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Where there is a contract of employment there is a relationship between employer and employee. This relationship imposes certain rights and duties on each party. It is important to distinguish whether a relationship is that of employer/employee or employer and independent contractor for several reasons. There are obligations of common law, for instance, an employer’s vicarious liability for the torts of his employee.
The general rule under vicarious liability is that the employer should be held responsible for the acts of his employee committed in the due course of employment. In the given scenario by ABC apartment company, where a manager used a key to open one of the apartments in the complex during his off duty time and enter a tenant’s apartment and rape her is rather personal, but there is negligence on the part of the company (employer) and therefore the employer will be held responsible for the act committed by the manager even though he was off duty.
This is proved by the fact that the manager who was off duty should not have been allowed to have access to the key during the time when he is off. The key is the property of the company and whenever an employee has completed his or her shift (working time) he or she must return the property of the company to safe custody of such property within the company’s premises.
In Limpus v. London General Omni bus Co. (1862) a bus driver whilst racing a bus caused an accident. His employers were held liable because he was doing what he was employed to do even though in an improper way.
In the strict sense of the meaning, a person is an employee if his employer retains a right to control not only the work he does, but also how he does it. The test is the right of control, not how much control was infact exercised.
However, exceptions to the rule of vicarious liability exist. The employer cannot be held responsible by an act of violence by the employee outside the scope of employment and the employer will not be liable.
In Warren v. Henley (1948) 2 All E.R 935 a petrol pump attendant assaulted a customer during an argument over payment for petrol.It was held that the employer was not liable.
On its part ABC Apartment company had failed to ensure that the conduct of the Manager even though on off-duty was not linked to the company. Getting access to the company’s key which he used to open the apartment attributes to negligence on the part of the company. It is possible that the manager’s conduct was no way related to the company but his presence and access to the apartment’s keys is a question to be determined on the company’s negligence.
In Rose v. Plenty (a976) (1WLR141) D was a milkman. His employer did everything possible to stop the common practice of taking young children in the van and paying them to help deliver the milk. A notice at the depot said “Children must not in any circumstances be employed by you in the performance of your duties” Contrary to this instruction.D employed P. While moving from one delivery point to another the boy had one leg dangling from the van so that he could jump off quickly. D drove negligently and Ps foot was crushed between the van and the Kerb.It was held that Ds employer was liable because D had been acting within the scope of his employment.
In Panorama Development (Guild Ford) limited v.Fidelis Furnishings Fabrics Limited (1971) 2 QB 711), a company secretary fraudulently hired cars for his own use without the knowledge of the Managing Director. The company secretary routinely enters into contracts in the company’s name and has administrative responsibilities that would give apparent authority to hire cars. The company was held liable.
In essence of it is determined that the act of an employee is connected to the employer in one way to the other, the employer is held responsible.
As a company owning the apartments they have a duty of care to the tenants. Little was done by the company in ensuring that there is enough security. The ABC Apartment company had provided no adequate security system to the tenants occupying their premises. The Omissions of this requirement makes the company responsible to the act meted out to the tenant.
In Donoghue v. Stevenson (1932) Ac 562 (HL) Lord Atkin held “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbor”
In this regard ABC apartment will be held responsible for their omission to provide adequate security to their premises occupied by the tenants. In Hedley Bryne Co.Ltd v. Heller Partners Ltd (1964) Ac 465 (HL) a duty of care was recognized. It was held that the law will imply a duty of care when a party seeking information from a party possessed of a special skill trusts him to exercise due care and that a negligent, though honest, misrepresentation in breach of this duty may give rise to an action for damages a part from contract or fiduciary relationship. Lord Pearce held” How wide the sphere of the duty of care in negligence is to be held laid depends ultimately upon the court’s assessment of the demands of society for protection from the carelessness of others. (ibid)
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Finally the Company, (ABC Apartment Company) also failed to investigate the past conduct of the said manager. The company had the responsibility of duly investigating a person before they hire him. This will assist the company in ensuring that they hire a right person to a carry out the duties of the company efficiently. The company’s not knowing that the manager had a criminal record cannot be a ground for its defense.
In general in the tenant in the scenario has a right of bringing a civil suit against ABC Apartment Company for compensatory and punitive damages owing to the fact the company failed to take due care in ensuring that the safety of employees within their premises in safeguarded. The company also failed to ensure that the property (key) of the company is kept within the premises and it is not carried by any employee when he/she is off-duty.
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