A Carton of Milk, a Bump to the Head and One Legal Headache: Vicarious Liability in the High Court of Australia

Abstract:     
The employee-independent contractor distinction is crucial to the imposition of vicarious liability on employers. The most recent consideration of this issue by the High Court of Australia in Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161. In this case, the High Court of Australia considered the concept of 'representative agent' as a basis for imposing vicarious liability for negligence. It also demonstrates limits on the extent to which courts will consider changing socio-economic and workplace realities. This article argues that, rather than introducing a third category of 'representative agent', perhaps a more fundamental reconsideration of the employee-independent contractor distinction should be undertaken.

Number of Pages in PDF File: 13

Keywords: Negligence, Personal injuries, Vicarious liability, Employees, Independent contractors, Australia, Representative agent, Workplace relations

JEL Classification: K31, K10, K30

Accepted Paper Series