Tuesday 31 October 2006

We began by looking at the rules on 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, and is most commonly seen in employer/employee relationships – although not exclusively so. Two ingredients are required:

(image placeholder)     A relationship between the parties to justify an imposition of liability
(image placeholder)     The tort committed must be ‘reflective of the relationship’, i.e. committed during the course of the employment.

WHO IS AN EMPLOYEE?
As opposed to an independent contractor. It is because of the difference in liability between the two that courts continue to experience difficulty. Where employment does not fall into a traditional pattern even the parties may not be aware of their employment relationship, e.g. casual workers.

CONTROL TEST: Yewens v Noakes [1880] – “An employee was anyone subject to the command of the master as to the manner he shall do the work.”

BUSINESS INTEGRATION/ORGANISATION TEST: Stevenson, Jordan and Harrison Ltd v McDonald and Evans [1952] – “An employee is one who does his work as an integral part of the business.”

Whittaker v Ministry of Pensions [1967] a trapeze artist was an employee.

MULTIPLE TEST: Ready Mixed Concrete (South East) Ltd v Minister of Pensions [1968] – look at all the circumstances of the case, rather than looking for one single factor. Judge McKenna said that there are three conditions for the existence of a contract of employment:

1. The employee agrees to provide work and skill in return for wage


2. The employee agrees expressly or impliedly to be subject of his employer’s control


3. Other terms of the contract are consistent with there being a contract of employment.

These three factors are not all the courts will look at. If the parties specify that a person will be self-employed and the terms of the contract reflect self-employed status, the contract is regarded as a contract for services.

Hall (Inspector of Taxes) v Lorimer [1994] – Lorimer was a freelance vision mixer, working under short term contracts for twenty television companies. All of the contracts were for one to ten days. He worked in their studios and 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, and 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 to decide that he was 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.

LENDING AN EMPLOYEE. 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?: Mersey Docks and Harbour Board v Coggins and Griffiths (Liverpool) Ltd [1947] – 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?

Viasystems (Tyneside) v Thermal Transfer [2005] the first defendants were contracted to install air conditioning in the claimant’s factory. They contracted out some of the work to the second defendants (Darwell), who contracted with the third defendants (CAT) to provide the labour. CAT provided a fitter and a fitter’s mate, who worked under the general supervision of a senior fitter contracted to Darwell directly. A flood occurred through the negligence of the fitter’s mate, and the question was whether Darwell and/or CAT were vicariously liable. After a careful examination of the authorities (including the textbooks and several foreign decisions), May LJ said there was no reason in principle why both employers of a “loaned employee” should not be vicariously liable, if both had some measure of control over his activities: such was the case here. Rix LJ agreed, and said that in such cases the relevant employers (who might be liable without fault on their part) would automatically bear equal liability

The Court of Appeal has confirmed that a company can be vicariously liable for the acts of another company’s employee if it exercises sufficient control over the employee: Hawley v Luminar Leisure Limited and Others [2006].

X was employed as a door steward by a security company (ASE) which provided security services to Luminar at one its nightclubs.  The claimant was a member of the public and was assaulted by X outside the nightclub where X was working.  The claimant issued proceedings, alleging that Luminar and ASE were each vicariously liable for the negligent acts of X. The High Court found that Luminar was vicariously liable for the conduct of X and was liable to the claimant for the injuries caused.  Luminar appealed.

The Court of Appeal considered that although ASE employed, paid and had the power to dismiss X, Luminar acted as if it was the employer and exercised many of the powers of the general employer.  Luminar’s manager was in overall charge of security and Luminar exercised detailed control not only over what X did but also over how he did it.  X took his orders from Luminar’s manager and was subject to Luminar’s standards of service and code of conduct.

The Court of Appeal was quite satisfied that it had been open to the judge on the facts to find that Luminar had become X’s temporary deemed employer for the purposes of vicarious liability and was consequently liable to the claimant.

The Court of Appeal was also asked to make a finding that Luminar and ASE were both vicariously liable for X’s acts, following the Court of Appeal’s decision in Viasystems  v Thermal Transfer (above) that it is possible for two employers to be vicariously liable for the negligent act of an employee.  The Court of Appeal declined to make a finding of dual vicarious liability on the basis that the facts in this case were different from the Viasystems case.  In Viasystems both employers had men supervising the negligent employee.  In this case, ASE had no immediate or effective control over X.

IN THE COURSE OF HIS EMPLOYMENT.

Having established an employer/employee relationship we now have to decide whether the employee is acting in the course of the employment.

This has proved to be a very controversial area, with many cases. Each is a question of fact. The courts have often used a test suggested by Salmond. An act is in the course of employment if it is either:

• A wrongful act authorised by the employer, or


• A wrong and unauthorised mode of doing some act authorised by the employer.

What happens if an employee is told not to do an act, and then commits a tort? Is the employer responsible?

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 and several passengers were injured. 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 a lot of cases involving giving lifts to people.

Conway v George Wimpey and 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’ and is injured due to the driver’s negligence. There is no vicarious liability, the act was unauthorised.

COMPARE

Rose v Plenty [1976] – the defendant expressly prohibited employees from permitting boys to ride on milk floats. The employee does so, and due to his negligence the boy is injured. The dairy are vicariously liable!

There is no real answer for this, except that in Conway there was no benefit to the employer whereas in Rose the claimant was helping with the milk deliveries.
DETOURS
A deviation from the authorised route is made, and an accident occurred. Still within the course of employment? Or on a frolic of their own?

Whitman v Pearson [1868] – an employee goes home for lunch with his horse and 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.

COMPARE

Storey v Ashton [1869] – after the deliveries had finished for the day the driver went to visit his brother– in– law. This was a new and independent journey. It had nothing to do with his employment and, therefore, he was outside the course of his employment.

GOING TO OR FROM WORK?

Smith v Stages [1989] – provided the employee is being paid for it or he is provided with company transport, an employer will be vicariously liable unless an alternative agreement exists. The general rule is that it is not within the course of employment.

The fact that an employee is doing his job NEGLIGENTLY doesn’t take him outside the course of his employment: Century Insurance Co v Northern Ireland Road Transport Board [1942] – a petrol tanker driver is filling a tanks when he throws down a lighted match! There was a fire and an explosion.

Where an employee INTENTIONALLY (as opposed to NEGLIGENTLY) does an unlawful act the courts adopt a much more restrictive approach: 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.

CRIMINAL ACTS
A criminal act by an employee is likely to take the form of an assault or dishonesty.

Assaults: the courts are reluctant to find an employer vicariously liable.

Dishonesty: if the act was committed for the employee’s benefit will not take him outside the course of his employment.

The questions to ask are:

• What was the employee paid to do?, and


• What was he doing at the time of the offence?

Lloyd v Grace Smith and Co [1912] – 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.

Lister v Hesley Hall [2001] – a number of former pupils sued in respect of sexual abuse by the warden of a residential school. The House of Lords said there had been a close connection between the warden’s acts and his employment at the school, and it would not be unfair or unjust to hold the defendants vicariously liable.

As employers and employees are joint tortfeasors, a potential claimant will invariably choose to sue the employer and he has more money. The employer can sue the employee under s1(1) CIVIL LIABILITY (CONTRIBUTION) ACT 1978. This previously existed at common law in:

Lister v Romford Ice and Cold Storage [1957] – a father and 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 and then sued the son to recover from him as he was in breach of his duty. This right of action is called subrogation, and 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 and eating it. A gentlemen’s agreement now exists, and the insurers do not attempt to recover money from the employee.

INDEPENDENT CONTRACTORS
The basic rule is that an employer is not liable as he has no control over him.

Morgan v Incorporated Council of the Girls Friendly Society [1936] – the claimant fell down a lift shaft left open by an independent contractor. The employer was held not to be liable, so what should the claimant do? Sue the contractor.

SITUATIONS WHERE THE EMPLOYER WILL BE LIABLE

• He negligently selects an independent contractor


• He authorises the independent contractor to commit a tort


• There is a non-delegable duty which cannot be discharged by entrusting the work to independent contractors, for example:


• Where the statute imposes a duty on an employer, e.g. Health and Safety at Work Act 1974

TRESPASS TO LAND

Trespass to land is an unjustifiable interference with possession of land.

Like other forms of trespass the injury must be direct and the tort is actionable per se. It is no defence that the defendant had lost his way or believed the land to be his. Trespass can be distinguished from nuisance as the interference in trespass must be direct whereas the interference in nuisance may be indirect or consequential.

Trespass by wrongful entry
The commonest form of trespass; the slightest crossing of the boundary will suffice, for example putting a hand through a window.

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:

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.

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.

Trespass by remaining on land
A person commits trespass if he remains on land when his right of entry has ceased. A reasonable time must be granted to the licensee to remove himself and his property from the land. If the licence is contractual, for example to enter a cinema and watch the showing of a film, then it is irrevocable until the purpose for which it was granted and paid for is achieved, unless the licensee breaks the terms of the contract.

Trespass by placing objects on land
It is a trespass to place any chattel on the claimants land. Trespass is continuing so long as the offending article remains on the land. Successive actions will lie from day to day until the article is removed:
     
Holmes v Wilson [1839] – the defendants erected buttresses to support a sinking road, necessitating trespass onto the claimant’s land. The claimant sued & recovered damages, and the defendants failed to remove the buttresses so the claimant sued again!

Possession
Only the person in possession of the land can bring the action.  Possession includes entitlement to immediate and exclusive possession. A landlord cannot therefore sue for trespass (as the tenant is the person in possession). A lodger or boarder could not bring the action.
     
DEFENCES
Licence - entering with express or implied permission. Any member of the public has an implied licence to approach premises with a legitimate enquiry, even if that enquiry has nothing to do with the occupier’s business or interests. In this respect a police officer without a search warrant is in the same position as a member of the public. This defence exists unless the defendant has exceeded the terms of the licence or the claimant has legally revoked the licence. Certain notices (Keep Out) or clear words used by the occupier will indicate that the licence has been revoked.
Justification by law. Acts which would otherwise be trespass are not so when justification is provided by law. For example, the police have powers under THE POLICE AND CRIMINAL EVIDENCE ACT 1984 to enter premises and search them.
Necessity. It is a defence to show that it was necessary for the defendant to enter the claimants land. In Rigby v Chief Constable Of Northampton [1985] – it was held that necessity was a defence provided that there was no negligence on the part of the defendant in contributing to the state of necessity, thus the action for trespass failed. The defendants had fired CS gas into the claimants shop and burnt the shop out. The defence of necessity failed in the negligence action as the police had been negligent in not having any fire fighting equipment standing by at the particular time when they chose to use the CS gas. (See also 20.6).

REMEDIES
Re-entry and self-help. The person entitled to possession can enter or re-enter the premises. He must do so in a peaceful manner, otherwise he may commit a criminal offence under s6 CRIMINAL LAW ACT 1977 - use/threat of violence to secure entry.

Ejectment. A person who has been dispossessed may bring an action for ejectment where he can establish an immediate right to possession. The defendant need only assert his possession, leaving the claimant to show that his title is better than the defendant’s.

Mesne profits. An action lies for the damage which the claimant has suffered through being out of possession of land. This includes profits taken by the defendant during his occupation and damages for deterioration and the reasonable costs of getting possession.

Distress damage feasant. Where a chattel is unlawfully on the claimants land and has caused actual damage, then the claimant may retain the chattel until the damage has been paid for. A football kicked through a window may be retained until the damaged window is paid for.

Injunction. In cases of threatened trespass or where the trespass is of a continuing nature the claimant may seek an injunction. The claimant is prima facie entitled to an injunction, but will be refused where the interference is trivial.

Damages. If the trespass is trivial the damages will be nominal. If damage is done to the land, then the measure of damages is usually the diminution in value of the land. The cost of reinstatement, for example rebuilding, will sometimes be the correct measure, because there is less flexibility in the market in land and buildings than in second-hand chattels, such as cars. Exemplary damages have been awarded in an appropriate case.

What follows is the questions I handed out for discussion:

Kate is an office cleaner employed by Larry. She is asked to clean the flat of Larry’s friend, Mike, for a month. Larry and Mike agree that Kate’s wages are to be paid by Mike but national insurance contributions are to be paid by Larry. The cleaning equipment to be used by Kate is provided by Mike. Kate carelessly leaves a bar of soap on Mike’s bathroom floor and a visitor, Norma, steps on it and is injured.

Advise Norma.


Jane, a television producer, used her home in Birmingham as an office but worked all over the country for television companies. Jane provided her own car but all the equipment she needed was provided by the companies; she could use staff facilities when on their premises; they fixed the rate of pay; contracts lasted from a few days to three months. Whilst on a contract with CBB television, Jane threw a lighted cigarette end into a rubbish bin, causing the rubbish to ignite and to burn Kevin, a cameraman, who was standing nearby. The CBB had a strict “no smoking” policy.

Advise Kevin about any claims he may have in tort against Jane or the CBB.


Cozihome Ltd are building a number of houses on a site surrounded by fencing. Just outside the entrance to the site there is a site office on which there is a notice stating:

“Warning: Dangerous Site.  No liability for injuries accepted. All visitors must report to the site office before entering site.”

Diana visits the site to try to sell her interior designs to the architect responsible for the houses. She sees the notice but, instead of reporting to the office, she asks Edward, who is driving an excavator, to give her a lift to where the architect is working. Edward agrees but drives carelessly into a large hole which Cozihome have forgotten to fence off. Diana suffers head injuries which would have been avoided if she had been wearing a safety helmet. A statutory regulation provides that an employer ‘must ensure that all workers on a building site wear safety helmets’.  Edward’s contract with Cozihome states that he is a self-employed excavator driver and that he must not give anyone a lift on an excavator.

Advise Diana who wishes to sue Cozihome Ltd for her injuries.

Next week we will then look at trespass to the person.