Skip to Content, Skip to Navigation

Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters

Personal Injury in NZ

CL13 Vicarious and third-party liability

Vicarious and third-party liability
Besides suing the person who caused the harm, consideration should also be given to bringing proceedings against other parties who may be responsible for the negligent person or for the damage caused by that person.
The employers of a negligent person are vicariously liable for the negligence of their employee that occurs during, and arises out of and in the course of, employment. In overseas cases, the Courts have held employers liable even where the employee is acting contrary to instructions. An employer will be held liable for the unauthorised acts of an employee if the acts come within the scope of employment, ie what the employee was employed to do. In Pettersson v Royal Oak Hotel Ltd [1948] NZLR 136 (CA), a barman threw a glass at a customer who had refused to leave. The glass injured another customer who sued the hotel for damages. The hotel was held liable as the barman was doing what he was employed to do (keep order), albeit in an unauthorised manner. It is only when the employee is acting outside the scope of his employment, when he or she is “off on a frolic of his [or her] own”, that the employer is not liable.
The issue of whether a blameless employer can be held vicariously liable for exemplary damages remains to be definitely determined by the Court of Appeal. However, in Lucas v Leeks 4/8/99, Durie J, HC Wanganui CP116/99, the Court was of the opinion that the matter was reasonably settled in favour of liability, following the cases of Carrington v A-G [1972] NZLR 1106, Monroe v A-G 27/3/85, Prichard J, HC Auckland AP617/82, and Bazley v Curry [1999] 2 SCR 534.
Independent contractors
An employer is not generally liable for the negligence of independent contractors he or she employs, but in this regard see the Health and Safety in Employment Act 1992, which places certain responsibilities on a head contractor for the actions of a subcontractor. It can sometimes be difficult to distinguish between an employee and an independent contractor, and the Courts have adopted various tests over the years. For the current New Zealand approach, see Cunningham v TNT Express Worldwide (NZ) Ltd [1993] 1 ERNZ 695, also reported as TNT Worldwide Express (NZ) Ltd v Cunningham [1993] 3 NZLR 681.
An employer may be liable for the actions of an independent contractor, first where a statute imposes such an obligation, for example the Health and Safety in Employment Act 1992, or, secondly, where the common law has imposed such obligations, for example extra-hazardous acts that create special danger to others. See S Todd (general ed), The Law of Torts in New Zealand (3rd ed), Wellington, Brookers, 2001.
Personal liability
An employer may also be personally liable for the actions of an employee, in that the employer was negligent in failing to provide competent staff or a safe environment. In G v Auckland Hospital Board [1976] 1 NZLR 638, a claim for damages was made against the hospital by a patient who had been raped by a hospital employee. The claim against the hospital board must have been for the board’s own personal negligence in not appointing competent staff or in failing to supervise the staff. The claim could not have been based on the board’s vicarious liability because it is obvious that the rape of a patient is not merely an unauthorised way of carrying out what the employee is employed to do. It is an action completely outside the scope of employment. The claim for compensatory damages failed in G because it was barred by s 5 of the 1972 Act, although it is submitted a claim for exemplary damages should have been allowed.

From Personal Injury in NZ

Table of Contents