Kessly v Benjamin and Khoury Pty Ltd (No.2)

In the matter of *Kessly v Benjamin and Khoury Pty Ltd (No.2)*, heard before Judge Baird in the District Court of New South Wales, the dispute concerned the plaintiff's claim for damages arising from a motor vehicle accident. The plaintiff alleged that the defendants, Benjamin and Khoury Pty Ltd, were vicariously liable for the negligent driving of their employee, who was involved in the collision. The defendants denied liability, asserting that their employee was not acting within the scope of their employment at the time of the accident.

The central legal issue before the court was whether the driver of the vehicle, an employee of the defendant company, was acting in the course of their employment when the collision occurred. This required the court to determine the nature of the relationship between the driver and the defendant company at the time of the incident and whether the driver's actions were sufficiently connected to their employment duties.

Judge Baird applied the principles established in cases concerning vicarious liability, particularly focusing on the test of whether the employee's conduct was so closely connected with their authorised acts that it could be considered an unauthorised mode of doing something authorised. The court considered the evidence regarding the driver's purpose for being on the road at the time of the accident, the instructions given by the employer, and the benefit, if any, derived by the employer from the driver's actions. The court found that the driver was not acting within the scope of their employment at the time of the accident, as their journey was for a personal purpose unrelated to their duties for the defendant company.

Consequently, the court entered judgment in favour of the defendants, Benjamin and Khoury Pty Ltd, finding them not liable for the plaintiff's damages.