🚑Tort:Occupiers, vicarious, product liability Flashcards
What is vicarious liability, the most common type and its effect?
- Not a tort; it is a principle under which a person is liable for the torts committed by another.
- Most common= employer/employee.
- Makes employer liable in addition to (not instead of) its employee
Vicarious liability: elements
- Worker must be an employee (or relationship akin to employment)
- Who committed a tort
- In the course of their employment
Vicarious liability: what is an ‘employee’?
- Employed under a contract of service, receives wage, preforms service to just one person
- NOT independent contractor (employed under contract for services, service to multiple people) for which employers arent vicariously liable
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Vicarious liability: factors for establishing ‘relationship akin to employment’?
- Employer more likely to have means to compensate V than employee and probs insured
- Tort will have been committed due to activity being taken by employee on behalf of employer
- Employees activity likely to be part of business activity of employer
- The employer, by employing the employee to carry on the activity will have created the risk of the tort being committed by the employee
- The employee will, to a greater or lesser degree, have been under the control of the employer.
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Vicarious liability: what is included within ‘in the course of employment
- Wrongful authorised act
- Authorised act carried out in wrongful (careless) and unauthorised way (Eg. Unloading oil whilst smoking)
- Expressly prohibited acts which furtherer the employers business
- intentional tort for the employees own purposes theres a sufficient close connection between the work they were employed to do (what was the nature of job?) and tort (eg boys school warden and systematic abuse)
- Frolic cases where Employee deviated from the employers instructions but was still carrying out the employers business/fraud stemmed from employer authorised ac
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Vicarious liability: what is not ‘in the course of their employment)
- Personal retaliation
- ‘On a frolic of their own’ if acting outside course of employment when they commit a tort (Question of degree in departure each case-considering geographical divergence and departure from set task)
Vicarious liability: if established, what is the position re indemnity
Where employer has had to pay damages, may claim indemnity from the employee as both jointly liable
BUT informal agreement by employers liability insurers not to peruse this unless there is evidence of collusion or wilful misconduct by the employee
What duty do independent contractors owe
As occupiers-if have sufficient control over premises would be subject to obligations under both acts
As non-occupiers-common law of negligence-if contractor owes duty to take reasonable care to avoid harm to ppl they could reasonably be expected to be affected by their work, could inc trespassers
Occupiers liability: 2 types
- Liability of occupiers to visitors (Occupiers Liability Act 1957)
- Liability of occupiers to trespasser (Occupiers Liability Act 1984)
Occupiers liability to visitors: general duty of care and elements
A common duty of care owed by occupier to take reasonable care to enable the visitor to be reasonably safe in using the premises for the purpose for which they are permitted to be there:
1.Loss must be due to the state of the premises
2. D is an occupier
3. C is a visitor
Occupiers liability: what counts as ‘premises’?
inc. open land, fixed ore moveable structures, vessels, vehicles, aircraft
Occupiers liability: who is an occupier
someone who has a ‘sufficient degree of control over premises
Occupiers liability: can there be more than 1 occupier
yes
Occupiers liability: can an independent contractor be an occupier?
Yes if they have the required degree of control over area where they’re working
Occupiers liability: who is a ‘visitor’?
Persons who have express or implied permission to be on the occupier’s land.
Inc. ppl entering under terms of a contract & who enter to exercise any right conferred by law
Occupiers liability: position if a visitor exceeds their express/implied permission to be on land
They may become a trespasser
Occupiers liability to visitors: elements of breach
- Question of law: The defendant must reach standard of care of reasonable occupier
- Question of fact: Did the defendant fall below this standard?
Occupiers liability to visitors, breach: rules for children
- Require higher degree of care from occupier as they cannot be expected to appreciate dangers obvious to an adult
- If danger is an allurement: occupier must do even more to safeguard child’s safety
- Parental responsibility: can reduce/eliminate harm suffered to very young children
- BUT if danger is an obvious feature, liability can be escaped
Occupiers liability to visitors, breach: when will occupiers have discharged their common duty of care in relation to independent contractors
If in all the circumstances, the occupier acted reasonably in:
1. Entrusting work to an independent contractor AND work is construction, maintenance or repair (the more technical the work, the more reasonable it would be to employ an independent contractor)
2. Taking reasonable steps to satisfy themselves that the contractor was competent
3. Taking reasonable steps to satisfy themselves that the work had been properly done (n/a if work technical)
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Occupiers liability to visitors, breach: what will the court consider when deciding if the D fell below the standard of a reasonable occupier?
- Nature of the danger
- Purpose of visit
- Seriousness of injury
- Magnitude of risk
- Cost/practicality of steps required to avoid danger
- How long danger had been on the premises
- Any warning of danger
How can an occupier to comply with their duty of care to visitors?
Warning notice thats adequate to keep that particular visitor safe, consider
◊ Nature of warning: specific or too general
◊ Nature of danger: if hidden, warning needs to be more specific
◊ Type of visitor-written warning might not be enough for child
(distinguished from exclusion of liability)
Occupiers liability: causation
Same as all torts:
1) Proof of factual causation?
2) No novus actus interveniens breaking the chain of causation?
3) Damage not too remote?
Occupiers liability to visitors: 3 defences
- Consent/volenti
- Exclusion of liability (exclusion NOT warning notice)
- Contributory negligence
Occupiers liability defences: requirements for valid exclusion of liability
◊ Reasonable steps must have been taken to bring the exclusion notice to the claimant’s attention before the tort was committed.
◊ Wording of the notice must cover the loss suffered by the claimant.
Further limited by:
◊ Unfair Contract Terms Act1977 (business-non consumers) (ex. Death/personal injury)
◊ Consumer Rights Act 2015 (trader-consumer).
◊ Above acts don’t apply to the 1984 act
