Wednesday, January 24, 2007


Tuesday 23 January 2007

We began the evening by mopping up what was left on trespass to land.

TRESPASS BY REMAINING ON LAND. A person commits trespass if he remains on land when his right of entry has ceased. A reasonable time must be granted to the licensee to remove himself and his property from the land. If the licence is contractual, for example to enter a cinema and watch the showing of a film, then it is irrevocable until the purpose for which it was granted and paid for is achieved, unless the licensee breaks the terms of the contract.

TRESPASS BY PLACING OBJECTS ON LAND. It is a trespass to place any chattel on the claimants land. Trespass is continuing so long as the offending article remains on the land. Successive actions will lie from day to day until the article is removed. In Holmes v Wilson (1839) the defendants erected buttresses to support a sinking road, necessitating trespass onto the claimant’s land. The claimant sued & recovered damages, and the defendants failed to remove the buttresses so the claimant sued again!

POSSESSION. Only the person in possession of the land can bring the action. Possession includes entitlement to immediate and exclusive possession. A landlord cannot therefore sue for trespass (as the tenant is the person in possession) unless he can prove that actual harm has been caused to the property which has damaged the value of his reversionary interest.


1. Licence - entering with express or implied permission. Any member of the public has an implied licence to approach premises with a legitimate enquiry, even if that enquiry has nothing to do with the occupier’s business or interests. In this respect a police officer without a search warrant is in the same position as a member of the public. This defence exists unless the defendant has exceeded the terms of the licence or the claimant has legally revoked the licence. Certain notices (Keep Out) or clear words used by the occupier will indicate that the licence has been revoked.
2. Justification by law. Acts which would otherwise be trespass are not so when justification is provided by law. For example, the police have powers under THE POLICE AND CRIMINAL EVIDENCE ACT 1984 to enter premises and search them.
3. Necessity. It is a defence to show that it was necessary for the defendant to enter the claimants land. In Rigby v Chief Constable Of Northampton (1985) it was held that necessity was a defence provided that there was no negligence on the part of the defendant in contributing to the state of necessity, thus the action for trespass failed. The defendants had fired CS gas into the claimants shop and burnt the shop out. The defence of necessity failed in the negligence action as the police had been negligent in not having any fire fighting equipment standing by at the particular time when they chose to use the CS gas.


1. Re-entry and self-help. The person entitled to possession can enter or re-enter the premises. He must do so in a peaceful manner, otherwise he may commit a criminal offence under s6 CRIMINAL LAW ACT 1977 - use/threat of violence to secure entry.

2. Ejectment. A person who has been dispossessed may bring an action for ejectment where he can establish an immediate right to possession. The defendant need only assert his possession, leaving the claimant to show that his title is better than the defendant’s.

3. Mesne (pronounced “mean”) profits. An action lies for the damage which the claimant has suffered through being out of possession of land. This includes profits taken by the defendant during his occupation and damages for deterioration and the reasonable costs of getting possession. In Inverugie Investments Ltd v Hackett (1995) the Privy Council was called upon to calculate mesne profits in unusual circumstances. The claimant had been unlawfully kept out of his property in the Bahamas for a period of 15 ½ years. He was entitled to a reasonable rental value for that period based upon the published rates at which tour operators made “wholesale” arrangements to use holiday accommodation.

4. Distress damage feasant. Where a chattel is unlawfully on the claimants land and has caused actual damage, then the claimant may retain the chattel until the damage has been paid for. A football kicked through a window may be retained until the damaged window is paid for.

5. Injunction. In cases of threatened trespass or where the trespass is of a continuing nature the claimant may seek an injunction. The claimant is prima facie entitled to an injunction, but will be refused where the interference is trivial. In Llandudno UDC v Woods (1889) the council sought an injunction to prevent a clergyman holding services on the seashore. This was refused on the grounds of triviality.

6. Damages. If the trespass is trivial the damages will be nominal. If damage is done to the land, then the measure of damages is usually the diminution in value of the land. The cost of reinstatement, for example rebuilding, will sometimes be the correct measure, because there is less flexibility in the market in land and buildings than in second-hand chattels, such as cars. Exemplary damages have been awarded in an appropriate case.

We then turned to an examiner’s favourite: THE TORT OF NUISANCE.

There are two types of nuisance:

Private nuisance - a tort which protects a person’s use and enjoyment of land.
Public nuisance - a crime, and also a tort in appropriate circumstances (see below).

It is important to emphasise that for an action in private nuisance the claimant must have an interest in land. No such interest is required for an action in public nuisance.

Every public nuisance is a crime but a person who suffers special damage as a result may bring a civil action for damages in tort. Public nuisance was defined in A-G v PYA Quarries Ltd (1957) as “one which materially affects the reasonable comfort and convenience of life of a class of Her Majesty’s subjects”. Well worth learning.

As for private nuisance, it is not possible to list what a public nuisance is, but think of someone who keeps a brothel in your street or the deafening noise from a rock festival.

Special damage is damage over and above that suffered by the class of persons affected, i.e. different in nature or extent. It has been held to occur when a golf ball driven over a highway caused injuries to the claimant motorist. The siting of the tee amounted to a nuisance. The class affected were highway users. The claimant suffered damage over and above that suffered by other members of the class: Castle v St Augustine’s Links (1922).

In Wandsworth LBC v Railtrack plc [2001] The council brought an action for, among other things, nuisance against the owner of a railway bridge, claiming that it had allowed pigeons to roost under its bridge and was liable for the state of affairs which had arisen due to pigeon droppings affecting pedestrians passing under the bridge and the pavement beneath the bridge. The QBD held, giving judgment for the council, that the pigeon infestation and the fouling caused by it amounted to a nuisance; that the defendant had made no unnatural or unreasonable use of its land; that although the nuisance had occurred without the defendants act or default the defendant had omitted to remedy it within a reasonable time or at all; that the fact that the pigeons were feral did not exempt the defendant from liability, having regard to the way the legal principles of nuisance have developed. The Court of Appeal agreed with the judgment.

PRIVATE NUISANCE is an unlawful interference with a person’s use or enjoyment of land or some right over or in connection with it. A nuisance may interfere with a right in land. An idea of private nuisance can be given by looking at the parties to the action.

The tort of private nuisance is concerned with the regulation of land usage between neighbours. Normally, to sue in private nuisance, a person must have an interest in the affected land: Malone v Laskey (1907). This case was doomed to fail where the wife of the tenant was injured when the lavatory cistern fell on her head, caused by vibrations of the defendant. She failed, she had no interest in the land.

Two separate issues arose in consolidated appeals to the House of Lords in Hunter v Canary Wharf and Hunter v Docklands Development Corp. (1997):

1. sought to establish that the interference with television reception caused by the construction of the Docklands tower block was actionable as a private nuisance. The Law Lords held that the mere presence of a large building which interfered with television reception was not actionable as a private nuisance and more would be required to establish a nuisance, for example jamming the signal received by nearby residents.
2. an assertion that the damage caused by dust affecting premises over a considerable period of extensive building work in the Docklands area was actionable even by those residents who lacked any proprietary interest in the land affected. By a majority of four to one, their lordships overruled Khorasandjian v Bush (1993) and confirmed Malone v Laskey (above) to the effect that entitlement to the use and enjoyment of land remains a necessary characteristic of a claimant in a private nuisance action in English law.

A potential defendant in an action for private nuisance may be:

  1. The CREATOR of the nuisance - will always be liable, whether or not he is still in occupation of the land from which the nuisance originates.

  2. OCCUPIERS - most usual

  3. LANDLORDS - not usually liable as he has parted with control of the land.

Historically an occupier was not liable for nuisances created by trespassers, acts of nature or acts of third parties. This is no longer so. In Sedleigh Denfield v O’Callaghan (1940) a trespasser laid a drainage pipe on the defendant’s land. A mesh on the pipe became blocked with debris. The defendants were aware of this fact. When water came into the pipe it flooded the claimant’s land because of the blockage. The defendants were held liable in private nuisance for continuing and adopting the nuisance created by a trespasser.

In Goldman v Hargrave (1967), lightning struck a red gum tree in Western Australia. The tree caught fire and the defendant cut it down and left the fire to burn out. Days later a strong wind kindled the fire which spread to the claimant’s land. The defendant was held liable for the fire damage.

In Leakey v National Trust (1980), due to natural weathering, parts of a mound owned by the National Trust fell onto the claimant’s land. The Trust was held liable for the nuisance.

In such cases the occupier is placed under a duty to abate a nuisance on his land which was created by a trespasser or act of nature and of which he is aware or should have been aware. The court will look at the cost of abatement and the resources, both financial and physical, of the occupier.

The case of Leakey illustrates the potential responsibility in nuisance of an “uphill” land owner to one below, but what about the “downhill” owner? The case of Holbeck Hall Ltd v Scarborough BC (1997) gave rise to a discussion of the reverse situation, i.e. one in which the “downhill” owner had allegedly failed to take care for the support of the higher property. As the coastal area eroded, the claimants hotel premises and thriving business collapsed onto the beach below and the judge found that the local authority had taken insufficient care to protect the claimants property from foreseeable damage. The decision certainly seemed odd, given the amount of coastline and potential claims, and the decision was revered by the Court of Appeal in 2000. They stated that this was an issue of negligence only, and as it was not reasonably foreseeable that the hotel would fall into the sea there was no liability.

This tells us that the owner of the uphill may be liable in nuisance for damage caused to the land of the downhill owner, but not the other way around.

The interference with use and enjoyment of a person’s land is a balancing act between two conflicting interests, the rights of the claimant and the defendant to enjoy the use of their land. The interference may take many forms, e.g. smell, noise, vibrations, dust etc. It is not possible to provide a definitive list of what is or is not a nuisance, and so other factors are considered. These include:

A vital case in private nuisance is St Helens Smelting Co. v Tipping (1865). The claimant had purchased an estate in a heavily industrialised area. Fumes from the defendant’s copper works caused physical damage to the claimants garden and generally interfered with his use and enjoyment of the land. The House of Lords upheld the claimants claim and granted an injunction. A distinction was drawn between nuisances causing material damage to property and those causing personal discomfort. Lord Westbury LC commented: “With regard to . . . the personal inconvenience and interference with one’s enjoyment, one’s quiet, one’s personal freedom, anything that discomposes or injuriously affects the senses or the nerves, whether that may or may not be denominated a nuisance, must undoubtedly depend greatly on the circumstances of the place where the thing complained of actually occurs”. He continued that neighbours were under no obligation to submit to a degree of interference “the immediate result of which is sensible injury to the value of property”.

The case provided that a person who, by his activities, causes material damage to the claimants land will be liable in nuisance, unless the claimant is shown to be over-sensitive or one of the defences to nuisance apply. The difficulty with this test is determining what is meant by material damage. Most nuisances will diminish the value of property but unless the land is damaged it will not be classified as material damage.

In the case of nuisances causing personal discomfort the court will have greater regard to the circumstances surrounding the interference. One or more of a number of factors will be taken into account in determining the reasonableness of the defendant’s user of his land.

The character of the neighbourhood. It has been said that “what would be a nuisance in Belgravia would not necessarily be so in Bermondsey”: Sturges v Bridgman (1879). The effect of this rule is to make it very difficult to succeed in an action for discomfort in an industrial area.

Abnormal sensitivity of the claimant, means no nuisance is committed. In Robinson v Kilvert (1889) the heat created by the defendant’s manufacturing process damaged the claimants brown paper which was stored in the upper rooms of the building. The damage was held to be due more to the sensitivity of the paper than to the defendant’s activities.

Importantly, if the defendant’s activities would have caused damage to non-sensitive property, the claimant may recover for the full extent of his loss, including sensitive property. In McKinnon Industries Ltd v Walker (1951) sulphur dioxide emitted from the defendant’s factory damaged the claimants commercially grown orchids. The claim was successful because the emissions were also damaging to other vegetation and not just to the sensitive plants grown by the claimant.

We will continue with this next week.

Wednesday, January 17, 2007


Tuesday 16 January 2007

We continued with our look at vicarious liability. Problems are often encountered when a driver takes a detour and has an accident. The employee may be on “a frolic of his own”.

Compare Whitman v Pearson (1868) where an employee goes home for lunch with his horse & cart, against the employer’s instructions. The employer is vicariously liable for damage done by the horse, he is still within the course of his employment.

In Storey v Ashton (1869) after the deliveries had finished for the day the driver went to visit his brother-in-law. It was held that this was a new & independent journey. It had nothing to do with his employment and, therefore, he was outside the course of his employment.

The employee’s criminal conduct may take the form of dishonesty or violence. In the case of assaults the courts were always reluctant to find an employer vicariously liable, but the fact that a dishonest act was committed for the employee’s benefit will not take him outside the course of his employment. The question will be:

In Lloyd v Grace Smith & Co. (1912) AC 716 a solicitor’s clerk was held to have acted within the scope of his employment when he fraudulently induced a client to convey properties to him. As the clerk was paid to do conveyancing he was within the course of his employment.

Two important decisions regarding assaults has shown a change of attitude in the court.

Lister v Hesley Hall [2001]. The warden at a special school sexually abused some of the male students. The House of Lords held:

  1. a broad approach to the nature of the employment should be taken.

  2. There was a close connection between his employment and his torts. The acts took place in the course of his duties, so it was fair, just & reasonable to hold the employer vicariously liable.

Mattis v Pollock (t/a Flamingos Nightclub) [2003]. In this case a nightclub doorman, who had become involved in an argument with a customer, was chased away from the club by a group of four or five people. The group of people gathered at the corner of the street about 100 yards away from the club. The doorman went away and returned with a knife, got hold of Mr Mattis and stabbed him in the back shouting "I'll teach you to fuck with me".

The High Court decided that the employers of the doorman were not liable. However, the Court of Appeal has reversed this saying that the stabbing represented the unfortunate culmination of the unpleasant incident that had started within the club and could not be treated in isolation from earlier events. Although the doorman's behaviour included an element of personal revenge, the Court found that at the moment that Mr Mattis was stabbed, the responsibility of the employers for the aggressive actions of the doorman had not been extinguished. One factor that influenced the Court was that they found that the club had employed the doorman knowing and approving of his aggressive tendencies. The Court of Appeal found the employers were vicariously liable for the attack on the grounds that they had authorised and expected the doorman to perform his duties in a manner which included physical manhandling of customers. The stabbing was held to be closely linked to what had gone on in the club and the employers were liable.

As employers & employees are joint tortfeasors, a potential claimant will invariably choose to sue the employer as he has more money. The employer can the sue the employee under s1(1) CIVIL LIABILITY (CONTRIBUTION) ACT 1978. This previously existed at common law in:

Lister v Romford Ice & Cold Storage (1957) - a father & son were fellow employees. The father was injured as a result of the son’s negligence. The father sued the employer in negligence, their insurers paid out & then sued the son to recover from him as he was in breach of his duty. This right of action is called subrogation, & it succeeded.

Can you spot the flaw? - The employer has paid a premium to an insurer to take a non-existent risk. Having your cake & eating it. A gentlemen’s agreement now exists, & the insurers do not attempt to recover money from the employee.

A principal and agent provides a further type of special relationship. There are some situations where liability for the torts of an agent will be attributed to the principal for whom the agent is acting.

Ormrod v Crossville Motor Services Ltd (1953), Denning L J stated:

“The owner (of a car) is. . . liable if the driver is his agent, that is to say, if the driver is with the owner’s consent, driving the car on the owner’s business or for the owner’s purposes … The law puts an especial responsibility on the owner of a vehicle who allows it out on the road in the charge of someone else no matter whether it is his servant, his friend, or anyone else. If it is being used wholly or partly on the owner’s business or for the owner’s purposes, then the owner is liable for any negligence on the part of the driver.”

On these facts the owner was liable.

We then turned to EMPLOYERS’ LIABILITY. During the 19th century courts were hostile to claims by employers injured at work, liability was seen as a contractual duty. As the employer dictated the employment contract there was little or no liability.

The employer’s liability in tort for the safety of his employees may take one of three forms:

  1. the employer may be vicariously liable for the tort of an employee which leads to the claimant employee (or a third party) being injured. Liability here is strict in the sense that the employer need not be at fault. (See Chapter 10.)

  2. The employer may be in breach of a statutory duty and the claimant employee suffers injury as a result. (See Chapter 9.)

  3. The employer may be in breach of the personal duty of care which he owes to the employee. Liability here is in negligence, but is owed only to employees, not independent contractors.

The employer’s personal duty of care is a duty to take reasonable care for the safety of employees in the course of their employment.

The duty is personal, and cannot be delegated. The duty is discharged by the exercise of due skill and care. The classic exposition of the duty was laid down by the House of Lords in Wilsons & Clyde Coal v English (1938). The employer must provide:

These amount to a single duty to take reasonable care for the safety of employees in the course of employment.

Jebson v MOD [2000] – the claimant was one of a group of soldiers returning to camp after a boozy night out. The claimant attempted to climb on to the roof of the lorry that was carrying them. Unsurprisingly, he fell off and was injured. The trial judge said that the damage was too remote as it was not foreseeable. The Court of Appeal held (following Jolley v Sutton LBC) that the defendants had anticipated rowdy behaviour and so owed a duty of care to ensure that the group did not injure themselves. The behaviour was reasonably foreseeable and came within the duty of care. So the damage was not too remote, although a 75% reduction for contributory negligence was made.

COMPETENT STAFF. An employer may be liable where an employee with insufficient experience or training is used and a fellow employee is injured.

Competent staff remains of importance where an employee uses violent conduct or practical jokes. The employer is unlikely to be vicariously liable, but if he is aware of the employee’s propensity to this kind of behaviour then he may be personally liable: Hudson v Ridge Manufacturing Co. (1957). There may be other situations where the employee who causes the accident is on a “frolic of his own” and the doctrine of vicarious liability will not help the accident victim.

PLANT, APPLIANCES AND PREMISES. The employer should provide the necessary plant and equipment and maintain it in reasonable condition. The common law placed an employee at a distinct disadvantage as there was no such guarantee as to safety. The EMPLOYERS’ LIABILITY (DEFECTIVE EQUIPMENT) ACT 1969 provides that where an employee suffers personal injury as a result of a defect in equipment due wholly or partly to the fault of a third party, the injury is deemed attributable to the negligence of the employer. This relieves the employee of the necessity of identifying and suing the manufacturer of the defective equipment. The employer can then claim an indemnity from the manufacturer.

“Equipment” includes a ship according to the House of Lords in Coltman v Bibby Tankers Ltd (1988).

In Knowles v Liverpool C.C. (1993), the House of Lords has again given a wide interpretation to the word “equipment” in s1(1) of the 1969 Act and has held that a flagstone, which broke and injured the claimant whilst he was manhandling it, came within the definition.

The duty of care applies to the premises at which the employees work. Latimer v AEC (1953) - the employer is not required to prevent all accidents, but rather to take reasonable precautions to guard against accidents occurring. After a flood at the defendant’s factory, the floor surfaces were slippery. Sawdust and other materials were put on the floor to absorb the oil and enable the workforce to go back into the factory. The claimant slipped and injured himself in an area of the building where these precautions proved ineffective. The alternative for the defendant employers would have been to keep the factory closed until all the floors had been thoroughly cleaned. The financial burden this would have caused was too great compared with the small risk of injury to an employee, given the very practical steps taken to reduce the risk of injury. The employers were not in breach of their duty of care to Latimer.

SAFE SYSTEM OF WORK. The employer must:

He must take care to see that the system is complied with and account for the fact that workmen are often careless for their own safety.

In General Cleaning Contractor’s v Christmas (1953) a window cleaner was injured when he fell from the building to which he had been sent to clean windows. The nature of the task required him to balance on a small sill only six inches wide. His employers had provided him with no tool to keep one of the sash windows open as he cleaned the glass. During the cleaning process one of the windows closed and the cleaner was left with no means of holding onto the building from which he fell. The House of Lords found the employers had not provided a safe system of work.

For some employees the system of work which is regulated by their employer exposes them to extreme strain and the risk of psychiatric harm. Look back at the case of Walker v Northumberland CC (1995) that we covered earlier.

Both volenti non fit injuria and contributory negligence are available to the employer. Volenti rarely succeeds and the courts are slow to find contributory negligence. Many pressures, e.g. economic ones, influence a worker to keep a job, however inherently dangerous it may be.

TRESPASS TO LAND. This is an unjustifiable interference with possession of land.

Like other forms of trespass the injury must be (i) direct (ii) intentional and (iii) the tort is actionable per se. Trespass can be distinguished from nuisance as the interference in trespass must be direct whereas the interference in nuisance may be indirect or consequential.

The commonest form of trespass is trespass by wrongful entry. The slightest crossing of the boundary will suffice, for example putting a hand through a window, although it is often gypsies moving onto land.

A person who uses a highway for any purpose other than that of passage, re-passage and related incidental uses becomes a trespasser against the owners of the subsoil: Hickman v Maisey (1900). The highway was used by a racing tout to observe the performance of horses in training.

Where the defendant’s entry was by authority of law as opposed to the claimant’s authority and the defendant subsequently abuses that right then he becomes a trespasser ab initio: Six Carpenters Case (1610). The subsequent act must be wrongful and the rule does not apply to an omission.

The modern application of the doctrine lies in the use of police search warrants, where modern cases have held that a partial abuse of an authority does not render everything done under it unlawful: Elias v Pasmore (1934).

As a general rule the person who owns the land also owns the sky above and the subsoil beneath. Trespass can therefore be committed by digging a tunnel under land or by interfering with the air space. In Kelsen v Imperial Tobacco Co. (1957) it was held to be trespass to erect a sign on the defendant’s property which projected over the claimants property. However, in Bernstein v Skyviews Ltd (1978) it was held not to be a trespass to fly an aircraft over land at such a height that would not cause unreasonable interference with any use to which the land might be put. Neither was it trespass to take photographs of the claimants property from a reasonable height.

Section 76 CIVIL AVIATION ACT 1982 makes special provision for aircraft overflying land - no action in trespass or nuisance will lie “by reason only of the flight of an aircraft over any property at a height above the ground which, having regard to wind, weather and all the circumstances of the case is reasonable”. However, there is strict liability for damage caused by people or things falling from an aircraft whilst in flight, taking off or landing.

We’ll begin with trespass by remaining on land next week.

Wednesday, January 10, 2007


Tuesday 9 January 2007

We continued with breach of a statutory duty after the holidays.

Where a statute creates a duty but provides no remedy, a person suffering damage is presumed to have an action. Section 63(1) HOUSING ACT 1985 requires local authorities to provide accommodation for those who are “homeless” and have a “priority need”. The claimant in O’Rourke v Camden LBC (1997) applied to the council for accommodation when he left prison and was subsequently evicted from that accommodation after only 12 days residence. He sought compensation on the grounds of breach of a statutory duty designed to protect persons such as himself. The House of Lords held that s63 was intended to confer benefits on certain members of the public who were in need, but was designed also to benefit society as a whole. In the performance of the duty, the local authority would have to exercise considerable discretion as to the use of limited resources and it was regarded as unlikely that Parliament would have intended to create a private right of action in such circumstances.

The first exception (see previous posting) concerns statutes passed for the benefit of a class. This explains the large number of industrial safety statutes which provide a criminal penalty for their breach but where the courts have allowed an action for damages. The class protected here is employees.

It is necessary for the claimant to show that the statutory duty was owed to him, for example where a duty was owed to “persons employed” at a factory, the duty was not owed to a fireman fighting a fire there: Hartley v Mayoh (1954).

In addition, the type of injury must be the type the legislation sought to prevent. In Gorris v Scott (1874) the defendant did not comply with an order which required animals to be kept in pens of certain dimensions whilst on board ship. The purpose of this provision was to reduce the risk of the spread of disease amongst the animals. The claimant’s sheep were not in pens and were lost overboard. An action for breach of statutory duty was not possible because the damage which had occurred was not of the type that the statutory provision was designed to guard against.

There is no single standard of care; it depends on the statute. Slipping on an icy pavement. The claimant in Cross v Kirklees MBC (1997) alleged that the defendant council were in breach of their duty to maintain the highway under s41 HIGHWAYS ACT 1980. The Court of Appeal analysed the nature of the duty and decided that it could not be an absolute duty to keep the highway clear of water, ice and snow at all times. In practical terms the duty was to “maintain the highway so as to exclude the foreseeable risk of injury resulting from its use” per Evans LJ.

The claimant must prove that the defendant’s breach of his statutory duty was the cause of his injuries. The general rule is the same as in negligence cases. A claimant must show that “but for” the defendant’s breach of statutory duty the claimant would not have suffered the injury. This could not be made in McWilliams v Sir William Arroll (1962). The claimant was killed when he fell at work. No safety harnesses were available to the claimant and his employers were, therefore, in breach of a statutory duty. However, the evidence suggested that the claimant would not have worn the safety equipment even if it had been available.

Contributory negligence is a defence and the LAW REFORM (CONTRIBUTORY NEGLIGENCE) ACT 1945 will apply, although the courts are often generous towards the injured worker in their assessment of contributory fault, where the employer is in breach of a statutory duty.

Volenti is not usually available as a defence in industrial safety cases except where the ICI v Shatwell exception applies. The claimant and his brother were employed as shot-firers in the defendant’s quarry. In breach of instructions and of statutory regulations, binding on themselves, they tested detonators without taking shelter. The claimant was injured and sued the defendant employer on the grounds of their vicarious liability for his brother’s negligence and breach of statutory duty. It was held that, as the claimant and his brother were fully aware of the risk and were volens to the injury, then the defence of volenti was available to the employer.

We then turned to vicarious liability. Whilst the person who is actually responsible for the tort is always liable, policy dictates that sometimes another may be liable although he has not committed it. Both are liable as joint tortfeasors.

This is the doctrine of vicarious liability, & is most commonly seen in employer/employee relationships - although not exclusively so. It is so common in this area that the EMPLOYERS’ LIABILITY (COMPULSORY INSURANCE) ACT 1969 compels an employer to insure himself in respect of vicarious liability for injuries caused by his employees to colleagues - it isn’t compulsory to insure against persons other than employees.

2 ingredients are required for vicarious liability to exist:

(1) A relationship (e.g. employment) between the parties to justify an imposition of liability (thus there is a distinction for independent contractors)
(2) The tort committed must be ‘reflective of the relationship’, in English - committed during the course of the employment

What this equates to for our purposes is:

(1) he is an employee, and
(2) he is acting within the course of his employment

Vicarious liability is strict - the employer need not be guilty of personal fault. Why does it exist?:

the employer controls the behaviour of his employee
the employer should be liable on the basis of causation
the employer’s greater ability to pay - insurance
risk-creating activity arises from the pursuit of the employer’s business interests and that the doctrine may have the effect of encouraging the employer to effect accident prevention procedures
the employer acquires a benefit from the work of his employees (usually some financial gain), the employer should also bear the burden of accidents which arise out of that work.

A legal distinction needs to be drawn between an employee and an independent contractor.

Various tests have been used to determine the difference, and all fail at some time. As it is a question of law, the parties themselves may be mistaken as to the true nature of their contractual relationship. Traditionally a distinction was drawn between a contract of service (employee) v a contract for services (independent contractor). This has proved not to be helpful.

One test was named the ‘CONTROL TEST’. Did the employer retain control over the performance of the work by telling the worker what to do and how to do it? Yewens v Noakes (1880) an unimportant case that devised the test - “An employee was anyone subject to the command of the master as to the manner he shall do the work.” This may have been okay in Victorian times, but it has no relevance now. A century ago an employing engineer knew all aspects of his firm’s business. Nowadays, thanks to the skill of employees, an employer may be able to tell an employee what to do, but now how to do it. Computer specialists, accountants, even me, do not fit the test.

In Stevenson, Jordan & Harrison Ltd v McDonald & Evans (1952) Lord Denning suggested a BUSINESS INTEGRATION OR ORGANISATION TEST - “An employee is one who does his work as an integral part of the business.”

Chauffeur v Taxi Driver
Staff Reporter v Newspaper Contributor

This proved to be too vague, & all further attempts have been abandoned.

The test nowadays is to look at all of the circumstances of the relationship before making a decision. In Ready Mixed Concrete v Ministry Of Pensions And National Insurance (1968) the following criteria were put forward:

(1) the employee agrees that, in consideration of a wage/other remuneration, he will provide his own work and skill in the performance of some task for his employer.
(2) the employee agrees expressly or impliedly to be subject to his employer’s control.
(3) Thirdly, the other provisions of the contract should be consistent with it being a contract of service or employment.

In Hall (Inspector of Taxes) v Lorimer (1994):

L was a freelance vision mixer, working under short term contracts for 20 television companies
All of the contracts were for 1 - 10 days
He worked in their studios & used their equipment
He had no financial interest in the projects other than a fee for each contract
He was registered for VAT
The bookings were taken by telephone
He kept all of the paperwork in an office at his home

Is he an employee or an independent contractor? Look at the Ready Mixed Concrete case, which is what the House of Lords did. They held that L is an independent contractor. There is no single test to determine whether a tax payer is working under a series of contracts or is in business on his own account.

What happens where an employee is lent? Employer A lends employee B to employer C. B commits a tort within the course of his employment. Who is vicariously liable, A or C?

In Mersey Docks & Harbour Board v Coggins & Griffiths (Liverpool) Ltd (1947) it was held that the burden of proof is on the permanent employer (A) to show that he was not the employer. This is done by reference to who pays the wages to B? Who can sack B? Was machinery hired with B?

More recently, in Viasystems (Tyneside) v Thermal Transfer [2005] the Court of Appeal said that there was no reason in principle why both employers should not be vicariously liable if both had control of the employee. In such cases both would automatically equally bear responsibility.

The employer will only be responsible for torts committed in the course of employment by the employee. This is a question of fact but the courts have often used Salmond’s definition that an act is in the course of employment if it is either

(1) a wrongful act authorised by the employer; or
(2) a wrongful and unauthorised mode of doing some act authorised by the employer.

The second point is more easily understood by asking two questions. If the answer is the same to both, he is in the course of his employment. Remember it. Here are the questions:

(1) what was the employee paid to do?
(2) What was he doing at the time.

That explains the decision in Limpus v London General Omnibus (1862) the defendant prohibited drivers from racing or obstructing other buses. The defendant obstructed the claimant’s bus, an accident occurred & several passengers were injured. It was held that the defendant (employer) is liable as he was doing an authorised act (in an unauthorised manner) as (b) above. The driver is still doing what he is paid to do - drive a bus.

There are many cases involving giving lifts to people. Compare:

Conway v George Wimpey & Co. (1951) - the defendant provided transport for workers on a site. The driver was told not to give lifts to others. The claimant is one such ‘other’ & is injured due to the driver’s negligence. There was no vicarious liability, the act was unauthorised.


Rose v Plenty (1976) - the defendant expressly prohibited employees from permitting boys to ride on milk floats. The employee does so, & due to his negligence the boy is injured.

Here the dairy are vicariously liable! The only difference is that there was a benefit to the employer – the delivery of the milk.

The fact that an employee is doing his job negligently doesn’t take him outside the course of his employment - in Century Insurance Co. v Northern Ireland Road Transport Board (1942) AC 509 a petrol tanker driver is filling a tanks when he throws down a lighted match! There was a fire & an explosion.

Where an employee intentionally (as opposed to negligently) does an unlawful act the courts adopt a much more restrictive approach. In Heasmans v Clarity Cleaning (1987) an employer was not vicariously liable where an employee made £1,500 worth of telephone calls while doing a night time cleaning job.

On the way to work or returning from the workplace. The House of Lords considered “travelling time” in Smith v Stages (1989). Stages and a fellow employee were returning to their homes in the Midlands after completing an urgent job in South Wales. The two men had worked virtually without a break for 24 hours and Stages crashed the car in which they were travelling. Both men were seriously injured. No other car was involved. The employers paid the equivalent of rail fare for the travelling involved but made no stipulation as to the mode of transport actually used. In addition, the men received wages for the days on which they travelled. Accordingly, on their return journey the two men had been travelling in the employer’s time and were in the course of employment. This is not the general rule, however. Most employees who travel from work to home by car will no longer be in the course of their employment on that journey.

We’ll continue next week with detours.

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