Vicarious liability

Vicarious liability

1. liability of employer; employer is liable for the torts committed by their employees in the course of their employement

   • elements
     • a) a relationship of employer & employee
       • steven v brodbribb sawmillin co pty ltd factors to determine if employement or independent contractor
         • degree of control the defendent is authorised to excersice over the tortfeasor
         • degree of integreation of the tortfeasor into the defendants organisation
         • the mode of remuneration (salary/per job)
         • whether it is the defendent or the tortfeasor who is reasonable for providing and maintain equiptment
         • whether tortfeasor is obliged to work
         • level of skill/specialisation of job
         • fixed for a period of time
         • whether income tax deducted
         • required to wear uniform
         • intention of parties
         • tortfeasors free to work for others
         • ability to delegate work
     • b) the employee actions were 'withinthe course of his emloyment' or reasonably incidental thereto
       • empoyer will be liable where employee is doing a authorised act regardless if they are doing it wrong/illegitimate; canterbury bankstown v rodgers
       • where the act was unauthorise liability wiill not generally be attatched unless there is sufficient connection between act and employment
         • close connection test; necessary to show that the employement created or increased the risk of the commision of the tort; new south wales v lepore
       • employer liable despite the fact that employee over stepped the mark and performs an act is not authorised. causes injury through negligence is likely to be found within scope; century insurance co v northern island road transport board
         • even where employer has expressly prohibited employees ftpm act there will still be vicarious liablitly attatched ;limpus v london general omnibus co
         • where employee acting on own provate agenda no liability deatons pty ltd v flew

2. p can sue both or either

3. employers will be liable to pay compensatory and aggraved damages canterbury v bankstown

   • exemplary questionable