Vicarious Liability

Question 1

Definition?

Answer 1

• Vicarious liability is legal responsibility imposed on an employer, even though he himself is free from blame, for a tort committed by his employee in the course of his employment Hollis v Vabu

Question 2

RELATIONSHIP (Employee/Employer)

Answer 2

• Just because a relationship has been categorised as not being Employer/Employee for another purpose doesn’t mean the court won’t still attribute vicarious liability. Hollis v Vabu

Question 3

MULTI-FACET TEST

Answer 3

• The Court will determine a range of factors to decide whether a worker is an employee or independent contractor Stevens v Brodbribb Sawmilling Co
COURT WILL ANALYSE :
Degree of control exercised over the worker
• Importance of control lies not so much in its actual exercise Stevens v Brodbribb Sawmilling Co.
Payment
Holidays
Income Tax
Superannuation
Equipment
Obligation to work
Hours of work

Question 4

SPECIAL CASES

Answer 4

MEDICAL STAFF
• Doctors, radiologists, matrons and nurses are now held to be employees, but weren’t originally due to an absence of control. Roe v Minister of Health
• A specialist merely using the hospital’s premises is not an employee. Roe v Minister of Health
BORROWED EMPLOYEES
• Where an employee is lent to another by an employer, the employer who retains control is held vicariously liable. Employer who lends employee bears a heavy onus to show the transfer of control and will only be discharged in exceptional circumstances McDonald v Commonwealth

Question 5

a. IN THE COURSE OF EMPLOYMENT

Answer 5

• For an employer to be vicariously liable the tortious conduct must be in the course of employment and not an independent wrongful act. Bugge v Brown
• Whether an act is done in the course of employment is a question of fact and depends on the circumstances NSW v Leopore
b. WRONGFUL MODE

Question 6

b. WRONGFUL MODE

Answer 6

• An act or ommission is still considered to be in the course of employment if it is a wrongful mode of committing an authorised act or a wrongful act actually authorised by the employer. Bugge v Brown
• The function, the operation, the class of act to be done is the criterion whatever be the instructions as to the time the place or the manner of doing the act, not the precise terms of the authority Bugge v Brown
• A prohibition either as to manner, time or act itself will not limit sphere of employment to exclude the act complained of. The violation must be so distinctly remote and disconnected from his employment to basically make him a stranger. Bugge v Brown.

Question 7

c. FROLIC

Answer 7

• If an employee takes an opportunity during employment to use time or resources for personal purposes, the employer is not liable. Joel v Morrison
• The purpose and the extent of the deviation must be considered. Chaplin v Dunstan Ltd

Question 8

d. EXPRESS PROHIBITION BY EMPLOYER

Answer 8

• An express prohibition by the employer of a wrongful act will not necessarily be a defence if the employees act was still a mode of doing what the employee was employed to do. Rose v Plenty

Question 9

INTENTIONAL TORTS

Answer 9

• If the act is outside the scope and done for employee’s own personal interests, employer is not liable. Deatons v Flew