- In order to rede Freddy Hobart Ltd, one would hold to research the regulations of vicarious liability of an employer and instance jurisprudence which may use. Vicarious liability arises where there is a relationship between the tort-feasor and the party who becomes vicariously apt which justifies giving the latter duty for the Acts of the Apostless of the former [ 1 ] . This means that a victim of a civil wrong, in the present scenario being Flora, can claim compensation from the employee’s company if it is proven that the civil wrong occurred as a consequence of the employee’s mistake when he was in the class of his employment.
In order for Freddy Hobart Ltd to be vicariously apt for Jameel’s carelessness, three demands will necessitate to be satisfied. First, there must be an employer/employee relationship between Freddy Hobart Ltd and Jameel. Employers are merely vicariously apt for the Acts of the Apostless of their employees as is shown in the instance ofReady Mixed ConcreteVMinister of Pensions[ 2 ] ; an employer is non apt for the act of its independent contractors as is illustrated in the instance ofHoneywill and SteinVLarkin[ 3 ].This demand has clearly been met since it is mentioned that Jameel was under a contract with Freddy Hobart Ltd with all the rights and responsibilities of a full employee. Second, it must be established that Jameel has committed a civil wrong. We are told that the lorry crashed because of Jameel’s negligent behavior. So it would look that this demand has besides been met. The 3rd demand is more complex. It must be established that Jameel’s carelessness was engaged in while he was in the class of his employment with Freddy Hobart Ltd. If this demand is non met, so Freddy Hobart Ltd will non be vicariously apt but Jameel will be personally apt in regard of Flora as was shown inBeardVLondon General Omnibus Co[ 4 ] .
There are two trials used by the tribunal to find if the 3rd demand has been met ; viz. , the Salmond trial as established in Salmond’sLaw of Torts[ 5 ] and the ‘close connection’ trial as established inListerVHesley Hall Ltd[ 6 ] . Where the civil wrong is committed deliberately, the latter trial is preferred. However as we are covering with carelessness, we will see both trials. Under the Salmond trial, the 3rd demand will be met if the tortious act was either a unlawful act authorised by the employer or a unlawful and unauthorized manner of making some act authorised by the employer [ 7 ] . Jameel’s act of carelessness will non come within the first portion of the Salmond trial but it could come within the 2nd portion. He is authorised to drive the lorry to do bringings. The job which arises is that alternatively of being accompanied by another company driver, he took his niece, Flora with him. He furthermore drove for seven hours without a interruption despite holding company ordinances which clearly states that company drivers should jump driving displacements of no more than four hours each. InCentury Insurance CoVNorthern Ireland Road Transport Board[ 8 ] , it was held that the fact that an employee was making his occupation negligently does non needfully take him outside the class of his employment. Again the tribunal will analyze all the fortunes. As noted inCooke, an employer may be vicariously apt for an act if the prohibition applies to the manner that the occupation is done, instead than the range of the occupation itself. Similarly in the present scenario, company ordinances merely mentioned about the manner long draw bringings is to be carried out. The range of the occupation was still the same – devising bringings. InLimpusVLondon General Omnibus[ 9 ] , the tribunal stated that a coach driver is within the range of his employment when he races other coachs even if he is purely prohibited from making so. However in the present scenario, Jameel was non merely traveling about his work. He besides planned to see Scotland with his niece. An of import inquiry that arises here is whether or non this act would amount to a ‘frolic’ of Jameel’s that takes him outside the class of his employment. This will be to a great extent dependent upon the facts of the instance. InFloorVAshton[ 10 ] , an employer was non held apt when the driver completed his work and so went to see a comparative. This was a new journey which had nil to make with the employment [ 11 ] . Other instances involved in plaies are Harvey v RG O’Dell [ 12 ] , Hilton v Thomas Burton Ltd [ 13 ] . Similarly, if we apply this rule to our current scenario, it is likely that the tribunal respects Jameel’s journey with his niece as being an independent one outside his class of employment. If such is the instance, so Freddy Hobart Ltd is really likely to get away liability in regard of Flora.
The 2nd limb of the trial has been rejected by the House of Lords inLister.Modern instance jurisprudence suggests that the 2nd portion of the Salmond trial may necessitate to be modified to a close connexion trial. The close connexion trial asks whether or non the civil wrong was so closely connected with the employee’s employment, that it would be just and merely to keep the employer vicariously apt. Again all the facts are relevant. If Jameel’s contract of work provides that the lorry is merely to be used for work-related concern, so one might reason that he was non moving within the class of his employment. Finally the tribunal might experience that there was no sufficient intimacy between the employment in inquiry and the civil wrong in order to enforce liability on Freddy Hobart Ltd.
- If Jameel had been accompanied by Barney, so Freddy Hobart Ltd could be vicariously apt for Jameel’s carelessness since unlike with Flora, there would hold been no ‘frolic’ this clip. He would hold been moving in the class of his employment when the civil wrong occurred and therefore the three demands for vicarious liability would hold been satisfied. As noted inCooke, an employer may be vicariously apt for the carelessness of an employee which leads to the claimant employee being injured. The employer’s liability here is rigorous. Unlike the instance with Flora, Freddy Hobart Ltd besides owes a personal responsibility of attention towards Barney since he is their employee. InHarriet wilsons and Clyde Coal[ 14 ] , the tribunal stated that this responsibility is ‘non-delegable’- the employer must supply a competent staff, equal stuff, a proper system and effectual supervising. In the present scenario, we are non given sufficient information on the experience of Jameel as a driver. Freddy Hobart Ltd may be personally apt in regard of Barney if Jameel is judged as non being sufficiently experienced and Barney is injured as a consequence. However, one might besides reason that since Barney is a fellow driver, should he non hold taken the wheel after the four hours. In that state of affairs, it is up to the tribunal to make up one’s mind whether it is just and merely to enforce liability on Freddy Hobart Ltd since it was partially because of Barney’s mistake that the civil wrong occurred.