Date: Wed, 13 Dec 2006 10:03:29 +1100

From: Neil Foster

Subject: Exemplary Damages and Vicarious Liability of the State - NSW v Ibbett

Dear Jason;

You are absolutely right!! And I was absolutely wrong. Thanks for noting this. Even at the time I wrote it I had a brief doubt in my mind, but I was reassured by the way that the Court used the term. The problems of writing these things too quickly!

My defence is this: that this wrong terminology is (I am sorry to say) used by the High Court in Ibbett, although thankfully they (pretty well) stop short of actually endorsing it.

First to clarify the terminology. In this area the textbooks are in agreement - the "master's tort" theory is the one that says that it is not the servant's torts, but their actions, which are attributed to the master. This is what Kitto J said in Darling Island Stevedoring and Lighterage Co Ltd v Long (1957) 97 CLR 36. See (for the main Australian sources) Luntz & Hambly (rev'd 5th ed at 959 "Kitto J embraced the master's tort theory of vicarious liability"), Balkin & Davis (3rd ed) at p 803 para [26.36], Trindade & Cane (3rd ed) 742-743. The "servant's tort" theory says that vicarious liability is indeed a "strict" liability in that the master is held liable for the tort of the servant, not the servant's actions. In Majrowski v. Guy's and St Thomas' NHS Trust [2006] UKHL 34 Lord Nicholls uses slightly different (less "feudal") terminology but sums the law up in the same way:

[15] In times past this 'employer's tort' analysis of vicarious liability had respectable support in England. But since then your Lordships' House has firmly discarded this basis in favour of the 'employee's tort' approach. An employer's liability is not confined to responsibility for acts done by an employee in the course of his employment. An employer's liability goes further. He is liable for the wrongs of his employee committed in the course of employment.

And as his Lordship notes, the High Court of Australia in recent years when it has addressed the issue directly has favoured the "servant's tort" theory - see NSW v Lepore [2003] HCA 4, per Kirby J at [299]:

Ultimately, the fiction of the "master's tort" was abandoned. It was accepted that the employer's liability derived from the liability of the servant.

Secondly, then, how does the High Court in Ibbett use the phrase? At [6] they sum up counsel for the State's argument and say:

Counsel for the State emphasised that s 8 is drawn in terms which apply the "master's tort" theory of vicarious liability, associated with the reasons of Fullagar J in Darling Island Stevedoring and Lighterage Co Ltd v Long, whereby the master is liable for a breach of duty resting on the servant, not on the master, and broken by the servant.

The other theory, that adopted by Kitto J in Long, treats the act of the servant as the indirect act of the master.

Sadly, this is quite misleading. The "master's tort" theory is the one associated with Kitto J, not Fullagar J. It seems that the Court has been misled by counsel for the State into using the wrong label for the theory. Counsel in referring to s 8 of the Law Reform (Vicarious Liability) Act 1983 wants to make the point that the section imposes liability on the State for the tort of the police officer. The Court later refer to the reason for him making this point, at para [49], because he wants to argue that if the focus is the wrongfulness of the act of the officer (the "servant" here) then any exemplary damages should be limited to what the officer could afford. But the theory he wants is the "servant's tort" theory.

Unfortunately, as I say, and no doubt because they were not planning on addressing the issue separately, a casual reader of the High Court judgement might think they were endorsing this description, though a closer examination reveals that they are really just quoting counsel's argument. (See the concluding words of para [49] which are quite misleading unless read with the opening part of that paragraph "Counsel then submitted that ...") Even in para [56] when summarising their reasons for rejecting the State's argument the court seems to accept the term "master's tort" theory.

Still, in the end I think the court do not end up adopting the erroneous description. But they make it hard for academics putting a note together quickly!

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

>>> Jason Neyers 13/12/06 12:39 >>>

 

Neil wrote:

An issue lurking in the background is the question of "master's tort" (liability for torts of the servant imputed to the master) vs "servant's tort" (liability for the acts of the servant imputed to the master, who has to owe a separate duty).

 

Isn't this backwards? Isn't the servant's tort theory the one that holds that liability for torts of the servant is imputed to the master?

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