Independent contractors

This question is concerned with the rule in Rylands and Fletcher. The rule is a form of strict liability, this means that the liability does not depend on fault. "It governs liability for escapes from land, used for a non-natural purpose" (Cooke 261). Through the Rylands v. Fletcher (1865) case Blackburn J, established the following rule " a person who, for his own purposes, brings on his land, and collects and keeps there anything likely to do mischief if it escapes". There are though requirements of the rule: The first rule is that the defendant must bring the thing on to the land.

The case that shows this is Giles v. Walker (1890), where it was held that the defendant was not liable because natural forces blew the seeds on to the claimants land. In this question Dibonicus has satisfied this first requirement, because he has bought the chemicals on to the land, and it is not usually used for chemical use. The second requirement is anything that is likely to do mischief if it escapes. A case that shows this is Rylands v. Fletcher itself, where water was the mischief. In the question Dibonicus has settled the second requirement, the chemicals could cause mischief if they escaped.

The third requirement of the rule is that the thing must escape. A case that shows this is Read v. J. Lyons Ltd (1947), it was held, as there had been no escape of the thing that inflicted the injury, Rylands and Fletcher became inapplicable. In the question Diboncus satisfies the third requirement, because the chemicals escape. The fourth requirement was non -natural use of land by the defendant. A case that shows this is Rickards v. Lothian (1913), it was held, and there was no liability under Rylands v. Fletcher, because the supplies of water via normal installations were a natural use of land.

In the question Dibonicus is using the land for non-natural use of land, it is a row of dwellings so people live in houses, and to use dangerous chemicals is a non-natural use of land, because it is not naturally found there. The fifth requirement of the rule is foreseeability, injury must be foreseeable. Cambridge Water Co v. Eastern Counties Leather (1993) shows this, it was held that Rylands and Fletcher could not be applied, because the defendants had not known, and could not reasonably have foreseen, that the escape would cause pollution.

Dibonicus could reasonably foresee that if it escaped would cause pollution, because of the word imprinted on the side of the container "DANGER HIGHLY FLAMABLE AVOID SMOKING IN THE SAMR ROOM". Can Alfredo and Heraculta sue Dibonicus? My advise to Alfredo would be that he could sue Dibonicus, because there was damage to his land and chattels on his land. A case that validates this point and would be beneficial to Alfredo would be Weller v. Foot and Mouth Disease Research Institute [1996] 1 QB 569, because although in this it was found that there was not sufficient interest in the land for Rylands and Fletcher to be applied.

Alfredo did have a sufficient interest in the land. So therefore Rylands and Fletcher could be applied. My advise to Alfredo would be that although Dibonicus may have reasonable defences (which will be discussed further on) he has a good case to claim for damages under Rylands and Fletcher. The advise to Heraclita, would be that she may be able to claim. The position with regard to Rylands and Fletcher is clear with regard to personal injury. The difficulty comes from the case of Read v. Lyons, where it was stated that negligence must be proved for damages.

You are unable to prove that Dibonicus was negligent because he has kept it in accordance with manufactures instructions, So Heraclita it is an undecided situation. There are certain defences that Dibonicus could use. He could use the defence of an act of a stranger "where the escapes is caused by the act of a stranger over whom the defendant has no control, this will be a defence". (Cooke 267) A case that shows this is Perry v. Kendricks Transport Ltd (1956), in this case it was held that the defendants were not liable as a stranger, who they had no control over, caused the explosion.

Dibonicus had no control over Wanderer, so he may be found not to be liable. If it is found that he is a private nuisance, Dibonicus may use the defence of a third party. In the case of Smith v. Littlewoods Organisation Ltd (1987), the key principle was that there was no general duty of care to prevent third parties from harming others by their deliberate wrongdoings. Although in this case Lord Goff stated that the "defendant, negligently causes or permits to be created a source of danger and its reasonably foreseeable that third parties may interfere with it the defendant may be liable.

" So if it is seen that Dibonicus permitted the source of danger the chemicals, may be still liable if it was reasonably foreseeable that a third person may interfere with it. Question 4A The first issue that this question raises is vicarious liability. An employer in tort is responsible damage occurring to its employees acting in the course of their employment. To impose vicarious liability there are two conditions that must be met, there must be a specific employee – employer relationship. It must be separated from an independent contractor, as an employer is not usually liable for independent contractors.

So we need to distinguish whether Pietro is a servant or an independent contractor. There are tests to distinguish this factor, firstly the control test and the degree of control an employer has over his employee this is shown by the case Yewens v. Noakes (1880). Secondly there is the organisation test where organisations can have theories applied to see if they are an organisation, a case that shows this Stevenson, Jordan and Harris v. McDonald (1952) this case determined whether someone's job was an integral part of the business an independent contractor would not be integral.

Thirdly there is the test mutuality of organisations this is shown by O'Kelly v. Trusthouse Forte Plc (1983). The whose business is it is shown by the case of Lane v. Shire Roofing (1993). No single test is conclusive; you need to include the intention of the parties, the degree of control, integration within the business and the allocation of financial risk all need to be taken in to account. The express intention of the parties as to the classification of their working relationship is an important factor, a case which shows this is Ferguson v.

John Dawson & Partners (contractors) Ltd (1976). Where it was held that the employees were liable for no guard on the roof even though the employee failed to check the safety. Pietro in this question as the employer is the one who pays him, and can dismiss and can tell him how to do his job. Pietro is acting in the course of employment, if what he does is authorised, expressly or implied by his employer. If it is what he is paid to do, and he carries it out in an unauthorised manner he is still in line with his employment.

Whatman v. Pearson (1868) showed this where it was held that the employer's duty involved looking after a horse and cart, and even though he did this in an unauthorised manner he was still acting within the scope of his employment so therefore he was acting within the scope of his employment, as he was just to look after the horse. It could be argued using this authority, that even though Pietro was not using the safety belt, he was still acting in accordance with his employment so therefore Thrift Ltd would be liable.

When considering the scope of employment it is enough to show that the employee was generally doing his job at the time and doing it negligently does not take an employee outside the course of his employment. A case that shows this is Century Insurance Co Ltd v. Northern Ireland Road Transport Board [1942] this would be a valuable case for Pietro to use to show that Thrift ltd were liable. The advise to Thrift Ltd in respect of Pietro it would be to argue that he was on a frolic of his own, because he was so negligent. They could argue the of Warren v.

Henlys [1948], where it was held the defendants were not liable because the employee was acting outside the course of employment. The Chief Accountant may try to sue Thrift Ltd for the damage of his car by arguing, that he was still acting with in the course of his employment by using the case of Smith v. Stages [1989] in this case it was held that the men travelling back early was immaterial, since they were still being paid wages so they were still on duty and the defendant was liable. As it is a driving case he cannot sue anyone for his car.

Thrift ltd could argue the of Storey v. Ashton [1869], where a new and separate journey will take the employee outside the course of employment, and his new journey was going to Ginos for lunch. If though Thrift ltd were found liable for Pietro and the chief Accountant, they could claim Employers indemnity. This is where an employer has been found vicariously liable for an employee and is entitled to seek an indemnity from the employee to recover any damages. A case that shows this is Lister v. Romford Ice & Cold Storage Co [1957].

So this means Thrift Ltd could also argue contributory negligence. In the case of I. C. I v. Shatwell [1964], it was found that the employer was not liable because the claimant was held to have accepted the risk of injury. So Thrift ltd could state the Pietro accepted the risk of injury by not using his harness that he was supposed to. Question 4B This question is concerned with trespass to the person. Trespass is any direct or immediate interference with a person's freedom; it also includes freedom of movement.

There are three types of trespass to the person. The first type is battery. Battery is the direct and intentional application of physical force to the person of another without lawful justification. The claimant only has to show the defendant intended to touch him, which was shown in Collins v. Wilcock [1984]. Where a police officer had gone beyond the scope of her duty and so committed battery. The case of Wilson v. Pringle [1987] went on to further clarify this issue where Croom-Johnson L.

J stated, " in battery there must be an intentional touching or contact in one form or another, that touching must be proved to be hostile touching". From this it could said that PC Nat was liable for battery, because he had no intention of contracting another. It could however be said that Jonas is liable for battery, by spitting on the police officer because there was intention from his statement of " That's on behalf of the kite flyers association". Although the intention to thump PC Nat would not be battery because there was no actual contact. The second type of trespass to the person is assault.

Assault is an act that directly and intentionally causes the claimant to fear that the defendant will immediately inflict a battery on him. If the defendant does not have the means to carry out the threat then no assault has been committed. So there must be a fear of immediate battery. So in the case Thomas v. National Union of mineworkers [1985], a violent gesture by pickets at colleagues who were still working and pass by in buses is not assault. When the defendant attends to hit another, but is held back by a third party an assault is committed.

This means that when Jonas was shaking his fist at Pc Nat, it was not an assault. It only became an assault when he went to thump PC Nat, but was back by Didier. If Jonas had said something along the lines of "I would hit you but I am to hungry", this would then neutralise the assault, and so he would not be liable. This was shown in the case Tuberville v. Savage [1969], but Jonas did not neutralise his action. If Jonas was found liable for assault and battery, he may be able to use the defence of contributory negligence, Barnes v.

Nayer [1986] as Pc Nat did not know that Jonas was congratulating Didier. The third issue of trespass to the person is false imprisonment. False imprisonment is an unlawful justification of constraint on another's freedom of movement, it must be completely deprived. Bird v. Jones [1845] showed this, it was held in this case that there was no false imprisonment, since there was no total restraint. Where a claimants liberty is subject to a reasonable condition, it is not false imprisonment to restrain a claimant, until that condition has been met. Robinson v.

Balmain Ferry Co Ltd [1910] held that there was no imprisonment because the condition imposed was a reasonable one in the circumstances. Although knowledge of the restraint at the time is not necessary to succeed in action for false imprisonment. Meering v. Grahame-White Aviation Co Ltd [1919] may show Didier liable for false imprisonment by grabbing Jonas's arm for two minutes. Although it may be seen as subject to a reasonable condition, due to the fact Jonas was going to thump Pc Nat and he stopped it from occurring, Didier would be able to use the defence of necessity.

The defence of necessity may be valid to trespass to the person my be valid where the defendant acts for the purpose of protecting the claimants own health and safety. This was seen in the case Leigh v. Gladstone [1909]. In this case it was found it was necessary to intervene because they had a duty to the others in their custody. It could be said that Didier acted on behalf of Jonas' safety and the safety of Pc Nat, by falsely imprisoning Jonas. It also stopped Jonas from being liable for battery. If this was applied Didier would not be liable for false imprisonment.