Delict - Lecture notes All PDF

Preview

Summary

Delict Damage outside the law of contract • Reparation (damages) • Interdict Strict liability = often has public policy reasons (think nuclear power accidents)(unusual) Fault based liability = defender must be blame worthy Delict can be intentional; assault; often through carelessness or negligence ...

Description

Delict Damage outside the law of contract • Reparation (damages) • Interdict Strict liability = often has public policy reasons (think nuclear power accidents)(unusual) Fault based liability = defender must be blame worthy Delict can be intentional; assault; often through carelessness or negligence Cameron v Hamilton Auction Mart = Sally the Cow Too remote; damage unforeseeable; link between defenders and damage to be too remote Need to link 1. Actionable harm suffered 2. Wrongful conduct by the defender 3. A causal link between negligence and suffering Vicarious Liability Who pays? Can sue both the wrongdoer and their employer = joint and several liability Need to say yes to both Two-stage test (1) Was the relationship between the wrongdoer and the defender one to which the principles of vicarious liability might attach? (a relevant employment relationship = whether there was a contract to provide services or employment?) (shift in employment = who was in control of employee at the time; see Mersey Docks below) (2) Were the acts of the wrongdoer within the scope of that relationship? 1. Employment or not? Is there a contract of employment (as distinguished from a contract for services) in place between the wrongdoer and the person identified as vicariously liable? Problems of transfer of employment: Mersey Docks v Coggins [1947] AC 1:

The traditional test for “control” in order to determine who was the employer at the relevant time  Harbour authority hire out crane to stevedores to unload ship.  Harbour authority loan crane driver to stevedores.  Harbour authority have told driver how to drive crane, but stevedores tell him what to pick up and set down.  Accident caused by bad driving. = “In the present case the accident happened because of the negligent way in which the crane driver worked his crane, and since the [stevedores] had no control over how he worked it, as distinguished from telling him what he was to do with the crane, it seems to me to follow that Newall's general employers [harbour authority] must be liable for this negligence and not the hirers of the apparatus.” Control traditionally rests with the original employer Hawley v Luminar Leisure [2006]  Assault by doorman who was temporarily hired; nightclub liable  Temporarily hired by security services to night club; directed by night club, wearing t shirt; night club controlled what he did and how he did it so night club liable not night club bouncer Control by employer as indicator of employment relationship?  May remain relevant to unskilled employees, but how about a neurosurgeon or software engineer? = “Many employees apply a skill or expertise that is not susceptible to direction by anyone else in the company that employs them. Thus the significance of control today is that the employer can direct what the employee does, not how he does it.” (Various Claimants v Catholic Child Welfare Society [2013] 2 AC 1 per Lord Phillips at para 26.) Other indicators include:  the employer’s power of selection of the employee;  payment of wages, as distinct from a fee;  employer’s right of suspension or dismissal;  the nature of the duty = who is in control Dual employment? Control can be shared Viasystems v Thermal Transfer [2006]: = “what one is looking for is a situation where the employee in question, at any rate for relevant purposes, is so much a part of the work, business or organisation of both employers that it is just to make both employers answer for his negligence.” (reference only)

Relationships “akin to employment” Various Claimants v Catholic Child Welfare Society [2013] 1. Religious order and diocese were in control of staff leading to dual vicarious liability 2. This was not a strict employment relationship; child abuse by individual in a religious order a. Supreme court looked at the substance of the relationship which mirrored an employment relationship b. Saw it to be akin to an employment relationship and was held vicariously liable = “ In the context of vicarious liability the relationship between the teaching brothers and the institute had many of the elements, and all the essential elements, of the relationship between employer and employees: (i) The institute was subdivided into a hierarchical structure and conducted its activities as if it were a corporate body. (ii) The teaching activity of the brothers was undertaken because the provincial directed the brothers to undertake it. True it is that the brothers entered into contracts of employment with [the Diocese], but they did so because the provincial required them to do so. (iii) The teaching activity undertaken by the brothers was in furtherance of the objective, or mission, of the institute. (iv) The manner in which the brother teachers were obliged to conduct themselves as teachers was dictated by the institute's rules...” = The relationship between the teacher brothers and the institute differed from that of the relationship between employer and employee in that: (i) The brothers were bound to the institute not by contract, but by their vows. (ii) Far from the institute paying the brothers, the brothers entered into deeds under which they were obliged to transfer all their earnings to the institute. The institute catered for their needs from these funds. Neither of these differences is material. Indeed they rendered the relationship between the brothers and the institute closer than that of an employer and its employees.” Beyond Ecclesiastical setting Cox v Ministry of Justice (prisoners in kitchen dropped bag; Ministry of Justice liable; negligence resulting in injury; as a prisoner operator liable because of the quasi employment relationship) = “The fact that a prisoner is required to serve part of his sentence in prison, and to undertake useful work there for nominal wages, binds him into a closer relationship with the prison service than would be the case for an employee. It strengthens, rather than weakens, the case for imposing vicarious liability.”

Armes v Nottinghamshire CC [2017] (foster care abuse; do not employ foster parents; significant degree of control! was the council liable?) (akin to employment! Major implications for the voluntary sector) = By a majority of 4-1, the Supreme Court allowed the appeal, holding that the local authority was vicariously liable in respect of abuse perpetrated by the foster parents (applying Cox v Ministry of Justice [2016] UKSC 10), and even though the local authority was not negligent in connection with the foster placements. Foster parents are not carrying on a business of their own. The abuse committed by the foster parents was committed in the course of an activity carried on for the benefit of the local authority; the placement created a risk of abuse; the local authority exercised a significant degree of control over the foster parents – powers of approval, inspection, supervision and removal; the local authority had the means to pay damages; and there was no evidence that imposing liability would discourage local authorities from using foster parents. Grant v Shannon = Blush beauty salon in Glasgow; self-employed beautician messed up clients eyebrows; salon proprietors were vicariously liable as it was considered a work/employment relationship; the beautician was integrated into the company even though she was self-employed • Totally self employed but Blush still vicariously liable (she used the facebook page, wore the t shirt…)(only in Sheriff Court)(in USA uber are liable for drivers) 2. Was the employee acting within the scope of his or her employment? Salmond test Imposed vicarious liability in relation to delict committed in the course of employment if it was “either (a) a wrongful act authorised by the master, or (b) a wrongful and unauthorised mode of doing some act authorised by the master”.

NOW CLOSE CONNECTION Problem: how to distinguish: (b)unauthorised mode but authorised act; from (c)unauthorised act? Consider the “close connection test” as developed below (perhaps created following the rise of intentional harm?) Reconceptualization following intentional harm Lister v Hesley Hall (CHANGED LAW)

(boarding school warden abuse; warden abused children in his care; not authorized by school, not an unauthorized mode; qualified the Salmond test) Reconceptualization of the Salmond test as to whether the employer can be consider liable = “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. On the facts of the case the answer is yes. After all, the sexual abuse was inextricably interwoven with the carrying out by the warden of his duties in Axeholme House. Matters of degree arise. But the present cases clearly fall on the side of vicarious liability.” (Risk inherent in the employment; sufficient to impose vicarious liability even though act was not authorised) 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 are always relevant, although not conclusive. 3) The mere fact that the employment had furnished the employee with the opportunity to commit the wrong is not in itself sufficient to bring it within the scope of the employment. = ‘The fact that his employment gave the employee the opportunity to commit the wrong is not enough to make the employer liable. He is liable only if the risk is one which experience shows is inherent in the nature of the business.” Sharp v Highland and Islands Fire Board (2005)(reference only!!) “In my opinion the leading authority on the matter in both Scotland and England is now Lister. Assuming the second defender to have been at fault, the question is whether his actions were so closely connected with his employment that it would be fair and just to hold the first defenders vicariously liable” (a) Travelling to work Is the employer liable if the delict was committed while the alleged wrongdoer was travelling to or from his or her employment? Smith v Stages: (Driver could get to his job any way he chose; he finished his work quickly and crashed his car on his way back from working a long shift; employer was liable) 6 rules (Lord Lowry at 955-956) 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 by his contract of service to use the employer's transport. 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, even if the employee has discretion as to the mode and time of travelling. 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 for the time being take the employee out of the course of his employment. 6. Return journeys are to be treated on the same footing as outward journeys. Williams v Hemphill 1966 SC (lorry driver transporting camping boys who went via Sterling to see friends; crashed lorry; this was a significant deviation of 20 miles but the employer was still liable as the lorry driver was carrying his passengers on behalf of his employer; not a frolick of his own, still responsible for boys and therefore work) = “Had the driver in the present case been driving a lorry which was empty or contained nothing of real importance, I think that so substantial a deviation might well have constituted a frolic of his own. The presence of passengers, however, whom the servant is charged qua servant to drive to their ultimate destination makes it impossible (at all events, provided that they are not all parties to the plans for deviation) to say that the deviation is entirely for the servant's purposes. Their presence and transport is a dominant purpose of the authorised journey, and, although they are transported deviously, continues to play an essential part. It was said in argument that there must be some limits to that contention and that one could not hold that, if the driver had gone to Inverness, he would still be acting on his master's business. No doubt there are such limits to the argument as common sense may set on the facts of each case. But when there are passengers whom the servants on his master's behalf has taken aboard for transport to Glasgow, their transport and safety does not cease at a certain stage of the journey to be the master's business, or part of his enterprise, merely because the servant has for his own purposes chosen some route which is contrary to his instructions.” (b) Unauthorised/prohibited behaviour Century Insurance v Northern Ireland TRB [1942] (While one of the lorries was delivering petrol at a gas station, the undertaking’s driving lit a cigarette, causing an explosion and consequent damages.) (Question whether the employee’s smoking of the cigarette was in the course and scope of his employment for the purposes of rendering the employer’s vicariously liable) = the Court held that the truck driver’s act, albeit careless, took place during the course of his employment as he was in the midst of delivering the petrol to a tank. Recent authority has overturned the requirement that the act be done for the benefit for the employer. The employee was negligent in the discharging of his duties by

smoking as he did, yet was nevertheless in the course of discharging his duties to his employer and, thus, the employer was liable. (stupidity does not remove you from employment) Rose v Plenty [1976] = In the present case it seems to me that the course of the milk roundsman's employment was to distribute the milk, collect the money and to bring back the bottles to the van. He got or allowed this young boy to do part of that business which was the employers' business. It seems to me that although prohibited, it was conduct which was within the course of the employment = the prohibition affects only the conduct within the sphere of the employment and did not take the conduct outside the sphere altogether. I would hold that the conduct of the roundsman was within the course of his employment and the masters are liable accordingly (c) Problems with intentional wrongdoing Dubai Aluminium Co Ltd v Salaam [2003] (vicarious liability is not necessarily defeated if the employee acted for his own benefit) = No answer to a claim against the employer to say that the employee was guilty of intentional wrongdoing, or that his act was not merely tortious but criminal, or that he was acting exclusively for his own benefit, or that he was acting contrary to express instructions, or that his conduct was the very negation of his employer's duty... vicarious liability is not necessarily defeated if the employee acted for his own benefit.” (Follows Lister and Catholic Child Welfare Society; application of the close connection test) Catholic Child Welfare Society = “Vicarious liability is imposed where a defendant, whose relationship with the abuser put it in a position to use the abuser to carry on its business or to further its own interests, has done so in a manner which has created or significantly enhanced the risk that the victim or victims would suffer the relevant abuse. The essential closeness of connection between the relationship between the defendant and the tortfeasor and the acts of abuse thus involves a strong causative link.” • Employer created or enhanced risk; so if an employee acts intentionally in an unauthorized way, then if the employer put the employee in that position that created or enhanced the risk they will be held vicariously liable Mattis v Pollock (2003) (bouncer assaults customer with a knife; night club owner is liable; the assault was fairly closely connected to actual employment role as it put the employee in situation that created risk) Brink’s Global Services v Igrox [2010] (hired to fumagate shipping containers; stole silver bars)

= There was a sufficiently close connection between an employee’s theft of silver from a customer’s container and the purpose of his employment to make it fair and just that his employer be held vicariously liable for his actions (theft was a risk that was reasonably incidental to employment) = The decisions in Lister v Hesley Hall, Dubai Aluminium v Salaam and the cases which have followed them have established that the test involves evaluating the closeness of the connection between the tort and the purposes for which the tortfeasor was employed. While all the circumstances have to be taken into account, the authorities support the view that when making that evaluation it is appropriate to consider whether the wrongful act can fairly be regarded as a risk reasonably incidental to the purpose for which the tortfeasor was employed.’ Mohamud v Wm Morrison (Customer requested to print from a USB, the attendant used foul racist and threatening language and beat up the customer) = it was Mr Khan's job to attend to customers and to respond to their inquiries. His conduct in answering the claimant's request in a foul-mouthed way and ordering him to leave was inexcusable but within the “field of activities” assigned to him. What happened thereafter was an unbroken sequence of events. ... I do not consider that it is right to regard him as having metaphorically taken off his uniform the moment he stepped from behind the counter. He was following up on what he had said to the claimant. It was a seamless episode. ...when Mr Khan followed the claimant back to his car and opened the front passenger door, he again told the claimant in threatening words that he was never to come back to petrol station. This was not something personal between them; it was an order to keep away from his employer's premises, which he reinforced by violence. In giving such an order he was purporting to act about his employer's business. 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. Mr Khan'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 neither here nor there. Vaickuviene v J Sainsbury Plc 2014 SC 147 (Shelf stackers; murdered colleague)(demonstrates line of wrongdoing) = No matter how broadly the context of the stabber’s employment was looked at, it was not possible to hold that Sainsbury’s retail business in general or their engagement of persons to stack shelves in supermarkets in particular carried any special or additional risk that persons such as the deceased would either be harassed or otherwise come to harm as a result of deliberate violence from fellow employees. Majrowski v Guy’s & St Thomas’s NHS Trust [2007] 1 AC 224

(statutory tort; Employer bullied and harassed by hospital manager) = An employer can be vicariously liable in damages under section 3 of the 1997 Act for a course of conduct by one of its employees that amounted to harassment in breach of section 1 of that Act. Vicarious liability for damages could be applied to statutory obligations breached by an employee in the course of his employment unless the statute expressly or impliedly indicated otherwise, which the 1997 Act did not Vicarious liability in relationships other than employment Chief Inspector for police officers liable: Police and Fire Reform (Scotland) Act 2012, s 24 Partnership for partners: Partnership Act 1890, s 10. Non-Delegable Duties of Care Certain duties are “non-delegable”. This means that the defender cannot escape liability merely by delegating such duties to another if that third party then performs them improperly. The defender has a duty not just to take care but to ensure that care is taken. If the requisite level of care is not taken, even if the task has been entrusted to a...