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23 Cards in this Set
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Market Investigations Ltd v Social Security Minister [1969] 2 QB 173 |
Facts: worker conducting market research interviews. D specified the questions she had to asked and told worker what order to ask questions in and gave instructions how to follow up answers in a particular way to obtain more information. Worker was told she had to complete the survey within a set time BUT within this time how she chose to do survey was up to her. She could also work for other organisations. She seems freelance/tightly controlled and Short term contracts Held: degree of control about questioning showed she was an employer and so on facts employer had to pay NI contributions Contract is wen A agrees in consideration of some remuneration that he will provide his work and skill in the performance of some service to B. Extent and degree of work and control is not decisive Held: question- is the person committing the tort performing the services as a person in business on his/her own account? If no then he is not an employee but an independent contractor Factors have to be weighed up against each other- overall assessment.
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Lee Ting Sang v Chung Chi-Keung [1990] 2 AC 374
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Stonemason is short term jobs paid on daily rate/by the job Control is only one of the factor the courts look when determining whether the employer-employee relationship existed. Held: he did not employ helpers or provide equipment so employee and work provider could be vicarious liable. He was an employee as he provided no equipment, did not hire helpers, no responsibility for the management of the job and did not price the job, he turned up for work and was told what to do. He was a skilled worker.
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Hall (Inspector of Taxes) v Lorimer [1994] 1 All ER 250 |
Vision mixer in TV industry- freelance He worked for 800 days over a 5yr period for a company. Did not hire any equipment. Worked for Tv companies using their equipment BUT if the TV companies customer did not pay it the TV company would not pay the vision mixer, he ran the risk of bad debts, if he worked on a programme and the customer did not pay for the programme he would lose money. Held: This was the crucial factor which showed he was an independent contractor and not an employee. He held risk of bad debts and outstanding invoices so was not a employee
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Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd [2006] QB 510 |
(b) Dual vicarious liability- lending and borrowing workers who is liable?
Possible or liability to move from lender company to borrower company OR dual liability
Facts: Viasystems have factory and want some air conditioning installed. The head contractor employs a thermal transfer who subcontract installing the ducting work to another company (2nd D) . Thermal transfer then contracts with a 3rd D to supply workers to supply fitters and other specialist workers. A specialist worker employed by 3rd D who was carrying out work under supervision by 2nd D and 3rd D needed a tool and went to retrieve it. On way back he decided to crawl through the ducting work and surprise his employee. The ducting work was broken and a flood was caused. Issue: who is liable? Those who set in motion and profit from the activities of their employees should compensate those who are injured by such activities even when performed negligently. Issue: what if an employee of one employer is hired to someone else? Which employer is liable? Could both employers be VL? Held: CA 3 points 1) In situation where borrowing organisation incurs VL you do not need to show worker has become the employee of the borrowing organisation. VL can simply be transferred as a way of ensuring the right person is made liable. 2) How do you know when VL shifts from lending to borrower. Judges differed May para 18- a central question was the extent to which the work was subject to orders by lending entity. Degree of control exercised. Rix- control should not be prominent para 79- look at whether employee is so much a part of the work business/organisation of borrower that is appropriate to impose VL. Broader approach should be taken and not one focused on control. 3) It is possible to have dual VL. Both lender and borrower. May: if joint control by both borrower and lender Rix: if worker was an integral part of both the borrower’s and lender’ business On facts- they both agreed on joint VL. There was equal supervision. If both employers were not at fault 50/50 division
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Century Insurance v N.Ireland Transport Board |
4. Course of employment: Delivery driver threw a lighted match on the floor to light his cigarette. Act was done for his own comfort and convenience and not employer’s benefit but this was not fatal to the finding that the act was in the course of employment.
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Kay v ITW |
He was trying to get his fork lift not a warehouse but it was blocked by a lorry. He attempted to move lorry even though he had no right to do so and injured P. This was in the course of his employment because he was trying to return fork lift into warehouse which was within scope of his employment duties
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Smith v stages |
Employees use of vehicles on unauthorised journeys Unauthorised detour
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Rose v Plenty [1976] 1 WLR 141 |
Traditional ‘unauthorised mode’ test
Line between employer doing job badly (VL) AND employee is not really doing his job at all outside scope of employment
Facts: 13 yr old child employed by milkman to deliver mil to can this was contrary to employers instructions. Milkman were given strict instructions not to do this. Whilst delivery was taking place he caused injury. CA: VL employer was liable even though he expressly prohibited the workers from hiring child employers. The milkman was still performing the basic task of distributing milk when accident took place. Denning: example if Milkman decided to give lift to hitchhiker- this would be outside employers course of business and scope of employment. Lawton dissenting. Held: was the act done within scope of employment? where employee acts contrary to an express prohibition by employer question of whether it is course of employment depends on construction of prohibition.
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Twine v Bean’s Express |
Employee was prohibited from allowing anyone to travel with him in employers van. He gave a lift to T who was killed. Employer was not liable as even though driving van in course of employment giving a lift to another was clearly outside of it.
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Conway v George Wimpey |
Express provision not to allow any other than employees in the vehicle. BUT common practise others would be given lifts but employer did not know of this practise. CA aid employer not liable.
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Bazley v Curry [1999] 2 SCR 534 |
Emergence of close connection test Departure from unauthorised mode test in sexual abuse cases
Canada case Was charity VL for employer’s sexual abuse SC: yes, even though what employee had done was an authorised mode of performing work. It was not what he was employed to do. He was employed to protect and look after children. BUT court set out 2 policy reasons which underlay VL and justified its application to the facts. 1) Fair Compensation- employers take Financial benefits and should also take burdens 2) Deterrents - if they only imposed a standard of reasonable care on the employer this would not provide an adequate incentive to take adequate steps in terms of training etc. Deliberately went beyond previous situations where VL could be employed- because of policy issues which Courts would look to loss distribution, deterrence, if tort furthered aims of employers enterprise, amount of power, level of vulnerability of victims
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Lister v Hesley Hall Ltd [2002] 1 AC 215 |
Ds ran a boarding school for troubled teenage boys who employed warden who sexual abused. Issue: where owners of school liable for such torts? Yes: rejected the unauthorised mode of performance test. The new test is: was there a significantly close connection between the tort and employment to make it reasonable to impose VL on the employer? But what connection is sufficiently close? Steyn [28] need for employment and tort to be inextricably interwoven. Clyde [43-45] take broad approach and identified some factors which indicate a sufficiently close connection. a) Fact that Tort committed on Ds premise on working hours does not show sufficient connection b) Acts of passion, resentment and personal spite often fall outside scope of VL c) Mere opportunity of being able to commit tort is not sufficient. If abuse was committed by gardener or grounds man no VL. More about if employee has abused their situation
The worker did exactly the opposite of what they were employed to do and this gave rise to VL. Liability is imposed precisely where duty was to safeguard children concerned. Hobhouse- suggested a better way to analyse situation was in non delegable duties.
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Maga v Trustees of the Birmingham Archdiocese of the Roman Catholic Church [2010] EWCA Civ 256. |
D was liable for sexual abuse of the claimants by one of its priests. RC priest was not involved in anyway with boys or their family in terms of his pastoral care duties boy was not catholic and did not go to church. Priest had responsibility for youth club in the area and boy attended this. Issue: is Catholic Church VL for priests act of sexual abuse? CA: Yes, para 45 Priests are in their role as a priest all the time, special role of trust and responsibility, never off duty. So scope of VL is wide in this context Pastoral duties of the priest which included youth work in community was sufficient for him to be considered equivalent to parent of carer for those who attended these events. Duty found to a non catholic.
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Gravell v Carroll |
rugby club liable for employees player punch to another player. Basis of liability was close connection and fact rugby club would be prompted to act and prevent risk of foul play, the club was better placed to provide an adequate remedy
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Mattis v Pollock [2003] 1 WLR 2158 |
Violence Facts: bouncer enforced ban against Cs ban. Other club patrons attack the bouncer the bouncer flees from the nightclub. Doorman (employee) stabbed C. Issue: was employer VL for the bouncer’s act? Held: CA used the close connection test- they were careful to say Lister transformed what the law was and no use looking at earlier cases unless expressly approved by the house of lords. This indictares we have tor ride of unauthorised test BUT the unauthorised test came back. YES, employers had encouraged bouncer to act in a aggressive and intimidating way, Employee was authorised to use some violence to maintain order and his conduct was sufficiently connected with exercise of his authority despite fact it was for personal vengeance. In these situations where violence/aggressive behaviour is encouraged by employer this wills strongly influence court that acts are within scope of employment. Acknowledged that Lister Case had dramatically changed the law Therefore, it was not worth considering earlier cases which denied VL unless they were expressly approved by HL in Lister case.
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N v CC of Merseyside |
D police authority was not VL for sexual assaults of a probationary constable even though he was wearing full uniform and abused his position to carry out these assaults. The acts did not bear a close connection to his employment and he was pursuing his own misguided aims.
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Weddall v Barchester Healthcare Limited; |
Facts: Manager of care home, short of a staff member, Weddal telephoned D who was an employee of the care home and asked he was prepared to work an extra shift. D refused the offer. D then jumped on his bicycle, went to care home and beat up the manager, Issue: Is Ds act within scope of employment? CA: Tort did not generate VL. Significant lapse of time and attack was fuelled by employees underlying resentment.
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Wallbank v Wallbank Fox Designs Ltd [2012] EWCA Civ 25. |
Claimant was MD of a small company, he instructed an employee of a design company, who pushed him. He sued company in VL for workers battery CA: production line case generated VL. Immediate spontaneous response, so close to original provocation it was part of course of employment.
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Graham vs Commercial Body Works Limited 2015 EWCA |
C had a friend in the workshop. Friend sprinkled flammable liquid onto Cs clothes and C was badly burnt. Issue: was this within course of employment to give rise to VL? Held: fell outside course of employment CA- the unauthorised mode test came back. reintroduced idea of unauthorised mode of carrying out the work- this test applies when not a sexual abuse case. Close connection could be used in situations twhere there is the exercise of force as part of the work and inevitable friction between employees So acknowledged that the sexual abuse case develop the law which is not to generally applicable across all types of employment
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Market Investigations Ltd v Social Security Minister [1969] 2 QB 173 |
Facts: worker conducting market research interviews. D specified the questions she had to asked and told worker what order to ask questions in and gave instructions how to follow up answers in a particular way to obtain more information. Worker was told she had to complete the survey within a set time BUT within this time how she chose to do survey was up to her. She could also work for other organisations. She seems freelance/tightly controlled and Short term contracts Held: degree of control about questioning showed she was an employer and so on facts employer had to pay NI contributions Contract is wen A agrees in consideration of some remuneration that he will provide his work and skill in the performance of some service to B. Extent and degree of work and control is not decisive Held: question- is the person committing the tort performing the services as a person in business on his/her own account? If no then he is not an employee but an independent contractor Factors have to be weighed up against each other- overall assessment.
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Lee Ting Sang v Chung Chi-Keung [1990] 2 AC 374 |
Stonemason is short term jobs paid on daily rate/by the job Control is only one of the factor the courts look when determining whether the employer-employee relationship existed. Held: he did not employ helpers or provide equipment so employee and work provider could be vicarious liable. He was an employee as he provided no equipment, did not hire helpers, no responsibility for the management of the job and did not price the job, he turned up for work and was told what to do. He was a skilled worker.
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Majrowski v Guy’s and St Thomas’ NHS Trust [2007] 1 AC 224
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Harassment
Under protection for harassment act an employer can be VL for act of harassment of their employees.ssment act an employer can be VL for act of harassment of their employees. |
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Various Claimants v Catholic Child Welfare Society [2012] UKSC 56, [2012] 3 WLR 1319. |
3. Relationship akin to employment
Facts: sexual abuse committed by teachers at residential and special schools. Teachers were employed by schools management company, who admitted VL, there was employment between them and the teachers. BUT case pursued that not only was management liable BUT also the Brothers of the Christian Schools were liable. The brothers were a roman catholic organisation where all members were not priests (not ordained) its mission was education of children. To be a part of the brothers had to be a man, take a life long vow of poverty and obedience to superiors and superiors told where to teach, profit was donated back to organisation Issue: Could unincorporated organisation Brother of Christian schools be liable even if not employment? SC: yes relationship between Christian brothers and its members was akin to a contract. Policy underlying CL is to ensure, as far as it is F, J, R that liability for a tortious wrong is borne by a D with the means to compensate the victim because the employee is acting for his benefit. Religious orders or their representative were capable of being liable for sexual abuse carried out by priests against claimants even though the priests were not employers. Relationship was akin to employment this is a question of fact SC Phillips [47] I. Is D paying worker? II. Is employee part of business activity? III. Are they acting on employer’s behalf IV. Have they created the risk?- setting up institution where vulnerable children would be looked after created risk of systemic child abuse V. Has employer control over employee? SC tailored the legal doctrine to provide a remedy. not clear how far future courts could or might extend the idea of a relationship ‘akin to employment’ if not a sexual abuse situation. TWE will these adaptations govern other cases?
1) institute conducted it activities as if it were a corporate body 2) The teaching activities of the members of the institute were undertaken because the institute directed them 3) Teaching activities furthered the institutes mission 4) Manner in which brothers taught have to be conducted in a manner dictated by the institute The bond between the institute and the brothers was a vow not a contract and they were not paid was immaterial.
Rix LJ in Viasystems was correct on dual VL. Focus on extent to which the borrowed worker has become part of the business of the borrower.
Test for ‘course of employment’ One factor to look at is whether employers business has significantly enhanced risk that victim would suffer abuse? Where Ds business creates an environment in which children or vulnerable people can be abused and have little recourse that this will also be significant. |
