Clamping to be outlawed on private land

[Old Snowy]

Don't forget it's land owners who unleashed the PPC's on the motorist & this won't stop them

 

I'm afraid that I disagree with you on this point. The PPC model for the "management" of private car parks was devised by the PPC's themselves - not landowners. It is the PPC's who stand to gain most from it and it is they who continue to "sell" the idea of the reasonable (though small) rake off to the landowners who have to do absolutely nothing to get it whilst their PPC "contractor" makes a comparative fortune.

[Old Snowy]

Had we been commenting on a recent phenomenon I would agree but this has been going on for years yet land owners have allowed it to escalate without making any attempt to curb their agents. I stand by what I said. The land owners are at the very least as guilty of bad practices as are their agents

I entirely agree. However, what you said originally was that the landowners had unleashed the PPC's when this was simply not the case. Landowners have, largely unwittingly and almost certainly naively, provided PPC's with the means to expand and make a lot of money but the drive has always come from the PPC's. Although landowners may have to bear a proportion of the moral responsibility for the situation we find ourselves in the fact remains that they have been exploited as much as the motoring public have by the PPC machine.

[Old Snowy]

NO ONE can opt out of their liability for their agents activity. Any indemnity (contracting out) between agent & employer is of no concern to the claimant they are not a party to it & can still sue both.

 

The basic premise is that an employer should be responsible for the actions of a servant or agent who is acting for his benefit

Quite. Although this assumes that the the parties can be classified at law as agents or servants. There is a third classification, that of independent contractor from whom a vicarious liability does not transfer to the same extent (if at all) nor in the same manner as it would were the matter to involve an employee, agent or servant. This may be overcome and a liability transferred if it can be shown that the principal exercised a level of supervision and direction of the contractor's work to effectively bridge the independence of their relationship.

 

However, the vast majority of clamping companies would appear to act without that level of supervision and/or direction (indeed few would want that level of observation) and are unlikely to be classed as servants or agents. In the relatively small number of cases where landowners have been successfully sued alongside a clamping firm research will clearly show that the landowners have directly involved themselves in the cases - thereby bridging the independence "gap".

 

The defining case is relatively old and whilst it has attracted criticism is nevertheless seen as valuable. Honeywill and Stein Ltd v Larkin Brothers Ltd [1934] 1 KB 191.

[Old Snowy]

Correct however I think they employee/agent can be established in that whilst there might be no constant supervision the landowner will almost certainly be aware of whats going on which would negate their argument. Also don't forget the matter of Hawley

 

If a landowner are negligent in who they engage liability can be imposed

 

A good read http://en.wikipedia.org/wiki/Mattis_v_Pollock In particular note that the employer was aware of the bouncers tendencies

Accepted but there was also a clearly defined employer-employee relationship and the matter hinged not on whether such a relationship existed but whether vicarious liability extended to the circumstances of the case which involved a doorman absenting himself from work, arming himself with a knife and attacking the appellant.

 

A contractor, which is what the vast majority of clamping companies are, is not however an employee.

 

Slessor LJ said in Honeywill:

 

"The determination whether the actual wrongdoer is a servant or agent on the one hand or an independent contractor on the other depends on whether or not the employer not only determines what is to be done, but retains the control of the actual performance, in which case the doer is a servant or agent; but if the employer, while prescribing the work to be done, leaves the manner of doing it to the control of the doer, the latter is an independent contractor"

 

I would suggest that the legal gulf to be bridged between a landowner and a clamping company, were they to be successfully sued on the basis of vicarious liability, is as wide as that bridged in Mattis.That is not to suggest that it cannot be bridged but obtaining evidence of an active and direct involvement in the day to day working of his contractor on the part of a landowner is going to be difficult. It would probably be sensible for any prospective applicant to look to acquire evidence of the relationship between a clamper and the landowner from the outset.

 

Privity, in this regard is a separate issue.

Edited August 20, 2010 by Old Snowy