This decision deals with the distinction between employees and independent contractors (see Creighton and Stewart, Chapter 7.3). While not affecting the basic legal principles to be applied in this connection, it perhaps shifts the line between the two categories in favour of finding an employment relationship.
In 1996, bicycle and motor vehicle couriers working for Vabu (trading as Crisis Couriers) were found by the New South Wales Court of Appeal to be contractors rather than employees of the company, with the consequence that Vabu was not liable to make superannuation contributions on their behalf (Vabu Pty Ltd v Commissioner of Taxation (1996) 81 IR 150). Although the control exercised by the company over the couriers was considerable, the court emphasised that the couriers were required to supply and maintain their own bicycles and vehicles and that they were paid according to the number of successful deliveries rather than on an hourly or weekly rate of pay. The present case involved a different proceeding brought against Vabu. The company was claimed to be vicariously liable for the negligence of one of its bicycle couriers (who was never identified) in knocking down the plaintiff, Mr Hollis, on a Sydney footpath. The plaintiff attempted to argue that Vabu owed him a non-delegable duty of care, so that it would be liable for the courier’s negligence even if he were an independent contractor. The New South Wales Court of Appeal rejected that argument (Hollis v Vabu Pty Ltd  NSWCA 334 (5 November 1999)).
The plaintiff’s appeal to the High Court was successful and Vabu was found to be vicariously liable. Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ, who delivered a joint judgment, reached this conclusion on the basis that the courier was an employee. As such, they did not see the need to go on and consider the issue of whether Vabu owed a non-delegable duty of care.
In approaching the task of...