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Legal Evaluation of Negligence

  • 15 Pages
  • Published On: 29-11-2023
Question 1
Bruce against Cracking Pastry Ltd for his gastro-enteritis

The issue in this case is whether Bruce has a claim in negligence against Cracking Pastry Ltd for his gastro-enteritis.

Negligence is a breach of duty to take reasonable care to prevent a foreseeable harm to any person who may be impacted by the breach of the duty. Reasonable foreseeability of harm and the failure to prevent it is the essence of negligence liability. As per this, the claimant for negligence should that there was a duty of care owed to him by the defendant, that the defendant breached this duty, and this breach led to harm to the claimant.

Duty of care. To establish duty of care, the claimant should be able to establish a sufficiently close relationship between themselves and the defendant, that reasonable foreseeability of harm. Moreover, the claimant should also establish that the actions of the defendant were in breach of a reasonable standard of care, which is an objective standard of care test explained as a standard of care reasonably expected of a prudent person.

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Proximate cause. There should be a direct relationship between breach of duty to take care and the harm caused to the claimant in that the harm caused to the claimant should be the direct result of the breach of duty of care by the defendant. This is called as proximate cause, and it is essential to establish to be successful in a claim of negligence.Finally, unless there is actual harm caused to the claimant, a claim of negligence will fail irrespective of the other elements being made out and being present in the case.

In Donohue v Stevenson, the facts were somewhat similar to this case with the victim of gastroenteritis having drank ginger beer out of a bottle that had a dead snail in it. The court held that the manufacturer was liable to pay damages to the victim who developed a severe case of gastroenteritis after discovering the dead snail.

The principle on which the court decided the case was that the manufacturer has a proximate relationship with the customer because of reasonable foreseeability of harm that can be caused by not taking reasonable care (the neighbour principle).

Applying the same principle to the present case, it can be said that Bruce’s claim has chance of success in a court of law because the facts bear out that Bruce’s case of gastroenteritis was directly the result of his eating a meat pie manufactured by the Cracking Pastry Ltd. As in the case of Donohue discussed above, this case also involves negligence by the manufacturer and there is proximate relationship between the claimant and the Cracking Pastry Ltd based on the Donohue principle of the manufacturer having duty of care to the customer in case of reasonable foreseeability of harm.

  1. Donohue v Stevenson [1932] UKHL 100.
  2. Ibid.
  3. Ibid.
  4. Caparo plc v Dickman [1990] AC 605.
  5. Home Office v Dorset Yacht, [1970] UKHL 2.
  6. Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd or "Wagon Mound (No. 1), [1961] UKPC 2; J Steele, Tort Law: Text, Cases, and Materials (Oxford: Oxford University Press 2014) 134.
  7. SF Deakin, A Johnston, B Markesinis, Markesinis and Deakin's Tort Law (Oxford: Oxford University Press 2012) 126.
  8. Donohue v Stevenson [1932] UKHL 100.
  9. Ibid.

To conclude, Bruce has a strong claim against Cracking Pastry Ltd as the elements of negligence are met in this case. There is duty of care, breach of duty, and harm caused to Bruce with proximate cause.

Aiden’s estate against Downheantun Hospital

The issue in this case is whether Aiden’s estate has claim against the Downheantun Hospital for his death.

The law of negligence can be applied in this case to ascertain the possible claim in negligence against the hospital by the estate of Bruce. Cases involving medical negligence are here to assess whether the actions of the Downheantun Hospital can be said to be amounting to medical negligence.

Balance of probabilities. In order to establish the tort of negligence, apart from the need to establish duty of care, breach of duty of care, and harm, the claimant is also required to establish negligence of the hospital or the doctor on the basis of balance of probabilities.What is required in such cases is that the claimant establishes (and the burden of proof is on the claimant) that the most likely cause of harm is the act or omission of the doctor or hospital. The Bolitho decision also lays the principle that causation should be evaluated on the balance of probabilities.

Foreseeability of harm. With regard to duty of care and breach of duty of care components of negligence law, in the context of doctor’s negligence, reasonable foreseeability of harm and sufficiently close relationship between doctor and patient can being the event of misdiagnosis or lack of medical care that leads to the harm to the patient.

The claimant in a medical negligence case should be first of all be able to establish that the doctor or the hospital owed them a duty of care as per the principle laid down in Donohue.For establishing duty of care, it is important to establish that there was a sufficiently close relationship between the doctor and patient; this can be done if the doctor was approached by the patient and the doctor could reasonably foresee harm to be caused by failure to take care.

Bolam test. The standard of care in medical negligence cases is not the same as other negligence cases because the objective standard of care (consideration to a reasonable person’s actions or omissions in similar circumstances)when applied to medical negligence, sees the reasonable person test adapted to the accepted practices of the medical profession.

  1. Palmer v Portsmouth Hospitals NHS Trust [2017] EWHC 2460 (QB.
  2. Bolitho v City and Hackney Health Authority [1998] AC 232.
  3. Colin Mitchell, et al, ‘Exploring the potential duty of care in clinical genomics under UK law’ (2017) 17 (3) Medical law international 158.
  4. Donohue v Stevenson [1932] UKHL 100.
  5. Caparo plc v Dickman [1990] AC 605.

The Bolam test is relevant in this context, and it gives direction as to what standard of care is applicable to medical negligence cases; in Bolam, it was held that a medical professional is liable for negligence for failure to act as per accepted practices of a responsible body of medical men is a specific area of medical practice.

An accepted practice in terms of reasonable medical professional standards can be the practice of examination of the patient before giving a diagnosis in a specific case. Indeed, diagnosis only after examination is one of the cardinal principles of the medical profession as was held in the case of Montgomery v Lanarkshire Health Board (Scotland).In this case, the court held that the doctor was negligent for failing to examine a patient before giving the medical advice.

However, even if the doctor is negligent in terms of giving diagnosis without examination of the patient, this does not translate to actionable claim for the claimant in medical negligence cases. First, Barnett v Chelsea and Kensington Hospital Management Committee clearly notes that a medical professional is liable only if the harm is attributable to the negligence of the doctor. Second, the burden of proof to establish harm on the balance of probabilities is on the claimant who has to prove that the harm resulted from the breach in the duty of care and on the balance of probabilities it can be said that the harm only occurred because of the doctor’s failure to follow reasonably expected medical standards. This would lead the court to ascertain on the basis of the Bolitho test whether a pool of medical opinion would have done the same thing as the doctor in the given case. In other words, if the patient had been examined, would the doctor have advised them to go home or would they have taken a different approach to treatment. This is where balance of probabilities comes in because a doctor would generally not be liable if the patient is left no worse off than they would otherwise have been had they been admitted to the hospital instead of being told to go home.

The ‘but for’ test. The ‘but for’ test becomes essential to establishing the defendant’s liability in medical negligence cases where the claimant would have to establish that if the diagnosis had been correct and proper, it have been possible to treat the patient and but for this failure of the doctor, the harm to the claimant would not have occurred.The ‘but for test’ is therefore used by the court to identify the different causes for harm to the patient and determine if but for the actions of the doctor the harm would not have been caused.

  1. Blyth v Birmingham Waterworks Company (1856) 11 Ex Ch 781, [784].
  2. Bolam v Friern Hospital Management Committee [1957] 2 All ER 118,121
  3. Montgomery v Lanarkshire Health Board (Scotland) [2015] UKSC 11.
  4. Barnett v Chelsea and Kensington Hospital Management Committee (1969] 1 QB 428
  5. Jonathan Herring, ‘Medical Law and Ethics’ (Oxford University Press 2016) 107.
  6. Bolitho v City and Hackney Health Authority [1998] AC 232.
  7. Barnett v Chelsea & Kensington Hospital [1969] 1 QB 428
  8. Snell v. Farrell (1990) 72 D.L.R. (4th) 289.

The court may also use the material contribution to harm test to identify and assess the causes of material harm to the claimant.This becomes relevant in cases where there are different defendants who materially contributed to the harm to the claimant.

In this case as there is one defendant who materially contributed to the harm, the case against the doctor and the hospital is strong. The facts bear out that Aiden had a headache after hurting his head on the window, but although he told the doctor about hitting his head and his severe headache, the doctor diagnosed it as a mild whiplash without examining his head and told him to go home. After return to his house, Aiden had a convulsion and he died due to heart failure. The death is determined to be caused by a cerebral haemorrhage from hitting his head against the window.

As per the facts, Aiden would have recovered had he been properly diagnosed and treated on his first visit to Downheantun Hospital. Therefore, applying the principles discussed above, Aiden’s estate will have an actionable claim against Downheantun Hospital on the basis of ‘but for’ test as the other factors of negligence are made out in this case.

Cases

Barnett v Chelsea and Kensington Hospital Management Committee (1969] 1 QB 428

Blyth v Birmingham Waterworks Company (1856) 11 Ex Ch 781, [784].

Bolam v Friern Hospital Management Committee [1957] 2 All ER 118,121

Bolitho v City and Hackney Health Authority [1998] AC 232.

Caparo plc v Dickman [1990] AC 605.

Donohue v Stevenson [1932] UKHL 100.

Dr Sido John v Central Manchester and Manchester Children's University Hospitals NHS Foundation Trust [2016] EWHC 407.

Fairchild v Glenhaven Funeral Services [2002] UKHL 22.

Home Office v Dorset Yacht, [1970] UKHL 2.

Montgomery v Lanarkshire Health Board (Scotland) [2015] UKSC 11.

Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd or "Wagon Mound (No. 1), [1961] UKPC 2

Palmer v Portsmouth Hospitals NHS Trust [2017] EWHC 2460 (QB).

Snell v. Farrell (1990) 72 D.L.R. (4th) 289.

Bibliography
Books

Deakin SF, Johnston A, Markesinis B, Markesinis and Deakin's Tort Law (Oxford University Press 2012).

Herring J, ‘Medical Law and Ethics’ (Oxford University Press 2016).

Steele J, Tort Law: Text, Cases, and Materials (Oxford University Press 2014).

  1. Dr Sido John v Central Manchester and Manchester Children's University Hospitals NHS Foundation Trust [2016] EWHC 407.
  2. Fairchild v Glenhaven Funeral Services [2002] UKHL 22.
Journals

Mitchell C, et al, ‘Exploring the potential duty of care in clinical genomics under UK law’ (2017) 17 (3) Medical law international 158.

Question 2

The issue in this case is whether Todd and Clark have potential claims in private nuisance.

Private Nuisance is an unlawful interference with the use and enjoyment of one’s land. Such interference is with someone’s enjoyment or exercise of his or her rights arising from ownership or occupation of land, easements or any other such rights.

A private nuisance is caused by the encroachment on neighbours’ land; directly causing physical injury to that land; or by interfering with the quiet enjoyment of the land for example excessive noise.

Proprietary interest. In order to make a claim in private nuisance, the claimant must have a proprietary interest in the land. This was seen in the case of Malone v Laskey, where it was held that a person who is a mere licensee does not possess any right to dictate to the defendant.

Private nuisance is a matter of property rights. In Hunter v Canary Wharf, it was ruled that nuisance is treated a tort against property and not against a person.

In the current case, Clark and Todd live in privately owned houses. As such, they have proprietary interest in the Land. As it is a matter of property rights, they may raise a claim in private nuisance.

Balancing the interests of the neighbouring land owners. Private nuisance is a neighbourhood dispute. It regulates to seek a balance between the neighbours. Lord Wright in Sedleigh-Denfield v O'Callaghan stated that a balance must be maintained between an occupier’s right to do what they like with their own, and their neighbour’s right not to be interfered with.

There are two elements necessary to establish a private nuisance. Firstly, there is an indirect interference and secondly it is unreasonable. These two points are also relevant to balancing the interests of the neighbouring land owners.

The balancing aspect comes into relevance when the question is raised regarding reasonableness of the use of land and its indirect interference with the neighbour’s right to enjoy their own land.

The current case involves determining whether or not Clark’s act of keeping the Christmas lights lit throughout the hours of darkness or Todd’s playing loud Christmas music through the night amounts to indirect interference with each other enjoyment of their land and to unreasonable act.

  1. K Horsey and E Rackley, Tort Law (Oxford University Press 2013).
  2. Roger ter Haar, Anna Laney and Marshall Levine, Construction Insurance and UK Construction Contracts. (Taylor & Francis 2016) 66.
  3. Ibid.
  4. Malone v Laskey 1907 2 KB 141.
  5. Hunter v Canary Wharf [1997] AC 655, 695.
  6. Sedleigh-Denfield v. O'Callaghan [1940] A.C. 880, [903].
  7. Chris Turner, Tort Law (2013) 98.

Relevant factors. While balancing the competing interest, there a certain relevant factors to be considered.

Firstly, it is that of the duration and timings of the concerned acts. Temporary or occasional interference may cause annoyance. However, if may constitute private nuisance if the interference is grave temporary interference. In De Keyser’s Royal Hotel v Spicer Bros, it was held that there is a private nuisance caused by a temporary nuisance caused by building works that caused guests of the hotel to lose a night’s sleep and prevented after-dinner speakers from making themselves heard.

Secondly, a relevant factor is the locality. In Sturges v Bridgman, Thesiger LG held that if the locality is designated for particular traders or manufacturers, any acts of them carried on in an established and particular manner cannot be considered private nuisance.

Thirdly, a single act of the defendant cannot constitute a private nuisance. For an interference to constitute private nuisance, there must be a continuing state of affairs.

If degree of interference to neighbours is to an unreasonable extent that it interferes with the neighbour’s right to enjoy his property, it will be private nuisance. Thus, if the activities are continuously for a relatively short period, they are tolerated as of reasonable necessity.

Fourthly, if a defendant uses the land in the manner they know will cause an unreasonable interference with a neighbour’s land irrespective of whether or not they belief that they are entitled to do the acts or took all reasonable steps to prevent the acts amounting to a nuisance. Nuisance to constitute statutory nuisance must be unreasonableness.

Thus, in Andreae v Selfridge and Co Ltd, it was held that building operations carried out by the defendant must have been carried out reasonably taking proper and reasonable steps in order that no undue inconvenience is caused to the neighbours.

Fifthly, it must be foreseeable that the defendant’s activities will cause interference with a neighbour’s right enjoyment of their land. Thus, if building works cause dust that disrupts rightful the use and enjoyment of land, it would be nuisance if such the nuisance was foreseeable.

Sixthly, malice is another factor that may preclude a claimant from making a private nuisance actionable. Thus, in Christie v Davey, where the defendant objected to the noise from the neighbour where a music teacher resided and retaliated by banging on the walls, the plaintiff was given an injunction.

  1. Anthony Speaight, Architect's Legal Handbook (Taylor & Francis 2010) 27.
  2. 6
  3. Matania v National Provincial Bank [1936] 2 All ER 633..
  4. Keyser’s Royal Hotel v Spicer Bros (1914) 30 TLR 257.
  5. Sturges v Bridgman [1879] 11 ChD 852, at 856.
  6. Spicer v Smee [1946] 1 All ER 489.
  7. Jones & Anor v Ruth & Anor [2010] EWHC 1538 (TCC)
  8. Ibid.
  9. Anthony Speaight, Architect's Legal Handbook (Taylor & Francis 2010) 27.
  10. Andreae v Selfridge and Co Ltd CA 1938 1938
  11. Matania v National Provincial Bank Ltd [1936] 2 All ER 633.
  12. Marshall Cavendish Corporation, Tort law (Taylor & Francis Group 2006) 6.

Seventhly, activities carried on for public benefit cannot be a defence against private nuisance. In Adams v Ursell, the court held a fried fish shop in a residential part of a street to be a nuisance. The court did not accept the defendant’s argument an injunction will cause great hardship to the defendant and the people who were the customers.

Lastly, if the activities cause abnormal sensitivity, then it would constitute private nuisance. Personal discomfort is just by referring to the standards of an ordinary person who might occupy the claimant’s land. The inconvenience must materially interfere with the ordinary physical comfort of human existence.

The activities will be abnormal if they cause physical damage to the neighbour’s property. However, it may be otherwise if the damage is because of the exceptionally delicate nature of the property.

Defences. A few defences are available.

Interference by statutory authority. If the nuisance is caused by activities of a local authority or any other statutory body, this may amount to a defence that the activities are within the scope of the authority.

20 Years prescription. If the interference is for more than 20 years, it cannot constitute a private nuisance.

Act of a stranger. If the interference is by a third party without the permission of the owners of the land, it cannot constitute a private nuisance. However, if an occupier of land continues the nuisance despite having the knowledge or presumed knowledge, they fail to take reasonable means to end the nuisance within a reasonable time.

In the current case, none of the defences is applicable.

In the current case, the act of Clark to lit the lights from December 1st to January 6th throughout the hours of darkness will constitute grave temporary interference, as was held in Matania. Applying De Keyser’s Royal Hotel, it is a private nuisance even it a temporary nuisance as it caused Todd loss night’s sleep. The loud humming noise and vibrations from the generator will also constitute private nuisance. The activities are not a single act of Clark but are continuing state of affairs.

  1. Christie v Davey (1893) 1 Ch 316 The.
  2. Marshall Cavendish Corporation, Tort law (Taylor & Francis Group 2006) 7.
  3. Adams v Ursell (1913) 1 Ch. 269.
  4. Marshall Cavendish Corporation, Tort law (Taylor & Francis Group 2006) 4.
  5. Walter v Selfe [1851] EngR 335, (1851) 4 De G and Sm 315, (1851) 64 ER 849.
  6. Marshall Cavendish Corporation, Tort law (Taylor & Francis Group 2006) 4.
  7. Robinson v Kilvert (1889) LR 41 ChD 88.
  8. Allen v Gulf Oil [1981] AC 1001.
  9. Jacqueline Martin, Cambridge International AS and A Level Law (Hodder Education 2017), at para 40.3.1.
  10. Sedleigh-Denfield v O’Callaghan [1940] AC 880.
  11. Matania v National Provincial Bank [1936] 2 All ER 633..
  12. Spicer v Smee [1946] 1 All ER 489.

The locality is a private residential. As such, considering the ruling in Sturges v Bridgman, the locality is not designed for the kind of activities that Clark carried on. It is designed for private residence and hence, Todd has an actionable claim of private nuisance.

By keeping lights lit and keeping the generators on throughout the hours of darkness for the period December 1st to January 6th every year constitute a degree of interference that is of an unreasonable extent that they interfere with the Todd and other neighbours’ right to enjoy their property. Since the activities are continuously for longer than a relatively short period, they cannot be tolerated as of reasonable necessity. They constitute private nuisance.

Clark was aware of the inconvenience caused because of continuous complaints from Todd, Margo and Lewis. He knew that his activities are causing unreasonable interference with enjoyment of their land. As such, the activities will constitute statutory nuisance as they are unreasonableness. He did not even take proper and reasonable steps to not cause undue inconvenience to Todd and the other neighbours.

Clarke should also have foreseen that by keeping the array of lights on throughout the dark would cause an ordinary person loos sleep. He should also have foreseen that by keeping the generator on throughout the night, the noise and vibration would cause nuisance to the neighbours. Clark cannot use the defence that keeping the light on gave so many people pleasure. Activities carried on for public benefit cannot be a defence against private nuisance.

The facts of the case show that the lights have caused the paint of Lewis’s house to peel. As per the factor of abnormal sensitivity, this would also constitute private nuisance.

Todd has actionable claim against Clark. However, the facts of the case also show that Todd also retaliated by playing loud Christmas music through the night to keep Clark awake. This conduct will constitute malice that may preclude him from making a private nuisance actionable.

Applying the balancing element of private nuisance, neither of the parties may be successful in getting an injunction against each other. What is probable is that the court may order both of them to respect each other rights of enjoyment of their respective property. This means both Clark and Todd may be order to cease the unreasonable interferences.

  1. Ibid.
  2. Anthony Speaight, Architect's Legal Handbook (Taylor & Francis 2010) 27.
  3. Andreae v Selfridge and Co Ltd CA 1938 1938
  4. Marshall Cavendish Corporation, Tort law (Taylor & Francis Group 2006) 7; Adams v Ursell (1913) 1 Ch. 269.
  5. Ibid, 4; Walter v Selfe [1851] EngR 335, (1851) 4 De G and Sm 315, (1851) 64 ER 849.
  6. Marshall Cavendish Corporation, Tort law (Taylor & Francis Group 2006) 6; Christie v Davey (1893) 1 Ch 316 The.
Cases

Adams v Ursell (1913) 1 Ch. 269.

Allen v Gulf Oil [1981] AC 1001.

Andreae v Selfridge and Co Ltd CA 1938 1938

AS and A Level Law (Hodder Education 2017), at para 40.3.1.

Christie v Davey (1893) 1 Ch 316 The.

Hunter v Canary Wharf [1997] AC 655, 695.

Jones & Anor v Ruth & Anor [2010] EWHC 1538 (TCC)

Keyser’s Royal Hotel v Spicer Bros (1914) 30 TLR 257.

Malone v Laskey 1907 2 KB 141.

Matania v National Provincial Bank [1936] 2 All ER 633.

Robinson v Kilvert (1889) LR 41 ChD 88.

Sedleigh-Denfield v. O'Callaghan [1940] A.C. 880, [903].

Sturges v Bridgman [1879] 11 ChD 852, at 856.

Spicer v Smee [1946] 1 All ER 489.

Walter v Selfe [1851] EngR 335, (1851) 4 De G and Sm 315, (1851) 64 ER 849.

Bibliography
Books

Horsey K and E Rackley, Tort Law (Oxford University Press 2013)

Haar RT, Anna Laney and Marshall Levine, Construction Insurance and UK Construction Contracts. (Taylor & Francis 2016)

Marshall Cavendish Corporation, Tort law (Taylor & Francis Group 2006)

Martin J, Cambridge International

Speaight A, Architect's Legal Handbook (Taylor & Francis 2010)

Turner C, Tort Law (2013)

Question 3
Vicarious liability creates so much injustice to employers that it can never be justified.’
Critically evaluate the way in which the courts apply the rules of vicarious liability in the light of the above statement.
1. Introduction

The current question is regarding vicarious liability in the area of employer-employee relationship. Vicarious liability means that an employer will be automatically liable for the wrong doing (torts) of their employees. This doctrine, thus, renders a person liable for the civil wrong committed by another.

This doctrine represents a rule of responsibility where the defendant will be liable for the torts committed by another. In case of an employer-employee relation the employer will be strictly liable for the torts of their employees. The torts must have been committed in the course of the employee’s employment. The liability arises from the employer’s relationship with the employee.

The question of liability depends on the nature of the act and the relationship between the parties.

Terms of corrective justice signifies that liability will rectify the injustice by one person on another. Vicarious liability disrupts this causal link. The current question will determine whether or not the doctrine of vicarious liability creates injustice to employers to the extent that it could never be justified.

2. Key aspects and Scope

The nature of work has to be determined to apply the doctrine of vicarious liability. Common law has provided three tests to determine whether or not a person is an employee.

2.1 Tests to determine employee

Firstly, in Yewens v Noakes, Bramwell LJ ruled that where the employer dictates over ‘what work was to be done’ and ‘how it was to be done’, there is an employer-employee relationship. This is the control test.

Given the change in the socio-economic conditions, a multiple test is developed that considers all factors in the relationship. This doctrine thus defines outworkers as employees if they undertake the same work as that of the employees in the workplace. As such, even the doctors are employees of a hospital, which can be liable for doctors’ wrongful acts.

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  1. Michael Howard, UK Law Dictionary and Legal Letter Writing Exercise Book: All essential UK law vocabulary with exercises to improve your legal English skills (Michael Howard 2020)48.
  2. P. Giliker, Vicarious Liability in Tort: A Comparative Perspective (Cambridge University Press 2010) 1.
  3. P. Giliker, Vicarious Liability in Tort: A Comparative Perspective (Cambridge University Press 2010) 1.
  4. Yewens v Noakes (1880) 6 QBD, at 530.
  5. Ready Mixed Concrete v Minister of Pensions [1968] 2 QB 49.
  6. Netheremere Ltd v Taverna & Gardiner [1984] ICR 612, CA.
  7. Cassidy v Ministry of Health [1951] 2 KB 343

Secondly, Stevenson Jordan & Harrison Ltd. v McDonald & Evans, laid down the integration test, which determines whether or not an act forms an integral part of the business.

Thirdly, as the above two tests (the former was applicable for cases involving unskilled workers and the latter was limitedly use as it was impractical) were not adequate to establish employer-employee relationship, the court developed the Multiple or Economic Reality Test. Mackenna. J, in Ready Mixed Concrete (South East) Ltd v Minister of Pensions stipulated three conditions. The employee delivers skill for a wage. Employer has a degree of control. Work terms are consistent with employment. In case on non-adherence by employee of the employer’s instructions, the employer is not liable even in presence of the three conditions.

2.2 Proving vicarious liability

An employer will be vicariously liable when wrongdoer was his or her employee; the wrongdoer committed a tort; and the wrongdoer committed the wrong in the course of his or her employment.

The Salmon Test requires that tort must is committed in the course of employment. The wrongful act is authorised by the employer and is carried in an authorised way. The employer should be liable for the act that they have authorised.

Even if the authorised act is carried out in unauthorized manner, the employer will be liable if the tort is closely connected with the employment.

In case of a contract concerning inherently dangerous activities, a non-delegable duty may be imposed on the employer, which/who will be liable vicariously liable for damage done by the independent contractors.

If the tort was committed in the course of employment, but not within the scope of employment, the employer is not liable.

3. Is Vicarious liability Fair

Whether or not the doctrine of vicarious liability is fair could be fathomed from the fact that the superior courts, which are the House of Lords and the Supreme Court have mixed success in seeking to understand the doctrine and to explain the nature of the doctrine. The case of Lister v Hesley Hall Ltd is a good example to highlight the general position of the courts regarding this doctrine.

  1. Stevenson Jordan & Harrison Ltd. v McDonald & Evans ((1952) 1 TLR 101.
  2. C Brennan, Tort Law Concentrate: Law Revision and Study Guide (Oxford University Press 2017) 106.
  3. B Greene, Tort Law (Routledge 2013) 134.
  4. Ready Mixed Concrete (South East) Ltd v Minister of Pensions [1968] 2 QB, at 515c.
  5. Ibid.
  6. S F.Deakin, A Johnston and B Markesinis, Markesinis and Deakin's Tort Law (Oxford University Press 2012) 555.
  7. L Roach, Card and James' Business Law (Oxford University Press 2014) 468.
  8. Poland v Parr & Sons [1927] 1 KB 236.2.
  9. Limpus v London General Omnibus Company CExC 23 Jun 1862
  10. Honeywill and Stein Ltd v Larkin Brothers Ltd [1934] 1 KB 191
  11. Beard v London General Omnibus co [1900] 2 QB 530.
  12. P. Giliker, Vicarious Liability in Tort: A Comparative Perspective (Cambridge University Press 2010) 2.

The Lister case concerned a wrongdoing of one Mr Grain, who was responsible to discipline and supervise boys in a school with a boarding. Mr. Grain systematically sexually abused the claimant boys. The defendant was imprisoned for his offences. The claimants sought civil compensation from the school and the boarding. The House of Lords dealt with the question of whether or not the defendants should be held vicariously liable for Mr. Grain’s act. The House of Lords answered in affirmative and held that the vicarious liability could be extended to the wilful misconduct irrespective of the lack of evidence that defendants as employer should have detected the misconduct or of the fact that greater preventive measures could have stopped the wrong .

The ruling in this case presents the employer at a weaker position. The corrective justice in this ruling places the defendants at an unfair position where the House of Lords did not whether or not the defendants did not have the ability to detect or prevent the misconduct.

The ruling blurred the distinction between primary and vicarious liability. Lord Nicholls stated that the ruling did not provide clear assistance.

In specific concern with employer-employee relations, the Supreme Court reiterated the doctrine and stated that it must be fair, just and reasonable in order to impose vicarious liability.

Lord Phillips ruled that the employer is vicariously liable in the event an employee commits a tort in the course of their his employment when the following criteria are met: a) an employer is more likely to posses the means to compensate the victim than its employee and the employer could be expected to have insured against that liability; b) the wrong is committed due to activities undertaken by the employee on behalf of the employer; c) such activities are likely to be part of the employer’s business; d) by employing the employee to undertake the activities, the employer will have created the risk of the wrong committed by the employee; and e) the employee was the control of the employer.

The first criteria does not seem to fair, just and reasonable. The question is when the court finds it fair, just and reasonable to impose vicarious liability, why cannot it find it fair, just and reasonable to not impose the liability. Expecting that the employer will have more means of compensating the victim than the employee does not seem to be a fair principle. The criterion of control as laid out by Lord Phillips reflects an expectation from the employer to be personally liable for all the acts of the employee. This does not seem to fall within the parameter of just and reasonable standards.

4. Justification and defects
  1. Lister v Hesley Hall Ltd [2001] UKHL 22.
  2. Ibid.
  3. P. Giliker, Vicarious Liability in Tort: A Comparative Perspective (Cambridge University Press 2010) 3.
  4. Budbai Aluminum Co Ltd v Salaam [2002] UKHL 48, [2003] 2 AC 366, at para. 25.
  5. Catholic Child Welfare Society v Various Claimants and Institute of the Brothers of the Christian Schools [2012] UKSC 56.
  6. Conjoined appeals of Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11 and Cox v Ministry of Justice [2016] UKSC 10, at para 35.

Lord Phillips in Mohamud and Cox observed that it is fair, just and reasonable to expect the employers who are more likely in a better financial position to compensate the victim than the wrongdoer. If the employer has insurance against such kind of liability, it will unfair to expect the victim to recover the compensation from the wrongdoer who may not be in a financial position to appropriately compensate the victim.

The doctrine is justified based mainly on the reasoning that the victim has more chance of receiving compensation or justice. The employer is considered to have deep pockets and the doctrine allows the victims to recover damages from a party worth suing.

The doctrine of vicarious liability could be considered a rule of loss allocation or distribution. Loss allocating rules assign, prohibit, or limit the liability after the occurrence of a tort. It could be seen in employer insurance to cover vicarious liability where the loss is distributed beyond the employer. The reason is that if employee takes out insurance, they will not be able to spread the liability effectively or negotiate the premiums. Such loss spreading is justified as being fair, just and reasonable.

The main defect in the doctrine of vicarious liability is that it is against the basic fault principle of Tort. As mentioned earlier by Giliker (2010), corrective justice will require rectification of injustice by one person on another. The doctrine of vicarious liability distorts this fault principle.

In Yewens, it was ruled that a person is an employee if the employer has control over the work as well as the manner in which the work is performed. However, given the modern forms of employment, there is less evidence of control, for example a hospital cannot be considered to exercise control over a surgeon with a medical expertise who perform surgeries liability.

The doctrine imposes liability on an employer who/which may be an innocent party. Thus, the doctrine is sometimes criticised as being harsh and as delivering rough justice. As such, such liability directly contradicts the fault principle required to establish liability.

The control test has become a residuary test where employee-employer relations is established even where the employer does not dictate the manner in which the work must be carried out. In such event, how does the court decide what is fair, just and reasonable.

5. Conclusion

Vicarious liability applies the principle of strict liability. The application of this doctrine has been expanded by the relevant principles laid down in the case laws. Given the observation derived from answering the question in hand, this doctrine seems to have produced a far implication on the employer’s extent of liability. The courts must also apply the fair, just and reasonable principle from the employer’s perspective.

  1. Conjoined appeals of Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11 and Cox v Ministry of Justice [2016] UKSC 10, at para 35.
  2. NJ McBride, N.J. and R Bagshaw, Tort Law (Pearson Education Limited 2018) para. 31.6.
  3. P. Giliker, Vicarious Liability in Tort: A Comparative Perspective (Cambridge University Press 2010) 236; NJ McBride, N.J. and R Bagshaw, Tort Law (Pearson Education Limited 2018) para. 31.6.
  4. S.K Dua and C Turner, Unlocking Torts. (Taylor & Francis 2019), para 18.1.
  5. Ibid.
  6. S F.Deakin, A Johnston and B Markesinis, Markesinis and Deakin's Tort Law (Oxford University Press 2012) 558.
Cases

Beard v London General Omnibus co [1900] 2 QB 530

Budbai Aluminum Co Ltd v Salaam [2002] UKHL 48, [2003] 2 AC 366

Catholic Child Welfare Society v Various Claimants and Institute of the Brothers of the Christian Schools [2012] UKSC 56

Cassidy v Ministry of Health [1951] 2 KB 343

Cox v Ministry of Justice [2016] UKSC 10

Honeywill and Stein Ltd v Larkin Brothers Ltd [1934] 1 KB 191

Limpus v London General Omnibus Company CExC 23 Jun 1862

Lister v Hesley Hall Ltd [2001] UKHL 22.

Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11

Netheremere Ltd v Taverna & Gardiner [1984] ICR 612, CA.

Poland v Parr & Sons [1927] 1 KB 236.2.

Ready Mixed Concrete v Minister of Pensions [1968] 2 QB 49.

Stevenson Jordan & Harrison Ltd. v McDonald & Evans ((1952) 1 TLR 101.

Yewens v Noakes (1880) 6 QBD

Bibliography
Books

Brennan C, Tort Law Concentrate: Law Revision and Study Guide (Oxford University Press 2017)

Deakin SF, A Johnston and B Markesinis, Markesinis and Deakin's Tort Law (Oxford University Press 2012)

Giliker P, Vicarious Liability in Tort: A Comparative Perspective (Cambridge University Press 2010)

Greene B, Tort Law (Routledge 2013)

McBride, N.J. and R Bagshaw, Tort Law (Pearson Education Limited 2018)

Howard M, UK Law Dictionary and Legal Letter Writing Exercise Book: All essential UK law vocabulary with exercises to improve your legal English skills (Michael Howard 2020)

Roach L, Card and James' Business Law (Oxford University Press 2014)

Dua S.K and C Turner, Unlocking Torts. (Taylor & Francis 2019)


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