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.

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

Who is a Servant?

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

The  contractor is paid for the job by results rather than for time spent, receives a fee or commission, 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.

Stevens v Brodribb Sawmilling (1986) - confirmed 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]

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) pointed 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 a servant. 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 Sawmilling Co Pty Ltd (1986)

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 on the basis of the volume of logs transported. The Sawmill did not deduct tax form their payments. 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 the following 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

In the Course of Employment

Commonwealth v Connell (1986): 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] shows that a breach of an express prohibition by the servant will not place the servant automatically outside the course of employment.

Limpus v London General Omnibus Co (1862) - racing a bus against another bus in the course of its service operations contrary to the master’s instructions has been held to be within the course of employment.

Ilkiw v Samuels [1963] - Diplock J stated that it was a prohibition on the mode 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 servant’s own

Actions of the employee were not ‘reasonably incidental’ to their duties. Hilton v Thomas Burton [1961]: workers finished work early and had an accident on their way to a café.

• Temporal limits of employment

Period of employment begins from the moment the servant starts work. Ruddiman & Co v Smith (1889): 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.

• Assault by servant

An excessive mode of performing his or her duty to the employer. Deatons Pty Ltd v Flew (1949): barmaid who flung a glass towards a customer was a private act 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)

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 the employment for the employer to be liable. Morris v Martin & Sons Ltd [1966]: employer liable as the stole was stolen by the servant in the course of employment. The servant’s duty being to clean the stole.

Continued on page 2