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.

Comments: Post a Comment

<< Home

This page is powered by Blogger. Isn't yours?