Vicarious liability Flashcards
Understand the two step test (are they an employee? Was the tort committed within the course of employment).
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16
Employee/employer relationship
“indicia” of relationship of employment –> Mason J [at 24]: mode of remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work and the provision of holidays, the deduction of income tax and the delegation of work by the person.
Indicators of independent contractor:
Determining their own hours, providing their own equipment, ability to delegate the job to someone else, and where payment is made upon completion of the job. If the person is in business of their own account.
Zuijs v Wirth Bros Pty Ltd (1955) 93 CLR 561
Employee/employer relationship
Lawful authority to command (cf. exercising authority), superintendence and control all indicate a relationship of employment.
E.g. hiring, firing, uniform, right to suspend/dismiss for misconduct etc.
Elazac Pty Ltd v Shirreff [2011] VSCA 4050
Victorian case, persuasive but not authoritative.
Employee/employer relationship
Contract for services = e.g. plumber contracted to install a water tank at your house
Contract of service = employee/employer, e.g. a sales assistant employed at a shop
Hollis v Vabu Pty Ltd (2001) 207 CLR 21
Employee/employer relationship
You need to look at the whole relationship to determine employment status.
Face of Vabu (wore the crisis couriers uniform)
Delegated work
Vabu controlled the pay for couriers, could withhold it
Paid per delivery BUT this wasn’t necessarily a sign of independent contractor work because this is a reasonable way of paying someone whose job is to deliver.
Bought their own bikes? Still employees when you look at the whole relationship, a more benevolent employer would have bought the bikes.
Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161
Employee/employer relationship
Milk fridge incident.
The mechanic was not an employee, he was called on by the fridge company but that does not mean he was representing the fridge company. He was representing himself and so the defendant could not be found liable.
Affirmed that contractors cannot make the third party vicariously liable.
Humberstone v Northern Timber Mills (1949) 79 CLR 389
Employee/employer relationship
At 404-5: The question of the “control test” is whether “ultimate authority over (the person) resided in the employer so that [the person] was subject to the [employer’s] order and directions.”
Deatons Pty Ltd v Flew (1949) 79 CLR 370
Acts done within the scope or course of employment?
Retribution not within the course of employment as it was not “on the master’s business”
Barmaid’s retribution was not within the course of her employment and so Deatons is not vicariously liable.
Limpus v London General Omnibus Co (1862)
Acts done within the scope or course of employment?
Bus driver specifically told not to speed, but did, and caused harm.
It was still in the course of employment. It was an improper mode of doing an authorised task. Bus company is liable.
Starks v RSM Security Pty Ltd [2004] NSWCA 351
Acts done within the scope or course of employment?
A bouncer headbutten a patron of a hotel to eject them from the premises.
Overly enthusiastic, improper mode of completing an authorised task.
NSW v Lepore; Samin v Qld; Rich v Qld [2003] HCA 4
Acts done within the scope or course of employment?
Gleeson CJ: “sufficient connection”
Gaudron J: “sufficiently close connection”
Gummow & Hayne JJ: “closeness of the connection”
Kirby J: “sufficient connection”
Callinan J: intentional criminal conduct cannot form basis of vicarious liability on employer
