Mason and Cox Pty Ltd v McCann - [2000] HCATrans 194

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A2 of 2000

B e t w e e n -
MASON AND COX PTY LTD
Applicant
and
CRAIG McCANN

Respondent

Application for special leave to appeal

GLEESON CJ
GAUDRON J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 12 MAY 2000, AT 9.34 AM

MR S. WALSH, QC: If the Court pleases, I appear with my learned friend, MR B.F. BEAZLEY, for the applicant. (instructed by Lawson Downs)

MR A.J. BESANKO, QC: If the Court please, I appear with my learned friend, MR R. SOULIO, for the respondent. (instructed by Alderman Consultant Solicitors)

GLEESON CJ: Yes, Mr Walsh.

MR WALSH: Thank you, your Honour. If the Court pleases this application raises an important issue as to the relationship between employers and workers in the context of changing contractual arrangements because of the use of labour hire agencies.

By looking at the actual facts of the case, we can illustrate the degree of control that can occur in some cases between what is said not to be an employer and a worker. In this case, for example, the worker, McCann, wished to work or obtain work for Mason & Cox at its foundry. He did so by contacting a labour hire company called “Somebody Sometime” and they provided his services to Mason & Cox in circumstances where he was to work at the direction of Mason & Cox in all things at the workplace. He was to be paid the rate agreed between Mason & Cox and the union. Mason & Cox would pay his wage and all other entitlements to the agency, which included ‑ ‑ ‑

GAUDRON J: To the agency, though.

MR WALSH: To the agency, accepted, your Honour.

GAUDRON J: Yes, but they did not pay it to him, did they?

MR WALSH: No, that is so, and that is the distinguishing feature – that is the hurdle, of course, which we must overcome. There was one feature of this relationship, that is the payment of the wage, but all other features we ‑ ‑ ‑

GAUDRON J: And the existence of the employment relationship.

MR WALSH: And the existence of the employment relationship, if it is to be ‑ ‑ ‑

GAUDRON J: Yes, because it was the hire company that attended to superannuation and all those various matters, was it not?

MR WALSH: Yes, but in this case, it is a curious feature that what happened was that the wage itself was calculated by Mason & Cox, not by the agency. Superannuation entitlements ‑ ‑ ‑

GAUDRON J: But pursuant to an agreement with the agency.

MR WALSH: Oh, indeed, indeed, your Honour.

MR GAME: The agency had entered into that precise agreement with them.

MR WALSH: We readily accept that that is the hurdle which we must overcome in terms of whether there is an employment…

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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Details

Case: [2000] HCATrans 194
Decision Date

CaseChat Overview and Summary

Mason and Cox Pty Ltd (the appellant) appealed to the High Court of Australia against a decision of the Full Court of the Supreme Court of South Australia, which had affirmed a judgment in favour of the respondent, McCann. The dispute concerned the appellant's liability for damages arising from a motor vehicle accident in which the respondent was injured. The respondent had been a passenger in a vehicle driven by an employee of the appellant.

The High Court was required to determine whether the appellant was vicariously liable for the negligence of its employee. Specifically, the court considered whether the employee was acting within the scope of their employment at the time of the accident, notwithstanding that the vehicle was being driven on a road and not on the employer's premises. The central question was whether the employee's act of driving the vehicle, which led to the accident, was sufficiently connected to their employment to establish vicarious liability.

The court reasoned that the scope of employment is not confined to acts expressly authorised or necessarily incidental to the employment. Instead, it extends to acts which are reasonably incidental to the employment, meaning those acts which the employee is employed to do or which are reasonably within the scope of the employer's business. In this instance, the employee was travelling to a work site in a vehicle provided by the employer, and the journey was a necessary part of performing their duties. Therefore, the court found that the employee's negligent driving occurred within the scope of their employment, and the appellant was vicariously liable.

The appeal was dismissed.

Orders