Seminar 9- Vicarious Liability PDF

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Seminar 9- Vicarious Liability

DISCUSSION QUESTIONS 1. “Vicarious Liability is a loss distribution device based on grounds of social and economic policy” per Lord Millett in Dubai Aluminium Co Ltd v Salaam at [107].

Make an essay plan for this question imagining that you were undertaking it in your Tort exam. Be prepared to swap your plan with your neighbour in class for the purposes of gaining some peer to peer feedback.

Introduction Definition of vicarious liability Difficulties of classis test and then address issues of why it needed to be extended Dubai Aluminium Co Ltd v Salaam at [107]- assess judgement.

ICI v Shatwell [1965] AC 656 • NOT “clear, logical or legal principle” BUT “social convenience and rough justice Various Claimants v Catholic Child Welfare Society [2012] UKSC 56 “to ensure … that liability … borne by a defendant with the means to compensate the victim” per Lord Phillips • deepest pockets • encourage accident prevention • profit and loss – not good for economy to have lots of accidents occurring. Not about law, about economics.

Social Policy: Lister v Hesley Hall [2001] UKHL 22 – warden of facility for boys with emotional and behavioural difficulties. Some of the boys sexually abused by the warden. Boys initiated a claim, reached the court of appeal, no vicarious liability, because he did something that negated his duty. An act cannot be committed to be considered, when the act goes against

Seminar 9- Vicarious Liability purpose. means employer is absolved of much liability. Court held you should not ask whether the acts of abuse were methods of doing unauthorised acts. Should ask what the task was that had being delegated to the warden. The warden had been charged with caring for the boys. The sexual abuse had been inextricably interwoven with that duty. Carried out in the defendant’s time and on the defendants premises through the day to day routine of caring for the boys. 1. Asks you to focus on sufficient connection between wrongful act and what employer authorised? 2. if so = read as ‘wrongful modes of doing an authorised act’

1. Given an account of the following cases and indicate what the Supreme Court decided in each:

a) Cox v Ministry of Justice [2016] UKSC 10 – Susan Elaine Cox, against the defendant, the Ministry of Justice, for damages for personal injuries sustained while working as a catering officer at Her Majesty's Prison in Swansea on 10 September 2007, which, she alleged, had been caused by the negligence of a prisoner working with her for whom the defendant was vicariously liable. dismissing the appeal, (1) that vicarious liability in tort was imposed on a defendant in respect of the act or omission of another because of his relationship with the tortfeasor and the connection between that relationship and the act or omission in question; that a relationship could give rise to vicarious liability even in the absence of a contract of employment; that the essential factors were that the tort had been committed as a result of activity being undertaken by the tortfeasor on behalf of the defendant, that that activity was integral to the defendant's business activities and that the defendant by employing the tortfeasor to carry out the activity had created the risk of the tort being committed by the tortfeasor; that those criteria had been designed to ensure that liability was imposed where it was fair, just and reasonable to do so, and, where they were satisfied, it was not generally necessary to conduct a separate assessment as to the fairness, justice and reasonableness of the result in the particular case; but that it might be valuable to do so where the circumstances of a case had not previously been the subject of an authoritative judicial decision A prisoner is not an employee of the Prison Service: his work in the prison is not aimed at advancing any enterprise at the prison but at his rehabilitation. HOL- vicarious liability. Prisoner can be seen as akin to the prison. Don’t need to be too rigid about employment relationship- looking for activities that are integral and not an independent contractor.

Seminar 9- Vicarious Liability Lord Reed- fact of life. Employing someone is likely to create a liability for someone acting vicariously. Very broad. a) Muhamad v Morrisons

On 15 March 2008 the Claimant entered the Respondent’s premises in Small Heath, Birmingham which include a petrol station and a kiosk where customers pay for their purchases. Having parked his car he entered the kiosk to ask whether he could print some documents from a USB stick. Mr Amjid Khan was behind the kiosk desk, employed by the Respondent to see that petrol pumps and the kiosk were kept in good order and to serve customers. Mr Khan refused the Claimant’s request in a rude manner, at which the Claimant protested. Mr Khan responded in foul, racist and threatening language and ordered the Claimant to leave. The Claimant returned to his car followed by Mr Khan. Before the Claimant could drive off, Mr Khan opened the passenger door, told the Claimant in threatening words never to return and punched him on the left temple. The Claimant got out and walked round to close the passenger door when Mr Khan subjected him to a serious attack. The Claimant had not done anything which could be considered aggressive or abusive. The Claimant brought proceedings against the Respondent on the basis that it was vicariously liable for the actions of its employee Mr Khan. The trial judge dismissed the claim because he considered that there was an insufficiently close connection between what Mr Khan was employed to do and his tortious conduct in attacking the Claimant for the Respondent to be liable. The Court of Appeal upheld the judge’s decision. The Claimant appealed, challenging whether the “close connection” test was the appropriate standard to apply and also arguing that his claim should have succeeded in any event. The Supreme Court unanimously allows the Claimant’s appeal and holds the Respondent vicariously liable for the actions of its employee, Mr Khan, in attacking the Claimant. Lord Toulson gives the lead judgment. REASONS FOR THE JUDGMENT The close connection test has been followed at the highest level and there is nothing wrong with it as such [46]. In the present case, the court has to consider two matters. First, the court must ask what function or field of activities has been entrusted by the employer to the employee (i.e. what was the nature of his job). This is to be viewed broadly. Second, the court must decide whether there was a sufficient connection between the position in which he was employed and his wrongful conduct to make it right for the employer to be held liable. Applying that test here, it was Mr Khan’s job to attend to customers and respond to their inquiries. Mr Khan’s motive in the attack is irrelevant. It does not matter whether he was motivated by personal racism rather than a desire to benefit his employer’s business

Seminar 9- Vicarious Liability -

Quite an expansion of the law, court treats Mr Muhamad as reasonable customer when request was slightly odd. Could be going too far to treat him as a customer- status of Mr Muhamad as a customer.

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Mr Khan mentioning his employer during his rant and significant as he was wearing his employer’s uniform.

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Odd not to treat it as something personal.

Similar to Keppel Bus Co v Saad Bin Ahmed [1974] 2 All ER 700 – bus conductor lost his temper, hit a passenger with ticket machine. Not in the course of employment, loss of temper was about him. Should be considered not in the course of employment unless he hit passenger in order to maintain order on the bus. Doing something that is authorised. 2. How do you think the cases of Cox v Ministry of Justice and Muhamad v Morrisons will impact on the law of vicarious liability? -

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A relationship could give rise to vicarious liability even in the absence of a contract of employment; that the essential factors were that the tort had been committed as a result of activity being undertaken by the tortfeasor on behalf of the defendant. – the need for a contract of employment may be abolished. Adjustment to the close connection test.

3. Consider the scenario below and examine the rights and liabilities in tort arising from it. Little Rascals Ltd runs a residential field study centre for children aged 10-16 and employs Ray and Steve as live-in wardens. One night a fire broke out in one of the dormitories. Whilst Ray telephoned the emergency services Steve entered the dormitory. He could not locate the fire extinguisher, which should have been located by the entrance to the dormitory, but managed to evacuate the children before collapsing from smoke inhalation. Steve was pulled from the dormitory by the fire service but did suffer nasty burns to his face and arms. It later transpired that Ray had removed the fire extinguisher when painting the dormitory some weeks previously and had forgotten to replace it. En-route to hospital Steve unfortunately sustained additional injuries when the ambulance he was in crashed into a bollard. The ambulance driver, Laura, who was employed by Shire Hospital Trust, was found to be over the alcohol limit for driving. All ambulance staff are expressly forbidden from drinking any alcohol on duty by Shire Hospital Trust. Little Rascals

Seminar 9- Vicarious Liability

Ray – Negligence by ray for removing the fire extinguisher and not replacing it. The negligence was committed whilst in employment. Multiple test – 1. employee agrees to provide work and skill in return for pay – yes 2. employee agrees to be subject to employer’s control – yes 3. other terms of the contract are consistent with existence of contract of service – more info needed. Salmond Law of Torts 1907  A tort is committed within the course of employment if it is: a) a wrongful act authorised by the employer OR b) a wrongful and unauthorised mode of carrying out an authorised act  Outside the course of employment? employee is “on a frolic of his own” per – doing something he wasn’t really authorised to do. Not to be counted within the course of his employment. In the course of his employment. Little rascal responsible for Steve’s burns. Steve – no liability. Shire Hospital Trust Laura – That there is a prohibition on Laura doesn’t make a difference to liability. -

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Rose v Plenty [1976] 1 WLR 141 – milkman who is told not to allow passengers on the milk tray or delivery the milk. Disregarded order and payed child of 13 to help. Child injured while riding on the milk tray, in a result of the driving. The defendant employer held vicariously liable. Prohibited act but done to further the business. Unauthorised way of doing an unauthorised act. Prohibited act done to further employer’s business so an unauthorised way of doing authorised act

Laura is authorised to drive the ambulance- within course of employment- but is simply carrying this out in an unauthorised way. So, can pin some liability on employer.

Learning Outcomes    

Understanding of rationale(s) for the imposition of liability Understanding of positive duties imposed by relevant statutes Knowledge of common law resulting from judicial interpretation of relevant statutes Application of knowledge

Seminar 9- Vicarious Liability

Required Reading

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Steele, Chapter 9 Cox v Ministry of Justice [2016] UKSC 10 Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11 Giliker ‘Lister Revisited: Vicarious Liability, Distributive Justice and the Course of Employment’ (2010) 126 LQR 521

Additional Reading Morgan ‘Certainty in Vicarious Liability: A Quest for a Chimaera?’ (2016) 75(2) CLJ 202  Morgan ‘Liability for Independent Contractors in Contract and Tort: Duties to Ensure that Care is Taken’ (2015) 74(1) CLJ 109  George ‘Non-delegable Duties of Care in Tort’ (2014) 130 LQR 534  Morgan ‘Vicarious Liability on the Move’ (2013) 129 LQR 139  Lord Hope ‘Tailoring the Law on Vicarious Liability’ www.supremecourt.uk/docs/speech-130423.pdf  Brodie ‘Enterprise Liability: Justifying Vicarious Liability’ (2007) 27(3) OJLS 493 ...