1D - Duty of Care - Vicarious Liability Flashcards Preview

Australian (NSW) Torts Law 2017: Western Sydney University > 1D - Duty of Care - Vicarious Liability > Flashcards

Flashcards in 1D - Duty of Care - Vicarious Liability Deck (16)
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1
Q

What are the two requirement questions that need to answered in the positive establish vicarious liability?

A
  1. IS THERE AN EMPLOYER/EMPLOYEE RELATIONSHIP
  2. WERE ACTS DONE ON SCOPE OF EMPLOYEMENT
2
Q

The lawful authority to command/exercise authority, superintendence, the power to hire or fire, power to suspend/dismiss for misconduct, provider of uniforms, rehearsals conduct all within control of the place of work which will establish an employer and employee relationship

A
  • (Zujis v Wirth Bros Pty Ltd (1955) 93 CLR 561) (Circus Case)
3
Q

Seven factors that may establish employee/er relationship.

    1. Not providing skilled labour with special qualifications – unable to have independent career as a freelancer.
    1. Lack of control by the alleged employee -
    1. Presented to the public as company representative
    1. A deterrence of employers to avoid harm to public
    1. Control over alleged employee finances
    1. Supplies equipment or employee supplies equipment as just one of many alternatives
    1. Alleged employees cannot exercise control.
A
  • (Hollis v Vabu PL (2001) 207 CLR 21) ( Courier Bike Case) (Leading Case in VL)
4
Q

General rule is that employer is VL for tortious acts of an employee but that a principle is not liable for the tortious acts of an independent contractor.

A
  • (Hollis v Vabu PL (2001) 207 CLR 21) ( Courier Bike Case) (Leading Case in VL)
5
Q

‘Control test’ a central to determine relationship, but not exclusive – Does the alleged employer have the right to exercise control over the alleged employee? Other factors such as the ‘indica of relationship’ should also be considered

A
  • Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16)
6
Q

‘indicta of relationship’

  • How the person is paid.
  • The provision of maintenance of equipment
  • Obligation of work
  • The hours of work and provision of holidays
  • Deduction of income tax
  • Power of delegation of work by the person.
A

(Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16)

7
Q

The scope of employment is only act within the purpose of the employment, which must connect to what she was employed for.

A
  • (Deatons PL v Flew (1949) 79 CLR 370) (Barmaid, rude patrons Case)
8
Q

The scope of employment for the bouncer is that a bouncer is employed to eject patrons from a premise which may be violent, but different from throwing a glass of beer by a person who is employed to serve beer.

A
  • . (Starks v RSM Security PL [2004] NSWCA) (Head Butt Bouncer Case)
9
Q
  • The scope of employment for the bouncer is that a bouncer is employed to eject patrons from a premise which may be violent, but different from throwing a glass of beer by a person who is employed to serve beer. (Starks v RSM Security PL [2004] NSWCA) (Head Butt Bouncer Case)

However, if there existed personal animosity, in combination of extreme violence, towards the victim, might lead to an act of personal retribution.

A
  • . (NSW v Lepore; Samin v Qld; Rich v Qld [2003] HCA 4)( Rural Teacher/NSW Sexual Abuse Case )
10
Q

The act of ‘personal retribution’ is not connected with the employer, thus no VL on the part of employer.

A
  • (Deatons PL v Flew (1949) 79 CLR 370) (Barmaid, rude patrons Case)
11
Q

There must be a connection between employment and responsibility.

A
  • (NSW v Lepore; Samin v Qld; Rich v Qld [2003] HCA 4)( Rural Teacher/NSW Sexual Abuse Case )
12
Q

The act of sexual abuse by a teacher is too far away to be a part of responsibilities of a teacher as it is merely sexual predatory behavior.

The tortfeasor must be in position of power and intimacy that his conduct towards them to be regarded as closely connected with his responsibilities of employment.

A
  • . (NSW v Lepore; Samin v Qld; Rich v Qld [2003] HCA 4)( Rural Teacher/NSW Sexual Abuse Case )
13
Q

VL exists if the conduct done is in the intended pursuit of the employer’s interest or intended performance of the contract of employment.

A
  • (NSW v Lepore; Samin v Qld; Rich v Qld [2003] HCA 4)( Rural Teacher/NSW Sexual Abuse Case )
14
Q

VL may be imposed when the conduct is done in ostensible (appearing to be true, but is not usually) or the apparent execution of authority which employer hold out the employee to have.

A

(NSW v Lepore; Samin v Qld; Rich v Qld [2003] HCA 4)( Rural Teacher/NSW Sexual Abuse Case

15
Q
  • employee not liable where employer also liable )
    • (1) If an employee commits a tort for which his or her employer is also liable:
      • (a) the employee is not liable to indemnify, or to pay any contribution to, the employer in respect of the liability incurred by the employer, and
        • (Sidenote: If the employer is vicariously liable, the employee does not need to pay back damages incurred by the employer)
      • (b) the employer is liable to indemnify the employee in respect of liability incurred by the employee for the tort (unless the employee is otherwise entitled to an indemnity in respect of that liability).
        • (Sidenote: If the employer is vicariously liable, the employer will pay back the employee the damages the employee incurred in a tort)
    • (2)Contribution under this section includes contribution as joint tortfeasor or otherwise.
A

Section 3 -

  • Employees Liability Act 1991 (NSW):
16
Q
  • Act not to apply to serious misconduct of employee or to conduct not related to employment.
    • This act does not apply to a tort committed by an employee if the conduct constituting a tort:
      • (a) was serious and a willful misconduct, or
      • (b) did not occur in the course of, and did not arise out of the employment of the employee
A

Section 5 -

  • Employees Liability Act 1991 (NSW):