Avoiding Difficult Questions: Vicarious Liability and Independent Contractors in Sweeney v Boylan Nominees

In Sweeney v Boylan Nominees Pty Ltd the High Court affirmed that a principal is not vicariously liable for the negligent acts of an independent contractor. In this case a mechanic engaged by Boylan negligently performed repair work, resulting in an injury to Mrs Sweeney. Since the mechanic was a contractor rather than an employee, Mrs Sweeney was unsuccessful in her action against Boylan. While the majority refused to extend the principles of vicarious liability, in a dissenting judgment Kirby J would have allowed Mrs Sweeney to recover from Boylan based on the fact that the mechanic was a ‘representative agent’ of Boylan. This article examines the High Court’s reasoning in this case, with a particular focus on the difficulties involved in using agency-based arguments to extend the scope of vicarious liability and the central importance of the employee-independent contractor dichotomy in this area of law. In light of the majority’s unwillingness to extend the scope of vicarious liability by using agency concepts or through a more general revision of the distinction between employees and independent contractors, this article argues that the law should take a broad and flexible approach when classifying workers as employees (or independent contractors). Employers should not be able to avoid liability unreasonably for the negligent acts performed by those they engage to perform work.