Torts And Commerce

Question 1

Which three areas of law are utilised in protecting trade secrets, commercial confidential information and private information?

Answer 1

Contract, equity and tort

Question 2

In which ways might an employer’s liability in tort arise?

Answer 2

Common law duty of care, vicarious liability, and tort of breach of statutory duty

Question 3

Can employers ever delegate legal responsibility for their employees?

Answer 3

No - factual responsibility can be delegated, but legal responsibility cannot be.

Question 4

What are the four limbs of employers’ liability (set out in Wilsons and Clyde Coal Co)?

Answer 4

Competent workers
Safe machinery and equipment
A safe system of work
A safe workplace

Question 5

What is employer’s liability?

Answer 5

Employers have common law duty of care to employees
Non-delegable
Primary liability, or liability that is personal to the employer
All requirements of the tort of negligence must be met

Question 6

What is vicarious liability?

Answer 6

A party is held strictly liable for a tort committed by another party
Secondary liability

Question 7

What is the test for vicarious liability?

Answer 7

1. A tort has been committed
2. There is either a relationship under contract of employment, or a relationship ‘akin to employment’, between employer and tortfeasor
3. The tort was committed in the course of employment (or similar relationship), where there is a sufficiently close connection between tort and nature of tortfeasor’ job

Question 8

What is the 3 stage test from Cox v Ministry of Justice (2016)?

Answer 8

1. Tort committed by individual who carries on activities as an integral part of defendant’s business
2. Tort was committed as a result of an activity carried on by the defendant’s business for its own benefit
3. The commission of the tort is a risk created by the defendant in assigning those activities to the individual in question

Question 9

Which case overruled the Salmond test to make employers vicariously liable for deliberate and intentional serious wrongdoing on the part of the employees?

Answer 9

Lister and others v Helsey Hall Ltd (2001)

Question 10

What was the ‘course of employment’ test widened to in Lister?

Answer 10

Was the employee’s act so closely connected with the general nature of his job that it would be fair and just to conclude that the employer was vicariously liable?

Question 11

In the course of employment test, what two factors must the courts consider?

Answer 11

1. What is the nature of the job?
2. Was there a sufficient connection between the worker’s position and their wrongful conduct to make it right for the employer to be held vicariously liable?

Question 12

What two factors does vicarious liability depend on?

Answer 12

1. The relationship between tortfeasor and defendant

2. The connection between this relationship and the tort committed

Question 13

What justification arguments are there for vicarious liability?

Answer 13

1. Justice arguments
2. Incentive and deterrence arguments
3. Loss spreading / deep pockets argument