Category Archives: Employer’s liability

Legal Issues Bulletins – NSW Department of Education & Communities

The NSW Department of Education & Communities from time to time publishes Legal Issues Bulletins.

As at 12 October 2014, there are 54 Legal Issues Bulletins. The bulletins, which are prepared as general information for officers of the department, cover issues such as criminal offences, confidentiality, power to search students, discipline, child protection, police interviews, accidents, personal injury, occupational health and safety, insurance and subpoenas. The bulletins may be accessed by visiting http://www.dec.nsw.gov.au/about-us/information-access/legal-issues-bulletins.

Lawyers

Sydney, Australia

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Hamilton v Nuroof (WA) Pty Ltd [1956] HCA 42 | 10 August 1956

ON 10 AUGUST 1956, the High Court of Australia delivered Hamilton v Nuroof (WA) Pty Ltd [1956] HCA 42; (1956) 96 CLR 18 (10 August 1956).

http://www.austlii.edu.au/au/cases/cth/HCA/1956/42.html

The duty of care of a reasonably prudent employer is “a duty to take reasonble care to avoid exposing the employees to unnecessary risks of injury” (per Dixon CJ and Kitto J at 25) and “a duty to ensure that all reasonable steps are taken to provide a safe system of working” (per Fullagar J at 34).

Lawyers

Sydney, Australia

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Hollis v Vabu Pty Ltd [2001] HCA 44 | 9 August 2001

ON 9 AUGUST 2001, the High Court of Australia delivered Hollis v Vabu Pty Ltd [2001] HCA 44; 207 CLR 21; 75 ALJR 1356; 106 IR 80; 181 ALR 263 (9 August 2001).

http://www.austlii.edu.au/au/cases/cth/HCA/2001/44.html

The plaintiff was a pedestrian who was injured when a bike courier collided with him on a footpath.  The defendant was the courier company who engaged the cyclist. The company denied liability for the pedestrian’s injuries on the basis that the cyclist was an independent contractor. The trial judge awarded damages to the pedestrian, finding that the cyclist was an employee. The Court of Appeal allowed an appeal by the company, finding that the cyclist was an independent contractor.

The High Court allowed an appeal by the cyclist,  holding that the cyclist was not an independent contractor because:

  • no discretion to accept or reject work.
  • stringent roster system.
  • clear rules on taking annual leave.
  • little or no scope for freelancing.
  • no special skills.
  • cyclists were identified with the company with uniforms and a dress code.
  • pay and conditions were consistent with an employment relationship.
  • no scope for bargaining of rates.
  • the provision of the bikes as necessary tools and equipment was not inconsistent with an employment relationship
  • the exercise of control by the company over the courier’s activities.

The relevant considerations for determining whether or not a person is an independent contractor include:

Jiang Shen Cai trading as French Accent v Michael Anthony Do Rozario

ON 2 DECEMBER 2011, the Full Bench of Fair Work Australia delivered Jiang Shen Cai trading as French Accent v Michael Anthony Do Rozario (C2011/4659).

https://www.fwc.gov.au/documents/decisionssigned/html/2011fwafb8307.htm

Lawyers

Sydney, Australia

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Hollis v Vabu Pty Ltd [2001] HCA 44

ON 9 AUGUST 2001, the High Court of Australia delivered Hollis v Vabu Pty Ltd [2001] HCA 44; 207 CLR 21; 75 ALJR 1356; 106 IR 80; 181 ALR 263 (9 August 2001).

http://www.austlii.edu.au/au/cases/cth/HCA/2001/44.html

The plaintiff was a pedestrian who was injured on a footpath by a bike courier. The defendant was the courier company who engaged the cy list. The company denied liability for the pedestrian’s injuries on the basis that the cyclist was an independent contractor. The trial judge awarded damages to the pedestrian, finding that the cyclist was an employee. The Court of Appeal allowed an appeal by the company, finding that the cyclist was an independent contractor.

The High Court allowed an appeal by the cyclist,  holding that the cyclist was not an independent contractor because:

  • no discretion to accept or reject work.
  • stringent roster system.
  • clear rules on taking annual leave.
  • little or no scope for freelancing.
  • no special skills.
  • cyclists were identified with the company with uniforms and a dress code.
  • pay and conditions were consistent with an employment relationship.
  • no scope for bargaining of rates.
  • the provision of the bikes as necessary tools and equipment was not inconsistent with an employment relationship
  • the exercise of control by the company over the courier’s activities.

The relevant considerations for determining whether or not a person is an independent contractor include:

  • Who owns the business?
  • Who controls the operation/work?
  • Who owns the office space?
  • Who owns the tools?
  • Who does the contractor provide duties to?
  • Does the independent contractor bear a risk of profit or loss?
  • Is there a creation of goodwill?
  • How is the independent contractor paid?

 

Lawyers

Sydney, Australia

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Polycarpou v Australian Wire Industries Pty Ltd [1995] NSWSC 158

ON 14 NOVEMBER 1995, the NSW Court of Appeal delivered Polycarpou v Australian Wire Industries Pty Ltd [1995] NSWSC 158 (14 November 1995).

http://www.austlii.edu.au/au/cases/nsw/NSWSC/1995/158.html

Lawyers

Sydney, Australia

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Safety, Rehabilitation and Compensation Act 1988 (Cth)

ON 1 JULY 1998, the substantive provisions of the Commonwealth Safety, Rehabilitation and Compensation Act 1988 commenced. The Act was initially called the Commonwealth Employees’ Rehabilitation and Compensation Act 1988.

http://www.austlii.edu.au/au/legis/cth/consol_act/sraca1988368/

Lawyers

Sydney, Australia

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Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34

Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492; 59 ALR 529 (29 May 1985).

http://www.austlii.edu.au/au/cases/cth/HCA/1985/34.html

“The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man (Pennington v. Norris [1956] HCA 26; (1956) 96 CLR 10, at p 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v. Gypsum Mines Ltd. [1953] UKHL 4; (1953) AC 663, at p 682; Smith v. McIntyre [1958] TASStRp 11; (1958) Tas.SR 36, at pp 42-49 and Broadhurst v. Millman [1976] VicRp 15; (1976) VR 208, at p 219 and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance.”

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Hamilton v Nuroof (WA) Pty Ltd [1956] HCA 42

ON 10 AUGUST 1956, the High Court of Australia delivered Hamilton v Nuroof (WA) Pty Ltd [1956] HCA 42; (1956) 96 CLR 18 (10 August 1956).

http://www.austlii.edu.au/au/cases/cth/HCA/1956/42.html

The duty of care of a reasonably prudent employer is “a duty to take reasonble care to avoid exposing the employees to unnecessary risks of injury” (per Dixon CJ and Kitto J at 25) and “a duty to ensure that all reasonable steps are taken to provide a safe system of working” (per Fullagar J at 34).

Lawyers

Sydney, Australia

1300 00 2088

Deatons Pty Ltd v Flew [1949] HCA 60

ON THIS DAY in 1949, the High Court of Australia delivered Deatons Pty Ltd v Flew [1949] HCA 60; (1949) 79 CLR 370 (12 December 1949).

http://www.austlii.edu.au/au/cases/cth/HCA/1949/60.html

Lawyers

Sydney, Australia

1300 00 2088