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

Australian Journal of Labour Law, Vol. 19, No. 3, pp. 294-305, 2006

Sydney Law School Research Paper No. 08/26

13 Pages Posted: 12 Mar 2008  

David Rolph

The University of Sydney Law School

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.

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

JEL Classification: K31, K10, K30

Suggested Citation

Rolph, David, A Carton of Milk, a Bump to the Head and One Legal Headache: Vicarious Liability in the High Court of Australia. Australian Journal of Labour Law, Vol. 19, No. 3, pp. 294-305, 2006; Sydney Law School Research Paper No. 08/26. Available at SSRN: https://ssrn.com/abstract=1105264

David Rolph (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

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