Liability in Negligence Flashcards

Question

What are the four tests to determine whether someone is an employee?

Answer 1

The control test The business integration test The multiple test The business on their own account test

Answer 2

Based on the master-servant premise, it considers that the employee must be under the control of the employer when the work was conducted

Answer 3

Lord Denning created the control test in the case of **Ferguson v John Dawson and Partners [1976]**

Answer 4

To establish a contract for service, the courts had to satisfy three conditions: * The ‘worker’ agrees to a wage to provide skills or labour for the other person * The ‘worker’ agrees to be under the other’s control, making the other the master * The other terms of the contracts are consistent with the contract being one of service

Answer 5

Ready Mixed Concrete (South East) Ltd v Minister of Pensions and NI (1968)

Answer 6

This looked at whether the employee’s work was an integral part of the business. If it was, then there would be a contract of employment

Answer 7

Lord Denning created the business integration test in the case of **Stevenson, Jordan and Harrison Ltd v MacDonald and Evans (1952)**

Answer 8

The High Court felt that it was important to ask whether the ‘worker’ is conducting the service as a person in business or on their own account.

Answer 9

Market Investigations Lt d v Minister of Social Security (1969)

Answer 10

* use of their own premises and equipment * hiring of their own workers * taking of financial risk (and to what degree) * degree of responsibility for investment and management.

Answer 11

**The Salmond test** and **The close connection test**

Answer 12

Whether the employee’s harmful act is a ‘wrongful and unauthorised mode of doing some act authorised by the master

Answer 13

A wrongful act authorised by the employer A wrongful and unauthorised way of some act authorised by the employer

Answer 14

Poland v Parr [1927] Warren v Henleys [1948]

Answer 15

**Facts:** A carter mistakenly hit a boy on suspicion that he was stealing a company cart **Held:** The employer was vicariously liable. The employee has an implied authority to protect company property

Answer 16

**Facts:** On threatening to report an incident to an attendant’s employer, the attendant punched a customer **Held:** This was an act of personal revenge, not one in the course of employment, so the employer was not vicariously liable

Answer 17

**The employee ignores a direct instruction not to do something** An omnibus driver’s employers gave instructions not to race or obstruct another omnibus. The driver drove his own across the path of another.

Answer 18

**The employee acts carelessly** A lorry driver lit a match to light a cigarette, throwing it on the floor while transferring petrol from a lorry to a tank. This caused an explosion.

Answer 19

**Using unauthorised help, so long as this does not benefit the employer** A milkman allowed children to assist him in his milk round, where one child was injured.

Answer 20

**The employee breaches a statutory duty** A manager was accused of bullying a worker. The duty under the Protection from Harassment Act 1997 is on the employer as the harassment was during the course of employment

Answer 21

**The employee does something that is not connected with their job** An omnibus conductor drove outside of the bus route quickly, in the absence of the bus driver. He negligently hit and injured a man.

Answer 22

**The employee diverts from their normal work on a “frolic”** Workmen took an unauthorized break. They left their place of work and when returning in a works van they crashed and killed someone.

Answer 23

**The employee diverts from their normal work on a “frolic”** A lorry driver deviated substantially from his route against his employers’ instructions. The driver then caused an accident on the detour.

Answer 24

**Giving a lift in a company vehicle** A can driver gave a lift in a works’ van, which the driver had been expressly forbidden to give lifts.

Answer 25

**Giving a lift in a company vehicle** A lorry driver employed by a firm of contractors, contrary to his express instructions, gave an employee of another firm of contractors a lift in his lorry. The passenger was injured.

Answer 26

**The employee acts outside of the usual boundaries of work** A plain-clothed police officer gained entry to premises by production of his warrant card whilst off-duty.

Answer 27

**Salmond test to and from work** ## Footnote **Facts:** An employee was in a road traffic incident after working elsewhere. He was paid for the journey **Held:** This was in the course of employment so the employer was vicariously liable

Answer 28

The courts developed this test for circumstances where they were faced with allegations of intentional wrongdoing Under Salmond, the company would not be vicariously liable

Answer 29

**Lister v Hesley Hall [2001]** ## Footnote **Facts:** The warden of a school for boys sexually assaulted pupils at the school **Held:** The warden was there to care for the boys and so the tort was closely connected to employment

Answer 30

**Facts:** The warden of a school for boys sexually assaulted pupils at the school **Held:** The warden was there to care for the boys and so the tort was closely connected to employment

Answer 31

N v Chief Constable of Merseyside (2006)

Answer 32

* Maga v The Trustees of the Birmingham Archdiocese of the RC Church (2010) * JGE v Trustees of the Portsmouth RC Diocesan Trust (2012) * Mohamud v WM Morrisons (2016)

Answer 33

Mattis v Pollock [2003] Gravil v Carroll [2008] Ministry of Defence v Radclyffe [2009]

Answer 34

**Facts:** A police officer sexually assaulted an intoxicated woman. He was wearing a uniform which made the woman believe she was being detained. ## Footnote **Held:** He was in a private car so there was not a close connection

Answer 35

**Facts:** A non-catholic attended a youth club in a catholic church and was abused by a priest ## Footnote **Held:** There was a close connection, even though the boy had nothing to do with the catholic church. The church was vicariously liable

Answer 36

**Facts:** A Morrisons employee verbally and physically assaulted a customer **Held:** The employee was there to serve customers for Morrisons. There was vicarious liability

Answer 37

Primary victims and Secondary victims

Answer 38

A person who either suffers physical injury as a result of another person’s negligence Where it was reasonably foreseeable that they could have been physically injured as a result of another person’s negligence and as a result they have suffered a psychiatric injury

Answer 39

Bourhill v Young [1943]

Answer 40

Alcock v CC South Yorkshire [1992]

Answer 41

**Chadwick v BRB [1967]** and **Hale v London Underground [1993]**

Answer 42

White and others v CC South yorkshire [1998]

Answer 43

A secondary victim is a person who suffers psychiatric injury as a result of another person’s negligence, but was not exposed to danger.

Answer 44

Reasonable fortitude Status of rescuers Immediate aftermath Sudden shock Law commission recommendations Assessment of psychiatric harm

Answer 45

Psychological harm was too remote

Answer 46

**Over-ruled the judgement that psychological harm was too remote** **Facts:** The claimant was pregnant and behind the bar in a pub. A horse and cart crashed into the pub. The claimant was not physically injured but feared for her safety and suffered shock. She gave birth prematurely nine days later and the child suffered developmental problems **Held:** An action could lie in negligence for nervous shock arising from a reasonable fear for one’s own immediate safety

Answer 47

**Facts:** The claimant suffered distress after witnessing fire fighters attempt to rescue her children from the wreckage of a car following a road traffic accident. She suffered no physical harm herself, but sought to recover damages for psychiatric injury. The authority at the time was Alcock **Held:** Distress is not a medically recognised condition but simply a state of mind

Answer 48

**Facts:** The defendant negligently delivered twins, causing one to die. The claimant suffered shock and therefore a longer recovery **Held:** Grief which delays recovery may give rise to nervous shock and damages may be awarded to reflect this.

Answer 49

**Facts:** The claimant acted as an appropriate adult during the police questioning of a serial killer. She was given no prior warning about the nature of the crimes and details she would see. She suffered PTSD and a stroke as a result **Held:** There was proximity and the defendant assumed responsibility as to the claimant’s wellbeing

Answer 50

**Facts:** Chadwick lived 200 yards from the scene of a train crash and attended the scene to provide some assistance. He worked through the night crawling beneath the wreckage helping the trapped victims. He suffered anxiety and received inpatient treatment **Held:** The defendant owed Chadwick a duty of care since it was reasonably foreseeable that somebody might try to rescue the passengers and suffer injury in the process

Answer 51

**Facts:** The defendant drove his motorcycle past a tram at excessive speed and collided with a car 50 feet away from where the claimant was standing. The defendant was killed by the impact. The claimant heard the collision but did not see it. A short time later, the claimant walked past where the incident occurred. The body had been removed but there was a lot of blood on the road. She went into shock and her baby was stillborn. She brought a negligence claim against the defendant's estate. **Held:** No duty of care was owed by the defendant to the claimant. There was not sufficient proximity between them when the incident occurred

Answer 52

**Facts:** South Yorkshire Police had been responsible for crowd control at a football match and had been negligent in directing an excessively large number of spectators to one end of the stadium which resulted in the fatal crush. People were injured and some died **Held:** For secondary victims to succeed in a claim for psychiatric harm they must meet the following criteria: 1. A close tie of love and affection to a primary victim 2. Witness the event with their own unaided senses 3. Proximity to the event or its immediate aftermath 4. The psychiatric injury must be caused by a shocking event

Answer 53

**Facts:** Some workmen were digging a trench in a pavement. They had nothing to fence of the trench so they left a shovel and pick at one end and a punner at the other end to warn pedestrians. The claimant, a blind man, tripped on the punner and fell hitting his head. As a result of the fall he became deaf. The defendant argued they had done all that was necessary to warn an ordinary person of the danger and there was no need to take extra precautions for blind persons as it was not foreseeable that a blind person would be walking unaided down that street **Held:** The defendant was in breach of duty. It was foreseeable that a blind person might walk down the street and they should be given appropriate protection

Answer 54

**Facts:** The claimant worked on the Piper Alpha but was not on it when the fire broke out. At this time he was on an accommodation vessel that was anchored close by. The vessel was an emergency vehicle and went to provide assistance. The claimant was on board and brought an action claiming he suffered psychiatric injury. He claimed that he feared for his life and had also witnessed men in distress, on fire and jumping into the sea. He was never actually in danger. No physical damage to the vessel was sustained. No personal injuries resulted and no other member of the vessel experienced psychiatric injury **Held:** No duty of care was owed. It was not reasonably foreseeable that a man of ordinary fortitude and phlegm would be so affected by what he saw

Answer 55

**Facts:** Brice had suffered from a hysterical personality disorder since childhood. Due to D’s negligence as a driver he caused an accident in which C’s daughter suffered injury. This had a detrimental effect on P’s mental stability, leaving her in need of constant supervision. C brought an action against D for the psychiatric damage caused as a result of witnessing her daughter’s injuries. **Held:** So long as nervous shock was foreseeable, which it was, the extent of the damage should not bar a claim for this

Liability in Negligence Flashcards

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