Negligence & Vicarious Liability Notes

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Recap of factors considered in Bolton and Stone:
- Size of the risk.
- Seriousness of the consequences.
- Burden of preventing the harm.
- Social utility of the action.
Reference to Watt and Hertfordshire County Council case: social utility (saving life and limb) might lower the standard of care.

Wagon Mound No. 2 involved fire damage to vessels, raising the question of reconciliation with Bolton and Stone.
Facts of Wagon Mound No. 2: Oil spill by the defendant's engineer, welding by the plaintiff's caused the oil to ignite, damaging the vessel.
Charterer by demise: charters the vessel and has their own crew.

The plaintiff tries to establish that the defendant breached the standard of care.
Determine what a reasonable person would have done in the circumstances, without hindsight.
If the defendant did what a reasonable person would have done, there is no liability.
Assessing breach involves looking at factors (size of the risk, consequences, burden of prevention) without hindsight.

In Bolton and Stone, the risk was deemed negligible, so the cricket ground operator acted reasonably by doing nothing further.
In Wagon Mound No. 2, even with a small risk, a reasonable person would not have allowed the oil spill, especially since stopping it was easy.
The key difference lies in the minimal steps required to avoid the risk in Wagon Mound No. 2 (turning off the oil flow).

Breach cases do not establish precedence except as to the relevant factors.
Bolton and Stone doesn't set a standard of care for cricket clubs, but Lord Reed's analysis of factors is critical.
Cases like Wagon Mound No. 2 and Goldman Hargreave provide guidance on relevant factors but are not legal precedents like Donohue and Stevenson.
Breach is a factual question that differs from case to case.

Goldman and Hargreave considers individual circumstances of the defendant when assessing breach of duty.
Lord Wilberforce's judgment: an owner of a small property with limited resources should only be expected to do what they reasonably can in their individual circumstances.
This raises questions about whether the standard of care should vary based on the defendant's resources.
However, if a business can't afford to operate safely, it should not operate at all.

Lord Wilberforce's statement is best understood in situations where the hazard was "thrust upon" the defendant, not created by them (as in Goldman and Hargrave).
This contrasts with situations where the defendant is the author of the risk, such as running a factory or cricket ground.

Lord Reid in Bolton and Stone stated that the difficulty of remedial measures should not be considered; if cricket cannot be played without a substantial risk, it should not be played there at all.
This demonstrates an objective standard: what would a reasonable operator have done?
Departures from this standard may occur in rare circumstances where the defendant did not create the risk.

The case involved a fire that spread to the Adventure Park, and then to homeowners' properties.
The allegation was that the Adventure Park was negligent in operating its chairlift during the fire, causing the fire to spread.
The standard of care was that of a reasonable and prudent operator of a bike adventure park and chairlift business in those circumstances.
Homeowners argued that the chairs should have been removed from the chairlift.

The Adventure Park's defense was that it acted responsibly, cooperated with authorities, and followed the manufacturer's manual.
The Court agreed with the property owners, stating that there was sufficient time to remove the chairs and prevent the loss.
Given the risk, the burden of taking precautions (removing chairs) was not unduly onerous.
The case also considered the Adventure Park's lack of initial responsibility for the fire created by arson.

Vicarious liability: employer is strictly liable for the fault of its employees in certain circumstances.
The employee must have committed a tort (e.g., battery, assault, negligence, false imprisonment).
The employer does not need to be at fault; the liability arises out of the employment relationship.
The employee is the tortfeasor.

Employer is more likely to have the means to satisfy the judgment.
Employer is more likely to have insurance (though this is not a strict requirement).
The tort was committed as a result of activity by the employee on behalf of the employer.
The employee's activity is likely part of the business activity, and the employer creates the risk.

Vicarious liability applies to formal employment relationships.
It does not typically apply where the wrongdoer is an independent contractor.
Independent contractors are usually responsible for their own insurance.
However, a holding that a person is not an employee for employment law purposes does not necessarily mean vicarious liability is inapplicable.

S and the Attorney General: vicarious liability can apply in a kind of agency relationship in child fostering situations.
Christian Brothers case: applies even without a formal employment relationship if the wrongdoers were performing the organization's duties.
Barclays Bank case: UK Supreme Court said vicarious liability did not apply because the doctor was employed by a medical service, even though the bank required those check-ups.