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Flashcards

Vicarious Liability

Laura Millward Tort Law English 34 cards

Cards in this deck (34)

  1. 1Two considerationsTortfeasor an employer?
    D the tortfeasor's employer?
  2. 2Ready Mixed Concrete v Minister of Pensions (1968)3 part test:
    1. Remuneration in exchange for personal service and mutuality of obligations.
    Required to provide work to the employee, employer required to do the work.
    2. Control
    3. All other contractual factors consistent with employment relationship.
  3. 3Express and Echo Publications v Tanton (1999)If a worker entitled to send a substitute to do work in his place cannot be an employment relationship.
  4. 4AutoClenz Ltd v Belcher 2011If the worker's written contract includes a substitution clause but this does not reflect the reality of the arrangement.
    Written terms are the starting point. Focus should be on the actual legal obligations of the parties and true nature of agreement.
  5. 5McFarlane v Glasgow City CouncilRight to send a substitute is fettered by employer who controls who to select then still an employee
  6. 6O'Kelly v Trusthouse Forte (1983)Casual waiter not an employee on grounds that there was no mutuality of obligations.
  7. 7Massey v Crown Life (1977)Look beyond the labels. Ensure consistency between contractual labels and reality of relationship.
  8. 8Warner Holidays Ltd v Secretary of State for Social ServicesNon-exhaustive list:
    1. level of control
    2. provision of tools/equip
    3. salary
    4. tax/PAYE/NI
    5. Sick pay
    6. Risk of profit/loss
    7. Integration within the organisation
    8. control over hours of work.
    9. right/ability to do other work
    10. Labelling
  9. 9Argent v Minister of Social Security (1968)Actor who taught part-time - self-employed. Didnt have to teach if he had an acting job
  10. 10JGE v Trustees of the Portsmouth Roman Catholic Diocesan Trust (2012)Paedophile priest. No contract, control, direct remuneration but court extended vicarious liability to relationship akin to employment.
    Policy concerns - D should be held responsible for actions of priest.
  11. 11Various Claimants v Institute of the Brothers of the Christian Schools (2012)Christian brothers case - paedophile case. Supreme Court - akin to employment.
    So far as it is fair, just and reasonable, that liability for tort wrong borne by D with means to compensate the victim.
  12. 12Christian Brother1. Employer more likely to have means to compensate.
    2. Activity on employer's behalf
    3. Part of business activity
    4. Employer created risk of tort being committed
    5. The tortfeasor under control of employer
  13. 13Cox v Ministry of JusticePrison service vicariously liable for prisoner dropping bag of rice on catering staff in prison kitchen.
  14. 14Mersey Docks and Harbour Board v Coggins and Griffiths (1947)Hire of crane driver and crane from one E to another. Original employer continued to pay and retained power of dismissal. Held to be liable.
  15. 15Viasystems Ltd v Thermal Transfer Ltd and Others (2005)Loan of employee. Both E held to have control. Dual liability when both are required to control to prevent negligent act.
  16. 16Salmond's definition of course of employment1. Express/Implied authorised by employer
    2. Incidental to carrying out employee's proper duties
    3. Unauthorised way of doing something authorised.
  17. 17Bayley v Manchester, Sheffield and Linc. Railway (1873)Over-zealous railway porter, threw someone without ticket off the train. Employer held to be vicariously liable.
  18. 18Century Insurance v Northern Ireland Transport Board (1942)Smoking cig whilst filling vehicle with petrol. Filling lorry with petrol (authorised) in unauthorised way (smoking). E held to be liable.
  19. 19Harvey v RG O'Dell (1958)5 miles to get lunch, incidental to work therefore within course of employment.
  20. 20Rose v Plenty13 year old injured whilst helping milkman. Expressly prohibited from enlisting help. Denning found liable - prohibited act done for employer's business.
  21. 21Smith v StagesTwo employees in car crash, paid travelling expenses and during work time H of L - course of employment.
  22. 22Joel v MorrisonHorse and cart. Frolic of his own. E not liable
  23. 23Beard v London General OmnibusBus conductor delusions of grandeur, drove bus and ran over claimant. Not in course of E
  24. 24Keppel Bus Co. v Saab Bin Ahmad (1974)Bus conductor hit passenger with ticket machine in argument nothing to do with buses. Not in course of E
  25. 25Daniels v Whetstone Entertainments Ltd (1962)Bouncer assaulted claimant 2x:
    1 - in fracas inside club.
    2. Outside.
    In course of E for 1 only.
  26. 26Makanjuola v MPC (1992)s. 48 Police Act - Commissioner vicariously liable for police actions only in course of employment. Sleeping with someone is not in course of E
  27. 27Storey v Ashton (1869)Driver went on deviated route after a delivery. Extent of deviation, travel in work time and purpose of journey all factors. Not in course of E.
  28. 28Twine v Bean Express (1946)Lorry driver picked up hitchhiker. Expressly told not to. Injured. C of App - trespasser and employee was not acting within scope of employment as he was doing something expressly prohibited.
  29. 29Conway v George Wimpey & Co (1951)Drivers expressly prohibited from giving lifts to employees of other companies. E not liable.
    Distinguished from Rose as in that case the act was being done for employer's business.
  30. 30Lister v Hesley Hall Ltd (2002)Ran LA care home and held vic. liable for sexual abuse from house father. Steyn:
    "concentrate on relative closeness of connection between nature of the employment and particular tort."
  31. 31Mattis v Pollock (Flamingo's nightclub) (2004)Bouncer threw someone out, went home, got knife, stabbed person and paralysed him. Court of Appeal - represented culmination of incident which had started in the club so nightclub liable.
  32. 32Gravil v Carroll & Another (2008)Punched during a rugby match. Close connection between the punch and 1st D's employment to play rugby.
  33. 33Mohamud v WM Morrison Supermarkets Ltd (2016)Cashier assaulted customer. Two fold test for closeness of connection:
    1. What was the nature of his job?
    2. Sufficient connection between position in which he was employed and wrongful conduct to make it just for E to be held liable?
  34. 34Fletcher v Chancery Lane Supplies (2016)Finished work at 12. Stepped out in front of a cyclist 40 minutes later. Still in work gear. Could not be established that there was a close connection.

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Tort Law Flashcards on Vicarious Liability , created by Laura Millward on 18/01/2018.
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Laura Millward
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