Date: Thu, 8 Dec 2005 14:12:23 +1100

From: Neil Foster

Subject: VL and punitive damages

Dear Robert et al;

This is a very good question which I should be able to answer but find hard! I have re-read Darling Island and two things are true

(1) Fullagar J rejected the "master's tort" theory (in this respect joined, apparently, by Williams J but in fact there is no clear statement on the matter) - hence his view is that employers are held liable for the torts of their employees, not merely for their "actions";

(2) Fullagar J nevertheless found that the employer (the stevedoring company) was not vicariously liable for breach of statutory duty where the statute imposed the duty on a supervisor (the "person in charge") rather than the employer.

The only explanation I can offer is that for Fullagar J the rule that in an action for breach of statutory duty an employer is not vicariously liable for a breach committed by an employee, is a rule specific to the BSD action. At 97 CLR 56 his Honour says:

The plaintiff sues for breach of a statutory duty, and, in order to succeed, he must find not merely a statutory duty but a statutory duty imposed on the defendant.

I am not sure whether this result is related to the interesting remark of his Honour lower down that same page: "It is a misuse of a term with a long-established meaning to call a breach of statutory duty a 'tort' ..." (!)

In other words, perhaps the logic is this:

(A) Vicarious liability of an employer operates in the law of torts to make an employer responsible for the wrongs (not merely the acts) of an employee.

(B) But since BSD is not "really" a tort we do not have to apply the law of vicarious liability to it.

I would take strong issue with the view that BSD is not "really" a tort (I am working on an article on the BSD action at the moment). But perhaps this explains how Fullagar J could reconcile the servant's tort theory with the finding of no liability in Darling Island.

Regards
Neil Foster

Neil Foster
Lecturer & LLB Program Convenor
School of Law
Faculty of Business & Law
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931

>>> Robert Stevens 6/12/05 10:58:36 >>>

Neil Foster wrote (in part):

To some extent his Honour's judgement (see [10]-[15]) depended on distinguishing the terms of the 1983 Act from the judgement of Kitto J in Darling Island Stevedoring and Lighterage Co Ltd v Long (1956-57) 97 CLR 36. That is, because the 1983 Act was clear that the State was liable for the "torts" of the officer rather than the "actions" of the officers, it was not possible to argue that it implemented the so-called "master's tort" theory represented by the judgement of Kitto J in that case. It seems fairly clear however that in a very polite and restrained way Basten JA was tip-toing around the clash of views represented by the judgements of Fullagar J and Kitto J in the Darling Island case. It would be nice if the High Court would revisit the area and make it clear once and for all that the "servant's tort" theory is the one that courts apply these days.

Surely the difficulty with adopting Fullagar J's view as to the nature of vicarious liability is that, if correct, Darling is wrongly decided? At least Kitto J explains the result.

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