Karteikarten
Vicarious Liability in Tort Law: Key Cases and Principles
Karten in diesem Stapel (13)
- 1VICARIOUS LIABILITYDistinct form of liability
By reason of the relationship between the wrongdoer A and B, the law holds B liable to the P for the injury or loss caused by A.
Eg. employer and employee.
Means that B is held liable without proof of fault or wrongdoing on his part although in some cases the court will not impose vicarious liability and may find A directly liable where it concludes that the D has breached a personal duty owed by him in the circumstances of the case.
Some cases neither the employer nor the employee is liable for the injury caused. - 2Counihan v Dublin Bus and Ebbs (2005)Counihan v Dublin Bus and Ebbs (2005)
2 cases brought by the P struck by a bus owned by the 1st D and driven by the 2nd D. The accident was as a result of a sudden and complete blackout by the 2nd D at the wheel of the bus = due to the tatent medical condition of the 2nd D, who was unaware of this condition; unlikely tests would have uncovered it.
Held:
Driver did not know and could not reasonably have known of his condition which caused the accident - not at fault and not negligent.
Driver was under DofC, after onset of symptoms, to control the situation.
There was no evidence of failure b y the 2nd D in this regard.
Where the employer did not know and could not reasonably have known of the employee’s condition which caused the accident, the employer was not at fault and not negligent. - 3Most frequent justification for imposing vicarious liability = existence of control by the D over the wrongdoer. Whenever one party actually or potentially exercises control over the activities of the wrongdoer, it is possible that the controller will be deemed legally responsible for injury via vicarious liability.In this way the categories of relationships within which vicarious liability may be imposed are not fixed and may exist outside the employment context - made clear by SC in Moynihan v Moynihan.
- 4Moynihan v Moynihan.Moynihan v Moynihan.
Facts:
2 year old P was injured by hot tea which spilt on her at her grandmother’s house.
At the time, the P’s mother and grandmother were washing dishes and an aunt was asked to pour the tea, went to answer phone, leaving infant unattended and the accident occurred.
Held:
Majority held that the grandmother could be vicariously liable for the negligences of the aunt since the hospitality had been “completely under the control” of the grandmother, and the aunt had been momentarily stepping into her shoes as requested.
Ct was influenced by the express delegation of duties and the fact that the grandmother was ultimately controlling the occasion.
Ct stressed that the relationship of mother-daughter was irrelevant to its decision to impose VL. - 5The approach in Moynihan was followed by HC in Duffy v Rooney & Dunnes Stores (1998)Duffy v Rooney & Dunnes Stores (1998)
Facts:
P’s aunt removed a fireguard and left the living room and the grandfather brought the 2 year old P into the room to play, where the child burned himself.
Held:
The Ct did not hold the grandfather vicariously liable for the act of the aunt, since she had never been in the e facto service of the grandfather. Nor had she acted under his instructions.
Instead the ct deemed the GF personally liable for letting the child play near an unguarded fire. - 6Moynihan and Duffy confirm that familial relationships do not of themselves attract vicarious liability but rather the essential element is the assumption of control or responsibility by one party.The lack of control was central to the SC ruling in Fallon v Gallon (1988)
Solr is not vicariously liable for the negligence of a barrister he instruction.
Ct did state obiter that a Solr may be personally liable for failing adequately to instruct a barrister, or for failing to hire an appropriate or competent barrister. - 7Commonly imposed on employers for wrongs committed by their employees in the course or scope of their employment.No of reasons why the Cts favour VL in the employment context:
The employer benefits from the acts of the employee and therefore should be responsible for harm arising from those acts
the employer can take protective measures to prevent employees causing injury/damage and
Employers can distribute their loss and a better mark for damages. - 8Questions to be answered: Does a necessary relationship of employer/employee exist? Did wrongdoing by the employee occur within the course/scope of that relationship?Definition of Employee
In many areas of law, the court takes a strict approach to the definition of employee
However, where the issue is considered in the context of responsibility for injuries caused by a employee to a 3rd party, the courts employ a more flexible approach and favour a “control” based test. - 9Walshe v Bailieboro Co Op & Grogan (1930) - good example of this flexible approach.Walshe v Bailieboro Co Op & Grogan (1930)
Facts:
The P had been injured when struck by the worker’s horse and cart. The worker owned the horse and cart himself and was paid piece-meal.
Held:
Despite the strong indications of an independent contractor working under a contract for services, the worker was deemed the servant or employee of the co-op, and vicarious liability was imposed on the co-op. - 10Ready Mixed Concrete v Minister for Pensions & National Insurance (1968)Ready Mixed Concrete v Minister for Pensions & National Insurance (1968)
The Ct referred to a mixed test to determine whether an individual is an employee.
Ct emphasised the issue of control but stated that personal service and additional features of the relationship should be taken into account.
In particular, the Ct stated that employees generally must do the work themselves and cannot delegate, whereas contractors are not necessarily required to do the work personally and may delegate. - 11Phelan v Coillte Teo (1993)Phelan v Coillte Teo (1993)
Facts:
The worker had arrived on site with his own tools;
Paid mileage allowance;
He had arranged with the Ds not to avail of any holiday or sick or pension rights
In return for which he was not taxed under PAYE systems as an employee.
Worker caused injury to 3rd party and the issue of vicarious liability was raised. - 12Phelan v Coillte Teo (1993) Held: Ct referred to the appropriate test based on the issue of control Ct deemed vicarious liability applied. Barr J: “It seems to me that where an employer and full-time employee decide to structure their relationship in such a way that it is cost-effective for both but in so doing they do not interfere with the hallmark of a contract of services, it would be quite unreal and also unjust to hold in such circumstances that the rights of an injured 3rd party against the employer would eb thereby fundamentally altered to such an extent as to render the employer free from vicarious liability which otherwise he would have had for the negligence of his employee.”Barr J
stated that the Ct ought to look at the reality of situation between the worker and the person who hired him.
Stated that in determining whether one party “controlled” the other, the Ct was not limited to the control actually exercised by the employer on the facts of the case but rather the control potentially exercisable by him.
This decision has been criticised by some commentators and it seems that the reference to “potential control” is an artificial test. - 13—
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