I am writing to apply for reconsideration for the [REDACTED] assignment. My reasoning is as follows:
- Under Heading 1.1 “Tamati and Glenfield Taxis Limited (GTL)”, I stated that an individual contractor may be considered an “employee” where there is a duty to ensure care was taken. The feedback here asks “what does this mean?”. In Honeywell and Stein Ltd v Larkin Bros Ltd, the Court of Appeal found that there are some situations where the duty on the principal is so onerous that it cannot be delegated to any other party. I understood this as meaning that where there is a duty on the principal’s (GTL) part to take care, the independent contractor (Tamati) may be considered an “employee” and thus, making GTL vicariously liable for the damage caused by Tamati while carrying out his duties within his scope of employment.
- Under Heading 1.2 “Towing vehicle driver (employee) and towing company (employer), there is a comment “??”. Under this heading, I was examining whether the towing company was responsible for the acts of the towing vehicle driver who, due to using the wrong sized crane, caused further damage to the bus. Under this heading, I explained that the actions of the employee were conducted in the course of their employment, thus, giving rise to vicarious liability.
- Under Heading 2. “Duty of care”, I applied the Anns two-stage approach. The comment says, “is this a novel duty situation?”. I was not aware that the Anns test was limited only to finding novel duty situations. In Scott Group Ltd v McFarlane, Woodhouse J said: “…the existence of a duty of care does not depend upon precedent or upon finding some comparable factual situation where the court has been prepared to recognise a responsibility owed by defendant to plaintiff”. Woodhouse J then went on to apply the Anns test to the facts of the case. Therefore, I am unsure where I went wrong in applying the Anns test.
- Under Heading 2.2 “Tamati (defendant and Priya (claimant)”, I cited Bourhill to support my conclusion that Tamati did not owe a duty to Priya as it was not foreseeable that his failure to indicate would cause Priya to crash her car. I understood the principle in Bourhill to be that, to succeed in establishing that a duty of care was used, the damage to the claimant must be foreseeable or proximate. In this case, I argued that the damage was not foreseeable to Tamati at the time of the accident.
I would greatly appreciate the opportunity for my assignment to be reconsidered. Thank you for your time and consideration.