References: [1990] 2 Med LR 103, (1989) 17 NSWLR 553
Coram: Kirby J, Samuels JA
Ratio: (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 legitimate expectation that B will ensure that those qualities will be exercised in protection of the person or property of A. A further policy decision will be required to determine when that peculiar combination of dependence and expectation . . exists. But it can scarcely be doubted that it does so in the case of the relationship between hospital and patient . . The basis of the duty is, more persuasively, the satisfaction of expectations about where liability ought to be sheeted home.’
Kirby J (dissenting) said that ‘As the intensely technological nature of modern hospitals necessitates the occasional invitation of visiting experts (who are not in the strict sense employers or even honorary staff members of the hospital) it is highly desirable that the law should make plain the protection of patients who suffer as a result of the professional expert’s mistakes. So far as the patient is concerned he or she is in the hospital. He or she should be able to look to the hospital to ensure (by insurance or otherwise) that proved wrongs by health care staff occurring at the hospital or arising out of its activities are compensated in full degree.’
Samuels JA said that proof of the relationship of hospital and patient ‘will generate a special duty of some kind, closer scrutiny of the facts . . is necessary in order to establish its scope. It is a question of what medical services the hospital has undertaken to supply.’ and ‘It is true that while considerations of loss distribution may have been potent in developing the principle in the area of relations between employer and employee where small independent contractors were at one time notoriously likely to be uninsured against public risk., they are no longer of the same importance, as Whippy points out (op cit at 202). There is no reason to suppose that surgeons are significantly less protected by the embrace of underwriters than hospitals are. The basis of the duty is, more persuasively, the satisfaction of expectations about where liability ought to be sheeted home.’
Jurisdiction: Australia
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 . .

(This list may be incomplete)

Last Update: 30 March 2017
Ref: 378399

The post Ellis v Wallsend District Hospital: 1989 appeared first on swarb.co.uk.

References: [2011] EWHC 2871 (QB), [2012] 2 WLR 709, [2012] 1 All ER 723, [2012] PTSR 633, [2012] PIQR P5, [2012] IRLR 301
Links: Bailii
Coram: MacDuff J
Ratio: The court was asked as a preliminary issue who should be the defendant where a claim was made of rape and other assaults by a priest who was a member of the diocese of the second defendant, but employed by the first defendant school.
This case is cited by:

• Appeal from – 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. . .
• At first instance – 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: 05 April 2017
Ref: 448162

The post JGE v The English Province of Our Lady of Charity and Another: QBD 8 Nov 2011 appeared first on swarb.co.uk.

References: Unreported, 27 March 1987
Coram: Sir John Donaldson MR, Lawton, Glidewell LJJ
Ratio: Several women were in the washroom provided by the employers at their factory. One decided to startle another by giving the wash basin a push, as a result of which the claimant twisted her back.
Held: Lawton LJ, with whom Sir John Donaldson MR and Glidewell LJ agreed, said: ‘What she did was a deliberate act which had nothing whatsoever to do with anything she was employed to do. It was not an improper way of doing her job; it was something wholly outside her job.’
This case is cited by:

• Cited – Weddall v Barchester Healthcare Ltd CA (Bailii, [2012] EWCA Civ 25)
  Parties appealed against judgments dismissing their claims of vicarious liability as against their employers after assaults by co-employees.
  Held: Appeals were dismissed and allowed according to their facts.
  In one case, one employee . .

(This list may be incomplete)

Last Update: 05 April 2017
Ref: 450492

The post Aldred v Nacanco Limited: CA 27 Mar 1987 appeared first on swarb.co.uk.

References: (1883) 8 App Cas 443, [1881-85] All ER 44, (1883) 8 AC 443
Coram: Lord Blackburn
Ratio: The parties were neighbouring householders with a party wall. A builder working in the defendant’s house negligently cut into the party wall, causing the partial collapse of both the defendant’s house and the Plaintiff’s house next-door.
Held: Lord Blackburn said: ‘The first point to be considered is what was the relation in which the defendant stood to the plaintiff. It was admitted that they were owners of adjoining houses between which was a party-wall the property of both. The defendant pulled down his house and had it rebuilt on a plan which involved in it the tying together of the new building and the party-wall which was between the plaintiff’s house and the defendant’s, so that if one fell the other would be damaged. The defendant had a right so to utilize the party-wall, for it was his property as well as the plaintiff’s; a stranger would not have had such a right. But I think the law cast upon the defendant, when exercising this right, a duty towards the plaintiff. I do not think that duty went so far as to require him absolutely to provide that no damage should come to the plaintiff’s wall from the use he thus made of it, but I think that the duty went as far as to require him to see that reasonable skill and care were exercised in those operations which involved a use of the party-wall, exposing it to this risk. If such a duty was cast upon the defendant he could not get rid of responsibility by delegating the performance of it to a third person. He was at liberty to employ such a third person to fulfil the duty which the law cast on himself, and, if they so agreed together, to take an indemnity to himself in case mischief came from that person not fulfilling the duty which the law cast upon the defendant; but the defendant still remained subject to that duty, and liable for the consequences if it was not fulfilled. This is the law I think clearly laid down in Pickard v Smith 10 CB (NS) 470, and finally in (1881) Dalton v Angus 6 App Cas 740. But in all the cases on the subject there was a duty cast by law on the party who was held liable.’
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: 18 April 2017
Ref: 516945

The post Hughes v Percival: 1883 appeared first on swarb.co.uk.

References: [1997] 3 SCR 1145, 43 BCLR (3d) 154, 1997 CanLII 304 (SCC), 153 DLR (4th) 594, [1998] 5 WWR 732
Links: Canlii, Canlii
Coram: Sopinka, Cory, McLachlin, Iacobucci and Major JJ
Ratio: (Supreme Court of Canada) Torts – Negligence – Highways – Crown liability – Provincial ministry engaging independent contractor to remove rocks from cliff face – Contractor performing work negligently, leaving rocks protruding from cliff face – Driver fatally injured when one of rocks fell from cliff face and crashed through his windshield – Whether provincial ministry absolved from liability for contractor’s negligence.
Cory J said that a common law duty of care ‘does not usually demand compliance with a specific obligation. It is only when an act is undertaken by a party that a general duty arises to perform the act with reasonable care.’
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: 18 April 2017
Ref: 516942

The post Lewis v British Columbia: 11 Dec 1997 appeared first on swarb.co.uk.

References: [1914] AC 62
Coram: Lord Dunedin
Ratio: In looking at restrictions by an employer to limit his vicarious liability, the court must distinguish between prohibitions which limit the sphere of employment and those which only deal with conduct within the sphere of employment:’ ‘there are prohibitions which limit the sphere of employment, and prohibitions which only deal with conduct within the sphere of employment’.
Statutes: Workmen’s Compensation Act 1906
Jurisdiction: England and Wales
This case is cited by:

• 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 – 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 – Canadian Pacific Railway Co v Lockhart PC ([1942] AC 591, [1941] SCR 278, [1942] All ER 464)
  When considering the imposition of vicarious liability, ‘the first consideration is the ascertainment of what the servant is employed to do.’ (Lord Thankerton) and ‘It is clear that the master is responsible for acts actually authorised by him: for . .
• Cited – Rose v Plenty CA ([1976] 1 WLR 141, Bailii, [1975] EWCA Civ 5, [1976] 1 All ER 97, [1975] ICR 430)
  Contrary to his employers orders, a milkman allowed children to assist him in his milkround. One was injured, and sued the milkman’s employer.
  Held: The milkman had not gone so far outside the activities for which he was employed for the . .

(This list may be incomplete)

Last Update: 22 April 2017
Ref: 193842

The post Plumb v Cobden Flour Mills Co Ltd: HL 1914 appeared first on swarb.co.uk.

References: [1896] 1 Ch 199
Coram: Lord Herschell, A L Smith LJ, Rigby LJ
Ratio: In a marriage settlement, the first defendant, a solicitor, advised the persons who were acting as trustees, though not yet formally appointed as such. He suggested a series improper of investments for the trust funds. The money was to be lent on speculative building, and the margin was unsatisfactory. The money was lost. Lord Herschell considered that, if the claimants had charged him with negligence as a solicitor and brought the action in time, they might well have succeeded, in which case both he and his partner would have been liable. But any such action was barred by the Statute of Limitations. Accordingly the claimants alleged that HB had intermeddled with the trust and was liable as a trustee de son tort. They alleged that he had laid out the trust moneys at a time when there were no trustees, and therefore must be taken to have acted as a principal in the matter and not as a mere agent for the trustees. Such a claim was not statute-barred.
Held: It is not within the scope of the implied authority of a partner in a firm of solicitors that he should act to make himself a constructive trustee, and thereby subject his partner to liability. ‘it is not within the scope of the implied authority of a partner in . . [a solicitor’s] business that he should so act as to make himself a constructive trustee, and thereby subject his partner to the same liability’.
Jurisdiction: England and Wales
This case is cited by:

• 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 – Paragon Finance Plc (Formerly Known As National Home Loans Corporation Plc v D B Thakerar and Co (a Firm); Ranga and Co (a Firm) and Sterling Financial Services Limited CA (Times 07-Aug-98, Gazette 29-Jul-98, Gazette 16-Sep-98, Bailii, Bailii, [1998] EWCA Civ 1187, [1999] 1 All ER 400, [1998] EWCA Civ 1249)
  Where an action had been begun on basis of allegations of negligence and breach of trust, new allegations of fraud where quite separate new causes of claim, and went beyond amendments and were disallowed outside the relevant limitation period. . .

(This list may be incomplete)

Last Update: 22 April 2017
Ref: 193863

The post Mara v Browne: HL 1896 appeared first on swarb.co.uk.

References: [2004] EWCA Civ 560, Times 02-Jun-2004
Links: Bailii
Coram: Waller, Latham and Neuberger LJJ
Ratio: The claimant was injured by a door attendant employed as an independent contractor by the defendant.
Held: The defendant’s duty in selecting an independent contractor was limited to assessing the competence of the contractor. The duties of minding the door were not non-delegable, and therefore there was no additional duty to carry insurance against liability. Here the subcontractor employed doormen who were licensed by the local authority, and the club owner had no duty to enquire further save in exceptional circumstances.
This case cites:

• Cited – Gwilliam v West Hertfordshire Hospitals NHS Trust and Others CA (Times 07-Aug-02, Bailii, Gazette 03-Oct-02, [2002] EWCA Civ 1041, [2002] 3 WLR 1425, [2003] QB 443)
  The claimant sought damages. She had been injured after the negligent erection of a stand which was known to be potentially hazardous. The contractor was uninsured, and the claimant sought damages from the Hospital which had arranged the fair in its . .
• Cited – Michael John Bottomley v Todmorden Cricket Club CA (Bailii, [2003] EWCA Civ 1575, Times 13-Nov-03, Gazette 02-Jan-04, [2004] PIQR 276)
  The claimant was very badly injured at a bonfire organised by the defendants. He had been asked to help with a part of the display, organised by sub-contractors, which exploded as he was filling it.
  Held: The nature of the activity to be . .

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

• Cited – Glaister and Others v Appelby-In-Westmorland Town Council CA (Bailii, [2009] EWCA Civ 1325, [2009] NPC 143, [2010] PIQR P6)
  The claimant was injured when at a horse fair. A loose horse kicked him causing injury. They claimed in negligence against the council for licensing the fair without ensuring that public liability insurance. The Council now appealed agaiinst a . .
• Cited – Glaister and Others v Appelby-In-Westmorland Town Council CA (Bailii, [2009] EWCA Civ 1325, [2009] NPC 143, [2010] PIQR P6)
  The claimant was injured when at a horse fair. A loose horse kicked him causing injury. They claimed in negligence against the council for licensing the fair without ensuring that public liability insurance. The Council now appealed agaiinst a . .

(This list may be incomplete)

Last Update: 29 April 2017
Ref: 196769

The post Naylor (T/A Mainstreet) v Payling: CA 7 May 2004 appeared first on swarb.co.uk.

References: [1963] 1 WLR 991
Coram: Diplock LJ
Ratio: The plaintiff was injured by the careless manouvering of a lorry by the defendant’s employee.
Held: When considering the vicarious liability of an employer, the proper approach to the nature of the servant’s employment is a broad one. Referring to nouns such as ‘sphere’ and ‘scope’: ‘As each of these nouns implies the matter must be looked at broadly, not dissecting the servant’s task into its component activities – such as driving, loading, sheeting and the like – by asking: what was the job on which he was engaged for his employer? and answering that question as a jury would.’
As to distinctions between restrictions on the sphere of employment and restrictions on conduct within that sphere of employment: ‘the decision into which of these two classes the prohibition falls seems to me to involve first determining what would have been the sphere, scope, course (all these nouns are used) of the servant’s employment if the prohibition had not been imposed. As each of these nouns implies, the matter must be looked at broadly, not dissecting the servant’s task into its component activities – such as driving, loading, sheeting and the like – by asking: what was the job on which he was engaged for his employer? and answering that question as a jury would.’
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 . .
• 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 – Rose v Plenty CA ([1976] 1 WLR 141, Bailii, [1975] EWCA Civ 5, [1976] 1 All ER 97, [1975] ICR 430)
  Contrary to his employers orders, a milkman allowed children to assist him in his milkround. One was injured, and sued the milkman’s employer.
  Held: The milkman had not gone so far outside the activities for which he was employed for the . .
• Cited – Reynolds v Strutt and Parker LLP ChD ([2011] EWHC 2263 (Ch), Bailii)
  The defendant had organised a team bonding day, including a cycling event. The claimant employee was severely injured falling from his cycle. He said that the defendant had been engligent in not providing cycling helmets. The circuit hosting company . .
• Cited – Reynolds v Strutt and Parker LLP ChD ([2011] EWHC 2263 (Ch), Bailii)
  The defendant had organised a team bonding day, including a cycling event. The claimant employee was severely injured falling from his cycle. He said that the defendant had been engligent in not providing cycling helmets. The circuit hosting company . .

(This list may be incomplete)

Last Update: 30 April 2017
Ref: 214668

The post Ilkiw v Samuels: CA 1963 appeared first on swarb.co.uk.

References: [1942] AC 591, [1941] SCR 278, [1942] All ER 464
Coram: Lord Thankerton, Lord Dunedin
Ratio: When considering the imposition of vicarious liability, ‘the first consideration is the ascertainment of what the servant is employed to do.’ (Lord Thankerton) and ‘It is clear that the master is responsible for acts actually authorised by him: for liability would exist in this case, even if the relation between the parties was merely one of agency, and not one of service at all. But a master, as opposed to the employer of an independent contractor, is liable even for acts which he has not authorized, provided they are so connected with acts which he has authorized that they may rightly be regarded as modes – although improper modes – of doing them. In other words, a master is responsible not merely for what he authorizes his servant to do,but also for the way in which he does it . . On the other hand, if the unauthorized and wrongful act of the servant is not so connected with the authorized 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.’ and
‘It is often difficult in the particular case to distinguish between the second and the third of these situations, but the criterion is whether the act which is unauthorised is so connected with acts which have been authorised that it may be regarded as a mode – although an improper mode – of doing the authorised act, as distinct from constituting an independent act for which the master would not be liable.’
Lord Dunedin said: ‘there are prohibitions which limit the sphere of employment, and prohibitions which only deal with conduct within the sphere of employment.’
This case cites:

• Cited – Plumb v Cobden Flour Mills Co Ltd HL ([1914] AC 62)
  In looking at restrictions by an employer to limit his vicarious liability, the court must distinguish between prohibitions which limit the sphere of employment and those which only deal with conduct within the sphere of employment:’ ‘there are . .

(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 . .
• Cited – Rose v Plenty CA ([1976] 1 WLR 141, Bailii, [1975] EWCA Civ 5, [1976] 1 All ER 97, [1975] ICR 430)
  Contrary to his employers orders, a milkman allowed children to assist him in his milkround. One was injured, and sued the milkman’s employer.
  Held: The milkman had not gone so far outside the activities for which he was employed for the . .
• Cited – Racz v Home Office HL (Times 17-Dec-93, Independent 17-Dec-93, [1994] 2 WLR 23, [1994] 1 All ER 97, [1994] 2 AC 45)
  The Home Office can be liable for the actions of prison officers which amounted to an official misfeasance. The principles of vicarious liability apply as much to misfeasance in public office as to other torts involving malice, knowledge or . .
• 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 – Fennelly v Connex South Eastern Ltd CA (Bailii, [2000] EWCA Civ 5568, [2001] IRLR 186)
  A ticket inspector, following an altercation with a passenger during which strong words were exchanged, had held the passenger in a headlock. The court had found this to be within the course of his employment so as to make the employer vicariously . .

(This list may be incomplete)

Last Update: 30 April 2017
Ref: 214663

The post Canadian Pacific Railway Co v Lockhart: PC 1941 appeared first on swarb.co.uk.

References: [1904] 1 KB 628
Coram: Collins MR
Ratio: The defendant’s coachman had taken out for his own purposes a dog-cart which belonged to the plaintiff and had been lent to the defendant.
Held: The defendant was not vicariously liable for the coachman’s actions: ‘If the servant in doing any act breaks the connection of service between himself and his master, the act done under those circumstances is not that of the master’.
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: 30 April 2017
Ref: 214673

The post Sanderson v Collins: CA 1904 appeared first on swarb.co.uk.

References: 1958 SC 514
Coram: Lord President Clyde
Ratio: The court considered the degree of connection necessary between the act of an employee and his employer’s business to establish liability under the rule respondeat superior: ‘four different types of situation have been envisaged as guides to the solution of this problem. In the first place, if the master actually authorised the particular act, he is clearly liable for it. Secondly, where the workman does some work which he is appointed to do, but does it in a way which his master has not authorised and would not have authorised had he known of it, the master is nevertheless still responsible, for the servant’s act is still within the scope of his employment. On the other hand, in the third place, if the servant is employed only to do a particular work or a particular class of work, and he does something outside the scope of that work, the master is not responsible for any mischief the servant may do to a third party. Lastly, if the servant uses his master’s time or his master’s place or his master’s tools for his own purposes, the master is not responsible. . .’ and ‘It is probably not possible and it is certainly inadvisable to endeavour to lay down an exhaustive definition of what falls within the scope of the employment. Each case must depend to a considerable extent on its particular facts.’
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 . .
• Cited – Williams v A and W Hemphill Ltd HL (1966 SC(HL) 31, Bailii, [1966] UKHL 3)
  Against his employers’s instructions a driver of a lorry deviated substantially from his route. On the detour an accident occurred owing to the fault of the driver. The question arose whether the employers of the lorry driver were vicariously . .

(This list may be incomplete)

Last Update: 30 April 2017
Ref: 214674

The post Kirby v National Coal Board: OHCS 1958 appeared first on swarb.co.uk.

References: [1992] 3 All ER 617, (1990) 2 Admin LR 214
Coram: Henry J
Ratio: A plain clothed off duty police officer gained entry to premises by production of his warrant card. He enquired as to the immigration status of the two residents. He told them they were in breach of the immigration regulations, and demanded sexual favours, which the female resident acceded to, in return for his refraining from reporting the irregularities.
Held: The Commissioner was not liable for the actions of the officer under Section 48(1) of the 1964 Act. The phrase ‘police functions’ referred to’ the ordinary police functions of investigating, preventing, discovering and reporting crime, including the power of arrest’. The first defendant contended that the same approach should be applied in this case. ‘Purported’, here meant ‘in the professed performance of his functions’ or ‘pretending to be acting in the course of his employment’. Obtaining entry to the premises by identifying himself as a police officer and going on to make enquires was in purported performance of his police functions, and a statement by the officer that he intended to arrest, report, warn or take no further action would also be in purported performance of his police functions. However, the claim was not concerned with something which a police officer might in certain circumstances be entitled to do, but something which the resident could never have believed was or could have been done in the performance of his duty, it being clear to her as it would have been to anyone else, that the demand for sexual favours was one which no one could make as a police officer.
Statutes: Police Act 1964 48(1)
This case is cited by:

• Distinguished – Hutchinson v Metropolitan Police Commissioner and Another QBD (Bailii, [2005] EWHC 1660 (QB))
  The claimant sought damages for assault by a probationary constable. The constable had been called to a drunken party for Sainsbury’s employees.
  Held: The claimant had been assaulted. Miss Morgan had introduced herself as a police officer, had . .
• Cited – A and others v Secretary of State for the Home Department (No 2) HL (Bailii, [2005] UKHL 71, House of Lords, Times 09-Dec-05, [2005] 3 WLR 1249, [2006] 2 AC 221, [2006] 1 All ER 575, 19 BHRC 441, [2006] UKHRR 225, [2006] HRLR)
  The applicants had been detained following the issue of certificates issued by the respondent that they posed a terrorist threat. They challenged the decisions of the Special Immigration Appeals Commission saying that evidence underlying the . .

(This list may be incomplete)

Last Update: 02 May 2017
Ref: 230140

The post Makanjuola v Commissioner of Police for the Metropolis: 1990 appeared first on swarb.co.uk.

References: [1953] AC 663, [1953] UKHL 4, [1953] 2 All ER 478, [1953] 3 WLR 279
Links: Bailii
Coram: Reid L, Porter L, Oaksey L, Tucker L
Ratio: The question was whether the fault of the deceased’s fellow workman, they both having disobeyed their foreman’s instructions, was to be regarded as having contributed to the accident.
Held: A plaintiff must ‘share in the responsibility for the damage’ for the Act to apply, and this involves consideration not only of the blameworthiness of each party but also of the relative importance of a plaintiff’s acts in causing damage, apart from his blameworthiness. The court is concerned with the causative potency matters giving rise to the result of the accident, not just to the accident itself. The question as to what caused an accident must be determined as a properly instructed and reasonable jury would decide it, by applying common sense to the facts of each particular case.
Reid L said: ‘Finally, it is necessary to apply the Law Reform (Contributory Negligence) Act, 1945. Sellers J. reduced the damages by one half, holding both parties equally to blame. Normally one would not disturb such an award, but Sellers J. does not appear to have taken into account the fact that Stapley deliberately and culpably entered the stope. By doing so it appears to me that he contributed to the accident much more directly than Dale. The Act directs that the damages ‘shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage’ (section 1(1)). A court must deal broadly with the problem of apportionment and in considering what is just and equitable must have regard to the blameworthiness of each party, but ‘the claimant’s share in the responsibility for the damage’ cannot, I think, be assessed without considering the relative importance of his acts in causing the damage apart from his blameworthiness. It may be that in this case Dale was not much less to blame than Stapley, but Stapley’s conduct in entering the stope contributed more immediately to the accident than anything that Dale did or failed to do. I agree with your Lordships that in all the circumstances it is proper in this case to reduce the damages by 80% and to award 20%. of the damages to the appellant. ‘
and ‘One may find that as a matter of history several people have been at fault and that if any one of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes it is proper to discard all but one and to regard that one as the sole cause, but in other cases it is proper to regard two or more as having jointly caused the accident. I doubt whether any test can be applied generally.’
Statutes: Law Reform (Contributory Negligence) Act 1945 1(1)
Jurisdiction: England and Wales
This case cites:

• Approved – Davies v Swan Motor Co (Swansea) Ltd CA ([1949] 2 KB 291)
  A plaintiff brought an action for damages for personal injury against the drivers of two cars.
  Held: There are two aspects to apportioning responsibility between a plaintiff and defendant in an action for negligence, the respective causative . .

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

• Cited – Eagle v Chambers CA (Bailii, [2003] EWCA Civ 1107, Times 01-Sep-03, [2004] RTR 115)
  The claimant was severely injured when run down by the defendant driving his car. She was in Blackpool, and drunk and wandering in the highway. The defendant was himself at or near the drink driving limit. She appealed against a finding that she was . .
• Cited – Exel Logistics Ltd v Curran and others CA (Times 02-Nov-04, Bailii, [2004] EWCA Civ 1249)
  The claimants sought damages for personal injuries after a crash in a Land Rover maintained by the defendants. The defendants appealed findings of negligence in failing properly to inflate the rear tyres, in continuing despite the danger, and poor . .
• Cited – Chester v Afshar HL ([2005] 1 AC 134, House of Lords, Bailii, [2004] UKHL 41, Times 19-Oct-04, [2004] 3 WLR 927, 67 BMLR 66)
  The claimant suffered back pain for which she required neurosurgery. The operation was associated with a 1-2% risk of the cauda equina syndrome, of which she was not warned. She went ahead with the surgery, and suffered that complication. The . .
• Cited – Commissioner of Police for the Metropolis v Reeves (Joint Administratix of The Estate of Martin Lynch, Deceased) HL (Times 16-Jul-99, Gazette 11-Aug-99, House of Lords, Bailii, [1999] 3 WLR 363, [1999] UKHL 35, [2000] 1 AC 360, [1999] 3 All ER 897)
  The deceased was a prisoner known to be at risk of committing suicide. Whilst in police custody he hanged himself in his prison cell. The Commissioner accepted that he was in breach of his duty of care to the deceased, but not that that breach was . .
• Cited – Badger v The Ministry of Defence QBD (Bailii, [2005] EWHC 2941 (QB), Times 28-Dec-05, [2006] 3 All ER 173)
  The widow of the deceased sought damages after his exposure to asbestos whilst working for the defendant. He had contracted lung cancer. The defendant argued that the deceased had continued to smoke knowing of the risks, and that he had made a . .
• Cited – 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 – Vellino v Chief Constable of Greater Manchester Police CA (Times 09-Aug-01, Bailii, [2001] EWCA Civ 1249, [2002] 1 WLR 218, [2002] PIQR P10, [2002] 3 All ER 78)
  The police were not under any duty to protect someone who had been arrested from injuring himself in an attempt to escape. The claimant had a history of seeking to avoid capture by jumping from his flat window. On this occasion he injured himself in . .
• Cited – Corr v IBC Vehicles Ltd HL (Bailii, [2008] UKHL 13, [2008] 2 WLR 499, [2008] 2 All ER 943, [2008] ICR 372, [2008] AC 884, [2008] PIQR P11)
  The claimant’s husband had committed suicide. She sought damages for financial loss from his former employers under the 1976 Act. He had suffered a severe and debilitating injury working for them leading to his depression and suicide. The employers . .
• Cited – St George v The Home Office CA (B3/2007/2778, Bailii, [2008] EWCA Civ 1068, Times 22-Oct-08)
  The claimant was taken into prison. He was known to be subject to epilepsy, with high risks on withdrawal from drugs, but was allocated a high bunk. He had a seizure and fell, suffering head injuries. He sought damages in negligence. The defendant . .
• Cited – Smith v Skanska Construction Services Ltd QBD (Bailii, [2008] EWHC 1776 (QB))
  The court considered whether the driver of a vehicle involved in a fatal road accident in Thailand was driving within the authority of the UK employers. The driver was not an employee but had authority to use company vehicles for tasks for the . .
• Applied – Clay v AJ Crump and Sons Ltd CA ([1964] 1 QB 533)
  An architect, a demolition contractor and a building contractor were each held liable to an employee of building contractors for the collapse of a wall which, with the architect’s approval, demolition contractors had left standing.
  Held: As . .
• Cited – Jackson v Murray and Another SC ([2015] RTR 20, [2015] 2 All ER 805, Bailii, [2015] UKSC 5, 2015 SCLR 235, 2015 Rep LR 42, 2015 GWD 7-141, 2015 SLT 151, Bailii Summary, UKSC 2014/0070, SC, SC Summary, SC Video, 2015 SC (UKSC) 105, [2015] PIQR P16)
  The claimant child, left a school bus and stepped out from behind it into the path of the respondent’s car. She appealed against a finding of 70% contributory negligence.
  Held: Her appeal succeeded (Majority, Lord Hodge and Lord Wilson . .

(This list may be incomplete)
Leading Case
Last Update: 03 May 2017
Ref: 185853

The post Stapley v Gypsum Mines Ltd: HL 25 Jun 1953 appeared first on swarb.co.uk.

References: , [1837] EngR 202, (1837) 3 M & W 1, (1837) 150 ER 1030
Links: Commonlii
Ratio: 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.
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, . .

(This list may be incomplete)

Last Update: 04 May 2017
Ref: 313319

The post Priestley v Fowler: 1837 appeared first on swarb.co.uk.

References: [1726] EngR 590, (1726) 1 Vent 295, (1726) 86 ER 190 (B)
Links: Commonlii
Coram: Twisden, Wylde JJ
Ratio: 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 that the horse was so unruly, that he broke from the defendant, and ran over the plaintiff, and grievously hurt him, to his damages, andC.
Upon not guilty pleaded, and a verdict for the plaintiff, it was moved by Simpson in arrest of judgment, that here is no cause of action: for it appears by the declaration, that the mischief which happened was against the defendant’s will, and so damnum absque injuria; and then not shewn what right the King’s subjects had to walk there; and if a man digs a pit in a common into which one that has no right to come there, falls in, no action lies in such case.
Curia contra, It was the defendant’s fault, to bring a wild horse into such a place where mischief might probably be done, by reason of the concourse of people. Lately, in this Court an action was brought against a butcher, who had made an ox run from his stall and gored the plaintiff; and this was alledged in the declaration to be in default of penning of him.
Wylde said: ‘If a man hath an unruly horse in his stable, and leaves open the stable-door, whereby the horse goes forth and does mischief; an action lies against the master.’
Twisden: ‘If one hath kept a tame fox, which gets loose and grows wild, he that kept him before shall not answer for the damage the fox doth after he hath lost him, and he hath resumed his wild nature.’
This case is cited by:

• 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. . .
• 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, . .

(This list may be incomplete)

Last Update: 04 May 2017
Ref: 379170

The post Mitchil v Alestree: 1726 appeared first on swarb.co.uk.

maga_birmCA2010
References: [2010] EWCA Civ 256, [2010] PTSR 1618, [2010] 1 WLR 1441
Links: Bailii, Times
Coram: Lord Neuberger MR, Longmore LJ, Smith LJ
Ratio: The claimant appealed against rejection of his claim for damages after alleging sexual abuse by a catholic priest. The judge had found the church not vicariously liable for the injuries, and that the archdiocese had not been under a duty further to pursue the investigation of the reports received by them at the time. The respondent appealed saying that the judge had incorrectly found the claimant to lack capacity.
Held: The judge had misdescribed the test for capacity, however, ‘on the question of whether section 28(1) applied . . the issue is certainly not one of discretion; nor is it an issue of primary fact. It is a matter of judgment, and one which is primarily for the first instance tribunal. There may, in an Aristotelian sense, be only one right answer to the question whether a claimant was able to conduct the litigation, but in this imperfect world, it must, in some cases, be an issue on which reasonable and fully informed Judges could differ. In such cases, and this is, in my view, such a one, an appellate court should not interfere with the Judge’s conclusion unless he has relied on irrelevant evidence, ignored relevant evidence, or misunderstood some evidence.’ The claimant was correctly found to lack capacity.
As to the vicarious liability of the archdiocese, the priest had not sought to draw the claimant within his ‘priestly activities’. This issue ‘although very much fact-dependant, is ultimately one of law rather than of inference from facts . .’ and ‘there are a number of factors, which, when taken together, persuade me that there was a sufficiently close connection between Father Clonan’s employment as priest at the Church and the abuse which he inflicted on the claimant to render it fair and just to impose vicarious liability for the abuse on his employer, the Archdiocese.’ Nevertheless, it was part of his duty to evangelise and befriend non-catholics. The claimant being 12, and the position of the priest in charge of youth activities also gave him special responsibilities. The claimant’s appeal succeeded.
As to the church’s duty to take the investigation further, the initial response was in accordance with standards and expectations at the time. The allegation whilst gross was not of the most serious, and it had been put to the priest who had denied it. However, having once been warned, the senior priest came under a duty to keep a closer eye on the priest. Had he done so further assaults would not have taken place. The church was liable for the acts of its senior priest. Applying the test from Caparo, the judge had been wrong to find no duty of care in the Archdiocese.
Statutes: Limitation Act 1980 28(1)
This case cites:

• Cited – Kirby v Leather CA ([1965] 2 QB 367)
  The plaintiff crashed into a van whilst riding his moped and suffered serious brain damage. An inquiry as to a party’s competence to conduct a case had to focus on his capacity to conduct the proceedings. In this case the plaintiff ‘was not capable . .
• Mentioned – 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 . .
• Authoritative – 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 – Lloyd v Grace, Smith and Co HL ([1912] AC 716, Bailii, [1912] UKHL 1)
  Mrs Lloyd delivered the title deeds of her cottages at Ellesmere Port to the solicitors’ fraudulent managing clerk.
  Held: Vicarious liability can extend to fraudulent acts or omissions if those were carried out in the course of the employment . .
• Cited – Caparo Industries Plc v Dickman and others HL ([1990] 2 AC 605, Bailii, [1990] UKHL 2, [1990] 1 All ER 568)
  The plaintiffs sought damages from accountants for negligence. They had acquired shares in a target company and, relying upon the published and audited accounts which overstated the company’s earnings, they purchased further shares.
  Held: The . .
• Cited – Lindsay v Wood QBD (Bailii, [2006] EWHC 2895 (QB), Times 08-Dec-06)
  The claimant suffered severe brain injury in a crash. The parties sought guidance form the court as to his legal capacity.
  Held: The fact that a party may be particularly susceptible to exploitation was a relevant element when considering his . .
• 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 . .
• Applied – Jacobi v Griffiths ((1999) 174 DLR(4th) 71, Canlii, [1999] 9 WWR 1, 44 CCEL (2d) 169, 63 BCLR (3d) 1)
  (Canadian Supreme Court) The process for determining when a non-authorised act by an employee is so connected to the employer’s enterprise that liability should be imposed involved two steps: 1. Firstly a court should determine whether there are . .
• Cited – Masterman-Lister v Brutton and Co and Another (2) CA (Bailii, [2003] EWCA Civ 70, [2003] 1 WLR 1511)
  The claimant had been funded for a personal injury claim under legal aid. He appealed against a decision that he was not a ‘patient’ and that he had been fully capable of managing and administering his affairs for many years. He lost. The . .
• 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 – Bazley v Curry ((1999) 174 DLR(4th) 45, Canlii, [1999] 8 WWR 197, 43 CCEL (2d) 1, 62 BCLR (3d) 173)
  (Canadian Supreme Court) The court considerd the doctrine of vicarious liability: ‘The policy purposes underlying the imposition of vicarious liability on employers are served only where the wrong is so connected with the employment that it can be . .
• Appeal from – Maga v The Trustees of The Birmingham Archdiocese of The Roman Catholic Church QBD (Bailii, [2009] EWHC 780 (QB), [2010] 1 WLR 1441)
  There was a sufficiently close connection between the employment of a priest at the church and the abuse which he inflicted on the claimant to render it fair and just to impose vicarious liability for the abuse on his employer, the Archdiocese. . .

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

• Cited – Coulson v Newsgroup Newspapers Ltd QBD (Bailii, [2011] EWHC 3482 (QB))
  The claimant had been employed by the defendant as editor of a newspaper. On leaving they entered into an agreement which the claimant said required the defendant to pay his legal costs in any action arising regarding his editorship. The defendant . .
• 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: 08 May 2017
Ref: 402951

The post Maga v The Trustees of The Birmingham Archdiocese of The Roman Catholic Church: CA 16 Mar 2010 appeared first on swarb.co.uk.

References: [2017] EWCA Civ 274
Links: Bailii
Coram: Arden, Henderson LJJ, Sir Christopher Clarke
Ratio: Appeal against refusal of strike out of claim as abuse of process/
Jurisdiction: England and Wales

Last Update: 10-May-17
Ref: 582094

The post Otkritie Capital International Ltd and Another v Threadneedle Asset Management Ltd and Another: CA 12 Apr 2017 appeared first on swarb.co.uk.

References: [1973] EWCA Civ 3, Times 06-Jun-1973, (1973) 16 KIR 329
Links: Bailii
Ratio: The court was asked whether the London Transport Executive was liable for the action of a bus conductor in driving contrary to his express instructions a motor bus a short distance in a garage.
Held: The instruction acted as a prohibition which defined the sphere of the bus conductor’s employment.
This case is cited by:

• Cited – Rose v Plenty CA ([1976] 1 WLR 141, Bailii, [1975] EWCA Civ 5, [1976] 1 All ER 97, [1975] ICR 430)
  Contrary to his employers orders, a milkman allowed children to assist him in his milkround. One was injured, and sued the milkman’s employer.
  Held: The milkman had not gone so far outside the activities for which he was employed for the . .

(This list may be incomplete)

Last Update: 19 May 2017
Ref: 262739

The post Iqbal v London Transport Executive: CA 6 Jun 1973 appeared first on swarb.co.uk.

References: [1973] AC 15, [1972] IRLR 25, [1972] 3 All ER 101
Coram: Lord Wilberforce
Ratio: Injunctions had been granted against the Trades Unions to prevent them undertaking stike action. Proceedings for contempt were brought against the union after blacking had continued, despite the fact that the union through its national and local officers had advised its shop stewards to obey the court order, which advice had been rejected. The House considered the position of shop stewards involved in breaching the injunctions.
Held: The defendant association, once under order from the court to require its shop stewards to desist from the unfair industrial practice of ‘blacking’ container transport firms, had not done everything which it could be expected to do so. The fact that they were agents rather than servants was unimportant. In each case the test to be applied is the same: was the servant or agent acting on behalf of, and within the scope of the authority conferred by, the master or principal? The governor of the prison had been summoned to attend without having been party to the undertaking.
An unincorporated association might be vicariously liable for the tortious acts of one or more of its members.
There can be a contempt if an act intentionally done amounts to a breach of the order: a wilful breach was not the same as, ‘contumacious or insulting behaviour or interference with the administration of justice’.
Lord Wilberforce said: ‘The question to be considered is whether the disobedience was ‘wilful’ in accordance with the established meaning of that word in relation to contempt of court by disobedience to an order of the court. It is important to note that there is no question here of contumacious or insulting behaviour or interference with the administration of justice. There has been simply a disobedience to the court’s injunction by the party restrained by the injunction, and the disobedience has been committed by that party through its agents.’
In considering the established meaning of ‘wilful’ for the purposes of the law of contempt, Lord Wilberforce reviewed a number of authorities, in the light of which he said that the statement of the law by Warrington J in Stancomb had acquired high authority: ‘It is also the reasonable view, because the party in whose favour an order has been made is entitled to have it enforced, and also the effective administration of justice normally requires some penalty for disobedience to an order of a court if the disobedience is more than casual or accidental and unintentional’.
Jurisdiction: England and Wales
This case is cited by:

• Cited – Godrich and Serwotka v Public and Commercial Services Union and Reamsbottom ChD (Bailii, [2002] EWHC 1642 (Ch))
  The second defendant had become General Secretary of the first defendant after the amalgamation of two unions. The defendants agreed a compromise as to his term of office. The applicants sought declarations that they were now joint secretary.
  
• Cited – Beggs v Scottish Ministers HL (Bailii, [2007] UKHL 3, Times 08-Feb-07, (2007) 151 SJLB 258, [2007] 1 WLR 455, 2007 SCLR 287, 2007 SLT 235, 2007 GWD 5-72)
  The claimant, a serving prisoner, had sought to sue the prison authorities for the conditions in which he was kept. He complained that his correspondence with his lawyers had been unlwafully opened by the prison. Repeatedly, undertakings were given . .
• Cited – The Highland Council v TGWU and Unison EAT (Bailii, [2008] UKEAT 0048_07_0306, [2008] IRLR 858, [2008] ICR 1150)
  EAT EQUAL PAY ACT: Equal value

  Equal Pay claims. Whether letters sent to local authority employers by unions prior to coming into force of the statutory grievance procedures met the requirements of regulation . .

• 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 – Jones, Re (Alleged Contempt of Court) FD (Bailii, [2013] EWHC 2579 (Fam))
  The Solicitor General sought the committal of the respondent for alleged contempt of court. There had been repeated litigation between the respondent and her former husband as to whether the children should live in Spain with the father or in Wales . .

(This list may be incomplete)

Last Update: 10 June 2017
Ref: 248818

The post Heaton’s Transport (St Helen’s) Ltd v Transport and General Workers’ Union: HL 1972 appeared first on swarb.co.uk.