For those interested in  vicarious liability law, there have been two interesting recent decisions of the NSW Court of Appeal. The most important was  today's decision in Day v The Ocean Beach Hotel Shellharbour Pty Ltd [2013] NSWCA 250 (5 August 2013) http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=166264 (thanks to Bill Madden for alerting me to this.) It addresses the question whether there can be "dual" vicarious liability- i.e. can 2 defendants be simultaneously vicariously liable for one action committed by an employee/worker? The decision holds that the answer is No, and explicitly rules that a court in Australia cannot follow the opposite view accepted by the UK Supreme Court inVarious Claimants v Catholic Child Welfare Society [2012] UKSC 56. See paras [25]-[26]ff of the very careful judgment of Leeming JA, where his Honour concludes that the High Court decision in Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626 stands against dual vicarious liability (as of course does the old decision of Laugher v Pointer (1826).) The facts of the case involve a security guard going beyond the bounds of "reasonable force" in dealing with a customer, but the court holds that while the employer of the guard was vicariously liable for the harm, the owner and proprietor of the hotel cannot be held vicariously liable. (Perhaps it is impolite to say so, but what is it about bar cases which bring out parties with odd names? Deatons v Flew involved a barmaid named Opal Ruby Pearl Barlow; this case involves a hotel licensee whose name is said to be Karma Elliott-Cosmos!)

Young Ryan, 3 years old at the time, was seriously injured when a four-wheel drive overturned while being driven in a private paddock. Mr Lloyd, the defendant, was sued as owner of the vehicle and vicariously liable for the actions of his wife, Ms Shipard, who had overall control of it, and who had allowed a visitor known to be inexperienced in driving in the bush to take control while Ryan was present with his mother.

The case involved the question whether Soblusky v Egan [1960] HCA 9; 103 CLR 215 (which found an owner or bailee of a car vicariously liable for the actions of a driver) could be extended to cover this case (where the owner, Mr Lloyd, was nowhere near the car when the accident occurred.) The court holds not- as it points out, Soblusky barely survived reconsideration in Scott v Davis a few years ago, and the general tenor of the HC comments there was that it was not be extended beyond its precise circumstances. Sadly this left Ryan without compensation for his injuries- the vehicle being only used within the property concerned and never travelling on public roads, was not required to be insured and the provisions relating to the Nominal Defendant were not invoked when a public road was not involved. (It is suggested at [85] that had the accident occurred after 2007 current provisions relating to "no fault recovery by children" would have applied- though to be honest I am not sure that is right.)

While Leeming JA noted that the wife, Ms Shipard (who was standing on the roll bar at the back of the vehicle at the time of the accident) could have been sued under Soblusky (which extended to bailees as well as owners), presumably she had no relevant insurance.

There is an interesting comment by Leeming JA at [89] about the fact that the case reveals a "gap" in legislative coverage: "But the existence of such a gap provides no reason to alter the common law so as to plug it… A detailed legislative scheme which in terms contemplates gaps tells against the expansion of liability…"

Regards

Neil