Case Analysis SAMPLE BB

Case Analysis SAMPLE BB - CLAW1001- Case Analysis 307208428...

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307208428 Case Analysis: Introduction: In Sweeney v Boylan (Sweeney) the issue of vicarious liability is considered. Vicarious liability at common law is the liability for wrongful (tortious) conduct of employees in the course of their employment. 1 Sweeney highlights the problematic process of distinguishing between an employee and an independent contractor for the purposes of vicarious liability 2 . This analysis is critical of the high courts majority decision where it was viewed that the introduction of an intermediate category of ‘representative agents’ adds inherent ambiguity 3 . It is argued that a new approach needs to be adopted by the courts to take into account the changing and diverse working practices of contemporary Australia. Facts: The central issue in Sweeney was whether the relationship between the mechanic (Comninos) and the respondent (Boylan Nominees) was a contract of service (an employment relationship) or a contract for services (a principal engaging with an independent contractor). In August 2000 the attendees of a service station observed that there was a problem with the store’s refrigerator door and informed Boylan Nominees who were responsible for the maintenance of the refrigerators. Boylan dispatched a mechanic to fix the broken door who, at the completion of his work, demonstrated to the satisfaction of the attendant that the door was fixed 4 . Later that day, after Comninos had claimed the door was fixed, Sweeney entered the service station to purchase a carton of milk. When she opened the refrigerator the door fell off hitting her and causing her to suffer head, neck and arm injuries 5 . In determining whether Comninos was an independent contractor or an employee the district court judge stressed the importance of the reference to ‘our mechanic’, which was stated in Boylan service report which Comninos gave to the attendee and in the Boylan personal and public liability claim report regarding the accident 6 . However, Boylan had viewed Comninos as a ‘contractor’ 7 . Comninos did not receive wages but was invoiced according to the hours he worked and spare parts he used. He was not provided with a uniform, used his own spare parts and 1 Sappideen,C., O’Grady,P. & Warburton,G. (2008), Macken’s Law of Employment , Thomson Reuters, Sydney, p. 460. 2 Sweeney v Boylan Nominees Pty Ltd [2006] HCA 19; (2006) 226 CLR 161; (2006) 227 ALR 46; (2006) 80 ALJR (16 May 2006) 3 ibid, at 13-19. 4 Ibid, at 4-5. 5 Rolph, D. (2006), ‘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, p. 295. 6
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Case Analysis SAMPLE BB - CLAW1001- Case Analysis 307208428...

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