Tort Law - Vicarious Liability Flashcards
What case suggests geographical component to close connection test, when compared with Bazley?
Jacobi v Griffiths
What case highlighted deterrence as a possible justification for VL?
Bazley v Curry
Hall v Lorimer general
Visions mixer
Salsbury v Woodland judgment on extra-hazardous
COULD be done safely
Hall v Lorimer JUDGMENT
Independent because bore risk of bad debts
LJ Black in NA
No NDD bc diversion, and wouldn’t hypothesise
Dacas v Brook Street
Contractual description not determinativ
Hawley v Luminar Leisure judgment
No DVL because lender had no control, so just borrower
Agency method only supported by minority
Sweeney v Boylan
What two factors from VC v CC were considered unlikely to be weighty in Cox v MoJ?
Control and means of E
What judge in what case preferred non-delegable duty analysis to majority?
Lister v Hesley Hall, Lord Hobhouse
Century Insurance v Northern Ireland general
Petrol delivery, mtach
Mattis v Pollock general
Flamingo
Lister v Hesley Hall judgment
Look to close connection, then FJR - unauthorised mode unhelpful
What case confirmed relationship akin not confined to sexual abuse?
Cox v MoJ
In what case did Lawton LJ think more attention should be paid to parties’ intention in contract
Ferguson v John Dawson
General Engineering v Kingston and St Andrews judgment
Complete negation of obligation, so no VL. Motive relevant.
What case showed W doing something not for E’s benefit not fatal to VL claim?
Century Insurance v Northern Ireland
Name at least 2 academics who find the loss distribution argument insufficient?
Atiyah; Stevens; Morgan
Jacobi v Griffiths judgment
No VL
Mohamed v Morrisons judgment
Seamless, instinctive, don’t come back
Two benefits of going through tort law as opposed to relying on social security benefits/NHS?
Tort higher than social security and E may have insurance
Is VL fault-based?
No
Salsbury v Woodland judgment on highway
Not ON highway, NEXT to
What did LJ May say to determine if DVL appropriate in Viasystems v Thermal Transfer?
Who had control/responsibility to prevent the act
Rice prison officer
Cox v MoJ
What was Hobhouse critical of in Lister?
Reliance in Bazley on policy factors as not legal tests - non-delegable duty
Sickness, replace
Weddall v Barchester
A (A child) v MoD
DICTA hospital non-delegable duty to patients
Visions mixer
Hall v Lorimer
Who called ‘non-delegable duties’ a ‘logical fraud’?
Williams
Go slow
General Engineering v Kingston and St Andrews
Why did the ‘relationship akin to employment’ category arise?
Concern over physical and sexual abuse by members of religious organisations
What case emphasised control is only one factor?
Market Investigations
Graham v Commercial Bodywork general
Car repair, flammable on E overalls
Name at least 6/8 of the non-delegable duties from Alcock v Wraith
R v F, statute, support of neighbouring, escape of fire, highway, patient - hospital/school - child, extra-hazardous acts & safety to employees
Viasystems v Thermal Transfer judgment
DVL allowed because integrated into both
How were damages apportioned in Viasystems?
50/50
Various Claimants v Catholic Child general
Christian brothers teaching
McDermid v Nash Dredging judgment
Complete negation of system
Graham v Commercial Bodywork judgment
Outside scope because employment didn’t involve force/aggression/friction
Lister v Romford Ice and Cold Storage
Employer (D2) can sue employe (D1) to recoup damages
Fleming’s two fundamental concerns of VL
Just and practical remedy; right and just to bear the harm
What cases explore the impact of pre-meditation as oppose to instinctive responses?
Wallbank v Wallbank; Weddall v Barchester; Mattis v Pollock; Mohamed v Morrisons
What academic highlighted how compensation justification same as burglar?
Williams
Market Investigation v Social Security Minister ratio OUTLINE
Performing services as person in business on own account = independent contractor
What case gave three defining features of a non-delegable DoC?
Woodland v Swimming
What judge in Various Claimants identified 5 factors sufficient for employment relationship?
Lord Phillips
VL applies to harassment
Majrowski v Guys’ and St Thomas’
What two judges in Viasystems disagreed on test to determine if DVL appropriate?
LJ May and Rix
What did LJ Rix say to determine if DVL appropriate in Viasystems v Thermal Transfer?
Look at integration into business
Instinctive, machinery instructions
Wallbank v Wallbank
Why did Williams call non-delegable duties a ‘logical fraud’?
easy to invent
What academic supports loss distribution argument?
Williams
Dicta on hospital non-delegable duty to patients
A (A child) v MoD
Why could the duty in Woodland v Swimming be justified?
Parents legally obliged to leave children w/ school and fee-paying schools
Lifts to others
Conway v George Wimpey
What academic exemplifies control justification for VL?
Morgan
Academic which gave original test to determine course of employment
Salmond
What requirement for non-delegable was considered vital in Woodland v Swimming?
Prior relationship
In what case did the court refuse to expand CC test to whether worker was representative?
Mohamed v Morrison
NA v Nottinghamshire judgment on NDD
Failed
What judge in Lister was wary of reliance on policy factors in Bazley?
Hobhouse
Majrowski v Guys’ and St Thomas’ general
VL applies to harassment
Jacobi v Griffiths general
Guidance to teenagers, abuse outside work
Car repair, flammable on E overalls
Graham v Commercial Bodywork
LJ Burnett in NA v Nottinghamshire
No NDD for intentional torts, but maybe for child care
LJ Tomlin in NA
NDD ONLY for safety of accommodation
What is the final requirement for non-delegable duty?
FJR
Contractual description not determinative
Dacas v Brook Street
Lee Ting Sang v Chung Chi-Keung judgment
Employee because daily rate and ran no risk (despite skill)
Main case starting close connection test
Bazley v Curry
Best guide to application of close connection test are previous decisions, but low precedential value
Dubai Aluminium v Salaam
Rose v Plenty general
Milkman child
What academic suggested elevation of status + control/attribution needed
Morgan
Conway v George Wimpey judgment
No VL because prohibition limit sphere of employment
What factors did court have regard to in Bazley?
Power employee had, extent confrontation was inherent etc.
Racz v HO judgment
HO can be liable for police officer acts amounting to misfeasance in PO
Why is enterprise liability insufficient justification?
What about non-financially motivated businesses?
Stone v Taffe general
Knowledge - volenti for unauthorised mode?
Flamingo
Mattis v Pollock
Lister v Hesley Hall general
Boarding school, warden
Boarding school, warden
Lister v Hesley Hall
How would damages be assessed if DVL?
Civil Liability (Contribution) Act 1978
Police
Racz v HO
What two policy issues were raised in Bazley v Curry?
Fair compensation and deterrence
Maga v Trustees of the Birmingham Archdiocese judgment
Wider pastoral role meant never off duty
Stevens on loss distribution
Can’t explain why unsinured employers of domestic staff are VL
What case contradicts with Cox v MoJ?
NA v Nottinghamshire CC
What is the enterprise liability justification for VL?
Employers take financial benefit, so bear financial burden
Christian brothers teaching
Various Claimants v Catholic Child
NA v Nottinghamshire CC judgment
No VL because no close control
Rose v Plenty judgment
unauthorised mode but still in course of employment
Hawthorn cables road
Salsbury v Woodland
What case gave a status-based risk test for close connection?
Maga v Trustees of the Birmingham Archdiocese
What was the original test to determine course of employment for VL
‘Unauthorised mode’ test
Lee Ting Sang v Chung Chi-Keung general
Stone mason
Mattis v Pollock judgment
Deliberate widening of test in Lister, spite largely irrelevant and encouraged violence
Crisis Couriers
Hollis v Vabu
Hollis v Vabu general
Crisis Couriers
Wallbank v Wallbank
Instinctive, machinery instructions
Name the four factors given in Market investigation to determine if employment relationship
Control, equipment and helpers, financial risk/profit from sound management and contractual documentation
Name at least 4/6 justifications for VL
Control; enterprise liability; identification; loss distribution; compensation; deterrence
Viasystems v Thermal Transfer general
Flood, air conditioning airduct
Conway v George Wimpey general
Lifts to other
What else can employer be directly liable for?
Breach of duty of care
Bouncer for club a long time
Hawley v Luminar Leisure
Knowledge - volenti?
Stone v Taffe
Weddall v Barchester judgment
Thought-out and premeditated so no VL
lender and borrower can decide between themselves liability for negligence of hire worker to 3rd
Thompson v Lohan
What method of making D2 liable for D1 was not considered in VC v CC?
Agency relationship
Bazley v Curry general
Employee sexual abuse
Stone mason
Lee Ting Sang v Chung Chi-Keung
fROM WHAT JURISDICTION WAS barley v Curry?
Canada
Cox v MoJ general
Rice prison officer
What does the relationship akin to employment category extend VL to?
De facto rather than just de jure employees
What case supported compensation justification and how?
Bazley v Curry - SUGGESTION refusal for VL due to absence of fair and just compensation
Century Insurance v Northern Ireland judgment
VL - only in negligent place to throw match because of E
Commonwealth v Introvigne judgment
ND DoC by school to students
What case gives several factors to determine employment relationship
Market Investigation v Social Security Minister
What case on NDDs shows general reluctance to establish duty?
Salsbury v Woodland
Market Investigations v Social Security Minister general
Survey
NA v Nottinghamshire CC general
Foster parents
Ferguson v John Dawson general
Lawton LJ thought more attention should be paid to parties’ intention in contract
Why is control insufficient justification for VL?
Parent has control over child but not always VL
Various Claimants v Catholic Child judgment
Relationship similar enough to employment through vows and control
5 factors for employment relationship in VC v CC per Lord Phillips
E had means to pay, W acted on Er’s behalf, W part of E’s business, E created risk by employment and E had control
General Engineering v Kingston and St Andrews general
Go slow
Cox v MoJ judgment
Middle three factors from VC v CC key for employment
Dubai Aluminium v Salaam
Best guide to application of close connection test are previous decisions, but low precedential value
What is the loss distribution justification for VL?
Employee lacks sufficient resources and can’t spread loss like a big company
Sweeney v Boylan general
Agency method only supported by minority
McDermid v Nash Dredging general
Deckhand
What is the main reason ND DoC was developed?
Defence of common employment precluded VL, but defence now abolished
Milkman child
Rose v Plenty
What case showed unincorporated association indistinguishable for VL from professional organisation?
Various Claimants v Catholic Child
Hawley v Luminar Leisure general
Bouncer for club a long time
Morgan on loss distribution
Can’t explain why we lack more efficient forms of loss spreading
What academic supports compensation justification?
Fleming
Mohamed v Morrisons general
Petrol station USB
What judge in what case gave 7 situations of non-delegable duties?
Neill LJ Alcock v Wraith
Maga v Trustees of the Birmingham Archdiocese general
Non-catholic victim
Main case on dual VL
Viasystems v Thermal Transfer
Thompson v Lohan
lender and borrower can decide between themselves liability for negligence of hire worker to 3rd
What suggests Cox was a radical expansion of VL?
Both NA v Nottinghamshire CC and VC v CC found control to be vital
Williams on loss distribution
‘Social insurance’ justification best fits the law
Petrol station USB
Mohamed v Morrisons
Three requirements for non-delegable duty
Vulnerable/dependent, prior relationship and no control by C
Example of highway non-delegable duty
Salsbury v Woodland
What case made it clear no need for contract of employment for DVL?
Viasystems
Deckhand
McDermid v Nash Dredging
Racz v HO general
Police officer
3 possible devices for D2 to be liable for D1
Non-delegable DoC; law of agency; VL
What case confirmed dicta in A (A child) v MoD?
Woodland v Swimming
Case on safety to employees non-delegable duties
McDermid v Nash Dredging
Salsbury v Woodland general
Hawthorn cables road
Why is looking to contractual documentation to determine employment relationship controversial?
Incentives for employers to make employee LOOK independent, e.g. less tax
Who put forward two fundamental concerns of VL?
Fleming
Three requirements of VL
D1 committed a tort, D1 is or akin to employee of D2 and close connection between tort and employment
What academic does not support compensation?
Williams
What is the hallmark of employment relationship?
Employer says what is to be done AND HOW
Commonwealth v Introvigne general
School to students NDD
Weddall v Barchester general
Sickness, replace
Non-catholic victim
Maga v Trustees of the Birmingham Archdiocese
School to students NDD
Commonwealth v Introvigne
Various Claimants v Catholic Child on DVL
Satisfy VL for both = DVL
What judge in Lister said duty of warden interwoven with abuse?
Steyn
