High Court of
HOLLIS v. VABU PTY LTD t/as CRISIS COURIERS (S149/2000)
Court appealed from: Supreme Court of NSW, Court of Appeal
Date of judgment: 5 November 1999
Date of grant of special leave: 16 June 2000
The appellant was knocked down on a footpath by a bicycle courier wearing the uniform of the respondent. The appellant sued the respondent in negligence claiming that the courier was riding the bicycle as its servant and agent and that the respondent was in breach of a duty of care owed to the appellant.
The respondent, trading as Crisis Couriers, conducted a parcel and document courier business. It contracted with approximately 25-30 persons who worked for it as bicycle couriers. The couriers were independent contractors. The respondent had public liability insurance cover, under which policy it was stated that the ‘Insured’ included ‘sub-contractors’ in respect of work done on behalf of Crisis Couriers. The respondent levied the couriers each week and used this money to pay the insurance premium.
The trial judge gave judgment for the respondent. The appellant appealed against this decision. The majority of the Court of Appeal found that the respondent engaged the couriers as independent contractors to carry by bicycle, parcels and documents on its behalf and in fulfilment of engagements it had with third parties, saying: “To the extent to which parcels and documents are carried on ... a particular bicycle, the ... rider owes the ordinary duty of care to other users of public streets. If that ... rider is an employee of Vabu, Vabu is vicariously responsible for any breach by the ... rider of that duty. If that ... rider is an independent contractor ... Vabu is not vicariously liable for such a breach.”
Davies AJA, dissenting, considered that the respondent was liable for the acts of its bicycle couriers when they were riding in the course of its business. His Honour said: “Taking account of the vulnerability of pedestrians, of the respondent’s recognition that there was a need for insurance to cover public liability claims, of its deduction from the couriers’ remuneration of weekly amounts to meet the premiums and of the fact that it was the respondent’s own act of obtaining insurance in its own name, thereby doing nothing to relieve the vulnerability of injured pedestrians, it seems to me that the circumstances were such as to impose upon the respondent personal liability for the acts of its couriers done in the course of its business. The respondent, by the structure of its business, not only created the risk to pedestrians, but, failed to exercise due care to avoid such risks and failed to take the steps which were necessary to alleviate the problem that injured pedestrians would be unable to recover.”
The grounds of appeal are: