topic9-vicariousliability[1]

8/4/2019 Topic9-Vicariousliability[1]

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Topic9Vicarious Liability Vicarious Relations and agency Servants and Independent Contractors Non-

delegable duties and vicarious liability The Control Test In the course of employment

VICARIOUS LIABILITY

One person is held liable for a tort committed by another person.

Always Strict Liability

Categories of Vicarious Liability:

Employer and servants

Employer and Independent contractors

Principal and agent

Vicarious liability makes D (usually the master/employer) liable for the torts of another

(usually his or her servant/employee) although the master is without any blame or fault.

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Justification for Vicarious Liability of Employers

Desirability of providing a solvent defendant

Servant being generally unlikely to be worth suing Capacity of master to absorb the cost of liability as part of the cost of the

enterprise

Justness of the conclusion that profit-making enterprises should be made to

compensate for losses inflicted by the enterprise on third parties, where those

losses are caused by persons within the enterprise Deterrent to encourage employers to institute proper safety standards within the

enterprise

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Who is a Servant?

A servant is one who is under a contract of service to another, an independent contractoris under a contract for services

The contractor is paid for the job by results rather than for time spent, receives a fee orcommission, the servant receives wages

The contractor is usually employed on a casual basis, the servant on a permanent basis

The contractor usually specifies his/her work schedule and supplies his/her own tools

The master may select the servant for the task

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Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16confirmed the existence of

two tests to distinguish the servant from the independent contractors. The control test and

the integration into the enterprise; the control test having priority.

Integration test whether the employee is part and parcel of the organisation:Stevenson v Macdonald [1952] 1 TLR 101 at 111.

THE CONTROL TEST used to determine the type of relationship involved, therefore

establishing whether vicarious liability will apply.

Mason J in Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16pointed out

that the control test was based on the right to control the activities of the employee.

The court looks more to the practice of the parties rather than the contract itself.

If the Master controls what the employee does and how it is done, then the employee is aservant. The relationship will give rise to Vicarious Liability.

Zuijs v Wirth Bros: The case of the trapeze artist

What is essential is whether there is lawful authority to command or give directives if

there is scope for it: Stevens v Brodribb SawmillingCo Pty Ltd (1986) 160 CLR 16.

WHO IS A SERVANT? THE CONTROL TEST

If the Master controls what the employee does and how it is done, then the employee is a

servant. The relationship will give rise to Vicarious Liability.

Zuijs v Wirths Bros Circus Held by the High Court to be a worker because of an

application of the control test.

The Facts: Zuijs was a acrobat for the circus and was injured during his employment.

The Issue: Was Zuijs an employee or independent contractor under a control test?

The Decision: The factors that were taken into consideration were the obligation of the

acrobat to dress as directed, attend rehearsals and participate in the grand parade.Otherwise there was little opportunity for the acrobat to be controlled in doing his work

and the work was highly skilled

The finding meant that the worker received compensation for and injury he received.

Stevens & Gray v Brodribb Sawmill Plantiff were held to be an independent contractor

due to the implementation of the control test.

The Facts: Stevens and Gray were engaged by the sawmill, as bulldozer and truck

drivers. Each owned there own vehicle and worked in the bush loading and transporting

logs for the sawmill. They serviced and supply fuel for their own vehicles and were paid



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on the basis of the volume of logs transported. The Sawmill did not deduct tax form theirpayments. One was injured and claimed compensation as employee.

Held: Courts held that they were not employees but rather independent contractors due to

the control test, as the degree of control was minimal. Also, the matters regarding thefollowing were taken into consideration for the control test:

P had their won equipment.

Set own working hours

Paid by volume of workload

No guarantee of work

No tax deduction from pay.

Grey had delegated work

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In the Course of Employment

Commonwealth v Connell (1986) 5 NSWLR 218: The defendant is liable only if the

servant committed the tort in the course of his or her employment.

The question asked is: Was the employee doing what he or she was employed to do?

Century Insurance Co Ltd v Northern Ireland Transport Board [1942] AC 509 shows

that a breach of an express prohibition by the servant will not place the servantautomatically outside the course of employment.

Limpus v London General Omnibus Co (1862) 1 H & C 526; 158 ER 993: racing a busagainst another bus in the course of its service operations contrary to the masters

instructions has been held to be within the course of employment.

Ilkiw v Samuels [1963] 2 All ER 879 Diplock J stated that it was a prohibition on themode of carrying out the job; that is, a prohibition against conduct within the sphere of

employment. Employer was therefore liable for the negligence of the servant in

entrusting the driving of a truck to an unqualified driver.

Frolic of servants own

Actions of the employee were not reasonably incidental to their duties.Hilton v Thomas

Burton [1961] 1 WLR 705: workers finished work early and had an accident on their way

to a caf.

Temporal limits of employment

Period of employment begins from the moment the servant starts work.Ruddiman & Co

v Smith (1889) 60 LT 708: leaving on of taps in a washroom by a servant who had

completed his working day was found to be in the course of employment.



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Assault by servant

An excessive mode of performing his or her duty to the employer.Deatons Pty Ltd vFlew (1949) 79 CLR 370: barmaid who flung a glass towards a customer was a privateact of retaliatory self-defence. Her actions were not connected with, or within the scope

of, her duties of maintaining the bar.

Deatons v. Flew (1949) 79 CLR 370

The Facts: Here a barmaid who had been verbally and physically assaulted by a drunken

customer threw a glass of beer in his face. The glass slipped and blinded the customer in

one eye. The customer sued the hotel owner for damages.The Decision: The High Court held that the barmaid was the agent of the hotel owner

only for the purpose of serving customers but not for the purpose of defending herself

against assault and accordingly the hotel owner was not liable.

Dishonesty by servant

Must be some nexus between the dishonest act of the servant and the circumstances of theemployment for the employer to be liable. Morris v Martin & Sons Ltd [1966] 1 QB 716:

employer liable as the stole was stolen by the servant in the course of employment. The

servants duty being to clean the stole.

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Employer and Independent Contractors

The independent contractor is regarded as the principal, therefore the employer not liable

for works carried out by the contractor.

Circumstances where an employer may be liable for an independent contractor:

Employer has authorised the contractor to commit the tort;

Employer negligent in the choice of the contractor;

Employer negligent in the instructions given to the contractor; and Employer may have committed through the contractor a tort of strict liability.

The courts have chosen to rationalise the liability of an employer on the basis of theemployers breach through the contractor of a non-delegable duty of care binding the

employer:Burnie Port Authority v General Jones Pty Ltd (1994) 120 ALR 42.

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Non-delegable duty of care



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Vicarious liability arises in circumstances when the law holds one person responsible

for the misconduct of another, although he is himself free from blameworthiness or fault

(Fleming J, Law of Torts (9th edition) at 409)

Non-delegable duty arises in circumstances where a person cannot be excused fromliability even if reasonable care is exercised in entrusting responsibility to another person.

Civil Liability Act:

5Q Liability based on non-delegable duty

The extent of liability in tort of a person ("the defendant") for breach of a non-

delegable duty to ensure that reasonable care is taken by a person in the carryingout of any work or task delegated or otherwise entrusted to the person by the

defendant is to be determined as if the liability were the vicarious liability of the

defendant for the negligence of the person in connection with the performance ofthe work or task.

This section applies to an action in tort whether or not it is an action innegligence, despite anything to the contrary in section 5A.

Non-delegable duty of care arises in protective relationships such as:

Master and servant;

School authority and principal;

Hospital and patient;

Occupier and lawful visitor or contractual entrant; Rylands v Fletchersituations and

Bailees and sub-bailees.Employer is not liable for collateral or casual negligence of contractor in carrying out

work.

Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 hospital not liable for thenegligence of the servant as he had been privately consulted by the patient and the

hospital had merely lent its facilities and support staff to carry out the operation.

Albrighton v Royal Prince Alfred Hospital (1980) 2 NSWLR 542 hospital was liable as

the patient went directly to the hospital for advice and treatment.

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Principal and agent

Generally, vicarious liability does not apply to the principal and agent relationship.

It can however, become be established where the principal appoints an agent to representhim or her in dealings with third parties.

The test used is narrower than that of the course of employment.

Only arises in relation to acts done with reference to carrying out their authority.

Arises in relation to statements or representations made by the agent.

Burnie Port Authority v General Jones Pty Ltd (1994) 120 ALR 42

P suffered damage when a large quantity of its frozen vegetables was ruined by a firewhich destroyed Ds building where the vegetables were stored. At the time of the fire,

Ds building was being extended with the construction of further cold storage facilities.

That building work had introduced hazardous substances to the site. Welding works onthe site then ignited the substances, causing the blaze. The Supreme Court of Tasmania

found Ds liability lay in accordance with theRylands v Fletcher rule. On appeal by D:

HELD, dismissing the appeal: D, having allowed its independent contractor to introducedangerous substances to the site, owed a non-delegable duty of care to P to ensure that its

contractor took reasonable steps to prevent the occurrence of a fire. The breach of that

duty of care attracted liability under the ordinary principle of negligence. The rule inRylands v Fletcher, with all its difficulties, uncertainties, qualifications and expectations,

should now be seen, for the purposes of the common law of this country, as absorbed by

the principles of ordinary negligence. Under those principles, a person who takesadvantage of his or her control of premises to introduce a dangerous substance, to carry

on a dangerous activity, or to allow another to do one of those things, owes a duty of

reasonable care to avoid a reasonably foreseeable risk of injury or damage to the personor property of another.

Rylnds v Fletcher (1968) LR 3 HL 330

D arranged for the construction of a water reservoir on its land for use in connection withits mill operation. Underneath the close of the land on which they proposed to constructthe reservoir there was certain old and disused mining shafts and passages. The weight of

the water in the reservoir broke through those shafts, passed down the passages and into

the workings under nearby land owned by P and flooded Ps mine, causing considerabledamage.

The judgment of the Court of the Exchequer Chamber delivered by Blackburn J: We



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think that the true rule of law is that the person who for his own purposes brings on hislands and collects and keeps there anything likely to do mischief if it escapes, must keep

it in at his peril, and, if he does not do so, is prima facie answerable for all the damage

which is the natural consequence of its escape. He can excuse himself by shewing that theescape was owing to the plaintiffs default; or perhaps that the escape was the

consequence of vis major; or the act of God

HELD: (on appeal to the House of Lords): Their Lordships expressly approved the

judgment of the Exchequer Chamber. Lord Cains went on to state: on the other hand

if the defendants, not stopping at the natural use of their close, had desired to use it for

any purpose which I may term a non-natural condition was not in or upon it, for thepurpose of introducing water either above or below ground in quantities and in a manner

not the result of any work or operation on or under the landand if in consequence of

any imperfection in the mode of their doing so, the water came to escape and to pass ofinto the close of the plaintiff, then it appears to me that which the defendants were doing

they were doing at their own peril.


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