Which case won?

casea
The case for the injured man
  • The bicycle courier who hit me was an employee of the courier company. Therefore, the company is vicariously liable for his negligence and must pay damages for my injuries.
  • That the bicycle courier was an employee, not an independent contractor, is clear from the following facts.
  • Bicycle couriers working for the company have little control over the manner of performing their work. They are required to be available at a certain time every day and are not allowed to refuse the delivery jobs that are allocated to them.
  • Nor are the bicycle couriers able to bargain for the rate of their remuneration.
  • The bicycle couriers are presented to the public as emanating from the courier business. The company’s "General Rules for All Drivers", including bicycle couriers, require the drivers to wear uniforms, to be presentable at all times, and to "…always be aware that they are a direct representation of the company”.
  • From a practical perspective, it makes no sense to say that a bicycle courier has established himself as an independent contractor, since delivering packages is not skilled labour and requires no special qualifications.
  • Since the bicycle courier was an employee of the courier business, the High Court must grant my appeal.
caseb
The case for the courier company
  • The bicycle courier was an independent contractor. Therefore, we cannot be held vicariously liable for his negligence.
  • That he was an independent contractor, not an employee, is clear from the following facts.
  • As a business, we require bicycle couriers to supply their own bicycles, to bear the expense of providing for and maintaining those bicycles, and to provide their own accessories, such as street directories, telephone books, ropes, blankets and tarpaulins.
  • Our bicycle couriers do not receive a salary or wages, but rather are remunerated in accordance with the deliveries that they make and are taxed as independent contractors.
  • Work is allocated to bicycle couriers in the order in which they call in daily to seek work, so the couriers are in direct competition with one another in that respect, unlike ordinary employees.
  • Since the bicycle courier was an independent contractor, the High Court must dismiss the injured man’s appeal.

So, which case won?

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Case A won. You were right!

How people voted
a48%
b52%

Expert commentary on the court's decision

“Whether a person is an employee or an independent contractor can have far-reaching consequences, as was the case here, where the answer resulted in Crisis Couriers having vicarious liability for the bicycle courier’s negligence.”
High Court rules in favour of injured man

In Hollis v Vabu Pty Ltd [2001] HCA 44, the High Court of Australia ruled in favour of the injured man, Mr Gary Hollis. 

The High Court found that the bicycle courier was an employee of the courier company, Vabu Pty Ltd, trading as Crisis Couriers. Therefore the business had vicarious liability for the bicycle courier’s negligence.

Employers are vicariously liable for negligent acts of their employees

The High Court noted that it has long been accepted that an employer is vicariously liable for the tortious acts of an employee (ie wrongful acts leading to legal liability), but that a principal is not liable for the tortious acts of an independent contractor.  

Bicycle courier was an employee

Based on a number of factors, the High Court concluded that the bicycle courier was an employee of Crisis Couriers. 

These included that the bicycle couriers represented themselves as “Crisis Couriers” in public.  

Also, Crisis Couriers had considerable scope for the actual exercise of control over the couriers. Crisis Couriers’ whole business consisted of the delivery of documents and parcels by means of couriers, and the business retained control over both work allocation and the manner in which deliveries were made. 

The court also found that although the bicycle couriers were required to provide their own equipment, this was not contrary to the existence of an employment relationship. 

Further, in the court’s view, “a bicycle courier is unable to make an independent career as a freelancer… [and the] notion that the couriers somehow were running their own enterprise is intuitively unsound”. 

Recent High Court cases take legal analysis further

Whether a person is an employee or an independent contractor can have far-reaching consequences, as was the case here, where the answer resulted in Crisis Couriers having vicarious liability for the bicycle courier’s negligence.  

In two recent cases, the High Court has taken a further step in the evolution of the law on this subject. These cases are ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2, and Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1. 

For more information about these two High Court cases, please see our May 2022 article Independent contractor or employee? Why it’s a bit of a legal circus.

NOTICE: This article is accurate as at the time of publication and does not constitute legal advice. Please see our legal notices page for more information. Information related to coronavirus can be outdated very quickly.
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