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Tort Law: Vicarious liability and non-delegable duty (Vicarious liability …
Tort Law: Vicarious liability and non-delegable duty
Vicarious liability
e.g. indirect liability due to employee's breach of duty
strict liability tort
(2) tort committed within scope of employment
Whether wrongful act is intentional or inadvertent/non-intentional
e.g. disobeys employer's instructions, fraud, trespass/battery, sexual abuse, etc.
(
Lister, Skandinaviska
)
Even if act is expressly forbidden
e.g. employee cooked lunch (which was authorised) in the land (which was expressly forbidden by employer) and fire spread to neighbour's land
HELD: vicariously liable
(
Bugge v Brown
)
whether the wrongful act is
sufficiently related
to conduct authorized by the employer to justify the imposition of vicarious liability. Vicarious liability is generally appropriate where there is a
significant connection
between the creation or enhancement of a
risk
and the wrong that accrues therefrom,
even if unrelated to the employer’s desires
(
Lister v Hesley Hall
)
"Close connection" test
(
Skandinaviska
,
Bazley
,
Lister
):
whether wrongful conduct was so “closely connected” with what the employee was authorized to do that it must “fairly and properly be regarded” as done by the employee while acting in the ordinary course of employment (
Lister
, a reformulation of the Salmon test)
referred to
foreseeability
and that test is closely connected with Spandeck test;
Bazley factors
whether “there is a
significant connection
between the
creation or enhancement of a risk
and the wrong that accrues
therefrom, even if unrelated to the employer’s
desires
”
5 factors approach
creation of opportunity,
extent to which wrongful act furthered employer's aims,
extent to which wrongful act was related to friction, confrontation or intimacy inherent in employer's enterprise,
extent of power given over victim,
vulnerability of potential victims
(
Bazley v Curry
)
Policy considerations
can examine policy considerations e.g. compensation and deterrence; different policy considerations for different circumstances/parties, no policy reason is determinative
(
Skandinaviska v Asia Pacific Breweries
)
Creation and enhancement of risk
(
Catholic Child Welfare Society v Various Claimants & Institute of the Brothers of the Christian Schools
)
Fraud and businesses
applied "close connection" test
partner in law firm assisted in fraud
fair and just that where business enterprise involves risk to others, risks ripen into loss, business should be responsible
but no presumption, still have to establish that (1) there is a relationship (2) committed tort (3) tort is so closely connected
(
Dubai Aluminium
)
Mere opportunity
provided by employer for employee to commit the tort insufficient
(
Lister v Hesley Hall
)
Risk, compensation, and deterrence
Vicarious liability is based on the rationale that the person who puts a
risky
enterprise into the community may fairly be held responsible when those risks emerge and cause loss or injury to members of the public. Effective
compensation
is a goal.
Deterrence
is also a consideration. The hope is that holding the employer or principal liable will encourage such persons to take steps to reduce the risk of harm in the future
2 stage test: (1) examine precedents (2) if none, then broader policy rationales behind strict liability
(
John Doe v Bennett
)
Compensation
access to deep pockets for
compensation
(
John Doe v Bennett
[2004] compensation as corollary aim of doctrine)
Skandinaviska
: precondition that the victim must be not/less morally culpable than the tortfeasor or plaintiff (employer)
Deterrence
Bazley v Curry
[1999]: prevention of future harm through better administration and supervision of employees
Reedie v The London & North Western Railway Co
(1849) employers have control over employees and tasks)
BUT recognition of "uncontrollable" torts e.g. intentional torts; and that sometimes victim/3P is best placed to take preventive measures
Skandinaviska
)
Caution against policy approach
cautioned against open policy based approach (in case of inconsistent common law development) though policy considerations inherent in this approach
articulation of policy reasons for a rule =/= defining criteria for its application
(
Lister v Hesley Hall
, Lord Hobhouse, HL goes back to Salmond but to close connection part)
Fairness and justice
Loss distribution
efficient means of
loss distribution
(more able to insure) BUT insure bcs liable; not liable bcs insure (
Cox v Min of Justice
)
BUT why distinction for independent contractors, and why limiting to tortious acts by employees, not natural illnesses etc?
Enterprise risk
proper allocation of
risks and benefits of enterprise
activities (
Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd
[2006], employer stands to generate profits, "enterprise liability") BUT non-profit organisations? independent acts?
enterprise need not be commercial; benefit need not be profit BUT "furtherance of its own interests" (
Cox v Min of Justice
)
Continuous acts
field of activity + connection: seamless course of events
(
Mohamud v WM Morrison Supermarkets
)
encouragement by D of tortfeasor's aggressiveness while carrying out job + culmination of incident which occurred at job, even though included motive of personal revenge
(
Mattis v Pollock
)
Precautions by V
distinction between torts unilaterally committed upon victim (sexual abuse) v tort where victim could have taken basic precautions (bank fraud)
(
Skandinaviska v Asia Pacific Breweries
)
General
Scope of authority may be wider than actual authority
Vicarious liability not limited to apparent authority
Vicarious liability may be found even if conduct expressly forbidden by employer
Vicarious liability may be found even if conduct forbidden by law
Old applications of the Salmon test
(NA now)
(i) wrongful act authorised by master (may also be direct? liability through agency)
(ii) wrongful and unauthorised mode of doing some act authorised by master provided they are so connected with acts which he has authorised
barmaid threw glass at customer; not improper mode because she
did not act in order to keep discipline + she was not in charge of the bar
criticised in
Mohamud v WM Morrison Supermarkets
: "In a broader sense it occurred in the course of her employment. She was employed by the hotel proprietor to serve customers. She was approached in that capacity by a customer, and ordinary members of the public would surely expect the company who employed her to serve customers to have some responsibility for her conduct towards them."
(
Deatons Pty Ltd v Flew
)
was not improper mode, because bus conductor tortfeasor was
not acting to maintain order in the bus
(struck victim with ticket punch)
criticised in
Mohamud v WM Morrison Supermarkets
: broader characterisation -> employer selected tortfeasor for employment, put him in charge in managing bus, dispute arose regarding abuse of his position of authority, which tortfeasor took as interference by victim and struck victim
(
Keppel Bus Co v Sa'ad bin Ahmad
)
2 matters to consider under scope of employment:
what functions/
"field of activities"
(
Central Motors (Glasgow) Ltd v Cessnock Garage & Motor Co
) have been entrusted to employee
whether there is sufficient
connection
between employment and tort, e.g.
seamless course of events
(motive irrelevant)(rejected "representative capacity" test due to vagueness
(
Mohamud v WM Morrison Supermarkets
)
(1) qualifying relationship giving rise to vicarious liability
e.g. employer-employee relationship
TESTS
Composite/Factors approach or personal investment in enterprise test
:check:
Control
Intention of parties (express wording of contract relevant not conclusive (
Ferguson v John Dawson & Partners (Contractors) Ltd
) due to extraneous reasons, e.g. tax advantages)
Profit and loss (v salary)
Mode of remuneration (e.g. salary or lump sum?)
Provision and maintenance of equipment (
Hollis v Vabu
, bicycles case)
Obligation to work (delegation/sub-contracting possible?)
Hours of work
Provision of holidays
Deduction of income tax
Delegation of work by the worker
Independent exercise of skill and judgment
Control test
:red_cross:
regarding method of working or hours of work (contract of service or contract for service?)
right to control (
Zujis v Wirth Brothers
(1955))
difficulty where employers do not have sufficient knowledge for control, only authority to select/dismiss staff (e.g. medical staff in
Cassidy v Ministry of Health
) can only direct what he does, not how (
Catholic Child Welfare Soc
)
Personal investment in enterprise test
:check:
(
Stevens v Brodribb Sawmilling
test endorsed in
BNM v NUS
)
OR for employer's interests/benefit? (
Cox v Min of Justice
)
Integration test
:check:
work done which is integral to business versus work done for business but only accessory to it
(
Stevenson, Jordan & Harrison v Macdonald & Evans
[1952], test applied in
Cox v Min of Justice
)
Borrowed/lent employees
(also main contractor-sub contractor relationships
Awang bin Dollah v Shun Shing Construction & Engineering Co Ltd
)
General rule: regular employer is prima facie responsible for negligence
(
Mersey Docks and Harbour Board v Coggis & Griffiths (Liverpool) Ltd
, applied in
Karuppan Bhoomidas v Port of Singapore Authority
and
BNM v NUS
)
Unless: there is transfer of (temporary) employment to hirer
(
Mersey Docks and Harbour Board
)
Control
test: hirer has "entire and absolute control" (
Mersey
,
Bhoomidas
,
Awang
) supervision insufficient, not entitlement to instruct
how
to do the work only
what
; distinction between
skilled and unskilled
workers (
Biffa Waste Services Ltd v Maschinenfabrik Ernst Hese GmbH
)
Integration
test: independent contractors, but were integrated hence servant/agents (
Chua Chye Leong Alan v Grand Palace De-luxe Nite Club Pte Ltd
)
Both
: (
Hawley v Luminar Leisure Ltd
[2006];
Grand Palace
)
-
contractual matrix and relevant regulations may be relevant but not determinative
e.g. (
Bhommidas
superintendence via statue not transfer of control for purposes of liabiliity)
Dual vicarious liability
Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd
[2006] CA
control
test (May LJ) -> applied in
Chen Qiangshi v Hong Fei CDY Construction Pte Ltd and another
[2014], did not address Rix LJ test
integration and justness
test: whether employee is so much a part of the work, business or organisation of both employers that it was "just" in holding both liable (Rix LJ) -> applied in
Various Claimants v The Catholic Child Welfare Society
Akin to employment
furtherance of
purpose
of institute, clothed with the
status
of members of institute, and thereby siginficantly increased the
risk
... (
Catholic Child Welfare Society
, relationship even closer than that of employer-employee due to
common business and mission
(G Chan))
applied "akin to employment", focus on
business activities carried out for the benefit of the defendant and their attendant risks
; using 3 of 4 CCWS factors (authorisation, integration and enterprise risk), noting insurability and control were less persuasive (
Cox v Ministry of Justice
)
Independent contractors
general rule: not liable but may have direct liability or non-delegable duties (
Seasons Park
CA)
distinction between ability to tell a worker what to do v how to do it (
BNM v NUS
)
enterprise risk not a reason for imposition of liability for independent contractors since they carry out works for their own benefit (
Ng Huat Seng
(2016))
(3) tortfeasor liable for tort
elements of tort made out
no immunity or complete defences defeat claim
(
Imperial Chemical Industries Ltd v Shatwell
[1965])
Non-delegable duty
General
arises in
exceptional
three party situations, because inconsistent with general fault-based principles e.g. in negligence
adjunct to negligence tort, overlap with nuisance
even if it is an independent contractor, even if there is no vicarious liability, there can still be a non-delegable duty
at "fault" only in the sense that D failed to ensure X acted with reasonable care (need Woodlands factors because DOC not enough)
purchasing something, e.g. equipment for employee, is not delegation
Examples:
Adjoining owners of land in relation to work affecting support or common walls (overlap with nuisance)
Employer – employee with respect to safe system of work
Hospital and patient
School authority and students
Occupier and invitee
2 elements
(1) central element of
control
(2) special dependence or
vulnerability
(
Burnie Port Authority
)
2 categories
(1) inherently hazardous work
(2) (a) antecedent relationship; (b) positive duty to ensure 3P takes care; (c) because of relationship, even though task is delegable, the duty is not
(
Woodland
, affirmed by
MCST v Tiong Aik Construction
as threshold requirements)
(3) fair and reasoanble? (
Tong Aik
)
[The main problem about this area of the law is to prevent the exception from eating up the rule. Non-delegable duties of care are inconsistent with the fault-based principles on which the law of negligence is based, and are therefore exceptional. The difference between an ordinary duty of care and a non-delegable duty must therefore be more than a question of degree. In particular, the question cannot depend simply on the degree of risk involved in the relevant activity.]
Hence, must be:
(1) especial
dependence/vulnerability
(2) antecedent
relationship
(with element of control) which
(a) places claimant in custody/charge/care of D
(b) from which a positive duty to protect the defendant from harm can be imputed
(3)
claimant has no control
over how D chooses to perform those obligations
(4) function is
integral part of positive duty
(5) third party is
negligent in the performance of very function delegated
(
Woodland
, endorsed and applied in
BNM v NUS
)
Only ultra-hazardous activities which would have been dangerous whatever precautions taken (
Biffa Waste Services Ltd v Maschinenfabrik Ernst Hese GmbH
)
not where if work was done with ordinary elementary caution by skilled men it would not have occurred (
Salsbury v Woodland
)
a matter of degree (
Read v J Lyon & Co
)
Vicarious liability v non-delegable duty
indirect/secondary liability v direct personal duty/liability
tort of employee done in course of work v personal liability notwithstanding delegation
no fault v fault arising from breach of non-delegable duties
close connection test v Woodland factors
(G Chan)
about all torts v about failure to take reasonable care
General common law duty
e.g. direct liability due to employer's own breach of duty