Contribution rights

Concurrent tortfeasors – multiple tortfeasors who contributed to plaintiff’s injury

Plaintiff can choose whom to sue (Chapman v Hearse)
That person is liable for 100% for the loss
Various tortfeasors can seek contribution from other tortfeasors; indemnity

1. ISSUE OF VICARIOUS LIABILITY

UK CASE – Lord Phillips: In England, the principles are that the judges can decided whether it
is fair, just and reasonable for duty to be imposed.
In Australia, we don’t give our judges too much discretion to decide whether duty is
imposed.
Policy reasons:
1. Why is employer liable? More means to compensate for the victim’s loss than the
employee and insure to compensation of liability.
Insurance is not a direct reason for liability. However, it is a matter of practical
reality that we couldn’t have the tort system if it wasn’t for compulsory third party
insurance (e.g. motor vehicle, work place) underwritten by insurance.
There is no point suing someone if they don’t have insurance.
BUT, whether someone is liable or not in negligence is a matter of law. 
employer’s insurance to cover for employee’s liability.
2. Tort committed activity taken by the employee on behalf of the employer. Doing the
employer’s job; asked to do this job for the employer.
3. The employee’s activity is part of the employer’s business activity. (enterprise risk)
4. The employer, by employing the employee to carry on the activity will have created
the risk of the tort committed by the employee. (enterprise risk  would lead to
strict liability, which is not the case. However, it underpins the reason for vicarious
liability)
5. The employee will, to a greater or lesser degree, have been under the control of the
employer. As a salient feature, control is a very important for imposing a duty. As a
rational for vicarious liability, it is also important. As the employer can control what
is going on, it is easier and reasonable to impose liability on the employer.

Three instances of vicarious liability at common law

1. Employer/Employee
2. Principal/Agent
3. Partner/Partner

NO POLICE TORT CLAIM and AGENCY (pg. 43)

Employer/Employee

a. An employer is vicariously liable for a tort committed by an employee in the course

of employment. It is a form of strict liability (no fault of employer must be shown),
 however must still prove the employee’s negligence and that it was in the course of
his/her employment.

b. Employer is not generally liable for tort committed by an independent contractor

(e.g. plumber, electrician etc.) It is the duty of the plaintiff to hire a competent
contractor (qualified, licensed person to do the job). Not liable for independent
contractor or the contractor’s employees.
Exception: When an employer authorizes or direct an activity which necessarily
involves a tort being committed then the employer may be liable (e.g. directing a
contracted painter to paint the neighbor’s wall  which is trespass to land and
property)  Principle “agent”

c. Vicarious liability is an additional liability on top of the personal liability of the

employee. The vicarious liability of the employer does not excuse the employee from
his own personal liability. The employee remains liable having committed a tort to
the plaintiff. It’s only that the plaintiff may sue the employer vicariously. Whether or
not the plaintiff can bring an action against the plaintiff vicariously is a matter of the
common law.

d. Australian court does not recognize dual vicarious liability. Day and ocean beach
hotel shell harbor case. Only one employer at once may be sued.

Organization test:
Whose business are they doing? Whose organization are they part of?

Contract of service v Contract for service:

Distinction between contract of service (employment relationship) and contract for services
(engagement to a particular service and to move on).

Multifactorial Approach
Why are we asking the question?

Zuijs v Wirth Brothers

Purpose of asking whether a trapeze artist was an employee or an independent contractor.
The trapeze artist may only compensate for damages if he is an employee.
The court decided that the trapeze artist be treated as an employee.
Look at the nature of the engagement of the present case, all evidence points to the
conclusion that the relationship is that of master and service. There is a power of selecting
the servant, right to superintend and control the manner to fulfill the obligation (e.g. tiem of
rehearsal, costume, venue etc.), these various aspects of the relationship show that this
person has been treated as an employee, rather than an independent contractor. Employee
can’t delegate his work.

Hollis v Vabu
Question: Whether or not a bicycle courier is an employee or an independent contractor.
No compulsory insurance scheme for bicycle riders. Mr. Hollis couldn’t identify the biker,
however identified the courier company (Vabu) and sues Vabu.
Paragraph 41  Two fundamental concerns underlining the imposition of vicarious
liability

1. Provision of just and practical remedy for the harm suffered (enterprise  liability of
wrongs)
2. Deterrence of future harm. Incentive given to the employees to reduce future harms

Bicycle couriers to be treated as employees. Therefore, Vabu is variously labile for Mr.
Hollis.
- Not running their own business
- little control in the manner to how they perform
- presented to the public as amination of vabu, Vabu superintended their finances (set
their amuneration)
- issue of who provided the equipment (beneficent employer would’ve provided the
bicycle)
- the couriers were not just supplementing the major work of Vabu, they were doing
the major work of Vabu.
Matter of deterrence: Vabu knew the dangers of riding the bicycle in public and did not take
action to reduce this risk. Ought to say, that vabu is vicariously liable, is when we put liability
on employer, they receive disciplinary orders to regulate safety and to achieve safety to all
cyclist of vabu. Reason to say why they should be vicariously liable overall, not why the
cyclist are considered as an employer rather than an independent contractor. It is an easier
way of regulating contract. Vabu could’ve done more. They could’ve had a safety system of
work. If his complaint is that Vabu did not have a safe system of work or didn’t instruct their
contractors properly, Mr. Hollist could’ve sued Vabu for personal negligence (not vicarious)
which endangered the pedestrians. They have the duty to check their independent
contractor.

Not only supplementing the major work of Vabu but carrying out the major task.  only
business
MATTER OF DETERRENCE: Vabu knew the dangers of pedestrians
Failed to adopt effectives means for the personal identification of these couriers by the
public. (Canadian case: Vicarious liability is deterrence of future harm)  disciplinary
actions which will regulate the way the business is ran, achieve safety if obligation is placed
on the employer.

Have to prove that what they did was in the course of employment
Traditional test: “Salmond test” – The course of employment includes an act authorized by
the employer and an act which constitutes an unauthorized mode of performing an
authorized act (merely an unauthorized mode performing an authorized act)
If it is an unconnected act that is not incidental to the acts the employee is engaged to
perform, the wrongful act is not in the course of employment  “Frolic of his own” (Joel v
Morison)
Bugge v Brown
Case where some farm workers were sent out to work on the paddocks and were instructed
to use the kitchen of a homestay and not use the chimney next to their work. The farmers
used the chimney anyway, and this lead to a large fire and burnt down the neighbor’s
house.  sued employers. Employer argued that the act of their employees was
unauthorized, thus he couldn’t be held liable.
Isaac J: The law recognizes that it is unjust to make the master responsible for every act the
servant chooses to do. On the other hand, the mere fact that something was forbidden does
not satisfy the question of liability. A prohibition (time, place, the act itself) does not limit
the sphere of employment so as to exclude the act of complaint of if the prohibition is
violated. An instruction may limit the prohibition, so distinctly remote and disconnect to put
the relation of the employer virtually a stranger. That was not the case here, thus the act
was in the course of employment. The employees were employed to cook a meal, they just
followed an unauthorized method.  prohibited mode
Deatons v Flew
The plaintiff was in a pub and was drunk and unruly. Barmaid asked him to go away, the
plaintiff struck the barmaid. The Barmaid threw at him a beer glass and hit him broke, and
the plaintiff lost an eye. The plaintiff sues the barmaid and the bar. The barmaid did not
have a successive self-defense case. The judge treats her act as one of retaliation. The
barmaid did not mean to throw the glass. However, the act was an act of tort, not that of
self-defense. The judge wasn’t prepared to take the barmaid’s action as an implied intent of
the bar. In any event, she was not employed to keep order. Spontaneous personal act of
retribution of the barmaid. Dickson J states that the mere occasion provided to carry out
the act does not determine the course of employment.
Stars v RSM Security
Security guard at Bondi hotel was evicting a patron of a hotel. In this case, Mr. Starks was a
patron and was asked to leave. Did not show any violence etc. The security guard head-
butts Mr. Starks. Mr. Starks then sues the Security company and the hotel. The hotel has
outsourced its security to the company.
Was the security guard acting in his course of employment when head-butting Mr. Starks?
Beasily J  The act was unreasonable, uncalled for, not the usual mode to persuade
a customer to leave. Nevertheless, he was acting the course of seeking to evict Mr. Starks. It
was directly connect to his authorized act, making the company vicariously liable for the
security guard’s tortious action. As the security was violent in doing what he was hired to
do.

Liability of School/Institutions/Hospitals etc. for Abuse (willful criminal conduct) by an

employee of someone who is in the care of the organization

2. Non-Delegable Duties
Where the courts have held that an employer cannot escape liability for negligence by
delegating the performance of the duty and will be personally liable if the delegate is
negligent.
Some aspects of their duty is non-delegable. It is a personally duty on them, and if they
delegated this duty upon someone, they themselves will be held liable.
Wilson & Clyde Coal Co v English
Vicarious liability was very narrow. The employment outsourced some task, they could just
say that they outsourced their duty to an independent contractor.
You had a situation where you have a worker who is injured by something an employer has
done. The employer can be vicariously liable only if it was in the course of employment. If an
independent contractor was used, the employer was not vicariously liable. This case says: as
an employer of a worker, the employer owes a duty to their worker and this duty cannot be
delegated to the employee. If the delegate is negligent, the employer will be liable.
Duty of an employer: safe system, safe equipment and safe premises

Kondis, Mason J

Mason J identifies cases where duties were non-delegable. (pg. 482)

- Hospital undertakes the supervision and case of patients
- School to children
- Employers to employees
Victims are in semi-custodial relation with the employer.