Terms in this set (141)

(i) The servant agrees that, in consideration of a wage or other remuneration, he will provide his own work and skill in the performance of some service for his master. (ii) He agrees, expressly or impliedly, that in the performance of that service he will be subject to the other's control in a sufficient degree to make that other master. (iii) The other provisions of the contract are consistent with its being a contract of service."
As to (i): "There must be a wage or other remuneration. Otherwise there will be no consideration, and without consideration no contract of any kind. The servant must be obliged to provide his own work and skill. Freedom to do a job either by one's own hands or by another's is inconsistent with a contract of service, though a limited or occasional power of delegation may not be . . As to (ii). Control includes the power of deciding the thing to be done, the way in which it shall be done, the means to be employed in doing it, the time when and the place where it shall be done. All these aspects of control must be considered in deciding whether the right exists in a sufficient degree to make one party the master and the other his servant. The right need not be unrestricted." and
"'To find where the right resides one must look first to the express terms of the contract, and if they deal fully with the matter one may look no further. If the contract does not expressly provide which party shall have the right, the question must be answered in the ordinary way by implication.
The third and negative condition is for my purpose the important one, and I shall try with the help of five examples to explain what I mean by provisions inconsistent with the nature of a contract of service.
(i) A contract obliges one party to build for the other, providing at his own expense the necessary plant and materials. This is not a contract of service, even though the builder may be obliged to use his own labour only and to accept a high degree of control: it is a building contract. It is not a contract to serve another for a wage, but a contract to produce a thing (or a result) for a price.
(ii) A contract obliges one party to carry another's goods, providing at his own expense everything needed for performance. This is not a contract of service, even though the carrier may be obliged to drive the vehicle himself and to accept the other's control over his performance: it is a contract of carriage.
(iii) A contract obliges a labourer to work for a builder, providing some simple tools, and to accept the builder's control. Notwithstanding the obligation to provide the tools, the contract is one of service. That obligation is not inconsistent with the nature of a contract of service. It is not a sufficiently important matter to affect the substance of the contract.
(iv) A contract obliges one party to work for the other, accepting his control, and to provide his own transport. This is still a contract of service. The obligation to provide his own transport does not affect the substance. Transport in this example is incidental to the main purpose of the contract. Transport in the second example was the essential part of the performance.
(v) The same instrument provides that one party shall work for the other subject to the other's control, and also that he shall sell him his land.

An obligation to do work subject to the other party's control is a necessary, though not always a sufficient, condition of a contract of service. If the provisions of the contract as a whole are inconsistent with its being a contract of service, it will be some other kind of contract, and the person doing the work will not be a servant. The judge's task is to classify the contract (a task like that of distinguishing a contract of sale from one of work and labour). He may, in performing it, take into account other matters besides control.'
The House upheld decisions that the Board, as the crane driver's general employer, retained responsibility for his negligence.
Decisions of this kind depend on the particular facts and that 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.
3P's appeal was dismissed. At the time of the accident the car was being used wholly or partly for the car owner's purposes, and therefore the friend while driving it, was the agent of the owner. In so far as the friend was guilty of negligence, the owner was vicariously liable. Singleton LJ held that the appeal of the 3P fails.

Singleton LJ reiterated that a driver of a motor car must be doing something for the owner of the car in order to become an agent of the owner. The mere fact of consent by the owner to the use of a chattel is not proof of agency. In this case the purpose which the car was being used for on the morning of the accident was either that it should be used by the owner, the 3P or that it should be used for the joint purposes of the male plaintiff and the 3P when it reached Monte Carlo. Singleton LJ held that at the time of the accident the male plaintiff was the agent of the 3P Denning stated in his judgement it is often been supposed that the owner of a vehicle is only liable for the negligence of the driver if his servant is acting in the course of his business. Denning LJ held that this is not correct.

The owner is also liable if the driver is his agent that is if the driver is, with the owners consent, driving the car on the owner's business or for the owner's purposes. In this case the owner wanted the car driven to Monte Carlo, the driver wanted to go with his W to Monte Carlo and he intended to visit friends along the way. In this case he started two or three days earlier than he would have been going solely for the owner's purposes.
This new test of close connection has been described as 'fairer', and of greater use to claimants.[13] Lord Clyde stated three principles in his judgment which he felt should be considered:

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

Employing the traditional methodology of English law, I am satisfied that in the case of the appeals under consideration the evidence showed that the employers entrusted the care of the children in Axeholme House to the warden. The question is whether the warden's torts were so closely connected with his employment that it would be fair and just to hold the employers vicariously liable. On the facts of the case the answer is yes. After all, the sexual abuse was inextricably interwoven with the carrying out by the warden of his duties in Axeholme House. Matters of degree arise. But the present cases clearly fall on the side of vicarious liability.

It is not clear how far the Lister test will supplant the more traditional approaches. Does it apply only to intentional wrongdoing by the employee?
Denning:
"Whenever there is an accident, the negligent driver must bear by far the greater share of responsibility. It was his negligence which caused the accident. It also was a prime cause of the whole of the damage. But in so far as the damage might have been avoided or lessened by wearing a seat belt, the injured person must bear some share. But how much should this be? Is it proper to inquire whether the driver was grossly negligent or only slightly negligent? or whether the failure to wear a seat belt was entirely inexcusable or almost forgivable? If such an inquiry could easily be undertaken, it might be as well to do it. In Davies v. Swan Motor Co. (Swansea) Ltd. the court said that consideration should be given not only to the causative potency of a particular factor, but also its blameworthiness. But we live in a practical world. In most of these cases the liability of the driver is admitted, the failure to wear a seat belt is admitted, the only question is: what damages should be payable? This question should not be prolonged by an expensive inquiry into the degree of blameworthiness on either side, which would be hotly disputed. Suffice it to assess a share of responsibility which will be just and equitable in the great majority of cases.

Sometimes the evidence will show that the failure made no difference. The damage would have been the same, even if a seat belt had been worn. In such case the damages should not be reduced at all. At other times the evidence will show that the failure made all the difference. The damage would have been prevented altogether if a seat belt had been worn. In such cases I would suggest that the damages should be reduced by 25 per cent. But often enough the evidence will only show that the failure made a considerable difference. Some injuries to the head, for instance, would have been a good deal less severe if a seat belt had been worn, but there would still have been some injury to the head. In such case I would suggest that the damages attributable to the failure to wear a seat belt should be reduced by 15 per cent."
plaintiff must 'share in the responsibility for the damage' for the Act to apply, and this involves consideration not only of the blameworthiness of each party but also of the relative importance of a plaintiff's acts in causing damage, apart from his blameworthiness. The court is concerned with the causative potency matters giving rise to the result of the accident, not just to the accident itself. The question as to what caused an accident must be determined as a properly instructed and reasonable jury would decide it, by applying common sense to the facts of each particular case.

Sellers J. reduced the damages by one half, holding both parties equally to blame. Normally one would not disturb such an award, but Sellers J. does not appear to have taken into account the fact that Stapley deliberately and culpably entered the stope. By doing so it appears to me that he contributed to the accident much more directly than Dale. The Act directs that the damages 'shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage' (section 1(1)). A court must deal broadly with the problem of apportionment and in considering what is just and equitable must have regard to the blameworthiness of each party, but 'the claimant's share in the responsibility for the damage' cannot, I think, be assessed without considering the relative importance of his acts in causing the damage apart from his blameworthiness. It may be that in this case Dale was not much less to blame than Stapley, but Stapley's conduct in entering the stope contributed more immediately to the accident than anything that Dale did or failed to do. I agree with your Lordships that in all the circumstances it is proper in this case to reduce the damages by 80% and to award 20%. of the damages to the appellant.

One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes it is proper to discard all but one and to regard that one as the sole cause, but in other cases it is proper to regard two or more as having jointly caused the accident. I doubt whether any test can be applied generally.
Pitts v Hunt [1991]
Claimant, Pitts (aged 18), and Mr Hunt (aged 16), were friends. They had been out for an evening together. The Mr Hunt gave a lift the Clamant on the back of his trial motorbike which was a Suzuki 250cc. He had no licence to ride the bike on the road, indeed the engine capacity limit for a 16 year old to ride legally would be 50cc. He also had no tax or insurance. The pair consumed alcohol at their destination and the Hunt was twice over the legal limit for driving. Nevertheless, the pair embarked on their journey home on the motorcycle. Witnesses gave evidence to the affect that the two were obviously very drunk and Hunt was driving recklessly and erratically. He was zig-zagging down the centre of an A road at great speed with both the parties shouting and jeering. The Claimant was jeering Hunt on and encouraging the dangerous driving. At one time, Hunt drove dangerously close to a witness in order to scare them. Unfortunately the Hunt hit an oncoming car when he was travelling at speed on the wrong side of the road. Hunt was killed and the Claimant was left permanently partially disabled. He brought an action for the injuries sustained against the personal representatives of Hunt. In their defence they raised the defences of volenti non fit injuria, contributory negligence and ex turpi causa. The trial judge held that the Claimant could not recover based on the fact that ex turpi causa operated to preclude the imposition of a duty of care and also that the Claimant was 100% responsible for his own injuries under the Law Reform (Contributory Negligence) Act 1945. On the issue of volenti he held that s.148(3) of the Road Traffic Act 1972 precluded the application of the defence. The Claimant appealed.
2 Extent of occupier's ordinary duty

(1)An occupier of premises owes the same duty, the "common duty of care", to all his visitors, except in so far as he is free to and does extend, restrict, modify or exclude his duty to any visitor or visitors by agreement or otherwise.

(2)The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.

(3)The circumstances relevant for the present purpose include the degree of care, and of want of care, which would ordinarily be looked for in such a visitor, so that (for example) in proper cases—

(a)an occupier must be prepared for children to be less careful than adults; and

(b)an occupier may expect that a person, in the exercise of his calling, will appreciate and guard against any special risks ordinarily incident to it, so far as the occupier leaves him free to do so.

(4)In determining whether the occupier of premises has discharged the common duty of care to a visitor, regard is to be had to all the circumstances, so that (for example)—

(a)where damage is caused to a visitor by a danger of which he had been warned by the occupier, the warning is not to be treated without more as absolving the occupier from liability, unless in all the circumstances it was enough to enable the visitor to be reasonably safe; and

(b)where damage is caused to a visitor by a danger due to the faulty execution of any work of construction, maintenance or repair by an independent contractor employed by the occupier, the occupier is not to be treated without more as answerable for the danger if in all the circumstances he had acted reasonably in entrusting the work to an independent contractor and had taken such steps (if any) as he reasonably ought in order to satisfy himself that the contractor was competent and that the work had been properly done.

(5)The common duty of care does not impose on an occupier any obligation to a visitor in respect of risks willingly accepted as his by the visitor (the question whether a risk was so accepted to be decided on the same principles as in other cases in which one person owes a duty of care to another).
11 The "reasonableness" test

.(1)In relation to a contract term, the requirement of reasonableness for the purposes of this Part of this Act, section 3 of the M6 Misrepresentation Act 1967 and section 3 of the M7 Misrepresentation Act (Northern Ireland) 1967 is that the term shall have been a fair and reasonable one to be included having regard to the circumstances which were, or ought reasonably to have been, known to or in the contemplation of the parties when the contract was made.
(2)ln determining for the purposes of section 6 or 7 above whether a contract term satisfies the requirement of reasonableness, regard shall be had in particular to the matters specified in Schedule 2 to this Act; but this subsection does not prevent the court or arbitrator from holding, in accordance with any rule of law, that a term which purports to exclude or restrict any relevant liability is not a term of the contract.
(3)In relation to a notice (not being a notice having contractual effect), the requirement of reasonableness under this Act is that it should be fair and reasonable to allow reliance on it, having regard to all the circumstances obtaining when the liability arose or (but for the notice) would have arisen.
(4)Where by reference to a contract term or notice a person seeks to restrict liability to a specified sum of money, and the question arises (under this or any other Act) whether the term or notice satisfies the requirement of reasonableness, regard shall be had in particular (but without prejudice to subsection (2) above in the case of contract terms) to—
(a)the resources which he could expect to be available to him for the purpose of meeting the liability should it arise; and
(b)how far it was open to him to cover himself by insurance.
(5)lt is for those claiming that a contract term or notice satisfies the requirement of reasonableness to show that it does.
Pitts v Hunt [1991]
Hunt gave a lift the Clamant on the back of his trial motorbike which was a Suzuki 250cc. He had no licence to ride the bike on the road, indeed the engine capacity limit for a 16 year old to ride legally would be 50cc. He also had no tax or insurance. The pair consumed alcohol at their destination and the Hunt was twice over the legal limit for driving. Nevertheless, the pair embarked on their journey home on the motorcycle. Witnesses gave evidence to the affect that the two were obviously very drunk and Hunt was driving recklessly and erratically. He was zig-zagging down the centre of an A road at great speed with both the parties shouting and jeering. The C was jeering Hunt on and encouraging the dangerous driving. At one time, Hunt drove dangerously close to a witness in order to scare them. Unfortunately the Hunt hit an oncoming car when he was travelling at speed on the wrong side of the road. Hunt was killed and the C was left permanently partially disabled. He brought an action for the injuries sustained against the personal representatives of Hunt. In their defence they raised the defences of volenti non fit injuria, contributory negligence and ex turpi causa. The trial judge held that the C could not recover based on the fact that ex turpi causa operated to preclude the imposition of a DOC and also that the C was 100% responsible for his own injuries under the Law Reform (Contributory Negligence) Act 1945. On the issue of volenti he held that s.148(3) of the Road Traffic Act 1972 precluded the application of the defence.
1 Apportionment of liability in case of contributory negligence.(1)Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage:
Provided that—
(a)this subsection shall not operate to defeat any defence arising under a contract;
(b)where any contract or enactment providing for the limitation of liability is applicable to the claim, the amount of damages recoverable by the claimant by virtue of this subsection shall not exceed the maximum limit so applicable.
(2)Where damages are recoverable by any person by virtue of the foregoing subsection subject to such reduction as is therein mentioned, the court shall find and record the total damages which would have been recoverable if the claimant had not been at fault.
(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F1
(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F2
(5)Where, in any case to which subsection (1) of this section applies, one of the persons at fault avoids liability to any other such person or his personal representative by pleading the M1Limitation Act 1939, or any other enactment limiting the time within which proceedings may be taken, he shall not be entitled to recover any damages [F3or contributions] from that other person or representative by virtue of the said subsection.
(6)Where any case to which subsection (1) of this section applies is tried with a jury, the jury shall determine the total damages which would have been recoverable if the claimant had not been at fault and the extent to which those damages are to be reduced.
four principles relating to the maxim ex turpi causa:

1. The operation of the principle arises where the claimant's claim is founded upon his own criminal or immoral act. The facts which give rise to the claim must be inextricably linked with the criminal activity. It is not sufficient if the criminal activity merely gives occasion for tortious conduct of the Defendant.

2. The principle is one of public policy; it is not for the benefit of the Defendant. Since if the principle applies, the cause of action does not arise, the Defendant's conduct is irrelevant. There is no question of proportionality between the conduct of the Claimant and Defendant.

3. In the case of criminal conduct this has to be sufficiently serious to merit the application of the principle. Generally speaking a crime punishable with imprisonment could be expected to qualify. If the offence is criminal, but relatively trivial, it is in any event difficult to see how it could be integral to the claim.

4. The Law Reform (Contributory Negligence) Act 1945 is not applicable where the Claimant's action amounts to a common law crime which does not give rise to liability in tort.

Applying these principles it is common ground that the Claimant has to rely on his criminal conduct in escaping lawful custody to found his claim. It is integral to the claim. The crime of escape is a serious one; it is a common law offence for which the penalty is at large. It is almost invariably punished by a sentence of imprisonment, although the length of the sentence is usually measured in months rather than years. In my judgment it is plainly a sufficiently serious offence for the purpose of the application of the maxim.
that the fact of unconsciousness does not eliminate the actuality of the deprivation of the ordinary experiences and amenities of life (see the formulation used by Lord Morris of Borth-y-Gest at p.349);

that, if damages are awarded upon a correct basis, it is of no concern to the court to consider any question as to the use that will thereafter be made of the money awarded.

draw a clear distinction between damages for pain and suffering and damages for loss of amenities. The former depend upon the plaintiff's personal awareness of pain, her capacity for suffering. But the latter are awarded for the fact of deprivation—a substantial loss, whether the plaintiff is aware of it or not. Secondly, they establish that the award in Benham v. Gambling [1941] A.C.157 (assessment in fatal cases of damages for loss of expectation of life) is not to be compared with, and has no application to, damages to be awarded to a living plaintiff for loss of amenities.

Dr. Lim's loss of the amenities of her good and useful life is total." . Accordingly, I think Mr. Davies' attack upon this head of the award fails

substantial loss=> substantia award
As long, therefore as the sum awarded is a substantial sum in the context of current money values, the requirement of the law is met. A sum of £20,000 is, even today, a substantial sum. The judge cannot, therefore, be shown to have erred in principle, and his award must stand.

cases of overlap between heads of damage
Pearson Commission (7054-1 para.759) considers it wrong in principle to reduce the one by reason of the size of the other.
The Court of Appeal, having referred to Donnelly v Joyce (1974) QB 454, concluded that 'where services are voluntarily rendered by a tortfeasor in caring for the plaintiff from motives of affection or duty they should, in our opinion, be regarded as in the same category as services rendered voluntarily by a third party, or charitable gifts, or insurance payments. They are adventitious benefits, which for policy reasons are not to be regarded as diminishing the plaintiff's loss.'

In Donnelly's case, the Court of Appeal said that the question from what source the plaintiff's nursing needs had been met, who paid the money or gave the services, or whether the plaintiff was under a legal or moral obligation to repay the provider, were, so far as the defendant and his liability were concerned, all irrelevant. The plaintiff's loss was 'the proper and reasonable cost of supplying those needs'.

His Lordship was not convinced. The basis of the plaintiff's claim for damages might consist in his need for services but the question from what source that need had been met was not irrelevant. If he was treated in hospital as a private patient, he was entitled to recover the cost; but if he received free treatment under the National Health Service, his need had been met without cost to him and he could not claim the cost of the treatment from the tortfeasor.

By concentrating on the plaintiff's need and loss as the basis of an award in respect of voluntary care received by him, the reasoning in Donnelly diverted attention from the award's central objective of compensating the voluntary carer. Once that was recognised it became evident that there could be no ground in public policy or otherwise for requiring the tortfeasor to pay to the plaintiff, in respect of the services which he himself had rendered, a sum of money which the plaintiff must then repay to him.
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