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Tort Law (Vicarious Liability)

Tort Law (Vicarious Liability) - Vicarious liability...

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Vicarious liability Elements of vicarious liability Modern Analysis - A wrong has to be committed - There has to be a special relationship recognized by lay between the wrongdoer and the defendant - There must be a connection between the act of the wrongdoer and his special relationship with the Defendant Traditional test of control Market Investigations Ltd v. Minister of Social Security (1969) - Is the person who has engaged himself to perform these services performing them as a person in business on his own account? If yes, it is a contract for service. If no, contract of service (employment) Ready Mixed Concrete v Minister of pensions (1968) (owner drivers were paid a fixed mileage rate-were required to buy trucks from the company-wear uniforms and abide by rules including not to alter or sell vehicle withouth consent) It was held that despite some degree of control, the essential character of relationship was nonetheless one of a contract for services However more recently the local position: Kureoka v CPF Board (1991) Employees are under 7 indicia of control - Management control over hostesses (dress code, choice of clients, expected to work a minimum of 20 days a month) - Hostesses rendered services personally - Hostesses had no stake/share in the business - Hostesses were not free to price their own services - There was a notice period for termination - Hostesses not required to exercise special skill or judgment (no training) - Hostesses were an integral part of the business Integration in business Stevemson Jordan & Harrison v MacDonald (1952)
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Denning LJ “Common feature of contract of service is that a man is employed as 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 accessory to it” Integration considerations - Allocation of Financial risk (who takes the chance of loss and profit? Employees get fixed pay regardless) - Formal intention of the parties - Skill and judgment of Servant (there is a weak presumption that highly skilled professionals or workers are IC’s, ceteris peribus. Rationale for this was that there was a limited scope for direction or control of very skilled professionals e.g. Consultants in hospitals were not full time professional staff and are independent contractors Cassidy v Ministry of health ) Special problem of the Lent servant Mersey Docks Harbour Board v Coggins & Griffiths Ltd (1946) (Board leased mobile crane together with driver to Coggins. The lease provided that the driver be regarded as Coggins’ employee but was to be paid by the Board who retained power to fire. Coggins were entitled to direct the driver as to where and what to do, but not how to do it. The driver negligently injured X with a Crane. Question was whether the driver was Coggins’ servant or the Board’s) It was held that the driver was the Board’s servant - Viscount Simon: ‘burden of proof rests upon the geberal or permanent
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