Duty of Care and Vicarious Liability, Coursework Example

Part A: Duty of Care

The duty of care, under tort law, is a lawful obligation imposed upon an individual, which requires the observance of standard rational care in the performance of any actions that might foreseeably cause harm to others. For a claim to be made in tort law, the plaintiff must illustrate a duty of care obligated by statute that is breached by the defendant. The facts of the case under study are that Tom lost control of the lorry he was driving and runs into a shop while avoiding to hit a cyclist, Frida. However, he hit two shoppers, Benni and Agnetha, who were immediately rushed to a nearby hospital. After the incident, Bob, another shopper, takes the accident pictures and those of the victims and posts them on Facebook. Ashok, Benni’s husband, views the images. The victims’ injuries include Agnetha’s permanent disability, Ashok and Frida’s mental disorders, and Suri’s mental breakdown. The presence of a standard duty of care is dependent on the various legal tests applied to multiple losses and the nature of the loss. In the determination of this case, the court would deliberate on all legal tests and apply one or several in establishing Tom’s duty of care obligation.

The Neighbor Test

A duty of care for property damage and personal injury was formerly established in Donoghue v Stevenson’s case by Lord Atkin (Luntz et al. 2017). This case also showed the first legal test, which is the neighbor test. In this case, the plaintiff found a snail’s carcass inside the bottle of his drink and filed suit against the company manufacturing the drink. In determining the case, Lord Atkin established that one should take reasonable care to avert omissions or acts that can be reasonably foreseen to cause harm to their neighbor (Wright, 2017). Therefore, he posed the question, “Who is my neighbor in law?” The answer to this question described a neighbor as an individual who is directly and closely affected by an individual’s acts or omissions, such that the individual ought to contemplate them as being affected by his actions reasonably. In Tom’s case, this means that he was required to contemplate on the people that would be directly and closely affected by his actions, including Frida, the customers, and their families and friends.

Under tort law, two specific requirements are necessary for the establishment of a duty of care under the neighbor test (Goldberg, Sebok & Zipursky, 2016). The first requirement is the reasonable foreseeability of harm. In Tom’s case, a common presumption would be that he was not aware of the shoppers’ presence in the shop that he crashed into. When Tom lost control of his lorry, he foresaw the possibility of hitting Frida, the cyclist. In the process of preventing this act, he drove into the shop and hit Benni and Agnetha. The harm caused by Tom on the two shoppers could not be reasonably foreseen. In Topp v London Country Bus (1993), the defendant, a bus company, abandoned a mini-bus at a lay-by position overnight (Luntz et al. 2017). The bus keys remained in the ignition port, and the vehicle remained unlocked. A particular driver was required to drive off with the bus, but he failed to show up for his shift. Consequently, the bus got stolen by some thieves and who drove it away. Unfortunately, a cycling woman was hit by the bus, which killed her immediately (Dorfman, 2016). The woman’s husband filed a complaint asking for damages.

The court held that the law did not impose a duty of care upon the bus company for a third party’s actions. The court explained that it was not reasonably foreseeable that the bus would be stolen and eventually hit a woman and kill her. Similarly, in Tom’s case, it was not reasonably foreseeable that the lorry would end up hitting Benni and Agnetha; thus, Tom did not owe a duty of care in tort for the harm caused to them. This test was also applied in the case of Home Office v Dorset Yacht Co Ltd (1970 (Luntz et al. 2017)). Additionally, there was no reasonable foreseeability of Ashok and Suri’s mental breakdown and illness. However, Tom was required to foresee the harm upon Frida’s mental illness. He narrowly missed hitting Frida from her bicycle, which in the ordinary sense caused her trauma. Therefore, Tom owed a duty of care for the mental illness suffered by Frida.

The second requirement under the neighbor test is the existence of a proximity relationship. This was demonstrated in the case of Bourhill v Young (1943) AC 92 (Luntz et al. 2017). In this case, the plaintiff was a pregnant lady. On a particular day, she moved aside from a tram. While removing her basket from the same tram, the defendant steered his motorcycle at high speed away from the tram, which resulted in a collision with another car several feet far from the plaintiff’s standing position. The crash killed the defendant. The plaintiff did not see the accident happen but heard the collision noise. A few moments later, the plaintiff walked past the accident scene and found that the defendants’ body was already removed. However, the sight of blood traumatized her and sent her into shock. The plaintiff’s baby was born with complications due to her traumatic state, and she filed a negligence complaint against the estate of the defendant. The court held that the defendant did not owe a duty of care to the plaintiff (Steel, 2015). This was because there lacked adequate proximity between the defendant and the plaintiff during the incident.

In Tom’s case, Ashok, Benni’s husband, suffered mental illness when he saw Benni covered in blood before being taken into the operation theatre. Suri, Agnetha’s mother, suffered a mental breakdown because of her daughter’s permanent disability. Therefore, there was no adequate proximity between Tom, Ashok, and Suri during the incident. They suffered mental injuries moments after the accident happened. However, there was sufficient proximity between Tom and Frida during the accident. Tom’s incident almost hit her with his lorry and sent her into shock, which occurred within the time frame of the accident. This imposes a duty of care for Frida’s mental illness on Tom.

The Caparo Test

This test was established by the Caparo Industries Plc v Dickman (1990) 2 AC 605 case (Luntz et al. 2017). The case facts were that Caparo Industries bought Fidelity Plc shares with regards to their accounts, which revealed the company’s 1.3 million pounds pre-tax profit. Fidelity Plc had encountered a loss worth 400,000 pounds. Caparo Industries filed a complaint against the company auditors and claimed their negligence in the accounts’ certification. The court held that the defendant did not owe a duty of care to the plaintiff. This was because there lacked adequate proximity between the auditors and Caparo Industries. The auditors lacked knowledge of Caparo’s existence as well as the accounts’ objectives (Langford, 207). Like the Neighbor test, the Caparo test incorporates necessary requirements in its application, most of which are comparable. The first test is that the injury suffered was rationally foreseeable (Steel, 2015). The second aspect is the existence of an adequate relationship in the proximity between the defendant and the plaintiff.

The third aspect is that the imposition of a duty of care should be just, reasonable, and fair. The first two aspects are similar to the requirements in the Neighbor test. As aforementioned, it was not foreseeable that Tom’s lorry would hit Benni and Agnetha in the shop. Further, there was foreseeability of Ashok and Suri’s mental illnesses. Given this, it would not be appropriate to impose a duty of care upon Tom for Benni, Agnetha, Ashok, and Suri’s injuries. However, Tom was required to reasonably foresee the trauma he caused on Frida when he almost hit her, thereby imposing a duty of care upon him. This was established in the cases of Home Office v Dorset Yacht Co Ltd (1970) and Topp v London Country Bus (1993) (Luntz et al. 2017). Under the Caparo second requirement, proximity needed to be established between Tom and all the claimants, as seen in the case of Bourhill v Young (1943) AC 92 (Luntz et al. 2017). Ashok suffered mental illness in the sight of his wife, Benni, who was covered in blood.

This happened in the hospital after the accident; thus, there lacked adequate proximity between Tom and Ashok. He, therefore, did not owe a duty of care upon Ashok. Additionally, Agnetha’s mother, Suri, suffered a mental breakdown due to her daughter’s accident. This also happened after the accident. There was no sufficient proximity between Tom and Suri, which refutes the duty of care. Tom owed Frida a duty of care due to the close proximity between them during the accident. The third aspect requires the duty of care to be imposed in a just, reasonable, and fair manner (Steel, 2015). This aspect would impose a duty of care on Tom towards Benni, Agnetha, and Frida. This is because his actions directly led to their suffered injuries. When he almost hit Frida, it caused her trauma, which resulted in her mental illness. Further, the impact of the lorry hitting the shop was crashing into Benni and Agnetha. This caused Agnetha’s permanent disability and Benni’s operation. Had the accident not happen, the two shoppers would still be in perfect health. Under the third aspect of the Caparo test, it would be deemed reasonable and fair for Tom to owe a duty of care for the injuries of Benni, Agnetha, and Frida.

The Multi-Factor Test 

This is an additional test established by the Rowland v Christian case of 1968 used to determine the duty of care (Dent, 2020). Similar to the other tests, the multi-factor test has several public-policy features that need to be upheld for the task of care to be established. The first factor is the rational foreseeability of injury to the claimants. This is similar to the first requirements of the Neighbor and Caparo tests. The second feature is the certainty degree of an individual suffering an injury (Steel, 2015). In Tom’s case, it could be proven that Agnetha, Ashok, Frida, and Suri all suffered diverse injuries to a certain degree. The fulfillment of this feature would impose on Tom a duty of care on all the victims. The third feature is the proximity between a defendant’s actions and the damage caused (Mulheron, 2016). This is similar to the third requirement of the Caparo test.

Adequate proximity between Tom’s actions and the injuries suffered by the victims would impose a duty of care upon him. His action caused a direct impact on Agnetha’s disability, Benni’s operation, and the mental illnesses of Frida, Ashok, and Frida. The fourth feature is the moral culpability placed on the defendant’s misconduct. Under the social foundations of law, the principle of morality would impose on Tom a duty of care on all victims. It is morally upright to consider all individuals in one’s actions. Additionally, moral culpability would be placed on Tom’s actions, as it resulted in the injuries suffered both directly and indirectly (Mulheron, 2016). The fifth feature is the burden extent on a defendant and the societal consequences of obliging a duty of care that bears subsequent accountability for violation. Such a consequence would include extra precautions being taken by individuals to prevent any damage that would result in accountability.

The sixth feature is the cost, prevalence, and availability of insurance for mitigating any anticipated risk. The last features are the future harm prevention policy and the public efficacy of a defendant’s actions, which leads to an injury (Tilley, 2016). Tom was performing the duty of operating his lorry before the accident happened. The general social utility of his task would be determined before the imposition of a duty of care. In the determination of Tom’s case, the court would apply one or several of the tests mentioned above to establish his obligated duty of care.

References

Dent, C., 2020. The introduction of duty into English law and the development of the legal subject. Oxford Journal of Legal Studies, 40(1), pp.158-182.

Dorfman, A., 2016. Negligence and accommodation. LEG, 22, p.77.

Goldberg, J.C., Sebok, A.J. and Zipursky, B.C., 2016. Tort Law: Responsibilities and Redress. Aspen Publishers.

Langford, R.T., 2017. Stakeholder Interests and the Duty of Care.

Luntz, H., Hambly, D., Burns, K., Dietrich, J., Foster, N., Harder, S. and Grant, G., 2017. Torts: cases and commentary. LexisNexis Butterworths.

Mulheron, R., 2016. Principles of tort law. Cambridge University Press.

Steel, S., 2015. Proof of causation in tort law (No. 120). Cambridge University Press.

Tilley, C.C., 2016. Tort Law Inside Out. Yale LJ, 126, p.1320.

Wright, J., 2017. Tort law and human rights. Bloomsbury Publishing.

Part B: Vicarious Liability

In English law, vicarious liability is regarded as a tort law doctrine that enforces strict liability for employees’ offenses and misconduct upon their employers. In general terms, any offense, particularly a tort, committed by an employee during the conduction of duties for an employer will impose liability against the employer (Lewis, 2019). Vicarious liability has developed over the years subsequent to the judgment in the case of Lister v Hesley Hall Ltd to incorporate premeditated torts, including deceit and sexual assault. In past years, it was believed that most premeditated offenses did not align with the ordinary employment course. However, the latest case laws have provided that the close connection between a violation and an employee’s tasks result in vicarious liability upon the employer. A precedent on vicarious liability was set by the famous case of the Catholic Child Welfare Society v Institute of the Brothers of the Christian Schools. 

The justifications for vicarious liability have been established in several ways. First, the common nature of tort law stipulates how policy reasons ought to incorporate compensation mechanisms for injured individuals. Generally, employers have more significant assets and more extensive means which can be used to offset losses, also known as deep pocket reparation (Lewis, 2019). Secondly, employers gain from their employees’ duties; hence they should be prepared to face the outcomes of any offenses committed by the employees in the course of their working hours. This establishes how a tort is carried out under an employer’s instruction. Thirdly, vicarious liability is regarded as a means of reducing employers’ risk-taking chances and ensuring the taking of sufficient precautions in carrying out businesses.

In Mohamud v WM Morrison Supermarkets plc (2016), the Supreme Court determined the case’s facts, and Lord Toulson gave the leading judgment. According to him, the determination of vicarious liability upon an employer was based on the contemplation of two specific matters. The first matter is establishing the field of objectives or duties entrusted to an employee by the employer. The second matter is the establishment of an adequate connection between an employee’s wrongful actions and his employment position, which would lead to the imposition of liability upon the employer under social justice principles (Ulfbeck & Ehlers, 2016). Additionally, the Supreme Court had an opportunity to reconsider the necessary principles underpinning vicarious liability in 2020. This was achieved in WM Morrison Supermarkets plc v Various claimants (2020). The facts of the case were that Morrison Supermarkets had employed a senior auditor who was expected to prepare and deliver the workers’ records to KMPG.

In carrying out his duties, the auditor secretly downloaded the files of at least 126,000 personnel and uploaded them to a file distribution site on the internet. Consequently, former employees and current 9,263 working personnel filed suit against Morrison Supermarkets. They claimed the violation of legislative duty as provided for under Section 4(4) of the Data Protection Act of 1988, mishandling personal information, and violating confidence (Magnet, 2015). The plaintiffs claimed Morrison Supermarkets as vicariously liable for the auditor’s offense. During trial at the court of first instance and the Appellate Court, the decision was made that the defendants were indeed vicariously liable.

The courts’ view that formed the basis of their decision was how the act of sharing the claimants’ information to other parties was viewed as falling within the scope of activities entrusted by Morrison to the auditor. In the second instance, Lord Reed explained that while the initial trials’ judges applied Lord Toulson’s reasoning, they misunderstood the governing principles of vicarious liability. Lord Reed applied the precedent set by Lord Nicholls in the case of Birkenhead Dubai Aluminium Co Ltd v Salaam (2002). He established that wrongful; misconduct should be closely associated with the authorized employee’s acts. Lord Reed also explained that such a connection would result in the fair and proper consideration of the actions being done within the ordinary course of employment.

The Developments in Vicarious Liability Establishments

As aforementioned, an employer is deemed to be strictly accountable for the torts carried out by individuals under his authority. To make this effective, the courts are required to identify an adequate relation between an offense and an employee’s duties, where vicarious liability issues are brought up (Magnet, 2015). Additionally, there exist several tests that are used to determine all employment instances. Generally, the eventual determination of the test to be used by a court is founded on each case’s concepts.

The Control Test

This standard test evolved historically to establish the control exerted by an employer over his employees and the existence of a master-servant relationship. The famous case of Yewens v Noakes defined a servant as an individual who is under the authority and command of their master with regards to the means through which work shall be conducted. The control test efficiently enforced liability upon an employer where he dictated the work to be carried out, the manner in which it should be done, and the providence of working equipment and uniforms to be used while conducting duties. This test is aptly appropriate for circumstances where an employer gives specific directions for tasks, as the causal connection for any injury suffered will be seen to be the employer. In the event that an employer doesn’t decide the manner in which work should be carried out, such a relationship will not be regarded as that of a master and servant but of an employer and an independent contractor.

The main difference between an independent contractor and an employee is that the former carries out duties for another individual while being guided by his methods and processes. However, the latter conducts the necessary tasks under the guidance of his employer. Further, an independent contractor is not controlled by his employer, and carries his work equipment. His contract lasts for a specified period. In contrast, an employee works under complete control of an employer. The general English Law rule describes that vicarious liability does not apply to an independent contractor’s employer (Sharkey, 2019). This is because the employer does not provide for the precise manner in which the work should be carried out, despite the work being done for the employer’s benefit within the contract. The courts are required to determine whether a wrongdoer is an independent contractor or a servant (Silink & Ryan, 2018). This is achieved by realizing whether an employer retains full control over work performance and provides for the equipment and uniform used while performing the work.

The Salmond Test

This test is used to determine whether an employee committed a tort during a period within their employment course and not while on their personal agendas. This was established in the case of Storey v Ashton. The Salmond test describes that a tort will be regarded to have occurred under a contract of service if an employer authorized the act and if an illegal manner of carrying out a duty was similarly authorized. However, this test has the demerit of bearing an unfair aspect. A case scenario would be where an employer has explicitly prohibited an employee’s behavior, and the employee goes head to act in a restricted manner. The authorization of the committed act by an employer will impose liability upon him for any injury suffered, despite the employer’s explicit prohibition (Morgan, 2016). Additionally, this test was criticized based on its establishment to mainly cover an employee’s negligent deeds, thus failing to consider premeditated torts. The difference between prohibited acts and those that distract employees from their contract of service was illustrated in the case of Limpus v London General Omnibus Company (Carrigan, 2016). In this case, a driver overlapped and went ahead of another omnibus with the intention of obstructing it.

Irrespective of explicit prohibitions by the employer, liability was imposed upon them. The court described the situation as an unauthorized manner of duty conduction and not a new duty. In the case of Beard v London General Omnibus Company, a conductor was under a contract of service to collect passenger fares in a bus. However, he negligently decided to drive the bus. This was regarded as a completely different task outside his expected duties; thus, the employer was not held liable. Most scholars believe that vicarious liability is a form of secondary liability that bears several justifications that overlap, vary, and are majorly policy-oriented (Kiefel, 2018). The four comprehensive classes of vicarious liability justifications include fault identification, loss distribution and victim compensation, deterrence, and the just distribution of risks.

Fault Identification 

As aforementioned, vicarious liability places strict liability upon an employer for any tort committed during an employee’s employment course. This implies that for an employer to be liable, the wrongdoing must occur during an employee’s working hours, and the action must be within the employee’s required duties (Butlin & Allen, 2018). The case of Beard v London General Omnibus Company illustrated this concept. The bus conductor was obliged by his contract of service to collect bus fares from passengers. However, he negligently chose to drive the bus; thus, the employer was not liable for the injury caused. This is because that action that resulted in the damage did not fall within the conductor’s required duties. Fault identification is a common policy reason fundamental to vicarious liability and is necessary for its establishment since it would aid in imposing liability either on an employer or employee. Fault identification would also establish whether an employee’s wrongful misconduct was prohibited by an employer, as was in Limpus v London General Omnibus Company. Despite the liability being imposed upon the employer, the court was able to establish that explicit prohibitions were given for such misconduct by the employer.

Loss Distribution and Victim Compensation

In general terms, employers are considered to possess more significant assets and mechanisms capable of offsetting losses. This is referred to as a deep pocket reparation. In the occurrence of any tortious act or damage, the common law provides for the victim’s compensation as a regular policy reason essential to vicarious liability. Such compensation is deemed necessary in English tort law and under the morality principle within the social foundations of law. Additionally, vicarious liability is vindicated by the concept of loss distribution, which particularly applies through insurance (Morgan, 2016). A practical example would be in the case of an accident. Tort law will impose liability upon an employer, and if he were under an insurance policy, the loss would be distributed between himself and the insurance company. However, several scholars have disputed this justification, implying that the logical supposition for accidents is collective insurance through a state, hence contradicting any tort law roles.

Deterrence

Deterrence refers to the act of preventing an injury or damage from occurring. This means taking the necessary precautions to avert any harm that may arise. Deterrence serves as a common policy reason underlying vicarious liability since it establishes the notion that liability will inspire extra precautions. The principle of vicarious liability compels employers to impose upon their employees precautionary regulations, which come with sanctions in most cases. This means that an employer will go to the extent of prohibiting his employers from committing certain acts in their employment courses in order to prevent any possibility of liability. This was seen in the case of Limpus v London General Omnibus Company. The employer prohibited his working personnel from overlapping other vehicles while driving to prevent any obstruction, as he was trying to avoid strict liability for any damage. Employers can also impose sanctions upon the employees for going against the set prohibitions. This would discourage employees from practicing wrongful misconduct.

Fair Risk Distribution

Risk allocation refers to the act of distributing any possibility of perils. Risk distribution also functions as a policy reason underlying vicarious liability, with its main objective being lowering the severity of claims made against particular individuals. Under the law, a common belief is that the allocation of risk among several people would make mitigation easier than when a single person is handling it.

References

Butlin, S.F. and Allen QC, R., 2018. Worker Status and Vicarious Liability: The Need for Coherence. University of Cambridge Faculty of Law Research Paper, (21).

Carrigan, F., 2016. Class analysis and the contract of employment. Canterbury L. Rev., 22, p.207.

Kiefel, S., 2018, March. Vicarious liability in tort-a search for policy, principle or justification. In Judicial Review: Selected Conference Papers: Journal of the Judicial Commission of New South Wales, The (Vol. 13, No. 4, p. 383). Judicial Commission of NSW.

Lewis, K., 2019. Vicarious liability. BDJ In Practice, 32(4), pp.16-17.

Magnet, J., 2015. Vicarious Liability and the Professional Employee. Canadian Cases on the Law of Torts, 6, p.208.

Morgan, P., 2016. Fostering, Vicarious Liability, Non-Delegable Duties, and Intentional Torts.

Sharkey, C.M., 2019. Institutional Liability for Employees’ Intentional Torts: Vicarious Liability as a Quasi-Substitute for Punitive Damages. Valparaiso University Law Review, 53, pp.18-35.

Silink, A. and Ryan, D., 2018. Vicarious liability for independent contractors. The Cambridge Law Journal, 77(3), pp.458-461.

Ulfbeck, V. and Ehlers, A., 2016. Tort Law, Corporate Groups and Supply Chain Liability for Workers’ Injuries: The Concept of Vicarious Liability. Eur. Company L., 13, p.167.