In Brink's (which is here
http://www.bailii.org/ew/cases/EWCA/Civ/2010/1207.html ) the relationship
wasn't just "pretty close to a bailment relationship" there was a bailment
relationship.

Brink's are employed by the owners to carry some silver to India. Brink's
(apostrophe in original) employ a carrier (Hyundai) who employ Thamesport
who employ the defendants Ignox to fumigate the pallets. It was found
(correctly, probably) that there was no contractual relationship between
claimant and defendant. However, it is basic that a sub-bailee assumes a
duty towards the head bailee in cases like this. The duty which arises in
bailment comes from the voluntary assumption of responsibility in relation
to the goods. The duty assumed is that care will be taken of the goods,
not that the defendant will be personally careful. When the goods are
stolen by someone so that this duty is breached it is consequently
irrelevant whether that person is acting in the course of his employment.
It would similarly be irrelevant if the theft had been carried out by an
independent contractor the defendants had employed.

This is a case of a non-delegable duty and it is jaw dropping that no
member of the Court of Appeal, or indeed counsel, seem to have taken this
point. Moore-Bick even draws on Palmer on Bailment to support his
conclusion, although that book is about duties arising in bailment
(unsurprisingly).

The root of the mistake is Lister v Hesley Hall (and before that the
decisions of the Supreme Court of Canada relied on there). One problem
with the mistake made is that it makes no difference in those cases which
would be decided in the same way regardless of the basis of liability, but
rather that the expansion of vicarious liability has bled into those cases
where there is no assumption of responsibility by the defendant.


Another problem is that it is now beginning to be thought that even those
cases where the defendant has assumed a non-delegable duty towards the
claimant that this is something to do with vicarious liability. So,
schools assume responsibility towards pupils they admit, a duty which is
non-delegable. In the Catholic Welfare case (here
http://www.bailii.org/ew/cases/EWCA/Civ/2010/1106.html ) the defendants
supplied some teachers but didn't run the school. The correct question is
asked and answered: "the Institute had not undertaken a duty of caring for
the pupils at St William's and then delegated or entrusted it to the
brother-teachers" (Hughes LJ [57]) but that is nothing to do with
vicarious liability properly so-called, it concerns whether the defendants
are in breach of a duty they have assumed, not whether the wrongful
actions of another can be attributed to them.

It is as if some type of collective amnesia has gripped the courts.
R


> Dear Colin and colleagues;
> Thanks very much for noting these. I am particularly interested in the
> vicarious liability decisions.
>
> In Brink's the question is that of VL for the tort of conversion
> committed by an employee. The company Igrox were engaged to fumigate a
> container intended for overseas shipment, containing silver bars. One
> of their employees took the opportunity created when the container was
> supposed to be fumigated to steal some of the bars. The court
> considers the application of the principles concerning VL for
> intentional torts which have developed since Lister v Hesley Hall and
> holds that the company was liable for the theft committed by the
> employee. In doing so they say that a previous decision, Heasmans v
> Clarity Cleaning Co. Ltd [1987] I.C.R. 949 (where a cleaning company
> was found not liable for the cost of expensive overseas phone calls
> made from an office by one of its cleaners) would probably be decided
> differently today.
> I personally think one of the most helpful discussions of the scope of
> VL for intentional torts in recent years is that of Paula
> Giliker in “Making the right connection: Vicarious liability and
> institutional responsibility” (2009) 17 Torts Law Jnl 35-54. She
> suggests that there should be VL only where an "employee is entrusted
> to protect the employer’s property, customers, employees, or specific
> individuals for whom the employer has taken responsibility" (at
> 53-54). While this case is not precisely in that category I think it
> is sufficiently close for her analysis to support the decision. I am
> less sure that Heasmans should have been over-ruled, as while it seems
> arguable that being entrusted with someone's goods for fumigation
> purposes is pretty close to a bailment relationship, sending someone
> to clean a building does not really give authority over their
> telephones.
> Those interested in such matters should also consult the South
> Australian Full Court decision in Ffrench v Sestili [2007] SASC 241.
> Ms Sestili ran a personal carer's service for disabled persons; Ms
> Ffrench was unable to care for herself, and a Ms Brown was engaged by
> Sestili to look after her. Having been given access to Ms Ffrench's
> ATM card for shopping, Ms Brown managed to steal some $35,000 over
> some months (by taking it in chunks out of ATM's). Sestili as the
> employer of Brown was found vicariously liable for the theft.
>
> In the Catholic Child Welfare case the issue was whether the De La
> Salle Institute was vicariously liable for acts of sexual assault
> carried out by De La Salle brothers who were employed (by another
> body) as teachers. The court decides that the Institute were not
> liable, as they were not the employers of the brothers (despite having
> a strong influence over their lifestyle and appointment and other
> issues.) I think this seems like a sensible result- as the court
> argues it would be a big step to extend liability to "unincorporated
> associations" generally for actions of their members. (In the
> litigation the actual employers of the teachers had accepted that they
> were liable.) It is notable that the court refers at [45] and [73] to
> the finding in Viasystems that there can be "joint" vicarious
> liability apparently on the basis of "joint" employment, but since
> they rule against VL on the basis of no employment relationship they
> do not apply it. My own view, as long time ODG members will know, is
> that Viasystems is wrong on this point (as far as I am aware it has
> never actually been followed on this precise point since it was
> decided, even in the UK.)
>
> Regards
> Neil
>
> On 28/10/2010, at 12:47 AM, Colin Liew wrote:
>
>> Dear all,
>>
>> Members may be interested in three new judgments from the higher
>> courts in the UK:
>>
>> In TMT Asia Limited and others v Oceanbulk Shipping and Trading SA
>> [2010] UKSC 44, the Supreme Court has decided that pre-contractual
>> negotiations that are agreed to be "without prejudice" may
>> nonetheless be admitted into evidence and used by a trial judge in
>> order to construe the contract.
>>
>> I have not had an opportunity to read them yet, but the English
>> Court of Appeal has released two judgments concerning vicarious
>> liability: Brink's Global Services Inc and others v Igrox Limited
>> and another [2010] EWCA Civ 1207 and Various Claimants v The
>> Catholic Child Welfare Society and others [2010] EWCA Civ 1106.
>>
>> Kind regards,
>> Colin
>
> Neil Foster
> Senior Lecturer, LLB Program Convenor,
> Newcastle Law School Faculty of Business & Law
> MC158, McMullin Building
> University of Newcastle Callaghan NSW 2308 AUSTRALIA
> ph 02 4921 7430 fax 02 4921 6931
> http://www.newcastle.edu.au/staff/profile/neil.foster.html
> http://works.bepress.com/neil_foster/
>
>
>
>
>
>


--
Robert Stevens
Professor of Commercial Law
University College London