4. Shared Liability

Articles at the start.





General Notes

  • Liability for another’s actions:

    • Vicarious liability: A is liable for B’s actions;

    • Concurrent liability: Both A and B are liable for B’s actions.

  • Policy justification: Protection of innocent third parties:

    • Employer/principal bear both benefits and losses caused by employees/agents; (Employers responsible for negligence of employees.)

    • “Deepest pockets”;

    • Promote wide distribution of tort losses.


Vicarious Liability: Employees

  1. Is the wrong-doer an employee or an independent contractor?

  2. Is the conduct connected with the employee’s job? (Is there a sufficiently close connection between the tort and the scope of employment?)

Idea that one person is liable for the actions of another. (Like an employer being responsible for employee’s action).

Basically we have to figure out if they are employee or independent contractor. If employee, then is the conduct to do with their job?


Employee or Independent Contractor

  • Vicarious liability for employees.

  • Concurrent liability.

  • No vicarious liability for an independent contractor.

  • Key test: Lee Ting Sang v Chung Chi-Keung (PC): Whether engaged him/herself to perform duties, and if so, whether doing work on own account.

  • Example:

    • R engages P to move R’s furniture. P’s van, driven by Q, negligently crashes causing damage;

    • R is not liable – P is an independent contractor;

    • If P owns the van and pays Q’ wages, then P will be liable for Q’s actions as P’s employee (concurrent with Q).


Test for Employee or Independent

To the law it doesn’t matter even if you sign an agreement that says they are independent contractor, because court realises there is an imbalance of power between a company and someone who wants a job, so they test to see if they seem like an employee.

Useful for when a contractor is sacked by company, but can then claim actually I am employee, I have entitlements. They look at circumstances of relationship to determine.

If it looks and smells like employee, then it probably is employee, no matter what contract says.

  • Intention Test: What the parties intended.

  • Control v Independence Test: Does A have the right to tell B what to do and how to do it?

  • The Integration Test: How integrated is B into A’s organisation? Does A organise the overall pattern of work (details may be left to B)?

  • The Fundamental/Economic Reality Test: Who takes the financial risks? (the costs of equipment/machinery, the risk of non-payment)? (Employee does not take financial risk).


Uber Drivers - Contractors or Employees

  • In Nov 2025 the NZ Supreme court found Uber drivers were employees while logged into the app based on:

    • Real nature of relationship.

    • Significant control by Uber - fares, ratings, and operational protocols.

    • Business integration - drivers integrated into Uber’s national service rather than running independent businesses.

  • Drivers get employee entitlements (Uber only gave it to the 4 that went to court).

Test: Who owns car? Are they on schedule? Etc.



Government - Legislative Response

  • In Feb 2026 the government introduced legislation to set a test to determine if a worker is a contractor.

  • Introduced gateway test.

  • If all requirements are met then they are contractor.


  • Five requirements:

    • A written agreement that the individual is an independent contractor.

    • They are allowed to work for another person (but not simultaneously).

    • They can choose when to work/are not required to work at certain times or for minimum periods. They can sub-contract work.

    • They can decline an offer to work without the arrangement being terminated.

    • They have a reasonable opportunity to seek legal advice before signing the agreement.

  • If all requirements of the gateway test are not met then use existing tests.


2. Linking the tort with the job

  • Employer vicariously liable only if tort committed within scope of employment.

  • The Close Connection Test:

    • Is the wrong so connected with the employment that the employer has introduced the risk of the wrong?

    • Has the employer created an opportunity for an abuse of power?

You are only liable for things done by employee in relation to work. (Reasonably linked).

E.g. you own cleaning company, employee steals from someone’s house and disappears employer is liable because they chose that employee, they put them in that house, and therefore they created the situation for the wrong-doing to happen.


Bazley v Curry [1999] (Canada Supreme Court)

In Bazley v Curry [1999], the Children's Foundation hired an employee who subsequently sexually abused a resident child despite passing a background check. The plaintiff sued the foundation, seeking to hold the employer vicariously liable for the wrongful acts of its employee.

  • Employer liable for employee’s sexual abuse of children in his care.

  • Strong connection between role he was required to play (“parent figure”) and the opportunity to carry out the wrongful act.

  • Employer created and fostered the “enhanced risk”.


Jacobi v Griffiths [1999] (Canada Supreme Court)

In Jacobi v. Griffiths [1999] 2 S.C.R. 570, the Supreme Court of Canada considered whether the Vernon Boys' and Girls' Club was vicariously liable for the sexual abuse committed by its Program Director, Harry Griffiths, against two young members. While Griffiths used his employment role to build rapport with the children, the abuse occurred almost entirely off-site at his private residence outside of work hours. The Court ruled 4–3 in favor of the Club, holding that it was not vicariously liable because Griffiths' job duties did not confer the level of parental-like authority or intimate care required to establish a sufficient connection between the Club's enterprise and the tortious conduct.

  • Employer not liable for employee’s sexual abuse of children who attended the club.

  • No opportunity created by work – not placed in special position of trust/acting in parental role.

Lister v Hesley Hall Ltd [2002] (HL)

The claimants were residents at a residential school annex run by Hesley Hall Ltd for children with emotional and behavioral difficulties. The company employed a warden who was responsible for the daily care, discipline, and supervision of the children. The warden used his position of authority to systematically sexually abuse the boys on the school premises during his working hours. The claimants sued Hesley Hall Ltd, claiming it was vicariously liable for the warden's torts.

The House of Lords unanimously found in favor of the claimants, holding the employer vicariously liable. The Court established the "close connection" test: liability applies because the warden's abuse was so inextricably interwoven with the care duties entrusted to him that it was fair and just to hold the enterprise responsible.

  • Employer liable for employee’s sexual abuse of children.

  • Warden’s duties provided opportunity to commit sexual assaults.


Authorisations, Prohibitions, Frolics

When someone working from you decides to go with the work van to do something random and unrelated to employment when driving between jobs.

  • Vicarious liability = strict liability.

  • Employer will be liable where an employee does an authorised act incompetently.

  • Does authorised act outside normal scope of duties:

    • Prohibitions ineffective if it prohibits doing something in a certain way: Limpus v London General Omnibus (1862).

  • Employer will not be liable where employee:

    • Is on a frolic of his/her own: Joel v Morrison (1834):

    • “so remote from his duty as to be altogether outside of, and unconnected with…his employment” (Attorney General v Hartley (1962) (NZCA).



LIMPUS v LONDON GENERAL OMNIBUS (1862)

Bus company. Drivers told:

  • Instruction: Do not race or obstruct.

  • Driver pulled in front of another rival omnibus to obstruct it.

  • Held: Liable – this was still part of the driving – an unauthorised mode of the employee carrying out his duties.


Beard v London General Omnibus [1900]

  • Prohibition effective if excludes something from being part of the job: Beard v London General Omnibus (1900).

    • Conductor negligently chose to drive the vehicle;

    • Driving not part of conductor’s job;

    • Employer not liable as outside of conductor’s duties.

  • Is on a detour – question of degree.


Joel v Morrison [1834]

  • Joel struck down by a horse and cart driven by Morrison’s agent.

  • Driver had detoured from his route to visit a friend.

  • Held: Employer liable for employee’s frolic.


Attorney General v Hartley [1962] (NZCA).

  • Truck driver picked up a child from the road side when driving to work and brought the child to work;

  • Child set an unattended trolley in operation and another employee was injured;

  • Held: Employer not liable. Act of bringing child to work not a mode of something the driver was authorised to do – quite separate from the act of driving a truck.