Hospital Doctor
Cassidy v Ministry of Health (1951)-
• authorities who run a hospital in law are under the same duty as a doctor (doctor employed by the hospital)
Albrighton v RPA Hospital (1980) –
• hospital liable for the actions of 2 specialists
• Control test no longer acceptable in its full rigour
• “Uncontrolability of a person forming part of an organization as to the manner in which work is performed does not preclude …a relationship of master & servant”
(note: visiting specialist doctors not employees but hospital may owe non-delegable duty to “public” patients)
Ellis v Wallsend District Hospital (1989)
• failure to warn of risk by surgeon, held that surgeon is not an employee :. Hosp not liable- the hosp was merely a venue for the surgery as the patient visited the surgeon at his surgery and was a private pt and are treated differently to those which come directly to the hospital question of what service the hospital is to
Tort Law
provide distinguished from Albrighton as there the patient went directly to the hospital
In The Course of Employment
D is liable only if the servant committed the tort in the course of his or her employment Factors:
• What tasks are authorized
• Whether the employee’s tortuous act was an unauthorised manner of doing an authorised act
Deaton v Flew(1949)
• Barmaid claimed that P abused her & she threw a glass of beer at him P lost an eye & sued the bar not the employee.
• The court agreed that what happened was not in the course of her employment.
• They looked at what she was employed to do.
• Her act was a person thing and involved animosity
·Canterbury Bankstown RLFC v Rogers (1993) –
• P was the victim of a tackle done by Mr Bugnan who was employed by D. D argued that it was not responsible for Mr B’s actions. Mr B argued that he was allowed to tackle.
• The NSW CA said the tackle occurred in the course of Mr B’s employment
• even though it was by improper means (contrary to the rules of the game but not outside the scope of the game) it was not outside the scope of employment
• also significant that there was no animosity between the players
• the improper use of force was not so excessive to change the act into something so excessive to place it outside the scope of employment
Century Insurance Co v Northern Ireland Road Transport Board (1942) –
• man employed to drive a petrol tanker to filling stations and lit a cigarette whilst filling a tank this caused an explosion,
• the employer was held vicariously liable as he was acting within the scope of employment as his duty was to watch over the delivery of into the tank
• smoking whilst doing his job was doing an authorised act in an unauthorised way
‘A Frolic of his/her Own’
Joel v Morison (1834)
• in general the employer is not liable where the employee commits a tort while on a ‘frolic of his or her own’ Per Parke B (not vicariously liable)
Storey v Ashton (1869)
Tort Law
• Clerk deviated form the most direct route of delivery as he decided to visit a family member
• court held that the employer was only responsible for as long as he was carrying out his employment
• responsibility ended when he deviated from his journey Hilton v Thomas Burton (1961)
• worker decided that he had had enough and went to a far away café and this was held not to be within employment
Harvey v O’Dell (1958)
• the employee went on a detour to get more tools & lunch was in scope of employment.
• Not a frolic of their own because Employees were paid subsistence money & not required to take lunch with them
Petrou v Hatzigeorgiou (1991)
• Horseplay / practical jokes by employees may be within the course of employment
• P worked as an apprentice at a panel beater. He was doused in paint thinner &
set alight
• the business partner was vicariously liable for the actions of the other partners
• The fact that the act went outside the permitted level of horseplay did not take it outside the course of the business.
• The court held against D.
Prohibitions on the Employee
Limpus v London General Omnibus (1862)
• employer told the bus drivers not to race each other the employee disregarded causing damage it was
• held that by giving this instruction he did not discharge his liability
• it was an authorised act of driving the bus done in an unauthorised way Beard v London General Omnibus (1900)
• bus drawn by horses, driver in a restaurant and the conductor moved the bus around
• Court held that the bus company was not liable as the conductor was not authorised to move the bus
Rose v Plenty (1976)
Tort Law
• Milkman allowed child to accompany him on his rounds the child suffered injury
• the court held that the employer was vicariously liable even though the company forbid taking children along in its policies
• as this was carrying out an authorised act in an unauthorised way Bugge v Brown (1918) - In this case a person was working for his boss was given materials to cook, and the area caught fire as he cooked the food in the wrong place.
• The court stated that he was doing an authorised act in an unauthorised way and thus his actions were within the course of employment and his employer was vicariously liable
• To limit the sphere of employment the prohibition “ must be such that its violation makes the servant’s conduct ..so distinctly remote and disconnected from his employment…”
Exceptions to the above rules
1. Where the ‘employer’ has AUTHORISED the independent Contractor to commit a tort, eg if we tell a taxi driver to run over someone:
Eg: McInnes v. Wardle
2. Where the tort is one of STRICT LIABILITY or where D’s JOINTLY LIABLE
3. The most common mode of liability is where D owes a NON-DELEGABLE DUTY OF CARE. You cannot get someone to take the duty of care on someone’s behalf.
The high court to date has identified these limited Main categories of non delegable duties
• employer/employee -
• occupiers of a building in some circumstances
• hospitals to patients
• bailees for reward
• schools and pupils
• dangerous use/occupation of premises
• Employer/employee