Case: Coulthard v South Australia (1995) 63 SASR 531
Outcome: cited
The second respondents argued that the doctrine of vicarious liability was confined to a tort committed by an employee in the course of that employee's employment and that therefore that this plea should be struck out. In Photo Production v Securicor Transport Limited [1980] UKHL 2 ; [1980] AC 827 at 848, Lord Diplock said that the expression 'vicarious liability' should be confined to liability for tort. There is, however, authority contrary to the second respondents' proposition. In Coulthard v South Australia (1995) 63 SASR 531 (' Coulthard ') the Full Court of the Supreme Court of South Australia was concerned with the publication of confidential information. King CJ said at 535: 'No authority has come to my attention which establishes that vicarious liability of an employer can exist under the equitable doctrine of breach of confidence. Nevertheless a breach of the equitable obligation of confidence is analogous to a common law tort. It is to be expected that equity would follow the law in such circumstances and that the common law doctrine of the vicarious liability in tort of an employer for the acts of employees in the course of their employment would apply in equity to breaches of confidence. It is to be expected that equity would act upon the conscience of the employer by requiring the employer to accept responsibility for the employee's breach of confidence.' 49 King CJ concluded that it was not established that any breach of confidence had occurred in the course of the employer's employment. Perry and Debelle JJ both assumed that the respondent employer could be liable for a breach by its employee of his duty of confidence but, like King CJ, found that what was done was not done in the course of employment. I am unable to find any other authority on that point. (But see Jason Pizer 'Holding an Appointor Vicariously Liable for its Nominee Director's Wrongdoing -- an Australian Roadmap' 1997, Vol 15 Company and Securities Law Journal.) However, this is not the time to decide whether the decision in Coulthard is correct. Having regard to that decision and the dicta of King CJ referred to, it cannot be said on an application of this kind that the pleas in par 24 are untenable. 50 Paragraphs 25 and 26 plead actual knowledge on the part of the two male second respondents. Paragraph 27 also pleads actual knowledge on the part of the two male respondents but from a different time, apparently, to that asserted in par 26. In any event, all three paragraphs, 25, 26 and 27, plead actual knowledge on the part of two of the four second respondents. 51 Paragraph 28 pleads a form of constructive knowledge by reason of the failure of the second respondents to do any of the matters particularised in that paragraph. Each of pars 29, 30, 32 and 33 plead a form of constructive knowledge on the part of the two female second respondents, the knowledge it is said being imputed to them. It is not pleaded how or why the acts and conduct and knowledge of each of the second respondents is imputed to all of them. It may be assumed that each partner's act or conduct or knowledge is imputed to the other by reason of their partnership. That may not be important. More importantly, the knowledge of the female second respondents and any imputed knowledge obtained by all respondents by reason of the acts or omissions in par 28 cannot rise above constructive knowledge.