Hollis v Vabu Pty Limited t-a Crisis Couriers

[2000] HCATrans 260

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S226 of 1999

B e t w e e n -

GARY JOHN HOLLIS

Applicant

and

VABU PTY LIMITED t/as CRISIS COURIERS

Respondent

Application for special leave to appeal

GAUDRON J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 JUNE 2000, AT 12.24 PM

Copyright in the High Court of Australia

MR G.B. HALL, QC:   May it please the Court, I and with me, MS S. NORTON, appear for the applicant in this matter.  (instructed by Brydens Law Office)

MR J.D. HISLOP, QC:   May it please the Court, I appear with my learned friend, MR J.G. STEWART, for the respondent.  (instructed by Henry Davis York)

GAUDRON J:   Now, Mr Hislop, by way of equal justice, as it were, we thought we might hear from you first in this case.

MR HISLOP:   May it please the Court, the irony does not escape me.

MR HALL:   Your Honour, I was a little concerned about the way we drafted our grounds of appeal and may I just hand up four copies of amended grounds.

GAUDRON J:   Thank you.

MR HALL:   Thank you, your Honours.

CALLINAN J:   It would be better not to do anything to disturb the current status quo, Mr Hall.

MR HALL:   No, your Honour, no.

CALLINAN J:   Apparent status quo.

GAUDRON J:   Yes, you have leave to amend those.  That is not opposed, Mr Hislop, is it?

MR HISLOP:   No, your Honour.

GAUDRON J:   You have that leave, Mr Hall.

MR HALL:   As your Honour pleases.

MR HISLOP:   Your Honours, there are three issues here as we would apprehend it and they can be stated in this way.  The first is that the respondent should have been held to be vicariously liable for the negligence of the bike rider.  The second is that the respondent is alleged to have owed and breached a personal duty of care of the non‑deligable nature and the third is that the judge should have given leave to amend a statement of claim to add a further defendant.

GAUDRON J:   Yes, on that third one, there is no third defendant joined to these proceedings, Mr Hall.

MR HISLOP:   That is correct.

MR HALL:   That is true, your Honour, yes.

GAUDRON J:   And in the normal course that would be the end of that.

MR HALL:   Yes, I am reluctant to abandon but I concede the difficulties I face, your Honour, in that.  Yes.

GAUDRON J:   Yes.  Thank you, Mr Hislop.

MR HISLOP:   Thank you.  If I might deal with then the first two issues as I have identified them in order.  The trial judge held that the applicant was not an employee of the respondent.  He determined that having regard to the usual criteria which one stacks on each side of the ledger, as it were, and that conclusion which he reached also accorded with a decision of the Court of Appeal in a case of Vabu v The Commissioner of Taxation where a similar test had been gone through with the result that the Court of Appeal, in that case, had held that couriers were not employees.  Now, the Court of Appeal accepted that finding and noted that the applicant accepted that couriers were not employees of Vabu but were independent contractors.

GAUDRON J:   Yes, but is that not to set up a distinction which may not be the critical consideration for vicarious liability?

MR HISLOP:   We would submit, your Honour, that that is the test which has been regarded as settled law since 1840.

GAUDRON J:   Yes.  Well, it is the test but what is the principle which underlies the notion of vicarious liability?  That has never, as I understand it, been exposed.

MR HISLOP:   I think there have been a lot of suggestions, your Honour, but perhaps no clear result has followed but we would submit in this case it is not necessary for the Court to get involved in that exposure.

GAUDRON J:   I am not too sure about that.  What is being asserted is a new category of vicarious liability in circumstances of a very considerable measure of control.

CALLINAN J:   And assumption of responsibility, because was not there an insurance premium paid in respect of the cyclist?

MR HISLOP:   There was.

CALLINAN J:   Which does look – I mean I am not suggesting that this is by any means conclusive but it may well be relevant that there has been and that that is an indication of an assumption of responsibility.

MR HISLOP:   We would submit not, your Honour, but perhaps if I could deal with the ‑ ‑ ‑

GAUDRON J:   But this case does raise, does it not, the question: what is the underlying principle which gives rise to vicarious liability?

MR HISLOP:   The submission that I make in response to that, your Honour, is, as I said, the Court does not need to get into that and the reason I ‑ ‑ ‑

GAUDRON J:   But it is an interesting question, is it not, Mr Hislop?

MR HISLOP:   I am glad to see your Honour is still ‑ ‑ ‑

GAUDRON J:   And an important one.

MR HISLOP:   Your Honour, can I suggest that the correct analysis here is that the settled law has been, as I have said, since 1840 ‑ ‑ ‑

GAUDRON J:   The circumstances in which the settled practice has been most people are employees.  That settled practice walked out the door about ten years ago.  New relationships have come into existence for the – they may not be new in terms of legal categories but the nature of the relationship by which work is performed by one person for another has, at least, changed in a significant number of areas.

MR HISLOP:   It has to some degree, but certainly not in the majority of cases.

CALLINAN J:   We have reserved a case which is different from this case but, during the course of argument, there were exposed a very large number of the problems to which her Honour is referring in this area and some of the questionable assumptions underlying the doctrine of vicarious responsibility, the case of Davies, the aeroplane – yes, there is such a case.  I am not suggesting - it would not resolve this case but it did expose exactly the sorts of problems that her Honour has referred to.

MR HISLOP:   Yes.  In this case the courts below have taken the traditional approach which, on all of the authorities, was that if a person is designated as an employee using the criteria test, then, in respect of that, there is no vicarious liability unless the act was directly authorised, which it was not in this case on the findings in all of the courts below.

GAUDRON J:   Yes, if on the other hand, vicarious responsibility rests on ostensible authority and some form of estoppel, then you are in a different territory, are you not?

MR HISLOP:   What your Honour is really seeking to do is to find some intermediate category between employees ‑ ‑ ‑

GAUDRON J:   No, principle, I am looking for.

MR HISLOP:   Principle.  Well, the result of ‑ ‑ ‑

CALLINAN J:   That will govern all categories.  It will enable us to say that the matter is now clear.

MR HISLOP:   It might enable you to say that the basis for vicarious liability is clear.  One would still then have to face up to the question of whether it extended to a situation like this.  I think what your Honours are saying would involve a departure from what I have said is very long established rules of law which have been settled and which have been applied in this case.

Now, to do that one would have to ask whether there is a benefit in this particular case in so doing or whether it would not just add further complexity to the law if one was to then have to look at each individual relationship rather than having a neat dichotomy between employees and non‑employees or independent contractors.

One then gets into what I would assume would be complex questions of fact in each case to determine whether that relationship is one which gives rise to vicarious liability so that the submission that, in essence, we make in response to what has been put is that it is inappropriate to depart from what has been long‑settled law which enables cases to be readily determined and enables parties to decide what to do in cases before they get to the court.

There is, in our submission, a very clear existent principle which it would be inappropriate to disturb in the way that has been suggested.  So that is the primary response which I would make to the first point.      I suppose I should finish what I had to say on that, namely if they are employees one applies the old law, then the result which occurred in the courts below was correct and it should not be interfered with.

As to the second basis the question – and I should, I think, say that that principle that I have referred to has been confirmed in various decisions of this Court such as Stevens v Brodribb, the Kondis Case, Burnie Port.

GAUDRON J:   Although Stevens v Brodribb moves a little bit further than that, does it not, and accepts that there may be liability for the negligence of your independent contractors if you are in a position to control their operations?

MR HISLOP:   That was a case that was concerned with injury to one of the people that was actually working there.

GAUDRON J:   Yes.

MR HISLOP:   Which I would submit is a different category to what we have here.

GAUDRON J:   Well, would it be?  What if this unidentified courier had simply run into another of Crisis Couriers’ couriers and in circumstances in which he had so injured him that he was no longer able to recognise the person, blinded him, say?

MR HISLOP:   That would be dependent upon the matters which were considered in that case.

GAUDRON J:   Would it not be the same?

MR HISLOP:   No, your Honour, because in that case ‑ ‑ ‑

GAUDRON J:   Crisis Couriers – would it not raise exactly the same principle as in this case?

MR HISLOP:   No, your Honour, because in that case there was direct control via the bush boss over the ‑ ‑ ‑

GAUDRON J:   No, I am talking about what if one Crisis Courier ran into another Crisis Courier, both having been sent out at the same time to deliver whatever it is that is delivered but in opposite directions.  Would not that be very close to Brodribb?

MR HISLOP:   No, we would submit not, your Honour.  In that case it would simply be a question of two independent contractors who collided.

CALLINAN J:   I do not know about that.  If you look at the express findings that I think the plaintiff invited the trial judge to make at pages 39 and 40, which were made, they do seem to throw up the question very neatly in this case to enable the court to say with a great deal of precision just how much control was, in fact, exercised and to form a framework for, I would have thought, the statement of some principle as to vicarious liability.

You might well win in the end, but those findings do seem to present the question in a very neat form, I would have thought, and in a form which would apply and the answer to which would apply in a number of other cases, I would think.  Those findings deal with assumption of responsibility, degree of control, representation, all of the matters that one might think are relevant to this sort of question.

MR HISLOP:   Yes.  If the Court was minded to move away from the established situation, his Honour certainly has made findings there which are clear in the way they are stated.

CALLINAN J:   And the sorts of findings with respect to factual matters or factual situations that I think would apply in a number of different contexts but with essentially the same sorts of situations, particularly today when, I think, there is a great deal of contracting out work done which is another, perhaps, modern factor which requires that a look at this should be taken, perhaps.

MR HISLOP:   Yes.  I put the propositions that I think can be properly put against that, your Honour, namely that the error of law is well settled.  It has been properly applied in this case.  If the Court considers it is time to relook at this matter and, perhaps, change what has been long‑established law, then that is a matter which, no doubt, would weigh with this Court in determining the plaintiff’s application.

CALLINAN J:   Yes.  It might be a very good reason why, in a widespread contracting out situation, there should not be any change.  That may turn out to be the right answer, that this contracting out should not be turned into a futility or it should not be futile in respect of some matters, but it is a very interesting question and I rather think an important one.

MR HISLOP:   Yes, well I have put the propositions against that.  Does the Court wish me to go on with what I identified was the second issue in the case?

GAUDRON J:   Yes, I think you should.  Yes.

MR HISLOP:   As to the second issue, the applicant submitted, in effect, that there was a duty of care owed which was of a personal, non‑deligable nature because the activity in which the couriers were engaged was itself a hazardous activity and, as a result of that, there should be a duty of care.

Now, that issue is dependent upon there being an established category or exception of that nature to the general rule that there is no liability for the negligence of an independent contractor.  That may well be questionable in the light of the decision of the Court of Appeal in Torette House v Berkman which is referred to in the judgment of the court below and also in the light of the comments made by Justice McHugh in the Burnie Port Case when he made reference to Stoneman v Lyons and indicated ‑ ‑ ‑

CALLINAN J:   He was in dissent, was he not, in Burnie?

MR HISLOP:   He was in dissent, yes, your Honour, that is true but, in our submission, what he said in relation to that issue never having been determined is correct unless one was to give a very wide interpretation to what the majority of the Court said in Burnie Port.  Our submission would be that that should be read into the context of that particular case where the Court was moving from Rylands v Fletcher but in a situation where it was an occupier or person in control of premises who allowed dangerous objects to be brought onto those premises.

But, putting that to one side, if there is such an exception, then what we have in the Court of Appeal is a difference of opinion between the majority judges and minority judge as to whether that particular exception applied on the facts of the case.  The majority of the judges held that it did not and the dissentient held it was so, in our submission, as to the second, or what I have identified as the second issue in the case, the Court would not consider that there is any special leave point there, it simply being a difference between the members of the Court of Appeal as to how one should categorise the situation having regard to the facts of that particular case.

That, I think, covers the two issues.  I will not go into the insurance issue in view of what the Court has said unless the Court wishes me to.

GAUDRON J:   No, I think that is unnecessary, Mr Hislop.

MR HISLOP:   If it please the Court, they are the submissions we make.

GAUDRON J:   Yes, thank you.  Mr Hall, when we granted you leave to amend your grounds of appeal, we did not pay sufficient attention to ground (e).

MR HALL:   Yes, your Honour.

GAUDRON J:   Which raises people who are not parties to the application, in essence, does it not?

MR HALL:   Yes.

GAUDRON J:   It may be that at the end of the day those who instruct Mr Hislop would be appearing for the same person, but I do not think you could have ground (e).

MR HALL:   Your Honour, if I can have grounds (a) to (d), I think we will part well happy.

GAUDRON J:   Yes, well in that case we will grant special leave restricted to the matters raised by grounds (a) to (d) inclusive in the amended grounds of appeal handed up in Court today.

MR HALL:   As your Honour pleases.

MR HISLOP:   May it please the Court.

GAUDRON J:   The Court will now adjourn to reconstitute.

AT 12.45 PM THE MATTER WAS CONCLUDED