LIABILITY - created from Mind Map

Vicarious Liability A. Employers and Employees NON-DELEGABLE Duties of Care > Lister v Hesley Hall + S v Lothian H Board (1) Employment or not? (2) Scope of Employment? 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 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                                                                      (b) the “close connection test”: 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 a) TRAVELING TO WORK 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 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 B. OCCUPIERS' 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.                                     CONSUMER PROTECTION ACT 1987 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. • “Damage” means death or personal injury or any loss of or damage to any property (including land) (s 5(1)). 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. DEFENCES 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. 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)). 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.                                                                        OCCUPERS' LIABILITY (S) ACT 1960 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

LIABILITY