Tort Vicarious Liability and Negligence Case Study 2022

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Running Head: TORTS
VICARIOUS LIABILITY & NEGLIGENCE
Name of Student
Institution affiliation

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TORTS
We do not live in a perfect world where everything runs smoothly. This means that
human interactions are bound to be a cause of conflict of interests leading to injury or losses.
The law of tort then comes in with a way of determining and compensating (where necessary)
the people who have suffered damage, loss, or personal injury. Primarily then, as we are
going to see, there has to be a claimant and a defendant for there to be a suit. Generally, under
the law of tort, for a successful lawsuit, there have to be some elements that need to be
satisfied (Purshouse, 2015). These elements include;
a) There has to be a duty that has been fixed by law
b) Breach of the mandate set by law
c) The claimant must suffer damage that results from the breach
These are the general ingredients of any tort, but there are different types of torts with each
having its features (Mulheron, 2016). In this case of Betty and old Mr. White against St John
of God, Nursing Home is a specific tort that will fall under the tort of vicarious liability and
negligence. We will see how the two types of tort relate and which tort will be upheld and
why.
FACTS OF THE CASE
Molly Angel is a nursing sister employed by St John of God Nursing Home, and she
is obliged to supervise outdoor activities on the grounds of the home of the elderly patients.
The standard policy of the hospital is that no more than two patients should be outside on the
grounds of the Nursing Home under the supervision of one staff member and that patients
should not be left unattended. On one occasion, she leaves a patient unattended outside to go
for a cup of coffee. On the way back, she is with two other elderly women making the total

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elderly people outside three while she is just one. She spills hot coffee on Betty while rushing
to help Mr. White, who both suffer injury.
LEGAL ISSUES
1. Was there a duty to protect the claimants?
2. Was the duty breached?
3. Was there damage or loss to Betty and Mr. White?
4. Who will be sued in this case; the hospital for vicarious liability or Molly Angel
for negligence?
THE LAW OF TORT
Negligence
There has to be a duty of care that has been fixed by law for a tort to arise. Failure to
this will also result not tortious action. When determining the existence of the burden of
responsibility between the two, a three-stage test, as was decided in Caparo v Dickman
[1990] 1 All ER 568, will be used (Cavico, Mujtaba, Samuel & Muffler, 2016). The three-
stage test includes;
i. The consequences of the defendant's behavior being foreseeable Topp v
London Country Bus (South West) Ltd [1993] 1 WLR 976 (Herron, Powell &
Silvaggio, 2016).
ii. There has to be sufficient proximity between the two parties Hill v Chief
Constable of West Yorkshire [1988] 2 All ER 233
iii. The court also has to determine whether it will be fair, just and reasonable to
impose a duty of care ‘Ephraim v Newham London Borough Council [1993]
PIQR P156’.

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After the duty, the conduct of the defendant must have fallen short of the standards set
by the legal duty of care. Since Molly is a professional, the standard, reasonable man test will
not be used on her; instead, the court will use the standard of care that appropriate to experts
and professionals. Under the ‘Bolam Test,' the standard of care that is accorded to
professionals is compared against the accepted standards of the members of their profession
(Ahmad & Rohana, 2016). This is as was decided in the case of Bolam v Friern Hospital
Management Committee [1957] 1 WLR 582.
Finally, under negligence, there has to be damage caused resulting from the breach of
the duty fixed by law. Without any damage, loss, or injury, any suit under negligence will not
be successful.
VICARIOUS LIABILITY
The elements under vicarious liability are quite different from the ones in negligence.
Primarily, vicarious liability implies the act of imposing liability for tort on a different party
other than a tortfeasor. In many scenarios, vicarious liability occurs where there is an
employment relationship between two parties. This then means that instead of imposing
liability on the employee that has committed the tort liability will be imposed on the
employer (Ulfbeck & Ehlers, 2016). Many people may see vicarious liability to be unfair, but
as was decided in ‘Short v J W Henderson Ltd [1946] 62 TLR 427’ Lord Thankerton
described the reasons as to why it is essential to impose liability. Some of the reasons
include;
a) An employer has a more significant degree of control over the activities of the
employees

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b) The employer is responsible for hiring and firing staff
c) The primary concern was where the injured party would get compensation from
d) Deterrence (Goudkamp & Plunkett, 2017).
For one to successfully prove vicarious liability, the following elements have to be
determined; (Tofaris, 2016).
i. The person who committed the tort has to be an employee of a given organization
Ready Mixed Concrete v Minister of Pensions and National Insurance [196]
ii. The tort must have been committed in the course of employment as decided in Hilton
v Thomas Burton [1961]
iii. The act or omission must constitute a tort as decided in Century Insurance v
Northern Ireland Transport Board [1942]
APPLICATION OF THE LAW
From the case of Donoghue v Stevenson [1932], AC 562 one has to take reasonable
care so as to avoid acts and omissions that are likely to injure their neighbor. Molly ought to
have followed the rules of the nursing home first not to leave Mr. White alone and two not to
try to handle three patients at once (Evans-Jones & Scott, 2018).
Different from the case of Roe v Minister of Health [1954] 2 QB 66 where it was not
foreseeable that the bottle of medicine would contain different drug than the intended one, in
this case, it was predictable that something dangerous could happen to Mr. White if at all he
was to be left alone. The test of foreseeability is also stressed in the case of ‘Gunn v
Wallsend Slipway & Engineering Co Ltd, The Times, 24 November 1989’ where the court
held that it was not foreseeable that the wife would inhale asbestos dust from her husband’s

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overalls. This was after the wife contracted mesothelioma, which is from inhaling asbestos
(Worth, 2017).
As decided in ‘Hill v Chief Constable of West Yorkshire [1988] 2 All ER 238', it was
held that there was no sufficient proximity for the police to be liable to protect every
individual in the general public. Contrary to this case of Molly, there was sufficient proximity
between Molly and her patients to able to impose liability on her for omission and acts
leading to injury. Lastly, under negligence, was it reasonable to impose a duty to Molly?
Using Jain v Strategic Health Authority [2009] 2 WLR 248; [2009] UKHL 4 as a baseline, it
is then fair and reasonable to impose a duty on Molly for the act and omission of negligence
that led to injury to the two (Chamberlain, 2015).
Based on the above discussions supported by case law, I find Molly liable for negligence, and
Mr. White and Betty can sue for damages.
Molly is employed by the St John of God Nursing Home, and since she provides skills
for the home for a wage, and also this work is subject to the control of the employer. These
two aspects, as decided in WHPT Housing Association Ltd v Secretary of State for Social
Services [1981] ICR 737, qualify Molly to be an employer of the nursing home. According to
the facts of the case, the omission and act were committed during the course of employment.
In Fennelly v Connex South Eastern Ltd [2001] IRLR 390, the employee though doing the
job, was held to have exceeded the stipulated boundaries of the job and thus was liable. This
is the same case in Molly when trying to handle three elderlies while rules allowed two for
one nurse. This then would fit her into the parameters of committing the tort while in the
course of employment. The act and omission definitely led to tort, and so the last parameter
of the action or omission being a tort has been met (Lindsay, 2018).

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From the above arguments supported by principles in tort supported by case law, the St John
of God Nursing Home can be held liable for the tort committed by Molly.
CONCLUSION
Both Betty and Mr. White are seen to have suffered damage as Mr. White suffers a
fracture to his left leg, which causes him considerable pain. On the other end, Betty burned
her left hand from the spilled coffee. The court will have the discretion to award damages to
personal injury. There will be pecuniary losses, the ones that can be calculated in financial
terms. There will also be non-pecuniary losses as the plaintiffs suffered pain and loss of
amenities. I have tried to look at defenses that could be available for Molly, but I'm unable to
find any.

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References
Ahmad, M., & Rohana, A. R. (2016). The Role of Expert Evidence in Medical Negligence
Litigation in Malaysia. Pertanika Journal of Social Sciences & Humanities, 24(3).
BOLAMS CASE, 1957 W.L.R.1 582, 1957 All E.R.2 118 (1957).
Cavico, F. J., Mujtaba, B. G., Samuel, M., & Muffler, S. (2016). The Tort of Negligence in
Employment Hiring, Supervision, and Retention. American Journal of Business and
Society, 1(4), 205.
Caparo Industries Plc v. Dickman, 1990 A.C.2 605 (1990).
Century Insurance Co Ltd v. Northern Ireland Road Transport Board, 1942 A.C. 509 (1942).
Chamberlain, E. (2015). To Serve and Protect Whom? Proximity in Cases of Police Failure to
Protect. Alta. L. Rev., 53, 977.
Donoghue's Case, 1932 A.C. 562 (1932).
Evans-Jones, R., & Scott, H. (2018). Lord Atkin, Donoghue v Stevenson and the Lex
Aquilia: Civilian Roots of the “Neighbour” Principle. In Wrongful Damage to
Property in Roman Law: British Perspectives. Edinburgh University Press.
Fennelly v. Connex South Eastern Ltd, 2001 I.R.L.R. 390 (2001).
Goudkamp, J., & Plunkett, J. (2017). Vicarious liability in Australia: on the move?. Oxford
University Commonwealth Law Journal, 17(1), 162-170.
Herron, D. J., Powell, L., & Silvaggio, E. L. (2016). The Evolution Of Foreseeability In The

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Common Law Of Tort. Ne. J. Legal Stud., 35, 1.
Hill v. Chief Constable of South Yorkshire, 1989 A.C. 53, 1988 All E.R.2 238 (1989).
Hilton v. Thomas Burton (Rhodes) Ltd, 1961 W.L.R.1 705, 1961 All E.R.1 74 (1961).
Lindsay, B. (2018). Fostering in a New Age of Vicarious Liability?
Mulheron, R. (2016). Principles of tort law. Cambridge University Press.
Purshouse, C. (2015). Judicial reasoning and the concept of damage: Rethinking medical
negligence cases. Medical Law International, 15(2-3), 155-181.
Ready Mixed Concrete Case, 1968 Q.B.2 497 (1968).
Roe's Case, 1954 Q.B.2 66 (1954).
Tofaris, S. (2016). Vicarious Liability and Non‐Delegable Duty for Child Abuse in Foster
Care: A Step Too Far?. The Modern Law Review, 79(5), 884-900.
Topp v. London Country Bus (South West) Ltd, 1993 W.L.R.1 976, 1993 All E.R.3 448
(1993).
Ulfbeck, V., & Ehlers, A. (2016). Tort Law, Corporate Groups and Supply Chain Liability
for Workers’ Injuries: The Concept of Vicarious Liability. European Company
Law, 13(5), 167-174.
WHPT Housing Association Ltd v. Secretary of State for Social Services, 1981 I.C.R. 737
(1981).
Worth, G. (2017). Reasonable foreseeability: When does it not mean'reasonable

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foreseeability'?. Precedent (Sydney, NSW), (138), 9.