#7471 - Concurrent Liability Vicarious Liability - Torts Law

Class 15- Concurrent liability- vicarious liability:

Vicarious liability: In the course of employment

Non delegable- a duty that can be delegated or not.

Non-delegable duty (mainly used for schools) is harder to disprove than vicarious liability. It is easier at the breach stage. Vicarious liability is hard to find there is a breach (where is must be in the duties of employment). Test is pretty much D v S.

Benefits of concurrent liability:

• Multiple defendants can be liable in tort for the same injury or damage. This is concurrent liability.

• The plaintiff can choose to sue one or more defendants in a single action or series of actions.

• More than one action can be brought under the CLA but there are restrictions on recovery of damages and costs in subsequent actions. Law Reform (Miscellaneous Provisions) Act 1945 (NSW), s(1)(a)(b).

• It is cheaper to sue all relevant defendants in a single action.

• A defendant who is only partially responsible can claim contribution from another tortfeasor who is liable to the plaintiff.

• E.g. A pedestrian is injured as a consequence of a two car collision between the defendants.

• Concurrent liability:

  • Where tortuous conduct occurs during a joint enterprise.

  • Liability for the tortuous conduct of an employee within the course of employment (vicarious liability)

  • Where there are special duties to ensure that others take due care (non delegable duties)

  • Where there are multiple torts causing the same damage.

Joint enterprise:

• Concurrent liability provides a mechanism for attributing liability for tortuous wrongdoing to persons engaged in a joint enterprise or common design.

• In Brooks v Bool (1928) a landlord and a passerby investigated a gas leak in a tenant’s shop. They injected it with a lighted match and caused an explosion. The landlord was held liable for the passerby’s negligence. The joint act was the immediate cause of the explosion.

Vicarious liability:

• Concurrent liability can impose legal responsibility on an otherwise blameless defendant for the tortious conduct of another.

• The tort must be in the course of employment and that of an employee.

• The control test was the classical test for deciding if they are an employee. The greater the control the more likely they are. If an employee can exercise control they can also minimise risks.

• Other factors that are relevant include, hours of work, the right to hire and fire, payment of wages, deductions for taxation, provision of equipment and dress codes.

• If workers determine their own hours, provide their own equipment, can delegate the job to someone else and are paid if they complete the job they are independent contractors.

• Their work must be an integral part of the business and not an accessory to it.

Non-delegable duties:

• An employer can be liable for the tortious conduct of a person who is an independent contractor. This is mainly when the plaintiff is vulnerable and they had the capacity to exercise some control.

• A defendant has a duty to ensure that others delegated a task take reasonable care for the protection of the plaintiff.

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Hollis v Vabu (2001) – Who is an employee?

Facts:

• Hollis was injured when struck by a cyclist on the footpath.

• The cyclist was wearing a jacket with Crisis Couriers on it (owned by Vabu).

• The cyclists had to sign contracts which required them to report accidents but said that the company didn’t pay hospital bills. They had to wear the uniform at all times and be neat and tidy.

• Any damage of goods was deducted from their pay.

• There were no payments for annual or sick leave.

Prior proceedings:

• Hollis lost in the NSW CA because it was found that Vabu’s couriers were independent contractors for tax purposes and not employees.

• Hollis appealed to the HC.

Legal issue:

• Was the cyclist who ran over Hollis an employee of Vabu?

Outcome:

• Appeal allowed. Hollis won. Vabu was vicariously liable for the consequence of the courier’s accident.

Legal reasoning:

• Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ reasoned:

• Vicarious liability: An employer is vicariously liable for the tortious acts of an employee but not liable for the acts of an independent contractor. They both perform work for the benefit of their employers but this is not sufficient to make them an employee. Yet there is a difference between a person who serves his employer and a person who carries on a trade of his own.

• Control: The law has shifted from the test of actual exercise of control to the right to exercise control. The totality of the relationship must be considered. The bicycle couriers did not own their own bicycles and did not have independence in the conduct of their operations. They were unable to make an independent career and were not running their own business. They had little control over the manner in which they performed their work and could not refuse work- ‘any driver who does so will no longer work for this firm’. They were presented to the public in Vabu uniforms. They did not make it obvious to the public what the biker’s identity was. The bike riders had pay summaries and could not bargain for remuneration.

• There was little scope for business enterprise on their own account. They had to replace equipment and be responsible for the cost of repairs.

• The fact that the couriers had to buy their own bicycles reflects that they were in employment more favourable to the employer and not that they were independent contractors.

• Vabu controlled the direction of labour and the couriers performed all Vabu’s operations.

• McHugh J reasoned that Vabu is liable because the courier was their agent and acting as their representative.

Ratio decidendi:

• Vicarious liability is when the employer is vicariously liable for the tortious acts of an employee but not for the tortious acts of an independent contractor.

• When persons are identified as representing that enterprise they should carry an obligation to third persons to bear the cost of injury which may be fairly said to be characteristic of the conduct of that enterprise.

• A person is an employee if; the person is unable to make an independent career as a free lancer, have little control over the manner they perform their work (i.e. set work hours and can’t refuse work), if they are presented to the public in the employer’s uniforms, if the employer has knowledge of danger to the public and doesn’t adopt an effective means of personal identification, if the employer superintended their finances (i.e. they can deduct pay for errors and there is little room for bargaining about remuneration), if the person has to replace any of the employer’s damaged tools and if there is considerable scope for the actual exercise of control (i.e. they can direct what work had to be done and the person does all their operations).

• A principal may be liable for the careless conduct of an agent causing damage to a third party even if the agent is not an employee.

• Nature of work/practices

• Degree of control/rosters

• Uniform

• Deterrence of future harm

• In control of the currier’s finance

• Curriers were responsible for their own equipment

• There was considerable scope for actual exercise of control

• Vabu was vicariously liable as he was an employee.

Notes:

• McHugh suggests that employment is too narrow a basis for the imposition of vicarious liability. There is a lot of outsourcing work

• In Sweeney v Boylan Nominees (2006) the HC confirmed that a principal is not vicariously liable for the wrongdoing of an independent contractor. It rejects attempts to extend it to agents who act for the principal’s benefit. There must be a close connection between the principal’s business and the contractor’s conduct to be vicariously liable.

In the Course of employment:

• An employer is liable for business risk related to the enterprise. The act must be in the course of employment.

Negligent performance of the employment:

• In NSW v Lepore (2003) found Salmond’s definition of being in the course of employment unhelpful. They showed what negligence is within the course of employment. It concerned the sexual abuse of children by teachers. An employer should not be liable just because the employment offers an opportunity for wrongdoing

  • Gummow and Hayne JJ reasoned that the performance must have been done in the apparent execution of authority given to the employee by the employer.

  • The sexual abuse would not fit into the category while chastisement of a student on school premises would.

  • Callinan J reasoned that criminal misconduct is outside the scope of a teacher’s duties.

  • Kirby J thought that the risk was inherent because it was in school time and on school property. It would be reasonable for an employer to be vicariously liable.

• In Limpus v London General Omnibus Co (1962) the employer was liable when bus drivers disobeyed the order not to race rival buses.

• In Rose v Plenty (1976) milkmen were prohibited from getting children to help deliver the milk. The employer was held negligible to a child negligently injured by the milkman.

• The employer is not liable when the employee is not undertaking work within that capacity.

Conduct outside the employment:

• Employees are said to be on a frolic of their own when the conduct is outside the employment. (Joel v Morison (1834))

Independent discretion or statutory authority:

• The employer is not liable when the employee exercises independent discretion or authority or under statute.

• In Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd (1986) an employer was not held liable for the negligence of its employee, a ship’s pilot, because the negligence was in an...