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Vicarious Liability Notes

Law Notes > Torts A Notes

This is an extract of our Vicarious Liability document, which we sell as part of our Torts A Notes collection written by the top tier of Monash University students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Torts A Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Vicarious liability P may [also?] seek to sue D for the acts of E [employee etc]. This may be a better option for P because [D has more money etc].

Under the doctrine of vicarious liability, D will be liable if

1. E satisfies all elements (including fault) of the tort; there is no requirement for D to be at fault

2. E is D's employee

3. E's act was done in the course of his/her employment

1. Does E satisfy all elements of the tort?
[Make this out first and then just refer above]

2. Is E D's employee?
Employers may be vicariously liable for the acts of employees, but not for independent contractors (ICs).

The current test in deciding whether a worker is an employee or an IC involves considering the relationship as a whole by balancing a number of indicia that are not conclusive alone (Hollis v Vabu). [Discuss each of the following separately]

a) Control: if the alleged employer has a right to exercise control over the worker (whether or not that control is in fact exercised) this indicates the worker is an employee (Hollis v Vabu). b) Holidays: if the alleged employer can stipulate when holidays can be taken and for how long, this indicates the worker is an employee (Hollis v Vabu). c) Skill level: the lower the level of skill and/or special qualifications needed to be the relevant work, the more likely it is that the worker is an employee (Hollis v Vabu). d) Identification: if the worker is presented as an emanation of the person paying him/her, the worker is more likely to be an employee (Hollis v Vabu). e) Equipment: if the worker is provided with equipment by the alleged employer, he/she is more likely to be an employee (Hollis v Vabu). o If only lowcost equipment or maintenance is required to be provided by the worker, this may not be considered to be a factor pointing towards him/her being an IC (Hollis v Vabu) o If equipment provided by the worker can be used for other purposes than the work for the alleged employer, it is less likely he/she will be considered an IC (Hollis v Vabu). o The fact a worker must replace lost or damaged equipment provided by the alleged employer is not contrary to an employment relationship (Hollis v Vabu). If a worker or class of workers carry out the bulk of the alleged employer's work, the workers are more likely to be employees (Hollis v Vabu).

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