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Vicarious liability

Vicarious liability

by John Forde, associate

A common problem faced by employers is vicarious liability and their duty of care. A recent Supreme Court of Queensland decision acts as a timely reminder for our workplaces in 2018.

The defendant company (which I will call the Company) conducted a road freight transport business in Brisbane.

The incident, occurred when the Plaintiff was injured in an accident whilst riding a pallet jack as a scooter during the course of his duties. The CCTV footage showed the Plaintiff was going slowly and had placed a foot onto each of the tynes of the pallet jack whilst holding onto the handle with both hands. The court found that the Company did not prohibit riding a pallet jack like a scooter.

To hold the Company directly liable for the incident and his injuries, the Plaintiff needed to establish that had the Company issued an instruction not to do so, he would have complied with the instructions. There was no evidence by the Plaintiff that he would have complied with such an instruction and the claim for direct liability failed.

However a different conclusion was reached when it came to the Company’s vicarious liability for the act of the employee who kicked the back of the pallet jack that was being ridden like a scooter.

The trial judge described the term vicarious liability, as follows:[1]

“The doctrine of vicarious liability has as its foundation the proposition that employers choose to take on employees, knowing there will be consequences, including the assumption of the risk that in carrying out duties and functions relevantly connected to that employment, the employee will cause injury or damage to others. An essential requirement for the establishment of vicarious liability is that the act be said to have been undertaken in the scope or course of the wrongdoer’s employment. That requirement provides the objective rational basis for liability and its parameters.

Vicarious liability can apply to harm caused by an employee’s unauthorised acts, including intentional wrongdoing. However, for vicarious liability to arise in such a circumstance, there must be a connection between the wrongdoer’s wrongful act and the employment. The difficulty which arises in the determination of whether an employer is vicariously liable for the actions of the wrongdoer is in the determination of whether the particular act can be said to be in the course or scope of that employment. That requires a consideration of the connection between the wrongful act and the employment and whether it would be fair and just to ascribe vicarious liability for that wrongful act.”

In the reasons for the decision, His Honour said:[2]

“In the present case, it is significant that whilst kicking the tyne of the pallet jack could not be said to have been an act which was authorised by the defendant, the act occurred on the floor of the depot between fellow workers in the context of the pallet jack being transported from one section of the depot to another.”

.........

“A fellow employee may well, wrongly, see that action as helpful to push the plaintiff along his way.”

The case illustrates the practical difficulties for employers in defending vicarious liability claims. Here the court was satisfied that, whilst unauthorised, the act occurred within the scope and course of the Plaintiff’s employment with the Company.

There was considerable dispute about skylarking and the Company’s knowledge of those practices. It was accepted that the employee had seen other workers do it and that he was not acting recklessly in complete disregard for his own safety. There was no written instruction by the Company not to do it and there was no evidence of a worker being formally disciplined for riding a pallet jack in that manner. The court held there was no basis for a finding of contributory negligence.

[1] Cincovic v Blenner’s Transport Pty Ltd [2017] QSC 30 at [178] to [179].

[2] Ibid at [180] and [186].

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