Week 12 Tutorial.

Vicarious liability; non-delegable duties.

Background reading
See outline for Topic 10, part A.
Further useful reading
Balkin and Davis, ch 26, ch 29.24ff.
Fleming, Ch 19

Question 1
You act for a company that owns a number of private schools. You have been
asked to give advice to the company about the nature and extent of its potential
liability in tort for physical injuries (including sexual assaults) inflicted on pupils,
either negligently or intentionally, by teachers, external service providers such
as sporting activity leaders, or other pupils. Is the location of the tortious
conduct relevant?

Alternatively, advise a private hospital board on the hospitals liability to
patients for negligent and intentional injuries inflicted by staff members,
external providers of services within the hospital, or other patients.

Question 2
In an attempt to reduce its liabilities for accidents during deliveries, Shambles
Logistics Ltd (SL) terminates the employment of all the drivers of its fleet of
delivery trucks. If the drivers want work, they must first form a private company
which will then employ the driver as its employee and contract with SL to carry
out deliveries in SL trucks. The trucks are decorated in SL colours and logo and
the drivers must wear SL livery.

One day, a driver, Ben, who has followed these instructions and is now employed
by Ben Ltd to drive an SL truck, picks up a number of boxes which Fine China Ltd
has asked SL to deliver to Royal Randwick Racecourse for a special race day
during a visit by a foreign dignitary. Ben negligently causes a collision with a
horse float carrying a very successful racehorse to a race carnival. The china is
smashed and the float and horse are badly damaged. Who would be liable in tort
for the losses? You do not, for the purposes of this tutorial, need to consider the
quantification of the loss.


Vicarious liability
- requires three things
- if a person commits a tort of some kind and the person who commits it is
an employee of somebody, and they commit the tort in the context of their
employment, then employer is liable for the tort as if they themselves had
committed the tort
- 3 things to answer
o 1. Was a tort actually committed by the employee?
St. principles of tort
Usually just assumed
o 2. Satisfy that the employee is in fact an employee as opposed to an
independent contractor or agent
There are a list of factors that distinguish an employee as
being an employee
Historically, the test that was employed was the control test
(zujis v worth)
Did the employer have control over the employee?
Outdated now
Nowadays steven v ? and hollace v varbu
Establish that there are a number of factors that
need to be weighed up against each other in order to
determine wehther somebody is an employee or not
It is a balancing test in the same way as the breach of
duty (in the civil liabilities act)
o Factors you have to weigh up against each
other
These factors include
o Control
o Whether the employees equipment was
owned by the employer
o Who sets the working hours and conditions
o Who negotiates a salary and hourly rates
o Who provides the superannuation
o If theres control, that makes you lean
towards being an employee
o That leads towards being an employee
Must reason why using these factors
Second q. is significantly more complicated
o 3. Satisfy that the tortious act took place within the scope of the
employees employment (course of their employment)
Only way you can talk about this is to go into the cases
Series of cases known as the barmaid cases
Deatons v Flew
o Barmaid got into an argument with a
customer and in the context of the argument
threw a glass in the customers face
o The customer retaliated
o Why do we have vicarious liability?

Close connection
- find