In some situations a person can be held responsible for the acts or omissions of another person.
This is known as the doctrine of vicarious liability. The doctrine applies to the law of torts. The liability arises where there is a particular relationship between the wrongdoer and the person held liable.
The relationship that most often gives rise to vicarious liability is that between employer and employee. An employer will be vicariously liable for torts committed by an employee in the course of their employment. It is important therefore to ascertain whether the relationship of employer and employee exists. This may be difficult to establish and the law has come up with a number of tests to determine if the relationship exists. These tests are discussed in detail in Chapter 21 (see pp. 665–8). The main test is the control test. If an employer can tell a person what to do and how to do it, then generally that person is an employee.
A person who is not an employee is an independent contractor. An employer is not vicariously liable for the acts or omissions of independent contractors.
An employer will only be liable for employees’ acts or omissions committed in the course of their employment. An employer will be vicariously liable for the acts of an employee while carrying out an authorised task. This is the case even if the task is carried out in an unauthorised manner.
Not a defence, but may reduce damages
Liability for the act or omission of another
Acts and omissions of independent contractors
Newspapers can only claim defence in exceptional circumstances
Duty to publish must be established
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P ART ONE
Century Insurance Co Ltd v. Northern Ireland Road Transport Board [1942] AC 509
FACTS: A petrol tanker driver lit a cigarette while delivering petrol to an underground tank. A fire was ignited and caused damage.
DECISION: The employer of the petrol tanker driver was vicariously liable for the damage caused by the fire. The court regarded the driver’s action as an unauthorised way of carrying out an authorised task (delivering petrol).
The employer will not be liable for acts committed by employees that are unrelated to their employment or outside the scope of their employment.
General Engineering Services Ltd v. Kingston and St Andrew Corp. [1988] 3 All ER 867
FACTS: A fire brigade proceeded very slowly to a fire as they were following a ‘go slow’ policy by way of industrial action. The issue was whether the local authority employing the brigade was liable for the brigade’s actions.
DECISION: The local authority was not vicariously liable for the actions of the brigade as their conduct was outside the scope of their employment.
Deatons Pty Ltd v. Flew (1949) 79 CLR 370
FACTS: Flew, a customer at a hotel run by Deatons Pty Ltd, acted in an offensive manner and was asked by the bar attendant to leave. There was an altercation and the attendant threw a glass in Flew’s face, causing the loss of sight in one eye. Flew then sued Deatons for damages and won his case. Deatons appealed.
DECISION: The employer was not liable as the act was of a personal nature, unconnected with the employee’s duties.
Her duties did not include security or the discipline of unruly customers.
TORTS AGAINST THE PERSON TORTS AGAINST GOODS TORTS AGAINST LAND
Assault Trespass against goods Trespass against land
Battery Conversion of goods Public nuisance
False imprisonment Detinue Private nuisance
Defamation
CASE EXAMPLE
CASE EXAMPLE
TABLE 3.4 Summary of torts
CHECK YOUR PROGRESS
Interactive version at www.mhhe.com/au/barron6e1. The aim of the law of torts is to:
(a) punish
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(b) compensate
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(c) vindicate
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(d) deter
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2. The test to determine if a duty of care exists is:
(a) an objective test
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(b) a subjective test
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(c) called the remoteness of damage test
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(d) none of the above
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3. The question as to whether a duty of care has been breached is a question of:
(a) law
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(b) fact
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(c) both law and fact
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(d) reasonableness
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4. If the risk of injury is so small that it is not justifiable to take the risk to eliminate it, there will be no breach of the duty of care.
(a) true
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(b) false
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PLACE A TICK IN THE APPROPRIATE BOX
Employer not liable for acts outside employment
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5. Damages can be awarded to compensate for:
(a) loss of income
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(b) loss of enjoyment of life
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(c) pain and suffering
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(d) all of the above
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6. Where a plaintiff can be held partly to blame for a loss as a result of a failure to take care, this is called the defence of:
(a) contributory negligence
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(b) volenti non fit injuria
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(c) voluntary assumption of risk
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(d) acceptance of risk
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7. A motor vehicle insurance policy that only covers damage to the property of another person
is called:
(a) compulsory coverage
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(b) comprehensive coverage
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(c) third party property
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(d) indemnity coverage
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8. Individuals who have suffered loss as a result of defective products have:
(a) common-law rights
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(b) statutory rights
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(c) both common-law and statutory rights
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9. The intentional application of force to another person amounts to the tort of:
(a) assault
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(b) battery
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(c) false imprisonment
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(d) nuisance
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10. The wrongful retention of another person’s goods amounts to the tort of:
(a) trespass against goods
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(b) conversion of goods
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(c) detinue
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(d) private nuisance
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11. An unlawful interference with a person’s use or enjoyment of land is the tort of:
(a) trespass against land
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(b) public nuisance
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(c) private nuisance
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(d) the rule in Rylands v. Fletcher
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12. A defamation in a permanent form is called a slander.
(a) true
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(b) false
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13. The defence of qualified privilege will not be available to an action in defamation if the statement is made maliciously.
(a) true
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(b) false
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14. An apology for a defamatory statement is a defence to a defamation action.
(a) true
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(b) false
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15. An important method for ascertaining whether the relationship of employer and employee exists for the purpose of establishing vicarious liability is the:
(a) control test
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(b) foreseeability test
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(c) objectivity test
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P ART ONE
1. A ‘tort’ is a civil wrong as opposed to a criminal wrong. The law of torts provides a mechanism whereby individuals can protect their rights. A person committing a tort is called a
‘tortfeasor’.
2. ‘Negligence’ is a particular type of tort, and three prerequisites must exist to prove this tort: the defendant must owe the plaintiff a duty of care, there must be a breach of that duty of care, and damage must be suffered as a result of the breach of duty.
3. A duty of care will exist only if it is foreseeable that the actions of the defendant could cause the plaintiff harm. A duty of care is owed, among others, by road users to others on the road, by a school to its pupils, by the occupiers of premises, by persons giving advice and by a bailee of goods. A duty of care has been held to exist in situations where the plaintiff’s loss is purely economic.
4. A breach of a duty of care will arise only if a standard of care has been breached. A person will be in breach of their duty if a reasonable person would have foreseen harm in the circumstances and would have taken steps to prevent it. The question as to whether a duty of care exists is a question of law. In comparison, the question of whether there has been a breach of a duty is a question of fact.
5. There will be no breach of a duty of care if the risk of injury is so small that a reasonable person would have
disregarded it. In deciding whether there has been a breach of duty, the gravity of injury and the effort required to remove the risk are relevant considerations. The social utility of the defendant’s conduct is also a relevant consideration.
6. It must be established that the damage suffered was caused by the defendant; the ‘but for’ test is used to decide this. A defendant will not be liable for damage that is too remote. A defendant is liable only for damage that is reasonably foreseeable.
7. The aim of damages in the law of torts is to place the plaintiff in the position they would have been in had the tort not been committed. The plaintiff is under a duty to mitigate or reduce their loss as far as possible.
8. Contributory negligence occurs where the plaintiff can be held partly liable for the loss that has been sustained. It has the effect of reducing the amount of damages the plaintiff will receive. If the plaintiff voluntarily assumes a risk, then this can also be a defence to a claim of negligence.
9. Motor vehicle accidents often involve allegations of negligence. Insurance protects people involved in these accidents in respect of personal injury and damage to property. In each state and territory, there is a compulsory insurance scheme for damages arising from personal injury.
10. Occupiers owe a duty of care to persons entering their premises. An occupier is a person having occupation or control of land or a structure. Occupiers owe entrants a duty to take reasonable care to avoid foreseeable risk of injury.
11. The common law of negligence has been significantly amended by the passage of civil liability legislation.
12. Assault, battery and false imprisonment are all torts against the person. ‘Assault’ occurs when the conduct of one person towards another results in that other person apprehending (anticipating) that they will suffer harm. ‘Battery’ is the intentional application of force against another person. The tort of false imprisonment is the unauthorised inflicting of bodily restraint on a person.
13. A trespass against goods involves the wrongful interference with the enjoyment of possession of goods. Conversion of goods involves an act in relation to a person’s goods that constitutes an unjustified denial of a person’s right to the goods. Detinue is the wrongful retention of another person’s goods. The plaintiff must have requested the return of the goods and this must have been refused.
14. The tort of ‘trespass against land’ occurs where there is direct interference with a person’s right to possession of land. A ‘public nuisance’ is an act that interferes with the enjoyment of a right to which all members of the public are entitled. A ‘private nuisance’ is an unlawful interference with a person’s use or enjoyment of land.
15. The rule in Rylands v. Fletcher is a strict liability tort. An occupier of land will commit this tort if dangerous or mischievous substances escape from their land on to the land of another and cause damage. Since the decision of the High Court in Burnie Port Authority v. General Jones Pty Ltd, this tort has for practical purposes been abolished in Australia.
16. ‘Defamation’ is the publication of a statement that tends to lower the estimation or reputation of a person in the mind of the community generally. Four elements must be satisfied to succeed in an action for defamation: the statement must be defamatory, the statement must refer to the plaintiff, the statement must be published and the defendant must be unable to rely on a valid defence. The possible defences to an action for defamation are consent, justification (or truth), fair comment and absolute or qualified privilege.
17. In some situations a person can be held responsible for the acts or omissions of another person. This is known as the doctrine of vicarious liability. The relationship that most often gives rise to vicarious liability is that between employer and employee.