First Principles of Business Law

13. Vicarious liability

13.1. Liability in tort for another person's acts

Read the case study below, and then answer the questions.

A is a crane operator. He advertises his services in the local newspaper. B, a builder, enters into a contract with A whereby A will provide a crane and do all the lifting needed for the construction of a 12 storey block of apartments. The construction will take about a year. On one occasion during building operations A negligently fails to apply the safety break to the cable while lowering a load of materials for B. The load falls, injuring C, a person passing by the building site.

1. C wants to sue B rather than A because B can better afford to pay compensation. B says that, in Australian law, only the person who actually causes harm can be sued. Is B right?

3. The test for distinguishing between employees and independent contractors is that an employer can tell an employee what to do. Is this correct?

2. Is it true that vicarious liability normally makes an employer liable for the acts of employees, but usually not for the acts of independent contractors?

4. Even if B were an employee, would it be necessary for C to prove that B was acting within the course of his employment before A would be held vicariously liable for B's acts?