Vicarious Liability Notes

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Vicarious Liability
I.
Is the person committing the tort D's employee
1. Is D the Employer?
ask who is entitled to tell him the way in which he's to do the work for which he was engaged (control of
task + method of performance) (Lord Porter in Mersey Docks) o Hawley v Luminar - night club security
hired by the club, though contract w/security services company, punched C, caused brain damage, club
owner liable. Transferred employee - commits the tort whilst hired by another enterpriser for a particular
period of time/task
capacity of control test (who was entitled and, if they had the opportunity, obliged to control/stop
employee from performing. o Via Systems v Thermal Transfer- C contracted w/1st D to install air
conditioning system, he contracted w/2 nd D who hired a fitter who brought his friend along, friend
negligently crawled through the duct, causing severe flooding. Held both Ds could be sued. Dual
employment - ask who's the employer for thatparticular task
NB: supervision isn't the same as control
Temporary employment - capacity of control test o Biffa Waste Management Services - fire at waste
recycling plant caused by a spark; importance of common sense underlined
Heavy onus on permanent employer to show the other employer should be liable
Alternative in Canada - view employers as partners giving rise to joint control (but no reason why non
partnership relationship should be excluded)
division (both employers are at fault - 50/50 (Via Systems) Dual vicarious liability
SC of Canada - 75/25
Should parties be able to define their legal relationship in definitive manner?
2. Is C Employee/Contractor/Agent?
1) Independent contractor (contract of services) - degree of integration into business/contractual terms
joint tortfeasor b) Owed a non delegable duty of care to ensure care was being taken (unless negligence
was collateral; i.e. outside the scope) i. Hospital - non delegable duty to ensure suitable treatment is given,
unless it's a visiting clinician o Cassidy v Minister of Health - C, due to negligence of one of employees
of the hospital, who administered treatment, lost use of his hand. Hospital liable, even if couldn't
determine exactly who caused it. Only applies to treatment, doesn't extend to outsourcing of sample
testing o Farraj v King Healthcare NHS Trust - C had a rare disease, samples taken to check if baby
would get it, sent to independent contractor for testing, who was negligent. Hospital not liable. Not
liable for contractor's negligent acts unless a) Authorised the commission of tort
Existence not completely certain!

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