Lecturer Ciarn Lawlor Subject FE 1 Tort INTRODUCTION

Lecturer: Ciarán Lawlor Subject: FE 1 Tort

• INTRODUCTION • Brief Lecture • Limited Scope • We will talk about: 1. The Exam 2. Question selection 3. Sample Topic

• EXAM • The exam is a three hour exam. • There will be eight questions on the exam. • Generally give five problems questions and three essay questions. • You must answer five questions. • EXAM TECHNIQUE • Start a new answer on a new page. • Know your timing. • Read the paper fully (Advising who? About what? ).

• CONSIDERATIONS • Wide & Shallow v Narrow & Deep. • Avoid “undirected information” in your answers • Prefer problem questions over essay questions. • Structure your answers. • ISAC for problem questions. • If you must do an essay, try to answer the “idea of the question”

• EXAM GRID

• VICARIOUS LIABILITY • Regular exam topic — but not the last few exams. • Easy to drop in to a question. • Today: • Short topic review • Generally: “you don’t cause damage then you’re not liable” • Vicarious Liability is an exception to this

• VICARIOUS LIABILITY — KEY CONCEPTS • Not to be confused with direct liability • Not to be confused with employer’s liability • Does not apply to children: Curley v Mannion • Usually applies to employees • But not limited to that situation • Can apply in two broad scenarios: (1) Employee does his job badly (2) Employee doing something that is not his job • Two versions of the test…

• A TALE OF TWO TESTS… (1) Employee does his job badly • Relationship akin to employment? • Tort within the scope of the employment? SC took this approach in Lynch v Binnacle (2) Employee doing something that is not his job • Relationship akin to employment? • Close connection between the tort and the nature of the employment?

• RELATIONSHIP AKIN TO EMPLOYMENT? • This is common to both tests… Moynihan v. Moynihan GM vicariously liable for negligence of her daughter who caused burns to GD when making tea. Cox v Ministry of Justice Prison service vicariously liable for the negligence of a prisoner who was assisting in the prison kitchen and caused accidental injury to another person working their. • Factors indicating “akin” to employment? Level of control, holidays, entitlement to have someone else do the job, provision of tools, payment of tax, etc.

• RELATIONSHIP AKIN TO EMPLOYMENT? Morrissey v HSE [2020] Criticised the “fair just and reasonable” approach in the UK as “[begging] the question”. “There are sound reasons why vicarious liability should not depend on whether, technically, a person might be regarded in law as an employee or as an agent. ” “Similarly confining the analysis to the question of control might also lead to unsatisfactory results. ” “The overall test must be one which considers whether the nature of the relationship, including the question of control, is such that it is similar in substance, if not in form, to the types of relationships which have traditionally been regarded as giving rise to vicarious liability. ”

• TORT WITHIN SCOPE OF EMPLOYMENT • Usually doing the job badly, or breaching an employers rule while still doing the job Smith v Stages The employees left work early and while driving home were involved in an accident. Employer was paying travel expenses. There was vicarious liability. Storey v. Ashton Employee was taking a detour to visit his brother-in-law at the time of the accident. No vicarious liability. Limpus v London General Omnibus Co Employee had been told not to race or obstruct buses from other companies. Did so. There was vicarious liability.

• TORT WITHIN SCOPE OF EMPLOYMENT • Often criminal behaviour Bazley v Curry (Canadian Case) “vicarious liability is generally appropriate where there is a significant connection between the creation or enhancement of a risk and the wrongs that accrue therefrom, even if unrelated to the employer’s desires “ Reilly v Devereux No close connection between sexual assault and employment as senior army officer. Elmontem -v- Nethercross No close connection between working as a chef and assaulting the financial controller. Mohamud v Morrisons Sufficient close connection between work as customer attendant and assault on the customer aimed at protecting employer’s interests.

BEST OF LUCK FOR YOUR EXAM