Professional Documents
Culture Documents
Policy basis more liberal protection of innocent 3rd parties per Wilberforce L in Kooragang Questions to ask: 1)Has a tort been committed? 2)If so, what is the relationship between the wrongdoer and the person alleged to be VL for it? is there an EE-ER relationship or in course of employment? 3)What is the connection between the tort and the relationship in question? ie authorised mode of doing it? Classic Test: The Salmond Test A master is so liable for acts which he has not authorised provided they are so connected with acts which he has authorised that they might rightly be regarded as modes although improper modes of doing them. Canadian Pacific Railway Co v Lockhart [1942] PC Salmond on Torts quoted Salmond test (above) by Thankerton L and also said.
If master or employer has authorised the act he is liable On the other hand if the unauthorised and wrongful act of the servant is not so connected with the authorised act as to be a mode of doing it, but is an independent act, the master is not responsible; for in such a case the servant is not acting in the course of his employment, but has gone outside of it.
Course of Employment The courts have repeatedly held that no single thread of principle runs through the decisions in this area (Sellers J in Kay v ITW Ltd [1968] QB) and that decisions turn on their own facts (OLeary CJ in Pettersson following Lockhart). Pettersson v Royal Oak Hotel Ltd [1948] NZ CA Issue: was the act (of throwing the glass) done as part of the barmans job ie in the course of employment? Smith J - distill it all down & one of the barmans duties was to keep order. Salmond Test this act was an unauthorised mode of keeping order. Was held that it was albeit and improper mode. Auckland Workingmens Club v Rennie [1976] NZA club manager (responsibility to maintain order) told a patron to leave after closing time. Altercation CM attacked the patron. Where its claimed that an ER is VL for an intentional tort committed by his EE the onus is on the P to prove the servant had real or ostensible authority from his employer to commit the deliberate act which constitutes the gist of the Ps cause of action The act was a gratuitous and unprovoked act which had nothing at all to do with the performance of his duties as house manager. Pettersson distinguished. Where an intentional tort has been committed by the servant the real test as to the vicarious liability of the ER lies in an assessment of the motivation of the servant. Was the servant actuated by allegiance to his employer or predominantly by personal motives unconnected with his employer's business?
Commercial Assurance Co of NZ Ltd v Lamont [1989] CA Confirms Pettersson its question of fact and degree The ER is still liable under this principle even if the EE's conduct was criminal: Pettersson extended? Case about laundry where garment was stolen no thats Morris v CW Martin and Sons Ltd [1966] 1. INTENTIONAL TORTS AND VL Nature of the obligations undertaken by the ER in respect of the P and the extent of empowerment of the tortfeasor in respect of the obligations. Therefore, it is necessary to consider: Where the act took place, and at what time or time-frame Whether there was anyone else responsible at the time Was there interaction generally in the course of employment Did the ER choose the EE with care points to primary or direct liability Brown v Robinson (2004) Privy Council from Jamaica. Security guard shot a 17 year old boy at a soccer match. PC reversed the CA decision and held the company VL as the EE was acting in an unauthorised way but as part of the job given the gun by the ER. Lister test applied. 2. VL FOR SEXUAL ASSAULTS Lister v Hesley Hall [2001] HL Issue: whether, as a matter of legal principle, the ERs of the warden of a school boarding hostel, who sexually abused boys in his care, may depending on the particular circumstances be VL for the torts of the EE? - Look at the aim of HH: to provide care and to enable boys to adjust to normal living, and the duties of the warden eg to put them to bed etc - Held liable the warden the law is mature enough to hold an employer vicariously liable for deliberate, criminal wrong doing on the part of an employee. not that he failed to take care of the boys. Case followed Morris below photo production v security transport ltd. Security firm held VL for patrolmans arsen not for the negligence. Morris v C W & Sons [1966] CA UK VL followed as the stole was converted in the course of employment - Obiter suggested the decision would be different if the stole had been removed by someone who had no responsibility for it ie a caretaker. 3. INDEPENDENT CONTRACTORS General Rule: generally a person who employs an IC is not VL solely on the basis that the IC has been negligent. -NB: distinguish between EEs and ICs, that is, a K of service and a K for service per Casey J in TNT cant be a K for services for some purposes and a K of service for others TNT Worldwide Express (NZ) Ltd v Cunningham [1993] NZ CA per McKay J: The classic test for distinguishing between an EE and an IC Performing Right Society Ltd v Mitchell and Booker Ltd [1924] KB.
It is the power to control the manner of performance that is relevant, rather than its actual exercise. ADD this to the new test.
Per Cooke P the fundamental test to distinguish btwn a EE and a IC which the PC approved as fundamental test in Lee Ting Sang v Chung Chi-Keung [1990] endorsing passage from Market Investigations Ltd v Minister of Social Security [1969] QB Is the person who has engaged himself to perform these services performing them as a person in business on his own account? T he passage went on to say that control will no doubt always have to be considered, although it can no longer be regarded as the sole determining factor. Other matters mentioned as being of possible importance include: o whether the man performing the services provides his own equipment; o whether he hires his own helpers; o what degree of financial risk he takes; o what degree of responsibility for investment in management he has, and o whether & how far has opportunity of profiting from good managmnt in performance of his task However deciding factor = had a contract which called him an IC! 4. DIRECT LIABILITY Separate from any question of VL, an ER may be directly liable for a EE's misconduct (even if the EE is at law an IC) because of the ER's own negligence in, for example, -failure to ensure that the EE is duly qualified -failure to provide the EE with adequate instructions as to the conduct req -failure to maintain the EE's premises in good repair -poor design or manufacture of a product -poor design of franchise premises or the operating methods over which the ER has control or right of control. -More controversial is the failure of the ER to adequately supervise the EE's activities. Primary Duty select with due care a contractor you feel will himself take due care whilst working D & F Estates Ltd v Church Commissioners for England [1989] HL Per Bridge L: 2 Approaches -The general rule is adopted but exceptions arise eg when dealing with ultra-hazardous activity. Reason lies in EE/ER relationship -A principal is never liable for the actions of an IC but may owe a primary non-delegable duty Cashfield House Ltd v David and Heather Sinclair Ltd [1995] NZ HC Portcullis was employed as a contractor to do some work, during which they negligently damaged a water sprinkler and the tenants lost $$ etc.. The tenants alleged Cashfield could be held VL, and Cashfield appealed. Tipping J followed the 2nd approach and held under the common law of New Zealand
-A principal had no VL for the negligence of an independent contractor on the basis that the activity involved was a particularly hazardous one or on any other basis -The principal might nevertheless in some circumstances owe a primary non-delegable duty of care and thus be liable to those to whom the independent contractor was liable and another duty to who could be foreseeable damaged if the independent contractor had been negligent -Which duty might include a duty to select, instruct and sometimes to supervise the independent contractor with reasonable care. -The greater the expertise of the independent contractor & the more specialised the task the less call there might well be for the involvement of the principal beyond selection and instruction. -If the principal had selected and instructed the independent contractor with the skill and care appropriate to the occasion, the principal should generally be entitled to leave the task to the independent contractor without further supervision. If the principal did so there would be no liability unless the principal owed a non-delegable primary duty to those damaged by the independent contractor's negligence
Questions
1) Is seems to me that Pitterson v royal oak, and gentelmans club v Renee. Are inconsistent. I dont see how the throwing a class at someone who been asked to leave because theyre too drunk, and fighting someone cos its closing time is any different. With regard to modes of doing your work. Gentalemens club the violence was unprovoked. And Pieterson the injured party was a 3rd person. But thats not said to have bearing on whether the court finds it was a mode of doing work or going outside the job.