May I please the court, I Kasia Hama appear as the junior council for the respondents, Mrs Smythe. I will base my submissions on the ground that there was a close connection between Miss Kendrys and St Macintyre’s schools relationship and Miss Kendrys wrongdoing.

Your Lordship I will be making 2 submissions today and I will also dispense with the case summaries, unless Your Lordship requires them as and when they arise

If it pleases the court I will begin my first submission.

Your Lordship

Responding to my learnerd friend, I present to the court evidence upon the fact that the tort occurred in the course of the employment and under the ‘field of activities’ meaning that the school is vicariously liable.

I will be refering to tab 11 of the bundle, the case of Rose v Plenty Found in the 1900 and 71 Local Government Reports at page 20.

Contrary to his employer’s orders, Plenty, the milkman allowed children to assist him in his milkround. The plaintiff was injured whilst riding on the back of the milk float due to the defendant’s driving. The plaintiff sued the milkman’s employer.
The courts held that the milkman had not gone so far outside the activities for which he was employed for the employer to escape liability.

The mere fact that the employers warned Plenty not to undertake the Act did not immediately exclude the prospect of vicarious liability. Liability is proved as against an employer if the tortfeasor is acting in the course of their employment, here Plenty was acting in the course of his employment, and thus the employers were vicariously liable.

The employer is made vicariously liable for the tort of his employee not because the plaintiff is an invitee, nor because of the authority possessed by the servant, but because it is a case in which the employer, having put matters into motion, should be liable if the motion which he has originated leads to damage to another.

Referring to this case, and responding to my learnered friends submission, Miss Kendry performed the workshop activities that resulted in injury under her employment at St Macintyres school. She was invited by Dr Bowthorpe to perform 3 optional workshops delivering them according to her own discretion and professional judgemnt to students with the top 10 percentile of athletic attainment and potential. The fact that this resulted In an injury, the school is still vicariously liable. The activities occurred in the course of her 3-day employment.

Your Lordship I will now refer to tab 6  of the bundle, the case of WM Morrison Supermarkets plc v Various Claimants Found in the 2020 United Kingdom Supreme Court reports at page 12.

A senior auditor at Morrisons, Mr Andrew Skelton,  In November 2013 was given payroll data on Morrisons’ workforce and tasked with transmitting it to the external auditors, KPMG. Skelton made a copy of the data and leaked it online, attempting to frame a fellow employee who had been involved in his disciplinary proceedings.

The trial judge, Langstaff J, found that Morrisons had no primary liability for Skelton’s actions, but was vicariously liable for them. They were not concerned with whether employees’ wrongdoing was so closely connected with their employment that vicarious liability ought to be imposed. The online disclosure of the data was not part of Skelton’s “field of activities”, as it was not an act which he was authorised to do.

Whereas in this case, Miss Kendry  performed her exercises under the ‘field of activities’.

In rebuttel to my learnered friends submission, Miss Kendry introduced a slightly different workshop on the last day however it was not something that she was not entitled to do. She signed a code of conduct that confirms that she will deliver 3 optional workshops according to her own discretion and professional judgemnt to students with the top 10 percentile of athletic attainment and potential. The school stood as of high accolade and impressive athletic achievements of its students. Meaning that the students themselves were capable of at least the basics of the activities provided. As Miss Kendry observed and assessed the student’s capabilities, she decided to introduce a different activity.

This did not affect the agreement as Dr Bowethorpe allowed Miss Kendry to provide the activities according to her own discretion. The fact that this resulted In an injury, the school is still vicariously liable. The activities occurred in the course of her 3 day employment.

Your Lordship

Another case that supports my submission is found in tab 10 of the bundle

The case of Mohamad v WM Morrison Supermarkets plc Found in the 200 and 16 United Kingdom Supreme Court at page 11.

Mohamud had used a petrol station kiosk and approached a member of staff with a question. The employee responded in an aggressive manner and demanded that Mohamud leave immediately. As he left the employee assaulted him. Mohamud bought an action against the supermarket, claiming that it was vicariously liable for the assault committed by one of its employees

The court took consideration of the employee’s functions and whether there was a sufficient connection between the wrongful conduct and the employer. On this basis the court held that whilst it was a gross abuse of his position, it was in connection with the business by which he was employed. The supermarket was vicariously liable.

In this case, there was a close connection between the wrongdoing of Miss Kendry and her employment at the school. The activities were carried out during her time of employment

Your Lordship, this concludes my first submission, if I can be of any more assistance to the court, I will proceed with my second submission.

If I could guide your Lordship to tab 5 of the bundle, the case of  Lister v Hesley Hall Ltd Found in volume 1, page 215 of the Appeal Cases reports of 200 and 2

A warden was employed at an annex of a boarding school for boys and responsible for the day-to-day running of the school, discipline of the boys, organisation of their daily activities, as well as supervision and care of the boys after school hours. Between 1979 and 1982, the warden had sexually abused a number of the boys, yet unbeknownst to his employers. The sexual abuse took numerous forms and was usually administered in the context of the warden’s control and discipline at the boarding school.

The Court held that there was a sufficient connection between the work that the warden was employed to do and the abuse that he committed to render it within the scope of employment. The abuse was committed at the time, premises and during the course of the warden’s care of the boys. The warden’s function was to care for the boys and the fact that he performed that function in an abusive manner does not sever the connection with his employment for the purposes of vicarious liability. The employers were held vicariously liable.

Linking this the scenario, Miss Kendry performed the ‘tricks and flips’ at the time and place of her employment. Therefore there was a close connection and the school should be held vicariously liable for the injuries caused to the student. If in Lister, the school was held liable for the wardens wrongdoing even though the actions were not closely linked to what his employment was entitled to, then in this case without doubt St Makintyres school should be vicariously liable. Miss Kendry did not go out of her way to maliciously cause injury to the students. She was carrying out a set of activities which she assumed were fun and safe to do.

May I guide your Lordship to tab 2 of the bundle, the case of Woodland v Essex County Council Found in the 200 and 13 United Kingdom Supreme Court Reports at page 66.

Annie Woodland was the child who tragically suffered hypoxia during a swimming lesson arranged by her local education authority, Essex County Council. The lesson was supervised by a swimming teacher and a lifeguard, neither of whom were employed by the council itself.

It was held that where the Defendant has assumed a particular responsibility to take care of the Claimant, the Defendant may have a non-delegable duty of care – a duty not just to take reasonable care of the Claimant, but to ensure that reasonable care is taken by whoever is actually discharging the Defendant’s function.

This is relevant with this scenario as Dr Bowethorpe assumed responsibility by watching over Miss Kendrys worshops for the 2 days. He sat and observed the activities. Therefore, due to Dr Bowethorpe having responsibility over the students, and an injury occurred, as Dr Bowethorpe is an official employee at the school, the school is to be held vicariously liable.

A case to support this is found in tab 13 of the bundle, the case of Mersey Docks and Harbour Board v Coggins & Griffith (Liverpool) Ltd [1947]

In this case, the appellants let out their crane and driver to the respondent Stevedores under a contract providing that the driver shall be the servant of the respondent. The crane driver by his negligence injured a person giving rise to the question as to who the master at the time of the accident for the purpose of vicarious liability was.

It was held that the employee(Y) will remain as the employee of the general or permanent employer(X) although another employer (Z) borrows his services. This is because, there is a presumption that the control of the employee (Y) still remains on employer (X).

In this case, Dr Bowethorpe was the schools employee and Miss Kendry borrowed his service, therefore there was a close link between Miss Kendry and the school.

Your Lordship

As my learned senior previously concluded, that the relationship between Miss Kendry and St Makintyres Secondary School was suitably akin to employment, I can now confirm that there was a close connection between Miss Kendrys and the schools relationship and Miss Kendrys wrongdoing. Therefore the school should be held vicariously liable and the appeal should be dismissed.

Unless I can assist your lordship any further, I have concluded my submissions.

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