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Date:
Fri, 8 Oct 2004 19:37:11 +0100 (BST)
From:
Robert Stevens
Subject:
Vicarious liability for intentional torts
1)
For myself, I have always thought that in Morris v Martin
the non-delegable duty arising from the bailment explains the result.
If the damage had been caused by an independent contractor the result
should be the same. The claim is in bailment. You cannot bail boys.
I have some sympathy with the idea that every time I have assumed
that care for you will be taken I will be liable if it is not, even
if the person who is careless is not me nor anyone I am vicariously
liable for. That explanation of Lister
is not adopted in Bernard
or Mattis.
2)
On Bernard,
the Salmond test is pretty open textured and I can see how, at a
pinch, a policeman's shouting 'police' and shooting you whilst he
is off duty can be seen as a "wrongful mode of an authorised act."
A stretch though.
3)
On Mattis,
the CA hold the club VL so why the 'other way'?
R
In
message <4169A04D@minerva2.ex.ac.uk> Andrew Tettenborn writes:
Call
me uninspired, but I must admit that I've never been convinced
that Lister
or any subsequent case would have been decided differently under
the old Salmond test of whether the tortfeasor was doing what
he was hired to do. Take Lister. Well before that case
it was clear that if my employee is employed to look after your
coat and steals it he will make me liable (Morris v Martin).
Is there any real difference between that and the case where my
employee is employed to look after a boy and takes the opportunity
to brutalise him? I can't see it. Or Bernard:
policemen are always in a sense on duty, and when one of them
demands use of a telephone qua policeman, surely it's not difficult
to say he's acting in the course of his employment, just like
an off-duty constable who shows his warrant card, and then arrests
and beats up an innocent citizen. And again with Mattis,
though this went the other way. When the court stressed the break
between the bouncer's doorkeeping activities and his stabbing
of the claimant, isn't this really the same thing as saying the
stabbing wasn't malpractice in the course of doorkeeping?
Plus
ca change, plus c'est la meme chose?
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