Vicarious liability and information
gathering
Part 1 - Vicarious Liability – employers’ legal responsibility for acts
and omissions of workers
Part 2 – Information gathering following a workplace incident
Brooke Jacobs & Hannah Staunton
3 December 2014
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Meet your presenters
Brooke Jacobs
Senior Associate
HopgoodGanim
Hannah Staunton
Lawyer
HopgoodGanim
Part 1
Vicarious Liability – employers’ legal responsibility for acts and
omissions of workers
•
Introduction – the benefit and the burden of being an employer
•
In the course of employment
•
Lepore – the High Court decision
•
Illegal acts – sufficient connection & done with apparent authority
•
Principles of vicarious liability to be distilled for employers
Introduction
The law of negligence



Duty imposed by law to take reasonable care to avoid acts or
omissions which reasonably foreseeably may injure others.
General rule – a person is not liable for the wrongdoing of
another.
Vicarious liability is an exception to that rule and has 2
characteristics:
1.
Liability for the negligence or breach of duty of another;
2.
Strict liability – liability without proof of fault.
Introduction – continued
Why have vicarious liability

Respondent superior – “let the master answer”
—
a principle of law based upon the reciprocity between the benefit and burden of being
an employer doing business for reward
—
a business enterprise “cannot justly disclaim responsibility for accidents which may be
fairly said to be characteristic of its activities”: Ira S Buschley & Sons v United States
Vicarious liability of employers
Established common law in Australia provided acts are “in the course of employment”

Example
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An employer operates a metal fabrication business and employs skilled operators.
•
The employer provides induction and training in the use of a metal press machine.
The metal press machine is fitted with guarding in compliance with Australian
Standards and safety codes. There are safe work method statements for the
operation of the press which are specific to each task.
•
An employed operator decides contrary to training and all SWMS to remove the
safety guard on the metal press to make his job go faster.
•
He brings the metal press down on his co worker who is acting as a “spotter” and
crushes his fingers.
•
The employer has done everything right however will be found liable purely through
vicarious liability for the negligent operator’s actions.
Liability for negligence of workers
•
Hughes v Percival – if a duty is cast upon a defendant he cannot get rid of it by
delegating its performance to a third party. He is at liberty to employ someone to
fulfil the duty but remains subject to it and liable for the consequences if it is not
fulfilled.
•
The first thing that must be established is an employment relationship.
•
In Hollis v Vabu, the High Court set out 11 tests for determining whether an
employment relationship existed. The defendant employer, Vabu ,was found
vicariously liable for the negligence of a bicycle courier who was an independent
contractor for tax purposes. Hollis was an employee for vicarious liability purposes
because he wore the uniform of Vabu and worked subject to his direction and
supervision. He was an “emanation” of Vabu.
In the course of employment
•
The plaintiff must establish that the employee’s wrong was committed “in the course
of employment”. If the employer otherwise expressly authorised or ratified the
misdeed he may be personally as well as vicariously liable.
•
In contrast, if the employee acted in contravention of orders, the employer may
escape liability.
•
What constitutes an order and the quality and content of that order will come under
some scrutiny: see Howl at the Moon
•
Vicarious liability arises when an employee uses an unauthorised mode of carrying
out an authorised task of his/her employment.
Frolic
•
When will an employer not be liable for an act committed
by an employee supposedly in connection with
employment?
•
The courts have generally accepted that an employer will not be liable
when an employee is on a “frolic of his own”.
•
The very old case of Joel v Morison considered the negligent operation
of a horse and cart by a “servant”. The court accepted that if the
servant was “without being at all on his master’s business” and instead
was on a “frolic of his own” the master could not be held accountable
vicariously.
Lepore v NSW
•
Liability of schools for sexual assault perpetrated by teachers.
•
Unsatisfactory decision of the High Court in many respects – there emerges no
common theme and no authoritative answer for vicarious liability and no indication
of future direction.
•
Five judges said the matter should be reheard to determine whether the acts
occurred “in the course of employment”.
•
Four judges doubted whether a criminal act could ever fall within the scope of
employment. Justice Callinan said that “deliberate conduct lies outside and indeed
will usually lie far outside the scope of an employed teacher’s duties”.
Lepore v NSW continued
•
On the other end of the spectrum, Kirby was persuaded by the Canadian idea that
an employer should be vicariously liable for all the risks that flowed from its
business whether they were at fault or not.
•
Chief Justice Gleeson found that there will be vicarious liability for conduct is there
is a close enough connection with the particular responsibilities of the employer.
•
Justices Gummow & Hayne said that the conduct must be done in the intended
pursuit of the employer’s interests or in pursuit of the employer’s business or
apparent execution of the employer’s authority.
Liability of employers for illegal conduct
Fraud
•
French v Sestili – Employer vicariously liable for employee who
stole money from a disabled client she was employed to care
for.
•
At first instance, the plaintiff failed because the court accepted
that the employee was on a “frolic of her own”.
•
However, on appeal and in reliance on the judgments in Lepore,
the court found that the fact that the employee had intentionally
engaged in a criminal act did not suffice to deny vicarious
liability, nor did the fact that the conduct was contrary to
instructions from the employer.
Illegal conduct continued
Theft
•
RF Brown & Co v Harrison (1927) 43 TLR 633 – Stevedores stole cargo which they
were specifically employed to handle. The ship owners were held liable to the
cargo owners because the stevedores were doing that which they were employed
to do, they were just doing it dishonestly.
•
Compare Leesh River Tea Co Ltd v British India SN Co Ltd [1967] 2QB 250 –
Stevedores employed to discharge cargo and stole the cover plate off a storm
valve. During a subsequent voyage (carrying unrelated tea cargo), a storm caused
damage to the tea cargo. The stevedores’ employee escaped liability because the
theft of the cover plate was outside the work of discharging the previous cargo.
Illegal conduct continued
Assault
•
This is probably the area which causes the most contention – why should an employer
be liable for the assault committed by an employee?
•
Zorom Enterprises Pty Ltd v Zabow – employer liable for the unauthorised acts of
security officers in assaulting the plaintiff because they may be regarded as modes –
although improper modes – of exercising authority in the course of their employment.
•
Sprod v Public Relations Oriented Security Pty Limited – Security guards worked for a
nightclub. They had a standard arrangement with a nearby pizza shop to provide
security assistance in exchange for discounts. They “kicked in” the plaintiff’s head in an
alley after he made a nuisance of himself at the pizza shop.
Illegal conduct continued
Sprod continued
•
At first instance the trial judge relied on the High Court decision in Deatons v Flew
and accepted that the acts of the security guards were not performed under the
express or implied authority of the employer.
•
The trial judge referred to Justice Gleeson in Lepore who said “where acts of
physical violence are concerned the nature and seriousness may be relevant to
judgment as to whether it is to be regarded as a personal, independent act of the
perpetrator or within the scope of employment” and that “extreme and unnecessary
violence” may indicate “pure vindictiveness”.
Illegal conduct continued
Sprod continued
•
On appeal, Justice Ipp (a leading reformist) gave the leading judgment and found
that the employer was vicariously liable because:

The 2 guards who perpetrated the assault in the alley acted in concert with 2
other guards who “kept watch”.

This indicated a “planned and deliberate course of conduct and not a
spontaneous act triggered by personal animosity and pure personal
vindictiveness”.

It was not a gratuitous unplanned act but had a great deal to do with the
performance of the guards’ duties.
Sprod compared to Couran Cove
Serra v Couran Cove
•
In this Queensland Supreme Court decision, the employer was not found liable
vicariously for the conduct of one electrician who took a wooden bat to his fellow
electrician. He struck his co worker more than 60 times.
•
In that case, it was found that, whilst the plaintiff and the assailant had a long and
difficult working relationship, there was no evidence that the employer’s failure to
investigate, reprimand, discipline or more effectively “counsel” the assailant would
have prevented the incident from occurring.
•
The Supreme Court in that case focussed on the knowledge or suspicion of the
assailant’s propensity for violence by examining a number of pre assault incidents.
Illegal conduct
•
Compare Blake v JR Nominees Pty Ltd VSCA 122. In that case, one employed truck driver
assaulted another on a “prank”. The truck drivers were delayed about 18 hours due to a late
refuelling truck. The plaintiff sued his employer, alleging his co worker’s assault was
motivated by “extreme boredom”.
•
The Victoria Court of Appeal held that the employer could only be found liable if the actions
by the perpetrator were:
1.
expressly or impliedly authorised
2.
done in furtherance of the employer’s interests;
3.
•
so closely connected with the duties and responsibilities of an employee as to be
regarded within the scope of employment.
The actions of the perpetrator did not fall within any of the tests and his state of mind or
“boredom” was irrelevant.
Howl at the Moon
Howl at the Moon Broadbeach Pty Ltd v Lamble [2014] QCA 74
•
Howl at the Moon is a nightclub at Broadbeach advertised as “the place where you
can have the most fun with your clothes on”.
•
A glassy inflicted catastrophic injuries to the plaintiff outside the nightclub.
•
The glassy saw a fracas going on in the mall outside the nightclub. The manager of
the nightclub was receiving a pummelling from disgruntled patrons after he ejected
one of their members. There was no security present. The manager also
happened to be the glassy’s uncle.
•
The glassy, seeking to assist, entered the fray in the mall and struck the plaintiff in
the head with the metal pole belonging to a long handled dustpan.
•
Unfortunately, the plaintiff was an innocent bystander.
Howl at the Moon continued
Could the assault by the glassy be legally characterised as having been done in the course
of his employment?
•
The glassy was employed to collect glasses, clean tables and various other incidental
activities. He was specifically instructed to leave security issues to security staff.
•
However, Justice Muir did not accept that “such an instruction covered all possible
contingencies and, in particular those in which security staff were not present or were
otherwise unable to act in time to respond to an emergency”. The evidence fell short of
demonstrating that the glassy had been instructed NOT to engage in conduct of the nature
involved in his attack on the bystander.
•
The glassy’s assault (although clearly misguided) was in the interests of protecting the
manager and therefore in the course of his employment and furtherance of the employer’s
interests.
Howl at the Moon continued
•
It rejected the defendant’s argument that there was insufficient connection between
his employment duties and the assault in the mall outside the nightclub. The attack
was not random but was perpetrated by disgruntled patrons in continuum of an
incident that occurred earlier inside the nightclub. Neither the manager nor the
glassy were engaged in a “frolic of their own”.
•
The level of violence was found not to be inconsistent with his employment, as the
court accepted it was the “product of spontaneous reaction of inexperienced youth”.
•
Importantly, the court emphasised that in an emergency an employee might be
impliedly authorised to do an act different in kind from the class of acts which he is
expressly authorised or employed to do.
Take away points for employers
•
Whether a loss distribution device or way of ensuring that a commercial enterprise
that has the financial benefit of doing business also bears the liability cost,
vicariously liability of employers is established law in Australia.
•
There must be an employment relationship which as per Hollis v Vabu may be
found at common law on the basis of the degree of control exercised over the
worker and the ostensible authority with which the worker acts.
•
The courts will scrutinise the nature of the employment duties and what if any
directions were given.
•
Employers may be liable for unauthorised or even illegal acts if committed in the
course of furthering the employer’s interests and with sufficient connection to the
employment.
Take away points continued
•
If anything, the cases since Lepore have demonstrated that the courts will go to
great lengths to find a “sufficient connection with employment” as opposed to a
“frolic”.
•
An employer may be liable for the unauthorised mode of carrying out an authorised
act.
•
A court may accept that in an emergency or exceptional situation an employee
may be impliedly authorised to do an act different in kind from the class of acts the
employee is expressly authorised to do as in Howl at the Moon.
•
To negate vicarious liability, the connection with employment must be lacking as in
the Blake decision concerning the truck drivers.
Polling question
Time for audience participation
Assume in a fictitious scenario that an employer employs a carpenter on a
multi-story construction.
The employer will clearly be vicariously liable if, for example, the carpenter
negligently places a hammer down on his scaffold rather than securing it
safely in his tool belt and later (having forgotten where he put it) kicks the
hammer off the scaffold, causing it to strike his co- worker below in the head.
Polling question
Will the employer be liable if the carpenter, instead, takes his hammer and
deliberately strikes his co worker in the back of the head?
Assume that:
a. The carpenter is the supervisor and delivers the blow in the course of
providing feedback
b. The carpenter and the co worker have a long and difficult working history
c. This is the first physically violent exchange between the pair.
Is the employer liable – yes or no?
Part 2 Information
gathering
immediately
following a work
incident
Session summary
Part 2 – Information gathering following a workplace incident
•
Examples of information and documents to be collected
•
Tips for good statement taking
•
Involvement of Workplace Health and Safety Queensland
•
Red flags for potential common law claims
•
Disclosure obligations in the event a claim goes common law
•
Questions
Information gathering immediately following a
work incident
Examples of information and documents to be collected:
•
•
•
•
•
•
•
•
Photographs, diagrams and sketches
Measurements
Contact details of all witnesses
Risk assessments, SWMS, JSA
Toolbox meeting agendas and minutes
Machinery maintenance records, pre-start checklists
Training records
Documents about similar previous incidents
Statement taking
Tips for good statement taking:
• Obtain statement as soon as possible after the
incident has occurred
• Be written in first person
• Be written in chronological order
• Obtain statements of fact and avoid statements of
opinion
• Start the interview / discussion with an open
question and then use closed questions after the
person has told you their story.
Involvement of Workplace Health and Safety Queensland
Do I have to report an incident to WHSQ?
Work Health and Safety Act 2011
Part 3 - Incident notification
A person who conducts a business or undertaking
must ensure that the regulator is notified
immediately after becoming aware that a notifiable
incident has occurred.
Red flags for potential common law claims
Examples include:
•
•
•
•
•
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Injured worker openly states he/she is going to sue
Relationship between employer and the worker has broken down
The injury was serious
The injured worker appears disinterested in RTW
The employer cannot offer the injured worker suitable duties
The employer cannot redeploy the injured worker into an alternative
Red flags continued
Tips
If you believe or have a suspicion that a worker may proceed with a common law
claim, our tips to you are to:
•
•
do everything possible to get the worker back to work and document all attempts
made;
Collate all the information discussed in relation to information gathering after a
workplace incident.
Disclosure obligations at common law
Documents and information that must be disclosed –
section 279 of the Workers’ Compensation and
Rehabilitation Act 2003
Information and documents relating to:
•
the circumstances of the event resulting in the injury
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the worker’s injury
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the worker’s prospects of rehabilitation
•
the nature of the injury and of any impairment or financial loss
resulting from the injury
•
the medical treatment and rehabilitation the worker has received
•
the worker’s medical history, as far as it is relevant to the claim.
Disclosure obligations at common law
Documents and information that are NOT required to be
disclosed - section 284 of the Workers’ Compensation and
Rehabilitation Act 2003
Information and documents protected by legal professional
privilege, for example:
•
Legal advice
•
Communications between a lawyer and a client or a client’s
agent
Answer to the polling question
The results are in. The presenter’s thoughts on liability of the employer:
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This is an evolving area of the law.
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Most likely the act of striking the co worker with a hammer was not in the course of employment.
•
Having said that, there remains some risk of a sympathetic court accepting that the blow in the
course of providing feedback was an “unauthorised mode” of supervising.
•
This is a better case for the worker than Couran Cove by virtue of the fact that the blow was
delivered by the supervisor during feedback and had some (although arguable not a sufficiently
close) connection with employment.
Questions?
More information
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in the coming days.
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