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Vicarious Liability Lecture

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G Marjoribanks

on 17 April 2013

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Transcript of Vicarious Liability Lecture

Vicarious Liability Selected Topics in Torts What is vicarious liability? So why do we have it at all? Fault Based
Theories Policy Based
Theories $$$ Fault-Based Theories Policy-Based Theories Independent Employees we can fight about this later Stevens v Broadribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 Hollis v Vabu Pty Ltd (2001) 207 CLR 21 The boring bits Vicarious Liability is a form of strict ‘liability imposed on one person for the wrongful act of another on the basis of the legal relationship between them.’ Danuta Mendelsen, The New Law of Torts (2010)
A distinction is drawn between the liability that an employer has towards the acts and omissions of their employees as opposed to independent contractors


Generally employees are not liable for the actions of independent contractors.
The closer the connection between the relevant action and the scope of employment, the more likely it is that an employer will be liable when asked to decide which category a given worker falls into the courts have regard to a flexible list of indicia - which includes things like the degree of control the employer has, how they are represented to the public etc
Employers are liable for the acts of their employees that are either authorised, or are unauthorised but might be regarded as modes of performing their duties this is changing... Is this fair? "Vicarious liability seems to run counter to two principles of the law of torts, namely that a person should only be liable for loss or damage caused by his own acts or omissions, and secondly that a person should only be liable where he has been at fault." P.S. Atiyah
Vicarious Liability in the Law of Torts (1967), 12 Employers may be liable for acts of their employers that are criminal or have been expressly forbidden. "where a master gives orders, it is reasonable to hold them liable for the consequences of their commission" (Laski) The employer "set the whole thing in motion" - Lord Brougham enterprise risk Bazley v Curry [1999] 2 SCR 534 the master has selected and trusted the worker, who acts for his benefit. It is better that the master suffer for his wrongs than an innocent stranger with no opportunity to protect himself implied authority a man has for his own convenience brought about or maintained some state of things which in the ordinary course of nature may work mischief to his neighbours (Pollock - cited in Sweeney) Protecting Plaintiffs Distribution of Loss Deterrence "Corrective justice does not fully explain the rules of tort. Even within negligence, the silent but insistent demands of distributive justice may enlarge liability"- Sir Anthony Mason "the modern doctrine respecting liability of an employer for the torts of an employee was adopted not by way of an exercise in analytical jurisprudence but as a matter of policy."
(Hollis v Vabu) at some point you guys have to do an assignment... Mason: "A prominent factor in determining the nature of the relationship between a person who engages another to perform work and the person so engaged is the degree of control which the former can exercise over the latter...
Control is not now regarded as the only relevant factor. Rather it is the totality of the relationship between the parties which must be considered." Organisation Test Control Test "The distinction between "employee" and "independent contractor" has become an increasingly amorphous one as the single test of the presence or absence of control has been submerged in a circumfluence of competing criteria and indicia. Where that distinction is relevant, it is nonetheless, commonly decisive of the existence of vicarious liability." - Deane J Stevens v Broadribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 "it is in some cases possible to decide the issue by raising as the crucial question whose business is it, or in other words by asking whether the party is carrying on the business, in the sense of carrying it on for himself or on his own behalf and not merely for a superior." Mason citing Lord Wright in Montreal v
Montreal Locomotive Works (1947) 1 DLR 161 Relevant Factors mode of remuneration
provision and maintenance
of equipment
hours of work
abiliy to refuse work
provision for holidays Deduction of income tax
power to delegate prescribed work to others
Specialised Skills Required
Exclusive right to services of the person engaged
right to dictate place of work "The control test was a product of a predominately agricultural society. It was devised in an age untroubled by the complexities of a modern industrial society placing its accent on the division of functions and extreme specialisation... the conditions which gave rise to the control test largely disappeared... the distinction between employees and independent contracts often seems a vague one" Control Test Gleeson CJ, Gaudron, Gummow, Kirby & Hayne JJ
citing Glass, McHugh and Douglas, The Liability of Employers in Damages for Personal Injury (1979) Hollis v Vabu Pty Ltd Factors suggesting employment relationship The couriers were presented to the public & users of the service as emanations of Vabu Bicycle couriers were not running their own business
They did not have independence in the conduct of their operations
They were not providing skilled labour
No free-lance or good will building opportunities
Couriers could not refuse work
Couriers worked on a roster
They wear uniforms with Vabu’s logo on them
There was a deterrent value in holding Vabu liable Contractors Agency Ipp on Volunteers Volunteers are not employees of the organisations for which they work because there is no contract of service between them.

In some situations, the common law imposes vicarious liability for the negligence of independent contractors. Likewise, voluntary workers are not independent contractors of the community organisations for which they work because there is no contract for services between them.

The common law sometimes imposes vicarious liability on the basis that the negligent person was an ‘agent’ of the person held vicariously liable. Typically, voluntary workers would not be agents (in the relevant sense) of community organisations in which they work Volunteer Protection Legislation Volunteer Protection legislation has been enacted in every australian jurisdiction.

It protects the ‘volunteers of community organisations’ and government programs, ‘from incurring personal civil liability’ where they act in good faith.

In all jurisdictions except NSW and Queensland, the statutes ‘transfer liability incurred by volunteers’ to the organisation that organises the work they undertake. Volunteers & Vicarious Liability Is this distinction valid? (unfounded?) Fear of Liability The principles by which an employer might be liable for actions or omissions of their employee(s) are of ancient lineage. However, as they have been adapted through the years, these principle have arguable become intellectually incoherent, isolated from their original raison d’être, no longer explicable by any one rationale of liability and inconsistent with the developments elsewhere in the law of tort. (Anthony Gray) Queensland Civil Liability Act 2003 (Qld) N S W Civil Liability Act 2002 (NSW) sorry if i'm making
you dizzy! 61 Protection of volunteers
A volunteer does not incur any personal civil liability in respect of any act or omission done or made by the volunteer in good faith when doing community work:
(a) organised by a community organisation, or (b) as an office holder of a community organisation. 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. 5Q Liability based on non-delegable duty
(1) 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 carrying out 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 of the work or task. 39 Protection of volunteers

(1) A volunteer does not incur any
personal civil liability in relation to any act or omission done or made by the volunteer in good faith when doing community work— (a) organised by a community organisation; or

(b) as an office holder of a community organisation. "A principal is liable for the wrongful act of an agent causing damage to a third party when that act occurred while the agent was carrying out some activity as the principal's authorised representative in a dealing with a third party"
McHugh J in Hollis v Vabu "The wider proposition that underpinned the argument of the appellant int his case, that if A ‘represents’ B, B is vicariously liable for the conduct of A, is a proposition of such generality that it goes well beyond the bounds set by notions of control (with old and now imperfect analogies of servitude) or set by notions of course of employment"- cf Kirby J’s dissent in Sweeney v Boylan Nominees Retreat from Agency Are volunteers Employees? Agents? Independent Contractors? of the organisations for whom they work? The extension of vicarious liability to volunteer has become commonplace in US jurisprudence, where judges have repeatedly held that all the indicia of the master-servant relationship are present in many volunteering contexts.
See for eg. Baxter v Morningside English courts have held defendants vicariously liable for the actions of individuals who were not employees but who nevertheless performed tasks that were ‘gratuitous and infrequent.’
Brook v. Boole (1928) 2 KB 578. Duncan by her next friend Duncan v Trustees of the Roman Catholic Church for the Archdioceses of Canberra and Goulburn (unreported, Supreme Court, ACT, 14 October 1998, Higgins J) Khan on when respondeat superior kicks in:
There must be an injury caused by the negligence or will of the servant
There must be a master-servant relationship
The servant must have been acting within the scope of her employment. "The fear of liability has affected the effectiveness of the brigades doing their job. We tend to be told 'if in doubt, get out'. We have better resources, much more expensive equipment and more training, yet our ability to get water onto a fire has deteriorated because we're worried about liability... Unfortunately the way the law operates today, if you do something, and it goes wrong, you are going to cop it - so you don't do it" - Submission by Volunteer Firefighters The Panel is not aware of any significant volume of negligence claims against volunteers in relation to voluntary work
- Ipp Report The fear of personal liability, however unfounded, indeed appears to be very real in the public mind
(James Tibballs, Elsie Loh) abandonment Lower rates of volunteering Master-Tort Theory v Servant-Tort Theory "There is a debate about the jurisprudential basis of vicarious liability. Either the employer is vicariously liable because the acts and omissions of the employee are imputed to the employer (master tort theory) or because the employer is answerable for the employee's tortious liability (servant tort theory). Under the servant tort theory, the immunity of the employee from an action in tort will mean the employer is not vicariously liable, but under the master tort theory, the employer may be liable even if the employee is immune." Southern Properties (WA) Pty Ltd v Executive Director of the Department of conservation & Land Management [2012] Darling Island Stevedoring & Lighterage Co v Long Bell v
State of WA Parker v Cth I If vicarious liability does extend to the volunteer context.... How far should it go? How does VL fit within the broader logic of tort law? Is VL just a policy instrument? Or is there some sound jurisprudential foundation underlying it? What do you think about VL for volunteers? Is it time to abandon the employer/independent contractor distinction? What should it be replaced with? Lord Wilberforce said in Morgans v Launchbury that the term agent is 'merely a concept, the meaning and purpose of which is to say "is vicariously liable" Representation alone is not sufficient – the acts must have been authorised
The act must be at the principal’s request and for his benefit as a representative of the principal
The very service to be performed must involve standing in the place of the principle so that the act can rightly be said to be the principal’s act Paraphrasing Dixon J in Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Cooperative Assurance Co of Australia Ltd (1931) 46 CLR 41 In Scott v Davis (2000) 204 CLR 333 the argument that “a new species of actor, one who is not an employee, nor an independent contractor, but an ‘agent’ in a non-technical sense” should be identified as relevant to determining vicarious liability, was rejected Sweeney is ‘yet another illustration of the High Court’s retreat from the expansion of liability despite the clear advantages and the plaintiff’s expectation of being able to sue the equipment owner for its defective condition. (Sappideen) In Duncan v. Findlater, 6 Clark & F. 894, 910
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