Please enable JavaScript.
Coggle requires JavaScript to display documents.
Nature of Liability in negligence - Coggle Diagram
Nature of Liability in negligence
negligence is probably one of the most important torts in civil law - based on concept of defendant breaching legal duty of care that is owed leading to a climant being harmed or suffering loss - forms the basis of other torts
What interests does the law of negligence protect
What interests does the law of negligence protect?
personal injury (psychiatric and )
damage to property
economic loss
liability in negligence can be restricted when it is considered undesirable for policy reasons e.g. the courts have imposed limitations on who can bring a claim for psychiatric harm
Alcock v Chief Constable of Yorkshire
Negligence & HRA:
HRA imposes duty on the state to respoect and act consistently with ECHR - right to life, liberty and security, fair trial
HRA states that its unlawful for public authority to act in a way which is incompatible with the convention right
appears to suggest that when deciding cases or devising legal rules, courts are under a duty to respect the parties human rights - thus:
all decisions must be compatible with HRA
content of the law fo tort and thus the rights and duties that exist between private individuals must include adequate protection of the rights in the act
act is used increasingly in tort as another head of liability - or in Osman v UK a claimant will use the state directly to obtain a remedy where the common law does not allow
compensation: main aim of tort - to ensure the claimant recovers any losses that arise because of tortious ac
corrective justice: based on concept that it is fair for the claimant to be put in the position they would have been in had the incident not occured
deterrence: imposition of liability is used as a mechanism to prevent future tortious acts
vindication: claimant not only wants to be recompensed but also wants an enquiry into the tortious behaviour
Personal Liability: law of negligence places responsibility and payment of compensation on an individual - when tortfeasor is found liable it is that person who is found responsible for any harm that occurs
while liability might be imposed it is not necessarily the individual who pays any damages - Joint Tortfeasors
Independent/personal liability:
imposed on defendants where the claimant has suffered harm as a result of two separate torts - each defendant is liable for the damage they caused
Several Liability:
this occurs when more than one defendant acts independently to cause the same damage to the claimant (Vision Golf Ltd v Weightmans)
Joint Liability: each join tortfeasor is liable for the full amount of compensation but claimant can only recover the amount once
two or more people with a joint purpose commit the same wrongful act - acting in a common design or plan
by way of vicarious liability that may arise when an employer is made liable for torts committed by employee - defendant can sue both employer and employee, most likely employer as they will have insurance and will be in better position to pay - the employer can sue an employee to recover contribution towards the damages paid out
Civil Liability Act 1978: applies to joint liability
s1: any person liable in respect of any damage suffered by another person may recover contribution from any person liable in respect of same damage - person seeking contribution must be theoretically liable
s2: amount of contribution a person is entitled to - amount that the court finds to be just and equitable to impose, having regard to the persons responsibility for the damage in question - court will take into account the relevant circumstances
court may order that a party need not pay a contribution or may order a party to pay complete idemnity - amount can be recovered by way of contribution is limited to amount the claimant could have obtained from particular defendant
principle caused problems in relation to mesothelioma cases where it was medically impossible to pinpoint where harm occured - all potential defendants should be held accountable and liable
matter came to head in Barker v Corus UK - issue before the court was whether a defendant was liable jointly and severally with any other defendants or whether the defendant should be liable for a share only
The aims of law of negligence
Corrective Justice:
it requires that a person doesnt uneasonably interfere with others - it also requires that if a person does interfere with others, the person should be harmed should be compensated - but the payment of the compensation is based on fault, so teh claimant must show that the defendant has caused harm - even if harm is proved it might not be possible to successfully claim for all losses
corrective justice rests on the concept of individual responsibility, which in itslef can be diminished if it is not the defendant personally paying compensation
compensation:
justice for the claimant can be achieved in most cases by requiring the defendant to pay damages for any loss suffered after fault has been imposed - justice can only be done when it is the defendant actually paying the compensation
in reality - claimaing in negligence is often seen to be conditional on teh defendant having insurance - there is little point in suing a person who has no assets that can be used to pay the claimant - there may be limited justice where an insurance company pays the compensation, as there is limited personal responsibility and also the claimants loss is distributed across society in the form of increased insurance premiums
if it is impossible to prove fault on the defendants part - claimants have to look at other sources of compensation such as welfare benefits, personal insurance policies and compensation schemes
deterrence:
decisions made in tort of negligence also play a part in deterring future careless activity or behavior. the imposition of liability in relation to a particular activity enables others to adjust their behavior accordingly - sometimes the effect of imposition of liability isnt to deter potentially negligent behavior accordingly. sometimes the effect of the imposition of the liability is not to deter potentially negligent behavior but to stop it all together
the aim is also weakened by the existence of insurance as this only leads to a rise in insurance premiums generally across society - the only payment that the defendant will have to pay is their increased insurance premium which is not a deterrent itself
vindication:
some negligence claims are brought to find out what actually happened - often connected with a desire to gain publicity to stop such an incident from happening again
an example would be the claims in nervous shock of friends and relatives killed in Aloock v Chief Constable of South yorkshire police
Vicarious Liability: where a person may be liable if they neither authorised nor overlooked the tort
seen as a way of ensuring a just and practical remedy for harm while trying to deter future wrongdoing - it appears to be unfair as it imposes a duty on the employer without them being at fault as its a form of strict liability
there is need to obtain compensation for victim from solvent defendant
the employer is more likely to recruit better employees and provide better training to avoid
two elements need to be proved:
must be an employee/er relationship or relationship akin to employment between defendant and perosn for whose actions they are being held liable
employee must be acting in course of employment when tort is committed
Establishing Employer Liability:
vicarious liability is not static - types of employment can change over time and courts now allow for liability in relationships akin to employment - develoment is of social conveninece and rough justice (imperial chemical industries v shatwell)
reasons:
employer is more likely to be in a position to compensate the claimant as they will have insurance cover - any financial loss is spread across the society through increased prices
employers benefit form employees work so they must take responsibility
vicarious liability is an inducement to the employer to promote high standards of behaviour and safety
as the employee is usually under the control of the employer this may encourage employer to maintain standards of good practice when recruiting
employer should supervise employees closely - doctrine seen as motivation to reduce workplace incidents
Employer/Employee Relationship:
general rule is that na employee is employed under a contract of service, while an independent contractor is employed under a contract for services - distrinction is important as employer will not be liable for torts of independent contractor
control test - ferguson v john dawson and partners 1976 - based on concept of master and servant, court considers extent to which employee is under control of employer - not suitable for modern employment
lord phillips: many employees employ a skill or expertise that is not susceptible by anyone else in company that employ them
business integration test - stevenson, jordan and harrison v Macdonald and evans 1952 - lord denning, suggested that where employees work is carried out as an integral part of the business a contract of employment would exist
multiple test - ready mixed concrete ltd v minister of pensions and NI - e conditions to be fulfilled for contract of service to exist:
1 - worker agrees for payment of wage to provide work or skill for other person
2 - agree to be under other persons control so that it makes the other the master
3 - other terms of contract are consistent with contract being of one service
if parties have stated in contract that a person will be self employed and terms reflect this then employer will not not be liable
business on their own account test - minister investigations v minister of social security - where high court suggested question to ask is whether the worker is performing service as a person in business or on their own account - court will take into account degree of financial risk and use of premises
court made clear that test is not to be regarded as conclusive - no definitive test
akin to employment approach adopted by courts - cox v ministry of justice
Course of employment:
this is a question of fact - tends to be an inconsistent approach
salmond test has been used - since lister v hesley hall a different test is used, whether the tort is so closely connected with employment that it would be fair and ujst to hold employer liable
Salmond test:
wrongful act authorised by employer: employer is clearly liable when they instruct the employee to act wrongfully but can also be liable if employee has implied authority to commit the tort
if violence is inflicted as part of a private agreement - not normally in course of employment
if circusmtances are appropriate - close connection test may be used
wrongful & unauthorised mode of doing some act authorised by the employer:
situation where employee is doing their job but they...
ignore express instruction to do something
act carelessly
use unauthorised help - cases are inconsistenet and decisions based on whwether employee derives a benefit from unauthorised help
breahc of statutory duty - imposition of vicarious liability not restricted to common law
if employee acts outside of employment then employer cant be vicariously liable - an employee works outside course of employment when...
carrying out an act which is not within scope of employees work - employee does something that is not connected with what they are employed to do
diverting from proper work on a frolic
giving unauthorised lifts - as with other case law regarding vicarious liability
acting in excess of proper boundaries of the work
salmond test has been used where employees have been travelling to or from work - they are not within course of employment unless they are travelling specfically on employers business