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Vicarious Liability - From: 1980 To: 1984
This page lists 5 cases, and was prepared on 02 April 2018.
John Hudson v Oaten Unreported, 19 June 1980
19 Jun 1980
CA
Oliver LJ
Contract, Vicarious Liability, Torts - Other
The plaintiff sought to avoid the 1828 Act (Lord Tenterden's Act). Lakeview, had agreed to buy a substantial quantity of oil from them but was never in a position to do so. The plaintiffs sought their loss from the defendant, Mr. Oaten, and not Lakeview. Held: The mere fact of entering into a contract imports an implied representation of a genuine intention to pay the contract price and, secondly the entry into the contract having been procured by the defendant, he is liable for the representation thus employed. Both propositions are true. The second proposition, while it may be an adequate description of the consequences of procurement, contains in itself no analysis of the grounds upon which the assumed liability rests. Apart from the tort of conspiracy--and there is no question of that in this case--there is no separate tort of procuring as such. A man who procures the commission by another person of a tortious act becomes liable because he then becomes a principal in the commission of the act. It is his tort but once one gets to that it seems to me that the fallacy of Mr. Crawford's argument becomes apparent. The tort alleged here is the implied false representation of Lakeview's intention to pay, and when one seeks to fasten that onto the defendant as a principal it is at once clear that it is not, so far as he is concerned, a representation as to his own intention, for he made none. The representation for which he is assumed to be liable is the representation of Lakeview's intention.
Oliver LJ: "Every promisor impliedly represents that he has at the moment of making the promise the intention of fulfilling the obligations that he has undertaken and if it can be shown that no such intention existed in his mind, at that moment he is guilty of a misrepresentation."
Statute of Frauds (Amendment) Act 1828 6
1 Citers
In Re Nelson and Others v Byron Price and Associates Ltd; 1981 - (1981) 122 DLR (3d) 340
Kooragang Investments Pty Ltd v Richardson and Wrench Ltd [1982] AC 471; [1981] UKPC 30
27 Jul 1981
PC
Lord Wilberforce
Vicarious Liability
(New South Wales) An employee of the defendants was authorised to carry out valuations, but he negligently carried out an unauthorised private valuation. Held: In doing so he was not acting as an employee of the defendant company. The company was not liable for his wrongful acts. The House rejected the broad proposition that so long as the employee is doing acts of the same kind as those it is within his authority to do, the employer is liable and he is not entitled to show the employee had no authority to do them. Lord Wilberforce said: "the underlying principle remains that a servant, even while performing acts of the class which he was authorised, or employed, to do, may so clearly depart from the scope of his employment that his master will not be liable for his wrongful acts.'
1 Citers
[ Bailii ]
Nahhas v Pier House (Cheyne Walk) Management Ltd; 1984 - [1984] 1 EGLR 160; (1984) 270 EG 328
Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672; (1984) 55 ALR 225; (1984) 58 ALJR 531; (1984) Aust Torts Reports 80-311
16 Oct 1984
Mason J
Commonwealth, Vicarious Liability
(High Court of Australia) Mason J discussed the concept of the personal duty which Lord Wright expounded in Wilson and said that it made it impossible to draw a convincing distinction between the delegation of performance of the employer's duty to an employee and delegation to an independent contractor. As Mason J said: "On the hypothesis that the duty is personal or incapable of delegation, the employer is liable for its negligent performance, whether the performance be that of an employee or that of an independent contractor" and as to the existence of a non-delegable duty: "when we look to the classes of case in which the existence of a non-delegable duty has been recognised, it appears that there is some element in the relationship between the parties that makes it appropriate to impose on the defendant a duty to ensure that reasonable care and skill is taken for the safety of the persons to whom the duty is owed . . The element in the relationship between the parties which generates a special responsibility or duty to see that care is taken may be found in one or more of several circumstances. The hospital undertakes the care, supervision and control of patients who are in special need of care. The school authority undertakes like special responsibilities in relation to the children whom it accepts into its care. If the invitor be subject to a special duty, it is because he assumes a particular responsibility in relation to the safety of his premises and the safety of his invitee by inviting him to enter them . . In these situations the special duty arises because the person on whom it is imposed has undertaken the care, supervision or control of the person or property of another or is so placed in relation to that person or his property as to assume a particular responsibility for his or its safety, in circumstances where the person affected might reasonably expect that due care will be exercised."
1 Cites
1 Citers
[ Austlii ]