The Practical Lawyer

The Catholic Church’s liability for sex abuse committed by its priests will often depend upon the extent of vicarious liability for the errant priest.

The starting point, of course, is that an employer is not liable for every act committed by and employee whilst at work. The classic test was laid down by the HL in Lister [2002] as being whether the wrongdoing ‘was so closely connected with his employment that it would be fair and just to hold the employers vicariously liable’.

The Third Parties (Rights Against Insurers) Act 2010 is expected to be brought into force shortly. What it does is to replace the complex requirements of its 1930 predecessor.

Rome II is the name given to the EC regulation that sets out jurisdictional rules in non-contractual disputes. It came into force in January 2009, and we now have the first reported High Court decision on how Rome II should be interpreted.

The rules on contributory negligence for failing to wear a seatbelt are:

no deduction: if the failure to wear a seatbelt made no difference to the injury sustained, then there is no contrib and no deduction;

15%: if the seatbelt would have reduced the claimant’s injuries then a deduction of 15% is appropriate;

The new pre-action protocol for low-value PI claims in RTAs imposes a strict fixed-costs regime. The figures are:

£400 at the end of stage 1; plus

The new pre-action protocol for low-value PI claims in RTAs came into force on 30 April 2010. It applies to PI claims where the claim for general damages (pain and suffering, loss of amenities) exceeds £1,000 but does not exceed £10,000. The value of any specials is irrelevant. Note that this is a protocol with teeth – it is not a mere exhortation to good behaviour, since firm costs sanctions apply to those who do not follow the protocol. The key points:

the RTA must have occurred on or after 30 April;

Two important costs decisions:

A claim which would almost certainly have been allocated to the small claims track settles between commencement and allocation. The consent order provides for the defendant to pay the claimant’s ‘reasonable costs and disbursements on the standard basis, to be subject to detailed assessment if not agreed’. Can the defendant argue on the assessment that the claimant should be restricted to small claims costs? Yes. According to the CA, the costs judge would have to question whether it was reasonable the paying party should bear the costs of a lawyer. He would not be bound to allow only small claims costs, since the prospective track would be highly material. His discretion would not be fettered by the references in the order to ‘reasonable’ or ‘standard’ basis (O’Beirne v Hudson [2010] EWCA Civ 52).

It was Froom [1976] that laid down the rule that there should be a 25% contrib deduction for a failure to wear a seatbelt.

That approach was recently confirmed by the CA. Insurers had argued that the ‘standard’ reduction should now be 50% where a seatbelt would have prevented injuries entirely, and 33% where the injuries would have been significantly less severe. However, the court made it very clear that Froom remains a binding decision. The general rule remains that, in the absence of something exceptional, there should be no reduction at all in a case where the injury would not have been reduced ‘to a considerable extent’ by the seatbelt.

If a sports organiser fails to carry out a proper risk assessment, does that mean an injured claimant is bound to succeed? The answer is no:

‘The question... is not whether adequate risk assessments had been undertaken, but whether the defendants took reasonable measures to ensure that the game was safe.’

Protection from Harassment Act 1997 was designed to deal with two types of anti-social behaviour – stalking and ‘neighbours from hell’.

As we all know, the Act has proved attractive to those who want to bring occupational stress cases. It has three clear advantages compared to a conventional PI claim (lack of any requirement of foreseeability of harm; ability to pursue a claim for ‘anxiety’ even in the absence of a psychiatric illness; and a six-year limitation period).

The fact that vicarious liability could attach under the Act was confirmed by the HL in Majrowski [2006], where the court said ‘the gravity of the misconduct must be of an order which would sustain criminal liability’. Those words have led to much debate about the extent of criminality needed for a claim to arise, with the issue being considerably complicated by the CA’s comments in Conn [2007]. There, it was said that the conduct would have to be ‘of such gravity as to justify the sanctions of the criminal law’ (in the particular case the conduct was ‘the sort of bad-tempered conduct which, although unpleasant, comes well below the line of that which justifies a criminal sanction’).