References: [2009] EWCA Civ 1203, (2010) 11 BMLR 131, [2010] PIQR P7, [2010] Med LR 1
Links: Bailii
Coram: Sedley, Dyson, Smith LJJ
Ratio: The claimant parents each carried a gene making any child they bore liable to suffer a serious condition. On a pregnancy the mother’s blood was sent for testing to the defendants who sent it on to the second defendants. The condition was missed, despite doubts about the adequate of the sample, and the pregnancy continued. The child was born with the disease. The court had found negligence and apportioned the damages.
Held: The court had fallen into error in not accepting the expert descriptions of normal good practice. The testing hospital was able to assume the adequacy of the sample unless informed of this by the testing agency. The hospital laboratory carried none of the liability.
Dyson LJ said that any departure from the general rule as to the liability of an employer for the acts of others had to be justified on policy grounds. If the position were to be otherwise, there was a danger that the general rule would become the exception rather than the rule, and that is not the law.
This case cites:

• Cited – Wilsons and Clyde Coal Co Ltd v English HL ([1938] AC 57, Bailii, [1937] UKHL 2)
  The employer had entrusted the task of organising a safe system of work to an employee as a result of whose negligence another employee was injured. The employer could not have been held liable for its own negligence, since it had taken all . .
• Cited – Kondis v State Transport Authority (Austlii, [1984] HCA 61, (1984) 154 CLR 672, (1984) 55 ALR 225, (1984) 58 ALJR 531, (1984) Aust Torts Reports 80-311)
  (High Court of Australia) Mason J discussed the concept of the personal duty which Lord Wright expounded in Wilson and said that it made it impossible to draw a convincing distinction between the delegation of performance of the employer’s duty to . .
• Cited – D and F Estates v Church Commissioners for England HL (Bailii, [1988] UKHL 4, [1989] AC 177)
  The House considered the liability of main contractors on a construction site for the negligence of it sub-contractors.
  Lord Bridge said: ‘It is trite law that the employer of an independent contractor is, in general, not liable for the . .
• Cited – Gold v Essex County Council CA ([1942] 2 KB 293)
  The hospital was held accountable for an injury caused by negligence of an employee radiographer. The main issue was whether the authority could be vicariously liable even for employees in cases where their employment called for the exercise of . .
• Cited – Cassidy v Ministry of Health CA ([1951] 2 KB 343)
  The court considered the liability in negligence of the respondent for the negligence of doctors employed by it.
  Held: The Ministry was liable for the negligence of doctors who were employed by it on contracts of service.
  Denning LJ . .
• Cited – A v Ministry of Defence; Re A (A Child) CA (Times 17-May-04, Gazette 03-Jun-04, Bailii, [2004] EWCA Civ 641, [2005] QB 183)
  The wife of a British Army soldier serving in Germany delivered a premature baby, ‘A’, with a German obstetrician in a German hospital. A suffered brain damage in the birth as a result of the obstetrician’s negligence. The mother claimed against the . .
• Cited – X (Minors) v Bedfordshire County Council; M (A Minor) and Another v Newham London Borough Council; Etc HL (Independent 30-Jun-95, Times 30-Jun-95, [1995] 2 AC 633, Bailii, [1995] UKHL 9, [1995] 2 FLR 276, [1995] 3 All ER 353, [1995] 3 WLR 152, [1995] 3 FCR 337)
  Damages were to be awarded against a Local Authority for breach of statutory duty in a care case, only if the statute was clear that damages were capable of being awarded. in the ordinary case a breach of statutory duty does not, by itself, give . .
• Cited – Priestley v Fowler (, Commonlii, [1837] EngR 202, (1837) 3 M & W 1, (1837) 150 ER 1030)
  Priestley was a butcher’s man who was injured when a van overloaded by fellow employees collapsed, injuring him. His lawsuit was founded on the principle of a master’s vicarious liability for his servant’s negligence. . .
• Cited – Bartonshill Coal Co v Reid HL ((1858) 3 Macqu 265)
  A workman had been killed through the overturning of the miners’ cage, the engineman having failed to stop the ascending cage at the platform and having allowed it to be sent with great force up against the scaffolding. An allegation was made that . .
• Cited – Ellis v Wallsend District Hospital ([1990] 2 Med LR 103, (1989) 17 NSWLR 553)
  (Court of Appeal of New South Wales) Samuels JA discussed the circumstances in which a non-delegable duty of care arises: ‘It arises from a relationship which combines the dependence of A upon the reasonable care, skill and judgment of B with the . .
• Cited – Roe v Ministry of Health CA ([1954] 2 QB 66, Bailii, [1954] 2 All ER 131, [1954] 2 WLR 915, [1954] EWCA Civ 7)
  The plaintiff complained that he had developed a spastic paraplegia following a lumbar puncture.
  Held: An inference of negligence was rebutted. However the hospital authority was held to be vicariously liable for the acts or omissions of the . .
• Cited – Robertson v Nottingham Health Authority CA ([1987] 8 Med LR 1)
  Brooke LJ held that ‘the only rule that this court has to apply in the present case is that if a patient is injured by reason of a negligent breakdown in the systems for communicating material information to the clinicians responsible for her care, . .
• Cited – Wilsher v Essex Area Health Authority CA (lip, [1986] 3 All ER 801, [1987] 2 WLR 425)
  A prematurely-born baby was the subject of certain medical procedures, in the course of which a breach of duty occurred. to ensure that the correct amount was administered it was necessary to insert a catheter into an umbilical artery so that his . .
• Cited – Joseph Smith (Pauper) v Charles Baker and Sons HL (Bailii, [1891] UKHL 2, [1891] AC 325)
  . .
• Cited – Mitchil v Alestree (Commonlii, [1726] EngR 590, (1726) 1 Vent 295, (1726) 86 ER 190 (B))
  In an action upon the case brought against the defendant, for that he did ride an horse into a place called Lincoln’s Inn Fields, (a place much frequented by the King’s subjects, and unapt for such purposes) for the breaking and taming of him, and . .

(This list may be incomplete)
This case is cited by:

• Cited – Woodland v The Swimming Teachers’ Association and Others QBD (Bailii, [2011] EWHC 2631 (QB), [2012] PIQR P3, [2012] ELR 76)
  The court was asked as to the vicarious or other liability of a school where a pupil suffered injury at a swimming lesson with a non-employee during school time, and in particular whether it had a non-delegable duty to ensure the welfare of children . .
• Cited – Woodland v Essex County Council CA (Bailii, [2012] EWCA Civ 239, [2013] 3 WLR 853, [2012] ELR 327, [2012] Med LR 419, [2012] PIQR P12, [2012] BLGR 879)
  The claimant had been injured in a swimming pool during a lesson. The lesson was conducted by outside independent contractors. The claimant appealed against a finding that his argument that they had a non-delegable duty of care was bound to fail. . .

(This list may be incomplete)

Last Update: 11 March 2017
Ref: 377910

The post Farraj and Another v King’s Healthcare NHS Trust (KCH) and Another: CA 13 Nov 2009 appeared first on swarb.co.uk.

References: [2010] EWCA Civ 1106
Links: Bailii
Coram: Pill, Hughes, Tomlinson LJJ
Ratio: Child sexual abuse was alleged by 150 claimants against staff members of a community home with teachers supplied by the defendants. The court had asked whether they had vicarious liability for the acts of their staff, and now whether the board of trustees of the school itself had liability, and whether in the transfer to them under statute, they had liability for claims under the earlier ‘approved school’ (1933 Act) regime.
Held: The transfer was effective to transfer the liabilities even if their nature and extent was not then forseeable. The appeal failed.
Statutes: Children Act 1908, Children and Young Persons Act 1933, Children and Young Persons Act 1969
This case cites:

• Cited – Bolton v Stone HL ([1951] AC 850, [1951] 1 All ER 1078, Bailii, [1951] UKHL 2)
  The plaintiff was injured by a prodigious and unprecedented hit of a cricket ball over a distance of 100 yards. He claimed damages in negligence
  Held:When looking at the duty of care the court should ask whether the risk was not so remote that . .
• Cited – Launchbury v Morgans HL ([1973] AC 127, Bailii, [1972] UKHL 5)
  The owner of a car appealed against a ruling that she was responsible for injury suffered by the three respondents who had been passengers in the car when it crashed. The owner had not been with them. The care was driven by her husband with her . .
• Cited – Miller v Jackson CA ([1977] 1 QB 966, [1977] 3 All ER 338, Bailii, [1977] EWCA Civ 6)
  The activities of a long established cricket club were adjudged to be a nuisance, because of the number of cricket balls landing in the gardens of neighbouring houses. An injunction had been granted to local householders who complained of cricket . .
• Cited – Bernard v The Attorney General of Jamaica PC (PC, Bailii, [2004] UKPC 47, PC, No. 30 of 2003, [2005] IRLR 398)
  PC (Jamaica) The claimant had been queuing for some time to make an overseas phone call at the Post Office. Eventually his turn came, he picked up the phone and dialled. Suddenly a man intervened, announced . .

(This list may be incomplete)
This case is cited by:

• Cited – The Catholic Child Welfare Society and Others v Various Claimants and The Institute of The Brothers of The Christian Schools and Others SC (Bailii, [2012] UKSC 56, Bailii Summary, SC, SC Summary, UKSC 2010/0230, [2012] WLR(D) 335, [2013] 1 All ER 670, [2013] IRLR 219, [2013] PIQR P6, [2013] ELR 1, [2012] 3 WLR 1319, [2013] 2 AC 1)
  Former children at the children’s homes had sought damages for sexual and physical abuse. The court heard arguments as to the vicarious liability of the Society for abuse caused by a parish priest visiting the school. The Court of Appeal had found . .

(This list may be incomplete)

Last Update: 11 March 2017
Ref: 425554

The post Various Claimants v The Catholic Child Welfare Society and Others: CA 26 Oct 2010 appeared first on swarb.co.uk.

References: [1986] Ch 20, [1985] 2 All ER 1, [1985] IRLR 157, [1985] ICR 886, [1985] 2 WLR 1081
Coram: Scot J
Ratio: Threats made by pickets to those miners who sought to go to work were not an assault because the pickets had no capacity to put into effect their threats of violence whilst they were held back from the vehicles which the working miners were within. The plaintiffs were, however, entitled to enjoy their right to use the highway to go to work without unreasonable harassment and that picketing by 50 to 70 striking miners shouting abuse was a tortious interference with that right. The actions of the striking miners were therefore actionable in nuisance.
This case is cited by:

• Cited – The Catholic Child Welfare Society and Others v Various Claimants and The Institute of The Brothers of The Christian Schools and Others SC (Bailii, [2012] UKSC 56, Bailii Summary, SC, SC Summary, UKSC 2010/0230, [2012] WLR(D) 335, [2013] 1 All ER 670, [2013] IRLR 219, [2013] PIQR P6, [2013] ELR 1, [2012] 3 WLR 1319, [2013] 2 AC 1)
  Former children at the children’s homes had sought damages for sexual and physical abuse. The court heard arguments as to the vicarious liability of the Society for abuse caused by a parish priest visiting the school. The Court of Appeal had found . .

(This list may be incomplete)

Last Update: 13 March 2017
Ref: 466788

The post Thomas v National Union of Mineworkers (South Wales Area): ChD 1985 appeared first on swarb.co.uk.

References: [2000] Lloyd’s Rep PN 497, [2000] 3 WLR 910, [2000] EWCA Civ 118, [2000] 2 Lloyd’s Rep 168, [2001] QB 113, [2000] PNLR 578
Links: Bailii
Coram: Evans, Aldous LJJ, Turner J
Ratio: The liability of a firm for the wrongful acts of one partner is not limited to tortious acts creating liability in common law, but includes all wrongful acts or omissions, including a knowing assistance in a fraudulent scheme. A solicitor who prepares documents for use in a fraudulent scheme, and gives supporting advice, unbeknown to his partners, is acting outside the ordinary course of business, and his partners are not vicariously liable for his acts.
Statutes: Partnership Act 1890 10
This case cites:

• Appeal from – Dubai Aluminium Company Ltd v Salaam and Others QBD (Times 04-Sep-98, Bailii, [1998] EWHC 1204 (Comm), [1999] 1 Lloyd’s Rep 415)
  A partner is vicariously liable for the acts of his partner in equity as well as in tort. Where a partner acted as accessory to a breach of trust he acted as a constructive trustee. A settlement of and action on this basis was enforceable in a later . .
• See Also – Dubai Aluminium Co Ltd v Al Alawi and Others QBD (Times 06-Jan-99, [1999] 1 WLR 1964, Bailii, [1998] EWHC 1202 (Comm), [1999] 1 Lloyd’s Rep 478, [1999] 1 All ER 703, [1999] 1 All ER (Comm) 1)
  The claimants had brought proceedings against their former sales manager for accepting bribes and secret commission from outsiders. In support of their claim the claimants had obtained a search and seizure order and a worldwide freezing injunction, . .

(This list may be incomplete)
This case is cited by:

• Appeal from – Dubai Aluminium Company Limited v Salaam and Others HL (House of Lords, Times 06-Dec-02, Bailii, [2003] 1 Lloyd’s Rep 65, [2002] UKHL 48, [2002] 3 WLR 1913, [2003] 2 AC 366, [2003] 1 All ER 97, [2003] 2 All ER (Comm) 451, [2003] 1 LLR 65, [2003] 1 BCLC 32, [2003] IRLR 608, [2003] 1 CLC 1020, [2003] WTLR 163)
  A solicitor had been alleged to have dishonestly, having assisted in a fraudulent breach of trust by drafting certain documents. Contributions to the damages were sought from his partners.
  Held: The acts complained of were so close to the . .

(This list may be incomplete)
Jurisdiction: England and Wales

Last Update: 16-Mar-17
Ref: 147151

The post Dubai Aluminium Company Limited v Salaam and others: CA 7 Apr 2000 appeared first on swarb.co.uk.

References: [1984] 1 EGLR 160, (1984) 270 EG 328
Coram: Mr Denis Henry QC
Ratio: A payment by a third party insurance broker to the daughter of a valued client made for benevolent and commercial reasons did not reduce the claim on the tortfeasor a position which would also, should it have been necessary, have been justified by the ordinary principles of subrogation.

Last Update: 20 March 2017
Ref: 538145

The post Nahhas v Pier House (Cheyne Walk) Management Ltd: 1984 appeared first on swarb.co.uk.

References: [1942] AC 509, [1942] UKHL 2
Links: Bailii
Ratio: Vicarious liability applied, where the lighting of a match to light a cigarette and throwing it on the floor while transferring petrol from a lorry to a tank was held to be in the scope of employment.
Jurisdiction: England and Wales
This case is cited by:

• Cited – Lister and Others v Hesley Hall Ltd HL (Times 10-May-01, Gazette 14-Jun-01, Bailii, House of Lords, [2001] UKHL 22, [2002] 1 AC 215, [2001] 2 All ER 769, [2001] 2 FCR 97, (2001) 3 LGLR 49, [2001] NPC 89, [2001] Fam Law 595, [2001] 2 WLR 1311, [2001] IRLR 472, [2001] ICR 665, [2001] Emp LR 819, [2001] 2 FLR 307, [2001] ELR 422)
  A school board employed staff to manage a residential school for vulnerable children. The staff committed sexual abuse of the children. The school denied vicarious liability for the acts of the teachers.
  Held: ‘Vicarious liability is legal . .

(This list may be incomplete)

Last Update: 21 March 2017
Ref: 188808

The post Century Insurance v Northern Ireland Road Transport Board: HL 4 Mar 1942 appeared first on swarb.co.uk.

References: [1946] 2 All ER 345, [1947] AC 1, [1946] UKHL 1
Links: Bailii
Coram: Lord Porter, Lord Simon, Lord MacMillan, Lord Uthwatt
Ratio: A worker was injured by a negligently driven crane. The crane and Board’s driver were hired out to stevedores for loading work. The stevedores controlled the crane’s operations, but did not direct how the driver controlled the crane. The hire contract made the driver the employee of the defendant stevedores.
Held: The House upheld decisions that the Board, as the crane driver’s general employer, retained responsibility for his negligence.
Decisions of this kind depend on the particular facts and many factors may bear on the result. Considerations include: (a) the burden of showing that responsibility does not remain with the general employer is on the general employer and is a heavy one (b) by whom is the negligent employee engaged? Who pays him? Who has power to dismiss him? (c) who has the immediate direction and control of the relevant work? Who is entitled to tell the employee the way in which he is to do the work upon which he is engaged? ‘The proper test is whether or not the hirer had authority to control the manner of execution of the act in question. Given the existence of that authority its exercise or non-exercise on the occasion of the doing the act is irrelevant’. (d) the inquiry should concentrate on the relevant negligent act, and then ask whose responsibility it was to prevent it. In the Mersey Docks case, the stevedores had no responsibility for the way in which the crane driver drove his crane, and it was this which caused the accident. The ultimate question may be, not what specific orders or whether any specific orders were given, but who is entitled to give the orders as to how the work should be done. (e) a transfer of services can only be effected with the employee’s consent. (f) responsibility should lie with the master in whose act some degree of fault, though remote, may be found
Viscount Simon said that a heavy burden of proof lay on the general or permanent employer to shift responsibility for the negligence of servants engaged and paid by such employer to the hirer for the time being who had the benefit of the services rendered. This could only be achieved where the hirer enjoyed the right to ‘control the way in which the act involving negligence was done.’
Jurisdiction: England and Wales
This case is cited by:

• Cited – Denham v Midland Employers’ Mutual Assurance Limited CA ([1955] 2 QB 437)
  The court was asked which of two mutually exclusive liability insurance policies covered damages which an employer was liable to pay to the widow of an employee, who was killed while he was working under the specific direction of engineers engaged . .
• Cited – Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd and others CA (Bailii, [2005] EWCA Civ 1151, [2005] IRLR 983, [2006] 2 WLR 428, [2006] QB 510, [2006] ICR 327, [2005] 42 EG 235, [2005] NPC 114, [2005] 4 All ER 1181)
  The defendants had subcontracted work installing air conditioning to the second defendants, who in turn bought in fitters from the third defendants. A fitter caused a flood acting irresponsibly.
  Held: The court reviewed the law of vicarious . .
• Cited – Hawley v Luminar Leisure Ltd and others CA (Bailii, [2006] EWCA Civ 18, [2006] IRLR 817, [2006] PIQR P17, [2006] Lloyd’s Rep IR 307)
  The claimant was assaulted and severely injured at a night club by a doorman supplied to the club by a third party company now in liquidation. He claimed the club was the ‘temporary deemed employer’ of the doorman. He also sought to claim under the . .
• Cited – Biffa Waste Services Ltd and Another v Maschinenfabrik Ernst Hese Gmbh and others CA (Bailii, [2008] EWCA Civ 1257, Times)
  The defendant contracted to build a plant for the claimant. The plant was damaged by a fire caused by the defendant’s independent sub-contractor. The defendant appealed against the finding that it was responsible for the sub-contractor’s failure. . .
• Cited – The Catholic Child Welfare Society and Others v Various Claimants and The Institute of The Brothers of The Christian Schools and Others SC (Bailii, [2012] UKSC 56, Bailii Summary, SC, SC Summary, UKSC 2010/0230, [2012] WLR(D) 335, [2013] 1 All ER 670, [2013] IRLR 219, [2013] PIQR P6, [2013] ELR 1, [2012] 3 WLR 1319, [2013] 2 AC 1)
  Former children at the children’s homes had sought damages for sexual and physical abuse. The court heard arguments as to the vicarious liability of the Society for abuse caused by a parish priest visiting the school. The Court of Appeal had found . .
• Cited – JGE v The Portsmouth Roman Catholic Diocesan Trust CA (Bailii, [2012] EWCA Civ 938, [2012] WLR(D) 204, [2012] 4 All ER 1152, WLRD, [2013] 2 WLR 958, [2013] 1 QB 722, [2013] PTSR 565, [2012] IRLR 846, [2012] PIQR P19, [2013] Ch 722)
  The claimant suffered physical and serious sexual abuse whilst a child at a children’s home run by the defendant. A parish priest committed some of the abuse, and she claimed that the defendants were vicariously liable. They denied such liability. . .
• Cited – Hawley v Luminar Leisure Plc and Others QBD (Bailii, [2005] EWHC 5 (QB), HQ02X03984, [2005] Lloyds Rep IR 275)
  The claimant had been assaulted by a doorman at a club operated by the defendants. The doorman was supplied by a security company, which was now in liquidation. The insolvent company’s insurers had declined indemnity. . .

(This list may be incomplete)
Leading Case
Last Update: 21 March 2017
Ref: 190029

The post Mersey Docks and Harbour Board v Coggins and Griffith (Liverpool) Ltd: HL 1946 appeared first on swarb.co.uk.

References: [1998] ScotCS 81, 1999 SC 255
Links: Bailii, ScotC
Coram: Lord Reed
Ratio: The claimant sought damages from the defender, saying that a co-worker had sexually harrassed her. The behaviour continued after she made a complaint to her employer.
Held: It was conceded that the employee’s conduct was not such as to attract a vicarious liability, but in the circumstances the employee was indulging in an unrelated and independent venture of his own.
Jurisdiction: Scotland
This case cites:

• Cited – Khorasandjian v Bush CA (Gazette 21-Apr-93, Independent 17-Mar-93, [1993] Fam Law 679, [1993] 3 WLR 476, [1993] QB 727, [1993] 3 All ER 669, Bailii, [1993] EWCA Civ 18)
  The plaintiff was an eighteen year old girl who had had a friendship with the defendant, aged 28. The friendship broke down and the plaintiff said she would have no more to do with him, but the defendant did not accept this. There were many . .
• Cited – Walker v Northumberland County Council QBD (Times 24-Nov-94, Independent 18-Nov-94, [1995] 1 All ER 737, [1995] IRLR 35, [1995] ICR 702, Bailii, [1994] EWHC QB 2, [1995] PIQR P521)
  The plaintiff was a manager within the social services department. He suffered a mental breakdown in 1986, and had four months off work. His employers had refused to provide the increased support he requested. He had returned to work, but again, did . .

(This list may be incomplete)
This case is cited by:

• Cited – Lister and Others v Hesley Hall Ltd HL (Times 10-May-01, Gazette 14-Jun-01, Bailii, House of Lords, [2001] UKHL 22, [2002] 1 AC 215, [2001] 2 All ER 769, [2001] 2 FCR 97, (2001) 3 LGLR 49, [2001] NPC 89, [2001] Fam Law 595, [2001] 2 WLR 1311, [2001] IRLR 472, [2001] ICR 665, [2001] Emp LR 819, [2001] 2 FLR 307, [2001] ELR 422)
  A school board employed staff to manage a residential school for vulnerable children. The staff committed sexual abuse of the children. The school denied vicarious liability for the acts of the teachers.
  Held: ‘Vicarious liability is legal . .

(This list may be incomplete)

Last Update: 21 March 2017
Ref: 169748

The post Ward v Scotrail Railways Limited: SCS 27 Nov 1998 appeared first on swarb.co.uk.

References: Unreported, 19 June 1980
Coram: Oliver LJ
Ratio: The plaintiff sought to avoid the 1828 Act (Lord Tenterden’s Act). Lakeview, had agreed to buy a substantial quantity of oil from them but was never in a position to do so. The plaintiffs sought their loss from the defendant, Mr. Oaten, and not Lakeview.
Held: The mere fact of entering into a contract imports an implied representation of a genuine intention to pay the contract price and, secondly the entry into the contract having been procured by the defendant, he is liable for the representation thus employed. Both propositions are true. The second proposition, while it may be an adequate description of the consequences of procurement, contains in itself no analysis of the grounds upon which the assumed liability rests. Apart from the tort of conspiracy–and there is no question of that in this case–there is no separate tort of procuring as such. A man who procures the commission by another person of a tortious act becomes liable because he then becomes a principal in the commission of the act. It is his tort but once one gets to that it seems to me that the fallacy of Mr. Crawford’s argument becomes apparent. The tort alleged here is the implied false representation of Lakeview’s intention to pay, and when one seeks to fasten that onto the defendant as a principal it is at once clear that it is not, so far as he is concerned, a representation as to his own intention, for he made none. The representation for which he is assumed to be liable is the representation of Lakeview’s intention.
Oliver LJ: ‘Every promisor impliedly represents that he has at the moment of making the promise the intention of fulfilling the obligations that he has undertaken and if it can be shown that no such intention existed in his mind, at that moment he is guilty of a misrepresentation.’
Statutes: Statute of Frauds (Amendment) Act 1828 6
This case is cited by:

• Cited – Generale Bank Nederland Nv (Formerly Credit Lyonnais Bank Nederland Nv) v Export Credits Guarantee Department HL (Gazette 10-Mar-99, Times 19-Feb-99, House of Lords, Bailii, [1999] UKHL 9, [2000] 1 AC 486, [1999] 1 All ER 929, [1999] 2 WLR 540)
  The wrong of the servant or agent for which the master or principal is liable is one committed in the case of a servant in the course of his employment, and in the case of an agent in the course of his authority. It is fundamental to the whole . .
• Cited – Contex Drouzhba Ltd v Wiseman and Another CA (Bailii, [2007] EWCA Civ 1201, Times 08-Jan-08, [2008] BCC 301, [2007] All ER (D) 293 (Nov))
  The defendant was a director of a company. He signed a letter for the company promising to pay for goods ordered. The representation was found to have been made fraudulently because he knew the company was insolvent, and unable to pay. He now . .

(This list may be incomplete)

Last Update: 22 March 2017
Ref: 183577

The post John Hudson v Oaten: CA 19 Jun 1980 appeared first on swarb.co.uk.

brown_robinsonPC2004
References: [2004] UKPC 56
Links: Bailii, PC
Coram: Lord Bingham of Cornhill, Lord Clyde, Lord Rodger of Earlsferry, Lord Carswell, Lord Brown of Eaton-under-Heywood
Ratio: (Jamaica) The deceased claimant had been shot by a sentry employed by the respondent company. His estate appealed a finding that the sentry was not acting in the course of his employment.
Held: Older authorities had now been replaced by recent decisions of the House of Lords and Privy Council. The essential test remains that of close connection with the acts which the worker was employed to do. When one applies this test the employer was vicariously liable for the shooting and the judge was quite justified in so holding. The appeal was allowed, but the damages award was adjusted
This case cites:

• Cited – Radley v London Council ((1909) 109 LT 162)
  . .
• Cited – Vasey v Surrey Free Inns Plc CA ([1996] PIQR 373)
  The claimant had been refused entry to the nightclub and in a temper he had kicked the door and damaged glass in it. Employees of the defendants’ nightclub, two employed as doormen, pursued the group of whom the claimant was one, to a public car . .
• Cited – Poland v Parr (John) and Sons CA ([1927] 1 KB 236, [1926] All ER 177)
  A carter, who had handed over his wagon and was going home to his dinner, struck a boy whom he suspected, wrongly but on reasonable grounds, of stealing his master’s property.
  Held: The master was responsible. A servant has implied authority, . .
• Cited – Daniels v Whetstone Entertainments Ltd ([1962] 2 Lloyd’s Rep 1)
  Allender, a steward at a dance hall, and employed to keep order, assaulted a customer inside the hall in the mistaken belief that he had previously been himself assaulted by the customer. Allender explicitly rejected his employer’s instructions to . .
• Cited – Keppel Bus Co v Ahmad ([1974] 1 WLR 1082, Bailii, [1974] UKPC 15, Bailii, [1974] UKPC 2, [1974] RTR 504, [1974] 2 All ER 700, 17 KIR 90)
  Singapore – The respondent, the plaintiff was a passenger in a bus belonging to the appellants. They employed as conductor of the bus the second defendant. In the course of his journey the respondent was assaulted by the conductor. He brought an . .
• Cited – Lister and Others v Hesley Hall Ltd HL (Times 10-May-01, Gazette 14-Jun-01, Bailii, House of Lords, [2001] UKHL 22, [2002] 1 AC 215, [2001] 2 All ER 769, [2001] 2 FCR 97, (2001) 3 LGLR 49, [2001] NPC 89, [2001] Fam Law 595, [2001] 2 WLR 1311, [2001] IRLR 472, [2001] ICR 665, [2001] Emp LR 819, [2001] 2 FLR 307, [2001] ELR 422)
  A school board employed staff to manage a residential school for vulnerable children. The staff committed sexual abuse of the children. The school denied vicarious liability for the acts of the teachers.
  Held: ‘Vicarious liability is legal . .
• Cited – Bernard v The Attorney General of Jamaica PC (PC, Bailii, [2004] UKPC 47, PC, No. 30 of 2003, [2005] IRLR 398)
  PC (Jamaica) The claimant had been queuing for some time to make an overseas phone call at the Post Office. Eventually his turn came, he picked up the phone and dialled. Suddenly a man intervened, announced . .
• Cited – Dubai Aluminium Company Limited v Salaam and Others HL (House of Lords, Times 06-Dec-02, Bailii, [2003] 1 Lloyd’s Rep 65, [2002] UKHL 48, [2002] 3 WLR 1913, [2003] 2 AC 366, [2003] 1 All ER 97, [2003] 2 All ER (Comm) 451, [2003] 1 LLR 65, [2003] 1 BCLC 32, [2003] IRLR 608, [2003] 1 CLC 1020, [2003] WTLR 163)
  A solicitor had been alleged to have dishonestly, having assisted in a fraudulent breach of trust by drafting certain documents. Contributions to the damages were sought from his partners.
  Held: The acts complained of were so close to the . .
• Cited – Simon Trotman (By her Mother and Next Friend Irene Trotman) v North Yorkshire County Council CA (Gazette 26-Aug-98, Bailii, [1998] EWCA Civ 1208, [1999] LGR 584)
  The court considered the liability of the respondent for sexual assaults committed by an employee teacher when taking students on school trips.
  Held: The Local Authority was not vicariously liable for sexual assault committed by employee . .
• Cited – McCann v Sheppard CA ([1973] 1 WLR 540)
  The injured plaintiff succeeded in his action for damages for personal injury. The defendants appealed the quantum of damage but before the appeal was heard the plaintiff died. The court was now asked to reduce the award because of the death.
  
• Cited – The Attorney General v Hartwell PC (PC, Bailii, [2004] UKPC 12, Times 27-Feb-04, PC, Gazette 25-Mar-04, [2004] 1 WLR 1273, [2004] PIQR 27)
  PC (The British Virgin Islands) A police officer had taken the police revolver, and used it to shoot the claimant. It was alleged that the respondent police force were vicariously liable for his acts and also . .

(This list may be incomplete)
This case is cited by:

• Cited – Subiah v The Attorney General of Trinidad and Tobago PC (Bailii, [2008] UKPC 47)
  (Trinidad and Tobago) The Board considered the extent of damages for infringement of the claimant’s constitutional rights. He had been on board a bus. He complained when a policeman was allowed not to buy a ticket. The same constable arrested him as . .
• Cited – The Catholic Child Welfare Society and Others v Various Claimants and The Institute of The Brothers of The Christian Schools and Others SC (Bailii, [2012] UKSC 56, Bailii Summary, SC, SC Summary, UKSC 2010/0230, [2012] WLR(D) 335, [2013] 1 All ER 670, [2013] IRLR 219, [2013] PIQR P6, [2013] ELR 1, [2012] 3 WLR 1319, [2013] 2 AC 1)
  Former children at the children’s homes had sought damages for sexual and physical abuse. The court heard arguments as to the vicarious liability of the Society for abuse caused by a parish priest visiting the school. The Court of Appeal had found . .

(This list may be incomplete)

Last Update: 23 March 2017
Ref: 220293

The post Brown v Robinson and Sentry: PC 14 Dec 2004 appeared first on swarb.co.uk.

References: [1955] 2 QB 437
Coram: Romer LJ, Birkett LJ, Denning LJ
Ratio: The court was asked which of two mutually exclusive liability insurance policies covered damages which an employer was liable to pay to the widow of an employee, who was killed while he was working under the specific direction of engineers engaged by the employer to do work on their land.
Held: In none of the transfer cases cited to the court had the consent of the man been sought or obtained. The general employer had simply told the employee to go and do some particular work for the temporary employer and he had gone. The supposed transfer was nothing more than a device. Lord Denning referred to the Mersey Docks case, saying that such a transfer rarely takes place when a man is lent with a machine. But a transfer does sometimes take place when a man is lent to help with labouring work.
Denning LJ said (obiter): ‘Much of the difficulty arose out of the 19th century idea that a servant of a general employer may be transferred to a temporary employer so as to become for the time being the servant of the temporary employer. The conception was a very useful device to put liability on the shoulders of one who should properly bear it, but it did not affect the contract of service itself. No contract of service could be transferred without the servant’s consent: and this consent is not to be raised by operation of law but only by the real consent in fact of the man, express or implied: see Nokes v. Doncaster Amalgamated Collieries Ld. In none of the transfer cases which have been cited to us had the consent of the man been sought or obtained. The general employer has simply told him to go and do some particular work for the temporary employer and he has gone. The supposed transfer, when it takes place, is nothing more than a device – a very convenient and just device, mark you – to put liability on to the temporary employer; and even this device has in recent years been very much restricted in its operation. It only applies when the servant is transferred so completely that the temporary employer has the right to dictate, not only what the servant is to do, but also how he is to do it: see Mersey Docks and Harbour Board v. Coggins and; Griffith (Liverpool) Ld. Such a transfer rarely takes place, if ever, when a man is lent with a machine, such as a crane or a lorry: nor when a skilled man is lent so as to exercise his skill for the temporary employer. In such case the parties do not contemplate that the temporary employer shall tell the man how to manipulate his machine or to exercise his skill. But a transfer does sometimes take place in the case when an unskilled man is lent to help with labouring work: see Garrard v. A. E. Southey and Co. [1952] 2 QB 174. The temporary employer can then no doubt tell the labourer how he is to do the job. The labourer becomes so much part of the organization to which he is seconded that the temporary employer is responsible for him and to him.’ and
‘These results are achieved in law by holding that Clegg became for the time being the temporary servant for Le Grands. There is no harm in thus describing him so long as it is remembered that it is a device designed to cast liability on the temporary employer. The real basis of the liability is, however, simply this: if a temporary employer has the right to control the manner in which a labourer does his work, so as to be able to tell him the right way or the wrong way to do it, then he should be responsible when he does it in the wrong way as well as the right way. The right of control carries with it the burden of responsibility.’
This case cites:

• Cited – Mersey Docks and Harbour Board v Coggins and Griffith (Liverpool) Ltd HL ([1946] 2 All ER 345, [1947] AC 1, Bailii, [1946] UKHL 1)
  A worker was injured by a negligently driven crane. The crane and Board’s driver were hired out to stevedores for loading work. The stevedores controlled the crane’s operations, but did not direct how the driver controlled the crane. The hire . .

(This list may be incomplete)
This case is cited by:

• Cited – Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd and others CA (Bailii, [2005] EWCA Civ 1151, [2005] IRLR 983, [2006] 2 WLR 428, [2006] QB 510, [2006] ICR 327, [2005] 42 EG 235, [2005] NPC 114, [2005] 4 All ER 1181)
  The defendants had subcontracted work installing air conditioning to the second defendants, who in turn bought in fitters from the third defendants. A fitter caused a flood acting irresponsibly.
  Held: The court reviewed the law of vicarious . .
• Cited – Biffa Waste Services Ltd and Another v Maschinenfabrik Ernst Hese Gmbh and others CA (Bailii, [2008] EWCA Civ 1257, Times)
  The defendant contracted to build a plant for the claimant. The plant was damaged by a fire caused by the defendant’s independent sub-contractor. The defendant appealed against the finding that it was responsible for the sub-contractor’s failure. . .

(This list may be incomplete)

Last Update: 24 March 2017
Ref: 230998

The post Denham v Midland Employers’ Mutual Assurance Limited: CA 1955 appeared first on swarb.co.uk.

References: (1826) 5 B & C 547, [1826] EngR 355, (1826) 5 B & C 547, (1826) 108 ER 204
Links: Commonlii
Coram: Abbott CJ, Littledale J, Bayley and Holroyd JJ (dissenting)
Ratio: The owner of a carriage hired a pair of horses for a day to draw the carriage. The owner of the horses also provided the driver, by whose negligence a horse belonging to a third party was injured. It appears that the majority of the court held that the owner of the carriage was not liable for the injury. Abbott CJ and Littledale J gave judgments with which an unrecorded majority of the court must have agreed. Littledale J said that the coachman or postillion cannot be the servant of both the owner of the horses and the traveller. ‘He is the servant of one or the other, but not the servant of one and the other; the law does not recognise a several liability in two principals who are unconnected.’
Abbott CJ said: ‘I have the control and management of all that belongs to my land or my house; and it is my fault if I do not so exercise my authority as to prevent injury to another.’
This case is cited by:

• Cited – Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd and others CA (Bailii, [2005] EWCA Civ 1151, [2005] IRLR 983, [2006] 2 WLR 428, [2006] QB 510, [2006] ICR 327, [2005] 42 EG 235, [2005] NPC 114, [2005] 4 All ER 1181)
  The defendants had subcontracted work installing air conditioning to the second defendants, who in turn bought in fitters from the third defendants. A fitter caused a flood acting irresponsibly.
  Held: The court reviewed the law of vicarious . .
• Cited – Mint v Good CA ([1951] 1 KB 517)
  The plaintiff was injured by the collapse of a wall which separated the highway from the forecourt of a house owned by the defendant. The house was let on a weekly tenancy. No right to enter was expressly reserved to the owner. The judge found that . .
• Cited – Wilchick v Marks and Silverstone KBD ([1934] 2 KB 56)
  The plaintiff was injured by a shutter falling from a house next to the highway. The house belonged to the owners who were large property owners but was let to a tenant on a weekly tenancy under rent control to a tailor in a small way of business. . .

(This list may be incomplete)

Last Update: 24 March 2017
Ref: 230999

The post Laugher v Pointer: 1826 appeared first on swarb.co.uk.

References: [1898] 2 QB 565
Coram: Lord Russell of Killowen CJ
Ratio: A borrowed driver was acting as the servant of the defendant owner of the carriage and horses so as to make the defendant liable for the driver’s negligence.
This case is cited by:

• Cited – Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd and others CA (Bailii, [2005] EWCA Civ 1151, [2005] IRLR 983, [2006] 2 WLR 428, [2006] QB 510, [2006] ICR 327, [2005] 42 EG 235, [2005] NPC 114, [2005] 4 All ER 1181)
  The defendants had subcontracted work installing air conditioning to the second defendants, who in turn bought in fitters from the third defendants. A fitter caused a flood acting irresponsibly.
  Held: The court reviewed the law of vicarious . .

(This list may be incomplete)

Last Update: 24 March 2017
Ref: 231000

The post Jones v Scullard: 1898 appeared first on swarb.co.uk.

hawley_luminarCA2006
References: [2006] EWCA Civ 18, [2006] IRLR 817, [2006] PIQR P17, [2006] Lloyd’s Rep IR 307
Links: Bailii
Coram: Latham, Neuberger, Hallett LJJ
Ratio: The claimant was assaulted and severely injured at a night club by a doorman supplied to the club by a third party company now in liquidation. He claimed the club was the ‘temporary deemed employer’ of the doorman. He also sought to claim under the insurance policy of the security company for an ‘accidental bodily injury’.
Held: Viasystems had decided that dual responsibility was sometimes possible, but this case was not such: ‘it would not be appropriate to attribute vicarious liability to both ASE and Luminar. In this case, there has been effectively and substantially a transfer of control and responsibility from ASE to Luminar.’ Liability under a policy has to be viewed from the perspective of the insured. The appeals were dismissed, and the club were responsible.
Statutes: Civil Liability (Contribution Act) 1978 81(1)
This case cites:

• Cited – Mersey Docks and Harbour Board v Coggins and Griffith (Liverpool) Ltd HL ([1946] 2 All ER 345, [1947] AC 1, Bailii, [1946] UKHL 1)
  A worker was injured by a negligently driven crane. The crane and Board’s driver were hired out to stevedores for loading work. The stevedores controlled the crane’s operations, but did not direct how the driver controlled the crane. The hire . .
• Cited – Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd and others CA (Bailii, [2005] EWCA Civ 1151, [2005] IRLR 983, [2006] 2 WLR 428, [2006] QB 510, [2006] ICR 327, [2005] 42 EG 235, [2005] NPC 114, [2005] 4 All ER 1181)
  The defendants had subcontracted work installing air conditioning to the second defendants, who in turn bought in fitters from the third defendants. A fitter caused a flood acting irresponsibly.
  Held: The court reviewed the law of vicarious . .
• Cited – Dubai Aluminium Company Limited v Salaam and Others HL (House of Lords, Times 06-Dec-02, Bailii, [2003] 1 Lloyd’s Rep 65, [2002] UKHL 48, [2002] 3 WLR 1913, [2003] 2 AC 366, [2003] 1 All ER 97, [2003] 2 All ER (Comm) 451, [2003] 1 LLR 65, [2003] 1 BCLC 32, [2003] IRLR 608, [2003] 1 CLC 1020, [2003] WTLR 163)
  A solicitor had been alleged to have dishonestly, having assisted in a fraudulent breach of trust by drafting certain documents. Contributions to the damages were sought from his partners.
  Held: The acts complained of were so close to the . .
• Cited – Gray v Barr CA ([1971] 2 QB 554)
  A husband had accidentally shot and killed his wife’s lover after threatening him with a shotgun.
  Held: The court confirmed the decision at first instance. He was not liable to be indemnified by his insurers for the losses claimed against him . .
• Cited – Dhak v Insurance Company of North America (Uk) Ltd CA (Independent 20-Feb-96, Times 08-Feb-96, [1996] 1 WLR 936)
  A death which occurred after inhaling vomit whilst drunk is not a ‘bodily injury; and there was no liability under the relative insurance policy. . .
• Cited – Churchill Insurance v Charlton CA (Gazette 08-Mar-01, Times 21-Feb-01, Bailii, Bailii, [2001] EWCA Civ 112, [2001] EWCA Civ 1230, [2002] QB 578, [2001] RTR 33, [2001] Lloyd’s Rep IR 387, [2001] 3 WLR 1435, [2001] PIQR P23, [2001] 1 All ER (Comm) 769)
  The victim of an unlawful act of a driver off-road sought damages from another driver and his insurers. The insurers refused to pay.
  Held: There is a balance to be found between the statutory purpose of compulsory motor insurance and the . .
• Cited – Trim Joint District School Board of Management v Kelly HL ([1914] AC 667)
  Viscount Haldane LC said: ‘the construction of the Act ought to be more liberal as regards the claims of the workman than would be the case if the Act were construed with the closeness which distinguishes the construction of words in a contract such . .
• Appeal from – Hawley v Luminar Leisure Plc and Others QBD (Bailii, [2005] EWHC 5 (QB), HQ02X03984, [2005] Lloyds Rep IR 275)
  The claimant had been assaulted by a doorman at a club operated by the defendants. The doorman was supplied by a security company, which was now in liquidation. The insolvent company’s insurers had declined indemnity. . .

(This list may be incomplete)
This case is cited by:

• See Also – Hawley v Luminar Leisure Plc Ase Security Services Limited, Mann CA (Bailii, [2006] EWCA Civ 30, Times 14-Feb-06)
  The defendant had made a part 36 offer of settlement. The claimant did not accept it, but then tried to accept it after the trial had begun.
  Held: The risks of litigation were such that situations would often alter when a case came on for . .
• Cited – Biffa Waste Services Ltd and Another v Maschinenfabrik Ernst Hese Gmbh and others CA (Bailii, [2008] EWCA Civ 1257, Times)
  The defendant contracted to build a plant for the claimant. The plant was damaged by a fire caused by the defendant’s independent sub-contractor. The defendant appealed against the finding that it was responsible for the sub-contractor’s failure. . .
• Cited – JGE v The Portsmouth Roman Catholic Diocesan Trust CA (Bailii, [2012] EWCA Civ 938, [2012] WLR(D) 204, [2012] 4 All ER 1152, WLRD, [2013] 2 WLR 958, [2013] 1 QB 722, [2013] PTSR 565, [2012] IRLR 846, [2012] PIQR P19, [2013] Ch 722)
  The claimant suffered physical and serious sexual abuse whilst a child at a children’s home run by the defendant. A parish priest committed some of the abuse, and she claimed that the defendants were vicariously liable. They denied such liability. . .
• Cited – The Catholic Child Welfare Society and Others v Various Claimants and The Institute of The Brothers of The Christian Schools and Others SC (Bailii, [2012] UKSC 56, Bailii Summary, SC, SC Summary, UKSC 2010/0230, [2012] WLR(D) 335, [2013] 1 All ER 670, [2013] IRLR 219, [2013] PIQR P6, [2013] ELR 1, [2012] 3 WLR 1319, [2013] 2 AC 1)
  Former children at the children’s homes had sought damages for sexual and physical abuse. The court heard arguments as to the vicarious liability of the Society for abuse caused by a parish priest visiting the school. The Court of Appeal had found . .

(This list may be incomplete)

Last Update: 24 March 2017
Ref: 237856

The post Hawley v Luminar Leisure Ltd and others: CA 24 Jan 2006 appeared first on swarb.co.uk.

References: (1952) 102 LJ 357
Coram: Lord Guthrie
Ratio: The court considered a claim against his employer after the plaintiff suffered injury after a breach of safety regulations by a co-worker.
Held: Referring to Harrison v NCB: ‘It appears to me that that principle disposes of the argument against the relevancy of the pursuer’s case on breach of the statutory regulations. Accordingly, I hold that the pursuer relevantly averred that the defenders are vicariously responsible for the fireman’s breach of regulations 2(e) and (h) of the Explosives Order.’
This case cites:

• Cited – Harrison v National Coal Board HL ([1951] AC 639, [1951] 1 TLR 1079, [1951] 95 Sol Jo 413, [1951] 1 All ER 1102)
  The plaintiff sought damages from his employer after suffering injury when a co-worker fired a shot in the colliery, acting in breach of the regulations.
  Held: There was no vicarious liability duty in law on the managers to ensure compliance . .

(This list may be incomplete)
This case is cited by:

• Approved – National Coal Board v England HL ([1954] AC 403, [1954] 1 All ER 546)
  The plaintiff sought damages after being injured when a co-worker fired a shot. The employee however had himself coupled the detonator to the cable rather than leaving it to the shotfirer, and had his cimmitted a criminal offence. He had been found . .
• Cited – Majrowski v Guy’s and St Thomas’ NHS Trust CA (Bailii, [2005] EWCA Civ 251, Times 21-Mar-05, [2005] QB 848, [2005] ICR 977, [2005] 2 WLR 1503, [2005] IRLR 340)
  The claimant had sought damages against his employer, saying that they had failed in their duty to him under the 1997 Act in failing to prevent harassment by a manager. He appealed a strike out of his claim.
  Held: The appeal succeeded. The . .
• Cited – Majrowski v Guy’s and St Thomas’ NHS Trust HL (Bailii, [2006] UKHL 34, Times 13-Jul-06, [2006] 4 All ER 395, (2006) 91 BMLR 85, [2006] ICR 1199, [2006] 3 WLR 125, [2007] 1 AC 224, [2006] IRLR 695)
  The claimant employee sought damages, saying that he had been bullied by his manager and that bullying amounting to harassment under the 1997 Act. The employer now appealed a finding that it was responsible for a tort committed by a manager, saying . .

(This list may be incomplete)

Last Update: 26 March 2017
Ref: 241424

The post Nicol v National Coal Board: SCS 1952 appeared first on swarb.co.uk.

References: [1988] 1 WLR 1051
Coram: Glidewell LJ
Ratio: It will only be in the ordinary course of business of the firm for a solicitor to do an act where there was an underlying transaction of a kind which was part of the usual business of a solicitor. ‘On the facts represented to the [third party] would a reasonably careful and competent person [such as the third party] have concluded that there was an underlying transaction of a kind which was part of the usual business of a solicitor?’
An undertaking given by a solicitor or clerk in the course of the business of a firm is enforceable against the firm for which he works.
Jurisdiction: England and Wales
This case is cited by:

• Cited – J J Coughlan Ltd v Ruparelia and others CA (Bailii, [2003] EWCA Civ 1057, Times 26-Aug-03, Gazette 02-Oct-03, [2007] Lloyd’s Rep PN 25)
  The defendant firm of solicitors had acted in a matter involving a fraud. One partner was involved in the fraud. The claimants sought to recover from the partnership.
  Held: ‘The issue is not how the transaction ought properly to be described, . .
• Cited – Adcock v Co-Operative Insurance Society Ltd CA (Times 26-Apr-00, Bailii, [2000] EWCA Civ 117)
  The claimant claimed under his fire insurance with the defendants. He sought damages for their delay in processing the claim.
  Held: The power to award interest on damages is discretionary. The judge had refused to allow interest, at a rate . .
• Cited – Coll v Floreat Merchant Banking Ltd and Others QBD (Bailii, [2014] EWHC 1741 (QB))
  The court was asked whether it was possible to bring contempt proceedings against a solicitor for the breach of an undertaking other than one given to the court. The parties had been employee and employer. On the breakdown of that relationship, the . .

(This list may be incomplete)

Last Update: 26 March 2017
Ref: 186087

The post United Bank of Kuwait Ltd v Hammond and Others: CA 1988 appeared first on swarb.co.uk.

References: [2006] UKEAT 0114_06_1812
Links: Bailii
Ratio: EAT Race Discrimination – Inferring discrimination; Victimisation; Vicarious liability
The Employment Tribunal appear to have found that a non-discriminatory, unreasonable, treatment of the Claimant was prima facie on the grounds of his race. The Employment Tribunal had failed to adequately consider evidence of non-discriminatory factors that may have explained the Respondent’s conduct, as not being discriminatory.
This case cites:

• Cited – Dr Anya v University of Oxford and Another CA (Times 04-May-01, Bailii, [2001] EWCA Civ 405, [2001] IRLR 377, A1/2000/0293, [2001] ICR 847)
  When a tribunal considered whether the motive for an act was discriminatory, it should look not just at the act, but should make allowance for earlier acts which might throw more light on the act in question. The Tribunal should assess the totality . .

(This list may be incomplete)

Last Update: 26 March 2017
Ref: 247874

The post North East London Strategic Health Authority v Nassir-Deen: EAT 18 Dec 2006 appeared first on swarb.co.uk.

References: 2007 SCLR 360, [2007] ScotCS CSIH_27, 2007 GWD 16-301, 2007 SC 556
Links: Bailii, ScotC
Coram: Lord Osborne, Lord Clarke, Lord Marnoch
Ratio: (Opinion of Lord Osborne) The claimant sought damages saying that he had suffered abuse while a pupil at the approved school managed by the respondents. The claim was a test case as there were pending some 150 additional cases where abuse was alleged at the hands of brothers at that school.
Held: There was no basis upon which the allegation of vicarious liability on the part of the Institute could succeed and the claim was accordingly dismissed.
This case cites:

• See Also – AM v Reverend Joseph Hendron and others OHCS (Bailii, [2005] ScotCS CSOH_121, ScotC)
  Serious abuse was said to have been inflicted by monks of the De La Salle order on those in their charge at an approved school in Scotland. The former pupil claimant contended that the SED owed him a non-delegable duty which entitled him to . .

(This list may be incomplete)

Last Update: 26 March 2017
Ref: 251054

The post McE v Hendron and de La Salle Brothers: SCS 11 Apr 2007 appeared first on swarb.co.uk.

References: [1861] EngR 71, (1861) 10 CB NS 470, (1861) 142 ER 535
Links: Commonlii
Coram: Williams J
Ratio: Refreshment rooms and a coal-cellar at a railway station were let by the company to one S, the opening for putting coals into the cellar being on the arrival platform. A train coming in whilst the servants of a cod-merchant mere shooting coals into the cellar for S., the plaintiff, a passenger, whilst passing (as the jury found) in the usual way out of the station, without any fault of his own, fell into the cellar opening, which the coal-merchant’s servants had negligently left insufficiently guarded.
Held: S, the occupier of the refreshment-rooms and cellar, was responsible for this negligence. And semble, per Williams, J, that the railway company also would be liable, but not the coal-merchant.
This case is cited by:

• Cited – Woodland v Essex County Council SC (Bailii, [2013] UKSC 66, WLRD, [2013] 3 WLR 1227, [2013] WLR(D) 403, Bailii Summary, UKSC 2012/0093, SC Summary, SC)
  The claimant had been seriously injured in an accident during a swimming lesson. She sought to claim against the local authority, and now appealed against a finding that it was not responsible, having contracted out the provision of swimming . .

(This list may be incomplete)

Last Update: 28 March 2017
Ref: 283831

The post Pickard v Smith: 1861 appeared first on swarb.co.uk.

References: [1984] HCA 61, (1984) 154 CLR 672, (1984) 55 ALR 225, (1984) 58 ALJR 531, (1984) Aust Torts Reports 80-311
Links: Austlii
Coram: Mason J
Ratio: (High Court of Australia) Mason J discussed the concept of the personal duty which Lord Wright expounded in Wilson and said that it made it impossible to draw a convincing distinction between the delegation of performance of the employer’s duty to an employee and delegation to an independent contractor. As Mason J said: ‘On the hypothesis that the duty is personal or incapable of delegation, the employer is liable for its negligent performance, whether the performance be that of an employee or that of an independent contractor’ and as to the existence of a non-delegable duty: ‘when we look to the classes of case in which the existence of a non-delegable duty has been recognised, it appears that there is some element in the relationship between the parties that makes it appropriate to impose on the defendant a duty to ensure that reasonable care and skill is taken for the safety of the persons to whom the duty is owed . . The element in the relationship between the parties which generates a special responsibility or duty to see that care is taken may be found in one or more of several circumstances. The hospital undertakes the care, supervision and control of patients who are in special need of care. The school authority undertakes like special responsibilities in relation to the children whom it accepts into its care. If the invitor be subject to a special duty, it is because he assumes a particular responsibility in relation to the safety of his premises and the safety of his invitee by inviting him to enter them . . In these situations the special duty arises because the person on whom it is imposed has undertaken the care, supervision or control of the person or property of another or is so placed in relation to that person or his property as to assume a particular responsibility for his or its safety, in circumstances where the person affected might reasonably expect that due care will be exercised.’
This case cites:

• Explained – Wilsons and Clyde Coal Co Ltd v English HL ([1938] AC 57, Bailii, [1937] UKHL 2)
  The employer had entrusted the task of organising a safe system of work to an employee as a result of whose negligence another employee was injured. The employer could not have been held liable for its own negligence, since it had taken all . .

(This list may be incomplete)
This case is cited by:

• Cited – Farraj and Another v King’s Healthcare NHS Trust (KCH) and Another CA (Bailii, [2009] EWCA Civ 1203, (2010) 11 BMLR 131, [2010] PIQR P7, [2010] Med LR 1)
  The claimant parents each carried a gene making any child they bore liable to suffer a serious condition. On a pregnancy the mother’s blood was sent for testing to the defendants who sent it on to the second defendants. The condition was missed, . .
• Cited – Woodland v The Swimming Teachers’ Association and Others QBD (Bailii, [2011] EWHC 2631 (QB), [2012] PIQR P3, [2012] ELR 76)
  The court was asked as to the vicarious or other liability of a school where a pupil suffered injury at a swimming lesson with a non-employee during school time, and in particular whether it had a non-delegable duty to ensure the welfare of children . .
• Cited – Woodland v Essex County Council CA (Bailii, [2012] EWCA Civ 239, [2013] 3 WLR 853, [2012] ELR 327, [2012] Med LR 419, [2012] PIQR P12, [2012] BLGR 879)
  The claimant had been injured in a swimming pool during a lesson. The lesson was conducted by outside independent contractors. The claimant appealed against a finding that his argument that they had a non-delegable duty of care was bound to fail. . .

(This list may be incomplete)

Last Update: 30 March 2017
Ref: 378397

The post Kondis v State Transport Authority: 16 Oct 1984 appeared first on swarb.co.uk.