Contemporary Australian Tort Law

In this chapter we discuss two doctrines that are interrelated in that they impose liability either because of the relationship between the defendant and the tortfeasor (D2–D1) (vicarious liability), or the relationship between the defendant and the plaintiff (D2–P) (non-delegable duty of care).

We will start by examining vicarious liability, which is a form of strict liability. We will learn that the employer–employee relationship is the most common instance of vicarious liability. At common law, the employee who commits the tort is always liable, and so vicarious liability of the employer is in addition to the direct liability of the employee (tortfeasor). We will distinguish the employer–employee relationship from the relationship of principal–independent contractor, as the employer is not vicariously liable for the acts of independent contractors. Then, we will establish when the employee acts in the course of employment. We will also note the employer’s right of indemnity from an employee.