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lecture 17
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- 1Ready Mixed Concrete (South East) Ltd v Minister of Pensions [1968] 2 QB 497 (contract of service)Facts: Ready Mixed Concrete contracted with others to provide delivery services for their concrete
These contracts required the ‘others’ to provide their own lorries as ‘independent contractors’ to assist with concrete delivery
Issue: Were these ‘others’ employees or contractors? If employees, Ready Mixed Concrete Ltd would be liable to pay national insurance contributions for the others
Decision: Independent contractors
Reasoning: Three factors determine whether a person is an employee rather than an independent contractor: a wage or remuneration; control over the employee’s activities and compliance of all other terms with the nature of employment contracts
Ready Mixed Concrete did not have enough control to be able to class its contractors as employees - 2Mersey Docks and Harbour Board v Coggins & Griffith (Liverpool) Ltd [1947] AC (lending an employee)A employed B as crane driver and hired B and crane to C. Was A or C vicariously liable when person injured as a result of B’s negligence? (i) term in contract between A and C is not decisive; (ii) burden of proof on permanent employer A to show that C was B’s employer for V.L. purposes; (iii) where labour only lent, easier to infer hirer is employer; where labour & plant is hired more likely that A remains employer, as C has no control over way plant is used.
- 3Hawley v Luminar Leisure Ltd [2006] IRLR 817bouncer hired to nightclub by his employer. Nightclub V.L. when bouncer assaulted customer, as they had sufficient control over employee. The claimant was assaulted and severely injured at a night club by a doorman supplied to the club by a third party company now in liquidation. He claimed the club was the ‘temporary deemed employer’ of the doorman. He also sought to claim under the insurance policy of the security company for an ‘accidental bodily injury’.
Held: Viasystems had decided that dual responsibility was sometimes possible, but this case was not such: ‘it would not be appropriate to attribute vicarious liability to both ASE and Luminar. In this case, there has been effectively and substantially a transfer of control and responsibility from ASE to Luminar.’ Liability under a policy has to be viewed from the perspective of the insured. The appeals were dismissed, and the club were responsible. - 4Conway v George Wimpey & Co [1951] 2 KB 266D employer told their employee drivers not to give lifts to non-employees. C worked for another company, given lift by employee of D, and injured in accident due to negligent driving. D not V.L. as driver was doing an unauthorised act, not simply doing authorised act in unauthorised mode.
- 5Rose v Plenty [1976] 1 WLR 141 confusedD prohibited employees from carrying boys on milk floats. C child injured on float, due to negligence of employee driver. D V.L. as prohibition didn’t affect course of employment, simply the method in which employee did job. Contrary to his employers orders, a milkman allowed children to assist him in his milkround. One was injured, and sued the milkman’s employer.
Held: The milkman had not gone so far outside the activities for which he was employed for the employer to escape liability. ‘The servant was, of course, employed at the time of the accident to do a whole number of operations. He was certainly not employed to give the boy a lift, and if one confines one’s analysis of the facts to the incident of injury to the plaintiff, then no doubt one would say that carrying the boy on the float – giving him a lift – was not in the course of the servant’s employment.’ - 6Lister v Hesley Hall Ltd [2002] 1 AC 215warden of boarding school for children with behavioural problems sexually abused C children at boarding school. This was the opposite of what he was employed to do. But D still V.L. Warden’s torts so closely connected with his employment that it was fair and just to hold employer V.L. Warden’s position of responsibility created closeness of connection between work and sexual abuse.
- 7Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11Extends “close connection” rule in vicarious liability, where an employee commits criminal offence against C. Prior to this, tortious liability in such cases extended to those areas of employment where there was a risk that such crimes would be committed, e.g. nightclubs (Mattiss v Pollock) and residential care homes/schools (Lister v Hesley Hall). In Mohamud v Morrison, employee worked at petrol station owned by D. He assaulted C, who suffered head injury. SC held that employee was not “on a frolic of his own”, and assault was committed “in the course of employment”. Therefore there was vicarious liability: “It was a gross abuse of his position, but it was in connection with the business in which he was employed to serve customers. His employers entrusted him with that position and it is just that as between them and the claimant, they should be held responsible for their employee’s abuse of it. [the employee’s] motive is irrelevant. It looks obvious that he was motivated by personal racism rather than a desire to benefit his employer’s business, but that is not here nor there
- 8Ministry of Justice v Cox [2016] UKSC 10Doesn’t have to be a contract of employment between D and person(s) who committed the tortious act: was the person acting for the benefit of that institution? Here, it was a prisoner, working for D as part of his sentence, who negligently injured a prison officer in the course of his work activities
- 9Various Claimants v Catholic Child Welfare Society [2012]It holds that it is fair, just and reasonable for the Institute Defendants to share with the Middlesbrough Defendants vicarious liability for sexual abuse committed by the brothers.
The changing law of vicarious liability for unincorporated associations
The law of vicarious liability has developed recently to establish a number of important propositions which were discussed in the judgment of Lord Phillips at paragraph 20.
It is possible for unincorporated associations (such as the Institute) to be vicariously liable for the wrongful acts of its members.
It is possible to be vicariously liable even if the wrongdoer’s act is in breach of the duty he owes to the person liable and even if the act was the criminal offence of sexual assault.
It is possible for two or more different defendants each to be vicariously liable for a single wrongful act. - 10Various Claimants v Catholic Child Welfare Society [2012]Former children at the children’s homes had sought damages for sexual and physical abuse. The court heard arguments as to the vicarious liability of the Society for abuse caused by a parish priest visiting the school. The Court of Appeal had found some defendants (school management trust) not vicariously liable. The other defendants appealed.
Held: The appeals succeeded. It was fair and just and reasonable for the defendants to share liability.
The law of vicarious liability has been extended. Unincorporated associations might now be liable, such liability extended beyond the strict extent of the employee’s duties, and could include illegal activity, and such liability can be shared
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- Law Fichas sobre lecture 17, creado por Kirsty Dcosta el 27/04/2017.
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