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Vicarious Liability Notes

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Vicarious Liability

I. Is the person committing the tort D's employee

1. Is D the Employer?
? Transferred employee - commits the tort whilst hired by another enterpriser for a particular period of time/task ? ask who is entitled to tell him the way in which he's to do the work for which he was engaged (control of task + method of performance) (Lord Porter in Mersey Docks) o Hawley v Luminar - night club security hired by the club, though contract w/security services company, punched C, caused brain damage, club owner liable.
? Dual employment - ask who's the employer for thatparticular task ? capacity of control test (who was entitled and, if they had the opportunity, obliged to control/stop employee from performing. o Via Systems v Thermal Transfer- C contracted w/1st D to install air conditioning system, he contracted w/2 nd D who hired a fitter who brought his friend along, friend negligently crawled through the duct, causing severe flooding. Held both Ds could be sued.
? NB: supervision isn't the same as control
? Temporary employment - capacity of control test o Biffa Waste Management Services - fire at waste recycling plant caused by a spark; importance of common sense underlined
? Heavy onus on permanent employer to show the other employer should be liable
? Alternative in Canada - view employers as partners giving rise to joint control (but no reason why non partnership relationship should be excluded)
? Dual vicarious liability?division (both employers are at fault - 50/50 (Via Systems)
? SC of Canada - 75/25
? Should parties be able to define their legal relationship in definitive manner?

2. Is C Employee/Contractor/Agent?
1) Independent contractor (contract of services) - degree of integration into business/contractual terms
- Not liable for contractor's negligent acts unless a) Authorised the commission of tort ? joint tortfeasor b) Owed a non delegable duty of care to ensure care was being taken (unless negligence was collateral; i.e. outside the scope) i. Hospital - non delegable duty to ensure suitable treatment is given, unless it's a visiting clinician o Cassidy v Minister of Health - C, due to negligence of one of employees of the hospital, who administered treatment, lost use of his hand. Hospital liable, even if couldn't determine exactly who caused it. Only applies to treatment, doesn't extend to outsourcing of sample testing o Farraj v King Healthcare NHS Trust - C had a rare disease, samples taken to check if baby would get it, sent to independent contractor for testing, who was negligent. Hospital not liable.
? Existence not completely certain!

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