Sweeney v Boylan Nominees Pty Limited [2006] HCA 19

HIGH COURT OF AUSTRALIA

GLEESON CJ,

GUMMOW, KIRBY, HAYNE, HEYDON AND CRENNAN JJ

MARIA SWEENEY APPELLANT

AND

BOYLAN NOMINEES PTY LIMITED

T/AS QUIRKS REFRIGERATION RESPONDENT

Sweeney v Boylan Nominees Pty Limited

[2006] HCA 19

16 May 2006

S451/2005

ORDER

Appeal dismissed with costs.

On appeal from the Supreme Court of New South Wales

Representation:

D F Jackson QC with M J Ward for the appellant (instructed by McLachlan Chilton Solicitors)

J E Maconachie QC with N E Chen for the respondent (instructed by Holman Webb)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Sweeney v Boylan Nominees Pty Limited

Negligence – Vicarious liability – Respondent engaged a repairer to perform maintenance on refrigerator installed at a petrol station – Respondent obliged under lease agreement with third party to service and maintain refrigerator – Refrigerator door negligently repaired – Appellant struck and injured by insecurely fastened door.

Employer and employee – Independent contractor – Whether relationship between the respondent and repairer that of employment or independent contract – Repairer performed work for the respondent on a regular basis – Repairer performed work at the respondent's request and direction – Repairer frequently attended the respondent's premises to obtain parts with which to effect repairs – Repairer had no formal or written contract with the respondent – Repairer did not wear shirt bearing the respondent's insignia which the respondent required its employees to wear – Repairer did not receive wages or superannuation contributions from the respondent – Repairer had secured his own insurance policy for liability which he may incur in the course of his work.

Negligence – Vicarious liability – Whether respondent vicariously liable for the negligence of the repairer on the basis that the repairer was a "representative" of the respondent – Respondent provided the repairer with invoices bearing the respondent's name for the repairer to give to customers upon completion of work – Invoices described the repairer as the respondent's mechanic – Repairer authorised to receive payments from customers on behalf of the respondent – Whether the principles in Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41 apply.