CRICOS Provider Number 00103D

Product Liability
• Defective Products

• Manufacturer’s liability exists in both

common law and statute
CASE: Donoghue v Stevenson [1932]

• The defect must be hidden and unknown

to the consumer
CASE: Grant v Australian Knitting Mills [1936]

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 Vicarious or employer liability
• A person can be held responsible for the
acts or omissions of another, even
though they may not have been
personally at fault

• Vicarious liability is a form of strict

liability which has the effect of making
e.g. the employer an insurer of the
employee

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 Vicarious or employer liability

• An employer may be vicariously liable where

an employee acting in the course of their
employment injures another person
CASE: Cassidy v The Minister [1951]
CASE: Century Insurance Co Ltd v Northern
Ireland Road Transport Board [1942]
CASE: Deatons Pty Ltd v Flew (1949)
CASE: Starks v RSM Security Pty Ltd [2004]

• An independent contractor cannot make an

employer vicariously liable

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 Vicarious or employer liability

• The 2 main tests used by the courts to

determine the nature of the
relationship are:

 the control test;

and (as a supplementary test)

 the integration test

CASE: Stevens v Brodribb Sawmilling Co
Pty Ltd (1986)
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 Vicarious or employer liability

• An employer who is vicariously liable

may have an action against the
negligent employee for breach of a
term of their contract of employment
CASE: Lister v Romford Ice and Cold
Storage [1957]

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 Vicarious liability

• The relationship of principal and agent

also gives rise to vicarious liability on
the part of the principal for torts
committed by the agent:
CASE: Soblusky v Egan (1960)
CASE: Gutman v McFall [2004]

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 The insurance crisis
and legislative reforms
• Civil Law (Wrongs) Act 2002 (ACT)
• Civil Liability Act 2002 (NSW)
• Personal Injuries (Liabilities and Damages) Act
2003 (NT)
• Civil Liability Act 2003 (Qld)
• Civil Liability Act 1936 (SA)
• Civil Liability Act 2002 (Tas)
• Wrongs Act 1958 (Vic)
• Civil Liability Act 2002 (WA)

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 Civil liability reforms and
reasonable foreseeability
• The civil liability reforms in most States
and Territories have statutorily endorsed
the concept of reasonable foreseeability
• section 48 Wrongs Act (Part X Division 2)

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 Duty of care
• Special categories of duty are owed by:
• those causing ‘nervous shock’
• Part XI Wrongs Act
• public authorities
• Part XII Wrongs Act
• those engaged in criminal activities
• rescuers, volunteers and good Samaritans
• Part VIA and IX Wrongs Act
• employers
• section 61 Wrongs Act (Part X Division 6)

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