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Concurrent, Preportionate And Vicarious Liability Notes

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VI. Concurrent, Proportionate and Vicarious Liability Vicarious Liability Vicarious liability is the imposition of liability on an otherwise blameless party who has some sort of responsibility over the tortfeasor. For example, an employer will generally be vicariously liable for the negligence of his employees. Vicarious liability will only be imposed if:

* There is a requisite relationship between the defendant and the tortfeasor.

* The negligence occurred within the course of employment.

* The tortfeasor's conduct was tortious (as in, passes the usual tests of negligence), i.e., at fault. CIVIL LIABILITY ACT 2002 PART 1 - PRELIMINARY The scope of the employer's liability will be limited to the original tortfeasor will be liable.

3C Act operates to exclude or limit vicarious liability Any provision of this Act that excludes or limits the civil liability of a person for a tort also operates to exclude or limit the vicarious liability of another person for that tort. Relationship of Employer and Employee

1. The appellant was a patient who heavily relied on a prescription drug to relieve her neck pain.

2. She suffered a serious overdose of drugs in

1974. She was admitted to the respondent hospital in late 1974 on three occasions connected with her drug dependence.

3. Dr Chambers suggested microsurgery to help relieve her pain, however, at this stage, he failed to warn her that there was a risk of developing paraplegia and a low prospect of success in achieving pain relief.

4. The appellant was warned only of the risk of some sight numbness in her right hand following the operation.

5. Ultimately, six days later after the surgery, the appellant developed quadriplegia.

6. In 1978 her second husband divorced her.

7. After he left her, she received no money from him. Her sole source of income was an invalid pension.

8. She fell prey to the complications of quadriplegia including a range of urinary infections and body spasm, not to say the total dislocation of ordinary life.

9. She sued the doctor and the hospital. She expressed her causes of action in negligence, contract and assault. Held, Appeal dismissed.The doctor was working as an independent contractor of the hospital and as a consequence, there was no vicarious liability. A non-delegable duty is a duty which cannot be assigned to someone else.This means that when one owes a non-delegable duty towards another, he has a duty not only to take reasonable care himself, but ensure that others take reasonable care (since he cannot discharge his duty by 'delegating' or transferring it to others).
As a result, a defendant who owes a nondelegable duty will be liable for the wrongdoing of others even if they are independent contractors.

An employer is vicariously liable for the tortious acts of an employee but that a principal is not liable for the tortious acts of an independent contractor: Sweeney v Boylan Nominees (2006); Hollis v Vabu (2001) Whether the relationship can be regarded as a contract for service depends on the degree of the control exercised by the employer upon the employee. It may be inferred from multiple facts: Zuijs v Wirth Brothers (1955) Where an employer conducts an enterprise in which persons are identified as representing that enterprise, this indicates that those persons are employees: Hollis v Vabu (2001) The circumstance that the business enterprise of a party said to to be an employer is benefited by the activities of the person in question cannot be a sufficient indication that this person is an employee. Other factors should be taken into consideration: Hollis v Vabu (2001); Sweeney v Boylan Nominees (2006) Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 While a hospital owes a non-delegable duty to ensure that the treatment which it undertakes to provide to a patient is performed with reasonable care that duty depends on the scope and nature of the medical services which the hospital has undertaken to supply and does not extend to treatment which is performed by a medical officer pursuant to a direct engagement with the patient, and not on behalf of the hospital.

* In determining the vicarious liability of a hospital for a specialist medical practitioner's failure to warn the plaintiff of possible dangers and limited benefits of a proposed procedure, the issue is whether the relationship between them was one of employer and employee or of principal and independent contractor.

* Australian courts look at the totality of the relationship between the parties; the alternative manner of ascertaining the existence of the relationship, by the application of the "organisation test", is, as a matter of Australian law, at best one relevant element in discerning the nature of the relationship between the parties.

* In the instant case, the doctor at all material times carried on his own specialist practice of which surgery was an essential incident and required facilities obtainable only in a hospital. He undertook to treat free of charge those who applied to the hospital for relief, in return for operating privileges, nursing care and accommodation in respect of those of his own patients whom he would book into the hospital. He received no remuneration from the hospital. The hospital retained a slight degree of control over the activities of the honorary medical staff necessary to maintain administrative efficiency and intregrity. The totality of the relationship between the parties convincingly suggested the conclusion that in treating the plaintiff the doctor was engaged in his own business and not the hospital's. 1

VI. Concurrent, Proportionate and Vicarious Liability

* There was no basis for the conclusion that he might have fulfilled two roles, being an independent specialist working on his own account in the treatment of his own patients, and working as an employee on the hospital's behalf when treating the hospital's patients. The doctor was never an employee of the hospital, but was always an independent specialist who had an agreement with the hospital. They basically working themselves or they working for the employer, In the present case, the doctor was independent contractor of the The plaintiff was a private patient, therefore, the pension paid by the plaintiff to the doctor directly. The patient also pay the hospital, but for separate thing, as nursing work, not include the doctor fee. The doctor used the hospital. Though the hospital could control the doctor's work at some degree, but restricted to the facility use.

1. The appellant, an acrobat, performed upon the trapeze in conjunction with a colleague.

2. During a performance in which the latter hung from a rope with his hands while the appellant grasped his feet and was thus suspended beneath him, his colleague slipped from the rope so that both fell, his companion falling on top of the appellant.

3. It was in this way that the appellant sustained his injuries and there is no question that they arose out of, as well as in the course of, the work he was doing for the respondent, the circus proprietors who in the Workers' Compensation Commission. Held, the contract between the appellant and the respondent was a contract of service, not an independent contract.

Zuijs v Wirth Brothers (1955) 93 CLR 561 An indicia of the relationship of employer and employee is that the employer lawfully may command the employee as to the manner in which the employee is to do his or her work. It is not material to the existence of the relationship of employer and employee that, in the case of employees who are employed to perform specialised functions, there may be little scope for the exercise by the employer of his power of command. In this case, 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 person for the contract

* Remuneration in wages

* Right to suspend or dismiss for misconduct

* Where the performance took place in the circus program; safety issues; the number, time and manner of rehearsals; the costume of the performers and conduct before the audience; and participation in the grand parade

* A wide field of conduct that would be involved in a touring circus Query whether or not the employer has exercised some control over somebody. (legal authority to exercise control). Evidence of control, see above notes in blue.

1. The plaintiff, Hollis, suffered personal injury when, as a pedestrian, he was struck by an unidentified cyclist negligently riding a bicycle on a footpath in breach of traffic regulations.

2. In an action by the plaintiff to recover damages for personal injury, the following evidences are made out: a. at the time of the accident, the cyclist was on Vabu's business and was wearing the uniform bearing Vabu's trade name b. Vabu had known for some time before the accident that a significant number of bicycle couriers disobeyed traffic regulations and posed a danger to pedestrians, c. Vabu set the rates of remuneration of its bicycle couriers without negotiation.

3. On appeal by the plaintiff against the trial decision. Held, Appeal allowed.The relationship between Vabu and the cyclist was that of employer and employee, and therefore,Vabu was vicariously liable.

Hollis v Vabu (2001) 207 CLR 21 Where an employer conducts an enterprise in which persons are identified as representing that enterprise, this indicates that those persons are employees. On the other hand, an independent contractor carries out his or her work as a principal, not as a representative of the employer. In general, under contemporary Australian conditions, the conduct by the defendant of an enterprise in which person are identified as representing that enterprise should carry on obligation to third persons to bear the cost of injury or damage to them which may fairly be said to be characteristic of the conduct of that enterprise.

* An employer is vicariously liable for the tortious acts of an employee but that a principal is not liable for the tortious acts of an independent contractor.

* The circumstance that the business enterprise of a party said to to be an employer is benefited by the activities of the person in question cannot be a sufficient indication that this person is an employee.

* In the present case, additional concerns are made upon:

* These couriers were not providing skilled labour or labour which required special qualifications..

* The couriers had little control over the manner of performing their work.

* The couriers were presented to the public and to those using the courier service as emanations of Vabu.

* They were to wear uniforms bearing Vabu's logo.

* There is a matter of deterrence.

* Vabu had the knowledge as to the dangers to pedestrians presented by its bicycle couriers and the failure to adopt effective means for the personal identification of those couriers by the public.

* Vabu superintended the couriers' finances.

* There was no scope for the couriers to bargain for the rate of their remuneration. 2

VI. Concurrent, Proportionate and Vicarious Liability

* The situation in respect of tools and equipment provided by Vabu also favours.

* Although a more beneficent employer might have provided bicycles for its employees and undertaken the cost of their repairs, (Vabu did not provide the bicycle), there is nothing contrary to a relationship of employment in the fact that employees were here required to do so...

* This is not a case where there was only the right to exercise control in incidental or collateral matters.

* Vabu's whole business consisted of the delivery of documents and parcels by means of couriers.

* It was no the case that the couriers supplemented or performed part of the work undertaken by Vabu or aided from time to time

1. The defendant, Boylan Nominees Pty Ltd, was the owner of a commercial refrigerator which was placed in the "convenience store" area of a suburban service station.

2. At the request of the service station, the defendant arranged for a mechanic, Mr. Comninos, to repair a defect in the refrigerator door.

3. The repairs were carried out negligently by Mr. Comninos with the result that the plaintiff, Mrs. Sweeney, suffered personal injury when the door fell on her as she opened the refrigerator to buy a carton of milk.

4. Evidence established that Mr. Comninos carried on his own business and was not an employee of the defendant. His van carried his own company name and the defendant did not provide him with a uniform or equipment. Mr. Comninos was paid by the defendant upon submitting an invoice for the work performed and for spare parts.

5. The plaintiff commenced proceedings against the defendant for vicarious liability. Held, Appeal dismissed.The defendant was not liable to the plaintiff 's injury arising from the negligent act of the defendant's independent contractor.

Sweeney v Boylan Nominees (2006) 227 ALR 46 The critical distinction is to be maintained between employees, or whose conduct the employer generally will be vicariously liable, and independent contractors, for whose conduct the employer, i.e., the person engaging the independent contractor, generally will not be vicariously liable. It is necessary always to recall that much more often than not, question of vicarious liability fall to be considered in a context where one person has engaged another (for whose conduct the first is said to be vicariously liable) to do something that is of advantage to, and for the purposes of, that first person. Yet it is clear that the bare fact that the second person's actions were intended to benefit the first, or were undertaken to advance some purpose of the first person, does not suffice to demonstrate that the first is vicariously liable for the conduct of the second. The plaintiff try to argue Comnios worked for the benefit of the defendant. Court: that is not enough. Clearly Comnios had his own business, the business Comnios carried out was totally different from the defendant carried. In addition, the defendant not responsible for Comnios's negligence that should be covered by the insurance. Police Tort Claims LAW REFORM (VICARIOUS LIABILITY) ACT 1983 PART 1 - PRELIMINARY 6 Police officer For the purposes of this Act, a police officer shall be deemed to be a person in the service of the Crown and not a servant of the Crown. PART 3 - VICARIOUS LIABILITY OF CROWN FOR PERSONS IN ITS SERVICE 8 Further vicarious liability of the Crown (1) Notwithstanding any law to the contrary, the Crown is vicariously liable in respect of the tort committed by a person in the service of the Crown in the performance or purported performance by the person of a function (including an independent function) where the performance or purported performance of the function: (a) is in the course of the person's service with the Crown or is an incident of the person's service (whether or not it was a term of the person's appointment to the service of the Crown that the person perform the function), or (b) is directed to or is incidental to the carrying on of any business, enterprise, undertaking or activity of the Crown. PART 4 - LEGAL PROCEEDINGS FOR DAMAGES FOR TORTS BY POLICE OFFICERS

Normally, not sue the police personally, have sue the Crown directly unless the Crown can deny the liability, then the plaintiff have to sue the police personally.

9B How can police tort claims be made?
(1) A "police tort claim" is a claim for damages for a tort allegedly committed by a police officer (the "police officer concerned" ) in the performance or purported performance of the officer's functions (including an independent function) as a police officer, whether or not committed jointly or severally with any other person. 3

VI. Concurrent, Proportionate and Vicarious Liability

(2) Except as provided by this Part, a person may not in any legal proceedings make a police tort claim against the police officer concerned, but may instead make the claim against the Crown.

1. The plaintiff was injured during the course of an arrest and was awarded general damages, past expenses and past economic loss. Leave was sought to challenge the award of amounts for exemplary damages, to be paid by the State. Held, Appeal dismissed.

New South Wales v Bryant [2005] NSWCA 393

* The Law Reform (Vicarious Liability) Act 1983 (NSW), s 8, makes the Crown liable in respect of "the tort" of the person in its service, an expression which must be understood to encompass both the acts, the state of mind accompanying the acts and the breach of duty.

* The statement that the Crown is vicariously liable "in respect of " a tort committed by a police officer appears to be a statement that the Crown is responsible for payment of any damages, for which the police officer would be responsible if he had been sued.

* The effect of the Police Legislation Amendment (Civil Liability) Act 2004 (NSW), s 9B(2), is to make the State solely liable for torts committed by police officers in the performance or purported performance of their functions. The intention of the Police Legislation Amendment (Civil Liability) Act is to protect police officers and there is no suggestion this Act was intended to diminish the rights of citizens who may be the victims of conscious wrongdoing.

* Since there was no reason to suppose that police officers could not be liable for exemplary damages prior to the introduction of s 9B(2) in circumstances where the Crown was vicariously liable, that Act must have been introduced on the assumption that the Crown was, and would remain, liable for exemplary damages. In this case, the Crown was required to pay exemplary damages. Cannot limited the tortious liability by defending s 3C. Course of Employment

An employer is only liable for a tort committed by an employee in the course of his or her employment: Joel v Morison (1834)

* It is not sufficient to establish that, but for the employment, the wrongful act could not or would not have occurred: Blake v JR Perry Nominees [2012]
Whether a given act of an employee is in the course of employment is a question of fact dependent on the circumstances of the case: Bugge v Brown (1919)

* Authorised conduct:

* An employer will be liable for the employee's tortious behaviour if it is an authorised behaviour: Blake v JR Perry Nominees [2012]

* Restrictions on the mode of performance of those acts are mere private arrangements between the master and servant and do not affect the liability to third parties: Canadian Pacific Railway v Lockhart
[1942]

* For unauthorised conduct:

* An employer is liable even for unauthorised acts if they are so connected with authorised acts as they may be regarded as modes -- although improper modes --- of doing them: Starks v RSM Security
[2004]

* 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 (too remote to be connected with the duty of the employment): Deatons v Flew (1949) An instruction or a prohibition may limit the sphere of employment, but not necessarily deny the liability of the employer: Bugge v Brown (1919) Where the teacher-student relationship is invested with a high degree of power and intimacy, the use of that power and intimacy to commit sexual abuse may provide a sufficient connection between the sexual assault and the employment to make it just to treat such contact as occurring in the course of the employment: New South Wales v Lepore (2003)

4 1. While crossing a public road, the plaintiff was struck and injured by a horse-drawn cart driven by the defendant's employee.

2. In the plaintiff 's negligence action against the defendant for damages for personal injury, the defendant's witnesses stated that, in the ordinary course of things, the cart was not driven in the particular locality in the City of London where the accident occurred. Held, verdict for the plaintiff.The master was liable.

1. The plaintiff suffered damage in a fire which started on land belonging to the defendant.

2. The fire had been lit by Winter, an employee of the defendant, in order to cook some food given to him by the plaintiff for his midday meal.

3. Winter was instructed to cook at a deserted homestead about a mile or more away from the work, but, instead of going there, began to cook at an old chimney close to the operations.

4. It seems the purpose of the instruction with respect to the place of cooking was not to avoid the danger of the fire getting out of control, but to obviate the need to take a frying pan in which to cook the meat. Held, the employee's behaviour, according to the surrounding circumstances, was in the course of employment. Appeal allowed, judgement for the plaintiff.

1. The plaintiff, who was dunk, asked for the publican, that the barmaid said that he was in the saloon bar.

2. The plaintiff then pushed his way through the customers in the wrong direction upsetting a number of glasses of beer.

3. The barmaid then asked the plaintiff to go away, whereupon he used filthy expressions and struck the side of her face.

4. Shen then threw in his face the beer in a glass she was holding, but the glass slipped out of her hand and also hit his face.

5. The jury found a verdict against both defendants, the barmaid and the company employing her.

6. On appeal by the company. Held, Appeal allowed.The company was not liable.

1. The plaintiff, Mr. Starks, a drunken patron at the Bondi Hotel, was asked to leave by a security officer, Mr.Wilson, the first defendant.

2. When the plaintiff, who was not acting in any way aggressively, questioned this request, the first defendant head-butted him causing personal injury.

3. In respect of this incident, the first defendant was charged with the criminal offence of assault and pleaded guilty.

4. On appeal by the plaintiff against the employer of Mr.Wilson. Held, the security company is vicariously liable.

VI. Concurrent, Proportionate and Vicarious Liability Joel v Morison (1834) 172 ER 1338 An employer is liable for a tort committed by an employee in the course of employment. However, an employer is not liable where an employee commits a tort while "on a frolic" of his or her own. Court held, he was still driving the car on his master's business though there was a change of the exact tour. However, if he gave the car to a stranger to do other stuff and thus caused the tort, it would be too remote. Bugge v Brown (1919) 26 CLR 110 Whether a given act of an employee is in the course of employment is a question of fact dependent on the circumstances of the case.

* The rule of law founded on that principle is that the master is responsible, provided the servant is acting in "the course of his employment".
But the law recognises that it is equally unjust to make the master responsible for every act which the servant chooses to do.
The act of the servant is regarded as that of a stranger:

* if he did not assume to act within the scope of his employment; or

* if what he did was a thing so remote from his duty as to be altogether outside of, and unconnected with, his employment.
A prohibition, either as to manner, or as to time, or place, or even as the the very act itself, will not necessarily limit the sphere of employment so as to exclude the act complained of, if the prohibition is prohibited.
An instruction or a prohibition may, of course, limit the sphere of employment. The question is whether the defendant entrust the employee to do his business. Look into the purpose of the prohibition itself, the nature of the prohibition, the strength of the prohibition. Deatons v Flew (1949) 79 CLR 370 An act of an employee which is unconnected with what he or she is employed to do will not be an act in the course of employment even though that act occurs on the employer's premises and while the employee is otherwise engaged in his or her employment duties. The truth is that it was an act of passion and resentment done neither in furtherance of the master's interests nor under his express or implied authority nor as an incident to or in consequence of anything the barmaid was employed to do. It was a spontaneous act of retributive justice. The case concerns a person who did an unlawful act. So remote to the responsibility to her job. She would be responsible for anything related to serving drinks. Starks v RSM Security [2004] NSWCA 351 An employer may be vicariously liable for a criminal assault committed by an employee where the act of the employee is an unauthorised mode of doing what the employee was employed to do. In such a case, the act of the employee is within the course of employment. An employer is liable even for unauthorised acts if they are so connected with authorised acts as 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. Compare with Deatons v Flew. Rationale in this case, see the underline part above.

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