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Published: Fri, 02 Feb 2018

Issues of employers liability and vicarious liability

In brief, negligence protects against three different types of harm, namely, personal injury,economic loss and damage to property.The focus here however would be on personal injuries. According to Lord Wright in the case of Lochgelly Iron Co v McMullan [1] , it is not enough for just a ‘careless conduct’ but there are several elements that needs to be established for one to be liable for negligence.“Firstly, there must be a duty to take care.Secondly, the defendant must have breached that duty which results in causing damage to the claimant and that the damage is not too remote.”

In other words,the law states that negligence refers to the breach of a legal duty to take care which results in damage, undesired by the defendant to the claimant and the damage caused by the defendant must not be too remote.

A person will only be liable in negligence if he of she in law, is under a legal duty to take care [2] .Breach of that duty means that the defendant has fallen below the standard of behaviour expected in someone undertaking the activity concerned.The objective standard is whether the defendant exercised the care that a reasonable man would have exercised? [3] 

Ben ( The Personal Representative of Philip,deceased) v Simon

In general there are two kinds of situations, where a duty is owed one is where the claimant is the one and only the defendant owes duty to.For instance, a doctor and patient relationship.Second kind is where the duty is owed to claimant falling in to a possibly fuzzy, large class of people.For instance, a car driver owes a duty to road users.

The case of Caparo Industries plc v Dickman [4] appears to have set the modern test to determine if there is a duty to take care.And it applies where the damage was reasonably foreseeable that claimant would be injured, if there is adequate relationship of proximity between the claimant and defendant and if it is just,fair and reasonable to impose such a duty.

On the facts, Simon works for Ro-Boats Ltd and has a legal duty to ensure that his passengers ( I.e.Ben and Philip) to wear safety vests. It could be further implied that Ro-Boats Ltd prioritises their passengers safety as they require all their boatmen to ensure there are always adequate safety equipment as well.On the facts again, Simon manueveres boat in the sea. Hence,by being a boat manueverer, he too would have owed a duty to others who are at sea as well.

As for reasonable foreseeability it would be if the defendant could reasonably foresee the risks and had a duty not to create such risks and he was in breach of that duty.For example in Langley v Dray [5] , where, the claimant was a policeman, injured in a car crash during which he was after the defendant who was driving a stolen car.The Court of Appeal held that the defendant knew, ought to have known that he was being pursued by the claimant and therefore in increasing the speed, he knew that the claimant would drive faster.It is prima facie that it is not a remote possibility for danger especially when Simon had manuevered the boat in high speed in a rough sea condition without any safety vests being worn by Ben and Philip and himself.Hence,reasonably it could be foreseeable that risks could occur and Simon had a duty not to create risks, but he seems to have done so and is in breach of it.

As for proximity, in Watson v British Boxing Board of Control [6] , the Court of Appeal held that there was sufficient proximity between Mr.Watson and the Board to give rise to a duty of care because they were the only board in the United Kingdom which could license professional boxing matches and therefore had complete control of and responsibility for a situation which could clearly harm to Mr.Watson if the Board did not exercise reasonable care.On the facts,Ben and Philip are Simon’s passengers.Hence, it could be said that therefore Simon had complete control of as a boat manuvere to them and responsibility towards them.And so there exists sufficient proximity between them that gave rise to a duty of care owed by Simon to them.

As to whether it is fair, just and reasonable to do so,the law requires that the magnitude of risk must be balanced against the cost and trouble towards the defendant by taking the measures necessary to eliminate it.However, on the facts, Simon seems to have increased it and did not really take the necessary measures in eliminating the risk and so it would argued that it is not fair, just and reasonable to do so.

Simon may argue that based on what the courts held in Roe v Minister of Health [7] . In this case, it was held that if a consequence that is not reasonably foreseeable, the defendant will not be held liable for failing to take precautions to prevent it.He might argue that he could not foresee that the boat would hit the rock and so he is not liable for not taking any precautions.

However, he may fail as the courts may find that it is reasonably foreseeable that by manuevering the boat in high speed in rough sea conditions, chances of an accident like hitting the rock could be reasonably foreseeable and since they were not wearing safety vests, chances of injuries and drowning could also be reasonably foreseeable.Hence it could be argued that it is not fair,just and reasonable that Simon does not owe a duty.Hence, Simon owes a duty to take care of Ben and Philip.

Thus, in order to determine if he has breached that duty,the law demands the defendant’s act to fall below the required standard of law.

According to the case of Blyth v Birmingham Waterworks Co,Exchequer Division, Alderson B. said that, “ Negligence is the omission to do something which a reasonable man would do (guided upon those considerations which ordinarily regulate the conduct of human affairs), or doing something which a prudent and reasonable man would not do.” [8] The law in general states that in a situation where it involves a defendant in having certain professional skills, the law expects the defendant to show the degree of competence usually to be expected of an ordinary skill member of that profession when performing their duties well.

On the facts, Simon is the boat manuever.Hence, he can be considered to be having professional skills in boat manuevering.

But if all the boat manueveres would not use safety vests because of confidence and would manuevere in high speed in such rough sea condition,prima facie will exculpate Simon here. But as Lord Scarman says in Maynard v West Midlands RHA [9] : ‘ for one body of distinguished professional opinion (to a judge’s preference) to another also professionally distinguished is not sufficient to establish negligence.’ But the facts tell that Simon’s employer, Ro-Boats Ltd that they ensure that the boat owners have adequate safety equipment and that all passengers must wear safety vests.Hence this shows that even the professional body seems to places more importance on the safety part.

There are several factors that determine the standard of care.Those are, namely, of the defendant’s purpose, common practice, the practicality of protection,magnitude of risk,special characteristics of the defendant or claimant and the gravity of the possible injury.

According to the case of Bolitho v City & Hackney Health Authority [10] , the court had to satisfy itself that the medical experts opinion was reasonable, that is, they ought to have weighed the risks and benefits and had a logical basis for their conclusion. If it is a very remote chance for a particular danger, less care could be called for it unless there is a strong chance for it.Thus, the stronger the possibility, the more care that a reasonable man has to take.

In determing if the reasonable man would have done the same as Simon have and in determing what the precautions are the following is to be satisfied.First, the chances of the injury occuring and if it happens, the seriousness of it.Thirdly, would it be difficult and costly to get rid of the risk.Lastly, was Simon’s actions a priority and was important. [11] 

On the facts, as mentioned the sea condition was bad, added with the passengers not wearing safety vests and Simon in manuvering the boat fast.Hence, it appears that the chances of injury occuring is high as well as the seriousness of the injury.As for the third guideline, there is none on the facts.And for the last element, there is not much facts indicating that it was important and it was urgent and that Simon had to act under pressure.

The main purpose of Simon in boat manuevering was to prioritise on the safety of his passengers as was required by his empoyer, Ro-Boats Ltd. It should be noted that the courts may look also of the general practice in the relevant field in order to decide if the steps taken by the defendant is of common practice of any reasonable person in that field.But this may be of no use to Simon as he is required by his work requirements to ensure the safety of his passengers by ensuring them to wear safety vests and it could be implied that by his company Ro-Boats Ltd ensuring that the boats require safety equipment to be in the boats at all times shows that they prioratise on the safety of the passengers and hence it is not reasonable common practice for Simon to do so.

On the facts, in rough sea condition, Simon manuevered the boat in high speed and with the passengers not wearing safery vests. And a reasonable could be able to foresee the strong chance of risks.Hence, Simon ought to have taken more steps in ensuring the safety of passengers and seems to have fallen below the standard of a competent boat manuverer.

Assuming that the court’s prefer the view that Simon is in breach of his duty to take care.The next issue is on causation of breach.

It is essential to note of what may have happened if the defendant had instructed Ben and Philip to wear safety vests.On the facts, the experts point out that had they have worn safety vests, the personal injuries and Philip’s death could have been prevented.

Hence, but for Simon by not ensuring Ben and Philip to wear safety vests, Ben would not have suffered injuries and Philip may not have died. Hence, based on that and the facts strongly suggest that causation seems to have been made out and that by Simon breaching his duty to ensure the safety vests are worn by his passengers (I.e.Ben and Philip) has caused the personal injury to Ben and Philip’s death. It should be noted that the outcome would have been different had Ro-Boats failed to provide the safety equipment to the employees and so failure of providing them could be the cause of the Ben’s injuries and Philip’s death [12] .But the employer may also be liable and this would be discussed below.

However, it should be noted that even if Simon’s breach has not satisfied the ‘but for’ test , if his breach has ‘materially contibuted’ to the the personal injuries and Philip’s death, he would be liable.The case for example is Carter v Basildon & Thurrick University Hospital NHS Foundation Trust [13] .The court held that had the deceased was admitted into hospital when she was having her check up,and the right treatment was given to her,she would have been alive on the balance of probabilities.

As for Philip’s death,the law recognizes what is known as the egg-shell skull rule where, if the defendant owes a duty to take care,breaches that duty and it was foreseeable that injuries would result from that but a more serious injury occurs from it,and even if that serious injury is not foreseeable, the defendant would be unable to escape liability from it [14] .On the facts, Philip was unable to swim towards the rock and had instead drowned. This would be known as an egg-shell skull point and Simon would be liable for it.

The next issue is as to whether Ben is able to claim for ‘nervous shock’ and physical injuries and also as to whether he is able to claim damages on behalf of his deceased brother Philip.

In order to prove in law, the claimant must prove that they have suffered a genuine illness or injury [15] and medical evidence is needed for it.It is important that if the shock has not caused a psychiatric injury or illness, the claimant must prove that it has caused what Lord Bridge in McLoughlin v O’Brian [16] described as ‘a positive psychiatric illness.’ The term ‘nervous shock’ was defined by Lord Denning in Hinz v Berry.According to him, “no damages are, awarded for grief or sorrow caused by a person’s death , given for the worry about the children, the financial stress or the difficulties of adjusting life to a new.Damages will be, however, recoverable for ‘nervous shock’ or to put in medical terms, for any psychiatric illness caused by the breach of duty by the defendant.” And the law also requires a sufficient proximity and love and affection relationship between the victim and the accident victim.On the facts, Bill was at the accident and was involved in the accident itself and he and Philip are brothers.Hence, there seems to be sufficient proximity as well as the love and affection relationship.

The law states that two factors determine if one qualifies as a primary victim.The two factors that would determinethat are from White and others v Chief Constable of South Yorkshire [17] . The first is whether Ben was involved in the accident that the defendant caused .On the facts, Ben was involved in the accident.Hence, this factor is satisfied.The second factor is whether it was reasonably believe that he was in danger.According to the facts, Ben was put in danger as he was out of the boat that collapsed after hitting the rock in high speed in a rough sea condition and he himself had suffered severely injuries from it.Hence, this requirement too fits.

The law states that,by being the primary victim, the test of duty of care owed is not stringent.Therefore, the victim only has to show that the physical injury suffered was reasonably foreseeable.On the facts, Simon did not require Ben and Philip to wear safety vests, and had manuevered the boat in high speed.Hence, it is reasonably foreseeable that especially is a rough sea condition,and by manuevering the boat in high speed, minus of wearing of safety jackets.

As for causation of negligence, Ben could argue that but for Simon’s conduct, he would not have suffered serious case of post-traumatic disorder in the first place as well as physical injuries and also Philip’s death in the first place. Hence, Ben could be able to claim for damages.

There is a possibility for Simon to argue that by Ben and Philip agreeing to not wear safety vests could amount to volenti non fit injuria which means ‘no injury can be done to a willing person’ where they had by doing so voluntarily assumed the risk.

The claimant ought to know not ony of knowledge of the existence of the risk at the time of consenting to run the risk, but also have knowledge of the nature as well as the extent of the risk.According to the case of Smith v Baker [18] , the claimant must have consented to run the legal risk of injury.In this case, the House of Lords held that eventhough the employee did have knowledge of the existence nature and extent of the risk, he did not consent to run the risk of legal injury by continuing his employment in a dangerous situation was not evidence of consent.Meaning, it is not volenti non fit injuria as by taking on the work may be acceptance to it, but continuing to do work that was not dangerous itself, but made so by the employer’s negligence did not qualify as consent.

On the facts, Simon did not ensure that safety vests must be worn by Ben and Philip even in a rough sea condtion.Thus, by Ben and Philip in not wearing the safety vests could be said as having knowledge of the risk by continuing to go on, in a rough sea condition as well as having agreement to it and voluntarily to what could be said to have resulted in to a dangerous activity. Thus, they could be said to have voluntarily assumed the risk.

It should be noted that Simon may even argue that Ben and Philip is contributory negligent. If successful it could be a complete defence to Simon.And if it can be shown that Ben and Philip had contributed towards the injury and Philip’s death, there is no need to even show of the duty that is owed or even that it had caused the accident. The cases for example that is almost similar to the facts in this case are as follows.In O’Connell v Jackson [19] , by the motorist failing to wear the helmet, the damages were lowered to almost 15 per cent.Likewise, the damages were reduced to 25percent in Froom v Butcher [20] where the driver did not wear a safety belt as the risk of injuries could be lessened had the driver worn it. Another is where, eventhough the claimant knew that the defendant was drunk, the claimant still took a lift in Owens v Brimmell [21] for example.According to Lord Denning in Jones v Quarries [22] , the standard of care in negligence is the same where he said, “A person is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable,prudent man, he might hurt himself and in his reckoning he must take into account the possibility of others being careless.”In the recent 2010 case of Stanton v Collinson [23] ,Cox J was of the view that had the wearing of safety belt in this case was a “considerable difference” towards the injuries suffered, then contributory negligence could be made awarded based on that. On the facts, Ben and Philip failed to wear safety vests as Simon thought it was unnecessary.For this, it can be said that if a reasonable man could foresee that by not wearing safety vests, they are placing themselves under the risk,then they are contributory negligent.Furthermore, the facts tells that according to the experts, the injuries and death of Philip could be prevented if both wore safety vests.And this shows that the wearing of the safety vests did make a ‘considerable difference’ as the wearing of the safety vests could prevent the injuries and the death as compared to in Stanton, where even if the safety belt was worn it could only lower the risks and did not really make a ‘considerable difference’.Thus, here, contributory negligence could be awarded on this ground.

The next issue is on vicarious liability as the justification for it seems to be that since an empoyee makes profits for his employer by his day to day conduct and so the employee should also bear responsibility for mistakes made by the employee.And according to the victim’s point of view, the chances of the victim getting a real compensation compared to where the victim is only able to sue the employee.This is because the employer seems to be in a better stand to distribute the loss in comparison to the employee as the employer may have guard against it by taking out an insurance policy and that cost is redistributed among all the employer’s customers.It is sometimes criticised that liability is being placed on the employer may not be at fault however it is still justified to make an employer liable because the employer would be able to control his employee and therefore should be blameworthy if he fails to do so.

In law, vicarious liability arises where there is a relationship between the tortfeasors and the party who becomes vicariously liable which justifies giving the latter responsibility for the acts of the former.It is the principle that allows an employer to incur legal liability for the acts of their employee.Meaning, an employer is responsible for damage caused by the torts of his employees acting in the course of his employment.It is a form of strict liability because it arises from the employer to employee ( or master- servant) relationship without any reference to any fault of the employer. In the past, the usual way of determining if a person was an employee was to look at the degree of control exercised over that person’s work by the supposed employer.

However, as many types of work became increasingly skilled and specialized, the test became less useful.In the computer industry for instance, many managers have not much idea as to how their computer technicians should do their work, and so are not in a position to give directions on subject, yet it is obvious common sense terms, the control test is still in use but it seems clear that in light of these developments, it can no longer be conclusive.The courts seems to accept now that no single test could cover the variety of work situations and instead they look at all the circumstances of the particular case, including the level of control undertaken.

In general,if the employee were to carelessly perform his duties that he ought to do then the employer would be vicariously liable for it [24] .

The tortfeasor in law must be an employee of the master.And the master here would be Ro-Boats Ltd and the employee here is Simon on the facts.And on the facts Simon had failed to ensure that his passengers wore safety vests.Hence, by Simon being careless in ensuring that the safety vests are worn by his passengers that he ought to do, Ro-Boats Ltd would be vicariously liable.And so Ben could be able to claim damages for himself and on behalf of his deceased brother,Philip.

Assuming that Ben would be able to claim damages for himself and his brother,Philip, with regard to tort, general damages are losses which cannot be positively proved or ascertained and it depends upon the court’s view as to the nature of the claimant’s injury.Usually, the damages awarded are compensatory and the underlying principle is that of restitutio in intergrum,that is,the damages awarded are designed to put the claimant back in the position he would have been if he had not suffered the harm.

In the case of personal injury, for example, loss of limb, damages cannot obviously be restored to the claimant to his previous position.However, damages for personal injuries may be awarded under namely, pain and sufferings, loss of enjoyment of life or of amenity as where for instance, brain damage causes permanent unconciousness and loss of earnings, both actual and prospective. Special damages are awarded in tort for losses which can be positively proved or ascertained.For instance, damage to clothing,doctor’s fees and etc. However, where it is difficult to determine the exact proportions of a claim for special damages for example, loss of profit not supported by accurate figures, the courts must do its best to arrive at a fair valuation.

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