This website uses cookies to ensure you get the best experience on our website. Learn more

Law Notes Torts A Notes

Vicarious Liability Notes

Updated Vicarious Liability Notes

Torts A Notes

Torts A

Approximately 74 pages

These exam notes were used to achieve a High Distinction in Torts A at Monash University, and include both policy and problem question notes. The notes cover all course content.

They include clear and easily usable exam problem structures, which in many cases are set out so that you can simply insert the relevant facts from your problem question into an already prepared sentence.

The notes are also easily navigated as include clear and comprehensive lists of contents and page numbers.

T...

Available here

The following is a more accessible 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]

  1. 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]

  1. 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).

  2. 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).

  3. 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).

  4. 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).

  5. Equipment: if the worker is provided with equipment by the alleged employer, he/she is more likely to be an employee (Hollis v Vabu).

    • If only low-cost 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)

    • 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).

    • 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).

Other possible indicia were indicated by Mason J in Stevens v Brodribb Sawmilling. He said that

  • Obligation to work: a worker obliged to work is more likely an employee

  • Setting own hours: a worker setting his/her own hours is more likely an IC

  • Ability to work for other employers: a worker able to work elsewhere is more likely an IC

  • Ability to delegate work: if a worker can delegate their work to others, he/she is more likely an IC

  • Type of payment: if the worker has to pay his/her own tax (ie the employer does not deduct it for him/her) he/she is more likely an IC

Organisation test: the organisation test states that if the work done by a worker is ‘part and parcel’ to or integral to the organisation, the worker is an employee. However, Mason J in Stevens v Brodribb noted that this test simply adds more difficulty to the indicia test, so it appears uncertain if this test would be used.
Borrowed employees
Where one employer an employee from another employer, the original employer will remain vicariously liable for the employee’s acts if the original employer retains control over the employee (such as retaining the power to dismiss the employee) (Mersey Docks & Harbour Board v Coggins & Grffitih (Liverpool)).

  1. Was E’s act done in the course of his/her employment?

The traditional Salmond test (in less antiquated language) states that an employer is responsible for wrongful acts done by his/her employee is the act is

  1. Either a wrongful act authorised by the employer or

  2. A wrongful and unauthorised mode of doing an act authorised by the employer

Authority may be actual or apparent.

  • Actual authority requires express or implied authorisation.

    • Express authority is given where the employee is told to do a particular thing

    • Implied authority will be found if, for example, the employee was hired to do the act that was done (eg coach driver driving a coach).

  • Apparent authority to do a particular task will be presumed if the employer has behaved in such a way as to create the impression the act was authorised.

  1. Was the employee authorised to perform the wrongful act?
[Discuss per facts]

  1. Was the wrongful act an improper mode of performing an authorised act?
A court may use different tests to decide this question depending on whether the tort committed was negligent or intentional. [point out whether negligent or intentional]

  1. Negligent tort

In the case of negligent torts, n employer will be liable for tortious...

Buy the full version of these notes or essay plans and more in our Torts A Notes.

More Torts A Samples