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
Copyright in the High Court of Australia
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…
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- Case
- [2000] HCATrans 194
- Decision Date
CaseChat Overview and Summary
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.
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