O'Keefe v Comcare

The matter before the Full Court of the Federal Court was an appeal by O'Keefe against Comcare. The central issue was whether Comcare was vicariously liable for the actions of a psychologist who had provided counselling to O'Keefe, a Commonwealth employee, who subsequently brought a claim for damages following a psychiatric injury allegedly arising from the counselling sessions. The primary judge had dismissed the claim, a decision which O'Keefe appealed. The Full Court needed to determine if Comcare could be held vicariously liable for the conduct of the psychologist.

The legal issues centred on the principles of vicarious liability and whether the tortious conduct of the psychologist could be attributed to Comcare. The court considered whether the relationship between Comcare and the psychologist could be categorised in a manner that would make Comcare liable for the psychologist's actions. The court also examined whether the psychologist was acting in the course of employment and whether there was a sufficient connection between the employment and the tortious conduct to impose vicarious liability on Comcare.

The Full Court held that Comcare was not vicariously liable for the actions of the psychologist. The court reasoned that the psychologist was an independent contractor rather than an employee or agent of Comcare. Consequently, the relationship between Comcare and the psychologist did not give rise to vicarious liability. The court further found that the psychologist's conduct did not occur in the course of employment, and there was no sufficient connection between the employment and the tortious conduct to impose liability on Comcare. The appeal was dismissed with costs.