THE LAW OF TORTS

1. THE LAW OF TORTS Vicarious Liability Non Delegable Duties

2. Introduction: Personal Liability • In tort law liability is generally personal; ie, liability is generally linked to a breach of one’s (own) duty • There are however instances where a party may be held liable for torts committed by another: vicarious relationship

3. What is Vicarious Liability • Liability of D (usually the master/employer) for the torts of another (usually his or her servant/employee) although the master is without any blame or fault.

4. Distinctive Features • It is liability for the wrongful act of another. • It is a form of strict liability. D is liable without proof of fault on D’s part

5. Types of Vicarious Relations: Master Servant Situations

6. Partnerships

7. Principal and Agent Relations • An agent acts for the principal; but the liability of the principal for the act of the agent is not based on vicarious liability • The liability of the principal is based on the maxim: qui facit per alium, facit per se • The agent acts in a representative capacity and has the authority to act for the principal but is not necessarily a servant

8. The Employer-Employee (Master-Servant) Relations • An employer is vicariously liable for the tortuous acts or omissions by his employee in the course of employment whether or not such act or omission was specifically authorised by the employer.

9. The Rationale for Vicarious Liability • Respondeat superior: Traditionally, the common law viewed the master as responsible for the servant’s conduct: • "for seeing somebody must be a loser by (because of the conduct of the employee), it is more reason that he that employs and puts a trust and confidence in the (employee) should be a loser than a stranger". Per Earl of Halsbury in Lloyd v Grace, Smith & Co • Choice and training of employees:  Liability tends to provide a spur toward careful selection, training and supervision of employees; •  Benefits and the burden: Since the employer receives the benefits of the activities of the enterprise, he should also bear its burdens; • The ability to pay: Liability increases the likelihood of accident victims receiving compensation  

10. SERVANTS AND INDEPENDENT CONTRACTORS • Vicarious liability arises only in respect of the torts of the servant • The master/employer is therefore responsible only for the torts of the servant and not the independent contractor • For the master/employer to be held liable, the tortfeasor must: • be a servant, and • commit the tort in the course of his or her employment

11. WHO IS A SERVANT? • A servant is one who is under a contract ofservice 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

12. 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 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)

13. Borrowed Servants • Instances of borrowed services: • The general (ie regular) employer leases (out) a vehicle or equipment such as crane, power shovel, bulldozer, truck etc with employee as operator, to a party (special employer) who has a temporary need for such machinery.  Employee commits a torts by the negligent operation of machinery •  The general employer as his business provides temporary workers to other parties (special employers), sometimes simply as day laborers, sometimes as skilled workers for specified periods of time. • The general employer, by an agreement with the special employer assigns the employee to work for the special employer for a specified period on secondment or attachment etc

14. The Test in in the case of Borrowed Servants • The transfer or loan of an employee to the special employer is not intended to terminate the employee’s employment with the general employer.  • An employee is presumed to continue in the employment of the general employer. P or the general employee carries the burden of proof where there is an allegation that the special employer has assumed control and become the principal employer • The test is control • Mersey Docks & Harbour Board v Coggins & Griffith

15. Limits of the Control Test • The nature of the service to be performed is essential in determining the relationship Stevens v Brodribb Sawmilling • “Uncontrollability of a person forming part of an organization as to the manner in which work is performed does not preclude …a relationship of master & servant” • Albrighton v PRA Hospital

16. The Evidence of ‘Control’ • Master- servant relationship: • Right to have the particular person do the work • Right to suspend or dismiss • Right to exclusive services of person engaged • Right to dictate place of work, hours etc • Independent contractors: • A profession or trade or distinct calling of the contractor • Provision of own place of work or equipment • Creation of contractor of goodwill, saleable assets • Payment of own business expenses • No deduction from remuneration for income tax • These factors are not conclusive

17. The Totality of the Relationship • Hollis v Vabu Pty Ltd : (motor cycle & bicycle couriers) Gleeson CJ, Gaudron, Gummow, Kirby & Hayne JJ (McHugh & Callinan dissenting) • In present case relationship bet. Parties is to be found not only in the contractual terms but in the system which was operated thereunder and the work practices imposed • CONTROL is not now the only relevant factor. The totality of the rel.ship bet. The parties must be considered • The couriers were employees because: • They did not provide skilled labour • had little control over manner of work • were presented to the public as “emanations” of D • Policy consideration to support vic. liability is deterrence of harm - encourages employer to reduce risk of future harm • D “superintended” couriers’ finances • supplied own bicycles but capital outlay relatively small - simply indicates employment conditions favourable to employer • was considerable scope for control by D - allocation & direction of deliveries

18. ‘IN THE COURSE OF EMPLOYMENT’ • D is liable only if the servant committed the tort in the course of his or her employment • Whether the torts is committed in the course of employment or not turns on: • What tasks are authorized • Whether the employee’s tortuous act so connected to authorized tasks that it can be seen as a mode of carrying out the task albeit wrongfully • Deaton v Flew • Morris v Martin

19. The Cases • Deaton v Flew • Act of barmaid was not authorized & not so connected with any authorized act as to be a mode of carrying out her job • Was an independent personal act not connected with or incidental to her work • Canterbury Bankstown RLFC v Rogers • Player’s act was in course of playing for the club and assisted club to win • Player achieved an authorized (desired) result by an improper mode • Was contrary to rules of game but the act was not such as to be outside the scope of employment

20. ‘A Frolic of his/her Own’ • In general the employer is not liable where the employee commits a torts while on a ‘frolic of his or her own’ • Harvey v O’Dell • Detour to get more tools & lunch was in scope of employment • Not a frolic of their own bec. Employees were paid subsistence money & not required to take lunch with them • Petrou v Hatzigeorgiou: Horseplay / practical jokes by employees may be within the course of employment • Case about vicarious liab. of partner for tort of another partner • Certain amount of horseplay conducive to maintaining good staff relations • Fact that act went outside permitted level of horseplay did not take it outside the course of the business

21. Prohibitions on the Employee • Where the employer expressly prohibits a particular conduct, the employee’s act in breach of the prohibition is generally considered to be outside the scope of the employee’s services - employer not liable • However, an act in defiance of a prohibition which deals with CONDUCT WITHIN SPHERE (ie: how, when, where etc tasks are performed) OF EMPLOYMENT will not be outside the scope of employment - the employee would be doing the right services but in the wrong way: employer is liable • Bugge v Brown • A prohibition as to manner…time…or place …or as to the very act itself…will not necessarily limit the sphere of employment • To limit the sphere of employment the prohibition “ must be such that its violation makes the servant’s conduct ..so distinctly remote and disconnected from his employment…”

22. Vicarious Liability and Non –Delegable Duties • Where D has a duty to treat, control or protect others, the law imposes a liability on D for the negligence of another to whom the D has entrusted (or ‘delegated’) the performance of some task on their behalf. : The Duty of D is non-delegable

23. The main Features of Non-Delegable duty • A non-delegable duty is not a duty to take reasonable care. • It is however a duty ‘to see that care is taken’. • It is not strict; D can take steps to discharge a non-delegable duty. • A non-delegable duty is a duty imposed on the employer alone • While liability for D is vicarious liability is ‘secondary’ , the liability of D for breach of a non delegable duty is primary

24. CLA and Non-Delegable Duties • 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.

25. Typical Instances of Non-Delegable duties • Relations between: • master and servant, • hospital and patient, • adjoining owners of land; and • education authority and student.

26. The Case Law • Negligent conduct: • Commonwealth v Introvigne (1982) 150 CLR 258 • Northern Sandblasting v Harris • Burnie Port Authority v General Jones Ltd • Intentional and criminal conduct • Lister v Hasley Hall Ltd [2001] 2 WLR 1311 • Bazely v Curry • Jocabi v Griffiths (1999) 174 DLR • NSW v Lepore, Qld v Samin, Qld v Rich (HCA 6.2.2003)