Question Three

Vendo Pty Ltd manufactures food and drink vending machines in Perth, Western Australia. They supply their machine, The Jaguar, a refrigerated vending machine that requires the user to open the machine's door to access the food supplied, to the University of Edith Curtain. On Monday 3 May 2017, the University's maintenance officer, Bill Froth, contacts Vendocomplaining that the refrigerated vending machine door on one of the drinks machines is not closing properly. A mechanic, Tony Abbott, comes to the University, tightens some hinges in the door and demonstrates to Mr Froth that the door is closing properly.

While Tony Abbott is on the campus, Mr Froth asks him to look at another vending machine, which sells refrigerated food, that has been playing up. This machine is also owned by Vendo. However, Mr Froth has not reported the fault to Vendoas it has only just come to his attention. In fact, the machine is an old model that Tony Abbott has not been trained to repair. Nevertheless, Tony Abbott attempts to repair the hinges on the door and informs Bill Froth that the repairs have been successful.

The mechanic, Tony Abbott, performs his duties at Vendo'srequest, whenever he is asked. However, he invoices Vendofor the hours he performs and for spare parts. While Vendo do not supply him with a uniform, they do supply him with a Velcro square that he attaches to his overalls. This square features the name Vendo in large letters, along with their logo. He attaches the Velcro square when he is out on jobs for Vendo. He also has a slide-on sign in Vendo's name which he attaches to his vehicle when he is out on Vendo jobs. His van also features the name of a company of which Tony Abbott is a director.

Fours hour after the repair, Albert Aardvark, a law student at the University, uses the food vending machine to obtain a cold Mars Bar. However, when Albert attempts to open the door, it falls off its hinge injuring Albert. It turns out that the hinge was repaired incorrectly by Tony Abbott. Albert brings an action in negligence against Vendo, alleging that Abbott is an employee and that Vendo is liable for his negligent repair work on the vending machine under the doctrine of vicarious liability. Vendo, in turn, argue that not only is Tony Abbott not an employee but that, even if he were, he would have been acting outside the scope of his employment by repairing a machine he is not trained to work on.

Assuming that the mechanic has been negligent in effecting the repair, consider the likelihood of Vendo being held vicariously liable for that negligence.

(10 marks)