Tort Law Compiled

8/2/2019 Tort Law Compiled

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Duty of Care and Breach of Duty

Negligence

Successfu l negl igence c la im, c la imant needs to es tabl ish :

i . The Defendant owed h im/her a duty of care

i i . The Defendant breached tha t duty of care

i i i . The breach of duty caused damage to the Cla imant

Explain the concept of a duty of care:

- Access to compensat ion res tr ic ted through duty of care ie . i f the law says you

don t owe a duty of care to the person you have damaged you wil l not be l iab le in

negl igence i r respect ive of how much damage you have caused .

- In most cases usual ly c lear tha t a duty of care was owed and case centres on

whether d breached tha t duty .

- Where the quest ion of whether duty of care ex is ts cour ts have to consider not only

the case before them but the implica t ions for the number o f tor t cases be ing

brought in th e fu ture .

Development of law on duties of care

3 main s tages :

Origina l ne ighbour pr inc ip le Donoghue v Stevenson (1932)

2 s tage tes t in Anns v Merton London Borough(1978) grea t ly widened

potent ia l l i ab i l i ty

Murphy v Brentwood Distr ict Council(1990) re trea t f rom Anns

Outcome of D v S

Case es tabl ished 2 ru les :

Narrow rule : manufacturer owes duty of care to u l t imate consumer of products .

Wider ru le : when determining the exis tence of a duty of care : you must take

reasonable care to avoid acts and omissions which you can reasonably foresee

would be l ikely to in jure your neighbour .

A neighbour be ing a person . . .so c losely and direct ly affected by my act that I

ought to have them in contemplat ion as being so affected when I am direct ing

my mind to the act or omissions. . . in quest ion

Donoghue v Stevenson : appl ies to es tabl ished duty s i tua t ions , eg dr iver to

pedestr ian , employer to employee , d r to pa t ien t e tc


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2 s tage tes t : Ann v Merton London Borough (1978)

Pre Anns: cour ts would only accept new duty s i tua t ions where there were pol icy

reasons for c rea t ing them ie i f soc ie ty wd benef i t

Post Anns: cour ts wd declare a new duty of care owed provid ing :

The par t ies sa t is f ied the ne ighbour tes t , ie the C was someone to whom

the D cd be reasonably expected to foresee r isk of harm

There were no pol icy reasons for excluding the new duty s i tua t ions

Impact of anns

Huge expansion of new duty s i tua t ions

Peaked with HL s decis ion in Junior Books v Veitchi (1983) where recovery was

al lowed for pure economic loss .

Floodgates opened, d if f icu l t to insure against new types of l iab i l i t y , encroach oncontrac t l iab i l i ty . .

Judic ia l re trea t Murphy v Brentwood Distr ict Council (1990)

HL invoked 1966 prac t ice s ta tement

HL held tha t c rea t ion of new dut ies of care was in tended to involve more gradual

process bui ld ing by analogy with previous cases involv ing s imilar s i tua t ions .

Duty of care today

Case law over yrs es tabl ished number of duty s i tua t ions eg dr ivers to a l l r d users .

New duty s i tua t ions de termined in accordance with HL tes t es tabl ished in Caparo

Industr ies p lc v Dickman (1990)

Under Caparo tes t a duty of care wil l be imposed i f :

The damage caused was reasonably foreseeable

There was a re la t ionship of proximity be tween C and D

I t is jus t and reasonable to impose a duty

Establ ish ing a duty of care

CAPARO V DICKMAN (1990) DONOGHUE V STEVENSON (1932)

Reasonable Fores ight of Harm . . .avoid ac ts or omiss ions which you

could reasonably foresee would l ike ly

to in jure your ne ighbour


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Suff ic ien t Proximity of Rela t ionship Persons who are so c lose ly and d irec t ly

affec ted by my ac t tha t I ought

reasonably to have them in my

contempla t ion as be ing so affec ted . .

Fa ir jus t and reasonable to impose a

duty

Applica t ion of Caparo v Dickman tes t- reasonable forseeabi l i ty of harm

Courts must de termine whether reasonable person in defendant s posi t ion would

have foreseen r isk of damage.

Langley v Dray (1998) I t was reasonably foreseeable tha t the C

pol iceman be in jured as a resu l t of chasing the D who was dr iv ing too fas t

t ry ing to escape capture !

Duty is owed to a person/ca tegory of people not the human race in genera l

- must be reasonably foreseeable tha t damage wd be caused to the par t ic D

or to a c lass of people to whom he/she belongs

Palsgraf v Long Is land Railroad (1928)

Haley v LEB (1965)

Applica t ion of Caparo proximity

Proximity : may be seen as another way of express ing forseeabi l i ty tes t but can

also be de termined in l ight of the level of contro l the D has over th e ac t /omiss ion

tha t caused harm to the C. Eg Watson v Brit ish Boxing Board of Control (2000)

Compare case with Sutradhar v Natural Environment Research Council (2004)

Applica t ion of Caparo - Fa ir , jus t and reasonable

- Fair jus t and reasonable has no equivalent in D v S but is a way of enabl ing the

courts to dea l with pol icy considera t ions such as Floodgates ; Resources; Deterrent

effec t ; Public benef i t ; Uphold ing the law.

The requirement tha t i t must be jus t and reasonable to i mpose a duty of ten

over laps with forseeabi l i ty /proximity

Where jus t ice & reasonableness are specif ica l ly referred to is usual ly because a

case meets the requirements of forseeabi l i ty / proximity but the cour ts b e l ieve

there is a pol icy reason for denying the c la im. Eg McFarlane v Tayside Health

Board (1999)C s c la im for costs of br inging up chi ld af ter fa i led vasectomy was

denied on basis tha t not jus t and reasonable to compensate for a hea l thy chi ld .

Also see Commissioners of Customs and Excise v Barclays B ank plc (2006) .


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Duty of care problem areas

Courts have developed more deta i led

res tr ic t ive ru les which apply in cer ta in cases , ie :

Where damage caused is psychia tr ic ra ther than physica l

Where damage caused is pure ly economic

Where damage is caused by an omiss ion to ac t

Where damage caused by a 3 r d par ty

Where d fa l ls with in a specia l group

Pure economic loss

Pure economic loss : f inancia l damage not resu l t ing f rom personal in jury or

damage to proper ty eg when a product i s defec t ive but does not ac tua l ly causein jury /damage to anyth ing e lse .

Tradi t ional ly cour ts re luc tant to f ind a duty of care owed not to cause pure

economic loss .

Under Hedley Byrne V Heller (1963) : a defendant could be l iab le for pure

economic loss caused to a c la imant fo l lowing a negl igent miss ta tement provided

there was a specia l re la t ionship between D and C (such tha t the D made a

s ta tement knowing tha t the C would re ly on i t for a par t icu lar purpose) . The ru les

se t out in th is case now a lso appl ies to the negl igent provis ion of serv ic es .

In Junior Brooks v Veitchi the cour ts , fo l lowing Anns , a l lowed a c la im for pure

economic loss to succeed but s ince then courts have reaff i rmed tha t a c la im for

pure economic loss wil l no t succeed i f i t is caused by a defec t ive product nor i f

caused by a negl igent ac t o ther than by the provis ion of serv ices .

Psychiatr ic Injury

Psychia tr ic in jury /nervous shock only ever recoverable i f C has a recognisable

psychia tr ic condit ion with medi ca l ev idence support ing i ts d iagnosis .

Claimants must prove they are owed a duty of care with regard to psychia tr ic

in jury .

2 ca tegories of c la imants tha t can recover for psychia tr ic in jury (White and

others v Chief Constable of South Yorkshire(1998 ) :

Primary v ic t ims

those who are physica l ly in jured as a resu l t of the defendants

negl igence can a lso recover damages for psychia tr ic in jur ies .

Those who are put a t r isk of physica l in jury but only suffer

psychia tr ic in jury may be able to recover for the ps ychia tr ic in jury

provid ing i t was reasonably foreseeable tha t a D s behaviour

would expose the C to r isk of physica l in jury .


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- Secondary v ic t ims

Those who are not physica l ly in jured or in danger of be ing physica l ly

in jured wil l only have a successfu l c la i m for psychia tr ic damage i f

they can prove (Alcock v Chief Constable of Yorkshire (1992) :

- Psychia tr ic in jury to secondary v ic t ims was a reasonably

foreseeable consequence of the D s negl igence

- The C must have a recognised psychia tr ic in jury brought on by a

sudden and unexpected shock caused by a horr i fy ing event . Ie

sudden shock must be responsib le for the psychia tr ic in jury

- the C must be long to a c lass of people tha t the law a l lo ws to c la im

compensat ion for psychia tr ic in jur ies ie . Rela t ives and f r iends ,

rescuers , employees and unwit t ing agents .

- The C must have suff ic ien t proximity in t ime and space to the

accident , ie must have been a t the scene or the immedia teaf termath (p ic tures on TV insuff ic ien t) .

Omissions

In genera l tor t law holds people l iab le for ac ts but not omiss ions to ac t .

In some c ircumstances there may be a posi t ive duty to ac t ie where one par ty

assumes responsib i l i ty for the o ther (as a resu l t of a contrac t or by v ir tue of the

defendants job eg a pol iceman has a duty of care to he lp fe l lo w off icers and

sometimes pr isoners /suspects)

Where a defendant ac tua l ly crea tes a dangerous s i tua t ion he has a posi t ive duty to

deal with tha t danger .

Answering Problem Questions

Ident ify Par t ies and Area of Law

Ident ify Elements of Cla im and expla in legal pr inc i p les

Rela te fac ts of case to legal pr inc ip les

Conclude

RUPERT v JANE

Rupert and Rodney are par tners in a fash ion design business based in London. They

travel by car to a town f i f ty m iles away to v is i t a customer . Ruper t was dr i v ing

and ta lk ing to Rodney about the meet ing with the customer . Suddenly , Ruper t

los t contro l of the car for no apparent reason and knocked over a ch i ld Jane who

was cross ing the road near her school . Jane suffered severe physica l in jury and

psychiatric harm.


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Discuss Ruperts possible l iabil i ty

To es tabl ish tha t Ruper t is l iab le in negl i gence , Jane (or her parent / l i t iga tor f r iend) must

prove :

a ) That Ruper t owed her a duty of care

b) That Ruper t breached the duty of care he owed to her

c) That the breach caused as a matter of fac t the in jur y tha t Jane suffered and i t was

a reasonably forseeable consequence of the breach .

Duty of Care?

Duty of Care owed by Rupert to Jane ? : Ruper t owes a duty of care

under the ne ighbour pr inc ip le se t out in Donoghue v Stevenson because:

a . I t was reasonably foreseeable tha t dr iv ing a car (and los ing contro l of i t )

could cause in jury to a pedestr ian

b . The re la t ionship be tween a motor is t and pedestr ian is suff ic ien t ly c lose

Motor is ts owe an es tabl ished duty of care to a l l fe l low road u sers .

Has Rupert Breached his duty of care?

A) Standard required: reasonable motor is t in the c ircumstances who would have to be

considera te of a l l pedestr ians

B) Has R fa l len below th is s tandard? Relevant fac tors : -

l ike l ihood of in jury occurr ing? grea t r isk of in jury to a pedestr ian i f a motor is t

loses contro l of h is car (contrast Bolton v Stone(1951) with Mil ler v J ackson

(1977))

Seriousness of in jury the in jury susta ined is l ike ly to be

ser ious i f a pedestr ian is h i t by a car .

Other re levant fac tors :

Driving near a school so a reasonable person would have been aware of

the l ike l ihood of ch i ldren in the area and been extra v ig i lan t (Haley v LEB

1965) . Should not have been dr iv ing and ta lk ing about business a t the

same t ime arguably par t ic i f t ravel l ing through an unfamil ia r town.

Has the breach caused the injury?

Rupert has seemingly breached h is duty of care to o ther road users , inc luding pedestr ians

by not dr iv ing with due care and a t ten t ion and los ing contro l of h is car .

Causat ion Kevins breach must have caused Jane s severe physica l in jury and

psychia tr ic damage as a matter o f fac t and law.

Causat ion in fac t Barnet tes t = but for Ruper t los ing contro l of the car Jane

would not have been h i t and suffered severe physica l and psychia tr ic in jury!


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Causat ion In law- is a pedestr ian suffer ing severe physica l in jury a reasonably

forseeable consequence ( Wagon Mound tes t) of be ing h i t by a car ? Yes !

Can Jane recover for psychiatr ic Injury?

Jane was physica l ly in jured by ruper t s breach of duty so she is ab le to recover

for psychia tr ic in jury as a pr imary v ic t im provid ing she has a recognisable

medica l psychia tr ic condit ion (eg p tsd) .

I t does not matter tha t a s t ronger person might not have suffered psychia tr ic

in jury , Ruper t wil l be l iab le for a l l in jur ies tha t were caused by h is breach of duty

of care to Jane .


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Consequential Damage and Defences

Negligence recap

To successfu l ly prove negl igence c la im, need:

1 . A Duty of Care

2 . Breach of duty

3 . Breach of duty causing c la imants in jury . C must have ac tua l ly been harmed by breach

of duty! ( consider cour ts d if f icu l ty over Mcfarlane v Tayside (1998) ,Parkinson v St

james and Seacroft University Hospital (2001) and Rees v Darlington Memorial

Hospital Trust NHS(2002 ) )

4 . Must consider whether the Defendant has any defences avai lable .

Causation

To es tabl ish tha t the defendant s breach of duty caused the c la imants in jury , the

c la imant needs to show:

1 . Factual causa t ion: But for tes t

2 . Legal causa t ion: tes t of remoteness

Factual Causation

Factual Causation: But for test : judge must ask : But for breach of defendant s

duty would harm to the c la i mant have occurred?

Key case : Barnett v Chelsea & Kensington Hospital M anagement Committee

[1969] .

More complica ted in Chester v Ashfar (2004) re la t ing to a surgeons breach of

duty to warn a pa t ien t of the r isks of surgery , even though could not be sa id for

cer ta in tha t the pa t ien t would not have had the surgery i f he had known of the

r isks- the cour t found causa t ion to be sa t is f ied in th i s case . In White v Paul

Davidson (2004) the HL c lar i f ied tha t Chester shd be v iewed as an except ional

case and tha t the genera l ru le remained tha t a D can only be l iab le i f the wrongful

conduct caused the harm.

Multiple causes of damage?

Where there is more than one cause of the C s in jur ies i t is inappropria te to apply

the but fo r tes t ( i f th is tes t was adhered to a C would be depr ived of a remedy

when he logica l ly is en t i t led) The courts have used var ious approaches when

deal ing with these cases :

Approach 1 : the breach must have mater ia l ly increased the r isk of damage: see

McGhee v National Coal Board (1972) where the cour ts concluded tha t where


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there is more than one poss ib le cause of the harm i t is eno ugh to show tha t the

Ds negl igence mater ia l ly increased the r isk of the in jury occurr ing .

Approach 2 : on the ba lance of probabi l i t ies the breach must be a mater ia l cause of

the in jury : see Wilsher v Essex Health Authority (1988) HL held tha t breach

must be a mater ia l cause of the ir in jury , not enough to mere ly increase r isk of

damage/add another poss ib le cause .

Approach 3 : loss of a chance cases . Rela tes to medica l negl igence cases most

often . C must prove causa t ion on the ba lance of probabi l i t ies , ie a t leas t 51%

chance tha t the negl igence caused the damage. S ee Hotson v East Berkshire

Health Authority (1987 ) .

Multiple tortfeasors

Multip le tor t feasors : where there is more than one par ty tha t cd have been

responsib le for the in jury the D wil l be l iab le i f he mater ia l ly contr ibuted to thedamage and only for the proport ion of in jury he had caused (see Holtby v

Brigham & Cowan (2000)

Fairchild v Glenhaven Funeral services (2002)

S3 o f Compensat ion Act 2006 : where a person develops mesothel ioma as a r esul t

o f negl igent exposure to asbestos is they can recover in fu l l from a person that

negl igent ly exposed them even i f i t cannot be proved that i t was that ep isode , and

not another , that caused the mesothel iomawhere there are s everal people who

have negl igent ly exposed the v ic t im, the one who is sued can c la im a contr ibut ion

from the o thers (but ther e is no need for th e v ic t im to sue more than one o f them).

Intervening events novus actus interveniens

Genera l ru le : where in tervening ac t occurs tha t wors tens or ig ina l in jury , D only

l iable for damage occur ing up to in tervening ac t . BUT Where or ig ina l tor t remains

a cause of the damage, D remains l iab le .

Court a t t imes inconsis ten t in the ir approach to in ter vening ac ts , e .g . Baker v

Willoughby(1970) and Jobling v Associated Dair ies (1982) .

Baker-D liable for Cs leg in jury and la ter C los t h is leg af ter be ing shot by

robber . D argued tha t l iab i l i ty only extend ed to poin t a t which armed robbery

occurred . HL held tha t D s t i l l l iab le for loss of earn ings because of in jury to leg

and tha t subsequent shooting/amputa t ion d id not put an end to Ds l iab i l i ty .

Jobling D caused Cs back in jury and C los t 50% earn ing capac i ty as a resu l t . C

la ter developed (unre la ted) sp ina l d isease and was no longer able to work . HL

held tha t D was l iab le for loss of earn ings up unt i l s p ina l d isease developed and

th is then put an end to Ds l iab i l i ty .


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Supervening tort v natural event?

How can Baker and Jobling be reconciled? Law may recognize the d if ference

betw a supervening tort (Baker) which does not put an end to the negl igence of

the f i rs t to r t feasor and a supervening na tura l event ( Jobling) which does .

Consider : I f D in Baker was only he ld l i ab le up to the shooting who would have

compensated for h is subsequent losses?

Cf: Widely accepted tha t cour ts wil l consider a c la imants subsequent unre la ted

heal th de ter iora t ion when ca lcula t ing damages and reduce an award accordingly

( th is is d if ferent f rom the egg-shel l sk i l l pr inc ip le) .

I ts up to the cour t to decide whether a novus ac tus in tervniens breaks the chain

of causa t ion between the D s breach of duty and the C s loss . See Lamb v

Camden London Borough Council [1981] 2 All ER 408 ,

Remoteness

Test of remoteness : The loss suffered must not be too remote a consequence of

the breach .

Key Case: Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd

(the Wagon Mound) [1961]:

Exceptions to remoteness foresight rule

1. Type of damage: provid ing type of damage is forseeable , the whole method by

which the damage is suffered need not be forseeable . See Doughty v turner

manufacturing co (1964) and Hughes v Lord Advocate (1963)

2.Extent of damage: Eggshel l -skul l pr inc ip le : provid ing type of damage is

reasonably forseeable , doesn t matter tha t damage is more ser ious than could be

reasonably foreseen .

with PI cases :Provid ing the t ype of in jury is foreseeable but the sever i ty

of the in jury is not due to C s pre-exis t ing condit ion , D remains l iab le for

a l l losses see Smith v Leech Brain & Co Ltd [1962]. A D must take h is

C as he f inds h im

Economic loss cases : i f a C was hard up and as a resu l t incurred extra

costs as a resu l t of D s negl igence , D l iab le for a l l costs as must take h is

v ic t im as he f inds h im.

Defences

Once a l l the e lements of a tor t have been es tabl ished , the only way a D can escape

l iabi l i ty is to re ly upon a defence .

Defences may be genera l (apply to a l l to r ts ) or specif ic i .e . on ly appl icable to

specif ic tor ts (e .g . se lf defence to t respass to th e person) .


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3 main genera l defences:

1. consent

2. i l lega l i ty

3. contr ibutory negl igence (par t ia l defence)

Consent

Consent : Volent i Non Fi t In jur ia ( l i te ra l ly t ransla tes : there can be no in jury to

one who consents) . D must prove:

C had knowledge of the r isk

C wil l ingly consented to accept tha t r isk (C must have had a

choice whether to accept the r isk .)

Obviously not poss ib le to read C s mind so quest ion rea l ly iswhether Cs conduct was such tha t D was ent i t led to assume

consent .

Impact of defence: D not l iab le Key case : Morr is v Murray [1991]

s149 RTA: any a t tempt to exclude l iab i l i ty to passengers wil l be ineffec t i ve .

spor ts : where an in jury is rece ived by a p layer or specta tor dur ing a lawful game

played according to the ru les , the defence of volent i can apply because p layers

and specta tors have voluntar i ly assumed the r isk of in jury . See Simms v Leigh

Rugby Football Club (1969) and Woolridge v Sumner (1963) . Where there has

been a breach of the spor t ing ru les , the d efence of volent i Is unl i ke ly to apply

(Mountford v Newlands School (2007) ,

Rescuers- deemed to be ac t ing ins t inc t ive ly due to mora l conscience and therefore

not exerc is ing genuine f reedom of choice .

I l legality

I l lega l i ty (ex turp i causa non or i tur ac t io) : i f the C was knowingly engaged in an

unlawful ac t iv i ty a t the t ime he was in jured , i t would be contrary to publ ic pol icy

to a l low his c la im to succeed .eg In Cummings v Granger [1977] a burglar b i t ten

by a guard dog had no c la im du e to i l lega l i ty . However see Revil l v

Newbury[1996] where cour t he ld tha t the C (a burglar) was s t i l l en t i t led to

compensat ion af ter he was shot by the D because the D s ac t ions were

disproport ionate (and i l lega l too!)

Contributory Negligence

A par t ia l defence tha t reduces the level of damages payable to the C when the C

has in some way caused/contr ibuted to the acc ident i tse lf or h is own in jur ies .

Law Reform (Contr ibutory Negligence) Act 1945 s1(1) . A defence of contr ibutor y

negl igence wil l succeed i f i t can be es tabl ished tha t the C fa i led to recognise tha t


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he was jeopardis ing h is own s afe ty when a reasonably prudent person would have

foreseen th is . See Badger v MOD (2005)

chi ldren: only expected to show a level of care apt for the ir age . See Yachuk v

Oliver Blais Co Ltd (1949) but compare with Evans v Souls Garage (2000)

Rescuers : only contr ibutory negl igent i f showed wholly unreasonable d isregard

for the ir own safe ty

emergency s i tua t ions: C s ac t ions must be reasonable g iven dangerous s i tua t ion in

which he was p laced . See Jones v Boyce (1816) . Courts wil l a l low for errors of

judgment in emergency s i tua t ions .

Where contr ib neg proved, C s damages reduced to the extent tha t the cour t th inks

jus t and reasonable having regard to the C s share in the responsib i l i ty for the

damage (Law Reform (contr ib neg) Act 1945 s1(1) .

Following Froom v Butcher[1976] where a C is in jured in a car acc ident wherehe/she was not wear ing a seatbel t the damages payable by the D wil l be reduced:

By 25% if the in jur ies would have been avoided i f sea tbel t had been worn

By 15% if in jur ies would have been less severe i f sea tbel t worn

No reduct ion i f in jur ies would have been the same even i f sea tbel t worn .

Problem Quest ion

1. Max is dr iv ing h is business par tner Kate to the a irpor t on a dark evening so tha t

she can ca tch an overnight p lane to Canada for an important meet ing . They have

been held up in t ra ff ic and Kate is convinced tha t she wil l be la te for her f l ight .

After they have waited a t a red l i ght for some t ime, Kate shou ts : You s tupid fool .

The l ights have jammed. Theres not a th ing in s ight . Get a move on . Max can

see no t ra ff ic approaching and moves across the junct ion . He s tr ikes a b icycle

r idden a t speed by Edward , who is wear ing dark c lo th ing and has no l ights on h is

b icycle . Kate , who was not wear ing a sea t be l t , is in jured and Edward who has

unusual ly br i t t le bones d ies of h is in jur ies .

Discuss Maxs l iabil i ty , i f any, in tort .

Remember:

Princip le

Expla in

Rela te

Conclude


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Max v Kate

To successfu l ly prove Max was negl igent Kate needs to es tabl ish :

i ) Max owed her a duty of care

i i ) Max breached h is duty of care

i i i ) Max s breach of duty caused Kate s in jur ies .

Duty of Care?

All dr ivers owe an es tabl ished duty of care to o ther road users ( Donoghue v

Stevenson) .

I t was reasonably foreseeable tha t dr iv ing across a junct ion a t a red l i ght could

cause in jury to another road user and/or passenger .

Kate was a person so c lose ly and d irec t ly a ffec ted by Max s dr iv ing tha t she

should reasonably have been in Maxs contempla t ion when d irec t ing [h is] mind

to [h is dr iv ing] .

What s tandard of care would the cour t expect of Max?

The s tandard of a reasonably competent qual i f ied motor is t ! No a l lowance

for inexper ience (Nett lesh ip v Weston [1971]) .

Did Max meet s tandard of re asonably competent dr iver?

Max is c lear ly inf luenced by Kate s pressure to move but is responsib le

for doing so a t a junct ion when the l ights a re red . A reasonably competent

dr iver would not have reac ted in the same way.

Breach of Duty? Damage

Factual Causat ion But for Maxs r isky dr iv ing , Kate would not have been

in jured . (Barnet t v Chelsea Hospi ta l Management Committee [1968])

Remoteness - The personal in jur ies a re a reasonably foreseeable consequence of

Max s care less dr iv ing .

Does Max have any defence to Kate s c la im?

Can M argue K was volent i to the r isk by encouraging M to dr ive over a red

l ight?

No, s 149 RTA 1988 prevents motor is ts re ly ing on any form of volent i

defence with regard to passengers .

Does the defence of contr ibutory negl igence apply?

Under Law Reform (contr ibutory negl igence) Act 19 45 where a c la imant

has not taken reasonable care for h i s /her own safe ty and has contr ibuted

to causing the acc ident or the in jur ies sus ta ined , damages can be reduced

to take in to account h is /her own negl igence .

Standard of care required of c la imant : reasonable person engaged in the

re levant ac t iv i ty


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Has Kate contributed to the accident/her injuries?

Has ka te fa l len below the s tandard to be expected of a reasonabl e passenger

t ravel l ing in a car on a dark evening?

By aggress ive ly urg ing max to move through a red l ight she has c lear ly

fa l len below the s tandard to be expected of a reasonable passenger in

those c ircumstancescourts wil l examine na ture of re la t ionship between

max and ka te to de termine how much accountabi l i ty she shd bear for the

incident .

In addi t ion , Kate s damages wil l def in i te ly be reduced because she was

not wear ing a sea tbel t . Fol lowing Froom v Butcher (1976) i f the in jur ies

would not have been susta ined i f she was wear ing a sea tbel t , the damages

wil l be reduced by 25%. I f the in jur ies would have been less i f she waswearing a sea tbel t , the damages wil l be reduced by 15%.

Max v Edward

Duty of care

Does Max owe a Duty of Care to Edward?

Establ ised duty owed by a l l motor is ts to o ther rd users (Donoghue v Stevenson) ,

Breach of Duty

As aforementioned max has c lear ly fa l len below the s tandard to be expected of a

reasonably competent motor is t .

Causat ion

Factual : But for max s breach of duty , he would not have h i t Edward and k i l led

him.

Legal : personal in jury is a forseeable consequence of max s breach of duty . The

fac t tha t the in jur ies were more severe than might have forseeably occurred is

i r re levant . Max must take h is v ic t im as he f inds h im (eggshel l skul l pr inc ip le

Smith v Leech Brain(1962 ) .

Any defences?

Edward is not wear ing appropria te c lo th ing and has no l ights on h is b icycle making i t

ex tremely d if f icu l t for h im to be seen by o ther motor is ts .

Has s imilar i t ies to the Cla imant in Baker v Willoughby (1969) wh o

was in jured by a motor is t but had h is damages reduced as he had

crossed the road care less ly .

Edward s fa i lure to have l ights on h is b icycle is a breach of the Road Vehic le

Light ing Regs 1989 (as amended most recent ly in 2009) . Clear l y he has not taken

reasonable care for h is own safe ty in the c ircumstances (dark n ight) and h is


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care lessness has contr ibuted to h is own accident /dea th . The damages awarded to h is

es ta te wil l be reduced accordingly , poss ib ly by up to 50% .


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Occupiers Liability

Duties imposed on occupiers?

Aim of law?

to ba lance r ights of an occupier to dea l with premises as he wants and the

need to pro tec t en trants on to premises f rom in jury /damage to the ir

property.

Occupiers have an obl iga t ion to ensure the ir v is i tors / non v is i tors a re reasonably

safe when using the ir land . Obliga t ions governed by s ta tu te :

Occupiers Liabi l i ty Act 1957- dut ies owed to v is i tor s

Occupiers Liabi l i ty Act 1984- dut ies owed to non-vis i tors!

Who are occupiers?

Who is an occupier?

No s ta tu tory def in i t ion .

Case law: an occupier is a person e i ther in occupat ion or who has a degree

of contro l over the premises .

See Wheat v Lacon (1966)

also Harris v Birkenhead Corporation (1976) ,

Visitors? Premises?

Who are v is i tors?

Those people :

express ly invi ted in ,

impliedly invi ted i t

who have a contrac tua l r ight to be there ,

who have a legal r ight to be there .

Who is not a v is i tor?

Someone without any lawful r ight to be there , and

A person using a publ ic r ight of way (e .g walk ing down a s t r ee t) is not

considered to be a v is i tor of the people over whose land the r ight of way

passes.

What are premises?

Wide def in i t ion . Covers not only land and bui ld ings but any f ixed or

moveable s t ruc tures inc luding any vesse l , vehic le or a ircra f t (s1 (3) 1957.

E.g . covered scaffo ld ing and ladders ( Wheeler v Copas [1981])


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What duties does an occupier owe to lawful v is itors on the premises?

What is the duty of care under 1957 ac t?

OLA 1957 S2(1) an occupier of premises owes the same duty , the-

common duty of care- to a l l h is v is i tors except in so far as he is f ree and

does extend, res tr ic t , modify or exclude h is duty to any v is i tor or v is i tors

by agreement or o therwise .

OLA 57 S2(2) the common duty of care is a duty to take such care as in

a l l the c ircumstances of the case is reasonable to see tha t the v is i tor wil l

be reasonably safe in us ing th e premises for the purposes for which he is

invi ted or permit ted by the occupier to be there

In what s ta te a re premises required to be?

Premises can be dangerous provided v is i tor reasonably safe (dangerous

par ts can be fenced off e tc . . )

Occupiers not required to provide absolu te safe ty only to take reasonablecare . see Tedstone v Bourne Leisure Ltd (2008)

What damages can a c la imant c la im for?

p ro tec ts against PI and proper ty damage

Common duty of care and children

What does the s ta tu te say about ch i ldren?

S2(3)(a) warns tha t ch i ldren are less carefu l than adul ts .

What had case law sa id about occupiers l iab i l i ty and chi ldren?

Case law has sought to ba l ance responsib i l i ty be tween occupiers and parents.

See Jolley v London Borough of Sutton (2000) where a boy was in jured when

jacked up boat collapsed.

see Glasgow Corporation v Taylor(1922) where a 7yr o ld d ied af ter ea t ing

poisonous berr ies off a park bush .

See Perry v Butl ins Holiday(1997) where a 3yr o ld was in jured when he fe l l on a

sharp br ick wall

What does the cour t expect f rom a parent?

To be reasonably prudent , par t icu lar ly where there is no rea l a l lurement ,

see Phipps V Rochester Corporation (1955)

Common duty of care and skil led workers

What does the s ta tu te say about sk i l led workers?

S2 (3) OLA 57: occupier can assume tha t a person carry ing out h is job

wil l guard against specia l r isks usual in tha t job

See Roles v Nathan (1963) where 2 ch imney sweepers d ied af ter inhal ing carbon

monoxide a t work .

Also see In General Cleaning Contractors v Christmas where a window cleaner

fe l l and was in jured af ter a window closed on h im.


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Independent contractors

What does the s ta tu te s ay about damage caused by an independent contrac tor?

under s2(4) 1957: occupier wil l no t be l iab le provided

A) i t was reasonable to en trus t the work to a contrac tor

B) the contrac tor used was competent , and

C) (where appropria te) the work was checked to ensure i t was done

properly.

see Haseld ine v Daw (1941) independent contrac tors negl igent ly repaired a l i f t

which caused the c la imants dea th .

Also see Woodward v Mayor of Hast ings (1945) where a ch i ld was in jured on

school s teps af ter an independent contrac tor had fa i led to c lear them of ice af ter

sweeping away the snow.

NB. The contrac tor wil l o f ten a lso be l iab le to the C e i ther und er genera l

pr inc ip les of negl igence or as an occupier under OLA.

Occupiers duties to non-lawful v is itors

What is the duty of an occupier under the 1984 ac t?

s1(3) OLA 84 provides a duty is owed to :

A) Known trespassers

B) as a resu l t of a known danger

C) which should be reasonably guarded against

What is the duty owed:

occupiers must take reasonable care to ensure t respasser does not suffer

in jury as a resu l t of danger .

duty less demanding than tha t owed to leg i t imate v is i tor

What can a c la imant c la im damages for ?

Only personal in jury (not proper ty damage) recoverable .

What fac tors wil l the cour t consider :

i ) Age of t respasser ,

i i ) Nature of premises

i i i ) Extent of r isk and

iv ) Prac t ica l i ty in tak ing precaut ions .

Known trespassers? Known risk?

Who is known trespasser?

Someone without permiss ion to be there but D wil l only be l iab le i f he h ad

reasonable grounds to be l ieve a t respasser wil l /may be in the v ic in i ty .

see Swain v Natui Ram Puri (1996) and Higgs v Foster (2004)


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What is a known r isk under OLA 1984?

The s ta te of the pr emises must be dangerous and the occupier must know/have

reason to be l ieve the danger ex is ts .

See Keown v Coventry Healthcare NHS trust (2006) , and Siddorn v Patel

(2007)

What is reasonable to pro tec t t respassers?

- Less onerous a duty to pro tec t non lawful v is i tors than lawful v is i tors

- Where warning may be insuff ic ien t to pro tec t a lawful v is i tor i t may be suff ic ien t

to pro tec t a t respasser see Tomlinson v Congleton Borough Council(2003)

- Also see Donoghue v Folkstone properties (2003)

Defences avai lable to occupiers

Volent i Non Fi t In jur ia : i f the C wil l ingly accepts the r isk , the occupier is not

l iab le i f he /she suffers harm (s2(5)OLA 57 and s1(6)OLA 84) .

Contr ibutory negl igence: Law Reform (Contr ibutory Negligence )Act 1945, s1 .

Discharge of duty

Discharging an occupiers duty

Warning Notices

s1(5) OLA 84 any duty owed. . .may . . be d ischarged by tak ing such s teps

as are reasonable . . to g ive warning of the danger concerned . .

Occupiers wil l have d ischarged the ir duty and not be l iab le to trespassers

where c lear warnings are g iven

Under the 1957 ac t , an occupier has to do more tha t s imply warn of the

danger but has a duty to keep a vis itor reasonably safe .

I ts for the cour t to decide whether a s ign meets th i s purpose(wil l

consider how prec ise the warning was, how obvious the danger ,

any o ther safe ty measures in p lace - such as fencing , hand ra i ls

by s ta ir cases e tc . . and the sor t of v is i tor ta rgeted .)

Warning suff ic ien t in Horton v Jackson (1996)

Where the r isk is obvious , don t need to warn against i t (see Darby v

National Trust (2001)


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Exemption c lauses?

How can an occupier res tr ic t or exclude h is l iab i l i ty under the OLA?

S2(1) OLA 1957 says an occupier may extend, res tr ic t , modify or exclude

his duty to any v is i tor or v is i tors by agreement or o therwise .

Exemption not ices : a t tempts to exclude an occupiers l iab i l i ty when they

breach the ir duty of care and the breach causes in jury

eg: We accept no l iab i l i ty for los s or damage to people us ing the s ta irs .

Exemption not ices a re subjec t to UCTA 1977, ie :

s2(1) UCTA: a t tempts by a business to exclude l iab i l i ty for dea th /PI a re

void

S2(2) UCTA: a t tempts by a business to exclude l iab i l i ty for damage to

proper ty due to n egl igence must be r easonable .

S2(3) UCTA: a persons knowledge of the r isk is not the same as voluntaryacceptance of i t .

NB i t is not known whether exclusion is poss ib le under th e 84 ac t . Some bel i eve

tha t i ts poss ib le to exclude l iab i l i ty for breach of 84 ac t and th is i s not subjec t to

UCTA 77, o thers be l ieve i ts not poss ib le to exclude the duty under the 84 ac t

Problem Question

2 Water loo Park is owned by Water loo Counci l ( the Counci l ) and is open to the

publ ic for walks and le isure ac t iv i t ies . The park a lso has fa irground rides and

other a t t rac t ions . On one occasion John, and h is wife Jane , and the ir ch i ldren

Roger (aged 11) and Tiffany (aged 6) a rr ived a t the park . John decides to t ry a

r ide where each person is s t rapped to h is sea t . While John is on the r ide , he is

thrown out of h is sea t and is severe ly in jured , owing to a mechanica l fau l t in the

r ide .

Meanwhile Roger and Tiffany have wandered away and are in jured when they fa l l

in to a d i tch . The d i tch is beyond a not ice which reads: Do not pass th is poin t .

Discuss the l iabil i ty in tort , i f any, of the Council towards John, Roger and Tiffany

John v Water loo Counci l /owner of r ide

Genera l pr inc ip le?

: s 2(2) OLA 1957: an occupier must take such care as is reasonable in a l l

the c ircumstances to ensure the v is i tor is reasonably safe when using the

premises for the purposes for which he/she is en t i t led to be there .


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Who is the occupier?

Ownership /contro l tes t : The Counci l own the park . The fa irground r ides

are in the park . I f there is a separa te fa irground r ide owner/manager

he /she wil l have contro l over the r ide so both the counci l and the r ide

owner/manager wil l be occupiers (Wheat v Lacon) .

What are the Premises? :

the Ride . S1(3)57 ac t s ta tes tha t premises can be any f ixed or moveable

s truc tures inc luding any vesse l , vehic le or a ircraf t . (Wheeler v Copas

[1981])

Is John a lawful v is i tor?

He is in the park which is open to the publ ic and having presumably pa id

for a t icket to go on the r ide , he c lear ly has a contrac tua l r i ght to be

there .

Has the occupier met h is duty? There is a mechanica l fau l t with the r ide causing john to be thrown out

and suffer severe in jur ies . Clear ly the occupier of the premises has not

tak ing care to ensure the v is i tor is reasonably safe when on the r ide .

Councils defence

Independent contrac tor? counci l may not be l iab le i f :

A) i t was reasonable to en trus t the work to a contrac tor

B) the contrac tor used was competent , and

C) (where appropria te) the work was checked to ensure i t was done p roper ly .

On the fac ts provid ing the fa irground owner was a competent contrac tor and i t

was reasonable to en trus t the work to h im, a mechanica l fau l t is a technica l

problem and one tha t the counci l would not have been able to ident i fy f rom

checking the r ide (Haseldine v Daw)

However , Consider Bottomley v Todmorden Cricket Club (2003) where a cr icket

c lub were s t i l l l iab le a f ter a volunteer was in jured a t a f i reworks d isp lay because

the independent contrac tor was uninsured and inexper ienced and therefore not

competent in the c ir rcumstances and shd not have been re l ied upon by the

occupier .

John wil l have a successfu l c la im under the OLA 1957 against the counci l and/or

the fa irground owner/contro l ler .

Roger and Tiffany v the Council

Roger and t i f fany are lawful v is i tors in the park , when they go beyond the s ign

warning them do not pass th is poin t do they become trespassers?

Is the not ice do not pass th is poin t suff ic ien t to render people beyond

that poin t t respassers?


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Court wil l consider loca t ion of not ice , how c lear i t was for people

to see , whether there was a fur ther s t ruc tura l d iv ide (eg wire?

Fence?)

Is the area beyond the not ice an a l lurement to ch i ldren and

therefore suff ic ien t to turn roger and t i f fany in to implied l awful

v is i tors?

Duty of care under OLA 1984

What duty do the counci l owe under 1984 ac t?

Duty to take such care as is reasonable to ensure known trespassers don t

suffer in jury on the premises because of a known danger .

Was the d i tch a known danger?

Ct in Swain v Natui Ram Puri (1996 ) he ld tha t occupiers must have ac tua lknowledge of the danger . Matter of evidence . . Sign there so presume counci l

know of some danger?

Were the chi ldren known trespassers ?

publ ic park focused on a t t rac t ing famil ies with ch i ldren ( fa irground r ides) so

arguably counci l must have been aware of the r isk of ch i ldren wander ing around

the park and poss ib ly beyond the not ice

courts wil l look to ev idence of previous examples of ch i ldren pass ing the area or

even adul ts.

Greater a l lowances are made for ch i ldren (Perry v Butl ings Holiday, Glasgow

Corp v Taylor)

Was the d i tch something they should have reasonably pro tec ted people f rom?

Depending on the loca t ion (how c lose to the res t of the park , how vis ib le to

chi ldren and therefore a l lur ing) . . They perhaps should have fenced off the d i tch

/area around i t .

Does the council have any defence to the c la im by Roger and Tiffany

Was the warning do not go beyond th is beyond a suff ic ien t ly c lear indica tor of

the danger posed by the d i tch?

Unlikely .

Counci l probably not d ischarged duty . Roger and Tiffany would not have even

seen the s ign i f i t was not p laced in a low enough posi t ion . There was noth ing to

warn them or even adul ts of the ac tua l d i tch which represented the danger!

Volent i?

Courts re luc tant to f ind young chi ldren volent i cer ta in ly not t i f fany a t 6

and counci l very unl ike ly to be able to prove tha t the 11yr o ld roger knew

of the r isk of going beyond tha t poin t and voluntar i ly took i t probably

jus t ch i ldren innocent ly explo r ing . See Jolley V London Borough of

Sutton (2000)


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Contr ib Neg?

occupier en t i t led to assume tha t very young chi ldren wil l be accompanied

by an adul t looking af ter t hem. see Phipps v Rochester Corporation

(1955) when 2 k ids (aged 5 and 7) fe l l down a t rench and suffered in jury ,

the occupiers were not l iab le as the parents shd have been with them.

In th is case i t is l ike ly tha t t he damages wd be reduced to ref lec t John and

Jane not tak ing care for the ir ch i ldren 's safe ty and a l lowing them to

wander off a lone in a park but the counci l a re s t i l l l i ke ly to be he ld par t ly

l iab le .


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Vicarious Liability

Introduction

Genera l Rule : a person who commits the tor t wil l be personal ly l iab le .

Exception: Vicar ious l iab i l i ty gives the C the abi l i ty to hold someone o ther than

the person who commits the tor t , l iab le .

The Cla imant can sue both the person tha t committed the tor t and the ir employer .

Purpose of v icarious l iabil i ty

Q: why have v icar ious l iab i l i ty?

1 . employee benef i ts f rom employers work so should be l iab le for employers work re la ted

negl igence

2. Encourages employers to take care of those they se lec t to employ.

3 . Encourages employers to ensure adequate hea l th and safe ty measures in p lace and

fol lowed.

4 . From cla imants perspect ive , fa r more l i ke ly tha t employer wil l be able to pay damages

(e i ther personal ly or under insurance pol icy) .

Requirements for v icarious l iabil i ty of employer

1. The person who commits the tor t must be an employee cf independent contrac tor .

2 . The employee must have committed a tor t

3 . The tor t must have been co mmitted in the course of the employees employment

Princ ip le 1 : person committ ing the tor t must be an employee

Employer only l iab le for tor ts committed by employees .

Key: way in which work is done , not the type of work .

Various tes ts se t down by courts to t ry and d is t inguish between an employee and

IC.

Tradi t ional ly I f the person was engaged to do a par t icu lar task but a l lowed

discre t ion as to how/when to do i t he would be more l ike an IC. Where a person

was under the contro l of another i t was sa id to be more akin to an e mployment

re la t ionship .

BUT: unrea l is t ic to de termine re la t ionship pure ly on level of contro l exerc ised by

employer . Many types of work are sk i l led and those in a manager ia l posi t ion

cannot d ic ta te to the ir sk i l led employees how to carry out the ir work .


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Employee v Independent Contractor

See Ready Mixed Concrete l td v Minister of Pensions (1968) , for one of the

ear l ie r tes ts used by the cour ts to de termine whether an indiv idual was an

employee .

Relevant fac tors for considera t ion are :

Provis ion of equipment who provides? who pays for i t?

Tax/nat ional insurance contr ibut ions- is i t deducted a t source?

Method of payment- weekly /monthly / lump sum??

Working hours f ixed/regular??

Where an employee is loaned by the ir pr imary employer to another company i t can

cause problems in ident i fy ing who should be v icar iously responsib le for ac ts

committed whils t the employee is on loan . Tradi t ional ly the ru les la id do wn in

Mersey Docks and Harbour Board v Coggins and Griff i ths (Liverpool) (1947)

have been fo l lowed, a lso see Viasystems (Tyneside)ltd v Thermal Transfer(Northern) Ltd (2005) ,

Pr inc ip le 2 : to r t must have been committed .

I f c la imant a l leg ing employer is l iab le for employee s negl igence , must f i rs t

es tabl ish :

i ) Employee owed Cla imaint a duty of care (Donoghue v Stevenson s /Caparo v

Dickman)

i i ) Employee breached duty of care

i i i ) breach of duty caused damage to the c la imant ( fac tua l ly and legal ly)

iv ) employee has no defence

Princip le 3 : employer only l iab le for tor ts carr i ed out in the course of h is employee s

employment

Q. When wil l an employee be ac t ing with in scope of employment?

1 . When he performs author ised ac ts in an author ised way

2. When he performs an author ised ac t in an unauthor ised way eg a l though what the

employee d id may not have been permit ted by t he employer , i t was closely

connected with what the employee was supposed to be doing so he is s t i l l deemed

to have been ac t ing in the scope of h is employment . see Century Insurance v N1

Transport Board:

3 . When he performs a tor t when carry ing out h is job in an express ly prohib i ted

manner ( ie when the prohib i t ion re la tes to the way in which the job i s done ra ther

than the job i tse lf ) .

see Limpus v London General Omnibus Co (1862) and Rose v Plenty

(1976)

However an employer who express ly prohib i ts an ac t wil l no t be l iab le i f an

employee commits tha t ac t -see Twine v Bean Express l td (1946)


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The Court of Appeal d is t inguished Rose v Plenty f rom Twine v Bean Express

Ltd by c la iming tha t the young boy in Rose v Plenty was fur ther ing the

employers business whereas in Twine the l i f t was not g iven for any benef i t to

the employer .

4 . When he carr ies out a c r iminal ac t tha t is so c lose l y connected with h is

employment tha t i t is jus t and reasonable to impose v icar ious l iab i l i t y on the

employer .

Criminal Acts

- Tradi t ional ly we do not expect employers to be l iab le for c r i minal ac ts committed by

employee . However th ings not a lways so cut and dry .

- Dubai Aluminion Co Ltd v Salaam (2002) confirmed tha t the correc t tes t waswhether there was a c lose and d irec t connect ion between the employers dut ies and

the cr iminal ac t . In rea l i ty l iab i l i ty wil l be imposed when i t is considered fa ir and

proper to do so.

- The suff ic ien t ly c lose connect ion tes t is vague and can produce seemingly

inconsis ten t ru l ings

-

Important cases :

1 . Lister v Hesley Hall (2001) , (abuse of c by boarding school employee)

2 . Gravell v Carroll and another (2008) ( C punched by rugby p layer dur ing match)

3 . Mattis v Pollock (2003) ( c s tabbed by bouncer )

4 . N v Merseyside Police (2006) ( rape of C by off-duty pol iceman)

5 . Maga v The Trustees of the Bi rmingham Archdiocese of the Roman Catholic

Church (2010) (abuse of C by ass is tan t ca thol ic pr ies t)

Employer not v icariously l iable when:

Employee ac t ing beyond the scope of the employment eg : Beard v London

Omnibus Co (1900) Employee off on a Frol ic of h is own : employers not responsib le for employee s

ac ts tha t have noth ing to do with the ir employment . The employees job may g ive

them the opportuni ty to commit the wrongful ac t , they may do so with in work

t ime but without a connect ion between the ac t and the job there wil l b e no

vicar ious l iab i l i ty . see Hilton v Thomas Burton (Rhodes) Ltd (1961)


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Employers indemnity

Insurance companies who have to pay out a f ter a successfu l f inding of v icar ious

l iabi l i ty may sometimes seek an indemnity f rom the employee who committed the

tor t on the basis tha t they have breached a te rm in the ir employment contrac t

(namely tha t they wil l carry out the ir job with r easonable sk i l l and care) eg Lister

v Romford Ice and Cold Storage (1957)

In rea l i ty insurance companies are now informally agree ing tha t they wil l not

enforce the ir r ights under the Lister princip le to seek an indemnity unless there is

evidence of employer /employee col lus ion/o ther misconduct .

Independent contractors

Genera l ru le : employer not l iab le for ac ts of independent contrac tor unless

employer breaches own duty to c la imant and so jo in t ly l iab le with

independent contrac tor ,

employer remains l iab le for any breach or employer wil l be l iab le i f

se lec ts an inappropria te independent contrac tor .

Problem Question

2. While walk ing a long the pavement Alex is h i t by a van care less ly dr iven by

Bobby, Bobby is employed by Cla ire as a de l ivery man. However , a t the t ime of

the acc ident , Bobby had taken a de tour to go shopping a t a supermarket . His

contrac t of employment prohib i ted h im from devia t ing f rom his usual route . As a

resu l t of be ing h i t by Bobbys van Alex susta ins cu ts and bru ises . Bobby walks up

to Alex and, punches h im in the face saying: Tha t is for making me la te with my

del iver ies .

Discuss the l iabil i ty in tort , i f any, of Cl aire for this incident .

Liabil i ty of Claire

Consider Cla ire s v icar ious l iab i l i ty for :

1 . Bobby col l id ing with Alex when care less ly dr iv ing h is van and causing Alex cuts

and bru ises ; and

2. Bobby punching Alex in the face .


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Liabil i ty for crashing the van .?

Alex wil l only be able to successfu l ly sue Cla ire for t he cu ts and bru ises f rom the

accident i f he can prove:

1 . The ac t was committed by an employee of Cla ire and not an IC

2. The employee , Bobby, d id ac tua l ly commit a tor t

3 . The ac t was committed in the course of the Bobby s employment .

Is Bobby an e mployee?

Yes! Stra ightforward . We are to ld he is and even though the cour ts wil l a t t imes

look beyond the descr ip t ion s g iven by the ac tua l par t ies to ascer ta in the rea l

na ture of the re la t ionship (see In Hall v Lorimer (1992) ) there is noth ing to

suggest tha t Bobby is an IC.

Did Bobby Commit a tort?

Did Bobby owe a duty of care to Alex?

Yes! Establ ished duty of care owed by a l l motor is ts to pedestr ians/o ther

rd users( Donoghue v Stevenson )

Did Bobby breach h is duty of care?

Yes! Reasonable man would have been less care less when dr iv ing h is car .

Did Bobbys breach of duty cause Alex s cu ts and bru ises?

Yes! But for Bobby care less dr iv ing the van and h i t t ing Alex the cuts and

bru ises would not have occurred

personal in jury to Alex was a reasonably foreseeable consequence of the

breach (Wagon Mound).

Does Bobby have any defence?

Not really!

Did Bobby commit the tort in the course of h is employment?

Facts : Bobby is a de l ivery man who is making del iver ies but takes a prohib i ted detour to

go shopping a t a supermarket .

Q. Was th is an author ised ac t?

He was s t i l l making del iver ies as per h is job so he was most l ike ly carry ing out an

author ised ac t in an express ly prohib i ted way. Cla ire may s t i l l be l i ab le as in Limpus

v London General Omnibus Co (1862)

Claire may try and argue tha t Bobby s de tour to go shopping a t a supermarket was

actua l ly h im going off on a f ro l ic of h is own and therefore to ta l ly outs ide of h is


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employment . She may try and argue the case is s imilar to Hilton v Thomas Burton

(Rhodes) Ltd (1961)

The court wil l no doubt look to the fac t s of how far Bobby had devia ted f rom his

journey . . I f the shops were ac tua l ly only moments f rom his usual route i t may be tha t

the cour ts wil l consider he was s t i l l ac t ing in the course of h is employment .

Claires l iabil i ty for the Bobby s punch?

Must es tabl ish :

1 . The ac t was committed by an employee

2. The employee d id ac tua l ly commit a tor t

3 . The ac t was committed in the course of the employee s employment .

Was a tort committed/was he act ing in the course of h is employment

Bobby is an employee

Was a tor t committed?

to r t of t respass to person (assaul t )

- bobby may a lso face cr iminal sanct ions for ABH

Was bobby act ing in the course of h is employment?

Q. wil l the cour t consider tha t there was suff ic ien t l y c lose connect ion between the punch

and what Bobby was employed to do?

A. In both Mattis v Pollock (2003) and Gravell v Carroll and Another (2008) the

employer was s t i l l v icar iously l iab le when an employee ph ysica l ly a t tacked

someone e lse Can cla ire v bobby (re punch) be d is t inguished f rom these?

- in Mattis v Poll ick there was evidence tha t the employer had encouraged the

use of v io lence by employees and in Gravell v Carroll . . the second case i t was in

the middle of a rugby game and punching was a forseeable occurrence in these

matches .

- Unless there is ev idence tha t Clare encouraged the use of v io lence i t is h ighly

unlike ly tha t she wil l be he ld l iab le for th is ac t of v io lenceAs in N v Merseysde

Police (2006) , the employee Bobby, was not carry ing out off ic ia l employment

dut ies a t the t ime the punch took p lace!

Documents

Tort Law Compiled