Vicarious Liability and Non-delegable Duties

· Vicarious liability is liability imposed on a person for the wrongful conduct of another.
· It is imposed depending upon the defendant’s relationship with the tortfeasor.
· It most often occurs within the context of claims involving employees/employers
· A principle can be held vicariously liable for the acts of his/her agents.

· Elements of vicarious liability;
§ A relationship of employment, agency or partnership between the defendant and the wrong doer;
§ A tort must have been committed; and
§ The tort must occur during the course of the relationship.

1. The liability of an employer for the acts and omissions of an employee;
2. The liability of a principle for the acts and omissions of an agent; and
3. The liability of one partner for the acts and omissions of the other.

1. Is there an employer-employee relationship?
2. If there is an employer-employee relationship is the employee acting in the course of their employment?

§ The notion of representation is a useful concept in determining the existence of an employment relationship. In Sweeney it was held that the defendant, Boylan Nominees was not vicariously liable, as the mechanic who had negligently repaired the fridge door was not an employee of theirs. It was noted that the mechanic was ‘not presented to the public as an emanation’ of Boylan at the requisite time. However, this is just a starting point.

Origins of the rule lie in the responsibilities of a master over his servents: Hollis v Vabu

1. Employer-employee relationship –
· It is imperative to determine whether the tortfeasor is an employee (for whose conduct the employer will generally be vicariously liable) or an independent contractor (for whose conduct the person engaging the contractor will generally not be vicariously liable).
§ A key concept in determining the nature of the relationship is the level of ‘control’ the employer has over what the employee does. This is determined considering many factors including;
o Employee’s duties;
o The hours of work;
o The supply of equipment.
§ The courts know this as the ‘control test’. E.g. an employee acting in the course of their employment is in the control of the employer, while an independent contractor is not: Stevens v Brodribb Sawmilling Co.
§ In Hollis the high court also endorsed the concept of ‘enterprise risk’ as an important test for vicarious liability. The test is concerned with linking the employee’s wrongful conduct with the nature of the employer’s enterprise.
§ In Hollis it was held that the employer’s enterprise was sufficiently connected to the employee’s misconduct (the nature of courier delivery involved risks of vehicular collisions) the defendant was held vicariously liable.

In the course of employment –
§ An essential criteria – the negligent act or omission must be committed whilst the employee is in the course of his employment.
§ In Deatons Pty Ltd v Flew it was held that a when the barmaid threw a glass of beer into the face of a patron that act was not connected with or incidental to her authorised work.
§ In New South Wales v Lepore the court held that the school teachers employer was not vicariously liable for his conduct, as it was determined that the sexual assaults committed by the teachers were not acts done in intended performance of the contract of employment.

Non-delegable duties are personal duties owed by an employer or organisation that cannot be delegated to someone else.
· Liability is thus imposed on the employer or organisation under such a duty to take care for the negligence of another to whom the former has delegated the performance of some task within the ambit of the duty.

The main areas where non-delegable duties are in existence are;
§ Hospitals: Ellis v Wallsend;
§ Schools: Commonwealth v Introigne;
§ Places of employment: Kondis v State Transport Authority;
§ Danger to neighbouring land users: Burnie Port Authority v Jones
· Kondis is the first case which the High Court imposed upon employers a non-delegable duty of care – which was a duty to provide safe working conditions for their employees.