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Tort Law Lecture 9

Trespass to the person
Vicarious Liability
Passing of
Defenses to negligence

Vicarious liability describes the responsibility that a superior person

(usually an employer) has for the acts of his subordinates. When and
how does an employee bind or reflect the level of liability of his
employer? It is a strict liability
3 conditions must be met to describe the culpability of the employer:
1) there must be a relationship between the employer and
employee a contract of service must exist, independent
contractors are often left out of this definition
2) There must be a tort committed by the employee
3) The tort must have been committed in the course of employment

Control Test Employee may bind his employer for any acts or
omissions of his in relation to tort if he is under the control of his
employer. In highly specialized workforces there are exceptions.

Course of employment has often been extended to include time

periods where the employer had knowledge about certain acts carried
out by the employee outside of normal working hours.

Export Credit Guarantee Department Case an employee

collaborated with Mr chong, who used sham companies to appear as if
he was exporting goods from the u.k. to those companies. He wanted
to take advantage of the relationship he had with the export
department so that he could receive payment from this department.
The export credit department placed the guarantee in the bank, the
transaction was a sham and the Export department withdrew the
guarantee. The bank sued the EXGD for vicarious liability. Although
the acts of the employee were within the course of his employment,
the court decided that it was impossible to impose liability on the
export department because the single acts of the employee could not
be held as tortious. The collaboration of the 2 individuals makes the act

Fergeson vs Dawson 1976 P was a labour worker, he fell of a

building that was under construction that was within the Ds
construction site. There was no guard rail on the roof, which made it
very dangerous for someone to be on there. Would the company be
held liable? The reality test was whether or not the individual was a
skilled or non-skilled labourer and whether or not he was under the
control of the manager on site. The more the individual is under the
control of a site manager or superior, the more we move towards the
liability of the employer.

Steveson Jordan vs Harrison 1972 the employee wanted to assign

copyright for material he made for public lectures. He gave these
lectures while he was under employment for someone else. Whatever
you do, under IP law, belongs to the employer. Lord Denning proposed
the integration test in this case in order to determine liability they
proposed to sever the contract. It was said that the material was not
made under a contract of services.

The integration test

The allocation of risk an independent contractor assumes the risk,

the question here to be asked is whether the person is acting on his or
her own behalf, or on behalf of somebody else.

Lending an employee to another employer in principle, the original

employee is liable.
Griffith case a company leased to another company a crane
operator. He was under the direct control of the new company. He was
negligent while performing the task and he injured another employee.
The D sued the initial employer. It was decided that, although he was
under the control of the new employer, because the tort was caused by
the negligent operation of the crane, the initial employer was liable.

Joint vicarious liability

Viasystems case (2005) Claimants engaged the first D to install an

air condition union. The first D outsourced to the second D the
contract for providing the docking work. One of the employees of the
second D caused damage to something, the owner of the factor sued
both companies for vicarious liability.

Walkman v pearson 1868 employees were allowed sometime to

have dinner, but they were forbidden to leave the carts unattended or
to go home. One of the employees left the cart unattended while
under employ. He was held that he was violating his duties (which was
not to leave the cart unattended) and he was held liable because he
broke the rules of his employment. Employer was also liable

Story v ashton employees were instructed to deliver something, on

the return journey they decided to deviate and go in a diferent
direction to see some relatives. There was an accident and the
passenger was injured, the injured passenger could not sue the
company because the actions taken were outside of the scope of

An employee driving to and from work will not be considered in the

course of employment.

Smith v stages 1989 case discusses about an employer sending an

employee to do an urgent job somewhere. There were travelling
expenses being paid, the employees finished the work early and came
home early. They crashed the car on the way home, employers were
still held liable.
Rose v Plenty 1976 an act, which is done to further the interest of
the employer, is usually grounds for vicarious liability. In this case, the
driver of a milk card employed a boy (age 13) to help him during his
milk rounds. The employer instructed him not to do so. The court held
that the driver was still in the employment of the employer, since by
employing the boy, he was furthering the interests of the employer.

Connoway v Judge and co limo driver gave a lift to a person that was
outside the scope of his employee responsibilities for the day. The
employer equipped his property with so many warning signs and
exclusionary statements about this that it impossible to impose
vicarious liability.

Century Insurance case employee was paid to deliver petrol, he had

a cigarette in his mouth. The boss was held liable because it was
within the line of employment.

Where deliberate assaults are involved, the courts usually wont impose
vicarious liable for assaults.

Lloyd v graysmith & co Fraudulent papers, transferring the property

to the employee. The employer had the actual authority to conduct
such transactions so he was held liable.

Listen v hasleyhall school full of boys, one of the elders of the school
molested many of the kids. The school was held vicariously liable.
very important case (the bouncer case was based of of this)

Bernard v attorney general of Jamaica policeman told a guy who was

in a phonebooth to get out, he wouldnt. The man was shot in the
head, when he woke up the police officer put him under arrest for
assaulting a police officer. They found the police officer not liable and
found the police department not liable as well. The Privy Council (court
of appeal) said that the police officer was carrying a gun (although he
was working in plain clothes) and he represented the police station at
the time and the police station was held liable.

Minister of Police v Rabie police officer was in pursuit of a private

vendetta, he did something while still under employment, held liable

Employers liability for independent contractors only when the risk is

too high for a normal occupation.