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.

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