THE LAW OF TORTS. Vicarious Liability Non Delegable Duties. Introduction: Personal Liability. In tort law liability is generally personal; ie, liability is generally linked to a breach of one’s (own) duty
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Respondeat superior: Traditionally, the common law viewed the master as responsible for the servant’s conduct:
"for seeing somebody must be a loser by (because of the conduct of the employee), it is more reason that he that employs and puts a trust and confidence in the (employee) should be a loser than a stranger". Per Earl of Halsbury in Lloyd v Grace, Smith & Co
Choice and training of employees: Liability tends to provide a spur toward careful selection, training and supervision of employees;
Benefits and the burden: Since the employer receives the benefits of the activities of the enterprise, he should also bear its burdens;
The ability to pay: Liability increases the likelihood of accident victims receiving compensation
The general (ie regular) employer leases (out) a vehicle or equipment such as crane, power shovel, bulldozer, truck etc with employee as operator, to a party (special employer) who has a temporary need for such machinery. Employee commits a torts by the negligent operation of machinery
The general employer as his business provides temporary workers to other parties (special employers), sometimes simply as day laborers, sometimes as skilled workers for specified periods of time.
The general employer, by an agreement with the special employer assigns the employee to work for the special employer for a specified period on secondment or attachment etc
The transfer or loan of an employee to the special employer is not intended to terminate the employee’s employment with the general employer.
An employee is presumed to continue in the employment of the general employer. P or the general employee carries the burden of proof where there is an allegation that the special employer has assumed control and become the principal employer
Where the employer expressly prohibits a particular conduct, the employee’s act in breach of the prohibition is generally considered to be outside the scope of the employee’s services - employer not liable
However, an act in defiance of a prohibition which deals with CONDUCT WITHIN SPHERE (ie: how, when, where etc tasks are performed) OF EMPLOYMENT will not be outside the scope of employment - the employee would be doing the right services but in the wrong way: employer is liable
Bugge v Brown
A prohibition as to manner…time…or place …or as to the very act itself…will not necessarily limit the sphere of employment
To limit the sphere of employment the prohibition “ must be such that its violation makes the servant’s conduct ..so distinctly remote and disconnected from his employment…”
Where D has a duty to treat, control or protect others, the law imposes a liability on D for the negligence of another to whom the D has entrusted (or ‘delegated’) the performance of some task on their behalf. : The Duty of D is non-delegable
(1) The extent of liability in tort of a person ( the defendant ) for breach of a non-delegable duty to ensure that reasonable care is taken by a person in the carrying out of any work or task delegated or otherwise entrusted to the person by the defendant is to be determined as if the liability were the vicarious liability of the defendant for the negligence of the person in connection with the performance of the work or task.