Vicarious Liability: imposed in certain relationships eg. Employee/ Employer

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1 CONCURRENT LIABILITY: VICARIOUS LIABILITY AND INTRODUCTION TO!" NEGLIGENCE Vicarious Liability: imposed in certain relationships eg. Employee/ Employer Vicarious liability may exist if the wrongful act is done in intended pursuit of the employer s interest or intended performance of the contract of employment. Hollis v Vabu Pty Ltd (2001) Bicycle courier, employee Wearing Couriers outfit: emanations of Vabu Deterrence: Vabu knew of danger to pedestrians Vabu pays the wages Couriers provide the bikes (equipment) but not a big amount. Vabu s control of allocating and directing work Acting in the scope of employment Employer is not liable if employee does a tortious act outside of scope of employment. (Deatons v Flew) Bar maid threw glass of beer and the glass at customer in a hotel. Customer lost an eye. Hotel owner was not liable; purpose of barmaid was just to serve customers, there were hired people to keep the peace. NSW v Lepore; Samin v Queensland; Rich v Queensland(2003) Sexual harassment by school teacher. Not part of of scope of employment. There will be vicarious liability for criminal conduct if there was a close enough connection with the responsibilities of the employer.

2 NEGLIGENCE/ DUTY OF CARE Elements Duty: relationship between Plaintiff and Defendant (D owes a duty of care to P or a group of people from which the P is part of.) Breach: conduct of D (D breached DOC) Damage: Causation of harm (D s Breach caused harm P suffered.) #" Defences Contributory negligence Intoxication Voluntary assumption of risk Recreational Activities Statutory Defences Ordinary cases of negligence Positive act by D causes physical injury to P or property damage REASONABLY FORESEEABLE risk of harm Establish closeness between P&D to establish DOC. The foresight of the harm to P is not sufficient to impose a DOC: Omissions: Failure to perform an act agreed to, where there is a duty to act or required by law Economic loss D is a statutory authority or a defendant who is treated differently. (D orta-ekenaike v Victorian Legal Aid (2005))

3 New Novel cases: Foreseeability of harm Vulnerability of P Control of D Reliance on D by P $" The neighbourhood principle (Donoghue v Stevenson) (snail case) Reasonable care to avoid acts or omissions which are foreseeable to likely injure neighbour. A neighbour is someone closely affected by my act that I ought to reasonably have them in my mind. Salient Features (Perre v Apand 1999) Potatoes Imposition of a DOC impose liability Plaintiff particularly vulnerable Could the plaintiff protected themselves through contract law? Defendant has knowledge that their conduct would harm the P. Reasonable Foreseeability (Chapman v Hearse) Chapman injured from negligent driving. Dr Cherry came to assist Chapman. Hearse collided with Dr Cherry and killed him. Both Chapman and Hearse are Liable. Reasonable foreseeability does not require foresight of precise chain of events.

4 Role of Police in determining DOC (Sullivan v Moody) %" Parents accused of sexually assaulting child. Did police owe a duty of care to parents for basing this on a poorly conducted investigation? Eg. Defemation. Foreseeability of harm not enough to establish DOC. Child s interest: paramount DOC: PERSONAL INJURY Donoghue v Stephenson Negligent Manufacture, positive act leading to P s injury. Reasonable foreseeability of harm. Romeo v Conservation Commission of NT (1998) Romeo fell off cliff became paraplegic. No duty of care. No reason to warn of obvious risk CLA s 5H. Modbury Triangle Shopping Centre v Anzil(2000) P got bashed in the car park, sued shopping centre. No liability, DOC owed in relation to physical state & condition of property but scope did not extend to protecting P from criminal from conduct of third party. No control/ knowledge, No reliance or assumption of responsibility, no relationship. Adeels Palace Pty Ltd v Moubarack (2009) Restaurant owed a DOC towards patrons to take reasonable care to prevent the risk of injury from violent conduct by other patrons.

5 MENTAL HARM &" 1. Mental harm consequential upon physical harm to P 2. Pure mental harm (not consequential upon physical harm to P (eg. P saw/ heard traumatic event or saw injury/ death of relative) Tame v NSW Police mistakenly record blood alcohol reading for Tame. Corrected error but Tame became obsessed, developed depressive illness. No duty because not reasonably foreseeable. Annets v Australian Stations Annetts suffered nervous shock after learning of the disappearance and death of her son during his employment with Australian Stations. Employer gave assurances of supervision and care. DOC owed. No requirement of sudden shock or direct perception. P s vulnerability, D in control of safety of P s son, DOC would not interfere with business. Part 3 CLA S 32: DOC for mental harm (pure/ consequential) (1) No duty if P not of normal fortitude (Tame) (2) Factors relevant to foreseeability of pure mental harm Sudden shock Witness at scene Nature of relationship P an victim Pre-existing relationship between P and D (3) Relevant that P was injured and claiming shock as consequential damages (4) If the D knew of P s susceptibility a duty might be owed.