Chapter 24 Guidance on answering the end-of-chapter problem questions
Susan’s business (the status of which is not explained) will be liable for Nellie if the relationship and connection elements of vicarious liability are satisfied. It is doubtful that Nellie is an employee. Nellie seems to be doing Susan a favour by walking dogs; she is not paid and it is doubtful that the requisite control over Nellie is present: see Ready Mixed Concrete v Minister. The question whether the relationship is akin to employment is more difficult to answer. But there is no hierarchical relationship between Susan’s business and Nellie and Nellie does not have to conform to organisational objectives or conduct herself in a particular way: see CCWS. Again, Nellie is not an integral part of Susan’s business although she does do some work for its benefit: Cox v Ministry of Justice. Overall, the case is not a strong one. However, if the relationship requirement is deemed present, then we can say more confidently that Nellie’s acts of negligence occurred either in the course of employment or with sufficient connection: see Lister v Hesley Hall. Thus, Nellie was not on a mere frolic of her own. With respect to the liability of the school, the main issue of relevance is whether the school’s non-delegable duty would extend to protecting Jenna when she has exited the school. The matter would have to be decided largely by reference to the decision in Woodland v Essex CC. In that case, the activities in question took place outside the school, but were part of the school curriculum. The school was in a position to direct that care be taken by the independent contractors in a way that is not possible with respect to Nellie walking the dog. There is no relationship between the school and Susan’s business. As such, it is unlikely that the school will be strictly liable for Nellie’s act.