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Tort Law II, 3. INJURY TO REPUTATION AND IMAGE - DEFAMATION, INJURY TO…

- - - - c. Stating that a woman is an adulteress or is promiscuous
        Ramkhelawan v Motilal (1967) 19 Trin LR (Pt II) 117
        
        Kerr v Kennedy [1942] 1 KB 409
        a statement imputing/accusing a woman of being a lesbian was actionable as slander per se as it fell under the category of imputing "unchastity*
        Wight v Bollers [1936] LRBG 330, 332
        
        d. Imputing that someone is unqualified or unfit for their profession
        Gordon v Panday TT 2000 HC 133
        Mr. Gordon brought a defamation action against Mr. Panday who had labelled Mr. Gordon a pseudo racist
        
        On appeal, the Panday the appellant invoked section 4(e) of the Constitution (the right to join political parties and to express
        political views) as a bar against the defamation action, claiming that his views were “political views” and thus protected.
        Appeal dismissed - Liability for defamation and the award of $300,000 in damages affirmed?
        The right guaranteed by s. 4(e) of the Constitution was not absolute.
        Decision clarifies that the constitl right to express political views is significant but not absolute; it does not override common law protections of reputation
        
        Jones v Jones [1916] 1 KB 351; [1916] 2 AC 481
        A schoolmaster sued for slander after a woman falsely accused him of adultery - Defendants argued the words did not relate to his professional capacity, making them not actionable without proof of special damage (financial loss)
        HoL ruled that words imputing immoral conduct are not actionable unless they are directly related to the person's profession or office - in this case the adultery imputation was a matter of personal morality, not professional fitness
- - - - 3. The words must be published to a 3rd party (publication)
        The statement must be communicated to a 3rd party. D need not have intended that the defamatory statement be communicated to any particular person. It is sufficient that the publication to that person could have been reasonably interpreted.
        Publication need not be intentional - negligent publication
        Defamation is meant to protect a person's reputation, not their feelings.
        
        "[55] Proof of publication is necessary in order to establish liability for defamation. ‘Publication’ has an established meaning in the law of defamation. It refers to the communication of defamatory information in such a way that it is 'made known to a third party':
        
        Theaker v Richardson [1962] 1 WLR 151
        Mr. Richardson wrote a defamatory letter to Mrs. Theaker accusing her of being a "very dirty whore" - he intended to deliver it personally but seeing a car at her houses decided to put it through the letterbox instead - Her husband opened the letter thinking it was an election address - was the letter "published" to a 3rd party, making it libel? - court held that publication occurred bc it was reasonably foreseeable that someone other than the plaintiff would open the letter - by putting it through a letterbox rather than directly handing it over - likely that another person would read it
        Huth v Huth [1915] 3 KB 32
        Captain Huth sent his wife a letter in an unsealed envelope containing allegations that they were not married and their children were illegitimate - the letter was taken out of the envelope and read by the family's butler out of curiosity - the children sued father for libel, arguing the butler's actions constituted publication - court found that Captain Huth could not have reasonably anticipated that the butler would open the letter - therefore no evidence of publication by Huth and the libel action failed
        
        Gaskin v Retail Credit Co [1965] SCR 297 at 299.
        Gaskin alleged that Retail Credit Co had defamed him by sending credit reports to clients - no evidence of publication
        Brown explains that 'it is a bilateral act by which the publisher makes available to a reader, listener or observer in a comprehensible form the defamatory information' (RE Brown The Law of Defamation in Canada (Vol 2, 2nd edn, 1994) para 7.2).
        Thus, publication has two components:
        (1) an act that makes the defamatory information available to a third party in a comprehensible form and
        (2) the receipt of the information by a third party in such a way that it is understood.”
        Deschamps J, Crookes v Newton 2012 1 LRC 237
        Crookes sued Newton for defamation arguing that Newton's article which contained hyperlinks to other websites was responsible for republishing defamatory material about him - did hyperlink constitute "publication" - court found that posting a hyperlink is not an act of defamation - it is linking info rather than active publication of content - the hyperlinker must have "knowing involvement" in the publication or text of link must contain defamatory meaning
- - - - c. Must be a matter of public interest
        
        d. The comment must be “honestly” made
        Merivale v Carson (1887) 20 QBD 275
        
        Barrow v Caribbean Publishing Co Ltd (1971) 17 WIR 182
        
        e. The comment must not be actuated by malice- sed quare
        
        Clapham v Daily Chronicle [1944] LRBG 71
        Adams v Sunday Pictorial Newspapers (1920) Ltd [1951] 1 KB 354
        
        4. Privilege
        - Qualified
        
        There are five circumstances at common law where privilege is qualified:
        
        i. Statements made during the pursuit of legal, moral or societal duty to a person who has a duty to receive these statements. e.g statements made to a police officer
        
        ii. Statements made to the proper authorities to retain redress
        
        iii. Statements made in self- defence
        
        iv. Statements made between persons having a common interest
        
        v. Fair and accurate reports of parliamentary or judicial proceedings.
        
        A qualified privilege may be defeated by:
        i. malice
        Horrocks v Lowe [1975] AC 135
        
        ii. excessive publication
        Briggs v Mapp (K 285-286)
        
        5. Assent to publication
        Cookson v Harewood [1932] 2 KB 478
        P sued D for defamation after D published a statement in a newspaper that P was not allowed to ride the horses at his club
        Court held that D had a qualified privilege to make the statement bc it was a matter of interest to a 3rd party and published in good faith
        6. Triviality
        King et al v Mckenzie [1991] 24 NSWLR 305
        
        McCarey v Associated Newspapers Ltd [1964] 1 WLR 855, per Pearson LJ
        A politician Mr. McCarey sued defendant newspaper for publishing a defamatory article about his private life - Court ruled in his favour finding that the article was defamatory and the newspaper had overstepped the bounds of legitimate journalistic reporting - While the press has a right to publish info of public interest, this right must be balanced against the right of individuals to privacy
        
        - Absolute
        Absolute Privilege in the Common Law
        
        Statements made in the course of Parliamentary proceedings
        
        Statements made in the course of judicial proceedings
        
        Statements made by one officer of state to another in the course of duty
        
        Responsible Journalism (Reynolds Privilege)
        
        Reynolds v Times Newspapers Limited [2001] 2 AC 127, Lord Nicholls
        "It protects the publication of defamatory material to the world at large, where it was in the public interest that the material should be published and where the publisher has acted responsibly in publishing the information."
        Reynlds sued the Sunday Times for libel over an article which accused him of misleading parliament and covering up info about a controversial judicial appointment - newspaper claimed defense of qualified privilege as it was a matter of public importance to UK readers - HoL found newspaper's qualified privilege defence failed - the article presented serious allegations as fact, but failed to include Reynolds' explanation
        
        The seriousness of the allegation
        
        The nature of the information and the extent to which the information is a matter of public concern
        
        The source of the information
        
        Steps taken to verify the information
        
        The status of the information
        
        The urgency of the matter
        
        Whether a comment was sought from the claimant
        
        Whether the article contained the gist of the claimant's side of the story
        
        The time of the article
        
        The circumstances of the publication, including the timing
- - - - Compare
        Harrison and Starkey v Polydor [1977] FSR 1
        to
        Robyn Rihanna Fenty and Others v Arcadia Group Brands Limited and Another [2015] EWCA Civ 3
        
        “…it by no means follows that simply because the name or image of a celebrity appears upon a consumable commercial item, the public will assume that it has in some way been endorsed by that celebrity”
        
        Merchandising v Endorsement
        Robyn Rihanna Fenty and Others v Arcadia Group Brands Limited and Another [2015] EWCA Civ 3 (must read)
        
        “Mr Hobbs has here identified what to my mind are the two critical hurdles which a claimant must overcome in a claim for passing off in a merchandising case. First, it must be shown that application of the name or image to the goods has the consequence that they tell a lie. This requirement, which is closely allied to distinctiveness, will not be satisfied if the name or image denotes nothing about the source of the goods. Second, it must be shown that the lie is material. In many merchandising cases, the lie amounts to no more than a false suggestion that the goods are licensed and, as such, it may have no effect upon the buying decision.”
    - - George Athans Jr. was a prominent and highly decorated Canadian water-skier who actively promoted his public image and expertise for commercial gain.
        In 1975, Canadian Adventure Camps (CAC) hired a public relations firm, Ideas Diversified Ltd. (IDL), to create promotional materials for their new summer camp.
        IDL produced drawings of a water-skier for CAC's brochure and advertisement, basing the image on a widely circulated photograph of Athans without his knowledge or consent.
        Athans sued both CAC and IDL, claiming damages for passing off and wrongful appropriation of his personality
        
        The court considered two main questions:
        1. Did the defendants' use of the water-skier drawing constitute passing off?
        
        2. Did the defendants' use of the drawing constitute a wrongful appropriation of Athans' personality?
        
        The Court considered the unauthorised use by the corporate defendant of the plaintiff’s image and persona as a water skier to promote the former's summer camp. The trial judge held that by using the plaintiff’s image to advertise their camp, the defendant had infringed the former's right to market his personality-and this was tortious, independent of any claim in copyright law.
        
        The court considered:
        
        The plaintiff's image was used in a fashion recognisable to the public.
        
        The image was used for the defendant's commercial advantage.
        
        The court held it was unlikely that the public would believe Athans was endorsing the camp.
        
        No firm evidence was presented that Athans had suffered any damage.
        
        Athans Jr v Canadian Adventure Camps Co
    - - The Image Rights (Balliwick of Guernsey) Ordinance 2012
        “The Image Rights (Bailiwick of Guernsey) Ordinance 2012 (IRO) establishes a new form of intellectual property, previously unrecognized in a registrable form anywhere else in the world. Two key concepts anchor the legislation:
        
        the “registered personality”, and
        
        “images” which are associated with or registered against that registered personality.
        
        The core right is the registered personality.”
        
        Dr Angela Adrian, Image is Everything: The New Image Right of Guernsey
        
        California Civil Code, s. 3344 (a)
        Any person who knowingly uses another’s name, voice, signature, photograph, or likeness in any manner, or in products, merchandise goods or services, without such person’s prior consent or in the case of a minor, the prior consent of his parent or legal guardian, shall be liable for any damage sustained by the person or persons injured as a result thereof.
        The Fair Pay to Play Act, 67456. (a) (1)
        A postsecondary educational institution shall not uphold any rule, requirement, standard, or other limitation that prevents a student of that institution participating in intercollegiate athletics from earning compensation as a result of the use of the student’s name, image, likeness, or athletic reputation. Earning compensation from the use of a student’s name, image, likeness, or athletic reputation shall not affect the student’s scholarship eligibility…
        67456. (a) (2)
        An athletic association, conference, or other group or organization with authority over intercollegiate athletics, including, but not limited to, the National Collegiate Athletic Association, shall not prevent a student of a postsecondary educational institution participating in intercollegiate athletics from earning compensation as a result of the use of the student’s name, image, likeness, or athletic reputation.
        Quebec Civil Code, Art. 3
        Art. 3: ‘Every person is the holder of personality rights such as the right to life, the right to the inviolability and integrity of his person, and the right of respect of his name, reputation and privacy. These rights are inalienable’
        Art 36 includes as an invasion of a person’s privacy:
        ‘using his name, image, likeness or voice for a purpose other than the legitimate information of the public.’
        
        France Civil Code Law No. 2024-120
        Germany Basic Law, Art 1 and 2; Civil Code, s. 823 (1), 1004
- - - - What does the employer's duty (to take reasonable care) include?
        "The duty to take reasonable care will generally involve, as a starting point, a duty to perform an adequate assessment of all of the risks to which employees may be exposed during the course of employment, in order then to determine appropriate precautions to be taken to avoid injury."
        Is it reasonable for an employer to remove every single danger which may arise, even if the danger was sudden or transient or exceptional?*
        Thomas v Bristol Aeroplane Co Ltd [1954] 1 WLR 694
        employee slipped on ice on a frosty morning while going to work and suffered injuries, claiming negligence and breach of statutory duty - CA determined that employer was in breach of statutory duty under the Factories Act but the injury was not a foreseeable outcome of the specific type of breach - Thomas could not recover damages against employer under statutory duty claim
        
        O'Reilly v National Rail and Tramway Appliances Ltd [1966] 1 All ER 499
        An employee hit by a sledgehammer by colleague who told him to "hit it" after they found a strange object, which the worker thought was an unexploded shell - employer was unaware of his employee's tendency to engage in silly or dangerous practical jokes - an employer's duty of care does not extend to situations where the employer has no knowledge of the dangerous tendency of their employees - employer not liable for injury because they did not breach their duty of care by being unaware of employee's silly actions
        Compare with:
        Hudson v Ridge Manufacturing Co Ltd [1957]
        employee suffered a wrist injury when a co-worker, known for his practical jokes, tackled him to the ground - employer aware that employee was a habitual practical joker and had been warned on numerous occasions about potential for harm by behavior - employer had not taken more serious disciplinary action such as dismissal - court determined employer had a common law duty to provide a safe workplace and competent colleagues - found employer failed to meet this duty - if an employer becomes aware of a habitual unruly or dangerous employee but takes no sufficient action to stop the behaviour, they can be held liable for injuries caused by that employee to a co-worker
        
        To provide a safe system of work
        This refers to the organisation of the job such that the employee is safe from any reasonably likely harm while performing the job.
        
        "…the physical layout of the job; the setting of the stage, so to speak, the sequence in which the work is to be carried out, the provision in proper cases of warnings and notices, and the issue of special instructions. A system may be adequate for the whole course of the job, or it may have to be modified or improved to meet the circumstances which arise.” - Lord Greene MR in Speed v Thomas Swift and Co, Ltd [1943] KB 557
        Mr. Speed was a dock labourer employed by the defendant - he was injured when a hook snagged a railing and timber, causing them to fall on him - the court ruled that the employer was negligent for failing to provide a safe system of work, specifically by not removing the timber from deck of the ship and for using a faulty winch
        
        A safe system of work involves: "the organisation of the work; the procedure to be followed in carrying it out, the sequence of the work; the taking of safety precautions; the stage at which they are to be taken; the number of workers to be employed; the parts to be taken by them; and the provision of any necessary supervision.” - Clerk and Lindsell on Torts
        'reasonable care not to subject the employee to working conditions which are reasonably likely to cause him psychiatric injury or illness': per Lord Macfadyen in Cross v Highlands and Islands Enterprise [2001]
        Psychiatric harm is different from workplace stress - one has to be proved. Psychiatric harm:
        
        Did Acme breach its duty of care to T?
        
        Did C’s conduct constitute bullying and harassment?
        
        Did C’s conduct cause or materially contribute to T’s medical condition?
        
        Was the harm a reasonably foreseeable consequence of the alleged breach of duty?
        
        Boylin v The Christie NHS Foundation
        claimant suffered psychiatric injury after being subjected to bullying and working 2 jobs - had a pre-existing history of bipolar disorder - claimed her manager allowed her to be bullied by a professor of medical oncology and did not provide adequate support - court applied Barber test for occupational stress claims - court ruled that the claimant failed to establish that the employer's actions created a foreseeable risk of psychiatric injury, despite her documented history
        
        A single breach of duty did not cause or contribute to T's medical illness;
        
        Even if causation were established, T's injuries had to be reasonably foreseeable;
        
        A considerable breach of duty had been established but this was an isolated incident of relatively short duration which could not reasonably be expected to cause, or materially contribute to, a significant psychiatric illness.
        
        To recover damages, the mental condition must amount to a recognisable psychiatric injury: sensations of fear or distress alone are insufficient
        
        McLoughlin v O'Brian
        McLoughlin's husband and children were in a car accident caused by the defendants - 2 hours after accident Mrs. McLoughlin was informed and went to hospital - at hospital she witnessed husband other children severely injured and learned her youngest child died - led to her suffering psychiatric injury - defendants owed doc to her for the nervous shock suffered? - HOL ruled in her favor finding defendants liable for negligence -
        Lord Bridge: "Anxiety and depression are normal human emotions"
        
        Workplace stress:
        -”Where it was reasonably foreseeable to an employer that an employee might suffer a nervous breakdown because of stress and pressures of his workload, the employer was under a duty of care as part of that duty to provide a safe system of work, not to cause the employee psychiatric damage by reason of the volume or character of the work which the employee was required to perform.” Walker v Northumberland County Council
        
        Barber v Somerset County Council
        Mr. barber, a teacher, suffered a mental breakdown due to excessive workload following staff restructure - consistently working 60 to 70 hours/week - expressed concerns about impact of workload on health to colleagues and doctor - school did not take adequate action - HOL found Somerset CC negligent in its duty of care - employers have a duty to take care for the safety of employees - employer must take positive steps once they know or ought to know that an employee is at risk of psychiatric injury
        
        Safe place of work
        This duty includes the acual place of work, the means to and from it, any place of work under the employer's control.
        
        “The duty is there, whether the premises on which the workman is employed are in the occupation of the master or of a third party…but what reasonable care demands in each case will no doubt vary.”: Parker LJ in Wilson v Tyneside Window Cleaning Co
        mr. wilson an experienced window cleaner was employed by Tyneside - while on a job, he fell after a handle on a window he was cleaning gave way, causing injury - incident occured on the property of a 3rd party - court found employer was not liable - while employer has a general duty of care for safety on 3rd party property, this duty is not as stringent as on their premises
        Cook v Square D Limited
        electronics engineer employed by UK-based Square D Ltd was working on assignment in Saudi Arabia - injured when tripped on a raised, unguarded access panel in the floor of an office belonging to a third party - established that while employers have a general duty of reasonable care for their employee's safety, this duty does not extend to being responsible for deficiencies in 3rd party premises, especially when employer has no knowledge of them
        This duty can not be delegated
        Furthermore, the Court of Appeal identified the factors that an employer must consider when determining whether a workplace is safe for an employee:
        a) The location where the work is required to be done;
        b) The nature of the building;
        c) The nature of the work required from the employee;
        d) The employee’s expertise and experience;
        e) The degree of control that it is reasonable to expect the employer to exercise; and
        f) Whether the employer is aware that the premises are dangerous.
        
        What about the degree of care owed to an employee on third party premises?
        “The fact that the work had to be carried out on the premises of a third party did not absolve an employer from his duty of exercising reasonable care for the safety of his workmen. The duty must still be fulfilled, although its scope is circumscribed by the fact that the work was being done on premises not within the possession and control of the employer. As the structure of the premises is outwith his control, and any defects therein beyond his power to rectify, his care for his men could only be exercised within the limits imposed by those circumstances. But he was still under the duty of exercising reasonable care to safeguard them against dangers which he should anticipate and which he had power to avert.”: M'Quilter v Goulandris Bros Ltd
        
        Adequate plant and equipment
        
        “…since the risk was obvious to the defendant and not insidious, the defendant ought to have made goggles available and also given firm instructions that they must be worn, and the defendant ought to have educated the men and made it a rule of the factory that goggles must be worn, since, if an accident did happen, the probability was likely to be the loss of sight of one or both eyes.”
        -Morris v Point Lisas Steel Products Ltd (1989) HC 142
        the Claimant - employed as a machine operator at D's factory - while C was using a wire cutting machine, piece of steel flew into right eye causing complete loss of sight in that eye - employer held liable for a breach of its common law duty of care in failing to provide the worker with protective goggles which could have possibly protected eye from damage
        “All these tests of suitability are related to the basic function of PPE, which is protection against risk. An employer may be in breach of his obligation to provide suitable PPE and there is nothing to suggest that they failed any of the tests of suitability…The secondary risk or overall risk must be a risk in the course of employment. As Mr Fytche was not expected to do anything which required him to have waterproof boots, the hole created no such risk” Hoffman LJ in Fytche v Wincanton Logistics Plc
        Mr. Fytche worked as a milk tanker driver requiring him to work at night in various weather conditions and in all seasons - he suffered frostbite from icy water entering a small hole in his steel-toed safety boots - company argued that the boots, though having a hole, still performed their intended function of protecting against falling heavy objects, as there was no defect in the steel toe-cap itself - PPE was supplied for a specific purpose (protection from impact injury) and the small hole did not undermine this primary function - therefore employer not obliged to repair it
        
        Bux v Slough Metals Limited [1973]
        Claimant lost sight in of one his eyes when it was splashed with super-heated molten metal while executing his duties at work. Although employer had provided employee with protective goggles - employee complained goggles provided had steamed up and unsuitable and stopped wearing - in compliance with statutory regulations binding upon Employer he was still found liable for Negligence and Breach of his Common Law Doc towards Employee, by not persuading & even insisting upon the use of protective equipment by Employee. to simply provide the PPE is not enough, the Employer must put in place systems and procedures to ensure as much as possible employees actually use PPE
        To succeed in a case based upon the common law, the injured worker must show:
        (i) that the injury was a foreseeable consequence of the work; and
        (ii) that the common law standard of care was breached…
        what the employer ought to have foreseen must be addressed in the context of the employer's duty to assess risks: Munkman’s Employer’s Liability
        
        What the employer ought to have known will be what he would have known had he carried out a suitable and sufficient risk assessment:
        Allison v London Underground Ltd
        employee a train driver - developed tenosynovitis/hand injury from repetitive and awkward posture required to use train's traction brake controller - argued that employer was in breach of duty to carry out a suitable and sufficient risk assessment -
        CA held that "What the employer ought to have known about risks was linked to the suitability and sufficiency of the risk assessment" - in court's opinion, there had not been a suitable and sufficient risk assessment and the TBC should not have been put into service without taking expert advice from an ergonomist for eg - if it were done, employer would have identified risk of thumb injury
        
        Toronto Power Co Ltd v Paskwan
        a block fell from a crane killing employee Paskwan - crane's operation was negligent - specifically in the failure to appoint a competent signalsman and to equip crane with appropriate safety devices - case reinforced that a employer has a duty to take reasonable care to provide proper equipment and maintain it in good condition
        
        McWilliams v Sir Arrol & Co Ltd
        Mr. McWilliams an experienced steel erector fell about 70 feet from a tower crane and was killed - employer Sir Arrol failed to provide a safety belt - safety belts had been available on site but were removed shortly before the accident - deceased rarely wore safety belt - since he would not have used the safety belt, the absence of the belt could not be said to have caused his death - a claimant must establish a direct causal link between the defendant's negligence and the injury sustained - the mere fact that a safety measure was not provided does not automatically lead to liability; it must be shown that the absence of the measure actually contributed to the harm.
        
        the House of Lords ruled that even though the employers breached their duty of care by not providing safety belts, they were not liable for the employee's death because the employee would not have worn a safety belt even if one had been provided.
        
        Competent staff
        
        An employer must ensure that he recruits competent staff and that an appropriate level of training & supervision is provided to ensure that employees do not pose a threat to the safety of their colleagues.
        
        Ifill v Rayside Concrete Works Ltd (1981)
        “…upon principle it seems to me that if, in fact, a fellow workman is not merely incompetent but, by his habitual conduct, is likely to prove a source of danger to his fellow employees, a duty lies…on the employers to remove that source of danger…”
        Background: The plaintiff and another employee, known for "skylarking," were both employed by the defendant concrete works company. The employer was aware of their behavior and had warned them to stop, but the warnings were ineffectual.
        
        The other employee tripped while attempting to "cradle lift" the plaintiff, causing both to fall into a cement mixer, which was only partially covered.
        
        Legal principle: The court found the employer in breach of its common law duty to recruit a competent staff of men. This duty requires employers to protect their employees from the risks of undisciplined or reckless conduct by their fellow workers, especially when the employer is aware of the dangerous behavior.
        
        Reasoning: The court determined that the "skylarking" created a "menace" in a factory with dangerous machinery. Since warnings had proven insufficient, the employer had a duty to take more serious action, such as more stringent disciplinary measures or termination, to prevent the danger from continuing. By failing to do so, the employer was negligent and liable for the injuries.
        
        “This is an unusual case, because the particular form of lack of care by the employers alleged is that they failed to maintain discipline and to take proper steps to put an end to this skylarking, which might lead to injury at some time in the future…The matter is covered not by authority so much as principle.”
        Streatfield J in Hudson v Ridge Manufacturing Co. Ltd
        employee suffered a wrist injury when a co-worker, known for his practical jokes, tackled him to the ground - employer aware that employee was a habitual practical joker and had been warned on numerous occasions about potential for harm by behavior - employer had not taken more serious disciplinary action such as dismissal - court determined employer had a common law duty to provide a safe workplace and competent colleagues - found employer failed to meet this duty - if an employer becomes aware of a habitual unruly or dangerous employee but takes no sufficient action to stop the behaviour, they can be held liable for injuries caused by that employee to a co-worker
        
        Harrison v Michelin Tyre Co
        A Michelin employee injured a colleague Harrison by pushing a trolley under the duckboard Harrison was standing on - fell and suffered and injury - court found employer liable for injury bc employee's action though a prank was considered to be "part and parcel" of his employment rather than a "frolic of his own" - an employee's unauthorized or mischievous behavior can result in employer liability if it is still connected to their employment.
        
        Waters v Commissioner of Police of the Metropolis
        Eileen Waters a police constable alleged she was raped by a fellow officer - an employer could be responsible for the discriminatory actions of an employee, even if the act itself wasn't done directly by the employer
        
        Wilsons and Clyde Coal Co Ltd v English
        Mr. English - a miner - injured by haulage machinery when it was set in motion during a shift change - company argued that they had delegated safety responsibilities to a competent agent and manager, but the court held that employer remains responsible for workplace safety - liable for agent's negligence in failing to provide that safety
        This case established that every employer must ensure that their workforce has safe access to a safe workplace; safe work systems; safe appliances; and safe fellow workers, implying that they must be competent at their job OR
        The case established three core employer duties:
        
        Safe Place of Work: Providing and maintaining a safe place of work.
        
        Safe System of Work: Implementing and maintaining a proper system of work.
        
        Competent Staff and Materials: Ensuring the use of safe equipment and hiring reasonably competent employees.
        
        Any other of the duties which are inherent in the employer's duty to take reasonable care for the health and safety of its employees
        
        warn an employee of the risks of employment, including advising of need to evacuate workplace:
        Longworth v Coppas International (UK) Ltd
        involving a petro-chemical worker who was killed following the Iranian bombing of Basra - Lord Davidson: "the basic duty of the employer to take reasonable care that the employee is not exposed to unnecessary risks and...if an employer learnt that his employee’s place of work had become part of a warzone and that the employee’s safety was imminently threatened by the activities of the combatants, nothing would excuse the employer from the duty of assessing the risk and in appropriate circumstances of advising, exhausting, or even of enjoining his employee to quit the danger area"
        
        the greater the danger of the employment, the higher the degree of care expected from the employer:
        Paris v Stepney Borough Council [1951]
        Mr. Paris, employee of Stepney BC had one functional eye - while performing duties a metal chip from a bolt struck his good eye leading to total blindless - Council aware of fact that he only had one eye - employer breached duty to employee by not providing protective goggles to Paris who worked in a role where his single eye was exposed to flying fragments - the HOL ruled that an employer owes a duty of care to an employee based on the individual employee's specific vulnerabilities
        
        a higher standard of care is required when the potential consequences of an injury are severe, even if the risk of an accident is low
        
        “At common law an employer owes to each of his employees a duty to take reasonable care for his safety in all the circumstances of the case. The duty is often expressed as a duty to provide safe plant and premises, a safe system of work, safe and suitable equipment, and safe fellow employees; but the duty is nonetheless one overall duty. The duty is a personal duty and is non-delegable. All the circumstances relevant to the particular employee must be taken into consideration, including any particular susceptibilities he may have. Subject to the requirement of reasonableness, the duty extends to employees working away from the employer's premises, which may include employees working abroad.”: Halsbury's
        
        Wilsons and Clyde Coal Co Ltd v English [1938] AC 57
        Mr. English - a miner - injured by haulage machinery when it was set in motion during a shift change - company argued that they had delegated safety responsibilities to a competent agent and manager, but the court held that employer remains responsible for workplace safety - liable for agent's negligence in failing to provide that safety
        McDermid v Nash Dredging and Reclamation Co Ltd [1987] AC 906, HL
        plaintiff employed by defendant on boat - suffered personal injury by captain's negligence during dredging operation - captain employed by a third party - HOL held defendant liable despite the captain being employed by a TP - duty to provide a safe system of work is non-delegable meaning employer remains responsible for the safety of the work system even when the its implementation is delegated to another party
        Hudson v Ridge Manufacturing Co Ltd [1957] 2 QB 348)
        employee suffered wrist injury when co-worker, known for practical jokes, tackled him to the ground - employer aware that employee was a habitual practical joker and had been warned on numerous occasions about potential for harm by behavior - employer had not taken more serious disciplinary action such as dismissal - court determined employer had a common law duty to provide a safe workplace and competent colleagues - found employer failed to meet this duty - if an employer becomes aware of a habitual unruly or dangerous employee but takes no sufficient action to stop the behaviour, they can be held liable for injuries caused by that employee to a co-worker
- - - - d. liability in negligence
        
        A person who keeps an animal owes a duty to take care that it does not become a source of harm to others. Where action under the scienter rule or in cattle trespass is not available (or even where available), the plaintiff may still recover in negligence
        
        dogs attacking a neighbour causing scalp and facial injuries
        a horse on horse-drawn carriage left unattended bites someone running by, it being the first time demonstrating such an act of aggression
        
        Duty of care: There is a duty of care imposed on every owner or a person controlling animals to take precautions to the extent reasonably expected to ensure that it does not cause harm to another either directly or indirectly.
        
        Breach of duty: it arises from the voluntary action or omission of a person in charge of an animal which falls below the reasonable man’s standard of care.
        
        Damage may be in the form of personal injuries or it could also be damage to property.
        
        In an action for negligence, the claimant is required to prove:
        
        i. that there is a special risk of injury to others; and
        ii. that particular kind of injury which occurred was foreseeable.
        
        “1. An owner or keeper of a tame animal could be held liable in negligence for damage done by the animal, quite apart from any liability under the scienter rule, if the owner or keeper had put or allowed the animal to be in such a position that it was reasonably foreseeable that damage might result.
        
        On a balance of probabilities, Gary had to prove a foreseeable risk of a pack of Jack Russell terriers wandering at large biting a child, if and when they encountered a child, and although there was no evidence before the judge of any similar experience with Jack Russell terriers, it was not possible for the court to say that the judge was wrong, on the evidence of Gary’s witnesses as to the characteristics of Jack Russell terriers as a breed, in concluding that there was such a risk and that Hodder was therefore negligent in failing to guard against it by preventing the terriers from escaping his land…
        
        “…3. In determining whether H was liable, the question to be asked was whether he ought reasonably to have foreseen that, by his failure to take any steps to confine his pack of dogs within his curtilage, substantial physical harm might well be sustained by G even though the particular type of physical harm actually suffered could not reasonably have been anticipated; taking the evidence as a whole H ought to have realized that a risk of real harm to G was involved…in that he could well have been bowled over by an onward rush of dogs to the dustbins and thereby, or by their subsequent antics (however innocent), sustain no insubstantial injury to face or body for which H ought to be made liable; accordingly, H could not escape liability on the ground that G was hurt, not bowled over and clawed or scratched on the face, but by bites which H had no reason to foresee.”
        Draper and another v Hodder [1972] 2 All ER 210 [CA]
        
        “To leave a horse and a cart unattended on a high-way is not without more, an act of negligence. On the other hand, to leave a horse and a cart upon a highway in circumstances in which the driver knows, or as a reasonable man ought to know that the horse is likely to injure a member of the public is unquestionably negligence.”
        Greene M.R., Aldham v United Dairies [1939] 4 All E.R. 522 [C.A.]
        Consider also Cutler v United Dairies [1933] 2 K.B. 297
    - - 2. Knowledge, actual or imputed, of the vice or ferocity
        “A's dog had chased and destroyed some young pheasants of B and A was held liable in a scienter action. The Court had no doubt that
        dogs do chase birds and that so far they act according to their nature, but in this case it was proved that A's dog was of a
        "peculiarly mischievous disposition" in this respect.”
        Reid v Edwards (1864), 17 C. B. (N.S.) 245.
        
        “X's bull, irritated by a red handkerchief which Y was wearing, ran at and injured Y. X was held liable. There was evidence that the bull had shown its antipathy to red by chasing on previous occasions persons who had worn it. All that the case shows is that this particular bull was fierce when it saw red; not that all bulls become fierce when they see red and are therefore acting according to the nature of bulls in charging it.”
        Hudson v Roberts (1851), 6 Ex. 697.
        
        a dog and owner living with father, dog attacking and killing another dog?
        
        There can be no liability under the scienter rule unless ownership or at, least control of the individual animal in question has been assumed by the defendant.
        
        Merely having an animal live on one's property does not make a person the owner for the purposes of animal liability law.
        North v Wood [1914] 1 K.B. 629
        
        Is a camel ferae or mansuetae naturae?
        
        Whether a species of animal is to be classified as ferae or mansuetae naturae is a question of law for the judge, to be decided either on the basis of judicial notice or on expert evidence.
        McQuaker v Goddard [1940] 1 KB 687
        
        a horse known for biting other horses bites someone for the first time?
        
        The requisite knowledge of an animal’s vicious inclination must relate to the particular proclivity that caused the damage.
        Glanville v Sutton [1928] 1 KB 571
        
        Where the animal’s attack took place is immaterial.
        
        a dog known for pulling on its chain, barking and attempting to bite passersby bites someone for the first time
        
        In establishing scienter, it is not necessary to show that the animal had actually done the particular type of damage on a previous occasion: it is sufficient to prove that it had exhibited a tendency to do that kind of harm.
        Worth v Gilling (1866), L. R. 2 C. P. 1
        
        young and untrained horses collide with a person passing through a footpath between owner's land causing injuries?
        
        Where the animal’s attack took place is immaterial. If the harm is caused by an animal mansuetae naturae, the inclination of the animal must be shown to be vicious or hostile. The defendant will not be liable if the animal was merely indulging in its proclivity towards playfulness or some other non-aggressive behaviour common in its species.
        Fitzgerald v Cooke [1964] 1 QB 249
        
        Premise on which founded: Exodus 21: 28-30
        28 “If a bull gores a man or woman to death, the bull is to be stoned to death, and its meat must not be eaten. But the owner of the bull will not be held responsible. 29 If, however, the bull has had the habit of goring and the owner has been warned but has not kept it penned up and it kills a man or woman, the bull is to be stoned and its owner also is to be put to death. 30 However, if payment is demanded, the owner may redeem his life by the payment of whatever is demanded.
        
        “A person who keeps an animal with knowledge (scienter retinuit) of its tendency to do harm is strictly liable for damage that it does if it escapes; he is under absolute duty to confine or control it so that it shall not do injury to others. All animals ferae naturae, that is all animals which are by nature not harmless, such as a rabbit, or have not been tamed by man and domesticated, such as a horse, are conclusively presumed to have such a tendency, so that the scienter rule need not in their case be proved. All animals in the second class, mansuetae naturae, are conclusively presumed to be harmless until they have manifested a savage or vicious propensity. Proof of a manifestation is proof of scienter and serves to transfer the animal, so to speak, out of its natural class into the class of ferae naturae.”
        Devlin J, Behrens vs Bertram Mills (1957) 1 AER 583
  - - - The claimant must be in possession of the land in question at the time of the trespass.
        
        “the mere acquisition of permission to tie animals upon the land of another confers upon the holder no interest in or right to possession of the land sufficient to ground an action in cattle trespass, nor could the plaintiff plead that he was entitled to damages for the harm he had sustained as a consequence of a trespass on the land of a third party.”
        Aziz v Singh [1944] LRBG 104
        
        “…the unqualified duty of keeping [the cows] from straying rested upon
        the owner or occupant of the land, which was the Government.”
        Thompson v AG Civ App No 73 of 1969
- - - - Irving v Post Office [1987] IRLR 289
        A postman for the Post Office was accused of writing racist grafitti on a wall, an act that was clearly outside the scope of his authorised duties - issue whether the Post Office could be held vicariously liable for the postman's racist act, even though it was unauthorized - court held that the employer was not liable for the postman's acts - an employer is only vicariously liable for an employee's unauthorized acts if they are "so connected with acts which he has authorised that they may rightly be regarded as modes - although improper modes - of doing them (Salmond test)
  - - - 1st ingredient to establish vicarious liability
        (The existence of a relationship sufficient to trigger the doctrine of VL)
        
        1. Whether there is an employment relationship or one akin to that
        
        It is imperative that the employer/employee relationship exists
        
        Is the person an independent contractor under a contract for services or an employee under a contract of service?
        
        (An employer is only liable for the torts of his employees and is generally not liable for those of his independent contractors: established by Quarman v Burnett)
        
        To ascertain the nature of the relationship (i.e. to distinguish between an employee and an independent contractor), numerous tests developed over time:-
        
        1. The Control Test - established by Yewens v Noakes for determining employment status
        "A servant is a person subject to the command of his master as to the manner in which he shall do his work": Bramwell J in Yewens v Noakes [1880] 6 QBD 530
        “The contract of service is one by which the employer cannot only order or require what is to be done, but how it should be done.”
        Hilbery L in Yewens v. Noakes 1880 6 QB 530
        
        This test was developed at a time when tasks were specifically and particularly dictated by the employer. This was reflected in the titles ascribed: master & servant
        
        In modern times, controlling the manner of work is only one indicium that a court may look at to determine whether a person is a worker or independent contractor.
        
        The Control Test has been described as ‘artificial, outdated and only partially helpful’. This does not mean that it is no longer used as it is applied as warranted by the circumstances.
        
        2. The Integral Part of the Business Test
        "A man is employed as part of a business and work is done as an integral part of a business": Lord Denning in Stevenson, Jordan & Harrison v MacDonald [1952] 1 TLR 101
        "...part and parcel of the organization...": Lord Denning in Bank Voor Handel en Scheepvart NV v Slatford (1953) 1 QB 248
        
        Due to the limitations of the Control Test resulting from changes in industry, particularly as it related to professional hospital staff.
        
        Stevenson, Jordan & Harrison v MacDonald distinguishes between a "contract of service" (employment) and a "contract for services" (independent contractor):
        
        "One feature which seems to run through the instances is that under a contract of service, a man is employed as part of the business, and his work is done as an integral part of the business; whereas under a contract for services, his work, although done for the business, is not integrated into it but is only an accessory to it.”
        Lord Denning in Stevenson, Jordan & Harrison v MacDonald
        
        This test distinguishes between a person engaged under a contract of service as being part of a business, whilst a person engaged under a contrast for services does work for the business, that is, as an accessory to the business/ not integrated into the business.
        
        Questions which naturally arose from this approach were:
        - Who owns the tools used?
        - Is the worker paid a lump sum or in increments?
        - Is the worker running his own business as evidenced by the payment of taxes, for example?
        
        3. The Economic Reality Test
        "If control is not a decisive test, what then are the other considerations which are relevant? No comprehensive answer has been given to this question but...factors which may be of importance are such matters as to whether the man performing the services provides his own equipment, whether he hires his own helpers, what degree of financial risk he takes, what degree of responsibility for investment and management he has, and whether and how far he has an opportunity of profiting from sound management in the performance of his task"
        Cooke J in Market Investigations Ltd v Ministry of Social Security [1969] 2 QB 173
        According to Cooke J, the fundamental test is whether the worker was performing duties as a person “in business on his own account”. If the answer to this is ‘yes’, a contract for service exists.
        
        "...the test of business or 'economic reality' essentially asks whether the worker is in business on his or her own account, as an entrepeneur, or works for another who takes the ultimate risk of loss or chance of profit.": Deakin and Morris, Labour Law
        
        This test recognised that the complexity of the modern industry required a consideration of:
        -Who exercised control?
        -Who invested in facilities, tools
        -Who bore the risk of opportunities for profit and loss?
        -The degree of skill required
        -The permanency of the relationship
        
        Lord Wright in Montreal Locomotive Works Ltd v Montreal and AG for Canada suggested a 4-fold test:
        
        control;
        
        ownership of the tools;
        
        chance of profit;
        
        risk of loss
        
        In the United States v Silk case, the US Supreme Court considered:
        
        degree of control;
        
        opportunities for profit and loss;
        
        investments in facilities;
        
        permanency of relationship;
        
        skill required
        
        The Mixed/Multiple/Composite Test (The Multi-Factor Test)
        "[T]he question is whether (a person) is carrying on that business for himself or another. It must be relevant to consider which of the two owns the assets (the ownership of the tools) and which bears the financial risk (the chance of profit, the risk of loss). He who owns the assets and bears the risks is unlikely to be acting as an agent or servant"
        Mac Kenna J in Ready Mixed Concrete (SE) Ltd v Minister of Pensions [1968] 2 QB 497
        “A contract of service exists if the following three conditions are fulfilled:
        i. the servant agrees that in consideration of a wage or other remuneration he will provide his own work and skill in the performance of some service for his master;
        ii. He agrees, expressly or impliedly, that in the performance of that service he will be subject to the other’s control in a sufficient degree to make that other master;
        iii. The other provisions of the contract are consistent with its being a contract of service”:
        -Mac Kenna J in Ready Mixed Concrete (SE) Ltd. v. Minister of Pensions [1968] 2 QB 497
        
        OTHER EMPLOYMENT RELATIONSHIPS
        
        Apart from these ‘tests’ to distinguish between an employee and independent contractor, the courts have recognised other employment relationships from which liability has to be deduced.
        
        a. Casual workers e.g. waiters
        Refers to workers who are not permanently employed with an employer. Such workers are under the control of and integrated into the organisation for the duration of their employ. However, there was no 'mutuality of obligation' as the worker decided whether to work when asked.
        
        O'Kelly v Trusthouse Forte plc [1983] ICR 728
        waiters who regularly worked banqueting functions at a hotel were dismissed after they tried to organize a trade union - they argued they were employees and their dismissal was unfair - legal isssue whether the waiters were employees with contracts of service or contracts for services (independent contractors)
        Court ruled that casual waiters were not employees, but independent contractors, because there was no "mutuality of obligation" between them and the hotel - the waiters had no obligation to work and the hotel had no obligation to offer them work
        
        Autoclenz v Belcher [2011] UKSC 41 SC??
        UKSC ruled that the car valeters were employees, not independent contractors, and therefore entitled to employment rights - confirmed that written contracts (which included clauses allowing for subcontracting the work to someone else) can be ignored if they do not reflect the reality/ true nature of the working relationship between parties
        
        b. Borrowed servants
        Refers to where an employer ‘subcontracts’ an employee to another employer for the duration of a specified job. It is during the course of the ‘subcontract’ that the tort is alleged to have occurred.
        Mersey Docks and Harbour Board v Coggins and Griffith [1974] AC 1
        a crane operator employed by Mersey was subcontracted/hired out to Coggins and Griffith to operate a crane - the operator caused an accident through his negligence while using the crane - who vicariously liable for operator's negligence?
        HoL held Mersey liable - Court determined that Coggins and Griffith did not have the right to control the way the driver operated the crane, only the task the crane was to perform - the driver remained an employee of Mersey and therefore was responsible for his negligence because they employed him and retained the right to control the method of his work
        
        c. Dual Vicarious Liability
        This refers to a situation where a general employer and a special employer are both liable for an employee’s tort.
        Viasystems v Thermal Transfer [2005] 4 AER 1181
        Viasystems contracted with Thermal Transfer for air conditioning installation. Thermal Transfer sub-contracted the ducting work to S&P Darwell Ltd who in turn hired fitters and mates from CAT Metalwork Services
        A fitter's mate Strang employed by CAT was supervised by an employee from S&P Darwell while working under his own fitter - While fetching parts, Strang crawled through already-installed ducting, causing it to shift and rupture a sprinkler system leading to a flood
        Whether both S&P Darwell (direct employer) and Thermal Transfer (the borrowing employer) could be held Vly Liable for Strang's negligence as both retained a degree of control over his work - Court foud both S&P Darwell and CAT were vicariously liable because both had control over the negligent employee's actions
        the court held that where both employers exercised some form of control over the employee then both might be liable. The court outlined three alternatives. The general employer, the temporary employer or both employers are jointly liable.
        
        Hawley v Luminar Leisure [2006] EWCA Civ 18
        A doorman employed by a security firm but supplied to a nighclub owned by Luminar Leisure Ltd punched a patron causing him severe and permanent brain damage - Whether LL was vl for the doorman's actions despite not being his general employer - court determined that the club was "temporary deemed employer" because it exercised significant and detailed control over the doorman's activities and the manner in which they were performed - Luminar owner of club held vl for the doorman's tortious act
        
        d. Vehicle owners and casual agents
        “The owner is liable if the driver is his agent, that is to say, if the driver is, with the owner’s consent, driving the car on the owner’s business or for the owner’s purposes.
        The law puts an especial responsibility on the owner of a vehicle who allows it to go on the road in charge of someone else, no matter whether it is his servant, his friend or anyone else. If it is being used wholly or partly on the owner’s business or for the owner’s purposes, the owner is liable for any negligence on the part of the driver.”
        Lord Denning in Ormrod v Crosville Motor Services Ltd [1953] 2 AER 753
        The owner of a car asked a friend to drive it from Birkenhead to Monte Carlo - the plan was for the owner and friend to go on a holiday together - however before meeting with the owner in Monte Carlo the friend intended to see a friend in Normandy - during this trip to Normandy, the driver caused an accident due to negligence - Issue whether owner could be held vl for the accident even though the driver was driving the car at his request and also using car for his own personal purposes
        Court of Appeal found the owner VL because the driver was not just driving for personal reasons but also to convey the car to Monte Carlo for the owner's vacation - this the court regarded as a common purpose - the owner and driver formed an agency relationship as a result of their shared interests / objective
        Because the owner had a vested interest in the car's arrival in Monte Carlo, he was liable
        extension of VL beyond master-servant to include situations where a driver is acting as a "casual agent" of the car's owner, even for a joint purpose
        Hewitt v Bonvin [1940] 1 KB 1888
        A son was driving his mother's car to take some friends home and was involved in an accident due to his carelessness, killing a passenger - whether the son was an agent or servant of the father and that the father was therefore vl - father not liable for his son's careless driving bc the son was not his servant or agent at the time, nor was he driving for his father's purpose
        The owner had "no interest in the performance of the journey"
        
        e. Independent Contractors
        “The liability of an employer for the tort of a person in his employment generally does not arise merely from the fact that a person is engaged to do work on the employer's behalf if that person is in business on their own account, ie that person is an independent contractor. Accordingly, the employer is not generally liable for the torts of the employees of that independent contractor, and any person injured thereby must look to the independent contractor for compensation.”
        -Halsbury's Laws of England
        
        There are, however, certain circumstances in which liability may be found.
        Waithe v Natural Gas Corporation
        A contractor was negligent in allowing a temporary excavation on a highway to become a dangerous hole that posed a risk and could cause injury to the public - The Natural Gas Corporation by employing an independent contractor for dangerous work had a non-delegable duty to ensure that the public would not be injured by the contractor's negligence - Corporation held liable for the negligence of the independent contractor because the work itself was likely to cause danger and harm to public
        
        f. Improper delegation
        Where a servant improperly delegates his duties to an unqualified third party, his employer will not be liable for any negligence of that 3rd party [even where the 3rd party is also his employee], but he will be liable for the negligence of the servant in allowing an unqualified person to act.
        
        Persaud v Verbeke [1971] LRG 1
        D had engaged J as his agent to operate his vehicle as a hire car - The car became hooked on to a refuse box in the street, with its rear wheel embedded in mud
        In his attempt to extricate the car, J asked E, an authorized person, to drive the car forward while J lifted it up at the rear. In the course of the operation, the car accelerated forward, mounted the siewalk and struck and killed an elderly fruit vendor
        D was held vicariously liable for J's negligence in failing to ascertain whether E was a competent driver before allowing him to drive the car
        
        Brown v Brown (1972) 12 JLR 883
        The driver/servant had allowed an unauthorized third party, who was in fact a “competent and licensed driver”, to drive his employer’s van. Through the substitute driver’s negligence, the van collided with the P’s car and caused damage.
        Held: the employer of the driver/servant was liable for damage, on the grounds that the vehicle was being used for the employer’s purposes and the driver/servant was present when the negligent driving was going on, and in a position to control the substitute driver. The submission that the owner of a vehicle is liable only if his authorized driver allows an incompetent substitute to drive the vehicle was rejected. The proper basis of the master’s liability in cases of improper delegation is not that the servant delegated his task to an incompetent person, but that the servant was present at the time and remained under a duty to control the driving of the vehicle.
      - 2. Whether the wrong was committed in the course of the employment or there is a sufficiently close connection between the tort (for which it is sought to hold the employer liable) and the employment: per Lord Phillips in Catholic Child Welfare Society v Various Claimants [2012] UKSC 56, [2013] 1 All ER 670, [2012] 3 WLR 1319)
        
        The following are considered in determining the course of employment:
        
        Whether the act/omission is expressly or impliedly authorized by the employer?
        
        Whether the act/omission is an unauthorized manner of doing an authorized act?
        
        Whether the act/omission is incidental to something the employee is required to do?
        
        The focus is not so much on the wrong committed as upon the act being done when the wrong was committed.
        
        The focus is not so much on the wrong committed as upon the act being done when the wrong was
        committed. Thus, the following are also contemplated:
        1. Whether the act/omission took place during/close to work hours?
        
        2. Whether the act/omission occurred on the work site? In the case of persons who work outside of a physical building, takes place where the employee is supposed to be?
        
        What does the law say?
        An employee speeding on compound causing injury to another employee?
        “Thus in cases such as the present, unless the circumstances of the entry to the employers’ premises are such as, for instance, to make it a frolic of the employee’s own, or unless the purposes of the entry were…that he was merely coming back to collect a coat which he had left behind, then in my judgment the course of the employment prima facie begins and the conditions giving rise to vicarious liability are fulfilled when the employee comes onto his employers’ premises in order to start the work he is employed to do.”:
        Compton v Mc Clure [1975] ICR 378
        
        A janitor using someone's telephone to make overseas calls?
        “…before the master can be held to be vicariously liable for the acts of the servant there must be established some nexus other than mere opportunity between the tortious or criminal act of the servant and the circumstances of his employment. In the present case, apart from the obligation to dust and once a week to disinfect the telephone, there is nothing more than the provision of the opportunity to commit the tort or crime. Notwithstanding Mr Beecroft's able submission that the gaining of access to the premises in the first place established a sufficient nexus between the employment and the act of the servant, I am not satisfied that in the circumstances of this case the tenuous connection between the two comprises a sufficient nexus between the employment of the servant…and the employers”:
        Purchas LJ, in Heasmans v Clarity Cleaning Co Ltd [1987] IRLR 286
        police officer using a baton at a family event?
        “…“This Court also considered the Sections 45 and 46 of the Police Service Act in determining the relative closeness of the connection between the nature of the employment and the torts of assault and battery. The actions of the Second Defendant subsequent to the kitchen incident after the brawl in the kitchen deescalated does not accord with the Second Defendant’s duties as outlined in Section 45… the Second Defendant in this case was at the Claimant’s home as a visitor, he was there in a social setting and was not there as a policeman. When he was invited into the Claimant’s home his presence was not in furtherance of his duties under Section 45…The course of action which he engaged was pursued on his own time while he was off duty and his behaviour was not closely connected to his mandate as a police officer. It can never be contemplated that a police officer would enter a person’s home without a warrant or when no unlawful act is unfolding and proceed to assault an occupant of that home and that such action should saddle the State with culpability”: Seepersad J, Anton Licorish v AGTT and PC No. 20729 Jervon Ramie CV2022-00437
        
        a priest sexually assaulting a person who does odd jobs for him
        Maga v Birmingham Archdiocese Roman Catholic Church [2010] EWCA (Civ) 256
        The Court of Appeal referred to the five factors which had been identified as relevant when considering that requirement. They were:
        
        the opportunity afforded by the Archdiocese to the priest to abuse his power
        
        the extent to which the abuse of the claimant may have furthered the aims of the Archdiocese
        
        the extent to which the abuse was related to the intimacy inherent in the functions of the Archdiocese or the Church
        
        the extent of the power conferred on the priest in relation to the claimant
        
        the vulnerability of potential victims to the wrongful exercise of the priest’s power.
        The COA also considered the status and functions of a priest, including his evangelising duties, the fact that those functions involved one-to-one meetings, the priest’s specific functions in relation to the young, and the apparent absence of any supervision of the priest.
        
        “…the fact that the opportunity to commit abuse arises as a result of the employment is not enough (paras 53–56), but, as I have sought to explain, there was much more here…. For all these reasons, I consider that, on the facts of this case, the test laid down by Lord Steyn in Lister’s case [2002] 1 AC 215, para 28, is satisfied. Father Clonan’s sexual abuse of the claimant was “so closely connected with his employment” as a priest at the church “that it would be fair and just to hold the [archdiocese] vicariously liable”. Accordingly, I would allow the claimant’s appeal against the judge’s dismissal of his claim in so far as it is based on vicarious liability.”: Lord
        Neuberger of Abbotsbury MR in Maga v Birmingham Archdiocese of the Roman Catholic Church [2010] EWCA (Civ) 256
        
        A police officer using a service revolver on someone taking too long to use a public facility-
        “…As the facts in this case establish, however, there can be no doubt that the Constable was here acting outside of the express or implied powers accorded to him by virtue of Section 13 of the Constabulary Force Act. As his conduct in this regard could not be seen as coming within a class of acts connected or closely connected with the authorized acts so as to be regarded as a mode of doing them, it was, therefore, an independent act. The state as his employer was, therefore, not vicariously liable as the Constable was not acting within the scope or course of his employment, but had gone outside it”: Bernard v Attorney General of Jamaica Supreme Court Civil Appeal No: 67/2000
        “…Three features of the case must be considered. It is of prime importance that the shooting incident followed immediately upon the constable’s announcement that he was a policeman, which in context was probably calculated to create the impression that he was on police business…Moreover one must consider the relevance of the risk created by the fact that the police authorities routinely permitted constables…to take loaded service revolvers home, and to carry them while off duty.”: Bernard v Attorney General of Jamaica (2004) Privy Council Appeal, No. 30 of 2003
        
        A clinical co-ordinator not happy with manager's treatment of her, claimed to be bullied and intimidated, unrealistic targets and threats of disciplinary action, said it was fuelled by homophobia -
        “As I see it, the matter of most concern to employers is the prospect of abuse in cases of alleged workplace harassment. Employers fear the prospect of a multiplicity of unfounded, speculative claims if they are vicariously liable for employees' harassment. Disgruntled employees or ex-employees, perhaps suffering from stress at work unrelated to harassment, perhaps bitter at being dismissed, will all too readily advance unmeritorious claims for compensation for harassment. Internal grievance procedures will not always satisfy an employee who is nursing a grievance…”: Lord Nicholls of Birkenhead in Majrowski v Guy’s & St Thomas’ NHS Trust [2007] 1 AC 224
        
        “…This is a real and understandable concern. But these difficulties, and the prospect of abuse, are not sufficient reasons for excluding vicarious liability. To exclude liability on these grounds would be, to use the hackneyed phrase, to throw the baby out with the bathwater. It would mean that where serious harassment by an employee in the course of his employment has occurred, the victim-who may not be a fellow employee-would not have the right normally provided by the law to persons who suffer a wrong in that circumstance, namely, the right to have recourse to the wrongdoer's employer. The possibility of abuse is not a good reason for denying that right. Courts are well able to separate the wheat from the chaff at an early stage of the proceedings. They should be astute to do so. In most cases courts should have little difficulty in applying the "close connection" test. Where the claim meets that requirement, and the quality of the conduct said to constitute harassment is being examined, courts will have in mind that irritations, annoyances, even a measure of upset, arise at times in everybody's day-to-day dealings with other people. Courts are well able to recognise the boundary between conduct which is unattractive, even unreasonable, and conduct which is oppressive and unacceptable. To cross the boundary from the regrettable to the unacceptable the gravity of the misconduct must be of an order which would sustain criminal liability under section 2..”:
        Lord Nicholls of Birkenhead in Majrowski v Guy’s & St Thomas’ NHS Trust [2007] 1 AC 224
        
        The Salmond Test
        
        An employer is deemed vicariously liable for the act of a servant where the act “…is either
        
        (a) a wrongful act authorised by the master, or
        (b) a wrongful and unauthorised mode of doing some act authorised by the
        master.”:
        -Salmond, Law of Torts, 1st edn (1907)
        
        Acts which fell outside of these are regarded as the servant being "on a frolic of his own"
        Joel v Morison (1834) 172 ER 1338
        A servant of Morison had a task to travel between two specific locations for his employer. However, he had taken a detour to visit a friend and hit Joel
        Morison argued that he should not be held liable because his servant had deviated from the original path of his employment.
        The court held that the employer was still liable. The reasoning was that the servant was still on the master's business, even with the detour.
        “The master is only liable where the servant is acting in the course of his employment. If he was going out of his way, against his master’s implied commands, when driving on his master’s business, he will make his master liable; but if he was going on a frolic of his own, without being at all on his master’s business, the master will not be liable.”
        
        or
        It is necessarily incidental to something which the employee is employed to do:
        -Kodilinye, Commonwealth Caribbean Tort Law 5th edn
        
        The Lister/Close Connection Test
        “Employing the traditional methodology of English law, I am satisfied that in the case of the appeals under consideration the evidence showed that the employers entrusted the care of the children in Axelhome House to the warden. The question is whether the warden’s torts were so closely connected with his employment that it would be fair and just to hold the employers vicariously liable. On the facts of the case, the answer is yes. After all, the sexual abuse was inextricably interwoven with the carrying out by the warden of his duties in Axelholme House. Matters of degree arise. But the present cases clearly fall on the side of vicarious liability”;
        Lord Steyn, in Lister v Hesley Hall [2002] 1 AC 215
        
        It is fair and just to hold the employer vicariously liable?
        “…whether the warden’s torts were so closely connected with his employment that it would be fair and just to hold the employers vicariously liable”:
        Lord Steyn, in Lister v Hesley Hall [2002] 1 AC 215
        
        The employment is closely connected to the wrongful act?
        “…the closeness of the connection between the employee’s duties and
        his wrongdoing”:
        Lord Millett, in Lister v Hesley Hall [2002] 1 AC 215
        
        Considerations
        
        1. Authorised acts and wrongful ways of doing the acts
        Century Insurance v. Northern Ireland Road Transport Board [1942] AC 509
        A driver for the Northern Ireland Road Transport Board was delivering petrol - while transferring fuel he lit a cigarette and carelessly discarded the match starting a fire and causing damage to a petrol station - transport company liable for driver's negligence?
        Court ruled that employer was liable - the driver's act of smoking though personal behavior, occurred while he was carrying out the employer's duties of delivering petrol - therefore the negligent act was so closely connected to his employment that it was considered to have occurred in the course of his employment - employer held Vly liable.
        
        Rose v Plenty [1976] 1 AER 202
        an employer was held vicariously liable for the injuries of a boy who was helping a milkman, even though the employer had explicitly forbidden the milkman from using any helpers. Plenty was still acting in the general scope of his employment delivering milk even though doing so in an unauthorized way.
        
        Beard v London General Omnibus Co. [1900] 2 QB 5302.
        The conductor of a bus, while the bus driver was away drove the bus himself to turn it around and in doing so negligenty hit and injured a man - the employer was not liable for the conductor's negligence under VL because the conductor's act of driving was outside the scope of employment (driving on side streets and at a fast pace was were not tasks he was employed to do) - deemed to be acting on a "frolic of his own" and employer not vl for his actions
        The employer may be liable for the negligence of his driver in failing to keep proper control
        
        2. Frolics
        Joel v Morison
        A servant of Morison had a task to travel between two specific locations for his employer. However, he had taken a detour to visit a friend and hit Joel
        Morison argued that he should not be held liable because his servant had deviated from the original path of his employment.
        The court held that the employer was still liable. The reasoning was that the servant was still on the master's business, even with the detour.
        “The master is only liable where the servant is acting in the course of his employment. If he was going out of his way, against his master’s implied commands, when driving on his master’s business, he will make his master liable; but if he was going on a frolic of his own, without being at all on his master’s business, the master will not be liable.”
        Whatman v. Pearson (1868) LR 3 CP 223
        An employee against strict instructions, drove the employer's horse and cart home for his midday meal - the employee deviated from his route but only by a small amount - Court determined that the employee's trip was not a "frolic of his own" because it was for a purpose of getting food that was a reasonbly incidental part of being employed / reasonably incidental to employment thus not on a frolic of his own
        
        Storey v. Ashton (1869) LR 4 QB 476
        a wine merchant who diverted from his delivery route to visit a friend and was involved in an accident injuring a person was found to be on a “frolic of his own” and his negligence was found to be outside the course of his employment.
        
        Dunkley v. Howell (1975) 24 WIR 293
        instructed to drive Mrs. W to point A and then to point B and nothing else. However, after dropping Mrs. W to point A, he drove to point C and got into an accident upon returning to point A - he was deemed to be on a frolic of his own
        
        3. Prohibitions where the court held that the driver of the vehicle was acting outside of the course of employment.
        Twine v Bean’s Express [1946] 1 All E.R. 202
        an employee driver gave an unauthorized passenger Twine a lift home and killed him due to reckless driving, if the employer does not derive no benefit from the forbidden act, he may not be vicariously liable. There was a notice on the vehicle stating, “No unauthorised person is allowed on the vehicle”.
        
        Rose v Plenty [1976] 1 All E.R. 97
        an employer was held vicariously liable for the injuries of a boy who was helping a milkman, even though the employer had explicitly forbidden the milkman from using any helpers. Plenty was still acting in the general scope of his employment delivering milk even though doing so in an unauthorized way.
        Twine is often distinguished from Rose on the ground that the giving of the lift in that case was not for the benefit of the employer, whereas in Rose the P’s presence on the milk float was to further the employer’s business.
        
        4. The Incompetent Dilettante
        This relates to the unlawful carelessness of the employee, e.g. deviations by drivers from routes authorized by their employers – a question of degree, time and space. It is necessary to ask: Where was the employee when the accident occurred and what was the employee doing?
        
        Storey v Ashton (1869) LR 4 QB 476
        a wine merchant who diverted from his delivery route to visit a friend and was involved in an accident injuring a person was found to be on a “frolic of his own” and his negligence was found to be outside the course of his employment.
        Century Insurance v. Northern Ireland Road Transport Board [1942] AC 509
        A driver of a petrol lorry for the Northern Ireland Road Transport Board was delivering petrol - he lit a cigarette and carelessly discarded the match starting a fire and causing damage to a petrol station - transport company liable for driver's negligence?
        Court ruled that employer was liable - the driver's act of smoking though personal behavior, occurred while he was carrying out the employer's duties of delivering petrol - therefore the negligent act was so closely connected to his employment that it was considered to have occurred in the course of his employment - employer held Vly liable.
        
        Compton v McClure [1975] ICR 378
        McClure was late for work and in an effort to arrive on time, he drove onto the employer's property too quickly - his reckless driving caused him to injure Compton - employer vl for act of employee? - court determined the employer was VL bc the employee's negligent actions were still within the time and place of their employment - the "course of employment" was considered to include the act of arriving @ the workplace, even if the method was improper.
        
        Smith v Stages [1989] AC 928
        an employee was involved in a road accident travelling back to his normal place of employment after having been working elsewhere - this was held to be w/in the course of employment as the worker was paid as a normal working day for his day of travel
        
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