Vicarious Liability

Question 1

Catholic Child Welfare Society v Various Claimants

Answer 1

The two-stage test for vicarious liability -

1. Was the r/s between D and P sufficiently “akin” to employment?
2. 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)

Question 2

What is the enterprise risk approach and what is its relevance to vicarious liability?

Answer 2

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.

Question 3

E v English Province of Our Lady of Charity

Answer 3

The relationship of employment under a contract of service is no longer the paradigmatic relationship of vicarious liability but merely a POINT OF REFERENCE

Question 4

Cassidy v MoH

Answer 4

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.

Question 5

Lee v Cheung

Answer 5

One can have multiple employers, so the continuity of the contract of service is not usually relevant to vicarious liability.

Question 6

Express and Echo Publications Ltd v Tanton

Answer 6

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.

Question 7

Coggins and Griffiths (2 precedents)

Answer 7

1. 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.
2. 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.

Question 8

Viasystems

Answer 8

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.

Question 9

Hawley v Luminar Leisure Ltd

Answer 9

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

Question 10

Ormrod v Crosville Motors (contrast)

Answer 10

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).

Question 11

Honeywill v Larkin Bros

Answer 11

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”

Question 12

Biffa Waste Services

Answer 12

the principle in Honeywill applies only to activities that are truly exceptional because otherwise the principle is too wide and unsatisfactory

Question 13

McDermid v Nash

Answer 13

An employer cannot delegate his duty to devise a safe system of work for his employee to an independent contractor.

Question 14

Gray v Pullen

Answer 14

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

Question 15

Salsbury v Woodland

Answer 15

A will only be liable if the work is done ON the highway

Question 16

Woodlands v Essex CC

Answer 16

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

Question 17

Woodlands v Essex CC (1)

Answer 17

C was especially vulnerable/dependent on D’s protection against the risk of injury (e.g. patients, children, prisoners).

Question 18

Woodlands v Essex CC (2)

Answer 18

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.

Question 19

Woodlands v Essex CC (3)

Answer 19

C has no control over how D performs his relevant obligations.

Question 20

Woodlands v Essex CC (4)

Answer 20

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

Question 21

Woodlands v Essex CC (5)

Answer 21

T had been negligent in the performance of that very function (NOT some collateral function) assumed by D and delegated to him.

Question 22

Padbury

Answer 22

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

Question 23

Dubai Aluminium Co

Answer 23

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

Question 24

Smith v Stages

Answer 24

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

Question 25

Nottingham v Aldridge

Answer 25

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

Question 26

Polland v Parr (contrast)

Answer 26

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 )

Question 27

Bayley v Manchester

Answer 27

If the servant does what he is authorised to do in a blundering way, his employer will be liable

Question 28

Kaw v ITD Ltd

Answer 28

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.

Question 29

Limpus v London General Omnibus Co

Answer 29

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

Question 30

Lloyd v Grace, Smith & Co

Answer 30

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

Question 31

Rose v Plenty

Answer 31

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

Question 32

Mattis v Pollock

Answer 32

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

Question 33

Morris v CW Martin (contrast)

Answer 33

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)

Question 34

N v CC of Merseyside

Answer 34

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

Question 35

Lloyd

Answer 35

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