Lecture notes
Non-Delegable Duties of Care and Vicarious Liability
- Module
- Law of Tort
- Institution
- University Of Sussex (UoS)
Non-Delegable Duties of Care and Vicarious Liability
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Employers’ Liability – Non-Delegable Duties of Care and Vicarious Liability(Primarily Between Employers and Employees)
Types of Liability
Primary liability for a positive action.
i.e. tortfeasor injures someone.
Primary liability for omission.
i.e. tortfeasor fails to prevent someone they were responsible for injuring.
Vicarious liability for positive action.
i.e. tortfeasor injures someone and their employer is liable.
Vicarious liability for omission.
i.e. tortfeasor fails to prevent someone they were responsible for injuring
someone and their employer is liable.
Costello v CC of Northumbria Police (1999)
Female police officer was attacked by a prisoner in a cell.
Despite calls for assistance fellow police inspector didn’t come to her aid.
Court of Appeal found that police officers assume a responsibility to ‘watch each
other’s backs’ and, therefore, have a positive duty to interference where such
intervention might avoid harm to another officer.
Police inspector breached his duty by omission.
i.e. failing to intervene.
Chief Constable was vicariously liable.
Woodland v Essex CC (2013)
The claimant – pupil at a school.
Essex CC responsible.
Taken swimming with class at age 10 supervised by swimming teacher and lifeguard
(independent contractors).
Pupil got into difficulties and suffered serious brain injury.
Alleged swimming teacher’s and lifeguard’s negligence.
Asserted Essex CC remained liable for injuries.
Supreme Court agreed and found Essex CC liable despite no fault on their part.
Key Features of Woodland v Essex CC (2013)
Swimming teacher/lifeguard did not injure pupil but rather failed to keep a close
enough watch and did not notice pupil was in distress.
Swimming teacher/lifeguard had no relationship with school other than they were
employed by a company which had a contract with the school for swim lessons.
School had done nothing wrong in subcontracting the swim lessons and the
swimming teacher/lifeguard may or may not have been negligent.
Home Office v Dorset Yacht (1970)
, Home Office employees supervising young offenders failed to prevent their escape,
which allowed them to damage claimant’s property.
House of Lords found a duty of care existed between the Home Office employees
and the claimant for the damage caused by the young offenders because of the
supervisory relationship between Home Office employees and the young offenders.
Home Office was vicariously liable.
Armes v Nottinghamshire County Council (2017)
Claimant in care abused by foster carers chosen by CC.
CC not negligent in selection or supervision.
Claimant argued that CC were ultimately liable for the torts of the foster carers they
had chosen even though they had done all that could be reasonably expected of
them in terms of selecting and monitoring them.
Supreme Court agreed.
Liability on What Basis?
In Costello:
If the police officer had been injured because of something dangerous the
police inspector had negligently left out, there would be little difficulty in
finding the police inspector liable for breaching his duty of care not to injure
fellow officers.
It isn’t quite so obvious that failing to intervene to protect a fellow officer
should lead to liability but you might reasonably expect (given the nature of
their job) that the police officer might have attempted to do something.
Costello, therefore, does not deviate too far from traditional liability because
we are still saying he was at fault, not for something he did but rather failed
to do.
Similar reasoning can be applied to Dorset Yacht.
If the Home Office employees had damaged the yachts there would be no
difficulty finding them liable for breaching their duty not to cause property
damage.
It isn’t so self-evident that they should be liable for failing to prevent
someone else from causing property damage but when you factor in that it
was their job to supervise the young offenders and they were negligent in
doing this it, once again, seems sufficiently close to traditional liability (i.e.
the negative obligation to do cause harm).
Just as with Costello, therefore, Dorset Yacht is an example of primary liability
based on fault (albeit for an omission rather than a positive action).
In both Woodland and Armes:
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