Vicarious liability
Bernard v The Attorney-General of Jamaica
|
Unfortunately, the claimant in this case, Mr Bernard, did not. The police officer, who was in plain clothes, identified himself as 'police', then slapped the claimant on the hand and shoved him in the chest.
Unfortunately, Mr Bernard still resisted and kept hold of the telephone, so the officer took two steps backwards, drew his service gun, pointed it at the claimant and shot him in the head.
Surprisingly, Mr Bernard did not die. He took an action against the Police Service and won at first instance, but then lost at the Court of Appeal.
The decision of the Court of Appeal had been made before the key decision of the House of Lords in Lister v Hesley Hall Ltd [2002] 1 AC 215. A warden sexually assaulted those in his care at a school boarding house and the school was held vicariously liable for his actions.
That decision and a subsequent similar decision of the Lords in Dubai Aluminium Company Ltd v Salaam [2003] 2 AC 366, in which a partner in a law firm had defrauded the Dubai Aluminium Company, were available at the time of this appeal.
The Lords extracted a number of key points from the decisions in Lister and Dubai. Lister emphasised that an intense focus should be directed to the closeness of the connection between the tort and the individual tort-feasor's employment.
It suggested the need to avoid terminological issues and to adopt a broad approach to the context of the tortious conduct of his employment. One has to ask whether looking at the matter in the round, it is just and reasonable to hold the employers vicariously liable. In deciding this question, a relevant factor is the risk to others created by an employer who entrusts duties, tasks and functions on an employee. This is particularly relevant in both Lister and Bernard.
Can the tort fairly be regarded as a reasonably incidental risk for the type of business the employer carried on? Lord Millett in Lister had stated 'it is by itself no answer to say that the employee was guilty of intentional wrong-doing, or that his act was not merely tortuous but criminal, or that he was acting exclusively for his own benefit, or that he was acting contrary to express instructions, or that his conduct was the very negation of his employer's duty'.
Building on the severe limitation of opportunity for an employer to escape his vicarious responsibility for an employee, Lord Steyn stated 'a better approach is to concentrate on the relative closeness of the connection between the nature of the employment and the particular tort ...'. In the instant case, the Lords found that the shooting incident immediately followed the constable's announcement that he was a policeman, that is to say, in the course of his duty. He shot the claimant with a revolver provided by the employer, and then subsequently attempted to arrest the claimant at hospital.
While this is evidence, perhaps, that poor Mr Bernard picked the wrong man to refuse to hand over the telephone to, it also underlines the judges' finding, as the reason for the attempted arrest was that the claimant had interfered with the execution of the duties of a police officer.
As has been identified in a number of recent decisions, most notably in Lister and the recent Court of Appeal decision in Mattis v Pollock [2003] EWCA Civ 887 involving nightclub bouncers, employers will struggle to escape responsibility for the actions of their employees if the court can establish that there is any close connection between the employment and the tortious act of the employee.
In Lister, the warden would not have had the opportunity to abuse the children without the title that the employers had given him. In Dubai, the solicitor would not have been able to defraud his clients without the responsibility given to him as their solicitor to act on their case. In this appeal, the police officer would not have had the revolver and the opportunity to commandeer a public payphone without the powers given to him as a constable by his employer. While employers will not always be held vicariously liable for the actions of their employees, it is becoming quite a challenge to perceive where this might be the case.
Contributory negligence - manual handling
Goodchild v Organon Laboratories Ltd
Manual handling cases usually involve lifting objects rather than other forms of movement. This case is no different but the box of objects that the claimant had to move was unusual in that it consisted of dummy arms (in other words, arms that belonged to mannequins) and surgical instruments. It weighed 52lbs and had to be emptied by Ms Goodchild in order for her to do a presentation.
Her employers were aware of her previous back problems following an abdominal hysterectomy the previous year. They were aware that she had to minimise her lifting. Despite this they did not risk-assess her role, but instead provided her with a trolley so that she could transport boxes from her car to the place where she was to do the demonstration together with 'an informal system of physical help', whereby other employees helped her by doing much of the necessary lifting and carrying of equipment and products.
On the day of the accident, it was accepted that the box had been placed on the floor next to the table at which the presentation was to be set up. Time was of the essence and although the box was open and she could see what was in it, the claimant attempted to lift it onto the table and in doing so suffered a back injury.
The defendants accepted that they were at fault under regulation 4(1)(a) of the Manual Handling Operations Regulations 1992. They had failed, so far as was reasonably practicable, to avoid Ms Goodchild's manual handling operation of lifting the box.
Therefore, the issue in the case was contributory negligence and the extent of Mrs Goodchild's failing. The defendants argued that: the claimant ought to have had regard to the medical advice that she had been given in terms of lifting; she had failed to assess the weight of the box by looking at its contents; she should have realised the box was too heavy for her to lift; she failed to seek assistance that was readily available from one of her colleagues; she should have unpacked the box while it was still on the floor.
The judge took the view that the most the claimant could be criticised for was not stopping to consider how heavy the box was likely to be. However, because of the pressure of time this was understandable and it was akin to 'momentary unintentional carelessness'. Therefore, he found she was 10% to blame.
The judgment must be correct in that the defendants ought to have properly risk-assessed the situation. They had a woman whose job entailed, in part, transporting boxes of significant weight. No risk assessment was carried out of her role and no formal system of lifting, carrying and moving was established. She was put in the position of having to make the best of a bad job.
What is troubling is the finding of contributory negligence. Such momentary inattention deserves a nil finding of liability against the claimant. This has been established in a number of cases, not least in Cooper v Carillion Plc CA, [2003] Civ EWCA 1811, in which Lady Justice Hale, in granting leave to appeal, stated in respect of contributory negligence that a '10% finding is unusual'.
Findings of less than 20% contributory fault are surely misadventure and should not be allowed to lessen the burden of responsibility properly attracting to a defendant who has breached a statutory duty.
By Simon Allen, Russell Jones & Walker, Sheffield
No comments yet