Elazac Pty Ltd v Shirreff

[2011] VSCA 405

Victorian Court of Appeal

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For Australian Law.

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Interrogate

Catchwords

1. Employment Law
2. › Employee or independent contractor
3. › Multi-factor test
4. › Totality of relationship
5. › Control as to how work performed
6. › Engagement of own employees
7. › Conduct of own business
8. › Whether plaintiff was employee or independent contractor
1. Tort Law
2. › Negligence
3. › Employer's duty of care
4. › Safe system of work
5. › Knowledge of risk
6. › Whether employer knew or ought to have known of risk requiring use of ladder and plaintiff's unfitness to use ladder
1. Tort Law
2. › Negligence
3. › Duty of care to independent contractor
4. › Safe system of work
5. › Stevens v Brodribb Sawmilling Co Pty Ltd
6. › Whether engager of independent contractor owed duty to prescribe safe system of work
1. Appeal
2. › Appellate review of factual findings
3. › Inferences from accepted facts
4. › Fox v Percy
5. › Whether appellate court may substitute its own conclusion on inferences drawn from undisputed facts

Quick Take

A worker who employs their own employees at the work site, conducts their own business, is not subject to control as to how work is performed, and whose formal arrangements lack the indicia of employment (tax deductions, leave, superannuation) is an independent contractor notwithstanding a high degree of control exercised over what work is to be done and when. An employer's duty of care (or equivalent duty to an independent contractor under Stevens v Brodribb) does not extend to risks that the employer did not know and could not reasonably have known about, including the specific method of work chosen by the worker and the worker's fitness to perform that work.