A Tort Is a Civil Wrong Against an Individual or Company

Johnson is employed as a delivery driver by a department store, Dobbinghams plc. His contract of service expressly forbids him from taking passengers, but on one occasion he disobeys this and takes his 16 year old son Wayne with him on a delivery round. They make a short detour to enable Johnson to pick up some dry cleaning. Johnson parks his lorry near the dry cleaners, leaving Wayne in the passenger’s seat. Wayne undoes his seatbelt while the lorry is parked as he finds it a bit restrictive. Unfortunately Johnson has negligently failed to apply the handbrake on his lorry properly. The lorry rolls forward and, gathering pace quickly, runs into an adjoining shop owned by Wilson, causing considerable structural damage to it. The rear doors of Johnson’s lorry fly open and some of the goods he was to deliver spill out into the road. Wayne is also injured when the lorry strikes the adjoining shop; his head collides with the windscreen, and he sustains some permanent scarring to his face.

Coming out of the shop, Johnson sees what has happened. He also spots a bystander, Doogood, picking up some of the goods that have spilled into the road. Doogood is actually just moving the goods out of harm’s way, but Johnson thinks he is stealing them, so immediately runs at him, rugby tackles him to the ground and punches him, causing him serious injury.

Advise Dobbinghams plc of the likelihood of all, some or any of Wilson, Wayne and Doogood being able to make a successful claim against them arising out of the above events.

Question 2

In order to advise Dobbinghams PLC whether it is likely that Wilson, Wayne and Doogood will make a successful claim against them it is first necessary to establish whether Dobbinghams will be vicariously liable for Johnson’s actions which have impacted upon each party. This surrounds the Law of Torts.

A Tort is simply defined by Cooke as a civil wrong against an individual or company, where damages (or injunctions) are awarded to the aggrieved party as a remedy. [1] Smith & Keenan cite Professor Winfield’s definition;

‘Tortious liability arises from a duty primarily fixed by law: this duty is towards persons generally and its breach is redressible by an action for unliquidated damages’. [2]

A person can be found tortuously liable if they fail to act in a neighbourly manner toward those affected by their actions. [3] This ‘neighbour principle’ was established in the important case of Donoghue v Stevenson (1932) [4] , where Lord Aitkin stated in his summary;

‘You must take reasonable care to avoid acts or omissions which you can reasonably foresee are likely to injure your neighbour…[neighbours are] persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called into question’. [5]

Since this case, there have been several developments in cases such as Murphy v Brentwood District Council (1990) [6] and Anns v Merton London Borough (1978) [7] , where Lord Wilberforce established a two stage test, building on the ‘first stage’ as established above by Lord Aitkin;

‘Secondly… it is necessary to consider whether there are any considerations which ought to negate, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise.’ [8]

A successful claim relating to negligence requires the existence of a duty of care owed to the claimant by the defendant, a breach of this duty of care, and resulting damage to the claimant. [9] It is clear that Johnson’s actions meet these criteria. He has been negligent, failing in his duty of care to his ‘neighbours’ [10] – Wilson, Wayne and Doogood. He failed to apply the handbrake of his lorry correctly, causing considerable structural damage to Wilson’s shop, and also to his son Wayne, who has sustained injury. In attacking Doogood he has also harmed a member of the public and failed in his duty of care to be neighbourly.

As a result of Johnson’s negligent actions Dobbinghams PLC may find itself facing claims for unliquidated damages from the three aggrieved parties, as they may be found to be vicariously liable. Vicarious liability arises when someone is liable for a tort on behalf of another; this usually occurs when an employer is found to be liable for an employee’s actions. [11] Salmond’s definition (as referred to in Smith & Keenan) requires the presence of a relationship between a ‘master’ and ‘servant’, known as the ‘control test’. [12] This definition has been approved and cited by the Courts, in the case of Hewitt v Bonvin (1940) [13] and referred to by Lord Clyde as a ‘classic statement of the concept [of vicarious liability]’ in Lister v Hesley Hall (2001) [14] . By this definition, Johnson is an employee or ‘servant’ of Dobbinghams PLC and this relationship satisfies the above criteria for a ‘master and servant’ – strengthened by the existence of a contract of employment. [15]

A consideration for a vicarious liability claim is whether the employee was acting in the course or scope (terms used interchangeably [16] ) of his employment at the time of the incident. For example, the no vicarious liability was found in the case of Deatons Pty Ltd V Flew (1949) as when a barmaid threw a drink at a customer, the attack was unprovoked and not required to restore order so not in the course of her employment. [17] Examples of cases where employers were found to be vicariously liable include Vasey v Surrey Free Inns (1996) [18] , where an employee assaulted a man refused entry to their nightclub. This was found as the employees were acting in the scope of their employment, as they were teaching the man a lesson to protect the employer’s property. [19] Further examination of the events is required to establish whether Johnson was acting in the scope of his employment.

Johnson has made a ‘short detour’ from his delivery route, and it may be argued that he was on a ‘frolic of his own’ [20] . Keenan stresses that the extent of deviation is relevant to deciding whether an employee is vicariously liable. [21] He cites Cockburn, CJ in the case of Storey v Ashton (1869) [22]

‘..it is a question of degree as to how far the deviation could be considered a separate journey’ [23] .

In this case it was found that the employer was not vicariously liable as the employee was carrying out his own business and a separate journey from the one he was employed to complete. [24] Similarly in Hilton v Thomas Burton (Rhodes) Ltd (1961) [25] it was decided that the workman responsible for a man’s death while on an unauthorised tea break, ‘a frolic of his own’ so the employer was found not to be vicariously liable [26] .

Applying this case law, it would depend on the court’s view as to whether Johnson had deviated from his route substantially enough to constitute a frolic of his own, preventing a successful claim against Dobbinghams, such as in Story v Ashton (1869). However, it could also be conversely argued that as Johnson only made a ‘short detour’ from his route, leaving Dobbinghams vicariously liable, and claims likely to succeed. This theory would apply to all three claims from Wayne, Wilson and Doogood; the mere fact that Johnson had deviated from his route to collect his dry cleaning meant that the scenario occurred.

Johnson takes Wayne on his delivery round, which is specifically forbidden by his employment contract with Dobbinghams PLC. Despite this, Dobbinghams may still be found to be liable for the injury caused to Wayne. In Twine v Bean’s Express Ltd (1946) [27] a lorry driver gave a lift to a third party who was then killed as a result of reckless driving. Harpwood concludes that the reason that the employer was found not to be found vicariously liable as the employer has derived no benefit from the forbidden act. [28] Conversely, in the case of Rose v Plenty (1976) [29] where a milkman was assisted by a boy who was injured by negligence, it was found that Mr Plenty was acting in the scope of his employment and therefore the employer was vicariously liable. Harpwood states that as Rose was helping him to deliver his milk, despite the employer forbidding this practice, Rose was performing an act which ‘contributed to, or provided some benefit to the business of the employer’ [30] . Applying the case law, as Wayne’s presence on the delivery round did not provide any benefit to the employer, Dobbinghams will not be likely to face a successful claim against them by Wayne.

Dobbinghams are more likely to be found vicariously liable in a claim from Doogood. Johnson honestly believes that Doogood is stealing Dobbinghams’ property and is attempting to protect it. Such as in the case of Poland v John Parr & Sons (1927) [31] , Keenan explains that when the employee is acting in an emergency to protect the employer’s goods, ‘the employer will tend to be liable, even though the acts of the employee are excessive. [32] This contrasts with the case of Warren v Henlys (1948) [33] , as the force used by the employee attacking a non-paying customer was found to be outside the scope or course of his employment and excessive. [34] This case is clearly more similar to Poland v Parr (1927), and therefore a claim from Doogood against Dobbinghams is likely to succeed.

In conclusion, it is difficult to assess the likelihood of claims by Wayne, Wilson and Doogood succeeding against Dobbinhams PLC, as due to the nature of Tort Law it is often difficult to extract general principles from the cases. [35] The likelihood of a claim made by Wilson to succeed against them is very unclear. It could be argued that Johnson was acting within the scope of his employment; for example had he not been issued with a van he could not have driven it into his shop. Conversely, Johnson may have been on a ‘frolic of his own’, too far away from his route to render his employer liable. A claim made by Wayne against Dobbinghams is unlikely to succeed, as Wayne’s presence on the route provided no benefit to Dobbinghams PLC. A claim bought by Doogood is likely to succeed. Johnson was acting to protect the goods of the company, and applying the principle of Poland v Parr (1927), Dobbinghams are likely to be found to be vicariously liable in this case.