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VICARIOUS LIABILITY - Flashcards
Flashcards do conjunto (27)
- 1Vicarious LiabilityMaking one person responsible for someone else's wrongdoing...
Typically you are liable if you cause damage, but if someone else is legally responsible for your actions, then a third party can be held liable for your wrongoing. - 2Imperial Chemical Industries v ShatwellLORD PEARCE:-“..vicarious liability has not grown from any logical principle but from social convenience and rough justice. The master (for his own benefit) employed the servant, and is (presumably) better able to make good any damage ... is answerable for all the torts committed by his servant within the scope of it.”
- 3Salmond Test"A master is not responsible for a wrongful act done by his servant unless it is done in the course of his employment:
(1) a wrongful act authorised by the master, or
(2) a wrongful and unauthorised mode of doing some act authorised by the master.
But a master … is liable even for the acts which he has not authorised, provided they are so connected with acts which he has authorised that they may rightly be regarded as modes - although improper modes - of doing them.” - 4Moynihan v Moynihan [1975]Supreme Court found a grandmother vicariously liable for the actions of her daughter when a teapot was left in reach of a child who was burned.
England - was there an employment relationship?
Ireland - was there a relationship akin to employment? - 5Healy states the following...“An employer may be vicariously liable for damage caused in consequence of a tort committed by his employee or any other party over whom he chooses to exercise control, so long as the tort was committed in the course or scope of his employment or otherwise in the context of the control he exercised ..."
- 61. Identifying the Relationship of ControlCourts will not only look at control - they will look at the method of pay, integration into the business, dealings in tax affairs, entitlements to holidays or sick pay, the use of your own equipment... as well as how much control they have over your actions and your time.
- 7Morrisey v HSE [2020]Clarke J - overall test must be one which considers the nature of the relationship, including the question of control, is such that it is similar in substance to the type of relationship which has traditionally been regarded as giving rise to vicarious liability.
"Level of engagement by one party in the way the other is to carry out a task entrusted to it" - 8Morrisey v HSE (cont.)1.The legal relationship is relevant.
2. The degree of control is relevant.
3. Is there a relationship akin to employment? - 9Phelan v Coillte Teoranta [1993]Limb 1 - is there a relationship akin to employment?
He worked full time for the defendant, was told where to go and what to do, was paid hourly and for mileage and expenses. He did use his own tools and did his own taxes...
Relationship was one of "master and servant" - 10Moynihan v Moynihan [1975]Grandmother liable as she asked her daughter to make tea and she left it in reach of her daughter.
Asking someone to do something is a relationship of master and servant.
Paying the person you ask to do something can never be the governing factor in vicarious liability. - 11Cox v Ministry of Justice [2014 - 2016] Prisoners dropped bag on plaintiff, injuring him in the process of kitchen work for the prison - was the ministry of justice vicariously liable for this?5 factors to be considered –
1. The employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability
2. The tort will have been committed as a result of activity being taken by the employee on behalf of the employer
3. The employee’s activity is likely to be part of the business activity of the employer
4. The employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee
5. The employee will, to a greater or lesser degree, have been under the control of the employer - 12Armes v Nottinghamshire [2015 - 2017] Foster parents abused the foster child who was placed in their care by the defendant - was the defendant vicariously liable?CoA held that they were not vicariously liable - prior to Cox case - council was not involved in the most important aspects of the child's life.
Supreme Court - on application of the 5 Cox considerations, the defendant was held vicariously liable. - 132. Scope of ControlMust be a "close connection between the wrongful conduct and the nature of the employment, such that it is fair, just and reasonable to impose vicarious liability.
Were the employee's actions within the scope of the employer's control? - 14Farry v Great Northern Railway [1898]2 Separate Considerations:
1. the act done,
2. the purpose for which it is done.
If the act is outside the scope of the servants employment, the master is not responsible
But when the act is one within the ordinary scope of the servants employment then arises the question whether the act complained of was done for the employer ... - 15Smith v Stages [1989] Employees were working and had travel expenses paid on top of wages. They left early and were in an accident - the employer was found vicariously liable as they were on the clock and paid expenses.Doing what the employee is employed to do ... or anything reasonably incidental to his employment.
- 16Boyle v Ferguson [1910]Car salesman was involved in an accident at 7pm while on flexible hours and having his petrol paid by his employer.
He was correctly promoting cars.
Held that the salesman was acting within the scope of his employment when the accident took place. - 17Lawlor v O'Connor [1929]Employee abducted plaintiff and physically assaulted her during the course of his working day.
He did not hold her on company premises, and he had left the premises to abduct her.
Employee was found to be acting outside the scope of his employment. - 18Frolics will not result in a finding of vicarious liability - Daniels v Whetstone Entertainment [1962]Bouncer threw a visitor out of premises and then pursued the visitor down the street and assaulted him.
Initial removal from premises was within scope of employment but going down the street was a solo-frolic.
Employer only vicariously liable for acts within scope of employment. - 19Storey v Ashton [1869]Plaintiff diverted from his work route to visit his brother-in-law and was involved in an accident.
The employer was not vicariously liable as the visit was unconnected to his employment.
This was a solo-frolic. - 20Vicarious Liability for Assault?Graham v Commercial Bodyworks [2015] - prank of setting person on fire was not within scope of employment.
N v Chief Constable [2006] - chief constable not liable for rape and assault of intoxicated woman by policeman under his employment.
Muhamud v Morrison Supermarkets [2016] - unbroken sequence between doing his actual job and assaulting a customer - therefore employer was vicariously liable. - 21Sexual Abuse Cases?Legal Position was summarised in Health Board v BC [1994] where it was essentially stated that it was hard to envisage a situation where a sexual assault could be regarded as connected and therefore within the scope of employment...
This would lead to injustice... - 22Canadian position is liberal - Set out in Bazley v Curry [1990]McLACHLIN J:- “vicarious liability is generally appropriate where there is a significant connection between the creation or enhancement of a risk and the wrongs that accrue therefrom, even if unrelated to the employer’s desires "
Must be close connection between (1) wrongful conduct and (2) the nature of the employment - 23Delahunty v South Eastern Health Board [2003]Plaintiff was sexually assaulted by house master of orphanage on a visit to a friend.
Defendant could not be held vicariously liable for the actions of the house master as there was no ‘strong connection’ between those actions and his employment - 24UK Supreme Court did not like the injustice which a mechanical application of Salmond would accrue - Lister v Hesley Hall [2002]Teacher abused a student ...
There was a requirement of "relative closeness" connecting the tort and the nature of the employee's employment.
"Close connection test"
There was a connection here between the sexual abuse and the trust placed in a teacher. - 25Irish Courts reacted in O'Keeffe v Hickey & Ors [2009]Close connection test was applied in a case where a student was sexually assaulted by a priest who was a teacher.
Unfortunately, the Minister for Education could not be found vicariously liable and therefore the plaintiff struggled to recover... - 26Reilly v Devereux [2009]Sexual harassment of plaintiff by superior officer in the army.
No intimacy implicit in relationship between P and D nor a quasi-parental role.
To find otherwise would be to find the defendant liable in virtually every act or omission of an employee. - 27Elmontem v Nethercross Limited [2014]Head chef attacked financial controller of the company.
No close connection between a chef doing his job and beating up a financial controller.
Close connection test is the law in Ireland.
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- FE 1 Tort Law FlashCards sobre VICARIOUS LIABILITY - Flashcards, criado por Morgan Moriarty em 02-08-2020.
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- Morgan Moriarty · ago 2020
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