Re-posting, as my initial email did not go through - apologies for any duplication.

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However, the problem, I think, with the minority’s reasoning is that the inquiry cannot stop there. If an inconsistency between, e.g., the policy behind the criminal law and tort law attracts the additional Patel criteria - i.e. are there any countervailing considerations in favouring of permitting the claim, would it be ‘disproportionate’ to deny the claim? - then these additional criteria should also apply to the inconsistency in question in XX. Whenever private law rights are sought to be curtailed by inconsistency with the policy of other area of law, why not build in the additional Patel criteria? It’s not obvious, to me at least, why we should be less concerned by restriction of private law rights by the policies of other areas of law than the criminal law. Private law rights, at least many of them, are, well, important, and their curtailment by other areas of law needs careful consideration. 

That said, even with those additional criteria, the minority’s conclusion in XX might be correct. For instance, consider the issue of ‘proportionality’. Proportionality normally refers to a relationship between means and ends.  Don’t use a sledge-hammer to crack a nut, if you have a nut-cracker. In this context: is there some less harmful/less-right-infringing means of achieving the relevant goal than the one proposed (i.e. achieving consistency in the law)? If that’s what proportionality means (?), it’s hard to see how the goal of consistency between the surrogacy law and tort damages could be achieved by the court in some other way than denying the tort claim (giving partial damages seems rather arbitrary). The issue would turn, then, on one’s view about the second limb of the Patel criteria. 

All the best

Sandy

On 1 Apr 2020, at 12:43, Craig Purshouse <C.J.Purshouse@leeds.ac.uk> wrote:

Well this is something to take our minds off Covid-19! 

I suppose that the courts had to say 'thus far and no further' at some point with vicarious liability but I agree with Jamie that it is hard to see how this Morrisons case is consistent with Mohamud. The 'closeness of connection' element will descend (further) into palm tree justice after this. Barclays seems correct to me.

The majority judgment in Whittington is incoherent on the commercial surrogacy issue and barely engages with the (sensible) reasoning of the minority. 

Consider para 53:

‘Added to that are all the other developments which have taken place since the decision in Briody. The courts have bent over backwards to recognise the relationships created by surrogacy, including foreign commercial surrogacy. The government now supports surrogacy as a valid way of creating family relationships, although there are no plans to allow commercial surrogacy agencies to operate here. The use of assisted reproduction techniques is now widespread and socially acceptable. The Law Commissions have provisionally proposed a new pathway for surrogacy which, if accepted, would enable the child to be recognised as the child of the commissioning parents from birth, thus bringing the law closer to the Californian model, but with greater safeguards. While the risks of exploitation and commodification are heightened in commercial surrogacy, they are not thought an insuperable ethical barrier to properly regulated arrangements.’

The courts have bent over backwards to recognise the relationships created by surrogacy, including foreign commercial surrogacy.

This is in order to protect the welfare of existing children, not in order to create them.

The government now supports surrogacy as a valid way of creating family relationships, although there are no plans to allow commercial surrogacy agencies to operate here.

And…? The government supported prorogation before Christmas but, unless I am suffering from amnesia, Lady Hale seemed to think that was neither here nor there in Cherry/Miller No 2. Why is it relevant here? In any event, we are concerned with commercial surrogacy not surrogacy tout court.

The use of assisted reproduction techniques is now widespread and socially acceptable.IVF is not the same as commercial surrogacy so this is neither here nor there. The Law Commissions have provisionally proposed a new pathway for surrogacy which, if accepted, would enable the child to be recognised as the child of the commissioning parents from birth, thus bringing the law closer to the Californian model, but with greater safeguards.

Irrelevant. The law has not (yet) been changed and the Law Commission will be amending their proposals based on their consultation. 

While the risks of exploitation and commodification are heightened in commercial surrogacy, they are not thought an insuperable ethical barrier to properly regulated arrangements.

Ethical according to whom? 

I can understand the sympathy with the claimant (and think she should have been able to claim for the costs of a domestic arrangement and for PSLA etc) and the dislike of the Surrogacy Arrangements Act 1985 but this judgment is a mess and completely inconsistent with the statutory policy regulating surrogacy in this country. What a shame that this was Lady Hale's final case - her reasoning in Briody was far superior. 

Best wishes,

Craig

Dr Craig Purshouse

Lecturer in Law

1.24 The Liberty Building

University of Leeds, LS2 9JT

T: (0113) 343 5050

---

From: Eoin.Quill <Eoin.Quill@ul.ie>
Sent: Wednesday, April 1, 2020 10:40 AM
To: james.lee@kcl.ac.uk <james.lee@kcl.ac.uk>; obligations@uwo.ca <obligations@uwo.ca>
Subject: Re: Three Tort Cases from the UKSC

 

Thanks James, on a related point, the Irish Supreme Court recently handed down a judgment on vicarious liability & non-delegable duty - Morrissey v Health Service Executive  [2020] IESC 6, available at

https://www.bailii.org/ie/cases/IESC/2020/2020IESC6_0.html

The case involved Labs failing to properly diagnose cervical cancer. The gist of the decision is the HSE are not vicariously liable for independent Labs, but do owe patients a NDD and so, are liable for the Labs' negligence. It also deals with standard of care - a requirement of near certainty before giving the all clear arises from normal medical practice in the area and not from any change in the legal test.

The case also clarifies that the current cap for general damages for non-pecuniary loss for catastrophic personal injury is €500,000 (courts had been using €450K, but this had been flagged as incorrect by the IEHC in some previous cases). This cap may be revised if we get a major recession on the back of Covid19 (since the recession following the 2008 world economic melt-down brought the 450K figure).

Covid has already offered numerous tort possibilities; this is just one more (& probably less obvious) - the teaching possibilities abound (should we survive to babble torts again)

Hope all are keeping safe & well,

Eoin Quill

School of Law

University of Limerick

 

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From: james.lee@kcl.ac.uk <james.lee@kcl.ac.uk>
Sent: 01 April 2020 10:18
To: obligations@uwo.ca <obligations@uwo.ca>
Subject: Three Tort Cases from the UKSC

 

EXTERNAL EMAIL: This email originated from outside of the University of Limerick. Do not click on links or open attachments unless you recognize the sender's email address and know the content is safe.

Dear Colleagues,

 

Today, the UK Supreme Court has remotely handed down judgment in three significant cases on tort. Two clarifying/revising/changing the approach to vicarious liability and one on public policy and damages in negligence.

 

In XX v Whittington Hospital NHS Trust https://www.supremecourt.uk/cases/docs/uksc-2019-0013-judgment.pdf. the defendant hospital negligently failed to diagnose signs of cancer in the claimant. Her subsequent treatment for cancer left her infertile. The claimant sought to recover as damages the cost of commercial surrogacy arrangements in the United States. Commercial surrogacy arrangements are unlawful in the United Kingdom. The Court of Appeal held (broadly) that these costs were recoverable. The Supreme Court by a majority holds that the relevant costs can be recovered – commissioning such arrangements abroad itself is not illegal in the UK. Lord Carnwath and Lord Reed dissent. There is some interesting discussion of the relevance of public policy which is of wider significance.

 

Then the other two cases– as noted on this list before, the Supreme Court has in several decisions this decade significantly expanded the scope of vicarious liability. (As it happens, two key 2016 decisions, Cox and Mohamud, were also handed down on the same day as each other). The Court again decides on case on the relevant relationship and one on whether the tort was sufficiently closely connected to the employment. The Court has rowed back significantly on both limbs, in a way which purports to be consistent with its previous decisions on the point, but the tenor of them may be difficult to reconcile.

 

In Barclays Bank v Various Claimants https://www.supremecourt.uk/cases/docs/uksc-2018-0164-judgment.pdf, the defendant bank was sued by applicants for employment and employees with the Bank. They required to attend a consultation with Dr Bates, who carried out medical assessments on behalf of the bank. He allegedly sexually assaulted them. The question was whether the Bank was vicariously liable for his actions. The bank argued that the doctor was self-employed bad engaged by them as an independent contractor. The Court of Appeal held the Bank liable. The Supreme Court unanimously allows the appeal and confirms that the historical distinction between employees and independent contractors still applies. Lady Hale gives the judgment:

 

22. “It seems to me obvious that in Cox the result was bound to be the same whether it was expressed in terms of the test stated in para 24 of Lord Reed’s judgment or in terms of the “sufficiently akin to employment” test. Indeed, the case for vicarious liability for torts committed by prisoners in the course of their work within the prison seems to me a fortiori the case for vicarious liability for the work done by employees for their employers. There is nothing in Lord Reed’s judgment to cast doubt on the classic distinction between work done for an employer as part of the business of that employer and work done by an independent contractor as part of the business of that contractor.”

…

27. “The question therefore is, as it has always been, whether the tortfeasor is carrying on business on his own account or whether he is in a relationship akin to employment with the defendant. In doubtful cases, the five “incidents” identified by Lord Phillips may be helpful in identifying a relationship which is sufficiently analogous to employment to make it fair, just and reasonable to impose vicarious liability. Although they were enunciated in the context of non-commercial enterprises, they may be relevant in deciding whether workers who may be technically self-employed or agency workers are effectively part and parcel of the employer’s business. But the key, as it was in Christian Brothers, Cox and Armes, will usually lie in understanding the details of the relationship. Where it is clear that the tortfeasor is carrying on his own independent business it is not necessary to consider the five incidents.”

 

In Morrisons v Various Claimants https://www.supremecourt.uk/cases/docs/uksc-2018-0213-judgment.pdf , an employee of the defendant supermarket (who held a grudge against the firm) deliberately disclosed personal information of just under 100,000 employees, in breach of data protection legislation. The novel question here was whether an employer can be vicariously the employee’s criminal act was in part designed to cause the employer harm by making them vicariously liable for their act. The Supreme Court (led by Lord Reed PSC) allows the appeal and concludes that the lower courts misunderstood Mohamud. It is heartening to know that there are some limits to vicarious liability, although, with respect, the exact consistency of approach here with Mohamud is not entirely clear. There seems to be some revision of Lord Toulson’s view that the employee’s “motive is irrelevant” in Mohamud. Lord Reed concluded:

 

47 “In the present case, it is abundantly clear that Skelton was not engaged in furthering his employer’s business when he committed the wrongdoing in question. On the contrary, he was pursuing a personal vendetta, seeking vengeance for the disciplinary proceedings some months earlier. In those circumstances, applying the test laid down by Lord Nicholls in Dubai Aluminium in the light of the circumstances of the case and the relevant precedents, Skelton’s wrongful conduct was not so closely connected with acts which he was authorised to do that, for the purposes of Morrisons’ liability to third parties, it can fairly and properly be regarded as done by him while acting in the ordinary course of his employment.”

 

Best wishes to all at this challenging time,

Jamie

 

 

--

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Reader in English Law and Vice-Dean (Education)

The Dickson Poon School of Law

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