'The law of vicarious liability is on the move'
Discuss this statement with ref to Various Claimants case and Woodland
Can anyone give me some of the key points to discuss and appropriate arguments please
I am literally at a loss with this and feel like a have no structure whatsoever to my paper
Vicarious liability........discussing the statement
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- 28-04-2016 13:15
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- 02-05-2016 06:34
A general outline of how I might answer this Q:
1. Traditional/old vicarious liability case law, and the focus on employment as its paradigm.
Maybe a short reference to historical background and how husbands used to be liable for their wives, and parents for their children etc. and that these have faded out. VL is now (generally) only discussed where there's some form of employment issue. Be very brief on this, just need to shift the focus of the Q from VL to employment and show that you understand why that is necessary since the Q says nothing about employment.
2. Separate this into the two elements of VL: the 'relationship' requirement (between the employer and employee), and the 'course of employment' requirement (whether the tort falls into this or not). One sentence each on outline of where the law stands/stood on these elements.
3. Note that the Q is here focusses on Woodland and the CCWS cases, both of which discuss the first element - i.e. the relationship. Short reference to the very recent Mahmud UKSC case re the course of employment, and how this has also been broadened by the SC but then move on the first element (more relevant to the Q asked). Two branching points here discuss exceptions where VL is found by the courts:
(a) general rule that VL does not/will not attach to D if the tortfeasor was an independent contractor hired by the defendant (relevant to Woodland part of the Q),
(b) where there is no contract of employment (CCWS part of the Q)
The significance of this case is that the SC unanimously overturned the CA decision, although they acknowledged that this could have an undesirable ('chilling') policy effect, in that schools might be too scared to take kids to places like swimming pools in case they get sued.
BUT Lord Sumption goes back to the issue of control, only here he talks about it in relation to the defendant's (school) control over the claimant (child) and not the tortfeasor (the swimming pool). He identifies 5 factors where duty of care might be 'non-delegable' and one might depart from the 'fault-based' approach. Control is the 4th factor he mentions.
Lady Hale talks about the unfairness for small state school kids and the fact that it'd be unfair to them if VL was not found here - because private schools are bound by contract, and a larger state school with a swimming pool would be found liable, but a claimant from a smaller state school wouldn't be able to claim - she's clear that this would be wrong.
The main focus here with this case is that the exception for ICs has obviously been clearly established, albeit subject to tight constraints (in this case - vulnerable children, no choice over what the school decides about where they go etc. and the fact that parents have no choice resending their kids to school and how they also have no say in what the school decides to do with them).
Conflicting policy aspects are interests of the schools vs. those of the children. Generally unfair for an employer to be held VL for an IC but should it be so easy for a school to just say 'oh it was the swimming pool's fault, nothing to do with us'?
Contrary argument could be funding issue - do schools have adequate resources for supervision/checking that the pool was safe?
Comment: previously, the courts have found VL for 'borrowed' employees (Mersey Docks and Hawley v Luminar) and cases of multiple employers (Viasystems) so is this REALLY such a change? I suppose it does bring VL completely out of the 'employment' scope in a way since the swimming pool wasn't hired by the school - or were they? I haven't looked at this case in detail but if the school has a contract with them of some sort, this might be a point to mention.
This case basically broadens the employment relationship by saying that a contract of employment is not strictly necessary - relationships akin to employment are/can be sufficient. The Q you're looking at was probably written before this year and so wouldn't refer to the Cox (also UKSC) case, but that's also relevant to this issue + confirms this development. 2 supreme court decisions are a significant authority if you're making an analogous case against an organisation for VL. Main talking points:
(a) Lord Phillips in CCWS, especially in saying that the fact that the brother teachers were not paid, or under a contract of employment, but these factors were 'immaterial'
Points to consider: floodgates possibility for claims, potential for VL outside of employment altogether in future.
(b) Lord Reed in Cox, specifically the reference to CCWS (as its mentioned in the Q here) in saying that CCWS sketched out a 'modern theory of VL' which takes into account how employment relationships have changed and developed in recent times and ensures that the protection provided to victims by the law is maintained alongside this. Also says that activities carried out by the tortfeasor don't have to be commercial in nature - it's enough that they are for the benefit of the defendant (judgment expands on this more)
Again, maybe talk about floodgates and development as above. Maybe sum up both together here rather than separately for each case.
6. Conclusion: summarise the effect of Woodland and CCWS (as affirmed in Cox) on 1st element of VL, mention Mahmud again briefly re 2nd element of VL, and comment on how this shows that the law has evolved/been 'on the move'. In my head the widening of the VL doctrine has had these important turning points (among others):
i. 1700s - Lord Holt - implied/express permission for acts and why employers should be more accountable
ii. 1960s/1970s - the control test and the court's shift to multi-factor tests (various cases)
iii. these recent cases
Come to some sort of conclusion on the significance of these most recent changes. I would also state that the law of VL has always been on the move, that's not really new
There you go Lawerly disclaimer: all of the above might be BS :P
Hope this helps! If you think of anymore points on this, feel free to let me know (I have this exam soon too haha)