Vicarious Liability Flashcards
Market Investments v Social Security Minister (factors)
FACTORS TO TAKE INTO ACCOUNT: “employee”
1) CONTROL
2) Equipment
3) Assistants/helpers
4) Financial risk
5) Management
6) Opportunity to benefit from “sound management”
7) Contractual documentation (controversial - unless worker insists)
Market Investments v Social Security Minister
specific instructions = control = employee
Lee Ting Sang v Ching Chi-Keung
no equipment, no assistant, fixed daily rate, no opportunity to benefit from sound management = employee
Hall v Lorimer
no equipment, no profit/loss, but bears financial risk = independent contractor
Viasystems (Tyneside) v Thermal Transfer
Dual VL possible
1) You do not have to show employee has become employee of borrower
2) VL is transferred - Rix LJ: extent that D1 has become “part of the work” (approved by SC in Various Claimants)
Liability for dual VL
50/50 (you can’t decide how liable someone is if its supposed to be strict liability)
Various Claimants v Catholic Child Welfare Society
Relationship “akin” to employment = also fine
akin if 5 factors:
1) D2 has means to pay
2) D1 acting on D2’s benefit
3) D1 likely to be part of D2’s business activities
4) D2 created risk by employing D1
5) D2 had control over employee
Cox v Ministry of Justice
Didn’t apply Various Claimants 5 stage test (also didn’t address NA)
- said means to pay and control not really relevant
- so it won’t be given much weight in future decisions
NA v Nottinghamshire CC
CA case before Cox - said control is important
- foster home is supposed to function as an independent unit so authority had no control so no VL
Rose v Plenty
historical “unauthorised mode” test
- only no VL if D1 is doing opposite of what he is employed to do
- if D1 is just doing what he is employed to do but in an unauthorised way = fine still VL
General Engineering v Kingston
fire brigade industrial dispute “go slow”
- used unauthorised mode test = so no VL
- negation of their obligations = not an unauthorised mode
Bazley v Curry
australian case
- rejected unauthorised mode test
- Said there was VL because
(1) FAIR COMPENSATION
(2) DETERRENCE
employers should do all they can re: supervision and employment of people
Lister v Hesley Hall
Rejected unauthorised mode test - not useful or helpful
NEW TEST: “sufficiently close connection” between tort and employment to make it FJR to impose VL
L. Steyn - warden abused his position = connection
L. Clyde - during work hours = helpful but not conclusive, mere fact that employment gave opportunity is not enough
- e.g. if Gardner = no VL
L. Hothouse - used NDD
Maga v Trustees of Birmingham Archodiose
yes VL - priest is responsible for youth work - never off duty
Mattis v Pollack
yes VL - D2 encouraged door staff to be hostile/violent
close connection if you tell D1 to do something and they do
Wedall and Wallbank
joint cases
Wedall - no VL (premeditated and thought out)
Wallbank - yes VL (instinctive emotional reaction)
Muhammad v WM Morrison
Yes VL
- first response = part of duties, following to car is part of the same episode
- “Don’t come back here” - acted as a furtherance of D2
- Cox was discussed but SC said just because Cox expanded doesn’t mean we should expand test for scope of VL (stick with close connection test)
Graham v Commercial Bodyworks
D1 banter with C = no VL (outside scope of employment)
Smith v Stages
VL - journey made in course of employment
- look at degree of deviance from authorised journey
Tuberville v Stamp
you can be primarily liable if you make D1 do the thing directly so D1 is just an agent
What do NDDs do
allow X to be liable for torts by independent contractors
- D is liable for own obligation - can delegate performance but not legal obligation
Non Delegable Duties
Alcock v Wraith & Others
1) Stautory duties cannot be delegated
2) withdrawal of support from neighbouring land
3) escape of fire
4) Rylands v Fletcher
5) Operations on highway causing damage to persons using highway
6) Safety of employees (even if D2 isn’t one who fell short devising system of safety)
7) Extra hazardous acts
McDermid v Nash Dredging
C on a ship employed by D
- C went on X, X didn’t follow safety protocol
- C sued D for NDD (didn’t provide safe system of work)
Salisbury v Woodland
Cut bush, fell onto motorway along with overhead power cables
- no liability! even though satisfies 5 and 7
- near highway isn’t on highway
- it can be done in careful way, so it isn’t inherently hazardous
