EMPLOYERS LIABILITY

An employer has a DOC to see that reasonable care is taken to ensure the safety of employees.
The DOC of the employer to employee extends to the provision of competent staff, a safe place
of work, safe equipment and a safe system of work.
-Metropolitan Parks v Percival
The respondent lost both legs following a fall from a flat-bed truck on which he worked. During
the course of the afternoon, there was an interlude for refreshments. The respondent admitted to
having had either three or four drinks of alcohol. The medical report indicated that the
respondent was indeed intoxicated as a result. On his way home, the respondent fell from the
back of the truck and his legs were unfortunately crushed. The major point in this case was
whether MPM had provided a safe work system. The court held that, the failure of duty to
provide a safe system was not the effective cause of the accident. It was the respondents
intoxication that was the effective cause of the accident. A safe system of work had been
provided. The system had been ignored by the employees including the respondent. The
circumstances of each case have to be considered in determining what is a safe system of work,
as the requirements depend entirely on what exits at the workplace and on the level of danger
that a situation poses. As such, no fault was found with the treatment of evidence nor with the
finding that MPM had not provided a safe system.
-Wilsons and Clyde Coal v English
Mr. English, a miner was employed at Wilsons and Clyde Coal Ltd. He was injured on work
when he was crushed by a haulage plant. His family claimed damages. The company claimed
that Mr. Englishs own negligence led to his death, because he should have told the person in
charge of the machinery or taken another route. The House of Lords held that an employer has a
non-delegable duty to create a safe system of work. Even if that employer gives that duty to
another person, they still remain responsible for workplace safety. Employers must take
reasonable care not to subject their employees or others to unnecessary risks. Lord Wright stated
that the whole course of authority consistently recognizes a duty which rests on the employer.
-Thomas v Anand Ramnarinesingh &Anand Low Price Supermarket
Thomas was hired by Ramnarinesingh as a welder to construct a steel roof on one of his
buildings. The day before, Thomas informed Ramnarinsingh that he was unable to put up the
remaining steel because there were wires in the way. Ramnarinsingh indicated that he had
spoken to T&TEC about the lines and they should go ahead with the work. Thomas was moving
the scaffolding when he was electrocuted. He was taken to the hospital where he died. It was
held that Thomas was owed a DOC by his employer, Mr. Ramnarinesingh. Ramnarinsingh
breached this duty by failed to provide a safe working environment, failing to provide a safe
work system and failing to take adequate care of Thomas safety while at work. However,
Thomas was responsible for some of his injuries since he observed the danger but still proceeded
to take the risk.
VICARIOUS LIABILITY
An employer will be liable for the actions or omissions of its employees, provided that it can be
shown that they took place in the course of their employment. The employer will be liable for
wrongful acts which are authorised by him and acts which are wrongful ways of doing
something authorised by the employer, even if the acts were forbidden by the employer.
-Limpus v London General
A bus driver racing to a stop to collect passengers deliberately obstructed the driver of a bus of a
rival company, overturning their vehicle. The bus driver had been given strict instructions
against obstructing other vehicles. It was held that the defendants, London General were liable.
The driver was acting within the course of his employment at that time. It was immaterial
whether his act is forbidden.
-Century Insurance v Northern Ireland Transport
The defendants employee, a petrol tank driver, was unloading petrol from his tanker when he
struck a match to light a cigarette and then threw the lighted match on the ground. This caused an
explosion which results in damage to the claimants property. It was held that the defendant was
vicariously liable for his negligence, on the basis that was he was doing at the time was part of
his job, even if it was in a negligent way. It was agreed that the match he struck was for his own
purpose, not those of the employer but nevertheless, it was still in the course of employment and
as such, his employer was also liable.
-Brown v Robinson
Paul Reid went to see a football match where Robinson was on duty at the gate which he sought
entry. Seeing that the game had already started the people in line started to become unruly; this
led to Robinson having to strike some of them with his baton, including Reid, who then pushed
him and ran off. Robinson chased after him and shot after him. Reid surrendered and Robinson
shot him. The court held that the employer was not vicariously liable for the wardens acts.
However, the House of Lords reversed its decision. When one substitutes the test of whether
Robinsons acts were so closely connected with his employment that it would be just and
reasonable to hold his employer liable, the answer seems clear. When one applies this test, the
employer was vicariously liable for the shooting.



NUISANCE
Private nuisance is a continuous, unlawful and indirect interference with the use or enjoyment of
land. There are three kinds of private nuisances: the protection of land, the protection of use of
land and the protection of the enjoyment of land. Foreseeability of harm is a prerequisite for the
recovery of damages in private nuisance.
-Blandina v Jeff Hadeed
The claimants claim was against the defendant for damage done to the claimants property
comprising of land and a house by the escape of water from the defendants premises. The
claimant contended that the defendant caused his property to be stripped of all trees and other
vegetation. It was further contended that the defendant maintained an open septic pit on his
property which if it overflowed, the water collected could escape and cause damage. The
claimant claimed that despite many complaints and requests, no steps were taken to avoid
nuisance and as such, caused damage to the claimants property. The defendant contended that
the water which came onto the claimants land was as a result of an act of God due to excessive
rainfall. It was held that whosoever creates a nuisance may be sued for it whether or not he is in
occupation of the land from which it emanates. An act of God is said to be a defence to
nuisance. An act of God is defined as circumstances which no human foresight can provide
against and rainfall of extraordinary violence is not an act of God. As such, there is no evidence
of any forecast of such weather and it can be concluded that the rainfall could not be reasonably
anticipated. Therefore, the defendant was not the creator of a nuisance and the defence of act of
God succeeds.
RULE IN RYLANDS V FLETCHER
A form of strict liability in that the defendant may be liable in the absence of any negligent
conduct on their part. The rule is confined to cases involving a non-natural use of land. The law
casts an absolute duty on a person who lawfully brings on his land something which though
harmless while it remains there will naturally cause harm if it escapes.
-Transco v Stockport MBC
The defendant council were responsible for the maintenance pipe work supplying water. A leak
developed which remained undetected for some time. The water collected at an embankment
which housed the claimants gas main. The water caused the embankment to collapse and left the
main exposed and unsupported. This was a serious and immediate risk and the claimant tooks
steps to avoid potential danger. They then sought to recover the costs under the rule of Rylands v
Fletcher. It was held that the defendant was not liable and the councils use of land was not a
non-natural use.

-Rickards v Lothian
The claimant ran a business on the second floor of the building. The defendant owned the
building and leased different parts to other tenants. An unknown person had blocked all the sinks
in the lavatory on the fourth floor and turned on all the taps, causing the place to flood. This
damaged the claimants stock and the claimant brought action based on the rules in Rylands v
Fletcher. It was held that the defendants were not liable. The act which caused the damage was
of a third party and there was no non-natural use of land.
DEFENCE: Act of a stranger- if the escape was caused by the act of a stranger which the
defendant had no control, the defendant will escape liability.
-Box v Jubb
The defendant had a reservoir on their land. Another person had a reservoir situated at a higher
level than the defendants. The owner emptied his reservoir through a drain causing the
defendants reservoir to overflow and damage to the claimants land. The claimant brought
action against the rule in Rylands v Fletcher contending that there was a non-natural use of land
and there had been an escape of water, causing damage. It was held that the defendant was not
liable for the damage as it was caused by a third party over which the defendant had no control.
-Perry v Kendricks
The defendant kept an old coach that needed repair on their land adjoining a piece of wasteland.
The claimant, a young boy approached two other boys on the wasteland close to the coach. As he
got close, the boys lit a match and threw it into the petrol tank causing an explosion and causing
severe burns to the claimant. The claimant brought action under the rule set out in Rylands v
Fletcher. It was held that the defendant was not liable since the deliberate actions were caused by
third parties.

CRIMINALISING BUSINESS ACTIVITIES
ACTUS REUS- all the elements of a crime except the state of mind of the defendant. It may
consist of conduct, result, a state of affairs and an omission.
MENS REA- this is concerned with the state of mind of the defendant. The three levels of mens
rea include: intention, recklessness and negligence.



INTENTION
This is the highest degree of fault of all levels of mens rea. A person intends a consequence of
his act if he acted with the aim or purpose of thereby bringing about that consequence.
-R v Mohan
The defendant was driving his car and responded to a police officers signal to stop. The
defendant slowed down but accelerated towards the police officer. The police officer moved out
the way and the defendant drove off. The defendant was charged with attempt to cause bodily
harm by wanton driving at a police constable. The jury were directed that the prosecution had to
prove that the defendant realised that such wanton driving would be likely to cause bodily harm.
The court held that intent is an essential factor of an attempt and is the only mens rea of attempts.
Recklessness would often suffice as the mens rea of the full offence, attempt was a separate and
more serious offence with its own separate mens rea. The defendant was found not guilty.
RECKLESSNESS
This is the need to show that the defendant took an unjustifiable risk. A person is reckless to a
consequence if he is aware that a risk will occur and the reckless to a circumstance is if he is
aware of a risk that it exists or will exist, and in the circumstances known to him, it is
unreasonable to take the risk.
-Foster and Williams v R
The appellant lived in a house which was occupied by his grandmother, father and uncle. A fire
broke out in the house which was burned down causing his grandmother and uncle to be burnt to
death. The Crown case was that he deliberately set the house on fire, with the intention of
causing death or grievously or bodily harm to his father and uncle. The appellants case was that
the fire was accidently caused when he spilled kerosene while attempting to light an oil lamp. In
order to convict the appellant of felony/murder, the prosecution must prove either that he
deliberately intended to endanger life or was subjectively aware of the danger to life and
proceeded to set fire to the house. As the appellant was aware that there were people in the
house, he must when he started the fire foreseen that danger to them, especially his grandmother
with limited mobility. There was no room on the facts for an obvious alternative to murder which
would suggest itself to the mind of any ordinarily knowledgeable and alert criminal judge.




NEGLIGENCE
A person is negligent if he is unaware of the risk but ought to have been aware of it or having
foreseen it, he takes steps to avoid it but those steps fall below the standard of conduct which
would be expected by a reasonable person.
-Brown v R
A serious traffic accident involving several vehicles occurred in parts of Jamaica, where a police
car driven by the appellant with a passenger, and another vehicle driven by Michael collided with
a car travelling in the opposite direction. The two occupants of the car were killed and the
persons in the police car sustained injuries. The appellant was indicted on two counts of
manslaughter. The court adopted the gross negligence test, without the reference to that of
recklessness as sufficient to all cases of involuntary manslaughter, except for those of motor
manslaughter. Causing death by reckless driving continues to coexist along with the common
law crime of manslaughter and the appeal should be allowed.
VICARIOUS LIABILITY
A company is not vicariously liable for the criminal acts of its employers.
-Anderton v Rodgers
Non-members of a social club, which was a members club registered were found to have
purchased intoxicating liquor from the bar staff. The respondents were the committee of the club
and were charged with selling intoxicating liquor. It was agreed that the bar staff were the
committees servants and that none of the committee members had conspired at, aided or
supported or been accessories to the illegal sales. It was held that the fact that a servant breached
a specific order in committing the offence was no defence for those who gave the order.
-Keppel v Ahmad
A passenger who objected to a bus conductors treatment of another passenger and then insulting
language was assaulted by the conductor. The employer was not held liable by the Privy Council.
The judge stated that insults to passengers are not part of the due performance of a conductors
duty.




THE LAW OF AGENCY
Principals employ the services of agents to act on their behalf to enter into contracts or dispose of
their property. Agency is a legal relationship between the principal (P), the agent (A) and one or
more third parties (T). This relationship is governed by three main factors: consent of both P &A,
the authority of A to affect Ps legal position and Ps control over As action.
-Compton v Caribbean Engineering and James
The disagreement arose out of the sale of a tractor by the first defendant. The claimant argued
that an agency existed between the claimant and the second defendant and that the second
defendant was acting as agent for the first defendant. The court held that if any agency existed
between the second defendant and the claimant, the first defendant had no knowledge of it. It is
clear that the parties to the agreement were the first and second defendant. If an agreement in
substance contemplates the alleged agent acting on his own behalf, and not on behalf of the
principal, then although he may be described as an agent, the relation of agency will not have
arisen. As a general rule, the agent must intend to act on behalf of his principal. As such, the only
relationship that existed between the claimant and James was that of a contractual
employer/employee relationship. There is no evidence to show that James acted as agent for
anyone. Therefore the claimants claim was dismissed and awarded costs as previously agreed by
the parties to each defendant.
INTERNET LAW
To form an enforceable contract online, there must be a meeting of the minds of the parties to
the contract and an intention to contract, supported by some consideration. There are three types
of internet contracts: shrink-wrap, click wrap and browse-wrap agreements.
SHRINK-WRAP AGREEMENTS
These are usually found printed on the back of or included inside computer or software
packaging. By tearing the plastic, the user agrees to be bound by the terms of the agreement.
M.A. Mortenson Co v Timberline Software Corp, el at; Timberline Software installed a new
program on the operation system for Mortenson for the process of their preparation of bids. After
a consultation, an order was placed and Mortenson issued a purchase order confirming the
agreed price, set-up fee, deliver charges and sales tax for eight copies. Upon receiving the
software, there was a licensed agreement that states upon opening and using the software, it
would acknowledge the users confirmation of agreeing to the terms and conditions of the
software. The software was opened and used by Mortenson, but malfunctioned multiple times;
who then claimed alleged breach of expressed and implied warranties. The terms of the licence
were part of the contract between Mortenson and Timberline, and Mortensons use of the
software constituted its assent to the agreement, including the licence terms. The licence were
either set forth explicitly or referenced in numerous locations.
CLICK-WRAP AGREEMENT
Where the user clicks on the button indicating his agreement, it is assumed that he has read the
terms and conditions and understands them. If the user does not agree, the process is then
terminated. Click-wrap agreements are generally held to be binding once the terms and
conditions are available to be read, nevertheless, a click-wrap agreement may be invalid where
they are unreasonable or would breach public policy. A party cant unilaterally change the terms
of a contract; it must obtain the others party consent before doing so.
Cathryn Harris v blockbuster Inc; Blockbuster rented movies to users online, in which their
choices would be distributed through the users Facebook account for their friends viewing. The
plaintiff claimed that this violated the Video Privacy Protection Act which prohibits a videotape
service provider from disclosing personally identifiable information about a customer unless
given informed, written consent at the time the disclosure is sought. Before proceeding to rent
movies, users are asked to click on a box certifying that the terms and conditions were agreed
upon. The plaintiff argued that the arbitration provision is unenforceable, principally for two
reasons 1. It is misleading and 2. It is unconscionable. Blockbusters arbitration is misleading, as
there is nothing in the terms and conditions that prevents Blockbuster from unilaterally changing
any part of the contract other than providing that such changes will not take effect upon posted
on the website. The agreement does not also contain an express exemption of the ability to
unilaterally modify all rules, and does not limit application of the modifications to earlier
disputes. The blockbuster agreement is therefore, illusory and unenforceable.
BROWSE-WRAP AGREEMENT
It is not available on the screen for review but the website may not where you can find it.
Reading the agreement is optional as it requires the user to click on a hyperlink where he will
find the terms and conditions. However, the user is not required to accept the terms as a
precedent to continue browsing the website.
-Ticketmaster Corp. v Tickets.com
Ticketmaster runs a website that sells tickets for various events, whereas, tickets.com runs a
website that also sells tickets for various events. Tickets.com also provides the service of
informing where a user can purchase tickets which tickets.com do not sell, by linking to the
events page run by ticketmaster. Tickets.com does inform their users that the link will take them
to another companys website. The claim was put forth by ticketmaster that tickets.com breached
the contract embodied in the Terms & Conditions and infringed the copyright held by the
plaintiff in its website. The court held that a contract cannot be created simply by the use of a
website which is posted at the bottom of the sites homepage. The court further held that deep
linking itself does not necessarily involve unfair competition. As such, the claim was dismissed.


-Hubbert v Dell Corp.
The plaintiff, Mr. Hubbert visited Dells website and bought Dell computers with a new
processor that Dell said was the fastest and most powerful currently available. The plaintiff
makes the argument that the processors are not and files a claim against Dell. In response, Dell
stated that Hubbert is bound by an arbitration clause. In order to purchase from Dell, every user
has to visit five different pages on the Dells website and on each page, there is a hyperlink with
the text Terms and Conditions of Sale and three of these pages also informs the customer that
they will be held to said terms and conditions. The terms themselves provided that by accepting
delivery of computer systems or other products, customers agree to be bound by and accepts
these terms and conditions. Due to these facts, the court rejected these claims stating that the
terms and conditions were part of the parties contract and that the arbitration clause was
enforceable.