Vicarious Liability of Employers

Question 1

What is vicarious liability?

Answer 1

Vicarious harm is where you suffer on the behalf of another. So vicarious liability is liability for another person’s wrong. Usually in the context of employer where the wrong has been caused in the course of the employee’s employment.

Question 2

Why Vicarious Liability?

Answer 2

1. Employees have more money.
2. May bring some sort of deterrent in respect of employer’s behaviour.
3. The vicarious liability will spread the costs throughout the community through the market mechanism as the employer is likely to be insured.
4. The idea that the employee is the representative of the employer, who stands in the shoes of the employer. But this idea doesn’t quite work because if the employee exercised all the authority of the employer, then the liability would be of himself because the agent is regarded as the employer. So not a popular expression.
5. Idea that it is JUST to make the employer liable because of some sort of benefit and burden rationale. If you take the benefit from the facility or employee, then it also follows you accept the burden of any accidents that they cause. Called a Distributive justice theory. - Hollis v Vabu
6. Incentive for the employers to ensure the safety of the acts of the employees. - Blake

Question 3

What are the requirements for Vicarious Liability of Employers?

Answer 3

1. The worker responsible must be an employee of the company. Therefore no liability for individual contractors.
2. The act must be made within the course of employment.

Question 4

First factor: Employment Relationship

Answer 4

Historically, it has been a matter of control. If the company/employer has authority to control not just what is done but also the way it is done, the person is likely to be an employee. If the company doesn’t have control of intimate detail in which work is done, then likely to be said to be a contract.

Zuijs v Wirth Bros
P was someone who was injured by a circus acrobat. Was acrobat employed by company? Degree of control that the circus had over acrobat’s act is debatable because it is a skilled act. You can’t ask them to be whatever. Court held that he was an employee and pointed to a number of features of control:
1. Place in the program the acrobat appeared
2. Safety measures that had to be observed
3. Place of rehearsals that the acrobat had to attend
4. What costume he wore
5. Where he dressed (Dressing areas)
So courts held that the company exerted high control over the acrobat’s working life, hence was an employee.
No longer the approach because workforces have become much more skilled. The capacity of authority or employers to control employees in which way the work is done has reduced.

Question 5

What are the elements of an employment relationship?

Answer 5

This was developed in the case of Stevens v Bodribb.
P was a trucker who was working for a saw milling company. He was injured by another person also engaged by the saw milling company who’s job was ‘snig’. During that process P was injured. There was a boss on sight who had a supervisory capacity in relation to loading of logs. His degree of supervisory control was not great. he didn’t tell any of the workers how to do it, he just left it up to them. He sued on the basis that the company was vicariously liable.
Held: Snigger was not an employee. He was an independent contract. Yes there was control, but not a great degree of it.

They say control is a factor, but is to be taken into account amongst others:

1. Control
2. How the worker is remunerated (if they’re paid wage, probably an employee. If paid per job or piece, most likely an independent contractor)
3. Who provides and maintains tools and equipment? (if company provides, likely an employee. If worker does, then more likely contractor)
4. Are there any obligations to do or provide work (under an employment contract, employer must supply employee with work to do, and the employee must do it, they have no choice. If there’s a choice under the contract, the most likely an independent service)
5. Who determines the hours of work and holidays?
6. Deduction of income tax deducted from worker’s pay? (employment relationship, tax is deducted before pay slip. Independent contract, get paid the whole lot then taxed afterward)
7. Is the worker free to delegate work?
8. Representations of employment such as uniforms?

Question 6

Hollis v Vabu

Answer 6

P was plowed down by a courier on a push bike. Last thing he saw was the logo of the company - Crisis Couriers.
Sues the courier company.
The uniform was provided by company and the worker himself was liable for any damage to the uniform. Quite clear that unfirom is in ownership of company.
But the bike that the courier used was his own. Courier is oblige to turn up at 9am and is given a list of jobs to do. Doesn’t have much choice. The company had a right to withhold money from him as a set off for any damage done to the uniform and could hold the final check if there was damage. He couldn’t delegate and there was restrictions on when he couldn’t take leave.
Held: he was an employee.

The courts added a few things to the list:

1. Degree of representation on the part of the company that he was working for them - uniform of company logo.
2. Skill of the person. The higher the skill the more likely they’re an independent contractor providing special services.
3. Any good will in the business - if they do, then they’re operating independently / financial interest / goodwill in the business

Question 7

Sweeney v Boylan Nominees

Answer 7

Authority whether the person represents as a worker of the company.
P went into a garage. Got something out of the fridge. The fridge fell onto the P and injured him. He sued company that provided fridge and which also arranged work to be done on the fridge. The repair work had been done by an individual who was engaged by the company just to repair fridges. He had done the work negligently.
Worker used a form which was the company’s form. he had also done a report, details of the repair. He also gave the form to the garage owner, as sort of a receipt of the work done. In some of the D’s documentation, they described the worker as their ‘representative’ in some of their insurance documentation. P argued from Vabu that because of that presentation, he could be regarded as an employee. This was rejected by the HC

Held: Person was not an employee of the fridge company.
Different to Vabu:
1. Repairing fridge required a high degree of skill
2. person concerned had his own company, drove a van with his own name on the side. He could individually contract out services.
3. Regards to representation, the representation was not made to the public. The company hadn’t held out the worker as their worker, but just used the logo on the form.

Question 8

When are/aren’t you in the course of employment?

Answer 8

1. If the act is still authorised, something that the employee was employed to do, then the mere fact that the employee was doing it in a way that he/she shouldn’t be doing doesn’t take them outside the course of employment: Century Insurance.
2. If you ignore something your employer has banned you to do, but you do it anyway and it takes you out of the course of your employment, then the company is not liable. Bugge v Brown
   Limpus v London General
   Igbal v London Transport Executive
3. Detours from route. If you’re driving and you go off route, you’ll be regarded as outside the course of employment if you are “on a frolic of your own”.
   Story v Ashton
   Hilton v Burton

4. Intentional torts and criminal torts in the course of employment.
Deatons v Flew
Canterbury Bankstown v Rogers
Lister v Hesley Hall
NSW V Lepore
Blake v Perry Nominees

Question 9

Century Insurance

Answer 9

The worker was a petrol tank driver employed to take petrol to various distribution outlets. He puts oil into the tank and lights the cigarette. He ends up blowing up the entire petrol station.

Held: Company liable because the worker was doing what he was employed to do, just in a very bad way. He’s still trying to further the interest of his employee.

Question 10

Bugge v Brown

Answer 10

Employee was a farm hand. He had been sent out with a working party to be away from the farm stead. HE had been given some meat with him to cook, given only the instruction only to cook in one of the huts. He was NOT to cook outside it. Reason for this is that if he had cooked outside, he would have to take a very heavy pan with him, which was unnecessary.
He cooked outside and set alight to a neighbour’s property.
P brought action against his employed.

Held: The worker was effectively doing what he was employed to do, just contrary to instructions.
“The effect of ignoring an instruction in order to take a person out of course of employment, must be such that a violation makes the person’s conduct so remote and distinctly disconnected as to put him virtually in the position of a stranger regarding that conduct”.

Question 11

Limpus v London General

Answer 11

Competitive drivers driving really fast. The rival drivers from different companies were racing each other to get to the bus stop first to get customers.
The company had expressly banned it’s drivers from racing. They did it anyway.
A customer was injured. He sued.

Held: Vicariously liable because the bus driver was doing what he was employed to do, he was just doing it contrary to instructions.

Question 12

Igbal v London Transport Executive

Answer 12

The person driving the bus wasn’t actually the bus driver, but the bus conductor who had always wanted to drive it. He had been expressly told not to do this. He had a go anyway and P was injured.

Held: Company not liable. The effect of the instruction was to limit the scope of what it was the conductor was employed to do. He was employed to conduct, nothing more.

Question 13

What is a frolic in terms of detouring from the route?

Answer 13

You must take into account 2 things:

1. The purpose of the detour
2. The extent of your deviation from route.

Question 14

Story v Ashton

Answer 14

Employee is a delivery man working for a brewing company. He’s going back to employer’s shop with some empty casks after making a delivery but at the instigation of a passenger, he goes off route to pick up a cask at the passenger’s home. Accident occurs then.

Held: not in the course of employment. It was outside presumably because of a private purpose.

Question 15

Hilton v Burton

Answer 15

The employee gets off early to go to a cafe, clearly outside course of employement.

Question 16

Deatons v Flew

Answer 16

Barmaid working in a bar. She has an awkward customer who wants to see the manager. He starts elbowing his way through. She asks him to leave but he then uses filthy expressions and slaps the side of her face. She throws the beer and glass onto his face.

Held: Employer not liable because she was clearly acting out of the course of her employment because she wasn’t acting in self defence or to maintain discipline or to restore order. The purpose of her act was to commit a ‘spontaneous act of retributive justice’.

Question 17

Canterbury Bankstown v Rogers

Answer 17

Case involving criminal assault on the field. An alelged takcle which was outside theh rules of the game. He was prosecuted for assault.
Question was whether D(Company : Canterbury Bankstown) wasa liable for assault on field.

Held: There was liability even for an intentional criminal act. Two factors were stressed:

1. Violence was no so excessive as to take him outside of what he was employed to do. High tackles were recognised events.
2. Violence was not motivated by personal animosity. So he was trying to advance the interests of the club.

Question 18

Lister v Hesley Hall

Answer 18

UK Case. Warden of a school boarding of boys with emotional difficulties committed assault on the various boys.

Held: Employer would be vicariously liable. Reasoning:

1. Sufficient degree of connection between his job and the assault such that liability of assaults could in justice, be attached to employer.
2. It would be fair and just to hold the employer liable.
3. General deterrence for those that are placed in special positions in regards to special people won’t act that way.

Question 19

NSW v Lepore

Answer 19

Australian version of Lister.
Sex abuse by teachers on students.

Held: No vicarious liability, but it is possible vicarious liability could extend to intentional torts and criminal acts in some circumstances. Where there is a sufficiently close connection between the job and the abuse.
It’s not enough though that the job provides the opportunity for abuse. They might be liable by themselves for that. What you need is a job where “there is such a high degree of power and intimacy between the offender and the students”. Generally being responsible for someone’s education isn’t enough. Suggests a vulnerability in these circumstances. The courts examined factors:
1. Age of the child
2. Any vulnerability of the child
3. Task that the adult was given by the employer
4. Number of adults responsible for the task in question.
5. Nature and circumstances of the sexual misconduct.

Two approaches:
1. If the employee’s acts were intended or ostensible (apparent) in pursuit of the employer’s interests. (but of course under this approach, you would never get a sexual abuse case because that won’t be seeing as furthering your employer’s interests) as per Gummow and Hayne JJ

2. Could be vicarious liability if it’s reasonable for victim to assume (from employee’s conduct) that the employee is acting as agent or representative of the employer. - Gaudron J.

Question 20

Blake v Perry Nominees

Answer 20

P was a trucker. Waited 18 hours for to deliver ship to a fuel. Was boring and started pranking. P was looking out to sea and the employee hit him hard on the back of his knees. He collapsed and landed on his spine and suffered permanent spine injury.
P argued in a sense it was employer’s fault that they were all bored.

Held: No liability. What test now applies? It has been picked from tests in Lepore, also added from Deatons v Flew. So you have a 6 part approach:
1. Was what he was doing in furtherance of interest?
2. Express or implied authority for the act?
3. Incident of the job or part of the job?
4. Significant connection with job?
5. Intended or ostensible furtherance of employer’s interest?
Could a reasonable person in the position think that?
6. Estoppel? Representing employer.

Question 21

What is a non-delegable duty?

Answer 21

Sometimes a company might not be vicariously liable for their wrong, but you can argue that the employer has a direct duty to the person to prevent harm in some cases.
In these cases, the duty can’t be delegated so that even if the employer uses a third party to do it’s business, it can remain liable because it has an obligation to ensure that whoever does the job (independent contractor or not) makes sure that sufficient care is taken.

Even where the person isn’t an employee, you can still sue based on this non-delegable duty.

Question 22

What are the elements for whether the act was in the course of employment?

Answer 22

1. Whether there’s an express or implied authorisation for what they’re doing - Bugge v Brown; OR
2. Sufficiently close connection - Lepore