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Man struck and injured by cyclist in uniform of courier
company
On 22 December 1994 as he was leaving a building in Sydney, a
man stepped onto the footpath, was struck by a cyclist and knocked
to the ground.
He sustained a knee injury and required surgery.
He also suffered a period where he was unfit for work and was
left with a 25% permanent deficit in his knee.
The cyclist, who had gone over the handlebars of his bicycle in
the collision, stood up, said: "Sorry mate" and left the
scene.
His identity remains unknown. However, what is known is that he
was wearing a uniform emblazoned with the name of a courier
business.
Injured man sues courier business for negligence and case goes
to High Court
The injured man sued the courier business for negligence in the
NSW District Court, seeking approximately $175,000 in damages.
When the District Court ruled against the injured man, he
appealed to the NSW Court of Appeal.
When the Court of Appeal dismissed his appeal, he appealed to
the High Court of Australia.
In the High Court, the question to be decided was whether the
courier company had vicarious liability for the negligence of the
unknown bicycle courier. This turned on whether the bicycle courier
was an employee of the courier business, or an independent
contractor.
case a - The case for the injured man
case b - The case for the courier company
The bicycle courier who hit me was an employee of the courier
company. Therefore, the company is vicariously liable for his
negligence and must pay damages for my injuries.
That the bicycle courier was an employee, not an independent
contractor, is clear from the following facts.
Bicycle couriers working for the company have little control
over the manner of performing their work. They are required to be
available at a certain time every day and are not allowed to refuse
the delivery jobs that are allocated to them.
Nor are the bicycle couriers able to bargain for the rate of
their remuneration.
The bicycle couriers are presented to the public as emanating
from the courier business. The company's "General Rules
for All Drivers", including bicycle couriers, require the
drivers to wear uniforms, to be presentable at all times, and to
"...always be aware that they are a direct representation of
the company".
From a practical perspective, it makes no sense to say that a
bicycle courier has established himself as an independent
contractor, since delivering packages is not skilled labour and
requires no special qualifications.
Since the bicycle courier was an employee of the courier
business, the High Court must grant my appeal.
The bicycle courier was an independent contractor. Therefore,
we cannot be held vicariously liable for his negligence.
That he was an independent contractor, not an employee, is
clear from the following facts.
As a business, we require bicycle couriers to supply their own
bicycles, to bear the expense of providing for and maintaining
those bicycles, and to provide their own accessories, such as
street directories, telephone books, ropes, blankets and
tarpaulins.
Our bicycle couriers do not receive a salary or wages, but
rather are remunerated in accordance with the deliveries that they
make and are taxed as independent contractors.
Work is allocated to bicycle couriers in the order in which
they call in daily to seek work, so the couriers are in direct
competition with one another in that respect, unlike ordinary
employees.
Since the bicycle courier was an independent contractor, the
High Court must dismiss the injured man's appeal.
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guide to the subject matter. Specialist advice should be sought
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