GLEESON CJ, GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ
GARY JOHN HOLLIS APPELLANT
AND
VABU PTY LIMITED RESPONDENT trading as CRISIS COURIERS
Hollis v Vabu Pty Ltd [2001] HCA 44 9 August 2001 S149/2000
ORDER
1. Appeal allowed with costs.
2. Set aside the orders of the Court of Appeal of the Supreme Court of New South Wales of 5 November 1999. In place thereof order that the appeal to that Court be allowed with costs, the verdict and orders of the District Court of New South Wales be set aside and that judgment be entered for the appellant in the sum of $176,313.00 with costs.
On appeal from the Supreme Court of New South Wales
Representation:
G B Hall QC with S Norton for the appellant (instructed by Brydens Law Office)
D F Jackson QC with W S Reynolds and J J Ryan for the respondent (instructed by Henry Davis York)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Hollis v Vabu Pty Ltd t/as Crisis Couriers
Negligence – Vicarious liability – Employee or independent contractor – Control – Bicycle courier negligently injured plaintiff – Bicycle courier wearing defendant's uniform but otherwise unidentified – Whether defendant vicariously liable for courier's negligence – Whether relationship between bicycle courier and defendant one of employment or independent contract – Whether bicycle courier is agent carrying out activity as principal's authorised representative dealing with third party.
Employer and employee – Independent contractor – Bicycle courier and courier company – Whether bicycle courier's relationship is that of employment or independent contract.
Words and phrases – "agent", "employee", "independent contractor", "vicarious liability".
GLEESON CJ, GAUDRON, GUMMOW, KIRBY AND HAYNE JJ. This appeal involves issues respecting the nature of the relationship of employment and the scope of the doctrine of vicarious liability. The appellant, Mr Hollis, appeals against the decision of the New South Wales Court of Appeal (Sheller and Giles JJA; Davies AJA dissenting)[1]. That Court dismissed his appeal from the decision at trial in the District Court (Wright ADCJ) returning a verdict for the defendant, the present respondent ("Vabu"), in the action by Mr Hollis for damages for personal injury.
[1]Hollis v Vabu Pty Ltd (t/a Crisis Couriers) [1999] Aust Torts Rep ¶81-535.
The facts
Vabu at all material times conducted in the Sydney area and under the business name "Crisis Couriers" a business of delivering parcels and documents. In December 1994, it had about 25 to 30 persons as bicycle couriers, and a number of others as motorcycle and motor vehicle couriers. Mr Hollis was a courier, but not a bicycle courier, with a firm styled "Team Couriers". On 22 December 1994, Mr Hollis was leaving a building in Ultimo where he had attended to pick up a parcel. He had taken two steps on the footpath when he was struck by a cyclist and knocked to the ground. The cyclist went…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Hollis v Vabu Pty Ltd [2001] HCA 44
Case
[2001] HCA 44
Decision Date
CaseChat Overview and Summary
The appellant, Mr Hollis, appealed to the High Court of Australia against the decision of the New South Wales Court of Appeal, which had dismissed his appeal from a verdict for the respondent, Vabu Pty Ltd (trading as Crisis Couriers), in an action for damages for personal injury. Mr Hollis was injured when he was struck by a cyclist wearing a "Crisis Couriers" uniform. The trial judge found that the cyclist was a bicycle courier employed by Vabu, was on Vabu's business at the time of the accident, and that Vabu was aware of dangerous riding practices among its couriers. The trial judge assessed Mr Hollis' damages at $176,313.
The central legal issues before the High Court were whether the relationship between Vabu and its bicycle couriers was one of employment or independent contract, and consequently, whether Vabu was vicariously liable for the negligence of the unidentified bicycle courier who injured Mr Hollis. The court was required to determine the nature of the control exercised by Vabu over its bicycle couriers and whether the courier was acting as an agent of Vabu in carrying out the activity that resulted in the injury.
The High Court reasoned that the control exercised by Vabu over its bicycle couriers indicated an employer-employee relationship, rather than one of principal and independent contractor. Key factors included Vabu's determination of remuneration rates without negotiation, its allocation of work through a fleet controller, and the requirement for couriers to wear a uniform at all times while working. The court found that the terms of the "CONTRACT FOR SERVICE" and associated documents, such as the requirement to return uniforms and equipment, further supported a characterisation of employment. The court concluded that Vabu exercised a sufficient degree of control over the manner in which the bicycle couriers performed their work to establish an employer-employee relationship.
The High Court allowed the appeal, set aside the orders of the Court of Appeal, and ordered that judgment be entered for the appellant, Mr Hollis, in the sum of $176,313.00, with costs.
Orders
Orders of the court
1. Appeal allowed with costs.
2. Set aside the orders of the Court of Appeal of the Supreme Court of New South Wales of 5 November 1999. In place thereof order that the appeal to that Court be allowed with costs, the verdict and orders of the District Court of New South Wales be set aside and that judgment be entered for the appellant in the sum of $176,313.00 with costs.
Background
Background to the litigation
GLEESON This appeal involves issues respecting the nature of the relationship of employment and the scope of the doctrine of vicarious liability. The appellant, Mr Hollis, appeals against the decision of the New South Wales Court of Appeal (Sheller and Giles JJA; Davies AJA dissenting)[1]. That Court dismissed his appeal from the decision at trial in the District Court (Wright ADCJ) returning a verdict for the defendant, the present respondent ("Vabu"), in the action by Mr Hollis for damages for personal injury.[1]Hollis v Vabu Pty Ltd (t/a Crisis Couriers) [1999] Aust Torts Rep ¶81-535.The facts Vabu at all material times conducted in the Sydney area and under the business name "Crisis Couriers" a business of delivering parcels and documents. In December 1994, it had about 25 to 30 persons as bicycle couriers, and a number of others as motorcycle and motor vehicle couriers. Mr Hollis was a courier, but not a bicycle courier, with a firm styled "Team Couriers". On 22 December 1994, Mr Hollis was leaving a building in Ultimo where he had attended to pick up a parcel. He had taken two steps on the footpath when he was struck by a cyclist and knocked to the ground. The cyclist went over the handlebars and landed in front of Mr Hollis. The cyclist stood up, said "Sorry mate" and left the scene pushing his bicycle; he ignored Mr Hollis' calls. The cyclist remains unidentified. However, he was wearing a green jacket, on the front and back of which, in gold lettering, there appeared the words "Crisis Couriers". Mr Hollis suffered personal injury in the accident, principally to his knee. This required surgery, caused a period of unfitness for work and has resulted in a 25 per cent permanent deficit in the knee.The decision at first instance The trial judge found that the cyclist was a bicycle courier employed by Vabu; that he was on Vabu's business at the time of the accident; and that he was wearing a uniform issued to him by Vabu but had no other obvious means of personal identification on him. His Honour also made the further important findings that Vabu had known for some time prior to the accident that a significant number of couriers disobeyed traffic rules and posed a danger to pedestrians; that means of personal identification for each courier were available; and that Vabu at various times had been party to schemes which involved to some extent effective means of personal identification but that these fell into disuse partly by reason of Vabu's failure to compel its riders to adopt such means. He held that the accident was caused by the bicycle courier's negligent – and illegal[2] – riding and that no defence of contributory negligence was made out. His Honour assessed the quantum of Mr Hollis' damages at $176,313.[2]Section 11(1)(b) of the General Traffic Regulations (NSW) provided that "the rider of a … bicycle … shall not … ride the … bicycle upon any such footpath unless the … bicycle is ridden directly across the footpath, as slowly as practicable, to or from a gateway or entrance and adequate precautions are taken to avoid collision with any person or thing upon the footpath or upon any portion of any public street adjacent to the footpath". Nothing for present purposes turns on the illegality.
Evidence
Evidence Before The Court
It is significant to note that one of the considerations mentioned by Meagher JA in the taxation decision as indicating that the couriers were independent contractors was that they bore the "very considerable" expense of providing, maintaining and insuring their own vehicles. It is apparent that Meagher JA was there concerned with expense in relation to motor vehicles and motorcycles. The purchase and maintenance of a bicycle could hardly be termed a "very considerable" expense. It may be that, in the taxation decision, a case that was, as his Honour put it, "hardly without difficulty", a different result might properly have been reached respecting Vabu's bicycle couriers from that which obtained respecting its other couriers. However, it is unnecessary to express any conclusion on this matter. It is sufficient to say that this case concerns liability arising from the activity of a bicycle courier, not a motor vehicle or motorbike courier. For the reasons that follow, the relationship between Vabu and its bicycle couriers in the present case is properly to be characterised as one of employment.The evidence in the present litigation In the present case, the trial judge appears to have felt constrained by the result in the taxation decision to characterise the relationship between the bicycle couriers and Vabu as one of principal and independent contractor and, as a result, dealt somewhat imprecisely with the terms of those contracts. However, the trial judge accepted evidence of Vabu's fleet administrator that couriers starting work with Vabu were given a modicum of instruction and filled out "employment forms". These seemed to have consisted of a three page document. The first page, on a Crisis Couriers letterhead, was headed "CONTRACT FOR SERVICE" and contained spaces for recording personal details. The second page was an inventory sheet headed "RADIO EQUIPMENT & UNIFORMS" and contained checkboxes for this equipment under the headings "OUT" and "BACK". At the bottom was a space for the interviewer's comments and a declaration, with space underneath for a signature and date, that read:"I HAVE READ, UNDERSTOOD AND AGREE TO WORK UNDER THE CONDITIONS AS SET DOWN BY THE ABOVE COMPANY PER DOCUMENT 792."The third page was headed "THESE POINTS ARE TO BE ADHERED TO AND UNDERSTOOD" and contained 11 points that roughly summarised the content of Document 792. It included the following terms:"1.DRIVERS TERMINATING CONTRACTS OF CARRIAGE WILL HAVE THEIR LAST WEEKS PAY HELD AGAINST ANY OVERCHARGES OR UNPAID CASH JOBS ETC FOR SIX (6) WEEKS FROM THE FIRST FRIDAY AFTER PAY WEEK ENDS.2.THIS COMPANY DOES NOT PAY HOSPITAL BILLS FOR ANY COURIER INVOLVED IN AN ACCIDENT. ANY DRIVER OR RIDER WHO SUSTAINS AN INJURY SHOULD REPORT IN WRITING TO THE MANAGER ALL DETAILS REGARDING THE ACCIDENT AND ANY INJURIES SUSTAINED AS A RESULT.3.A uniform with the company's logos attached must be worn at all times whilst working for this company.…5.Drivers must be neat and tidy at all times. Scruffy hair and dirty and ripped apparel will not be tolerated. It is your responsibility when leaving the company to return all clothing washed or dry cleaned.6.Loss or damage to goods in transit is the responsibility of the sub‑contractor.7.Marine and public liability insurance is $7.65 per week. Please note that any claim is subject to $1000 excess.8.All equipment and uniforms issued by the company shall remain its property and shall be returned in full on termination of driver's last contract of carriage. Any losses or damage to equipment will be at the driver's cost.…11.Your vehicle should be clean and roadworthy. This company will in future request drivers to update their vehicle if it considers that vehicle not to be in a presentable state for our clients."
Vabu at all material times conducted in the Sydney area and under the business name "Crisis Couriers" a business of delivering parcels and documents. In December 1994, it had about 25 to 30 persons as bicycle couriers, and a number of others as motorcycle and motor vehicle couriers. Mr Hollis was a courier, but not a bicycle courier, with a firm styled "Team Couriers". On 22 December 1994, Mr Hollis was leaving a building in Ultimo where he had attended to pick up a parcel. He had taken two steps on the footpath when he was struck by a cyclist and knocked to the ground. The cyclist went over the handlebars and landed in front of Mr Hollis. The cyclist stood up, said "Sorry mate" and left the scene pushing his bicycle; he ignored Mr Hollis' calls. The cyclist remains unidentified. However, he was wearing a green jacket, on the front and back of which, in gold lettering, there appeared the words "Crisis Couriers". Mr Hollis suffered personal injury in the accident, principally to his knee. This required surgery, caused a period of unfitness for work and has resulted in a 25 per cent permanent deficit in the knee.The decision at first instance The trial judge found that the cyclist was a bicycle courier employed by Vabu; that he was on Vabu's business at the time of the accident; and that he was wearing a uniform issued to him by Vabu but had no other obvious means of personal identification on him. His Honour also made the further important findings that Vabu had known for some time prior to the accident that a significant number of couriers disobeyed traffic rules and posed a danger to pedestrians; that means of personal identification for each courier were available; and that Vabu at various times had been party to schemes which involved to some extent effective means of personal identification but that these fell into disuse partly by reason of Vabu's failure to compel its riders to adopt such means. He held that the accident was caused by the bicycle courier's negligent – and illegal[2] – riding and that no defence of contributory negligence was made out. His Honour assessed the quantum of Mr Hollis' damages at $176,313.[2]Section 11(1)(b) of the General Traffic Regulations (NSW) provided that "the rider of a … bicycle … shall not … ride the … bicycle upon any such footpath unless the … bicycle is ridden directly across the footpath, as slowly as practicable, to or from a gateway or entrance and adequate precautions are taken to avoid collision with any person or thing upon the footpath or upon any portion of any public street adjacent to the footpath". Nothing for present purposes turns on the illegality. The trial judge found that Vabu set the rates of remuneration of its bicycle couriers and that there was no scope for negotiation of those rates between the parties and that Vabu allocated the work, with no scope for bidding for individual jobs by the riders. The evidence was that work was allocated to the couriers by a radio operator at Vabu's base who was known as the fleet controller. Couriers would call in each morning with their call signs and indicate readiness for work. The fleet controller would allocate jobs for the couriers. In doing so, the fleet controller would take into account various matters including the time at which couriers had first called in on that day and their location.