Vicarious liability

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[1] 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:

  1. There is a requisite relationship between the defendant and the tortfeasor.[2]
    • To be determined using the 'sufficient relationship test' - did the defendant have a degree of control over the tortfeasor? Examine certain considerations.[3]
  2. The negligence occurred within the course of employment.
    • Determined using the 'Salmond test': an act is within the scope of employment if it is sufficiently close to what is authorised by the defendant.
    • Read below for further details.
  3. The tortfeasor's conduct was tortious (as in, passes the usual tests of negligence).
    • Any exclusions of liability provided to the tortfeasor by the Civil Liability Act 2002 (NSW) will extend to the defendant. Other exclusions will not.

If these conditions are satisfied, the defendant will be vicarously liable (thus concurrently liable) for the plaintiff's harm caused by the tortfeasor.

This article is a topic within the subject Torts.

Contents

Required Reading

Sappideen, Vines, Grant & Watson, Torts: Commentary and Materials (Lawbook Co, 10th ed, 2009), pp. 607-617 [15.05-15.55]; 621-635 [15.70-15.115].

Requisite relationship

[4] In order to be vicariously liable, there must be a requisite relationship between the defendant the tortfeasor. There are three tests to determine whether such a relationship existed:

  1. Control test
  2. Organisation test
  3. Sufficient relationship test - favoured approach.

Control test

[5] The control test specifies that the greater degree of control one has over another, the more likely that he will be vicariously liable. In most basic forms, it requires that the defendant can dictate to the tortfeasor not only what to do, but how to do it as well. Control exists if the defendant had 'ultimate authority' over the tortfeasor so that the tortfeasor was subject to the defendants orders and directions.[6]

The control test was the most influential in Australia. However, other factors are to be taken into consideration<,[7] for example:

  • Mode of payment
  • Provision/maintenance of equipment
  • Obligation to work
  • Hours of work
  • Provision of holidays
  • Tax deduction.
  • Delegation of work.

These factors later made up the 'sufficient relationship test' in Hollis v Vabu.

Organisation test

[8] The organisation test examines whether the tortfeasor is "part and parcel of the organisation" run by the defendant.[9] It is not commonly used in Australia.[10]

Sufficient relationship test

In Hollis v Vabu, the High Court moved away from the control test and towards a more comprehensive analysis and balancing of several factors. Factors which are likely to establish that a worker is a full fledged employee (thus satisfying the requisite relationship) include:

  • The job allocated to the worker involves a low level of skill.
  • The worker has little control over how he may do his job, the hours of his job or the conditions.
  • The worker is presented to the general public as a part of the defendant's organisation (for example, uniform).
  • It seems as though the Defendant should be deterred from carelessness through the imposition vicarious liability.
  • The worker's payment scheme or holiday schemes are managed by the Defendant.
  • The worker's equipment is provided and maintained by the Defendant.
  • The job performed by the worker is a main job of the Defendant and not some supplementary side task.

The court in Hollis v Vabu also held that:

  • "It has long been accepted, as a general rule, 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."[11]
  • "[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'."[12]
  • "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."[13]
    • "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.[14]

Currently, Hollis v Vabu is the leading authority and a requisite relationship is determined using the aforementioned test.

In the course of employment

[15] Even where a requisite relationship is established, a defendant will only be vicariously liable if the negligence of the tortfeasor was within the scope of employment, or in other words, have a sufficiently close connection with the employment as to make the employer liable. The courts have had difficulty in determining a proven test for exactly what comes within the 'scope of employment'. Traditionally, the 'Salmond test' was in use:

  • An act is within the scope of employment if it is authorised (expressed or implied), or sufficiently close to what is authorised, by the defendant.
    • This means that a defendant may be vicariously liable even if the tortfeasor acted in a way which was expressly forbidden by the defendant.[16]

There are also general rules (which are somewhat flexible) regarding certain circumstances:

  • Particular capacity - an employer will only be vicariously liable if the tortfeasor's wrongdoing happened whilst he was acting in accordance with his particular capacity.
    • Namely, an employer will not be vicariously liable for the actions of a tortfeasor whose role is to collect tickets but instead decided to drive the bus and then crashed.[17]
  • Conduct outside employment - if the wrongdoing occurred outside the employment (not in employment hours, not in place of employment etc), the employer will not be vicariously liable.[18]
    • Independent discretion or statutory authority - an employer will not be vicariously liable if thetortfeasor was exercising independent discretion or statutory powers.[19]
    • Criminal conduct - the courts are not entirely clear. Discussed in New South Wales v Lepore:

Criminal conduct

[20] The question of whether an employer could be vicariously liable for the criminal conduct of an employee during the course of employment is still not entirely clear. It was the subject of the prolific case New South Wales v Lepore, in which the justices differed in their judgements:

  • Gleeson CJ:
    • There will be vicarious liability for criminal conduct if there was a close enough connection with the particular responsibilities of the employer.
    • "Where acts of physical violence are concerned, the nature and seriousness of the criminal act may be relevant to a judgment as to whether it is to be regarded as a personal, independent act of the perpetrator, or whether it is within the scope of employment."[21]
    • An examination of the nature of the employee's responsibilities is also necessary.
  • Gummow & Hayne JJ:
    • "when an employer is alleged to be vicariously liable for the intentional tort of an employee, recovery against the employer on that basis should not be extended beyond the two kinds of case identified by Dixon J in Deatons: first, where the conduct of which complaint is made was done in the intended pursuit of the employer's interests or in the intended performance of the contract of employment or, secondly, where the conduct of which complaint is made was done in the ostensible pursuit of the employer's business or the apparent execution of the authority which the employer held out the employee as having."[22]

In Lepore, the court relied on the past decision of Deatons Pty Ltd v Flew:[23]

  • Facts: the plaintiff sued a barmaid and her employer when she threw a glass at his face.
  • Held: The duties of the barmaid as a barmaid were only to serve drinks, not to keep order. Therefore the act was not at all connected to the work she was employed for. It was an act of 'personal retribution', and not in any way connected to the employer, and thus no vicarious liability.

Tortious conduct

[24] An employer will only be vicariously liable if the employer himself was found to be guilty of a tort. A debate has emerged whether that means that an employer will not be vicariously liable when the tortfeasor is immune from liability by virtue of legislation or other reasons.

  • The latest common law authorities hold that an employer will also benefit from the immunity - an employer is not vicariously liable when the tortfeasor is not liable.
  • Any immunity or exclusion of liability provided by the Civil Liability Act 2002 (NSW) will extend to the employer.[25]
    • However, other immunity or exclusion (not provided by the Civil Liability Act 2002 (NSW)) will not be extended to the employer for the purposes of vicarious liability.

End

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References

Textbook refers to Sappideen, Vines, Grant & Watson, Torts: Commentary and Materials (Lawbook Co, 10th ed, 2009).

CLA refers to Civil Liability Act 2002 (NSW)

  1. Textbook, pp. 608-9 [15.20]
  2. Hollis v Vabu (2001) 207 CLR 21
  3. Hollis v Vabu (2001) 207 CLR 21
  4. Textbook, p. 610 [15.135].
  5. Textbook, pp. 610-11 [15.140].
  6. Humberstone v Northern Timber Mills (1949) 79 CLR 389, 404-5.
  7. Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16, 24 (Mason J).
  8. Textbook, p. 611 [15.140].
  9. Bank Voor Handel en Scheepvaart NV v Slatford [1953] 1 QB 248, 295 (Denning LJ).
  10. Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16, 27-8 (Mason J).
  11. (2001) 207 CLR 21, 36.
  12. (2001) 207 CLR 21, 41.
  13. (2001) 207 CLR 21, 41-2.
  14. (2001) 207 CLR 21, 45.
  15. Textbook, p. 621 [15.70]
  16. Bugge v Brown (1919) 26 CLR 110; Limpus v London General Omnibus Co (1962) 1 H & C 526.
  17. Beard v London General Omnibus Cp [1900] 2 QB 530M; Textbook, p. 621 [15.75].
  18. Joel v Morison (1834) 6 Car & P 502, 503 (Parke B); Textbook, p. 622 [15.85].
  19. Textbook, p. 622 [15.90]; Enever v R (1906) 4 CLR 97.
  20. Textbook, pp. 621-2 [15.80]
  21. (2003) 212 CLR 511, 544.
  22. (2003) 212 CLR 511, 594.
  23. (1949) 79 CLR 370.
  24. Textbook, pp. 633-4 [15.110]
  25. CLA, s 3C
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