage
60
indirect inference
| private nuisance
* noise
* smell
* fumes
61
factors affecting reasonableness of defendant
| private nuisance
* local area
* time of day and duration
* malicous defendant
* sensitve claimant
* social benefit
62
local area
| private nuisance - factors affecting reasonableness
* court will decide if its purely residentual, partly residentual or countryside
* has the character changed over time
* **sturges v bridgeman**
* "what would be nuisance in belgrave square would not nessicarliy be so in bermonsdey"
63
time of day and duration
| private nuisance - factors affecting reasonableness
* to be actionable, the inference is likely to be continous and at unreasobale hours of the day or late at night
* E.G consistant late night paties
* **crown river cruise ltd v kimbolton fireworks ltd**
* river barge was set alight by flamable debrie coming from firework display
* not normally a nuisance but is in this case
64
malicious defendant
| private nuisance - factors affecting reasonableness
* delibratly harmful act will usally be inreasonable and private nuisance
* **christie v davey**
* c was music teachers and held music parties
* d banging pots bc annoyed
* deliriate malice behaviour
65
sensitive claimant
| private nuisance - factors affecting reasonableness
* if it can be shown that the claimant is particulary sensitive then may not be private nusicance
* **robinson v kilbert**
* special paper ruined by other paper in basement
* no nuisance - to senstive
* **network rail infrastructure v morris**
* new tracks were put next to a recording studio and messed up equipment
* no nuisance
66
social benefit
| private nuisance - factors affecting reasonableness
* if it is proved that it is providing a benefit to the community, may be considered reasonable
* **miller v jackson**
* cricket balls always in garden
* had high fence
* social benifit - no nuisance
67
defences to nuisance
| private nuisance
* consent
* prescription - if carried on for 20 years and no complaints **sturges v bridgman** - doctor rooms by factories , defence failed bc the 20yrs started when rooms were built
* statutory authority and planning permisson - **allen v gulf oil** - did not have permission to have n oil refinary
68
remedies
| private nuisance
* injunctions
* damages
* abatement
69
rylands v fletcher
| rylands v fletcher
* strict liability tort - no requirment to show fault
* **claimant** - has to have an interest in the land affected
* **defendant** - must have some control over the land
* **rylands v fletcher**
* build resivour on land - didnt cover mines properly in neighbours land
70
four part test
| rylands v fletcher
* .1. bringing onto the land
* .2. the thing is likly to do mischeif if it escapes
* .3. non - natural use of the land
* .4. escapes and causes forseeable harm
71
.1. bringing onto the land
| rylands v fletcher
* the defendant must bring something onto the land that is not naturally present
* not weeds - **giles v walker**
* not rainwater - **ellison v minister of defence**
72
.2. the thing is likly to do mischeif if it escapes
| rylands v fletcher
* test of forseeability
* if escapes must be forseeable
* for example
* gas and electricity - **transco v stockport**
* poisonous fumes
* tree branches
* chair-o-plane - **hale v jenning bros** - liable
* fire - **lms v styrene packaging** - liable
* but - **stannard** - flamable tires - not liable
73
.3. non-natural use of land
| rylands v fletcher
* non-natural refers to some unusal use of land
* examples of natural uses that would not lead to liability
* fire in a grate
* defective electic wiring
* domestic water supply - **rickards v lothing**
* benefit of the community - **british celanese v ah hunt ltd**
* stored strips of metal foil for electrics , blew away
* benefit neigbourhood
74
.4. escapes and causes forseebale damage
| rylands v fletcher
* claimant needs propiroty interest in the land
* **read v lyons** - just employees and claiming for personal injury
* must be forseeable
* **cambridge water co** - although lots of floods, it was not reasonable to make them move , too much money
75
defences
| rylands v fletcher
* consent
* contributory negligence
* act of starnger - **perry v kendricks transport** - petrol tank, one unscrewed, another threw cigarrete
* act of god
* statutory authority
76
vicarious liability
| vicarious liability
* comes from the test **barclays bank**
* two part test
* .1. was the person alleged to have commited the tort an employee (relationship)
* .2. did the employee commit the alleged tort closely connected his employment (connection)
77
traditional test for employment
| vicarious liability - traditional test for employment
* if there is a clear employment relationship, we have 3 traditonal tests
* control test
* intergtaion or organisation test
* economic reality test
78
control test
| vicarious liability - traditional test for employment
* comes from the case **short v henderson** - "master & servant"
* how much autonomy over own work does tortfeaser have?
* if there is more control they are more likly an employee
* **mersey docks & harbour board v coggins and griffths**
* crane driver hired out , paying wages and sent with the equipment
* **hawley v luminar leisure**
* bouncer supplied by another company assualted a a customer
* club was liable
79
intergration or organisation test
| vicarious liability - traditional test for employment
* how intergrated/important is the tortfeaser to the company?
* test comes from
* **stevenson, jordan + harrison v mcdonald and evans**
* if they are only an accesary to the company they wont be an employer
* **cox v minister or justice**
* prisoner working in kitchen
* dropped rice on someones foot
* prison has lots of control and cant run without him
* employer
80
econimic reality test
| vicarious liability - traditional test for employment
* are they paying taxes, NI, payslip, pensions, tools and equpiment
* **employmentready mixed contre v minister**
* .1. employee agrees to provide work in exchange for a wage
* .2. the employee accpets that the work will be subject to the employer
* .3. everything in the contract is consistent
81
christtian brothers akin to employment test
| vicarious liability - akin to employment
* .1. d likly to have means of compensation
* .2. tort was commited as a result of activity on behalf of the d
* .3. the tortfeasers activity is likly to be part of the d business activity
* .4. the d has created the risk of the tort being commited by the torfeaser by employing them
* .5. d maintains a dgree of control over tortfeaser
* **catholic child welfare society v various claimants**
* teachers sexually assulated kids at school
* connected to employment - liable
* **mahamud v morrison supermarket**
* employee assaulted customer at petrol station - employers liable
* **barclays bank v various claimants**
* doctors assulated employees while carrying our medical exmainations for barclays
* bank not liable
82
independant contractors
| vicarious liability - akin to employment
* **barclays bank v various claimants**
* doctor had;
* other jobs
* insurance
* lots of autonomy
83
factors wether they are acting in course of their employment
| vicarious liability - acting in course of their employment
* acting against orders
* acting outside employment
* commiting a criminal act
* negligent act
* acting on a frolic of their own
84
acting against orders
| vicarious liability - acting in course of their employment
* is doing his job but acting against orders the employer is still liable
* if deloberatly acting in a prohinted way then employer not liable
* **rose v plenty**
* instructed not to use children in factories
* did and got injured
* employer liable as not prohibted just instructed
* **twine v bear express**
* c husband died due to negligence work who was prohibited not to give lifts
* employer not liable as prohinted not to
85
acting outside of employment
| vicarious liability - acting in course of their employment
* doing something outside of their employment the employer is not liable
* **beard v london general omnibus**
* bus driver drove bus without authority
* employer not liable as acting outside of employment
86
comminting a criminal act
| vicarious liability - acting in course of their employment
* if there is a close connection between crime and employment then employer liable
* **lister v helsey hall**
* sexually assaulted children at a special school
* close connection - employer liable
* **n v chief constable of merseyside police**
* sexual assult carried out by police officer
* employer not liable - only enabled him to gain trust
* **mohamud v morrison**
* employee assulated customer
* close connection
* employer liable
87
negligent act
| vicarious liability - acting in course of their employment
* if the employee does a job badly then employer still liable
* **century insurance v nothen ireland road transport board**
* petrol tank driver
* threw cigarrete on the ground
* employer liable
88
acting on a frolic of their own
| vicarious liability - acting in course of their employment
* causes damge to another while doing something outside their work, will not be liable
* **hilton v thomas burton ltd**
* took unathorised break and drive to cafe and had accident
* employer not liable as not acting in course of their employment
* **smith v stages**
* employee driving home from work but payed for that journey
* employer liable
89
liability for independant contractors
| vicarious liability - acting in course of their employment
* **morrison v various**
* publised data that he stole whenhe worked at morrisons
* had been fired
* morrions was not liable - was to delibratly harm morrison
90
evaulations of vicarious liability
| evaulations of vicarious liability
* confusing and ever changing employee test
* inconsitency of decisions in cases about employees undertaking dangerous or prohibited activities
* problems with replacing the employee test with a single test
* VL justified because employers should be more responsible and can pay more easily
* unfair burden on employers
91
confusing and ever changing employee test
| evaulations of vicarious liability
* rules can be complictaed
* if the torfeaser is on loan/subcontracted
* are doing something not directly part of employment
* **REFORM**
* have a single test
* fairer and employer would be in no dount for whom they are responsible for
92
problems with replacing the employee tests with a single test
| evaulations of vicarious liability
* restrictive to the diverse nature of employment contrcators
* could just use sub-contrcated workers to avoid responsibility for dangerous practice - unfair
* one size doesnt fit all - **mersey docks v coggins**
93
inconsistency of decisions in cases about employees undertaking dangerous or prohibited activites
| evaulations of vicarious liability
* **rose v plenty , twine v beans express**
* both employees were told not to do things but only employer in rose was liable
* hilton acting on a frolic m so uncsuccseful clam, whereas similar facts in smith v stages but emplyer liable
94
unfair burden on employer
| evaulations of vicarious liability
* unrealistic to expect an employer to have control over all possible and unpredictable actions of their employees
* less fair when tort is commited outside workplace/homeworking employer has less control
* contradicts fault based principle of liability
95
vicarious liability justified because employers should be more responsible and can pay more easily
| evaulations of vicarious liability
* employer is at a better place to compensate because they will have insurance
* possibility of claims can encourage the employer to take higher standards of care and not turn a blind eye
* **REFORM**
* take an active role in monitoring employees activites
* employer should be responsible as they are in control, responsible for training and have power to fire anyone not doing their jobs properly
