Date: Thu, 2 Feb 2006 10:40:50 +1100

From: Neil Foster

Subject: Two Questions - Q 2, Responsibility of Joint Tortfeasors

Dear Robert et al;

Some Australian texts state that "the proportion of the total damages which each must pay depends upon the extent to which each fell below the standard of care expected of the reasonable person" (my emphasis) citing Dare v Dobson [1960] SR (NSW) 474. I have looked at this case in hard copy form (I doubt it is on any electronic databases) but it doesn't really help on the "reasonable person" question. The "learner driver" issue of course was nuanced slightly by the High Court in Cook v Cook (1986) 162 CLR 376 to say that a learner may owe a "lesser standard of care" to someone like their instructor who is aware of their lack if skill (but not to a fellow road user.) If this logic were followed then if a road accident involved a learner whose car had big "L" plates prominently displayed and a more experienced driver, then perhaps it could be argued that if the experienced driver had become aware early enough of the learner's lack of skill (saw them coming in the distance, etc) it was incumbent on them to exercise a higher degree of care, and hence they could be held liable for a higher share of the damages? But I don't have any cases to back this up.

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 2/02/06 3:18 >>>

I have two questions which I cannot answer for myself arising from what I am working on. Any help, offlist if preferred, gratefully accepted.

 

Problem One

We have recently discussed an employer's vicarious liability for exemplary damages and vicarious liability for an employee's obligation to make restitution of a gain made by the employee.

Are there any cases where an employee, acting in the course of employment, commits a tort which results in a gain for the employer but not the employee? Is the employer obliged to make restitution? In principle I think the answer should, generally, be yes, if this is the sort of tort which permits of this response but are there any cases?

 

Problem Two

In a claim for contribution between two careless tortfeasors, does the court apply the same test in determining relative 'fault' as it would in deciding whether the tort has been committed? So, if two drivers D1 and D2 both carelessly cause a car accident which results in injuries to P, could D1 argue that she was a learner driver whilst D2 was a professional chauffeur so that the contribution as between the two of them should not be equal? Or, as between D1 and D2 do we apply the objective standard which we would apply in the claim by P against either one of them? Cases?

<<<< Previous Message  ~  Index   ~  Next Message >>>>>