Torts L11- vicarious liability Arguments for vicarious liab: Employee as property/slaves: No longer relevant Agency: employee working

orking as employers agent (same as in contracts) Difference is: generally applies to signing of contracts etc not all acts done by employee- lack of control Distributive justice and Enterprise liability? With benefits come burdens. Employers benefit from employees working for them, have to deal with related issues too. Compensation: social policy- compensating people for loss suffered and allowing a wider range of defendants Spread the loss: pretty self explanatory General deterrence: provides employers with incentives to put in safeguards to ensure good safe behaviour by employees.

Sweeney v Boylan Nominees 2006 HCA 19 at [11] Outlines lack of clarity in this area of law: neither in that decision, nor in other early decisions to which the development of the doctrine of vicarious liability may be traced, does there emerge any clear or stable principle which may be understood as underpinning the development of this area of the law. Must show 2 things 1. Person committing was an employee of person you want to sue 2. Committed in the course of employment

1. Employee relationship (contract of service) i. Historic approach- authority to control Zuijs v Wirth Bros (1955) Circus performers- employees? Yes- high degree of control over work environment Humberstone v Timber Mills (1949) ii. Modern approach multiple criteria Elements 1. Control (a prominent factor)- over way in which work is done2. How was the worker renumerated 3. Who provides and maintains tools/equipment 4. Are there obligations to provide work 5. Who determines hours of work and holidays 6. Is income tax deducted from workers pay 7. Is the worker free to delegate work 8. Public Representations-

9. Skill Stevens v Brodribb Plaintiff-trucker, had to bring logs into mill injured by Grey-sniggerperson who manoeuvres logs onto loader before loader takes logs off to mill. P took out action against sawmill not Grey Sawmill liable? No vicarious liability o Grey used his own tractor o Operations overseen by someone employed by sawmilling company- bush boss responsible for overall supervision of logging. But didnt get involved with how logs, once felled, were loaded and taken to sawmill. o Gives elements apart from In this case- not paid a set rate, supplied their own equipment, set their own hours, Hollis v Vabu Delivery guy- bike rider Control? Level of control high- D had control over what work P had to do Remuneration? Had some control- withheld pay if uniform damaged Equipment? P supplied his own bike and maintained it- court didnt think this was conclusive. Bike could be used for private purposes as well as for job. Uniforms supplied by D Obligations to provide work? Yes, P couldnt refuse work. Restrictions on when he could take annual leave, couldnt delegate Court came to conclusion that he was controlled Court added 2 additional factors: o 1. Skills provided werent very technical- couldnt operate as though it was his own business o 2. He was wearing uniform that had displayed on it Ds logo. Public representation being made that P was part of Ds enterprise. Sweeney Fridge manufacturer hired individuals to fix fridges that were let out o owned his own van, had his own company, not paid a wage, invoiced D for each job he did- paid per job, no control exercised. o Repairs done badly-injured member of public Described as representative, used form with Ds logo on it Representative =/= employee Logo on form not public representation

2. Tort committed in the course of employment i. Unauthorised/improper acts No liability for acts that are unauthorised- express or impliedly. On the other hand, doing an authorised act in an unauthorised way, it could still be said that It was in the course of employment Century Insurance v NI Road Transport Board (1942) Worker- petrol tank driver Decides to smoke at servo and lights up large area Courts said: still acting in the course of his employment- still doing acts that he was authorised to do, just in an unauthorised way- still acting in the course of his employment ii. Effects of prohibitions Employer specifically prohibits an action that causes issue Depends on whether the effect of the prohibition/ignoring the prohibition is that the employee is no longer doing the job they were employed to do as opposed to them doing it but in a way theyre not meant to The mere fact that there was a prohibition doesnt take them outside of the realm of employment Bugge v Brown Case about being instructed to cook in hut, not cooking in hut, causing fire Held: still within course of employment, he was still doing his job. To be held as outside of the course of employment it must be so remote and disconnected from the job that he is essentially a complete stranger to the job when he does the act in question Limpus v London General Omnibus Bus driver race- accident occured Expressly prohibited them from racing Did it take him outside the course of employment? No Still doing what he was employed to do, just doing it improperly Iqbal v London Transport Executive Conductor decided to drive bus Conductors prohibited from driving bus By doing this he was acting outside the course of his employment iii. Detours from route Veer off route, accident during detour Joel v Morison Test: Baron Parke- whether or not at the time of the accident the employee is on a frolic of his own. Still doing business of employer- still acting within employment Story v Ashton Employee returning to employer with empty beer cask, goes to another house to pick up cask and bring it to another persons home: outside course of employment, pursuing private purpose

iv.

Intentional/criminal acts Deatons v Flew Dude in bar being douche Barmaid asks him to leave Dude swears and strikes her in face Barmaid glasses him Dude sues bar Were the acts an incident of something she was employed to do/necessary result? No Canterbury v Rogers Jaw broken by tackle in sports game Still in course of game/employment Lister v Hesley Hall Warden of college sexually abusing kids School was liable because a. Close connection between job and tort b. Made this employer more likely to commit tort in question NSW v Lepore Child abuse- teachers Close connection test Not sufficient that it provides opportunity to commit offence as many jobs provide that Must be high degree of power and intimacy a. The age of the child b. Any vulnerability of the child c. The task that the adult was given by the employer d. The number of adults responsible for the task in question i. More adults=more monitoring=less likely to be vicariously liable than if its a sole employer e. The nature and circumstances of the sexual misconduct Arguments against vicarious liability in these circumstances: should only apply when theyre pursuing employers interest, as in Canterbury Blake v Perry Nominees Prank at work injures someone, done because they were bored Held no liability a. Actual furtherence of interest? b. Express or implied authority? c. Incident of job? d. Significant connection with job e. Intended or ostensible furtherance of interests f. Estoppel?

Indemnity Implied into employees contract that he or she will perform duties carefully Thus the employer may sue the employee for damages they pay for vicarious liability Boral Resources v Pyke

Liability for Breach of Non-Delegable duties Kondis v State Transport Authority Sometimes employers have such a duty, for example OHS, that although someone is, for example, and external contractor, they can still be liable.
The Plaintiff [Kondis] was working for the Defendant [State authority] and was hit by an object dropped by an independent contractor. The Plaintiff sued the Defendant for breach of a non-delegable duty. Hospital owes patient reasonable non-delegable duty Kondis School owes student reasonable non-delegable duty - Kondis