THE LAW OF TORTS
Vicarious Liability
Non Delegable Duties
Introduction: Personal Liability
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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
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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.
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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
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Types of Vicarious Relations:
Master Servant Situations
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Partnerships
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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
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The Employer-Employee
(Master-Servant) Relations
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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.
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The Rationale for Vicarious
Liability
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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
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SERVANTS AND
INDEPENDENT CONTRACTORS
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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
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WHO IS A SERVANT?
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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
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WHO IS A SERVANT?:
THE CONTROL TEST
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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)
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Borrowed Servants
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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
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The Test in in the case of
Borrowed Servants
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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
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Limits of the Control Test
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The nature of the service to be performed is
essential in determining the relationship
Stevens v Brodribb Sawmilling
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“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
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The Evidence of ‘Control’
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Master- servant relationship:
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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:
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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
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The Totality of the Relationship
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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:
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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
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‘IN THE COURSE OF EMPLOYMENT’
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D is liable only if the servant committed the tort in the
course of his or her employment
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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
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The Cases
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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
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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
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to be outside the scope of employment
‘A Frolic of his/her Own’
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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
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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
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Prohibitions on the Employee
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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…”
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Vicarious Liability and Non –
Delegable Duties
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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
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The main Features of NonDelegable duty
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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 nondelegable 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
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CLA and Non-Delegable Duties
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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.
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Typical Instances of NonDelegable duties
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Relations between:
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master and servant,
hospital and patient,
adjoining owners of land; and
education authority and student.
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The Case Law
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Negligent conduct:
– Commonwealth v Introvigne (1982) 150 CLR 258
– Northern Sandblasting v Harris
– Burnie Port Authority v General Jones Ltd
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Intentional and criminal conduct
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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)
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