Vicarious Liability - template PDF

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Vicarious Liability Employers: Employees CLA s 3C - Strict liability 1. A relationship of employment or agency between defendant and wrongdoer Is there a contract of service (employee) or a contract for services (independent contractor)? Employment suggested via – nature of whole relationship Hollis v Vabu Pty Ltd (2001): The degree of control over the person. Provision of pay and equipment. Control over delegation of work, hours of work and location of work. The right to dismiss or suspend the person. Uniforms. Public view of couriers – they were in uniform Low skill – less likely to be a contractor/freelancer  No single test is sufficient: o Control Test - Zujis v Wirth Bros (1955) 93 CLR 561 o Indicia of employment -Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16; Hollis v Vabu (2001) 207 CLR 21; Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161  INDICIA of EMPLOYMENTS Stevens v Brodribb River Sawmilling Co (1986) 160 CLR 16  Degree of control  Mode of remuneration  Deduction of income tax/superannuation  Provision & maintenance of equipment by employer  Obligation on employee to work personally  Place & Hours of work mandated by Employer  Employer’s right to exclusive services of employee  Right of employer to suspend/dismiss employee 2.

Negligent conduct MUST occur during the course of the employment or agent relationship Vicariously Liable: Act occurs whilst performing a task connected to employment, regardless of whether conduct is unauthorised - NSW v Lepore (2003);  Deatons Pty Ltd v Flew (1949) 79 CLR 370 Intentional act (of “passion & resentment”) by e’ee not as “an incident to or in consequence of anything the barmaid was employed to do”  Canterbury Bankstown RLFC v Rogers (1993) Aust Torts Reps 81-246 Player’s act was in course of playing for the club and assisted club to win Player achieved an authorized (desired) result by an improper mode Was contrary to rules of game but the act was not such as to be outside the scope of employment  Bugge v Brown Cook meet outside rather than inside – fire – damage to property The act was inside scope of employment (cook) it was a direction of where not what… In employment, incidental to, or sufficiently close… NSW v Lepore (2003) – school could be vicariously liable for sexual battery by teacher.. high degree of power and intimacy. NOT Vicariously Liable: Act is NOT connected to the work - NSW v Lepore (2003) Frolic of their own – Joel v Morrison Criminal Act of employee does not necessarily take conduct outside the scope of employment. (French v Sestili (2007) Prohibitions - Bugge v Brown (1919) Prohibitions free employer of liability if the prohibited act is distinctly remote & disconnected from the job. Prohibitions will not work if they only limit the manner in which the authorised task was to be performed. NOTE: An act in defiance of a prohibition which LIMITS THE SPHERE OF EMPLOYMENT will be OUTSIDE the scope of employment - employer not liable. (Bugge v Brown (1919)) An act in defiance of a prohibition which deals with CONDUCT WITHIN SPHERE (ie: how, when, where etc tasks are performed) OF EMPLOYMENT will not be outside the scope of employment - employer is liable. (Bugge v Brown (1919))

NON-DELEGABLE DUTIES

EVEN IF NOT VICARIOUS LIABILITY – IF NOT EMPLOYEE CAN STILL BE A NON_DELEGABLE DUTY A non-delegable duty of care is a personal duty to take care: to ensure that care is taken. It cannot be delegated to another. The common "element in the relationship between the parties which generates (the) special …duty to see that care is taken is that the person on whom (the duty) is imposed has undertaken the care, supervision or control of …another … as to assume a particular responsibility for his… safety" Kondis v. StateTransport Authority (1984) 154 CLR at 687 per Mason J A non-delegable duty of care involves a duty to ensure that care is taken. CLA S 5Q – Breach of non-delegable duties determined as if the defendant were vicariously liable.  Galea v Bagtrans Pty Ltd [2010] NSWCA 350 S 5Q applied to make employer ‘vicariously liable’ for the failure of another person to exercise reasonable care where employer owed a non delegable duty of care Per Hodgson JA at [65]...