Written by Erin Martin
The High Court has once again refused to alter the established law surrounding employer / employee relationships, and the rights, responsibilities, and liabilities that flow therefrom.
In its decision handed down on 13 November 2024, the High Court, in Bird v DP (a pseudonym) [2024] HCA 41, affirmed the well established position in Australia that vicarious liability only attaches to employees, and not independent contractors, or those who are in a relationship ‘akin to employment’.
This decision follows from two 2022 High Court decisions (Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1 and ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2) wherein the High Court affirmed its previous decisions in relation to the test to be applied in determining whether a person was engaged as an employee.
The High Court’s position does not mean that there is never a situation where a business could have liability in circumstances surrounding the acts (or omissions) of persons other than employees. Situations where there is a non-delegable duty of care (such as in employer/employee relationships), where legislation applies strict liability, or where there is a duty to otherwise oversee and coordinate the rolls of various sub-contractors, can all see liability attach to a business arising out of the acts (or omissions) of persons other than employees. It is simply that liability must arise other than vicariously.
In the decision in Bird, five of the seven Judges of the High Court, in a joint decision, stated:
“In light of this Court having rejected, on more than one occasion of the last 25 years, [the extension to] the law of vicarious liability, the issue is squarely in the hands of the legislature. This Court should not, by developing the common law, deny the centrality of the employment relationship nor abandon that requirement“.
From Bird’s case, and the Personnel Contracting and Jamsek decisions, it is clear that any change to the Australian legal landscape concerning the relationships between businesses and those they engage or employ, and the liabilities businesses hold, will need to come from the presiding government, and not the presiding High Court judges.
Should you wish to discuss any of the above, please contact Erin Martin on 08 6165 2459 or any member of the Ligeti Partners team on 03 9947 4500.
