Case law update: Vicarious liability

2011 ◽  
Vol 31 (1) ◽  
pp. 42-49
Author(s):  
John C. West
Keyword(s):  
Case Law ◽  
Vicarious Liability

Commercial Law

2017 ◽  
Author(s):  
M A Clarke ◽  
R J A Hooley ◽  
R J C Munday ◽  
L S Sealy ◽  
A M Tettenborn ◽  
...  
Keyword(s):  
Case Law ◽  
Commercial Law ◽  
Trade Finance ◽  
Vicarious Liability ◽  
Personal Property ◽  
Consumer Rights ◽  
Modern Slavery ◽  
Bankruptcy Procedure ◽  
The Impact ◽  
Academic Debate

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This new edition includes discussion of new legislation, including: Consumer Rights Act 2015; Insurance Act 2015; Modern Slavery Act 2015; Small Business, Enterprise and Employment Act 2015; Third Parties (Rights against Insurers) Act 2010; Bribery Act 2010; Payment Services Regulations 2009. The text also has analysis of the latest developments in case law, including: Armstrong DLW GmbH v Winnington Networks Ltd and Devani v Republic of Kenya (on personal property law); Mohamud v WM Morrison Supermarkets plc (on vicarious liability); Kelly v Fraser and Thanakharn Kasikorn Thai Chamkat (Mahachon) v Akai Holdings Ltd (on apparent authority); Sinclair Investments (UK) Ltd v Versailles Trade Finance Ltd and European Ventures LLP v Cedar Capital Partners LLC (on agent's secret profits); Bailey v Angove's Pty Ltd (on irrevocable agencies); Cukurova Finance International v Alfa Telecom Turkey Ltd, Gray v G-T-P Group Ltd, and USA v Nolan (on the Financial Collateral Arrangements, No 2, Regulations). The book contains a new introductory section on the impact of Brexit on English commercial law. Insolvency coverage includes discussion of new out-of-court bankruptcy procedure, debt relief orders, and pre-pack administrations.

scholarly journals EMPLOYERS’ STATUTORY VICARIOUS LIABILITY IN TERMS OF THE PROTECTION OF PERSONAL INFORMATION ACT

2016 ◽  
Vol 19 ◽  
pp. 1
Author(s):  
Daleen Millard ◽  
Eugene Gustav Bascerano
Keyword(s):  
Personal Information ◽  
Common Law ◽  
Case Law ◽  
Employment Equity ◽  
Vicarious Liability ◽  
The Common ◽  
The Right ◽  
The Impact ◽  
Data Subject ◽  
Responsible Party

A person whose privacy has been infringed through the unlawful, culpable processing of his or her personal information can sue the infringer’s employer based on vicarious liability or institute action based on the Protection of Personal Information Act 4 of 2013 (POPI). Section 99(1) of POPI provides a person (“data subject”), whose privacy has been infringed, with the right to institute a civil action against the responsible party. POPI defines the responsible party as the person who determines the purpose of and means for processing of personal information of data subjects. Although POPI does not equate a responsible party to an employer, the term “responsible party” is undoubtedly a synonym for “employer” in this context. By holding an employer accountable for its employees’ unlawful processing of a data subject’s personal information, POPI creates a form of statutory vicarious liability.Since the defences available to an employer at common law, and developed by case law, differs from the statutory defences available to an employer in terms of POPI, it is necessary to compare the impact this new statute has on employers. From a risk perspective, employers must be aware of the serious implications of POPI. The question that arises is whether the Act does not perhaps take matters too far.This article takes a critical look at the statutory defences available to an employer in vindication of a vicarious liability action brought by a data subject in terms of section 99(1) of POPI. It compares the defences found in section 99(2) of POPI and the common-law defences available to an employer fending off a delictual claim founded on the doctrine of vicarious liability. To support the argument that the statutory vicarious liability created by POPI is is too harsh, the defences contained in section 99(2) of POPI is further analogised with those available to an employer in terms of section 60(4) of the Employment Equity Act 55 of 1998 (EEA) and other comparable foreign data protection statutes. 

scholarly journals ‘Not My Employee, Not My Liability’

2021 ◽  
Vol 32 (1) ◽  
pp. 25-49
Author(s):  
Carrie De Silva
Keyword(s):  
Supreme Court ◽  
Practical Interest ◽  
Case Law ◽  
The Body ◽  
Legal Principles ◽  
Vicarious Liability ◽  
The Supreme Court ◽  
Potential Impact ◽  
The Law ◽  
Court Of Appeal

In April 2020, the Supreme Court in WM Morrison Supermarkets plc v Various Claimants [2020] and Barclays Bank plc v Various Claimants [2020] overturned the decisions of the Court of Appeal in applying the law regarding vicarious liability of employees and others (and deciding in both cases that the defendant companies were not liable for the acts in question). The scope of responsibilities which the employment relationship brings, together with an awareness among many businesses of the classification worker, along with the more familiar employed/self-employed status, makes an examination of the outcomes and potential impact of these cases of wide, practical interest for those running businesses, large or small. The review concluded that there had been no dramatic change in the law but that the cases provide a measure of comfort to employers in something of a common-sense view being taken as to the scope of vicarious liability. They also add to the body of case law, helping to ensure that future issues can more clearly be reasoned out of court, with the detailed steer on the application of legal principles which a Supreme Court judgment provides.

The jurisdiction of the European Court of Human Rights and the case of O’Keeffe v. Hickey

2017 ◽  
Author(s):  
Justice Adrian Hardiman
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Legal System ◽  
Case Law ◽  
European Convention ◽  
The Political ◽  
State Responsibility ◽  
High Court ◽  
Vicarious Liability ◽  
European Court

The chapter of Mr. Justice Adrian Hardiman positions the European Convention on Human Rights in the context of the Irish domestic legal system and highlights the political motivations behind the decision to give effect to the Convention in Irish law at a sub-constitutional and interpretive level. The chapter argues that the the principle of subsidiarity is under threat in the decision in O’Keeffe, where, in his view, the Strasbourg Court dramatically expanded its jurisdiction and encroached upon national sovereignty. Mr. Justice Hardiman is particularly concerned that the Strasbourg court entertained a claim that was not presented in the High Court or Supreme Court and that the judgment appeared to merge O’Keeffe’s claims under direct State responsibility and vicarious liability. He argues that this reflects a departure from prior case law for the ECtHR. Mr. Justice Hardiman’s second concern centres on the use by the court of language of ‘objective’, ‘core objective’ and ‘core grievance’, suggesting that use of these terms implies that, at the discretion of the ECtHR, the simple word ‘all’ may mean ‘some’ or even ‘at least one’.

Tort Law: Text and Materials

2017 ◽  
Author(s):  
Mark Lunney ◽  
Donal Nolan ◽  
Ken Oliphant
Keyword(s):  
Product Liability ◽  
Economic Loss ◽  
Tort Law ◽  
Case Law ◽  
Duty Of Care ◽  
Vicarious Liability ◽  
Statutory Duty ◽  
The Subject ◽  
Specific Duty ◽  
Selection Of

Tort Law: Text and Materials brings together a selection of carefully chosen extracts from cases and materials, with extensive commentary. Each section begins with a clear overview of the law, followed by illustrative extracts from case law and from government reports and scholarly literature, which are supported by explanation and analysis. The authors start by introducing the subject, and then examine intentional interference with the person before moving on to liability for negligence. Their analysis provides an overview of negligence liability in general, and then addresses in turn breach of duty, causation and remoteness, defences to negligence, and specific duty of care issues (psychiatric illness, economic loss, omissions and acts of third parties, and public bodies). In the following chapter, the authors consider the special liability regimes for employers and occupiers, as well as product liability and breach of statutory duty. The focus then switches to nuisance and the rule in Rylands v Fletcher, defamation, and privacy, before turning to vicarious liability, and damages for personal injury and death. Finally, they explore how tort works in practice.

scholarly journals ANALYSING INSTITUTIONAL LIABILITY FOR CHILD SEXUAL ABUSE IN ENGLAND AND WALES AND AUSTRALIA: VICARIOUS LIABILITY, NON-DELEGABLE DUTIES AND STATUTORY INTERVENTION

2018 ◽  
Vol 77 (3) ◽  
pp. 506-535 ◽  
Author(s):  
Paula Giliker
Keyword(s):  
Sexual Abuse ◽  
Child Sexual Abuse ◽  
Best Practice ◽  
Case Law ◽  
Royal Commission ◽  
England And Wales ◽  
Vicarious Liability ◽  
Institutional Responses ◽  
Institutional Liability ◽  
The Uk

AbstractThis paper will argue that, in the light of recent case law in the UK and Australia, a new approach is needed when dealing with claims for vicarious liability and non-delegable duties in the law of tort. It will submit that lessons can be learnt from a comparative study of these jurisdictions, notably by reflecting on the courts’ treatment of claims of institutional liability for child sexual abuse. In parallel to decisions of their highest courts, public enquiries in Australia and England and Wales, established to report on historic child sexual abuse and how to engage in best practice, are now reporting their findings which include proposals for victim reparation: see Royal Commission into Institutional Responses to Child Sexual Abuse (Australia, 2017) including its Redress and Civil Litigation Report (2015); Independent Inquiry into Child Sexual Abuse (Interim report, England and Wales, 2018). The Australian reports suggest reforms not only to state practice, but also to private law. This article will critically examine the operation of vicarious liability and non-delegable duties in England and Wales and Australia and proposals for statutory intervention. It will submit that a more cautious incremental approach is needed to control the ever-expanding doctrine of vicarious liability in UK law and to develop more fully its more restrictive Australian counterpart.

Marine pilotage in Namibia

2021 ◽  
Vol 2021 ◽  
pp. 147-173
Author(s):  
Abisai Konstantinus
Keyword(s):  
Best Practices ◽  
Case Law ◽  
International Standards ◽  
Vicarious Liability ◽  
Regional Logistics ◽  
Pilot Error ◽  
Strategic Goal

As Namibia implements the strategy of expanding its ports to achieve the strategic goal of becoming the regional logistics hub of choice, a clear and urgent need exists to upskill pilots. To that end, this article examines the Namibian law on pilotage in three areas: (i) the master– pilot relationship; (ii) the vicarious liability for pilot error; and (iii) the standards of training and certification of pilots. It does so having regard to case law, best practices of leading maritime nations and international standards. The article ends by recommending the urgent revision of the primary legislation and the regulations that govern the Namibian Ports Authority.

scholarly journals Vicarious Liability in Groups of Companies and in Supply Chains - Is Competition Law Leading the Way?

2020 ◽  
Vol 3 (2) ◽  
pp. 107-129
Author(s):  
Vibe Ulfbeck
Keyword(s):  
Supply Chain ◽  
Competition Law ◽  
Civil Liability ◽  
Case Law ◽  
Parent Company ◽  
Recent Case ◽  
Environmental Damage ◽  
Vicarious Liability ◽  
The Law ◽  
Parent Companies

The article discusses the concept of vicarious liability in the area of competition law. It argues that this concept is to some extent embedded in the concept of the undertaking under competition law with the consequence that parent companies – under certain conditions – can be held liable for competition law infringements committed by subsidiaries. The liability can be termed “vicarious” because it is imposed regardless of whether the parent company was involved in or ought to have had any knowledge of the competition law infringements committed by the subsidiary. Whereas such liability has until recently only been imposed for administrative fines, the Skanska decision changes this. Following this decision it must be assumed that parent companies can also be held vicariously liable for civil liability incurred by a subsidiary. It is pointed out that it is a separate question whether the Akzo-presumption rule, established with regard to the imposition of fines for competition law infringements, can also be applied in a pure civil liability case concerning parental liability. Next, the article discusses whether the results reached in the area of competition law can be transferred to other areas of the law. In this regard, the article analyses recent case law with regard to parental liability for workers’ injuries and environmental damage and compares these areas of the law to competition law. Finally, the article discusses whether the concept of the undertaking can be extended to apply also in situations where companies are not tied by ownership but by contract. In this regard the article focuses on the (possibly) emerging concept of supply chain liability.

The AMA Guides in Pennsylvania “Post-Protz”: Act 111 and Case Law Update

2020 ◽  
Vol 25 (3) ◽  
pp. 12-19
Author(s):  
Justin D. Beck ◽  
Judge David B. Torrey
Keyword(s):  
Case Law ◽  
General Assembly ◽  
Disability Benefits ◽  
Permanent Disability ◽  
Sixth Edition ◽  
Legal Questions ◽  
The Supreme Court ◽  
Recent Edition ◽  
Impairment Ratings

Abstract Medical evaluators must understand the context for the impairment assessments they perform. This article exemplifies issues that arise based on the role of impairment ratings and what edition of the AMA Guides to the Impairment of Permanent Impairment (AMA Guides) is used. This discussion also raises interesting legal questions related to retroactivity, applicability of prior precedent, and delegation. On June 20, 2017, the Supreme Court of Pennsylvania handed down its decision, Protz v. WCAB (Derry Area Sch. Dist.), which disallows use of the “most recent edition” of the AMA Guides when determining partial disability entitlement under the Pennsylvania Workers’ Compensation Act. An attempted solution was passed by the Pennsylvania General Assembly and was signed into law Act 111 on October 24, 2018. Although it affirms that the AMA Guides, Sixth Edition, must be used for impairment ratings, the law reduces the threshold for total disability benefits from 50% to 35% impairment. This legislative adjustment benefited injured workers but sparked additional litigation about whether, when, and how the adjustment should be applied (excerpts from the laws and decisions discussed by the authors are included at the end of the article). In using impairment as a threshold for permanent disability benefits, evaluators must distinguish between impairment and disability and determine an appropriate threshold; they also must be aware of the compensation and adjudication process and of the jurisdictions in which they practice.

Shoulder Pain at Work: Causation Analysis

2017 ◽  
Vol 22 (1) ◽  
pp. 11-16
Author(s):  
Joel Weddington ◽  
Charles N. Brooks ◽  
Mark Melhorn ◽  
Christopher R. Brigham
Keyword(s):  
Epidemiological Data ◽  
Case Law ◽  
Individual Case ◽  
Shoulder Injury ◽  
Work Related ◽  
Clear Cut ◽  
The Individual ◽  
Causation Analysis ◽  
Injury Causation ◽  
Relevant Factors

Abstract In most cases of shoulder injury at work, causation analysis is not clear-cut and requires detailed, thoughtful, and time-consuming causation analysis; traditionally, physicians have approached this in a cursory manner, often presenting their findings as an opinion. An established method of causation analysis using six steps is outlined in the American College of Occupational and Environmental Medicine Guidelines and in the AMA Guides to the Evaluation of Disease and Injury Causation, Second Edition, as follows: 1) collect evidence of disease; 2) collect epidemiological data; 3) collect evidence of exposure; 4) collect other relevant factors; 5) evaluate the validity of the evidence; and 6) write a report with evaluation and conclusions. Evaluators also should recognize that thresholds for causation vary by state and are based on specific statutes or case law. Three cases illustrate evidence-based causation analysis using the six steps and illustrate how examiners can form well-founded opinions about whether a given condition is work related, nonoccupational, or some combination of these. An evaluator's causal conclusions should be rational, should be consistent with the facts of the individual case and medical literature, and should cite pertinent references. The opinion should be stated “to a reasonable degree of medical probability,” on a “more-probable-than-not” basis, or using a suitable phrase that meets the legal threshold in the applicable jurisdiction.

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