Abstract
In the law of negligence, the importance of establishing an employer-employee relationship as opposed to an employer-independent contractor relationship is twofold. First, an employer owes a personal duty of care to his employees.1 Secondly, an employer may be liable vicariously to third parties for the negligence of his employees. By contrast, an employer's liability for independent contractors has traditionally been very limited. The law has taken the view that independent contractors are skilled persons who should generally be responsible for themselves. In general, employers owed no duty of care to independent contractors and vicarious liability does not attach to a person who engages an independent contractor. Accordingly, one might suspect there to have been numerous cases where employers have avoided liability by successfully classifying the alleged employees as independent contractors. The authorities show otherwise.
Highlights
In the law of negligence, the importance of establishing an employer-employee relationship as opposed to an employer-independent contractor relationship is twofold
The High Court dealt with the issues generally in the order outlined aoove, it is proposed to discuss Brodribb's liability firstly on the basis that Gray and Stevens were independent contractors and secondly on the basis that they were employees, (a) Brodribb's Liability as an Entrepreneur Engaging Independent Contractors (i) Personal Liability The question whether Brodribb was under a general common law duty of care to Stevens was, said Mason J.,9 to be determined by reference to the elements of proximity and reasonable foreseeability discussed by Deane J. in Jaensch v
The High Court pointed to the fact that there had not been any accident during loading operations in the past and that Gray and Stevens were experienced contractors.[39]
Summary
In the law of negligence, the importance of establishing an employer-employee relationship as opposed to an employer-independent contractor relationship is twofold.
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