Hollis v Vabu

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Citation: Hollis v Vabu Pty Ltd (2001) 207 CLR 21

This information can be found in the Textbook: Sappideen, Vines, Grant & Watson, Torts: Commentary and Materials (Lawbook Co, 10th ed, 2009), pp. 612-6 [15.45] or here

Contents

Background facts

  • The Plaintiff [Hollis] was a cyclist who got hit by an unidentified person, who was working for the Defendant [Vabu] name on it.
  • The status of such couriers in the Defendant's organisation was undefined - it is unclear whether they were contractors or employees.

Legal issues

Judgment

  • "It has long been accepted, as a general rule[35], that 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."[1]
  • The control test is no longer a conclusive test for a requisite relationship. Various factors are to be considered.
    • "[G]uidance for the outcome is provided by various matters which are expressive of the fundamental concerns underlying the doctrine of vicarious liability. These include, but are not confined to, what now is considered 'control'."[2]
  • The fact that the worker had to supply its own bicycle shouldn't be viewed as conclusive that the worker was independent - practically, it was clearly not his business but the Defendant's.
    • "Viewed as a practical matter, the bicycle couriers were not running their own business or enterprise, nor did they have independence in the conduct of their operations. A different conclusion might, for example, be appropriate where the investment in capital equipment was more significant, and greater skill and training were required to operate it. The case does not deal with situations of that character. The concern here is with the bicycle couriers engaged on Vabu's business. A consideration of the nature of their engagement, as evidenced by the documents to which reference has been made and by the work practices imposed by Vabu, indicates that they were employees."[3]
  • Relevant factors in this case include:
    • low level of skill
    • Little control over how they perform and work hours.
    • Presented to the public as workers of the Defendant - uniforms with the Defendant's name!
    • Deterrence - the Defendant should be deterred from not caring if his workers harm people and should have an incentive to make sure they can be identified.
    • Defendant superintended the workers' payments
    • Refusal to give holidays mean that the workers are not independent.
    • Equipment was provided and maintained (bar the bicycles) by the Defendant.
    • Workers didn't perform an 'added' or corollary part of the business of the Defendant - they did the main purpose.
      • "It was not the case that the couriers supplemented or performed part of the work undertaken by Vabu or aided from time to time; rather, as the two documents relating to work practices suggest, to its customers they were Vabu and effectively performed all of Vabu's operations in the outside world. It would be unrealistic to describe the couriers other than as employees.[4]
  • The workers were therefore full fledged employees and thus the Defendant is vicariously liable.

References

  1. (2001) 207 CLR 21, 36
  2. (2001) 207 CLR 21, 41
  3. (2001) 207 CLR 21, 41-2
  4. (2001) 207 CLR 21, 45
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