LAWS1114 Lecture 11

Vicarious Liability and Non-delegable DOC.

Sigh assignment. Bleh. Possibly not listening. Sozzles.

  • Apparently if you didn’t mention the obita dicta, that didn’t mean you automatically missed 6 marks.

Exam. Notes.

  • Consultation times: 10:00-13:00, 14:00-17:00 on 15 and 16 November 2010
  • Three problems: 1x 30 marks, 2x 20 marks. Not a Part A and Part B type of exam.
  • 2 hours
  • Open. Book.
  • Injurious falsehood is not examinable.

Vicarious liability

  • An employer can sometimes be vicariously liable for a tort committed by an employee
  • Two essential conditions:
    • Employment relationship (not an independent contractor)
    • In the course of the employment
  • Focus of analysis of vicarious liability is in relation to the employment relationship (ie not partnerships or agency)
  • An employer will be vicariously liable for a tort committed by another person if: (1) the person who committed the tort is an employee and not an independent contractor; and (2) the tort is committed within the course (or scope) of the employee’s employment.
  • Employment relationship: contract ‘of service’
  • Independent contractor: contract ‘for service’
  • If an employer owes a non-delegable duty of care, that employer is said to have breached its non-delegable duty when an independent contractor engaged by the employer commits a tort causing damage to the plaintiff employee.
    • NB: This is only one example of a non-delegable duty of care.

Employment relationship

  • Existence of control’ to determine employment relationship
  • Zuijs v Wirth Brothers Pty Ltd (1955) 93 CLR 561.
    • Zuijs was a trapeze artist. He had an act with another person and they were doing this for Wirth Brothers. Unfortunately, one day the partner lost grip of a rope, fell and injured Zuijs.
    • Issue: Was Zuijs an employee or an independent contractor?
    • What does ‘control’ mean in this context? ‘What matters is lawful authority to command so far as there is scope for it’: Dixon CJ, Williams, Webb and Taylor JJ at 571.
  • In Humberstone v Northern Timber Mills (1949) 79 CLR 389 at 404, Dixon J said:
    • ‘The question is not whether in practice the work was in fact done subject to a direction and control exercised by an actual supervision or whether an actual supervision was possible but whether ultimate authority over the man in the performance of his work resided in the employer so that he was subject to the latter's order and directions.’
  • In Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 24, Mason J said ‘…the importance of control lies not so much in its actual exercise, although clearly that is relevant, as in the right of the employer to exercise it.’
    • Just because the employer is not exercising control at a particular time does not mean the employer has no lawful authority to exercise control.
  • In Zuijs v Wirth Brothers Pty Ltd (1955) 93 CLR 561 at 571-2, Dixon CJ, Williams, Webb and Taylor JJ observed that ‘all the evidence’ pointed to an employment relationship because although there was no control over the actual technique of the act performed, there was control over:
    • Initial selection of the plaintiff
    • Remuneration in wages
    • Right to suspend or dismiss
    • Where the performance took place in the circus program; safety issues; time and manner of rehearsals; dress and conduct before the audience; and participation in the grand parade
    • A wide field of conduct that would be involved in a touring circus.
    • NB: Control was linked closely to the particular circumstances of the case.

Employment relationship – ‘totality of relationship’

  • Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16
    • Material facts: (1) felling; (2) snigging (dragging a log along the ground by a chain fastened to one end); (3) truck driving. Stevens (plaintiff) was engaged by Brodribb Sawmilling (defendant) as a truck driver and Gray (defendant) was a snigger.
    • Issue: Whether Gray and Stevens were employees or independent contractors.
    • In Brodribb, Mason J was influenced significantly by the reasoning of Dixon CJ, Williams, Webb and Taylor JJ in Zuijs.
    • According to Mason J at 24:
      • ‘A prominent factor in determining the nature of the relationship between a person who engages another to perform work and the person so engaged is the degree of control which the former can exercise over the latter.’
      • ‘But the existence of control, whilst significant, is not the sole criterion by which to gauge whether a relationship is one of employment. The approach of this Court has been to regard it merely as one of a number of indicia which must be considered in the determination of that question: …Zuijs' Case…’
      • ‘Other relevant matters include, but are not limited to, the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work and provision for holidays, the deduction of income tax and the delegation of work by the [supposed] employee.’
    • Mason J at 29: ‘…control is not now regarded as the only relevant factor. Rather it is the totality of the relationship between the parties which must be considered.’ Stevens and Gray were independent contractors because (at pages 24-5):
      • Both men had extensive experience in the timber industry and had been previously engaged by Brodribb to carry out similar functions.
      • Both provided and maintained their own equipment and set their own hours of work.
      • Both received fortnightly payment from Brodribb determined by the volume of timber they had been involved in delivering to its sawmill.
      • Brodribb did not deduct income tax instalments.
      • Fellers, sniggers and truck drivers were not guaranteed work.
    • *Hollis v Vabu Pty Ltd (2001) 207 CLR 21: The plaintiff worked for Team Couriers. Vabu owned and operated Crisis Couriers. One day, Hollis was collecting and delivering a parcel and walked out of a building in Sydney. He took two steps and was hit by a bicycle. The rider of the bike that hit him went over the handlebars and landed on the footpath. The bike rider stood up, said ‘sorry mate’ but then took off. Hollis saw the logo on the bike rider’s shirt (Crisis Couriers). Vabu argued that all of their couriers were contractors. Hollis argued that the couriers were employees.
    • According to Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ at page 40: ‘In Stevens v Brodribb Sawmilling, the Court was adjusting the notion of "control" to circumstances of contemporary life and, in doing so, continued the developments in Zuijs…’
    • Contemporary need to look at ‘totality of relationship’: see pages 40-41.
    • Factors taken into account to determine whether Vabu’s couriers were employees: see pp 42- 45.
      • Couriers were not skilled;
      • Couriers had little control over the performance of their work;
      • Couriers wore Vabu’s Crisis Couriers logo;
      • Vabu should have been aware of the danger to pedestrians and Vabu should have ensured proper identification of the couriers (Issue of deterrence);
      • Vabu produced pay summaries each week (couriers had to dispute any problems in their pay summaries by 6 pm Friday of the week of the pay summary);
      • In relation to equipment, couriers supplied and maintained their own bicycles
        • Often an indication of being a contractor
        • HCA said: bicycle … couriers could use them for recreational purposes as well.
    • Conclusion: the couriers were employees.
      • Vabu was held to be vicariously liable.
    • McHugh J’s reasoning was rejected in Sweeny v Boylan.
  • Sweeny v Boylan Nominees Pty Ltd (2006) 226 CLR 161
    • Mrs Sweeny went to buy milk one day. She opened the fridge door in a convenience store. The fridge door fell off and injured her. The fridge was supplied by the defendant Boylan Nominees.
  • The joint majority judgment of Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ:
    • He was acting as an independent contractor
    • Therefore, defendant was not vicariously liable.
  • NB: the joint majority’s observations concerning the uncertainty that exists regarding the justification of the doctrine of vicarious liability: [11]-[13] and [33].

‘In the course of employment’

  • Analysis of the joint majority’s rejection of McHugh J’s ‘representative’ line of reasoning in Hollis v Vabu.
    • (1) Unauthorised act versus authorised act carried out through an improper method Century Insurance Co Ltd v Northern Ireland Road transport Board [1942] AC 509.
    • Truck driver was filling the truck with petrol and felt like a cigarette. He. Freaking. Threw. The. Freaking. Match. On. The. Freaking. Ground. Sigh.
    • According to Viscount Simon LC at 514, it was an authorised act carried out through an improper method because: ‘[The employee’s] duty was to watch over the delivery of the [petrol] into the tank, to see that it did not overflow, and to turn off the tap when the proper quantity had passed from the tanker…He was presumably close to the apparatus, and his negligence in starting smoking and in throwing away a lighted match at that moment is plainly negligence in the discharge of the duties on which he was employed…’
  • Deatons Pty Ltd v Flew (1949) 79 CLR 370
    • Flew was the male plaintiff. Deatons owned a hotel in Manly, Sydney called the Hotel Manly or Deaton’s Hotel. In November 1945, Flew was drinking at 2 pm. At 5:45 pm that afternoon, he decided he wanted to buy a bottle of rum. He asked a female bar attendant ended up with bruising and a graze on the side of her head. The female bar attendant said that Flew approached her and was very abusive. She picked up a glass of beer and intended to throw the beer at him, but the glass went with it. As a result, Flew lost the sight in one eye.
    • According to Latham CJ at 378: ‘The liability of the employer depends upon the scope of employment of the barmaid and the authority which her employment conferred upon her, such authority to be exercised on behalf of the employer. An employer is liable for the act of his servant only if the act is shown to come within the scope of the servant's authority either as being an act which he was employed actually to perform or as being an act which was incidental to his employment.’
    • Latham CJ at 378: ‘In the present case it is not suggested that the barmaid was employed to throw beer in customers' faces, but it is contended that the throwing of the beer was incidental to her employment as a barmaid in that she was placed in the bar to deal with customers and to answer such questions as customers might naturally ask.’
    • ‘It was said that throwing the beer was an act incidental to employment in that it was a method, though an improper method, of responding to an inquiry made by a customer. It was also suggested that it was a means of keeping order in the bar as to which the barmaid might be presumed to have at least some degree of authority.’
    • Latham CJ at 379: ‘But throwing beer in the face of a customer simply was not a means of keeping order, nor in my opinion can it be said that such an action is incidental to the work which the barmaid was employed to do.’
    • ‘In my opinion the act of the barmaid was not expressly authorized, it was not so connected with any authorized act as to be a mode of doing it, but was an independent personal act which was not connected with or incidental in any manner to the work which the barmaid was employed to perform.’
      • Outside the scope of the employment relationship and as such, there is no vicarious liability.
  • In New South Wales v Lepore (2003) 212 CLR 511 at 536, Gleeson CJ explained the difference between ‘authorised’ and ‘unauthorised’ acts as follows: ‘It is clear that if the wrongful act of an employee has been authorised by the employer, the employer will be liable. The difficulty relates to unauthorised acts. The best known formulation of the test to be applied is that in Salmond, Law of Torts in the first edition in 1907, and in later editions:
    • ‘an employer is liable even for unauthorised acts if they are so connected with authorised acts that they may be regarded as modes — although improper modes — of doing them, but the employer is not responsible if the unauthorised and wrongful act is not so connected with the authorised act as to be a mode of doing it, but is an independent act.’
  • (2) Effect of prohibitions Bugge v Brown (1919) 26 CLR 110
    • There was a person by the name of Winter, who was a farm labourer. He worked on a farm in north-western Victoria. The employer supplied him with food each day as part of his pay. One day in 1917, the employer said that he wanted the employee to cook at a particular shed. The farm labourer thought it would be better if he cooked somewhere else (for time efficiency). He lit a fire elsewhere. The fire got out of control and caused significant damage to the neighbouring property. The neighbouring farm sued the employer for vicarious liability.
    • According to Higgins J at 132: ‘It seems clear… that the phrases "in the course of the employment," "in the course of the service," "within the scope (or sphere) of his authority,“ do not mean "in exercise of his authority" in the same sense as in the case of contracts made by agents. The precise terms of the authority are not the criterion of liability: the function, the operation, the class of act to be done by the employee, is the criterion—whatever be the instructions as to the time, the place, or the manner of doing the act.
    • Higgins J at 132: ‘In other words, the employer is liable for damage resulting from the negligent use of a fire on his land if he has sanctioned the lighting of the fire anywhere on his property for the occasion.’
    • ‘…the question is: Did the employer put the employee "in his (the employer's) place to do that class of acts"? In this case Winter [the employee] was put in the employer's place to light a fire and cook the meat, the employer's duty being to cook the meat or to get it cooked. Winter was entrusted by the employer with the function, was not acting of his own whim but for his employer's purposes.
      • Doing the cooking on behalf of the employer and as such, this was not outside the employer’s scope of liability.
  • Detours from route (eg. ‘frolic of his own’)
    • If an employee is supposed to deliver books from point A to Point B and drives out of the way of the route to have lunch and if he negligently causes someone else injury, he is outside the scope of his employment.
  • Intentional tortious and criminal acts
    • Deaton Pty Ltd v Flew (1949) 79 CLR 370.

Non-delegable duty

  • Eg. School authority has a non-delegable duty of care to schoolchildren.
  • According to Mason J in Kondis v State Transport Authority (1984) 154 CLR 672, 678: ‘…the concept of personal or non-delegable duty [is] a concept which was designed to circumvent the doctrine of common employment…’
  • Common employment: an employer was not liable for injury to an employee caused by the negligence of another employee (in common employment).
    • Rule originally abolished by statute in Queensland in 1951 – see now section 3 Law Reform Act 1995 (Qld).
    • NB: This rule no longer exists.
  • Kondis v State Transport Authority (1984) 154 CLR 672
    • The State Transport Authority had control over railway yards in Victoria. On this particular occasion, there was a medium sized crane at a railway yard and the intention was to dismantle the crane. Authority engaged the services of an independent contractor to help dismantle it. When it was being dismantled, Kondis, employee of the transport authority, was standing underneath the crane picking up pieces of the crane. At one point, the contractor dropped a metal pin, which hit Kondis in the back. Kondis sued the transport authority saying that it had a non-delegable duty of care.
    • Mason J at 687: ‘The element in the relationship between the parties which generates a special responsibility or duty to see that care is taken may be found in one or more of several circumstances. The hospital undertakes the care, supervision and control of patients who are in special need of care. The school authority undertakes like special responsibilities in relation to the children whom it accepts into its care.’
    • At 687: ‘In these situations the special duty arises because the person on whom it is imposed has undertaken the care, supervision or control of the person or property of another or is so placed in relation to that person or his property as to assume a particular responsibility for his or its safety, in circumstances where the person affected might reasonably expect that due care will be exercised.’
    • In Kondis, the defendant employer was liable for the carelessness of the independent contractor because the independent contractor’s omission to adopt a safe system of work was a breach of the employer’s duty of care to the employee.
      • That is, the duty of care owed by the employer to the employee to provide a safe system of work was non-delegable.
  • Employer/employee: Obligation of employer to provide a safe system of work for an employee cannot be delegated.
  • Hospital/patient: Obligation of a hospital to treat a patient cannot be delegated to medical staff.
  • School authority/pupil: A school pupil’s need for care and supervision is so essential that it cannot be delegated.
  • Mason J at 686: ‘The principal objection to the concept of personal [non-delegable] duty is that it departs from the basic principles of liability in negligence by substituting for the duty to take reasonable care a more stringent duty, a duty to ensure that reasonable care is taken.’

Conclusion and issues for consideration

  • Fundamental difference between vicarious liability and non-delegable duty?
  • Satisfactory rationale for the imposition of vicarious liability?
    • Look at Sweeny v Boylan [11]-[13], [33]