Vicarious Liability - Assignment Example

There are several possible tortuous claims against Whacky Builders Ltd. The possible plaintiffs are Joe, Sonia, Big plc, Baljit and her husband and Mick. Whacky Builders Ltd. is liable for the negligence of their workmen on each occasion under the principles of vicarious liability. Each claim will rely on the substantiation of a duty of care on the part of the relevant workmen and a breach of that duty in respect of each of the complainants. Vicarious Liability Each of the claimants will have to establish that Whacky Builders Ltd. is vicariously liable for the negligence of its employees if they hope to be compensated by the company. In any case, they can sue the individual workmen in their personal capacity or jointly with Whacky Builders Ltd. Typically, employers are liable for the negligent conduct of employees and the consequences stemming from that conduct. First and foremost, the conduct complained of must take place in course of the employment. An early development at common law resulted in the ‘control test’ which is a means by which employee/employer relationships are defined. The ‘control test’ was introduced in Yewens v Noakes where it was held that an employee was a person who is under the directions and command of another. The person exercising command is the employer. (Yewens v Noakes (1880) 6 QBD 530.) Further developments at common law require that the duties a person performs under the command of another form an integral part of the work or business. If those duties are only incidental to the business then that person may not be an employee. This is what has become known as the ‘integral test.’ (Stevenson, Jordan and Harrison v M&E (1952) 1 TLR 101) Another test at common law for determination of an employee/employer relationship is the ‘multiple test’ determination of employee status. This test requires compensation for the work performed. It also requires the successful application of the ‘control test’. The terms and conditions of the contract must differ from a contract of service. (Ready Mix Concrete (South East) Ltd v Minister of Pensions (1968) 2 QB 497) On the facts of the case for discussion each of the workmen can be said to be employees of Whacky Builders Ltd. Having established the employee/employer relationship it is necessary to determine whether or not each of the workmen were acting in the course of his employment or were off on a frolic of his own. If any of the workmen were off on a frolic of his or her own, Whacky Builders Ltd. will not be vicariously liable. The law requires that the employee is conducting affairs not related to the terms of his employment in order for it to qualify as a frolic of his own. For example, an employee driver was held to be ‘off on a frolic of his own’ when he left his assigned route to run an errand for his brother-in-law. Personal errands for family members were outside the scope and range of his job description. (Storey v. Ashton (1869) LR 4 QB 476) If performing his work, the employee does or permits an act which is strictly prohibited by the terms of his employee, he is still said to be acting in the course of his employment and not off on a frolic of his own. In one case a milkman, while making deliveries permitted some children to ride on his milk truck. His employers were found to be liable for the injuries sustained by the children while riding on the back of the milk truck. The court’s rationale was that in permitting children to ride on the milk truck, the milk man’s conduct related to the manner in which the milk man carried out his authorized duties. (Rose v Plenty (1976) 1 WLR 141) On both occasions, it is obvious that the workmen were not off on frolics of their own. They were conducting tasks that formed an integral part of Whacky Builders Ltd.’s business. Therefore Whacky Builders Ltd. is vicariously liable for the negligence of its workmen and the resulting injuries and damages. The Duty of Care In order for each of the parties to succeed in a claim against Whacky Builders Ltd. they will have to prove that each of the workmen involved owed the claimants a duty of care. The landmark case Donoghue v Stevenson sets out the standard for determining who owes a duty of care and to whom. The accepted test set forth by Lord Atkin requires that each person take all necessary steps to prevent injury to his or her neighbor. ‘Who then in law is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called to question’. (Donoghue v Stevenson (1932) AC 562) The neighbour principle was further developed in Caparo Industries v Dickman. It was held that for a duty of care to exist there must be sufficient proximity of relationship between the parties. Be that as it may, the resulting harm cannot be remote and must have been foreseeable. Moreover, in order to impose a duty of care it must be fair, just and equitable to do so in the circumstances. (Caparo Industries v Dickman (1989) 2 WLR 316) Lord Diplock addressed the matter of fairness when he said that ‘the choice is exercised by making a policy decision whether or not a duty of care ought to exist.’ (Dorset Yacht Co. Ltd v Home Office (1970) AC 1004) In this case a successful claim was made against the Home Office in respect of Prison Officers when juvenile delinquents in their custody caused damage to boats in a neighbouring harbour. It was held that the Home Officer via its Prison Officers did in fact owe a duty of care to the boat owners. With reference to the established principles for the imposition of a duty of care it is reasonable to assume that Whacky Builders Ltd. via the crane operator, ought to have had passing pedestrians in its contemplation when navigating the crane or conducting other construction work near the street. As such, Whacky Builders Ltd. owed a duty of care to both Joe and Baljit. The same principle will apply to the road digging incident where a main power cable was cut by mistake. Whacky Builders Ltd. through its servants and agents ought to have known that if a power cable was cut during the digging operation persons in the surrounding area would lose electricity and could as a result suffer some measure of damages. Therefore Big Plc should have been in the contemplation of Whacky Builders Ltd. at the relevant time. Sonia who attended school near the new factory under construction was also someone who should have been within the contemplation of Whacky Builders Ltd. It was reasonably foreseeable that should the school lose electricity, it would let out early and children would likely be in the area. Breach of Duty/Negligence The ‘reasonable man’ test is the standard required for each of the possible plaintiffs to substantiate a claim against Whacky Builders Ltd in negligence or for a breach of duty. The court will have to be satisfied the defendant’s conduct or omission that of the reasonable man? (Winfield and Jolowicz on Tort 2006) In an early case Alderson J who said; ‘Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.’(Blyth v Birmingham Waterworks Co (1856) 11 Ex 781) Overt carelessness or recklessness is not necessary to found a claim for negligence. Even accidental mishaps can amount to negligence or a breach of duty. In one case a learner driver was driving carefully, but accidentally ran into a lamp post was found to be negligent. The court found that ‘the learner driver may be doing his best, but his incompetent best is not good enough. He must drive in as good a manner as a driver of skill, experience, and care.’ (Nettleship v Weston (1971) 2 QB 691) In Roberts v Ramsbottom, a motorist sustained a brain haemorrhage while driving and caused an accident. It was held that the brain haemorrhage could not be aligned with automatism. The ‘reasonable man’ test was applied. (Roberts v Ramsbottom (1980) 1 WLR 823) By the application of the ‘reasonable man’ test in both Roberts v Ramsbottom and Nettleship v Wettson, Whacky Builders will not be able to escape liability in each of the claims. It is likely that a stricter standard of care will apply to Whacky Builders Ltd. Instances where a person is purportedly possessed of special skills by virtue of his vocation the standard of care is that the reasonable member of that vocation. (Wells v Cooper (1958) 2 ALL ER 527) Whacky Builders Ltd. will be taken to be skilled builders by trade and vocation and will be held to the standard of care applicable to that trade. Causation and Remoteness Causation and remoteness are relevant to the duty of care and the breach of that duty. Each of the plaintiffs are required to prove that the negligence or breach of duty by the builders’ workmen caused the accident and the consequential. This will be accomplished by establishing that the accident and resulting damages were reasonably foreseeable in all the circumstances. In both The Wagon Mound (no.1) and The Wagon Mound (no.2) provide useful guidelines on the question of remoteness and causation. In The Wagon Mound (no.1) the defendant was conducting some welding repairs to a ship in Sydney Harbour in an effort to arrest an oil spillage. During the welding repairs a plank fell, setting off sparks and a fire spread. It was held in a law suit by the wharf owner that while it was reasonably foreseeable that escaping oil might damage the wharf, damage by fire was not reasonably foreseeable. The defendant was therefore not liable for the damages sustained as a result of the fire.(Overseas Tankship (UK) LTD v Marts Dock & Engineering Co LTD (The Wagon Mound No 1) (1961) AC 388.) A suit was initiated by a ship owner whose ships sustained damages as a result of the fire in The Wagon Mound (no.2) The House of Lords held that the cost of avoiding or diminishing the risk of fire was relatively minimal because the defendant only had to \ stop the oil spillage. As a result the defendant was liable. Viscount Simmons went on to say that ‘a man must be responsible for the probable consequences of his act…not because they are natural or probable but because …it is judged by the standard of a reasonable man that he ought to have foreseen them. …if some limitation must be imposed …why should that test [reasonable foreseeability] be rejected, since the wrongdoer is judged by what the reasonable man ought to foresee and a test [of direct consequence] be substituted which leads to nowhere but to the never ending and insoluble problems of causation. …the essential factor in determining liability is whether the damage is of such a kind as the reasonable man should have foreseen it.’ (The Wagon Mound (No 2) (1967) 1 AC 617.) Whether or not the accident or damages are reasonably foreseeable will depend on the application of three questions. 1. Could it be reasonable foreseen that the plaintiff would be involved so that a duty of care is imposed? 2. Were the damages reasonably foreseeable? 3. Was the accident itself reasonably foreseeable? (Street 2003) Following the ruling Jolley v Sutton London Borough Council in Sonia will have a fairly simple task substantiating her claim against Whacky Builders Ltd. In this case a pair of boys entered property owned by the Sutton London Borough Council and commenced repairs to an abandoned boat. Using a jack to start the repairs, the boat fell and the boys sustained injuries. The Council was found liable for the damages on the grounds that since children were bound to get up to some sort of mischief the Council ought to have foreseen some kind of accident. Lord Hoffman went on to say that when examining the relevant risk the courts would develop and follow a ‘broad description.’ (Jolley v Sutton London Borough Council (2000) 1 WLR 1082) Pure Economic Loss Big Plc will have a difficult time recovering damages from Whacky Builders Ltd. since its loss is purely financial. This does not necessarily negate the finding that there was a duty of care and breach of that duty. Previously, at common law, a plaintiff could not recover damages for pure economic loss unless there was a direct relationship between the defendant and the plaintiff. (Junior Brooks v Veitchi Co.). However, in a recent case that special relationship was broadened to possibly include the nexus between Whacky Builders and Big Plc. In Transco plc v United Utilities Water plc [2005] All ER (D) 281 the plaintiff supplied gas lines through out the United Kingdom while the defendant similarly provided water. One of the defendant’s workers accidentally shut off a gas valve while accessing water pipes. As a result the plaintiff conducted an investigation into the cause of the interruption in its gas supplies and compensated customers for certain losses. It was held that two utility companies providing similar services in close proximity to one another should be aware of that their acts and omissions could impact one another. Therefore a special relationship existed to give rise to a duty of care not to cause financial loss to each other.( Transco plc v United Utilities Water plc [2005] All ER (D) 281) This case is unlikely to assist Big Plc since the facts can be distinguished. Big was not a similar business as Whacky Builders. Moreover, there was no special relationship between them. The financial loss suffered was not an actual loss or expenditure. Contributory Negligence The ‘but for’ test will apply in Baljit’s case. In short, although the doctor was negligent in his assessment of Baljit’s head injury, she would not have sustained the injury that caused her death ‘but for’ the brick which originated out of the negligence of Whacky Builder’s employees. In Barnett v Kensington hospital management committee (1969) 1 QB 428 a doctor misdiagnosed a patient’s arsenic poisoning referring him to a general practitioner for his condition. The patient later died. Neil j held that ‘…even if the defendant is shown to be careless, as was the case there, the liability will only ensue if there is a causal link between the carelessness and the damage’.( Barnett v Kensington hospital management committee (1969) 1 QB 428) The doctor’s carelessness in Baljit’s case did not amount to novus actus interveniens. In other words it did not break the chain of causation. However the doctor and the hospital might share responsibility for Baljit’s husband’s loss. However, if Baljit would have died from her head injuries in any event, Whacky Builder’s will be fully responsible for the damages. In Froom v Butcher (1975) 3 ALL ER 520 Lord Denning made a similar observation where the defendant driver caused an accident by the injuries sustained were inflated by the victims’ failure to wear seat belts. Lord Dinning had this to say:- ‘The accident is caused by the bad driving. The damage is caused in part by the bad driving of the defendant, and in part by the failure of the plaintiff to wear the seat belt’.( Froom v Butcher (1975) 3 ALL ER 520) The damages were reduced because the ‘but for’ test applied and the said damages would not have been so great had it not been for the claimants’ own contributory negligence. Bibliography Barnett v Kensington hospital management committee (1969) 1 QB 428 Blyth v Birmingham Waterworks Co (1856) 11 Ex 781 Caparo Industries v Dickman (1989) 2 WLR 316 Donoghue v Stevenson (1932) AC 562 Dorset Yacht Co. Ltd v Home Office (1970) AC 1004 Froom v Butcher (1975) 3 ALL ER 520 Jolley v Sutton London Borough Council (2000) 1 WLR 1082. Nettleship v Weston (1971) 2 QB 691 Overseas Tankship (UK) LTD v Marts Dock & Engineering Co LTD (The Wagon Mound No 1) (1961) AC 388. Ready Mix Concrete (South East) Ltd v Minister of Pensions (1968) 2 QB 497 Roberts v Ramsbottom (1980) 1 WLR 823 Rose v Plenty (1976) 1 WLR 141 Stevenson, Jordan and Harrison v M&E (1952) 1 TLR 101 Storey v. Ashton (1869) LR 4 QB 476 Street, Harry. Street on Torts (2003) Sweet and Maxwell The Wagon Mound (No 2) (1967) 1 AC 617 Transco plc v United Utilities Water plc [2005] All ER (D) 281 Wells v Cooper (1958) 2 ALL ER 527 Winfield and Jolowicz on Tort 2006 Yewens v Noakes (1880) 6 QBD 530 Read More