Torts Question (1 Viewer)

[inasero]

"According to the principle of vicarious liability, in order to bring a successful action against the employer hospital, a plaintiff must prove that the doctor was engaged under a contract of services as an employee, rather than as an independent contractor under a contract for services"

Therefore:

1) What is the difference between being an employee and being an independent contractor? Either way, they both enter into an agreement with the employer so therefore why would the law affect one and not the other?


2) If somebody wanted too litigate purely for the purposes of monetary gain (i.e. not out of a sense of moral injustice or for the principle of the matter), who would they be likely to sue- the hospital, the doctor or both (assuming that is even possible)?

inasero

 

[Frigid]

(1) for the difference between employees and contractors, read the majority judgment of Hollis v Vabu.

note the development of personal injury arising from professional negligence in the s5O, Civil Liability Act.

(2) i don't know. gut feeling says most of the time, litigant sues hospital. there's a reference somewhere in Luntz and Hambly, but i haven't revised for torts yet.

 

[inasero]

get off BoS you!! this is not fair- i have to study for ethics and law, do I see you studying neuroendocrine physiology, hmmm?

edit: do you have any acts relating to doctors in victoria?

 

[BillytheFIsh]

You'd name both the doctor and the hospital as defendants.

But generally you'd be wanting them to be an employee as the hospital's the one with deep pockets/insurance.

May still be worth pursuing the doctor if they have lots of assets/their own insurance though.

 

[MoonlightSonata]

Do not forget to read McHugh's judgment, founded on agency - which I respectfully agree with.

 

[Frigid]

inas: well it's not fair that i have to read Rogers v Whittaker AND Rosenberg v Percival (which i like to call Rosey and Percy), just coz two doctors fucked up .

 

[inasero]

touche....

although, i hasten to add that they didnt stuff up as such...probably more so the matter at hand were that they had such appalling communication skills that they got in deep water for something they should have stayed aloof of and thus relegated countless subsequent generations of medical students to a lifetime of medical indemnity fees and studying law....yes, LAW!!!!

 

[inasero]

haha david li is on the 2006 prospectus...just came across it yesterday

 

[arielbelle]

i think whether the employer is found vicariously liable depends on the totality of the relation between the two which differs depending on whether doctor is employee or independent contractor. we were told that independent contractors exercise a greater degree of control over their work and usually only use hospital premises and equipment. their professional practice is more independent and because of their bargaining power, as opposed to one who is employed by hospital, they would be liable for the damage they inflict.
they'd sue whoever can cough up more money, provided they actually have a cause of action. contribution rights between hospital and employer will apportion damages payable.