Vicarious and special liability

UNIT ONE

1. Read the following text

Vicarious liability

Vicarious liability is liability imposed on an employer to a third party for the tort of his employee committed in the course of employment. This means that the relationship of employer and employee, as distinct from employer and independent contractor, has to exist and gives rise to vicarious liability. This is another form of strict liability in the sense that employer who is not at fault is made responsible for the employer’s default It thereby gives the injured party compensation from the person who is better able to pay and spread the cost of injury, namely the employer.

In determining the relationship of employment it is necessary to consider several factors:

The relationship of employment

1) The issue of control. Where the "employer" controls the type and manner of performance of the work of the "employee", the relationship is likely to be one of employment.

2) The issue of integration. A person whose activities are integral to the enterprise (e.g. a ship's master or company chauffeur) is more likely to be regarded as an employee than someone whose activities are ancillary to the enterprise or temporarily attached to it (e.g. the harbor pilot or hire car driver) (Stevenson, Jordan and Harrison Ltd v. Macdonald [1952]).

3) The method of payment (whether wages or salary or a lump sum), the responsibility for providing premises, materials and equipment, and any provisions for disciplinary measures and dismissal (Mersey Docks and Harbour Board v. Coggins and Griffiths (Liverpool) Ltd (1947J).

4) The claimant does not have to identify the particular employee responsible provided it is clear that the tort must have been committed by one of the defendant's employees (Grant v. Australian Knitting Mills Ltd [1936]).

5) The tort must have been committed in the course of employment—this means the employee must have committed the tort while performing work he was employed to do at the time he was employed to do it. This necessarily includes the improper performance of work employed to do (Century Insurance Co Ltd v. Northern Ireland Road Transport Board [1942]). Therefore, an express prohibition by the employer regarding the manner of performance will not, in itself, take an act in breach of that prohibition outside the course of employment (Limpus v. London General Omnibus Co [1862]). By contrast, a prohibition regarding the type of work to be performed will normally take an act in breach of that prohibition outside the course of employment (Iqbal v. London Transport Executive [1973]). Also, the fact that the employee's conduct is criminal will not necessarily take it outside the course of employment—the employer may remain liable where the criminal act was an improper performance of work employed to do (Lloyd v. Grace, Smith & Co [1912]).

The position of the independent contractor

An employer will not normally be liable for the acts of an independent contractor. However, the employer may be liable where the contractor is in breach of a non-delegable duty binding on the employer. In such circumstances, while the employer can delegate performance of the duty to a contractor, he cannot delegate the duty itself and will remain personally (not vicariously) liable should the contractor breach that duty. Non-delegable duties arise in two main situations:

1) Where the commissioned work involves exceptional risk to others. Here the employer will be liable for any negligence by the contractor in the performance of that work (Holliday v. National Telephone Co [1899]) but not any collateral negligence (Padbury v. Holliday and Greenwood Ltd [1912]).

2) Where the employer owes the victim a duty of care for their safety and protection (e.g. the duty on employers to provide for the health and safety at work of their employees—Smith v. Cammell Laird & Co Ltd [1940]; the duty on Health Authorities and hospitals for the welfare and safety of patients in their care—Cassidy v. Ministry of Health [1951]).

2. Answer the following questions

1) What form of liability does the relationship between an employer and employee suggest?

2) What does vicarious liability suggest in relation to the employer’s duties ?

3) Who exercises control over work in the relationship of employment?

4) What are other responsibilities of the employer in the relationship of employment?

5) Why is it important to identify an actual perpetrator for the purposes of vicarious liability?

6) Why is ‘the prohibition from the employer as for the manner of work’ relevant in the tort?

7) Is the employer responsible for the actions of independent contractors?

3. Find the English for

1) ответственность за действия третьих лиц, (субститутивная ответственность), 2) рабочий/служащий,, 3) работодатель, 3) в процессе работы, 4) независимый подрядчик, 5) потерпевший, 6) действия являющиеся неотъемлемой частью рабочего процесса, 7) дополнительные работы, услуги, 8) способ оплаты, 9) явно выраженное запрещение, 10) работа, выполненная недолжным образом, 11) не делегируемые полномочия, 12) безопасность на производстве

4. Supply articles where necessary and answer the question: “What is joint liability?”

When … tort is committed by two or more persons acting together, for example if A and B assault or defraud C, Position is governed by … Civil Liability (Contribu­tion) Act 1978. Liability is 'joint and several', in that the claimant may sue either tortfeasors, or each separately, or only one of them. If A is sued and cannot pay, another action can be brought against B, provided that … total damages recovered do not exceed the amount awarded in … first action.

If A has to pay … whole of the damages, he can claim … contribution from B. The court will, if called upon to do so, apportion liability as between A and B, either in … course of C's action, or in … separate action by A against B. In some circumstances, B might be ordered to indemnify A completely. None of this, however, affects C's right to claim … whole amount from either of the defendants.

5. Supply the words from the table to make the sentences complete and answer the question: “What criterion helps to determine the relationship of employment?”

1) to the manner in which he was to do his work, 2) independent contractor, 3) prescribing the work to be done, 4) employees, 5) wrongdoer

The traditional criterion for distinguishing 1) … from independent contractors is the degree and right of control Bramwell LJ regarded a servant as anyone who was subject to the command of the employer as 2) …. . On the other hand, if the employer only determined 'what' was to be done rather than 'how' it was to be done, then the person working for him would be an 3)... In Honeywill and Stein Ltd. v. Larkin Brothers Ltd. Slesser LJ expressed this idea as follows: The determination whether the actual 4) … is a servant or agent on the one hand or an independent contractor on the other depends on whether or not the employer not only determines what is to be done, but retains the control of the actual performance, in which case the doer is a servant or agent; but if the employer while 5) …, leaves the manner of doing it to the control of the doer, the latter is an independent contractor.

6. Supply sentences with English words to make them complete and answer the question:” Are hospitals vicariously liable for their staff?”

The courts experienced their earliest difficulties with the control test to establish the nature of the work relationship. This implied that hospitals could not be liable for the (деликты) of medical experts, who could hardly be dictated to by hospital authorities as to how they should (выполнять свои обязанности) A change in attitude appeared in the early 1940s. In Gold v. Essex County Council the Court of Appeal held that a radiographer was a servant of the hospital that employed him and thus rendered it ( ответственными за действия третьих лиц) for his negligence in the course of his duty, even though the hospital authorities were not competent to dictate to him how he should exercise his skill. In Cassidy v. Ministry of Health a hospital's liability for the (небрежность медицинского персонала) of its permanent medical staff was unequivocally established. In that case it was unclear whether the negligence that resulted in the plaintiff's injury was that of the whole-time assistant medical officer, the house surgeon, or one of the nurses. The Court of Appeal was not deterred by this in (выносить решение о том что) the hospital liable to the plaintiff. All three judges felt that it was unnecessary to pinpoint whose negligence had caused the harm; the hospital was vicariously liable for the professional negligence of its staff.

CASES

1. Advise your client on his/her vicarious liability basing your advice on the premise that

“Anyone who wants to hold the employer liable must prove that a) the offender was his employer; b) that he committed a tort, and c) that he committed the tort in the course of his employment.

1) In Lloyd v. Grace, Smith & Co. (1912), solicitors were held liable when their managing clerk, while dealing with some property in the course of his duties, fraudulently induced a client to make over the property to him. The solicitors had put the clerk in a position where he appeared to the client to be acting on behalf of the firm.

2) In Armagas Ltd v. Mundogas SA (1986), an agent claimed to be acting on behalf of the defendant, but nothing which the defendant did gave that impression.

3) In League Against Cruel Sports v. Scott (1985), even a master of hounds was held vicariously liable for the acts and omissions of hunt servants and mounted followers, over whose conduct he could exercise control.

4) In Warren v. Henlys Ltd (1948), a petrol pump attendant mistakenly thought that a driver was trying to avoid paying for petrol. An argument developed and the attendant lost his temper and struck the claimant.

5) In Lister v. Hesley Hall Ltd (2001), a private residential school had undertaken to care for disturbed boys. G was employed as a teacher/carer, but he sexually abused some of the boys. These torts were committed in the time and at the premises of the school while G was busy caring for the children in performance of his duties.

6) In Century Insurance Co. Ltd v. Northern Ireland Road Transport Board (1942), the respondents were held liable for the act of a driver who, while delivering petrol to a garage, lit a cigarette, threw away the lighted match and caused an explosion. (

7) In Harrison v. Michelin Tyre Co. Ltd (1985), H fell and was injured when S, a fellow employee, indulged in some horseplay by pushing his truck against the duck-board on which H was standing.

8) In Ricketts v. Thos. Tilling Ltd (1915), a bus driver negligently allowed the conductor to drive and the claimant, a passenger, was injured. The employer was vicariously liable for the driver's negligent irresponsibility.

9) In Twine v. Bean's Express Ltd (1946), a van driver gave a lift and the passenger was killed through negligent driving. The driver had been forbidden to give lifts, and there was a notice to this effect on the dashboard. Moreover, the passenger was not helping the driver to do his job, unlike the boy in Rose v. Plenty.

10) In Mersey Docks and Harbour Board v. Coggins and Griffith Ltd (1947), the harbour authority hired a crane and driver to a firm of stevedores. The contract of hire provided that the authority should pay and have power to dismiss the driver, but that he should be regarded as the servant of the stevedores. The stevedores had power to direct the work, but had no power over the way the driver operated the crane.

REVISION AND PRACTICE SECTION

1. You should now write your revision notes for vicarious liability. Here is an example for you and some suggested headings

a) Relationship of Employment b) Course of Employment c) Independent Contractors

UNIT TWO

1. After examining the chart read the following text

Occupiers' Liability

One area where the law has identified a particular duty owed to others is that of the duty owed by occupiers to those who visit their premises. This is regulated by the Occupiers' Liability Acts 1957 and 1984.

The Occupiers' Liability Act 1957

This concerns the duty owed by occupiers to lawful visitors. Under the common duty of care section 2, occupiers owe a common duty of care to all lawful visitors to their premises. This is a duty to take reasonable care to ensure the visitor is reasonably safe when using the premises for all the purposes for which he is invited or permitted to be there. This applies to the visitor's physical safety in all circumstances but only to his property in respect of damage caused by structural defects (section 1). What amounts to reasonable care is governed by the same principles as the general' tort of negligence. I however, the Act does make specific provision for two particular categories of visitor.

1) Children—a higher degree of care should be shown to child visitors. In particular, occupiers must take special care in respect of any allurements on the premises (Glasgow Corporation v. Taylor [1922]) An allurement is something tempting or attractive to children but that is also potentially dangerous (e.g. bonfires, berries, building materials, railway trucks). 2) Professionals—a lower degree of care may be shown to visiting professionals or specialists regarding risks or hazards incidental to their calling or profession (Roles v. Nathan [1963]).

Lawful Visitors

1) Invitees—someone permitted to enter the premises by the occupier and whose presence is in the interests of the occupier (e.g. customers in a shop or pub, guests at a party), 2) Licensees—someone permitted to enter the premises; by the occupier but whose presence is of no interest to the occupier (e.g. children recovering a lost ball), 3) Contractual visitors—someone permitted to enter the premises under a contract with the occupier (e.g. a window cleaner or milkman), 4) Statutory visitors—someone with statutory authority to enter the premises (e.g. a police officer or postman). The common duty of care is not owed to common law visitors, other than invitees and licensees (Greenhalgh v. British Railways Board [1969]). A common law visitor is someone entitled to enter the premises by reason of some private or public right, such as the Occupiers' Liability Acts 1957 and 1984.

However, occupiers are under a common law duty not to do anything positive that 'might make their entry dangerous. They may also be protected under the 1984 Act. Also, the common duty is not owed to trespassers, though they are owed a common law duty of humanity (British Railways Board v. Herrington [1972]) and may also be protected under the 1984 Act.

The occupier

This is anyone in control of the premises (Wheat v. E Lacon & Co Ltd [1966]). There is no requirement the occupier has any legal or equitable interest in the premises, nor need they be in exclusive possession, e.g. both a building owner and a building contractor may be occupiers for the purposes of the Act. The occupier can modify, restrict or exclude his liability under the Act by agreement or otherwise. However, the possibility of excluding or restricting business liability for negligence (which includes breach of the common duty under the Act) is severely constrained by the Unfair Contract Terms Act 1977. Premise This includes not only land and buildings, but also any vehicle, vessel and aircraft. Thus, the provisions of the Occupiers' Liability Acts 1957 and 1984 can be applied to ships, cranes, scaffolding, ladders, piers and sea platforms. Defences

There arе three main defenses available:

1) the Occupiers' Liability Acts 1957 and 1984.

2) Warnings—where the occupier has given a clear warning of danger that, if observed, would make the visitor safe, the occupier is not liable for damage caused by the visitor's failure to observe the warning. Whether the warning is effective depends in part on the nature of the warning itself and in part upon the likely nature of potential visitors. A warning that may be effective against an adult visitor may not be effective against a child,

3) the Occupiers' Liability Acts 1957 and 1984.

—this may arise where the visitor was fully aware of the danger or risk on the premises, knew of the risk to himself this created and remained on the premises in the face of that knowledge.

The Occupiers' Liability Act 1984

This concerns the duty owed by occupiers to visitors other than lawful visitors (as defined for the purposes of the 1957 Act): The limited duty. Unlike the general duty owed [to lawful visitors under the 1957 Act, the 1984 Act imposes only a limited duty. This is a duty to take reasonable care to ensure the visitor is not injured as a result of specific dangers on the premises. A danger is a specific danger where:

1) the occupier is aware of the danger or has reasonable grounds to believe it exists;

2) the occupier knows or has reasonable grounds to believe that the other person is in the vicinity of the danger or is likely to come into the vicinity;

3) the danger is one against which, in all the circumstances; the occupier may reasonably be expected to offer the other person protection. Here, the purpose for the other person being on the premises clearly affects whether he ought to reasonably be offered protection, e.g. a burglar would receive less consideration than a child who had strayed onto the premises. The limited duty only protects the visitor's physical safety. It offers no protection to his property. The occupier, premises and defenses The same principles and definitions apply as for the 1957 Act.