Vicarious Liability Flashcards
Ready Mixed Concrete v Minister of Pensions (Part 1)
A driver contracted with a mixed concrete company for the delivery of concrete. The contract declared him an ‘independent contractor’ and set out wages and expenses. The driver was to purchase his own vehicle, yet with a requirement that the vehicle be painted in company colours. He was to drive thevehicle himself, but under compliance with certain company’s rules including eg the manner of vehicle repairs and payments. Was the driver an ‘employed person’ under a contract of service with the company for the purposes of the National Insurance Act 1965?
Ready Mixed Concrete v Minister of Pensions (Part 2)
Firstly, the court held that whether a contract creates a ‘master and servant’ relationship between an employer and employee is determined on the basis of contractual rights and duties, and that the nomenclature used in the contract is irrelevant. Thus, the fact that the contract termed the driver to be an ‘independent contractor’ is not material. Secondly, the court held that employment under a contract exists when: (1) a person agrees to perform a service for a company in exchange for remuneration, (2) a person agrees (expressly or impliedly) to subject himself to the control of the company to a sufficient degree to render the company his ‘master’, including control over the task’s performance, means, and time, and (3) the contractual provisions are consistent with ordinary contracts of service.
Ready Mixed Concrete v Minister of Pensions (Part 3)
On the facts, the court held that the driver had sufficient freedom in the performance of his contractual obligations as he was free to decide the vehicle, his own labour, fuel, and other requirements in the performance of the tasks. In lieu of these freedoms, he was an independent contractor and not an employee of the company.
Mersey Docks and Harbour Board v Coggins and Griffiths (Liverpool)
A worker was injured by a negligently driven crane. The crane and the driver had been hired out to stevedores under a contract which stipulated the the driver was to be the employee of the stevedores, but the Board paid his wages and retained the right to dismiss him. The stevedores controlled the crane’s operations, but did not direct how the driver controlled the crane. It was held that the Board (as the crane driver’s general employer) retained responsibility for his negligence.
Wilson v Pringle
As a schoolboy prank, the defendant pulled another 13 yo pupil’s bag, causing the claimant to fall over and suffer hip injuries. The court held that liability depended on whether pupil’s actions had truly been ‘hostile’ and not simply a schoolboy prank, as hostility was a necessary element of an actionable battery (Cole v Turner). Any hostile touching was enough for a battery.
Collins v Wilcock
This case is contrasted from Wilson v Pringle, as there is conflict on whether or not hostility is a requirement. Here, a police officer was liable for battery when she took hold of a suspect’s arm but did not arrest her. The appropriate test was whether or not the contact was acceptable within the conduct of ordinary daily life.
Lord Wright in Lochgelly & Coal Co v McMullan
The requirements of modern tort of negligence include (1) the existence of a duty of care owed but the defendant to the claimant, (2) a breach of that duty, and (3) damage or injury being caused by that breach of duty.
The Salmond test
Traditionally used to determine the issue. An act will be in the course of employment under the test if it is (a) a wrongful act authorised by the employer, or (b) a wrongful and unauthorised mode of doing some act authorised by the employer. In other words, a master is liable even for acts which he has not authorised, provided that they are so connected with acts he has authorised that they may be rightly regarded as mode (albeit improper) of doing them.
Lister v Hesley Hall (Part 1)
HoL reviewed the application of the Salmond test, which focused on whether the employee’s wrongful act was either authorised by the employer or an improper way of doing what was authorised. It was held that in cases of serious criminal conduct, the proper method of determining the course of employment is not to ask the simplistic question of whether the acts were modes of doing authorised acts, but to adopt a broad approach to the question of the scope of an employee’s employment.
Lister v Hesley Hall (Part 2)
Here, the warden of a residential school for children, who had some years after the events been convicted of sexual assaults on pupils in his care, was acting in the course of employment so as to make his employers vicariously liable.
Lister v Hesley Hall (Part 3)
The House emphasised the close connection between the acts of the warden and the job he was employed to do. The defendants had entrusted the care of the children to the warden and the abuse had been inextricably interwoven with the carrying out of his duties: his torts had been so closely connected with his employment that it would be fair and just to hold the defendants vicariously liable. A number of judges noted that the warden was the very person selected to discharge the employer’s own pastoral responsibilities to the children.
