NSW Caselaw
New South Wales Court of Appeal
Boylan Nominees Pty Ltd t/as Quirks Refrigeration v Sweeney [2005] NSWCA 8 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S): 03/02/05
JUDGMENT DATE: 18 February 2005
JUDGMENT OF: Giles JA at 1; Ipp JA at 2; Brownie AJA at 89
DECISION: (1) Application for leave to appeal granted (2) Appeal upheld (3) The judgment and verdict in favour of Mrs Sweeney are set aside, and in lieu thereof there shall be judgment and a verdict in favour of Boylan (4) Mrs Sweeney to pay Boylan's costs of the trial, the costs of the application for leave to appeal and appeal (5) Mrs Sweeney to have a certificate under the Suitors Fund Act 1951 (NSW) if otherwise entitled.
CATCHWORDS: NEGLIGENCE - Vicarious liability - Employer/employee relationship - Test for determining whether a person is an employee - Factors regarded as relevant to the issue - Independent contractor - Whether a principal is vicariously liable for the actions of an independent contractor - NEGLIGENCE - Vicarious liability - representative - principal is not vicariously liable for the actions of a person who is neither an independent contractor nor an agent but is a representative of that principal. D
LEGISLATION CITED: Workplace Injury Management and Workers Compensation Act 1998 (NSW), cl 2(1), Schedule 1
Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 Colonial Mutual Life Assurance Society Ltd v Producers & Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41 Commissioner of Payroll Tax (Vic) v Mary Kay Cosmetics Pty Ltd (1982) VR 871 Hall (Inspector of Taxes) v Lorimer (1992) 1 WLR 939 Hollis v Vabu Ltd (2001) 207 CLR 21 J A and B M Bowden & Sons Pty Ltd v Chief Commissioner of State Revenue [2001] NSWCA 125 Marshall v Whittaker's Building Supply Co (1963) 109 CLR 210 CASES CITED: Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 Quarman v Burnett (1840) 6 M & W 499 Scott v Davis (2000) 204 CLR 333 Starks v RSM Security Pty Ltd [2004] NSWCA 351 Stevens v Brodribb Sawmillilng Company Pty Ltd (1986) 160 CLR 16 Suttor v Gundowda Pty Limited (1950) 81 CLR 418 Torett House Pty Ltd v Berkman (1939) 39 SR (NSW) 156 Vabu Pty Ltd v Federal Commissioner of Taxation (1996) 33 ATR 537
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