- Title
- Convergence and divergence: the law of non-delegable duties in Australia and the United Kingdom
- Creator
- Foster, Neil
- Relation
- Divergences in Private Law p. 109-134
- Relation
- http://www.bloomsbury.com/au/divergences-in-private-law-9781782256601/
- Publisher
- Hart Publishing
- Resource Type
- book chapter
- Date
- 2016
- Description
- In general, as is well known, while an employer can be held vicariously liable for wrongs committed by an employee in the course of their employment, a 'principal' is not vicariously liable for the actions of an independent contractor. The High Court of Australia noted in Hollis v Vabu: 'It has long been accepted, as a general rule, that an employer is vicariously liable for the tortious acts of an employee but that a principal is not liable for the tortious acts of an independent contractor.' There was an attempt by McHugh J in the High Court in the early part of the twenty-first century to reformulate the rules relating to liability for the actions of non-employees, where his Honour argued that the actions of 'representative agents' ought to create vicarious liability. But the majority of the High Court firmly rejected this view, and an attempt by Kirby J to revive this theory in Sweeney v Boylan Nominees Pty Ltd also failed. However, despite the general rule precluding vicarious liability for independent contractors, it has long been accepted that there are some specific situations where the courts have recognised what is called a 'non-delegable duty of care' ('NDD'). In these situations liability may be imposed on a principal for the wrongful actions of a contractor. While the outcome of a finding of non-delegable duty is similar to vicarious liability (in that one party is being held strictly liable for harm committed by another with whom they have a contract), there is a clear conceptual difference between the two doctrines.
- Subject
- non-delegable duties; employment law; duty of care
- Identifier
- http://hdl.handle.net/1959.13/1326821
- Identifier
- uon:25520
- Identifier
- ISBN:9781782256601
- Language
- eng
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