Relationship Akin to Employment, principle in cox v ministry of justice PDF

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Relationship Akin to Employment, principle in cox v ministry of justice...

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Relationship Akin to Employment Where the relationship was sufficiently akin (similar) to the employment of an employee Case: JGE v Trustees of the Portsmouth Roman Catholic Trust Facts: Vicarious liability could be imposed on the Roman Catholic Bishop who had appointed a pastor who then sexuall abused children living in a children’s home administered by his diocese. Held: Despite the absence of a contract of employment, direct control and payment of wages, the relationship was sufficiently akin to employment to find vicarious liability. Case: Various Claimants v Catholic Child Welfare Society Facts: Priests abused students in school which was managed by several diocesan bodies. Court had to decide who bore vicarious liability and whether the wrongful acts satisfied the close connection test Held: Even though the priests were bound to the defendant by vows and not contract, their relationship bore enough features to make it akin (similar) to a contract. The institute had put the abusers in a position which created or significantly increased the risk and therefore the close connection was established. Vicarious liability will be shared where the employee in question is so much part of the work, business or organisation of both employers that it is just to make both employer answers for his tort. Case: Cox v Ministry of Justice Facts: The claimant catering manager at a prison, suffered injury through the negligence of a prisoner working in the kitchen. The defendant denied liability and argued that, unlike employees, prisoners have no interest in furthering the objectives of the prison service. The Supreme Court rejected this argument and said that although setting prisoners to work serves the purpose of rehabilitation, penal policy also aims to ensure that convicted prisoners contribute to the cost of their upkeep. A prisoner undertaking useful work 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. Principle in Cox v Ministry of Justice 1) The tort will have been committed as a result of activity being taken by the tortfeasor on behalf of the defendant 2) The tortfeasor’s activity is likely to be part of the business of the defendant 3) The defendant, by employing the tortfeasor to carry on the activity will have created the risk of the tort committed by the tortfeasor Lending or Hiring employees When a worker is lent or hired out, question may arise as to which two or more organisations is the employer for the purpose of vicarious liability Leading Authority; Case: Mersey Docks v Coggins & Griffiths. Facts: Coggins and Griffiths hired a crane and driver from the Mersey Docks and Harbour Board. The driver, drove the crane negligently and injured the defendant’s employee - Where an injury is caused by the negligence of a servant who is, with the consent of his general employer, doing work for a temporary employer, the general employer is prima facie responsible. To shift the responsibility on to the shoulders of the temporary employer, the general employer must prove that the temporary employer has authority to direct, or to delegate to the servant, the manner in which work is to be done. A crane driver employed by a harbour board was hired, with his crane, by stevedores to load a

ship. In working his crane the driver negligently injured an employee of the stevedores. Held, that the negligence lay in the manner in which the work was performed which was not under the control of the stevedores and consequently the harbour board was liable Comparing the employee and the independant contractor Employee Independent Contractor Integrated into the business, with the possibility of Has no interest in the employer’s business profit sharing Is paid a regular wage Is paid by the job done Has tax and benefits provision from employer Does not have tax or benefit provision Is supplied with tools, uniform or vehicle Supplies his own tools, uniform or vehicle Works at a regular time and place Determines his own hours and methods Dual vicarious liability Case: Viasystems Ltd v Thermal Transfer Ltd - Established that there could be dual vicarious liability and it is possible for two separate employers to be vicarious liable for the tort of a single employee. Facts: Defendant contract to a subcontractor (Second defendant) who contracted with the third defendant who negligently caused damage. Both employers were held liable.

➔ In the course of employment a) Carelessness and motive of employee

Case: Century insurance v Northern Ireland Transport Board Facts: A petrol tanker driver while delivering petrol to a garage, threw down a lighted match which caused an explosion and damage Held: He had remained in the course of employment while performing the task he was employed to do regardless of negligence. b) Acting contrary to instructions

Employee may be held to be acting within the course of employment even when deliberately acting in a way that was expressly prohibited by his employer Case: Rose v Plenty *(Within Scope)* Facts: 13 year old boy was injured while riding with a milkman on his float to help him deliver milk. Such giving of lifts on the float was contrary to the employer's express prohibitions. Held: It was held within the course of employment because it was an improper way of doing exactly what the milkman was employed to do. Case: Twine v Beans Express *(Outside Scope)* Facts: A driver giving a lift in his delivery van to someone, contrary to instructions was held to be outside the course of employment. Held: The passenger was not contributing to the purpose of the employment. c) Diversions and detours How is course of employment applied when the wrongdoer has gone to do a frolic of one’s own (Joel v Morrison)

- Treated as a matter of degree, looking at the range of factors and the case’s facts Case: Storey v Ashton Facts: Wine delivery driver return to base after delivery took a detour to visit relatives after hours. The horse cart killed a small child. Held: This was not in the course of employment but a new independant journey, entirely on their own business. Case: Harvey v RG O’Dell

Facts: Five mile journey from a workplace to get food was incidental to the employee’s work and was within the course of employment. Travelling to and from work is usually outside the course of employment, travelling between workplace was the issue. Case: Smith v Stages Facts: Sent to a power station by their employer to an urgent job, they were paid for their journey to and from the place. They finished the job early and left early and crashed into a brick wall. The plaintiff was severely injured. Held: Driver was acting within the course of employment. It was an ordinary case of travelling to work and leaving early was immaterial. d) Intention and criminal acts

Act being illegal does not make it outside the course of employment Case: Lloyd v Grace Smith & Co Facts: Managing clerk for a solicitor embezzled a client’s property was held to be acting within the course of employment. He used his authority to commit fraud while performing a task for which he was paid. Employee’s act go too far in acting within the course of employment Case: Warren v Henleys Facts: A petrol station worker who wrongly thought the plaintiff stole fuel ended up assaulting him Held: Outside employment. e) Close connection

The Salmond Test The following tests to determine whether a tort was committed within the course and scope of employment. Principle: “A master is liable even for acts which he has not authorised, provided they are so connected with the acts which he has authorised” Close connection test Case: Lister v Hesley Hall Facts: Warden emotionally disturbed and sexually abused children which constituted to tort of battery. Sued the school in vicarious liability Held: Was within course of employment, The responsibility over the children gave him the opportunity to commit the crimes. Principle: “as the employee’s tort was so closely connected with his employment that it would be fair and just to hold the employer vicariously liable” Case: Mattis v Pollock Facts: Bouncer assaulted a patron of a nightclub after grabbing a knife from his home following a row outside the club. Despite suggestion of personal vengeance, the act was held to be closely connected to him role of keeping order in the club. Case: Morrison Supermarket v Various Claimants Facts: Senior IT auditor at Morrison downloaded and shared personal details of 100,000 of employee’s. Held: Court of Appeal upheld the trial judge’s finding of vicarious liability, regardless that the tortfeasor’s action had been directed against his employer and fellow employees. Action was within the course of employment.

Case: Mohamud v Morrison Supermarkets Facts: Petrol station attendant followed a customer to his car and committed battery and racial slur Held: Applying the Lister ‘Close connection test’ the unauthorised criminal act was held within employment Lord: Do not consider that it is right to regard the attendant as having metaphorically taken off his uniform the moment he stepped from behind the counter. f) Indemnity

Case: Lister v Romford ICE and Cold storage Facts: The employer was held to be entitled to reimbursements from the negligent employee for damages paid out to the injured party Generally: Indemnity will be pursued only in exceptional cases of wilful misconduct or collusion (secret agreement between 2 people) between the employer and employee.

Psychiatric Injury Liability for psychiatric Injury Claim for Nervous Shock, Must prove; - Recognised psychiatric condition - Sudden event - Primary victim (physically injured/in danger) Occupational stress also counts as a psychiatric condition ➔ Recognised psychiatric condition

Damages will only be awarded for a recognised psychiatric illness. Case: Vernon v Bosley - Father who watched his children drown was awarded damages, which did not distinguish between the aspects of his condition which were a normal grief reaction. ➔ Sudden event

Condition must be the result of the impact of a sudden event or its immediate aftermath. Case: Sion v Hampstead Health Authority - Effect on a father of spending two weeks sitting by the bedside of his dying son due to the defendant’s negligence was not sufficient to find a claim. ➔ Primary victim (physically injured/in danger)

Psychiatric injury of Secondary Victims: Alcock Criteria Case: Alcock v Chief Constable of South Yorkshire Claimant Must prove: 1) Close ties of love and affection with primary victim 2) Close in time and proximity to the negligence or its immediate aftermath 3) Psychiatric injury must be the result of a sudden appreciation by sight or sound of a shocking event

Purely Economic Loss Financial damage which does not directly result from personal injury or damage to property Therefore, there is now no liability for pure economic loss arising from negligent acts and it is not recoverable in negligence. Only recoverable in contract

What IS (pure) economic loss? Case: Spartan Steel v Martin & Co Contractors Ltd - Loss of power caused by cutting the cable to a factory affecting the operation of furnaces. 1) Reduced the value of metal which had to be removed from the furnace and damaged machinery 2) Profit which would have been made from that melt had it been completed 3) Profit from future melts which would have been made but for the long power cut - Compensation was permitted for the furnace containing the damaged ore (1/2) as it was a consequential to physical damage, but not loss of profits linked to empty furnaces (3) as it was pure economic loss. - E.g. Illustrates the difference between property damage and pure economic loss. ● Not generally recoverable in tort, as it does not normally flow from physical damage to the claimants property.

Floodgates argument (limitless liability) ● Exceptions (i.e., can recover): Direct consequence of physical damage ● Spartan Steel v Martin & Co

Negligent misstatement Case: Hedley Byrne & Co v Heller - An advertising company lost money when it relied on a negligently compiled bank reference about a client. - A duty of care could exist in respect of a statement relating to pure economic loss, if the parties were in a special relationship. However, duty was avoided by the disclaimer used by the bank - Established the court of misstatements In order to establish a duty of care for negligent misstatements There must be; 1) A special Relationship between the parties 2) A voluntary assumption of responsibility by the party giving the advice 3) Reliance on that advice by the party receiving it 4) It must be reasonable for the party to have relied on that advice....