These are my tort law notes from semester one at university. . These notes contain summaries, definitions, exam tips, common law and legislation. 1:1 standard.
Please also look at my notes 'Tort Law Notes (Part 1)' to find other areas of tort law.
Tort Law: Module 2
Vicarious Liability - there is a relationship between A and B which means that A bears liability for the
tort B has committed against the C.
There are several categories:
Employers-employees
This is where the employer bears liability for the tort that their employee has committed against the
claimant. In Murphy and Witting (2013) p.632 this was said to be ‘the clearest example of strict
liability in tort.’
Why should the employer be held liable?
1. Benefit and burden principle – the employer gets the benefit but also bears the burden of the
employee’s actions – Majrowski where an employer was found liable when one of his employees
began to harass another employee.
2. ‘Deepest pocket’ - it’s fair for the claimant to sue the person with the deepest person rather
than a ‘man of straw’ as it means that they get enough compensation.
3. Widespread use of public liability insurance (for some businesses such as horse-riding stables
this is compulsory) - most businesses have insurance which means it’ll be easier for them to pay and
also means the claimant gets compensated.
4. Deterrence and encouragement of good recruitment and supervision practices – if the employer
is liable for the actions of their employees, it will encourage them to ensure that the people they
are hiring are well-trained etc. and also to watch their employee’s more closely.
Proving vicarious liability:
1. Firstly, there must be primary liability – this means they must be able to prove that a tort
was committed
2. Then, must prove the vicarious liability of the employer:
Employee – mixed matter of law and fact
The tort was committed within the course of, or in close connection with, employment
An employer is responsible for the actions of an employee but not an independent contractor. This is
because an employee is under instruction and constraints on choice whereas an independent
contractor is its ‘own master.’
An employee
An employee is employed under a contract of services, an independent contractor is under a
contract for services. Hinges on the question of the degree of independence (the more independent
the less likely they are an employee, the more control the employer has the more likely they are an
employee) and not necessarily the existence of a contract of employment – this is why a person can
be an employee even without a contract of employment.
Lee Ting Sang v Chung Chi-Keung [1990] - a mason working unsupervised and paid a piece rate or a
daily rate is capable of being an employee. Here, the worker worked for C and his work was not
supervised but inspected periodically. He was paid either a piece-work rate or a daily rate. He
sometimes worked for others but prioritised C. He was injured at work and C claimed that he was a
sub-contractor and refused to pay compensation. C of A held that the worker was an employee.
Proving that X is an employee: there are tests to distinguish whether someone is an employee or an
independent contractor,
1. The control test – this deals with the extent to which the employee was under the control of the
employer as to how he did his work. If the employer controls not only the type of work to be done
but also the way it is done, that points to a contract of service (an employee). However, this test has
proved inadequate as an all-purpose test, as sometimes the employee will decide themselves how to
carry out a job.
Calvert v Gardiner [2002] - an action could not be brought against the bishop of the diocese in which a
church was situated where the ringing of the parish church bells might constitute a private nuisance. A
,priest is not an employee. This was recently confirmed in Preston v President of the Methodist
Conference [2013]
Hawley v Luminar Leisure [2006] - a nightclub was vicariously liable for the acts of a doorman supplied to
it under an agreement for the provision of security services since the club had control not only over what
the doorman did but also over how he was to do it. An assault by the doorman on a member of the public
caused an ‘accidental’ bodily injury for the purposes of the employer’s public liability insurance.
Market Investigations Ltd. V Minister of Social Security [1969] - “is the person who has engaged himself to
perform these services performing them as a person in business on his own account? If the answer to
that question is yes, then the contract is a contract for services (independent contractor). If the answer is
no, then the contract is a contract of service (employee)… Control will no doubt always have to be
considered, although it can no longer be regarded as the sole determining factor.”
2. The integration test – here the court considers if the employee’s activities were integrated into
the business. In Stevenson, Jordan and Harrison Ltd v Macdonald and Evans [1952] Denning L.J.
suggested that, under a contract of service, the employee’s work is done as an integral part of the
business, whereas under a contract for services his work is not integrated into the business but is
merely an accessory to it. However, this also proved inadequate as a general test.
Viasystems (Tyneside) Ltd. V Thermal Transfer (North) Ltd [2006] - is the employee ‘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’ - Per Rix LJ.
3. The ‘Ready Mix Concrete’ or ‘pragmatic’ test – this states that a contract of service existed if:
The servant agrees that, in consideration of a wage or other remuneration, he will provide his
own work and skill in the performance of some service for his master.
He agrees, expressly or impliedly, that in the performance of that service he will be subject to the
other’s control in a sufficient degree to make that other master (he agrees to be subject to the others
control to such degree that it makes the other the master).
The other provisions of the contract are consistent with its being a contract of service.
(Per MacKenna J at 515)
Course of employment
‘Every act which is done by a servant in the course of his duty is regarded as done by his master’s
orders, and consequently is the same as if it were the master’s own act’ - Chelmsford L.C
in Bartonshill Coal Co v McGuire [1838]
Proving the act was committed within the course of employment
An unauthorised way of doing X’s job – The Salmond Test:
There is a distinction between act which the person is employed to do but which they perform
wrongfully and acts which they are forbidden from performing at all. Though, the scope of
‘authorised’ is now wider due to Lister v Hesley Hall [2001] and since this, a different test has been
applied.
Acts of employees and the course of employment
Century Insurance Co. Ltd v A lorry driver who was transporting petrol was at a petrol station and lit
Northern Ireland Transport a cigarette causing an explosion. The court held that the act of lighting
Board [1942] the cigarette occurred during the course of employment.
Bayley v Manchester, Sheffield
& Lincolnshire Railway Co
[1873]
Harrison v Michelin Tyre Co C was employed by D as a tool grinder. He was injured when talking to
Ltd [1985] another employee while standing on a duckboard of a machine.
Another employee played a joke on C which led to C falling and
suffering injury. He brought an action against D stating the employee
had acted in the course of employment and therefore they were VL. D
denied liability. Held that the test for determining VL was that the
, employee’s act was part and parcel of his employment even though it
was unauthorised or prohibited by the employer, in which case the
employer was liable, or that it was so divergent from his employment
as to be plainly alien to it and wholly distinguish from it, in which case
the employer was not liable. Applying this test, a reasonable man
would say that even though the employee’s act was of a kind that
would never be authorised by D, it was none the less part and parcel of
employment, therefore the employers were VL.
Aldred v Naconco [1987] C injured at work when another employee pushed an insecure
washbasin against her in order to startle her. C claimed against
employers on the grounds that they had breached their duty to ensure
the washbasin was safe and they were VL for the other employee.
Claim dismissed so C appealed. Appeal dismissed. Employer is not VL
for injuries sustained at work which were caused by another employee.
An employer is only responsible for acts actually authorised by him and
for the way an employee performs those acts.
Cases involving racial or sexual
discrimination:
1. Sidhu v Aerospace
Composite Technology Ltd
[2000]
2. AM v WC; AM v SPV
[1999]
3. Bracebridge Engineeri
ng Ltd v Darby [1990]
Cases involving special needs
in education:
1. Phelps
v Hillingdon LBC [1997]
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