Vicarious Liability Flashcards
Catholic Child Welfare Society v Various Claimants
The two-stage test for vicarious liability -
- Was the r/s between D and P sufficiently “akin” to employment?
- Was the act P was doing at the time of the tort so closely connected with his employment by D that it would be just to hold P liable? (enterprise risk approach was expressly endorsed)
What is the enterprise risk approach and what is its relevance to vicarious liability?
where A’s relationship with B furthers A’s interests in a manner which created or significantly increased the risk that C would suffer the relevant injury this causative connection is a strong, but NOT DECISIVE factor pointing at sufficient connection between the A-B relationship and B’s tort.
E v English Province of Our Lady of Charity
The relationship of employment under a contract of service is no longer the paradigmatic relationship of vicarious liability but merely a POINT OF REFERENCE
Cassidy v MoH
oThe master’s vicarious liability for his servant is NOT ousted by the fact the servant’s work is of a technical nature for which the servant has special qualifications.
Lee v Cheung
One can have multiple employers, so the continuity of the contract of service is not usually relevant to vicarious liability.
Express and Echo Publications Ltd v Tanton
If the person engaged may delegate the assigned task to others rather than perform personally this usually points away from the existence of a contract of service.
Coggins and Griffiths (2 precedents)
- If A, B’s general employer gives consent to B to work for a temporary employer T, A is prima facie responsible for torts committed by B in the course of working for the temporary employer.
- If A is to shift responsibility to T he must show that the temporary employer had the authority to direct or delegate B’s manner of work.
Viasystems
If A and T have shared control over the organisation of B’s work (here B was a member of a team composed of a supervisor employed by A and another worker employed by T) they will BOTH be liable to C with equal contribution.
Hawley v Luminar Leisure Ltd
If by contractual provision or otherwise there has been a transfer of control and responsibility of B from A to T such that T may be deemed in sole control of B at the time of the tort, T will be held solely vicariously liable
Ormrod v Crosville Motors (contrast)
Where A, the owner of a vehicle, expressly or impliedly requests or instructs B to drive the vehicle in performance of some task or duty carried out for A, A will be vicariously liable for B’s negligence in the operation of the vehicle (contrast Morgans v Launchbury where no task was being performed for the owner of the vehicle).
Honeywill v Larkin Bros
where there is a “class of extra-hazardous acts, which in their very nature involve, in the eyes of the law, special danger to others”
Biffa Waste Services
the principle in Honeywill applies only to activities that are truly exceptional because otherwise the principle is too wide and unsatisfactory
McDermid v Nash
An employer cannot delegate his duty to devise a safe system of work for his employee to an independent contractor.
Gray v Pullen
A will be liable for B’s default for work done on the highway if an obstruction of the highway is inherent in the nature of the work B is hired to do
Salsbury v Woodland
A will only be liable if the work is done ON the highway
Woodlands v Essex CC
Besides highway and hazard cases D will have a non-delegable positive duty to see that care IS taken and will be liable for T’s negligent performance of that function which he was allocated
Woodlands v Essex CC (1)
C was especially vulnerable/dependent on D’s protection against the risk of injury (e.g. patients, children, prisoners).
Woodlands v Essex CC (2)
There was an antecedent relationship between C and D which placed D in C’s care, custody or control and made it possible to impute to D a positive duty to protect C from harm and NOT just a duty to avoid causing foreseeable harm to C.
Woodlands v Essex CC (3)
C has no control over how D performs his relevant obligations.
Woodlands v Essex CC (4)
D has delegated to a third party T some integral function of the positive duty to C and the 3rd party was exercising for such purposes D’s care, custody or control of C
Woodlands v Essex CC (5)
T had been negligent in the performance of that very function (NOT some collateral function) assumed by D and delegated to him.
Padbury
if the negligence is collateral rather than with regard to the very matter delegated to be done D is not liable for T’s negligence
Dubai Aluminium Co
Since vicarious liability is based on the recognition that carrying on a business enterprise involves the risk of others being harmed by the employees through whom the business is carried on, it is just that the business is liable to compensate C when those risks ripen into loss
Smith v Stages
Where A sends B to a different place of work, B will normally be in the course of employment when driving home, especially if he is paid wages during the travel, because driving from one place to another is necessarily incidental to B’s performance of his employment duties
Nottingham v Aldridge
If B is contractually required to use a certain mode of transport while travelling between home and work he will be doing so in the course of his employment
Polland v Parr (contrast)
A servant has implied authority to make reasonable efforts to protect and preserve his employer’s property in an emergency which endangers it (contrast Houghton v Pilkington – a servant loses this implied authority when he is no longer acting to protect his employer’s property )
Bayley v Manchester
If the servant does what he is authorised to do in a blundering way, his employer will be liable
Kaw v ITD Ltd
If B usurps the job of another, A will still be liable provided the job usurped is not a gross departure from B’s job and the job usurped is sufficiently closely connected with A’s business.
Limpus v London General Omnibus Co
An express prohibition issued by A to B must limit the sphere of B’s employment and not merely B’s mode of performance to protect A from liability
Lloyd v Grace, Smith & Co
B is not always acting outside the scope of his employment when he acts for his own benefit instead of A’s - consider whether B intends to receive that benefit while executing his occupational responsibilities
Rose v Plenty
If B, a driver, gives a lift to an unauthorised passenger who is engaged to further A’s business A will be liable for injuries to that passenger; otherwise in picking up the unauthorised passenger B will be doing something he is not employed to do at all
Mattis v Pollock
A was held liable for B’s act of violence against a nightclub customer because he had encouraged B to carry out his work in an aggressive and intimidating manner
Morris v CW Martin (contrast)
A was held liable for B’s act of theft because A was a bailee at the time (contrast Heasman – it is not sufficient to hold A liable for B’s theft if A’s employment of B merely gives B the opportunity to steal)
N v CC of Merseyside
If B merely uses his status as a police officer and the equipment he has been issued to commit a tort without purporting to perform any police function, A chief constable will not be vicariously liable for B’s tort
Lloyd
If A places B in a position where the act of fraud is within the scope of the ostensible authority with which A clothes him A will be vicariously liable for B
