The Outer Limits of Vicarious Liability and Agency in Tort

 By Rob Ivessa

At the broadest definition of “agency”, when a person is tasked with doing something for another person they are the agent of that person.

The dividing line between when a person is or is not liable in tort for another person’s actions is blurry, capricious and fundamentally different to other areas of law.

In contract law, for example, a principal [1] is, as a matter of course, liable (subject to limited and principled exceptions) for the actions of an agent acting within the scope of their agency. Further, in contract, it is the principal who is solely liable.

By contrast, in tort, a principal is only liable in limited (and at first blush arbitrary) categories, for the actions of their agent. Further, generally, if a principal is liable, their liability is usually secondary (or vicarious) to the primary liability of the agent.

The purpose of this article is to define and attempt to explain the outer limits of the dividing line.

Rough Approximation

A very rough approximation of the dividing line is that, in tort a person is liable for the tortious acts of another person:

1. which are committed in the course of an employee’s employment (by vicarious liability).

2. which is specifically authorised (pursuant to either primary liability or agency principles);

3. who is held out as representing the person in commerce and for certain representation based torts (pursuant to both vicarious liability and agency principles);

4. committed in the course of driving the first person’s vehicle when the first person retained control over the driving (as a special category of vicarious liability); or

5. for which the principal was under a non-delegable duty (as a special type of primary liability).

Table of Contents

Liability Based on Agency -v- Vicarious Liability . 2

Vicarious Liability for Employees . 2

Employee or Independent Contractor? . 3

Connection of Conduct to Employment 4

Dual Vicarious Liability . 7

Liability for Non-Employees . 9

Specifically Authorised Acts . 9

Commercial Agents acting as Representatives . 10

Vehicle Accident Cases . 12

Non-Delegable Duties . 13

Liability Based on Agency -v- Vicarious Liability

Liability based on agency and vicarious liability can be conceptually distinguished on two bases:

1. Under the law of agency, a principal is treated as if they actually did the things their agent did and thus they are the one and only defendant. Under vicarious liability, a person who is vicariously liable is jointly responsible for the tort of the other person and thus they are only a further defendant to the other person.

2. Agency depends primarily on the authority (actual, implied or ostensible) given to the agent by the principal. Vicarious liability focuses on the level of control exercised or exercisable by one person over another [2] .

While the two sources of liability are conceptually distinct, there is a significant overlap of principles and terminology such that the delineation between the two is often blurry [3] .

Vicarious Liability for Employees

The majority of the High Court in Sweeney v Boylan Nominees Pty Ltd [4] stated that there are “some basic propositions” central to this body of law (emphasis added):

“First, there is the distinction between employees (for whose conduct the employer will generally be vicariously liable) and independent contractors (for whose conduct the person engaging the contractor will generally not be vicariously liable). Secondly, there is the importance which is attached to the course of employment. ”

In that case the majority of the High Court held that the defendant who engaged a negligent mechanic to perform repair works was not vicariously liable as the mechanic was an independent contractor.

The two key elements of a successful claim against an employer of a negligent person based on vicarious liability are that:

1. The negligent person was (in substance) an employee of the defendant; and

2. The tort was committed in the course of the employment or with a sufficient connection to the employment.

Employee or Independent Contractor?

In Hollis v Vabu Pty Ltd [5] the majority of the High Court held that a defendant who engaged a bicycle courier on a purported independent contractor basis was liable for the negligence of the courier. Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ held that the courier was in fact the employee of the defendant

The majority laid down a two-limb test for determination of whether the relationship was truly independent contracting, being [6] :

“Viewed as a practical matter”:

1. Was the person “running their own business or enterprise”? and
2. Did the person “have independence in the conduct of their operations”?

The majority found a relationship of employment rather than independent contracting for 7 reasons:

1. A bike courier needed no skill or qualification and would have been unable to make “an independent career as a free-lancer” [7] .
2. The couriers had little control over the matter of performing their work [8] :

a. their hours were fixed;

b. they could not refuse work;

c. there was no evidence they were able to delegate their tasks;

d. it was unlikely they could have worked for other courier companies during the fixed hours.

1. The defendant’s couriers all wore clothing identifying them as representatives of the defendant [9] .
2. Due to the “matter of deterrence” as the defendant knew of the risks, fixing the defendant with responsibility for the couriers’ negligence would reduce the risk of future harm [10] .
3. The defendant controlled all aspects of the courier’s remuneration and “annual leave” [11] .
4. In terms of tools required to be provided and maintained by the couriers, the bike, this was a relatively small capital outlay [12] .
5. The defendant maintained control not just over incidental or collateral matters but “there was considerable scope for the actual exercise of control.” [13]

Connection of Conduct to Employment

The traditional test for whether (once a relationship of employment is established) an employer will be liable for the acts of an employee is whether the employee was acting in the course of their employment [14] .

One way of looking at the question is to distinguish between the employee’s wrongful mode of doing what they were employed to do (for which their employer will be liable) from an employee doing something outside of what they were employed to do (for which an employer will not be liable). [15]

By way of an example, a bus company was not held vicariously liable for the actions of a conductor (not employed as a driver) who, of his own volition, attempted to turn a bus around at a depot injuring a third party [16] but in another case was held vicariously liable for the actions of its driver who permitted a conductor to drive the bus [17] . In those cases, it could not be said that the conductor’s actions were a wrongful mode of doing what he was employed to do (sell tickets and supervise passengers) whereas the driver’s actions were taken as a wrongful mode of doing his job (controlling the driving of the bus).

In Deatons Pty Ltd v Flew [18] the High Court held that the employer of a barmaid who threw a glass at a customer who she was serving was not vicariously liable for her actions. The essence of the judgment was that the barmaid was not employed to keep order in the bar (or dispense rough justice). She was employed to serve drinks to customers and her throwing the glass could not be seen a wrongful mode of doing her job.

A recent High Court case, Prince Alfred College Incorporated v ADC [19] (PAC), has given detailed consideration this issue.

The Facts of Prince Alfred College

In PAC, a man was the victim of sexual abuse in 1962 at his school (the defendant, PAC) by his boarding master. The relevant limitation period expired in 1973 when the victim was 24 years old. It was not until the 1990s when the victim’s son began attending the same school that the victim began to suffer from worsening PTSD symptoms.

In 1997 the victim had a meeting with PAC in which the prospect of litigation was raised but the victim accepted a small offer of financial assistance. After that time the victim’s mental condition worsened.

In 2008 the victim commenced proceedings against PAC on the basis (inter alia) that it was vicariously liable for the wrongful acts of its employee. He also applied for an extension of the limitation period.

The Judgment in Prince Alfred College

The victim’s claim and application was dismissed at first instance on the basis that liability has not been established and the defendant was too greatly prejudiced in being able to defend the claim by the delay. The primary judge held that the sexual abuse was [20] :

“…so far from being connected to [the boarding master] Bain’s proper role that it could neither be seen as being an unauthorised mode of performing an authorised act, nor in pursuit of the employer’s business, nor in any sense within the course of Bain’s employment. I find that the defendant did not, by means of any proven requirement of Bain, create or enhance the risk of Bain sexually abusing the plaintiff.”

The victim appealed. The Full Court of the Supreme Court of South Australia upheld an appeal as to liability and the extension application. PAC appealed that decision to the High Court.

The full bench of the High Court unanimously upheld the appeal and upheld the primary judge’s conclusion as to the extension application and said that it could not determine the liability question. Nevertheless the principles governing liability for vicarious liability were fully considered as part of consideration of the extension application issue [21] .

Legal Principles Stated

French CJ, Kiefel, Bell, Keane and Nettle JJ said [22] :

“Vicarious liability is imposed despite the employer not itself being at fault. Common law courts have struggled to identify a coherent basis for identifying the circumstances in which an employer should be held vicariously liable for negligent acts of an employee, let alone for intentional, criminal acts.”

The “course of employment” consideration had been described as a determinative “rule” [23] . Its limitations were recognised and its status downgraded to a “touchstone for liability” in PAC, by French CJ, Kiefel, Bell, Keane and Nettle JJ [24] :

“Difficulties, however, often attend an enquiry as to whether an act can be said to be in the course or scope of employment. It is to some extent conclusionary and offers little guidance as to how to approach novel cases. … But it has not yet been suggested that it should be rejected. It remains a touchstone for liability.”

The difficulty to which their Honours allude is that the “usual case” where a person does their job negligently works well with the “course of employment” test whereas “novel cases” such as intentional torts do not always.

Their Honours analysed alternative overseas approaches where Courts have had greater regard to “general principles” and policy considerations (of whether it would be fair and just to hold an employer liable).

Ultimately their honours eschewed that approach in favour of continued utilisation of an incremental approach [25] :

“…if a general principle provides that liability is to depend upon a primary judge’s assessment of what is fair and just, the determination of liability may be rendered easier, even predictable. But principles of that kind depend upon policy choices and the allocation of risk, which are matters upon which minds may differ. They do not reflect the current state of the law in Australia and the balance sought to be achieved by it in the imposition of vicarious liability.

Since the search for a more acceptable general basis for liability has thus far eluded the common law of Australia, it is as well for the present to continue with the orthodox route of considering whether the approach taken in decided cases furnishes a solution to further cases as they arise. This has the advantage of consistency in what might, at some time in the future, develop into principle.”

Their Honours held that the mere fact that employment provided the occasion or the opportunity to commit a wrong will be of itself insufficient to found vicarious liability but both together may. [26] The “relevant approach” was held [27] to be:

1. “…to consider any special role that the employer has assigned to the employee and the position in which the employee is thereby placed vis-à-vis the victim.

2. In determining whether the apparent performance of such a role may be said to give the “occasion” for the wrongful act, particular features may be taken into account. They include:

a. authority,

b. power,

c. trust,

d. control and

e. the ability to achieve intimacy with the victim.

The latter feature may be especially important.”

(enumeration added)

In the context the “particular features” should be read as each being over or with respect to the victim.

Gageler and Gordon JJ, in agreement with the other 5 judges as to the outcome in PAC, provided the following view of the “relevant approach” described above [28] :

“We accept that the approach described in the other reasons as the “relevant approach” will now be applied in Australia. That general approach does not adopt or endorse the generally applicable “tests” for vicarious liability for intentional wrongdoing developed in the United Kingdom or Canada (or the policy underlying those tests), although it does draw heavily on various factors identified in cases involving child sexual abuse in those jurisdictions.

The “relevant approach” described in the other reasons is necessarily general. It does not and cannot prescribe an absolute rule. Applications of the approach must and will develop case by case. Some plaintiffs will win. Some plaintiffs will lose. The criteria that will mark those cases in which an employer is liable or where there is no liability must and will develop in accordance with ordinary common law methods. The Court cannot and does not mark out the exact boundaries of any principle of vicarious liability in this case.”

Dual Vicarious Liability

Is it permitted?

The question of dual vicarious liability is whether, at common law, two defendants can be held simultaneously and severally liable for the actions of the one employee. An example is where a worker is actually employed by a labour hire company (the general employer) but actually works for and at the direction and supervision of another entity (the particular employer).

There was long thought to be a rule in England and Australia that the law does not recognise a servant serving two masters at the same time in the once instance of employment [29] .

This rule was in part based on the undesirability of the encouraging a multiplicity of actions (where under old procedural rules such actions would have to be brought separately).

In 2005, the rule against dual vicarious liability was resoundingly swept away in England in the important case of Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd [30] .

The subsequent treatment of Viasystems in England and Australia was succinctly summarised by McLure P in Kelly v Bluestone Global Ltd (in Liq) [31]

“Viasystems was approved by the English Supreme Court in Various Claimants v Catholic Child Welfare Society [2012] 3 WLR 1319, noting that ‘the law on vicarious liability is on the move’ [19]. That may be so in England but it has yet to stir in Australia. The New South Wales Court of Appeal in Day v Ocean Beach Hotel Shellharbour Pty Ltd (2013) 85 NSWLR 335 has concluded that dual vicarious liability is inconsistent with the reasoning of the majority (Gibbs CJ, Wilson & Dawson JJ) in Oceanic Crest Shipping Company v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626. There is also academic support for that position.”

It thus appears that in Australia the common law rule against dual vicarious liability is strongly entrenched.

The common law rule has been, in some areas, displaced in Australia by statutory dual vicarious liability such as s917C of the Corporations Act (Cth) [32] .

Who will be liable?

The question then remains if both a general employer and a particular employer cannot be dually liable for a tort committed by an employee, which of them will be liable?

The position is summarised by Sir Frederick Jordan CJ (with Halse Rogers and Roper JJ agreeing) in McDonald v The Commonwealth [33] :

“The more authoritative modern decisions emphasise the point that, unless of course the act of the employee was outside the scope of the employment of both general and particular employer, the liability of the former or the latter depends upon the nature and the extent of the control transferred to the latter or retained by the former. … Prima facie, it is the general employer who is liable; … and liability is not shifted to the particular employer by the fact that even a considerable degree of control is exercisable by him; but the greater his right to control, the greater the likelihood that it is open to a tribunal of fact to find that his has become the relevant control, and that a shift of liability has occurred. …

I think that the principles established by the authorities are as follow [sic]. If by the agreement the employer vests in the third party complete, or substantially complete, control of the employee, so that he is entitled not only to direct the employee what he is to do but how he is to do it, and the employee was performing services stipulated for, or authorised by, the third party at the time, the third party is liable. … If the control vested in the third party is only partial, so that, although the third party is entitled to give directions to the employee as to what he is to do, he is not entitled to direct him how he is to do it, the employer remains liable. If, however, the third party, though not entitled to do so as between himself and the employer, assumes to give a special direction to the employee as to how he is to do a particular act, or if he directs him to do an act outside the scope of the stipulated services, and the employee, in complying with the direction, negligently causes the injury, it is the third party who is liable. … If the act of the employee which causes the injury was done outside the scope of any employment either by the employer or by the third party, and not as the result of any express or implied direction of either, the employee alone is liable.” (original emphasis)

Liability for Non-Employees

Specifically Authorised Acts

A person who causes a tort to be committed through another person (or even an animal) is liable as if they had done the act themselves. As Balkin and Davis explain [34] :

“If X sets his or her dog upon Y it is as much battery as if X had struck Y with a fist.”

The classic example is a passenger directing a driver to speed. The passenger will be primarily liable (jointly with the taxi driver) for any ensuing tort. The passenger is liable regardless of whether the driver was an employee, an independent contractor or a volunteer.

In less clear cases, such as the liability of company directors for torts committed by the company, three competing tests for liability have developed:

1. Liability where the person “directs or procures” the tortious conduct [35] ;

2. Liability where the person “makes the tortious conduct their own” [36] ;

3. Liability where the person “assumes responsibility” for the tort [37] .

The first test (“directs or procures”) is the oldest and broadest. Under this test a director who voted for an act that constitutes a tort would be personally liable for the tort. This test has been criticised as being one that too readily pierces the corporate veil (especially in the case of one-director companies). It has nevertheless been widely applied in Australia and to a degree in England.

The second test emanated from of a line of Canadian cases and is the middle ground in both respects. It would appear that under the second test simply directing that something happen would not suffice. It has been criticised as “indeterminate and circular” [38] . It has been followed to a degree in England but has found only marginal favour in Australia.

The third test is the newest and narrowest. It emanates from a New Zealand Court of Appeal case, Trevor Ivory Ltd v Anderson [39] in which the sole director of a one-person company was not held liable for a negligent misstatement that the company made to a plaintiff who voluntarily chose to deal with the company. In New Zealand, Trevor Ivory has subsequently been explained to be not a general test but one only relevant to “dealing cases” where the plaintiff and the defendant’s company have been involved in previous dealings together. This test has also found some favour in England but little in Australia.

After a detailed analysis of the above tests and their supporting authorities Sundberg J held that the “directs or procures” is supported by “the clear preponderance of authority” [40] .

In Johnson Matthey (Aust) Ltd v Dascorp Pty Ltd [41] Redlich J found “despite the absence of any binding authority” the “directs or procures” test is the “standard for determination of a director’s liability”.

It is only necessary that the defendant direct or procure the act that constitutes the tort not that they know of the wrong doing [42] .

Ratification

A person may be similarly liable (through agency principles) if they ratify an act that constitutes a tort after the fact in the same way as they would have been had it been specifically authorised prior [43] .

Commercial Agents acting as Representatives

A category of liability has developed where torts involving representations (negligent or fraudulent misrepresentation, deceit, defamation) committed by commercial agents representing a principal can be the subject of vicarious liability. This category represents one of the greatest blurring of lines between agency and vicarious liability.

CML

In Colonial Mutual Life Assurance Society Ltd v Producers & Citizens Co-operative Assurance Co of Australia Ltd [44] (CML), a Mr Ridley, the a non-employee agent of an insurance company, engaged as a “canvasser” made a defamatory statement about a competitor’s solvency to entice a customer to switch insurers. By a 4:2 majority the High Court held the principal insurance company liable.

Gavan Duffy CJ and Starke J (in the majority) held the defendant vicariously liable on the basis of employment or alternatively on the basis that Ridley was “put in a position to do the class of acts complained of”. [45]

All other members of the Court found that the relationship was not one of employment but rather agency.

Dixon J (in the majority) with whom Rich J agreed, held the defendant liable on the basis of agency. His Honour stated (emphasis added) [46] :

“…the liability of a master for the torts committed by his servant in the course of his employment is not imposed upon the appellant by the agency agreement, but I do not think that it follows that the appellant incurs no responsibility for the defamation published by the “agent” in the course of his attempts to obtain proposals.

In most cases in which a tort is committed in the course of the performance of work for the benefit of another person, he cannot be vicariously responsible if the actual tortfeasor is not his servant and he has not directly authorized the doing of the act which amounts to a tort. The work, although done at his request and for his benefit, is considered as the independent function of the person who undertakes it, and not as something which the person obtaining the benefit does by his representative standing in his place and, therefore, identified with him for the purpose of liability arising in the course of its performance. The independent contractor carries out his work, not as a representative but as a principal. But a difficulty arises when the function entrusted is that of representing the person who requests its performance in a transaction with others, so that the very service to be performed consists in standing in his place and assuming to act in his right and not in an independent capacity.”

Evatt and McTiernan JJ (writing separately in the minority) each held the defendant not liable on the basis that there was no employment of Ridley and he was not acting within his agency.

Evatt J’s dissent was based on a differing view of the facts and not any rejection of Dixon J’s conception that a principal can be held liable for the statements made by an agent representing it.

McTiernan J specifically said (albeit in obiter dicta) [47] :

“…the appellant would be liable for the publication by Ridley of the slanders… if that act were done in exercising the authority with which Ridley was entrusted by the appellant.

…

It follows that Ridley would be acting within the scope of his authority, for example, when, in search of proponents for insurance, he spoke to people of the appellant Company, its business and its policies. He would be acting in the course of that authority if he made any false statement about those matters or said anything concerning them, which he was not expressly authorized to say or was forbidden to say.” (emphasis added)

In Sweeney v Boylan Nominees Pty Ltd [48], after reaffirming the general position that independent contractors do not generally attract vicarious liability, affirmed the result in CML thus (emphasis added):

“The conclusion reached in Colonial Mutual Life, that the party engaging an agent (albeit as an independent contractor) to solicit for the creation of legal relationships between that party and others is liable for the slanders uttered in the course of soliciting proposals, stands wholly within the bounds of the explanations proffered by Pollock for the liability of a master for the tortious acts of a servant. It stands within those bounds because of the closeness of the connection between the principal’s business and the conduct of the independent contractor for which it is sought to make the principal liable. The relevant connection is established by the combination of the engagement of the contractor as the agent of the principal to bring about legal relations between the principal and third parties, and the slander being uttered in the course of attempting to induce a third party to enter legal relations with the principal.”

Vehicle Accident Cases

A unique and much criticised category of liability is cases where the owner of a motor vehicle exercises control over a driver (not necessarily an employee or contractual agent) who drives negligently causing an accident.

The high watermark of this category of liability in Australia is Soblusky v Egan [49] . In that case the High Court held that the “owner” of a car (who was in that case actually just the bailee of the car) who was asleep in the car while it was driven by another person was vicariously liable for the driver’s negligent driving. The determinative factor in that case appeared to be that the sleeping driver, as bailee, had “full legal capacity” to “assert his power of control” of the vehicle.

In Scott v Davis [50] the High Court declined to extend the principles of Soblusky to impose liability the owner of an airplane for the negligence of a pilot when he remained on the ground. It should be noted that in that case the Court noted that it was not invited to reopen Soblusky. Gummow, Hayne and Callinan JJ (in the majority) held that the Soblusky principles should not extend beyond motor vehicles cases.

Subsequently Callinan J said in Leichhardt Municipal Council v Montgomery [51] that Soblusky:

“…appeared to impose, by means of a special and oppressive form of vicarious liability, non-delegability in substance, has at least to be doubted as a result of the reasoning of this court in Scott.”

Therefore while Soblusky remains binding authority there is a reasonable chance it will be revisited in the future.

If Soblusky is no longer good law, it would seem that this category could largely be ameliorated with liability for specifically authorised acts [52] or primary liability [53] .

Non-Delegable Duties

A final way in which a person may be liable for the torts of another is if the first person is under a “non-delegable duty of care” also called a “personal duty”. It is a duty upon a person not only to take reasonable care in what they do but to ensure that reasonable care is taken by others. In such situations the negligent performance of the duty by anyone to whom performance is outsourced (regardless of the relationship) will attract liability.

When non-delegable duties will be found is better understood by reference to the established categories rather than any unifying principle. No definitive statement of the bounds of non-delegable duties has been authoritatively given although it can be said that the categories that have been found all involve a defendant who has undertaken to control people or the property of people who are vulnerable [54] .

Categories of duty that have been found to be non-delegable are:

1. Schools to pupils [55] ;

2. Employers to workers [56] ;

3. Hospitals to admitted patients [57] ;

4. Dangerous land users to neighbours [58] ;

5. Prisons to prisoners (including immigration detainees) [59] ; and

6. Landlords to tenants (for repairs) [60] .

While the categories are not closed, in Leichhardt Municipal Council v Montgomery [61] , the High Court refused to extend the categories of non-delegable duties to the duty road authorities owe to road users. In that case Callinan J said [62] that the Court should:

“…scrutinise with great care, and generally reject, the imposition of non-delegable duties, unless there are very special categories warranting an exception.”

A non-delegable duty does not extend to “collateral negligence” being negligence not inherent to the work itself but confined to the mode of performing the work [63] . By way of an example, a landlord would be liable pursuant to a non-delegable duty if they engaged a contractor to conduct repairs to a wall which collapsed on the tenant due to negligent construction; the landlord would not be liable pursuant to a non-delegable duty if the contractor, while building the wall dropped a hammer on the tenant.

Rob Ivessa

 

Footnotes 

[1] a person who engaged another person to act for them ;

[2] Kelly v Bluestone Global Ltd (in Liq) [2016] WASCA 90 at [71]

[3] Bowstead and Renolds, On Agency, (Sweet & Maxwell), 19th Ed (2010), [8-176] p486

[4] (2006) 226 CLR 161 at [12] per Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ

[5] Hollis v Vabu Pty Ltd (2001) 207 CLR 21

[6] at [47]

[7] at [48]

[8] at [49]

[9] at [50] to [52]

[10] at [53]

[11] at [54] to [55]

[12] at [56]

[13] at [57]

[14] Greenwood v Commonwealth [1975] VR 859 at 860

[15] Goh Choon Seng v Lee Kim Soo [1925] AC 550

[16] Beard v London General Omnibus Co [1900] 2 QB 530

[17] Ricketts v Thos Tilling Ltd [1915] 1 KB 644

[18] Deatons Pty Ltd v Flew (1949) 79 CLR 370

[19] Prince Alfred College Incorporated v ADC [2016] HCA 37 handed down 5 October 2016

[20] A, DC v Prince Alfred College Incorporated [2015] SASC at [179]

[21] at [10]

[22] at [39]

[23] Balkin and Davis, The Law of Torts, 5th Ed (2013) Lexis Nexis at [26.41] to [26.42]

[24] at [41]

[25] at [45] to [46]

[26] at [80]

[27] at [81]

[28] at [130] to [131]

[29] Laugher v Pointer (1826) 5 B & C 547 at 558; 108 ER 204 at 208; Esso Petroleum Co Ltd v Hall Russell & Co Ltd [1989] 1 AC 643 at 686

[30] Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd [2005] All ER (D) 93 (Oct); [2006] QB 510; [2005] EWCA Civ 1151

[31] Kelly v Bluestone Global Ltd (in Liq) [2016] WASCA 90 at [63]

[32] multiple holders of Australian financial services licences may be liable for the conduct of a single authorised representative.

[33] McDonald v The Commonwealth (1945) 46 SR (NSW) 129 at 132

[34] Balkin and Davis, The Law of Torts, 5th Ed (2013) Lexis Nexis at [26.21]; Torette House Pty Ltd v Berkman (1940) 62 CLR 637 at 647

[35] Performing Right Society Ltd v Ciryl Theatrical Syndicate Ltd [1924] 1 KB 1 at 14, 15; Wah Tat Bank Ltd v Chan Cheng Kum [1975] AC 507 ; C Evans & Sons Ltd v Spritebrand Ltd [1985] 1 WLR 317; Private Parking Services (Vic) Pty Ltd v Huggard (1996) Aust Torts R 81-397; Hannaford v Stewart [2011] NSWSC 448 at [318]

[36] Mentmore Manufacturing Co Inc v National Merchandising Manufacturing Co Inc (1978) 89 DLR (3rd) 195

[37] Trevor Ivory Ltd v Anderson [1992] 2 NZLR 517; Williams v Natural Life Health Foods [1998] 2 All ER 577 at 584;

[38] J H Farrar, “The Personal Liability of Directors for Corporate Torts” (1997) 9 Bond L Rev 102

[39] Trevor Ivory Ltd v Anderson [1992] 2 NZLR 517

[40] Pioneer Electronics Australia Pty Ltd v Lee [2000] FCA 1926 at 45; and

[41] Johnson Matthey (Aust) Ltd v Dascorp Pty Ltd (2003) 9 VR 171 at [201]

[42] Johnson Matthey (Aust) Ltd v Dascorp Pty Ltd (2003) 9 VR 171 at [200]

[43] Potter v North (1669) 1 Wms Saund 347(c) n4; 86 ER 245 180

[44] Colonial Mutual Life Assurance Society Ltd v Producers & Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41

[45] at 46

[46] at 48

[47] at 71

[48] (2006) 226 CLR 161 at [24] per Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ

[49] (1960) 103 CLR 215

[50] (2000) 204 CLR 333

[51] (2007) 230 CLR 22 at [188] (in dissent although not controverted by the majority on this aspect)

[52] Eg. A situation where a driver is specifically directed to speed by an owner of the vehicle who is not present.

[53] Eg. Where a vehicle owner co-manages the driving of the vehicle.

[54] Kondis v State Transport Authority (1984) 154 CLR 672 at 686-7; Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 32; Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 550.

[55] Kondis v State Transport Authority (1984) 154 CLR 672 at 685; Commonwealth v Introvigne (1982) 150 CLR 258;

[56] Kondis v State Transport Authority (1984) 154 CLR 672; Czatyrko v Edith Cowan University (2005) 214 ALR 349

[57] Kondis v State Transport Authority (1984) 154 CLR 672 at 685; Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542

[58] Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520

[59] S v Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 217

[60] Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313

[61] Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22

[62] at [190]

[63] Padbury Holliday & Greenwood Ltd (1912) 28 TLR 494