Hernandez v Nefiko Marble Contractors Pty Ltd

The Full Federal Court heard an appeal in *Hernandez v Nefiko Marble Contractors Pty Ltd*. The appellant, Mr. Hernandez, sought to establish that the respondent, Nefiko Marble Contractors Pty Ltd, was vicariously liable for the negligent acts of one of its former employees, Mr. Vella, who had allegedly caused Mr. Hernandez's injuries. The core of the dispute concerned whether Nefiko Marble Contractors Pty Ltd could be held responsible for the actions of Mr. Vella, despite him not being in their employ at the precise time of the alleged negligent conduct.

The central legal issue before the Full Federal Court was whether a principal can be held liable for the negligent acts of an independent contractor, or more specifically, a former employee acting as an independent contractor, when those acts occurred after the employment relationship had ceased. The court was required to determine the scope of a principal's duty of care in relation to the actions of individuals who were previously their employees but were no longer under their direct control or employment at the time of the alleged tort.

The Full Federal Court reasoned that for a principal to be vicariously liable for the tortious acts of another, there must be an employer-employee relationship at the time of the negligent conduct. In this instance, the evidence indicated that Mr. Vella was not an employee of Nefiko Marble Contractors Pty Ltd at the time of the alleged negligent act. Consequently, the principle of vicarious liability, which holds an employer responsible for the actions of its employees performed in the course of their employment, could not be applied. The court found no basis for holding the respondent liable for the actions of an individual who was not its servant or agent at the relevant time.

The appeal was dismissed with costs.