When it comes to deciding cases, judges seek to provide clear, cohesive and logical guidance to faciliate and shape our notions of justice. But even the most seasoned judge can find themselves in the curious position of interpreting laws that seem to defy simple explanation. The doctrine of vicarious liability, which holds employers responsible for their employees' actions in some circumstances, is one such area that's anything but black and white.
The Legal Test for Vicarious Liability in Australia
In Australia, an employer is liable for an employee's wrongful act if committed in the course or scope of employment. It sounds simple, but as two cases illustrate, it's a legal conundrum that can lead to differing interpretations.
Bugge v Brown [1919] HCA 5
Over a century ago, the High Court held an employer liable when their employee, Winter, lit a fire on a lunch break to cook food, setting a neighboring property ablaze. But here's the twist: Winter wasn't employed as a cook, and the act of cooking (because he had to eat) wasn't on one reading part of his job, although it must be acknowledged that the employer did give him a pan to cook the food it supplied because the normal cook was away (and the work took place at a remote location). One might, although the High Court did not find so, say that having to cook your food during a lunch break is as incidental to the task as having to urinate between shifts at a place you are contractuallly required by your employer to sleep (see Schokman below). Moreover, on one view, Winter wasn't even at his work site where the thistles had to be cut, although in a broad sense he was at the farm where he worked. Such quirky facts could lead people to see such situations differently, making this a curious case for some. The High Court though, did not see Bugge's case as analagous with Schokman, interpreting the facts of Bugge as occuring in the scope and course of employment despite the quirky facts noted.
CCIG Investments Pty Ltd v Schokman [2023] HCA 21
Fast forward to 2023, where an inebriated employee at an island resort at 3 a.m. (after his shift perhaps similar to the "break" in Bugge) urinated on a coworker, in accomodattion they were contractually required to share, causing a medical incident. The High Court had to decide if the employer was liable. Even the judges to some extent disagreed as the case worked its way to the High Court on what was similar and different to Bugge v Brown, although ultimately finding the cases not to be all that analagous and in so doing considering the employer not to be liable.
Different Judges, Different Views
These cases underscore how even judges, applying the same legal tests, can arrive at different conclusions. It's not about simplistic notions of what is right or wrong; it's about perspective, context, and the ever-challenging task of applying century-old precedents to modern-day scenarios where facts can shift.
Conclusion
The law, much like life itself, resides in shades of grey. These two cases remind us that the path to justice is not always a straight line but a winding road filled with unexpected turns. And those who write case law, the judges, find themselves continually charting this road, doing themselves into a job that they will always be asked to interpret, clarify, and enlighten especially when the issue is one of vicarious liability and the facts alter the complexion slightly of what is established.
Sources
* https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/1919/5.html
* https://eresources.hcourt.gov.au/downloadPdf/2023/HCA/21