Mersey Docks v Coggins • Harbour authority hire out crane to
unload ship. Crane driver had an accident Question was – who’s
employee was he? HELD: the authority was • H.A told driver how
to drive crane, but stevedores tell him what to pick up and set
down. • Accident caused by bad driving. • Stevedores “had no
control over how he worked it, as distinguished from telling him
what he was to do with the crane”. • Harbour authority still in
control and vicariously liable.
Hawley v Luminar Leisure [2006] = Doorman hired by company.
Who was in control? HELD= it was the club, not the security
company who was in charge (they controlled what the security
personal did, and how he did it) The nightclub “had acquired
control” – it was fair and just to attached vicarious liability.
Viasystems v Thermal Transfer ***(accepted in Scotland)
• Reclaimers= Factory owners engage A to install air
conditioning. • A sub-contract ducting work to B. This was done
by C •B uses a fitter and mate supplied to B by C on a
labour-only basis - under supervision of a fitter working for B.
• Fitter's mate negligently damages fire protection sprinkler
system, resulting in severe flood damage. • Which employer is
liable, A, B or C? Answer: employer A liable under contractual
indemnity; but employers B and C also jointly vicariously
liable.= because this young fitter was working under the
supervision of B and C – both had measures of control over him,
thus it was “fair and just” to divide liability between them”
Various Claimants v Catholic Child Welfare Society [2013] Cases, of
children attending a school were abused by a member of that school.
UKSC looked at who had control, but the school was managed by the
Roman Catholic dioceses HELD= both were jointly vicariously liable =
“ In the context of vicarious liability the relationship between the
teaching brothers and the institute had many of the elements, of the
relationship between employer and employees. (i) The institute was
subdivided into a hierarchical structure (ii) The teaching activity of the
brothers was undertaken because the provincial directed it. Brothers
entered into contracts because the provincial required them to do so.
(iii) The teaching activity undertaken by the brothers was in line with
mission. The brothers were bound to the institute not by contract, but
by their vows**relationship between the brothers and the institute
closer than that of an employer and its employees
(2) Scope of Employment?
Was the employer’s delict “so closely connected with his
employment that it would be fair and just to hold the employers
vicariously liable” Lister v Hesley Hall
Lister v Hesley Hall [2002] Adults, made accusations of child abuse
against their schools. Claimed they had been abused by the warder of the
boarding house. “The question is whether the warden's torts were so
closely connected with his employment that it would be fair and just to hold
the employers vicariously liable. HELD yes. The sexual abuse was
inextricably linked with the carrying out of duties by warden. There is
vicarious liability.” per Lord Clyde at paras 43-45 (1) It is necessary to look
at the context and the circumstances in which the employee’s wrongdoing
occurred. 2) The time and the place at which the actings occurred (3) The
mere fact that the employment had furnished the employee with the
opportunity to commit the wrong is not in itself sufficient
Smith v Stages [1989] Two employees based in
Staffordshire – were paid to do a job in Pembrokeshire,
but were not given directions. Finished job early, but
were paid to stay over night. They returned soon after.
Mr. Stages drove into a wall, and Mr. Smith was
injured. Since they were acting in the scope of their
employment. Were the employers liable? HL- Held yes,
men were being paid, and since they were going to
another job (they were still on the employers business)
thus they would be liable
Smith v Stages: 6 rules (Lord Lowry) Unauthorised/prohibited
behaviour 1. An employee travelling from his ordinary residence to his
regular place of work is not acting in the course of his employment
unless he is obliged. 2. Travelling in the employer's time between
workplaces will be in the course of the employment. 3. Receipt of
wages for travelling time indicates that the employee is acting in the
course of his employment. 4. An employee travelling in the employer's
time from home to a workplace other than his regular workplace or in
the course of a peripatetic occupation or to the scene of an
emergency is acting in the course of his employment. 5. A deviation
from or interruption of a journey undertaken in the course of
employment (unless merely incidental to the journey) will take the
employee out of the course of employment.6. Return journeys to be
treated same as outward journeys
b) Unauthorised/prohibited behaviour
*Hemphill v Williams 1966 SC (HL) Transport of boys sent to
summer camp in Argyll- Sent in the back of a lorry. At the camp,
the boys met a group of girls and managed to persuade the
lorry driver, that on the way home that he should drive via
“Stirling” so that they could help the girls change trains. Lorry
Driver agreed, but he did not know the route. He crashed, and
some of the boys died. QUESTION – Should the employers be
vicariously liable? HELD = Yes, he had gone from the
authorised route, but he was still transporting passengers.
Which was part of his work. He was still going about ‘his
masters business’
a) TRAVELING TO WORK
(b) the “close connection test”:
NON-DELEGABLE Duties of
Care > Lister v Hesley Hall +
S v Lothian H Board
A v Ministry of Defence [2005] British military personnel in Germany.
Medical services were contracted to German doctors. But a child was
injured. HELD= Ministry of defence is not a health care organisation,
made sense to outsource services. But if a hospital accepts a
patient, they owe a non-delegable duty. *S v Lothian Health Board
2009 Mother of a child born with a disease. Sued the health board,
because she had a prenatal test , which was not carried out by an
employee of the hospital, but rather by an employee of the University
of Edinburgh HELD= Hospital could not shunt responsibility for a part
of the package, once you offer a package of care to a patient, you
duty of care in non-delegable
STATUTORY LIABILITY
A. PRODUCT LIABILITY
Product liability refers to a defect in the product that somehow
damages the person.Hurdle for consumer to surmount. Consumer
must prove: a) product was defective; b) manufacturer was
negligent; and c) in the case of composite products, the defender
was responsible for the defect.
Who is liable? s 2(2) “(2) This subsection applies to-- (a) the
producer of the product; (b) any person who, by putting his
name on the product or trade mark has held to be the producer
of the product; (c) any person who has imported the product
into a member State from a place outside EU” >>>The
producer • S1(2) defines the producer as the manufacturer or
processor of the product. • S2(5) in cases of complex
products, joint liability is imposed on the producer of the end
product and the producer of a faulty component in a complex
product. • Non-commercial producers have a defence under s
4(1)(c). The own-brander: s 2(2)(b) “any person who, by
putting his name on the product or using a trade mark or other
distinguishing mark in relation to the product, has held himself
out to be the producer of the product”
The importer: s 2(2)(c) “any person who has imported the
product into a member State from a place outside the EU
The supplier may be liable if (s 2(3)): • (a) the person who
suffered the damage requests the supplier to identify the
producer, own-brander or importer; • (b) that request is made
within a reasonable period after the damage occurs (c) the
supplier fails, within a reasonable period after request, either to
comply with the request or to identify the person who supplied
the product to him.
The product: s 1(2) • “‘product’ means
any goods or electricity and … includes
a product which is comprised in another
product, whether by virtue of being a
component part or raw material or
otherwise” • E.g. blood products (A v
National Blood Authority)
• A product is defective “if the safety of the product is not such
as persons generally are entitled to expect” (s 3(1)). • Contrast
Richardson v LRC Ltd and Tesco v Pollard with A v National
Blood Authority ***Richardson v LRC Ltd Condom burst, the
pursuer challenged this. Court held that a fracture is not prima
facie evidence of a defect. You are not entitled to expect a
100% safety record in this type of product. Manufacturer had
never claimed its products were safe, thus no entitlement for the
consumer.
What does “defective” mean?
A v National Blood Authority (leading modern case) Claimants had
received blood transfusions that contained hepatitis virus. HELD – consumers
would expect that this process would be safe. That the transfusions would be clean
and free from infection= thus liability was recognised in this case.
Relevant factors (s 3(2): (a) the manner in which..the product has been
marketed, its get-up, the use of any mark in relation to the product and any
instructions for, or warnings to, refraining from doing anything (b) what might
reasonably be expected to be done with or in relation to the product; and (c) the
time when the product was supplied by its producer to another
Causation • The damage must be "caused wholly or partly by a
defect in a product“ (s 2(1) ) . Ide v ATB Sales Ltd [2008] Conjoined
cases – cyclist was injured when his bike broke apart (handle bar)
court accepted the inference of the manufacturing*** Second case,
car caught fire. The court found that they were preparing to accept
an inference in a defect of the car (on the balance of probabilities)
that resulted in the damage.
DEFENCES
A) That the defect is a result of the producer having to comply
with UK or EC regulations (s 4(1)(a))---(B) The defender did
not supply the product (s 4(1)(b)). --(C) Goods were not
supplied in the course of a business (s 4(1)(c)). (D) Defect did
not exist in the product at the relevant time, (s 4(1)(d)). (E)
‘Development risks’ defence available if the state of scientific
and technical knowledge at the relevant time was not such that
a producer might be expected to have discovered the defect,
(s 4(1)(e)). [F] Defence available to producer of component
parts in complex products if defect due to design defect in
finished product, or due to instructions given to him/her by the
producer of the finished product, (s 4(1)(f)).
• “Damage” means death or
personal injury or any loss of or
damage to any property (including
land) (s 5(1)).
CONSUMER PROTECTION ACT 1987
B. OCCUPIERS' LIABILITY
McDyer v Celtic FC= if you own a football stadium, and
you are in control. You must look after those who are in
it. Occupier had not done everything reasonable to make
it safe from hazards.
Who is the occupier? “a person occupying or
having control of land or other premises” (s
1(1)) Mallon v Spook-Erections 1993 SCLR
845 Food stall in an open air market- they
were deemed to be in control **Even if they
are not in, they may still be liable
Telfer v Glasgow Corporation 1974 Disused building in
Glasgow- They negotiated a sale for the building, but at the time
of the accident (kids go in the building, and used it as a
playground) HELD= even the co-op had moved out, they were
still liable as occupiers
Wheat v Lacon [1966] If landlords are responsible for the
maintenance or repair of premises, they are liable for injury or
damage caused by their failure to carry out that responsibility
(s 3).
*McGlone v British Railways Board 1966 SC (HL) Pursuer was a 12 year old, he and a friend
were playing near a wasteland, near an electric transformer. Thomas took it to climb up the
framework support the transformer. He managed to get through the wire fence 12-year old boy
climbed through fence, ignoring warning notices, to scale 20-foot framework supporting electricity
transformer. BRB not liable for the injuries sustained following severe electric shock. The
occupier's duty was “not to ensure the entrant's safety but only to show reasonable care” (per
Lord Guest “perfect boy-proof fence” was not necessary. Duty of occupier is to show
“reasonable care” a perfect fence was not necessary, as long as it could repel an invader. They
didn’t have to go through huge lengths to spell out the danger of the hazard
Titchener v British Railways Board 1984 (HL) 15-year old girl struck by train
while crossing a railway line. BRB had not failed in their duty by not
constructing a stronger fence round their property. The more self-evident the
hazard, the less the need for signposts and fences. Danger was held to be
self-evident