Vicarious Liability

Draft Student Version. Students are expected to do their own readings

and make their own summaries of cases and concepts as per the
readings
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Vicarious Liability
• Liability which D may incur to C for damage caused to C by the
negligence or other tort of a third party, A.
• D should stand in a particular relationship to A and that A’s Tort
should be referable in a certain manner to that relationship.
• Eg Employer liability for torts done of an employee.
• Partner of Law Firm for each other’s torts?
• Principal liable for tort of his agent?
• “master and servant”
Distinguished from D’s primary
liability
• Do not confuse primary liability of D for damage caused by to C by Act
of A
• Eg Where D is in breach of his own duty to C
• Eg D has not given adequate consideration to a safe system of work

• The fact that there is no vicarious liability does not necessarily mean
there is no breach of the personal duty.
VL vs Liability for breach of a non-
delegable duty?
• D can still be liable
• D puts A in charge of a non-delegable duty
• D stands answerable for the fault of the person in carrying it out.
• Employer>Independent contractor? IF non-delegable duty vs normal
rule?
Catholic Child Welfare Society v
Institute of the Brother
• D2 may be vicariously liable for the tortious act of D1 even though the
act in question constitutes a violation of the duty owed to D2 by D1
and even if the act in question is a criminal offence: Morris v CW
Martin & Sons Ltd [1966] 1 QB 716; Dubai Aluminium; Brink’s Global
Services v Igrox [2010] EWCA Civ; [2011] IRLR 343
• Vicarious liability can even extend to liability for a criminal act of
sexual assault: Lister v Hesley Hall [2001] UKHL 22; [2002] 1 AC 215.
• It is possible for two different defendants, D2 and D3, each to be
vicariously liable for the single tortious act of D1: Viasystems
(Tyneside) Ltd v Thermal Transfer (Northern) Ltd and others [2005]
EWCA Civ 1151; [2006] QB 510
• At para 37 of his judgment in this case Hughes LJ rightly observed
that the test requires a synthesis of two stages:
• i) The first stage is to consider the relationship of D1 and D2 to see
whether it is one that is capable of giving rise to vicarious liability.
• ii) Hughes LJ identified the second stage as requiring examination of
the connection between D2 and the act or omission of D1. This is not
entirely correct. What is critical at the second stage is the connection
that links the relationship between D1 and D2 and the act or omission
of D1, hence the synthesis of the two stages.
https://www.conjur.com.br/dl/decisa
o-suprema-corte-reino-unido14.pdf
• Qualifying relationships are not confined to employment in the strict
sense.
Cox vs Ministry of Justice
• Is a prison liable for a prisoner assaulting the catering manager in a
prison kitchen?
• Is a prisoner employed by a prison?
• Vicarious Liability generally arises from a contract of service
(“servant”) but not from a contract for services (“independent
contractor”)
• Necessary to determine the indicia of a contract of service.
Express Clarification of the Parties
• Not conclusive to the legal classification of the relationship.
Control Test
• Still relevant
• Professionally trained persons- surgeon- servant for whose torts their
employers are responsible
• The significance of control today is that the employer can direct what
the employee does, not how he does it.
Composite Approach
• Indicia of a contract of service
• 1) Employers power of selection of his servant
• 2) Payment of wages or other renumeration
• 3) Employers right to control the method of doing the work
• 4) Employers right of suspension or dismissal.
• Ordinary person meaning?
• It is often easy to recognise a contract of service when you see it, but
difficult to say where the difference lies. A ship’s master, a chauffeur,
and a reporter on the staff of a newspaper are all employed under a
contract of service; but a ship’s pilot, a taxi-man, and a newspaper
contributor are employed under a contract for services. One feature
which seems to me to run through the instances is that, under a
contract of service, a man is employed as part of the business and his
work is done as an integral part of the business; whereas under a
contract for services his work, although done for the business, is not
integrated into it but is only accessory to it.
Express & Echo Publications Ltd v Tanton (1999)
Hospitals
• Vicarious Liability of house-surgeons, radiographers etc- servants of
the authority for the purpose of vicarious liability?
• Hospital primary liability for breach of duty to patient?
• Doctor or Hospital liable? Examples.
Police (UK)
• S 88 Police Act
Religious Institutions
• Catholic Child Welfare Society Case
Viasystems Case
• The defendants had subcontracted work installing air conditioning to
the second defendants, who in turn bought in fitters from the third
defendants. A fitter caused a flood acting irresponsibly
• Rix LJ doubted that the doctrine of vicarious liability should depend
solely on the question of control and suggested a broader test of
‘whether or not the employee in question is so much part of the work
business or organisation of both employers that it is just to make both
employers answer for his negligence’. Vicarious liability was imposed
because the employer was treated as picking up the burden of an
organisational or business relationship which he had undertaken for his
own benefit. Accordingly, what one was looking for was ‘a situation
where the employee in question, at any rate for relevant purposes, is so
much a part of the work, business or organisation of both employers
that it is just to make both employers answer for his negligence’.
Vehicle Drivers- Ormrod v Crossville
Motor Services
• Lord Denning MR said: ‘The reason behind this principle is at bottom
the principle which lies behind all vicarious liability. It is to put the
responsibility onto the person who ought in justice to bear it. Now the
owner or hirer of the vehicle is in most cases the person who ought to
bear the responsibility.’
Lending a Servant- Dual Liability
• D may be general employer of A but X may be making temporary use
of A’s services
• If A injures some third party, who bears the vicarious liability for his
acts?
Viasystems (Tyneside) Ltd
• Both X and D liable to the factory owner
Limits to Dual Liability
• Mersey Docks and Harbour Board
• Ratio: A worker was injured by a negligently driven crane. The crane
and Board’s driver were hired out to stevedores for loading work. The
stevedores controlled the crane’s operations, but did not direct how
the driver controlled the crane. The hire contract made the driver the
employee of the defendant stevedores.
• Decisions of this kind depend on the particular facts and many factors may bear on
the result. Considerations include: (a) the burden of showing that responsibility does
not remain with the general employer is on the general employer and is a heavy one
(b) by whom is the negligent employee engaged? Who pays him? Who has power to
dismiss him? (c) who has the immediate direction and control of the relevant work?
Who is entitled to tell the employee the way in which he is to do the work upon
which he is engaged? ‘The proper test is whether or not the hirer had authority to
control the manner of execution of the act in question. Given the existence of that
authority its exercise or non-exercise on the occasion of the doing the act is
irrelevant’. (d) the inquiry should concentrate on the relevant negligent act, and then
ask whose responsibility it was to prevent it. In the Mersey Docks case, the
stevedores had no responsibility for the way in which the crane driver drove his
crane, and it was this which caused the accident.
• The ultimate question may be, not what specific orders or whether any
specific orders were given, but who is entitled to give the orders as to
how the work should be done. (e) a transfer of services can only be
effected with the employee’s consent. (f) responsibility should lie with the
master in whose act some degree of fault, though remote, may be found
Viscount Simon said that a heavy burden of proof lay on the general or
permanent employer to shift responsibility for the negligence of servants
engaged and paid by such employer to the hirer for the time being who
had the benefit of the services rendered. This could only be achieved
where the hirer enjoyed the right to ‘control the way in which the act
involving negligence was done.’
Express Provisions
• Express provisions not determinative of the question whether X was
to be treated as the sole employer.
• A term in a contract may entitle D to an indemnity from X in respect
of any damages D has to pay C.
Connection between the relationship
and the Conduct of the Tortfeasor
• Scope of Employment- Catholic Child Welfare
• Close Connection – Lister v Hesley Hall Ltd
Lister v Hesley Hall Ltd
• Lister v Hesley Hall Ltd [2002] 1 AC 215
• Facts
• A warden was employed at an annex of a boarding school for boys
and responsible for the day-to-day running of the school, discipline of
the boys, organisation of their daily activities, as well as supervision
and care of the boys after school hours. Between 1979 and 1982, the
warden had sexually abused a number of the boys, yet unbeknownst
to his employers. The sexual abuse took numerous forms and was
usually administered in the context of the warden’s control and
discipline at the boarding school.
• Issue
• The question arose as to whether the employers of the warden may
be held vicariously liable for their employee’s intentional sexual abuse
of school boys placed under his care.
• All Acts constituting the wrong must fall within the scope of
employment.
Careless of Servant
• Employer liable provided servant is not on a frolic of his own.
Century Insurance
• Facts
• A transport undertaking had a contract with a petroleum company for
the carriage and delivery of their petrol in lorries, agreeing to insure
the lorries against any spillage or fire of the petroleum. The lorries
were insured by an insurance company against liability to third
parties. While one of the lorries was delivering petrol at a gas station,
the undertaking’s driving lit a cigarette, causing an explosion and
consequent damages.
• Issue
• (1) Firstly, the question arose as to whether the employer or the
insurance company was liable. (2) Secondly, the question arose as to
whether the employee’s smoking of the cigarette was in the course
and scope of his employment for the purposes of rendering the
employer’s vicariously liable.
Storey v Ashton
• Facts
• The defendant in this case, was a wine merchant who, in the course of
employment, sent his clerk and his car man off with a horse and cart
to make a delivery of wine and collect and return the empty bottles.
During their journey from doing this, rather than completing this task
set by the employer, the car man was told by the clerk to drive in the
opposite direction to visit his brother-in-law as it was past 3.00pm on
a Saturday and outside of business hours. Following this change of
direction, the car man ran over the plaintiff.
• Issue
• The issue in this case was whether the defendant could be said to be
at fault for the actions of his employees at a time that they were not
directly acting on behalf of him, but still using his equipment. It was
an important to draw a line between negligence arising out of a
master’s instruction and when the employee could be said to be
operating on the basis of his own act.
Smith vs Stages
• The Facts
• Mr Machin was employed as a lagger at Drakelow Power Station. He
and a colleague, Mr Stages, were instructed to go to work for a week
at Pembroke Power Station. They travelled there in Mr Stages’ car. At
Pembroke, during the end of the week which they were there,
between 8.30am on Sunday and 8.30am on Monday, they worked a
total of 19 hours and had no sleep at all. They set off immediately for
home and during the course of the journey, due to Mr Stages’ fatigue,
an accident occurred which resulted in Mr Machin sustaining serious
injuries from which he never recovered. He died two years later.
• Originally, a writ was issued during his lifetime, naming only Mr Stages
as defendant. It emerged that Mr Stages had no insurance and the
claim was amended to include the employer as defendant. It was
alleged that Mr Stages was driving the car either as the agent of the
employer or in the course of his employment. In the High Court, it
was held that the driving had not been done in the course of Mr
Stages’ employment. Mr Machin’s widow appealed to the Court of
Appeal.
• The Court of Appeal held that, in view of the fact that the High Court
had found that the employer could have directed the employees not
to travel on the day on which they did, and it had not given such a
direction, then the journey home was made during the course of
employment. Because the employer had authorised the respondent
employee to drive, then he was driving in the course of his
employment, and the employer was vicariously liable. The employers
appealed to the House of Lord
• he Decision: House of Lords
• This decision was upheld by the House of Lords, where Lord Lowry set out the
following general propositions.
• An employee travelling from his ordinary residence to his regular place of work,
by whatever means of transport, even if it was provided by his employer, is not
acting in the course of his employment. But if he is obliged by contract to use the
employer’s transport, then he is acting in the course of his employment while
doing so.
• Travelling in the employer’s time between workplaces or in the course of a
peripatetic occupation, whether accompanied by goods or tools or simply in order
to reach a succession of workplaces, will be in the course of his employment.
• Receipt of wages (though not a travelling allowance) will indicate that
an employee is travelling in his employer’s time and for his benefit,
and is acting in the course of his employment. In such a case, the fact
that the employee might have discretion as to the mode and time of
travelling will not take the journey out of the course of his
employment.
• An employee travelling in the employer’s time from his ordinary
residence to a workplace other than his regular workplace, or in the
course of a peripatetic occupation, or to the scene of an emergency,
will be acting in the course of his employment.
• A deviation from or interruption of a journey undertaken in the
course of employment (unless merely incidental to the journey) will
for the time being (including overnight interruption) take the
employee out of the course of his employment.
• Return journeys are to be treated on the same footing as outward
journeys.
Mistake of Servant
Baley v Manchester, Sheffield and Lincolnshire
Acts in protection of the employer’s
property
• Poland v Parr & Sons [1927] 1 KB 236
• Facts
• A contractor’s employee was, in the course of his employment,
following close behind his employer’s waggon carrying sugar bags.
Seeing a boy with a hand on one of the bags, the employee believed
the boy to be stealing sugar and hit him. This caused the boy to fall
and the waggon to run over his foot, leading to the loss of his leg. The
boy had not, in fact, been stealing the sugar although the employee
had believed so.
• Issue
• The question arose as to whether the employee’s actions were
authorised by the employer, imputing the employer’s liability for the
injuries sustained by the boy.
Negligent Delegation of the
Servant’s Duty to a Stranger
• In Ilkiw v Samuels [1963] 1 WLR 991 a lorry driver was under strict
instructions from his employers not to allow anyone else to drive the
lorry. He allowed a third party, who was incompetent, to drive it
without making any inquiry into his competence to do so
• The employers were held vicariously liable for the resulting accident. Diplock LJ
explained, at p. 1004, that some prohibitions limited the sphere of employment
and others only dealt with conduct within the sphere of employment. In order
to determine into which category a particular prohibition fell it was necessary to
determine what would have been the sphere, scope, or course (nouns which he
considered to amount to the same thing) if the prohibition had not been
imposed. In a passage which is of some importance in the present case, he
added:
• "As each of these nouns implies, the matter must be looked at broadly, not
dissecting the servant's task into its component activities - such as driving,
loading, sheeting and the like - by asking: what was the job on which he was
engaged for his employer? and answering that question as a jury would."
• He reasoned that the job which the driver was engaged to perform
was to collect a load of sugar and transport it to its destination, using
for that purpose his employers' lorry, of which he was put in charge.
He was expressly forbidden to permit anyone else to drive the lorry in
the course of performing this job. That was not a prohibition which
limited the scope of his employment, but one which dealt with his
conduct within the sphere of his employment.
https://publications.parliament.uk/p
a/ld/ldjudgmt.htm
• UK Parliament “Judgement Index”
Servant usurping the job of another
• Kay v ITW Ltd
Wilful wrong of Servant
• Limpus v London General Omnibus Co
• LCC v Cattermoles
• Facts
• A man was employed as a garage as a general garage hand, during
which he would assist in moving cars out of the way of other cars by
pushing them by hand. He had been forbidden to drive the cars as he
did not have a driving license. Whilst moving a van, he chose to drive
the van on a highway, colliding and damaging another car. The injured
party claimed damages from the employer.
• Issue
• The question arose as to whether the driver was acting within scope
of his employment when he drove the van and whether, accordingly,
the employer can be held liable for the damage caused as a result of
the driver’s negligence.
• Held
• The Court held that, when he damaged the car, the employee was acting within the
scope of his employment to move cars out of the way in the garage and the mode by
which he chose to perform his duties was a subsidiary part of the function itself. The
Court held that the fact that the man’s actions were not authorised by the employer
did not render the actions outside the scope of employment as he merely selected
“an unauthorised method of doing an authorised act.” (p 1007) Further, the fact that
the damage incurred outside the place of employment was irrelevant to the
employer’s vicarious liability. Albeit in an unauthorised manner, the man was fulfilling
his express duties to his employer when he drove the van. Accordingly, the man’s
actions were within the remit of his scope of employment and the employer is
variously liable for the consequences. Thus, the employer was held liable for the
damages incurred as a result of the employee’s negligent driving of the van.
Unauthorised passengers
• In Twine v Bean’s Express Ltd (1946) [27] a lorry driver gave a lift to a
third party who was then killed as a result of reckless driving.
Harpwood concludes that the reason that the employer was found
not to be found vicariously liable as the employer has derived no
benefit from the forbidden act.
• Conversely, in the case of Rose v Plenty (1976) [29] where a milkman
was assisted by a boy who was injured by negligence, it was found
that Mr Plenty was acting in the scope of his employment and
therefore the employer was vicariously liable. Harpwood states that
as Rose was helping him to deliver his milk, despite the employer
forbidding this practice, Rose was performing an act which
‘contributed to, or provided some benefit to the business of the
employer’
Act intended to benefit the servant
• Lloyd v Grace The plaintiff went to the defendants, a firm of
solicitors, for the purpose of selling her property and saw their
managing clerk, who induced her to convey the property to himself
for the purpose of the sale. The clerk then sold the property in his
own name, and absconded with the money
• The decisive factor in Lloyd v Grace, Smith & Co [1912] AC 716 was
that the employee who committed the fraud for his own benefit was
the person to whom his employer invited the client to entrust her
affairs.
• Lloyd v Grace, Smith & Co [1912] AC 716, which Lord Steyn described
as a breakthrough, finally established that vicarious liability is not
necessarily defeated if the employee acted for his own benefit. The
consequence, he said, at p 224, was that "an intense focus on the
connection between the nature of the employment and the tort of
the wrongdoer became necessary."
Criticism of the “close connection”
test
• (Lord Phillips in Various Claimants combined the second and third
justifications to suggest that :
“‘[v]icarious liability is imposed where a defendant, whose relationship
with the abuser put it in a position to use the abuser to carry on its
business or to further its own interests, has done so in a manner which
has created or significantly enhanced the risk that the victim or victims
would suffer the relevant abuse. The essential closeness of connection
between the relationship between the defendant and the tortfeasor
and the acts of abuse thus involve a strong causative link” (at [86]) (see
further Bell 2013))
Other Assaults- Mattis v Pollock
• . In 1998 M was stabbed by a doorman ('C') employed at a nightclub
owned and operated by P. M was rendered paraplegic. C was
convicted of causing grievous bodily harm with intent and ordered to
serve eight years in prison. C was not licensed as a doorman by the
local authority. On the night in question C started a fight in the club in
which M and others were involved. C then left the club, returned to
his own flat nearby and armed himself with a knife. He returned to
the vicinity of the club and stabbed M who stood his ground outside
the club.
• The judge held that P was not vicariously liable for the injuries
inflicted by C nor was he personally liable for breach of a duty of care.
The knife attack took place outside the course of C's employment as a
doorman. The injuries were caused by the decision of C to arm
himself, return to club looking for revenge and stab the first person
within reach who happened to be M. M appealed
• HELD: (1) Applying Lister v Hesley Hall Ltd (2001) UKHL 22 and Dubai
Aluminium Co Ltd v Salaam (2002) UKHL 48, P would be vicariously
liable for C's attack if it was so closely connected with what P
authorised or expected C to do in the performance of his employment
as a doorman that it would be fair and just to impose liability.
• (2) Vicarious liability could arise even if the act of the employee was
an independent act in itself. (3) Where an employee was expected to
use violence while carrying out his duties the likelihood of
establishing that an act of violence fell within the broad scope of his
employment was greater than it would be if he were not.
• 4) C was employed to keep order and P encouraged and expected him
to perform his duties in an aggressive and intimidatory manner. P
should not have been employing C at all and should not have
encouraged him to behave as he did. (5) The incident might have
ended at a number of different stages before M was stabbed but that
did not of itself determine whether P should be held vicariously liable
for the stabbing.
• (6) The stabbing was directly linked to what had gone before. Even
allowing that C's behaviour included an important element of
personal revenge, approaching the matter broadly, at the moment
when M was stabbed the responsibility of P for the actions of his
aggressive doorman was not extinguished. Vicarious liability was
therefore established. (7) In the circumstances and for the same
reasons P would be personally liable as well.
Appeal allowed.
Police- students to read- pg 662
Theft by Servant
• Morris v CW & Sons Case
• Morris had her mink coat drycleaned, at which time the drycleaner
stole the coat
• She sued, but the drycleaner said they had taken all reasonable care
to look after the coat and should not be held responsible
• ISSUE
• Could the drycleaners be held responsible for the theft of an item by
their staff?
• “From all these instances we may deduce the general proposition that
when a principal has in his charge the goods or belongings of another
in such circumstances that he is under a duty to take all reasonable
precautions to protect them from theft or depredation, then if he
entrusts that duty to a servant or agent, he is answerable for the
manner in which that servant or agent carries out his duty. If the
servant or agent is careless so that they are stolen by a stranger, the
master is liable.”
Fraud of Servant- Armagas Ltd v
Mudogas SA
Lister v Romford Ice & Cold
Storage Co Ltd [1957] AC 555
• Facts
• The defendant was a lorry driver who was employed by the plaintiffs
to drive their lorry to a slaughterhouse in order to collect waste. The
driver took his father with him for the journey and during the course
of which, the son reversed the lorry into the father, causing injury. The
father sued the plaintiffs for damages for personal injury and
recovered damages following his son’s driving. The company also
bought an action against the driver claiming damages for breaching
an implied term in his service contract that he would use reasonable
skill and care during the course of driving.
• Issue
• It was important for the court, in this case, to establish whether the
driver owed his employer a duty to use reasonable skill and care in
the course of his employment. The court was also required to
establish the quantum of damage in its judgment.
Lister principle in modern
conditions?
• in considering the scope of the employment, a broad approach should be adopted;
• while consideration of the time and place at which the acts occurred will always be
relevant, they may not be conclusive; and
• while the employment enables the employee to be present at a particular time and
place, the opportunity of being present at particular premises whereby the
employee has been able to perform the act in question does not mean that the act is
necessarily within the scope of the employment.
• Of importance is that the employment status of an individual cannot merely have
provided the employee with an opportunity to commit a tort.[14] There must be a
connection between the duties of an employee and the tort committed,[15] as
restated in the subsequent case of Dubai Aluminium Co Ltd v Salaam,[16] involving
deceit and theft.
Indemnity limited in principle pg
665
• Common Law Rule –Merryweather v Nixan – there can be no
contribution between joint tortfeasors?
Employers and General Contractor
• Employer not liable for the tort of his independent contractor
Non-Delegable Duty
• (LORD BLACKBURN) Hughes v Percival:
• “the law cast upon the defendant, when exercising this right, a duty towards the
plaintiff. I do not think that duty went so far as to require him absolutely to provide
that no damage should come to the plaintiff’s wall from the use he thus made of it,
but I think that the duty went as far as to require him to see that reasonable skill and
care were exercised in those operations which involved a use of the party-wall,
exposing it to this risk. If such a duty was cast upon the defendant he could not get rid
of responsibility by delegating the performance of it to a third person. He was at
liberty to employ such a third person to fulfil the duty which the law cast on himself,
and, if they so agreed together, to take an indemnity to himself in case mischief came
from that person not fulfilling the duty which the law cast upon the defendant; but
the defendant still remained subject to that duty, and liable for the consequences if it
was not fulfilled.”
Categories of Non-delegable Duties
• Woodland v Essex CC
• Ratio: The claimant had been seriously injured in an accident during a
swimming lesson. She sought to claim against the local authority, and
now appealed against a finding that it was not responsible, having
contracted out the provision of swimming lessons. She said that the
duty of care was non-delegable.
The 'Chilling Effect' of Woodland v
Essex County Council?
• As local authorities are increasingly required to outsource services, it
is more important than ever to ensure that those third parties are
reasonably competent and able to carry out services on behalf of the
local authority. It should be noted, that this case may have far
reaching consequences and apply to vulnerable adults, the elderly,
patients and prisoners. Whether it ultimately it has a 'chilling effect'
on local authorities as prophesised by Lord Justice Tomlinson, remains
to be seen.
• https://www.forbessolicitors.co.uk/news/display/19164/the-chilling-
effect-of-woodland-v-essex-county-council
• There is an antecedent relationship between the claimant and the defendant which
puts the claimant in the actual custody, charge or care of the defendant, and from
which it was possible to impute to the defendant the assumption of a positive duty
to protect the claimant from harm, not just a duty to refrain from conduct which
would foreseeably damage the claimant.
• The claimant has no control over how the defendant chooses to perform the relevant
obligations.
• The defendant has delegated to a third party some function which is an integral part
of the positive duty which he has assumed towards the claimant; and the third party
is exercising, for the purpose of the function delegated to him, the defendant's
custody or care of the claimant and the element of control that goes with it.
• The third party had been negligent in the exercise of the delegated function.
• The Supreme Court was keen to demonstrate that a non-delegable
duty would only be imposed where it was 'fair, just and reasonable' to
do so. Lord Sumption stated that the courts should be sensitive about
imposing unreasonable financial burdens on those providing critical
public services. However, in the circumstances he was of the opinion
that in such a situation it was not an unreasonable burden to cast on
Local Authorities. Lord Sumption set out his reasons for extending the
law in such a manner:
• The criteria are consistent with the long-standing policy of the law, to protect those who are both vulnerable
and highly dependent on the observance of proper standards of care by those with a significant degree of
control over their lives.
• Parents are required by law to entrust their child to a school. They do so in reliance on the school's ability to
look after them, and generally have no knowledge of or influence over the arrangements that the school may
make to delegate specialised functions.
• It is not an open-ended liability, schools will only be liable for the negligence of independent contractors only
if and so far as the latter are performing functions which the school has assumed for itself a duty to perform,
generally in school hours and on school premises.
• Until relatively recently, most of the functions now routinely delegated by schools to independent
contractors would have been performed by staff for whom the authority would have been vicariously liable.
• The responsibilities of fee-paying schools are already non-delegable because they are contractual, and the
possibility of contracting out of them is limited by legislation. In this particular context, there seems to be no
rational reason why the mere absence of consideration should lead to an entirely different result when
comparable services are provided by a public authority.
Hazardous Functions
• Honeywell and Stein Ltd v Larkin Bros Ltd
Honeywell v Stein
• Ratio: The plaintiffs wanted photographs inside a cinema on which
they had worked, and asked the defendants to take them. The
photographer used a chemical flashlight using magnesium which gave
off intense heat. The negligent photographer caused a fire. The
cinema owner threatened to sue the plaintiffs for the cost of the
repairs. On advice, the plaintiffs paid up, and now pursued the
photographer’s employers to recover the payment. The defendants
said the plaintiffs had no liability to pay the cinema company
Assumption of Responsibility
• Woodlands v Essex