Tort Notes

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Vicarious Liability

* Employer’s liability for employee’s wrongdoing committed by employee in course employment- strict liability/ absence of wrongdoing by defendant * Employer will not be liable unless employer-employee relationship/ employee must commit a tort/ must be during course employment * Casual potency important

* Must be committed by an employee- employer/employee relationship: * Distinguished between contract of employment/contract for employment * Ready Mixed Concrete (South East) Ltd v Minister of Pensions (1968): Courts will take a multi-factorial approach as to who is an employee- e.g. express terms of contract, national insurance, liability insurance, provision of tools, control- all depends on the facts) * Control is Important:

* Jennings v Forestry Commission (2008)- control and whose business is of importance- if employee has control and is independent (e.g. contractor who supplies own equipment and could appoint an assistant), they will be deemed to have control and defendant will not be liable for vicarious liability * Institute of the Brothers of the Christian Schools (2010)- no control over school/appointment of teachers * Gravil v Carroll (2008): was tort a reasonably incidental risk to the type of business/ is it fair & reasonable to impose V/L? * Sufficient connection” between tort and employment:

* Lister v Hesley Hall Ltd (2002): A broad approach/ Time and place of wrong relevant but not conclusive/Not enough that employment provided opportunity to commit a wrongdoing * Maga v Archbishop of Birmingham (2010): Opportunity not enough (referred to Lister) * Hawley v Luminar LeisureLtd (2006): the worker’s permanent employee will usually remain liable and the burden of showing employment has transferred to a temporary employer will rest on them. (Courts reluctance to allow an employment relationship from being established reflects courts willingness to recognise realities of contemporary workplace * Jacobi v Griffiths (1999) ‘claimant must show material risk in harm occurring and employment significantly contributed to risk of harm’ (materially increasing risk by employing) * Rose v Plenty [1976]- wrongful and unauthorised mode of doing an authorised -if employer acting in unauthorised way, school may not be vicariously liable * Must of Committed a Tort:

* Based on Canadian jurisprudence: Bazley v Curry (1999): ‘those who should bear loss of wrongdoing and how best to deter it.’ * Justifications:
* Ensures provision of a remedy for harm/ deter future wrongdoing * Employer should bear risk because of role in creating it * Victim seeks financial compensation as to who is financially placed to deal with it * Loss distribution device- financial loss can be spread across community (Lister) * Encourages greater supervision- employer has responsibility to ensure employee’s act properly * Allocation of risk

* Criticism’s:
* Comyn J in Harrison v Michelin Tyre Co Ltd (1985) ‘The large body of case law … is notable for one thing, its inconsistency very often with an immediately preceding case”’ * Not predicated on any wrongdoing of employer and may be entirely blameless- undermines corrective justice * Distributive justice does not reflect rules of V/L- the employee must have committed a tort- if the idea was to really spread losses it would be irrelevant whether defendant acted carelessly/ appears arbitrary- this use of justice does not exist elsewhere * Difficult to establish control in current context- employers are expected to show initiative and discretion nowadays * Goes against basic aims of tort- corrective justice (where liability is imposed where defendants actions caused harm and he is responsible * Inconsistent approach may be due to policy reasons behind V/L: * To secure compensation for victim

* Capacity of...
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