Sweeney v Boylan Nominees Pty Limited

Negligence – Vicarious liability - Respondent engaged a repairer to perform maintenance on refrigerator installed at a petrol station - Respondent obliged under lease agreement with third party to service and maintain refrigerator - Refrigerator door negligently repaired - Appellant struck and injured by insecurely fastened door.

Employer and employee – Independent contractor - Whether relationship between the respondent and repairer that of employment or independent contract - Repairer performed work for the respondent on a regular basis - Repairer performed work at the respondent's request and direction - Repairer frequently attended the respondent's premises to obtain parts with which to effect repairs - Repairer had no formal or written contract with the respondent - Repairer did not wear shirt bearing the respondent's insignia which the respondent required its employees to wear - Repairer did not receive wages or superannuation contributions from the respondent - Repairer had secured his own insurance policy for liability which he may incur in the course of his work.

Negligence – Vicarious liability - Whether respondent vicariously liable for the negligence of the repairer on the basis that the repairer was a "representative" of the respondent - Respondent provided the repairer with invoices bearing the respondent's name for the repairer to give to customers upon completion of work - Invoices described the repairer as the respondent's mechanic - Repairer authorised to receive payments from customers on behalf of the respondent - Whether the principles in Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41 apply.

Negligence – Vicarious liability - Legal policy - Whether increasing reliance on independent contractors rather than employees relevant - Whether independent contractors taking out policies of insurance relevant - Whether vicarious liability on the basis of representation might encourage defendants to disclose the nature of commercial relationships with independent contractors in advance of trial.

Evidence – Failure of the respondent to disclose until trial the nature of the commercial relationship which he had with the repairer - Administration of justice.

Words and phrases – "vicarious liability", "representative", "representation", "agent", "principal", "employee", "independent contractor".