Date: Fri, 14 Jul 2006 16:55:40 +1000

From: Neil Foster

Subject: Torts in the House of Lords Again

On question (1), I have mentioned previously here that NSW v Bryant [2005] NSWCA 393 finds that there can be an award of exemplary damages against the State for actions of a police officer, although NSW v Ibbett [2005] NSWCA 445 contains a dissent by Ipp JA at para [139] where he doubts that the matter is settled. I have just now noticed that the High Court has granted special leave to appeal in Ibbett (see State of New South Wales v Bryant; State of New South Wales v Ibbett [2006] HCATrans 319 (16 June 2006) but for some reason denied it in Bryant (I will have to re-read to find out why.) Anyway, it looks from the transcript as if Darling Island will be considered.

Regards
Neil F

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 13/07/06 4:08 >>>

For most purposes, it doesn't matter whether you adopt the Master's Tort theory (ie that the words/actions are attributed to the employer) or the Servant's Tort theory (ie that the liability is attributed to the employer). In the former case the employer is liable jointly as principal. In the latter, he is held strictly liable for a wrong he does not personally commit.

In Majrowski, I think the result is the same regardless of the approach. "Persons" who can be guilty of harassment under the Act was not confined to "natural persons" and so if the acts of harassment are attributed, the employer should be liable. In Darling, by contrast, the duty on the wording of the legislation was only on the employee.

Adopting one or the other approach, what is the correct result in these two scenarios:

(1) A public body employs an official who is guilty of a gross wrong, which would entitle the claimant to punitive damages. Can the employer be held liable for such damages?

(2) An employer is held vicariously liable for the fraud of its employee. Third parties were also parties to the fraud and the employer claims a contribution from them. Should the employer be treated as an innocent party claiming against fraudsters, or as a fraudster claiming a contribution from fellow fraudsters?

There are many many other examples where it makes a difference, but I won't bore the list further.

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