Just Cases | Season 1 | Episode 2 | Help! I crashed my Uber

In the gig economy our cars, spare rooms and spare time have become handy money-earners. But sometimes things don't go as planned. If you're an Uber driver or Deliveroo cyclist and you injure someone else on the job, who has to cough up the money?

Music in this episode:
- 'A Lil Somethin' Somethin'' by The Good Lawdz (CC BY-SA 3.0 license)
- 'Beach Aldente' by KieLoBot (CC BY-NC-ND 4.0 license)

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Transcript | Just Cases | Season 1 | Episode 2 | Help! I crashed my Uber

[00:00:00] From Monash Law School. This is just cases, the backstory to the biggest court cases you've never heard of. On just cases we explore cases that have changed the way we live our lives, and the stories of those caught in the Crossfire Fire.

Melissa Castan: Welcome to this edition of Just Cases. Melissa Castan with you today. Imagine this, you're doing a bit of work on the side riding your bike to drop off. Takeaway food. For a company like Deliveroo Fedora or Uber Eats, you're peddling like crazy on your way to the next job. When someone steps out onto the street and you crash right into them, they're hurt and someone's gonna have to pay for those medical expenses and maybe more.

So who is it? Do you have to cough up that money or does the company, Dr. Jo Kyriakakis is with me today. And as you'll hear the answer might lie in a case that goes way back before the gig economy [00:01:00] was even dreamed up. Hi Jo. Hi Melissa. Can you tell me a bit about who's responsible in the situation that I've just described?

Jo Kyriakakis: I can. And what you described was the scenario that the high court of Australia had to deal with in the case of Hollis versus Vabu in 2001. Okay. So precisely what you described there was a bike courier. Who worked for a business called Crisis Couriers. Their trading name was bu and hence the name of the case, Hollis versus Vabu.

And the bicycle courier crashed into a pedestrian Mr. Hollis, who was injured

and had to get medical expenses. And had to have

medical treatment. And he saw the. Bike courier briefly saw that the bike courier was wearing a shirt that said crisis couriers, but the bike courier then rode away and the individual person was never identified.

Mr. Hollis basically felt that the company who this person was working for should pay his expenses. Okay. So they were responsible [00:02:00] for what had happened. So what's the question that the high court had to work out there? The high court had to ask the question, was the bike courier an employee? Of crisis couriers or was that an independent contractor?

Melissa Castan: And what would the difference be between those two different types of jobs?

Jo Kyriakakis: Yeah. It's actually a very difficult question that you ask, but the implications of being either an employee or an independent contractor are really quite significant in law. In particular, if you're an independent contractor, the idea is you've, you are working for your own business, you're an independent actor.

You might be hiring out your skills to somebody else for pay, but you are not. Really working for them. You're not right. You're not under what's called an employment contract of employment. So you're much more independent entity and if you are an independent contractor, then the buck stops with you, right?

You are responsible.

Melissa Castan: So a person would then pursue you as the individual for those expenses, but they wouldn't be able to get them from the company whose shirt you might've been wearing. Precisely. Okay. Precisely. And [00:03:00] what's the other alternative? That you're an employee.

Jo Kyriakakis: That's right. And if you're an employee, the idea is that your relationship to the employer, the company you're working for is a much kind of closer relationship and they therefore have responsibility for harms to third parties.

And there's a range of policy reasons. Why and in fact this case, Hollis versus Hollis versus Vabu

Melissa Castan: talked about that. So how did the high court work out that question of whether the bike rider in this case was actually working for himself or working for the company? So the majority of the

Jo Kyriakakis: court took the view that ultimately you have to look at the totality of the relationship between the two people.

And what isn't determinative is the way. The parties themselves describe themselves.

Okay.

Jo Kyriakakis: So to use, I think, a quite nice quote that's mentioned in the judgment the parties can't create something which has every feature of a rooster, but call it a duck and insist that everybody else recognize it as a duck, a poetic.

And the point there is that. People who are paying others to work for them, can't [00:04:00] say This person is an independent contractor. We're gonna call it that in the contract, and therefore we have no legal obligations here. If in fact they have the kind of relationship with that person that actually warrants them having those responsibilities.

How

Melissa Castan: would we gauge whether your relationship with the employer qualifies more like an employee employer relationship? Or more like a, an independent contractor.

Jo Kyriakakis: So the importance of Hollis and Hollis versus Vabu is that it set out the contemporary test for that. But the answer is that you look at all of the different features of the relationship.

Historically, what was very important was the degree of control exercised by the. Person you're working for, let's call them the employer, over the worker, over the employee. So it would look at, to what extent do they dictate what you're gonna do and how you're going to do it. But in a contemporary economy, it's recognized that actually quite often.

Workers have very particular skills that mean that the person they're working for may be hands off in and not directly manage [00:05:00] precisely what they do and how they do it. So it's no longer just about how much control is the person you're working for exercising over you, but it is part of it, right? So they look at the degree of control.

They also look at other factors. So one important factor here was how are you presented to the public? The fact that couriers were presented as emanations of the company, they were wearing shirts and brand gear and precisely meant that you were identifying to the world with their business rather than any independent business of your own.

Okay? So that was important in this case. Other factors the court will look at include things like. The degree of autonomy that the worker has. If you're running your own business, in theory, you have a lot of autonomy. You can decide, do I wanna take this job? What hours do I wanna work? Do I have the option of delegating it to somebody else?

So they looked at those factors here as well and said that. In essence, the couriers were very controlled by the person they were working for the courier [00:06:00] company. They also look at things like the provision of tools and equipment. Who's responsible for that? So in this case, interestingly, the court acknowledged that the couriers actually provided their own bikes.

These were bicycle couriers. They provided their own bikes. And in the first instance, the lower courts felt that this was an indicator of being an independent contractor. You're bringing your work equipment with you. In the higher court at the high court, the view was, actually this is not specialized work equipment.

This is a piece of equipment that a, is not very expensive, but more importantly is actually part of being a means of transportation generally in your life and even potentially for your own recreation. And so the fact that they used those to do the work wasn't a strong indicator that they were independent contractors.

Melissa Castan: Jo, what did the high court actually decide in this case? Was the bike rider an independent contractor or an employee of the company? The bike rider was an

Jo Kyriakakis: employee of the company, and so the [00:07:00] company was vicariously liable for the costs of Mr. Hollis's medical

Melissa Castan: expenses. So how will that play out today, 17 years later, where we have all these services where the individual signs up to do these tasks or jobs.

They can sign on for an hour. They can sign on for an A shift. Are they still gonna be employees?

Jo Kyriakakis: Actually. One of the dissenting judges in Hollis versus Vabu, I think preempts exactly the point that you make. Justice Callinan was really concerned about the imposition by the court of this finding of employee employer relationship and everything that flows from that on this work arrangement where the parties themselves may not have wanted to categorize themselves in that way and where it might actually have implications for stopping.

Certain types of practices because it makes them too costly as a work arrangement. So Justice Callaghan [00:08:00] stated, for example, and I'll quote from him, the imposition of liability upon the respondent for their courier's, negligence and the changes which that might bring to the relationship between them might lead to the creation in both form and substance of a relationship of employer, employee, a relationship that neither may want.

It should not be readily assumed that all or indeed most

Melissa Castan: couriers would wish for it. What would the policy rationale for a rule of this kind of liability for an employer be?

Jo Kyriakakis: That's a really important question, and it played a big part in the judgment in deciding whether the employer should be what's called vicariously liable.

Here, the court put a lot of emphasis on the purpose of vicarious liability, they said that we have to consider that. The goal of making an employer liable for the wrongs of their employees is to make sure that there is a just and a practical remedy for the harm that's been inflicted on an individual when the harm has been committed in the course of conduct of the employer's [00:09:00] enterprise.

In a way, they are benefiting from the underlying conduct, so they should have some responsibility. And finally, the idea that a policy goal is deterrence. So if we make employers liable for the wrongs of their employees, we encourage them to take steps to minimize the possibility that they will, their employees will cause harm.

And that might be through a whole range of practices that they could impose.

Melissa Castan: Jo, what do we do with a situation like an Uber or other app-based service that says we're not really a taxi service or a delivery service. We are just a software company. We just design a platform that brings people who want things and people who have those things to the same place.

Jo Kyriakakis: So that's going to be a really important. Legal question. I think in the future in Australia and to date, there's been no decision or case that directly addresses it in our country, but the matter has been getting attention in the United Kingdom. But before we maybe talk about that, the other [00:10:00] really important thing to note is that whether you're an independent contractor or an employee goes beyond who has responsibility for.

Costs to third parties if you carelessly injure them. It also raises questions like your rights and entitlements. If you're an independent contractor, your responsibility is to yourself. Yep. As a business holder. Whereas we would know that as if you're an employee, if you're working for a business, they have labor law obligations to you.

So they might have to ensure you have annual leave, they may have to meet minimum wage requirements. Tech, usually they'll be responsible for managing taxation issues. So there are really important internal implications for the work arrangement if you're either a contractor or a employee.

There's been a case heard before UK Employment Tribunals. In October of 2016 where a group of Uber drivers brought a claim against Uber saying that they were owed certain minimum payment entitlements that flow under the definition [00:11:00] of what an employee or a extended notion of an employee is in the uk.

So it really circulated around similar questions. As what you've described, and in the case, Uber tried to say, look, we're not a taxi company. Our service is not delivery. Our service is a software app. And the court. Did not accept that at all. They felt that this was a fictitious description of what Uber offers.

They said it was unreal to deny that Uber was providing or was in the business of providing transportation services. That was demonstrated. The court felt by the fact that there were different types of transportation services the app offers, right? Differentiating between UberX and some other more expensive options.

And they looked more deeply at the nature of the service provided. So the court ended up saying Uber does not simply sell software. It sells rides. It is no more a technology company. Then Yellow Cab is a technology company because it uses CB [00:12:00] radios to dispatch cabs. So this was not accepted, and in the UK case, the court looked at the totality of the reg relationship between Uber and its drivers, very much like our courts did in Hollis versus Vabu, and ultimately found.

That there was a very high level of control over the Uber drivers. There were penalties that would be imposed if Uber drivers failed to accept or behave in a certain way. Yeah, there was control over how Uber drivers have to present themselves often in the form of non-binding recommendations by the company.

But in fact, with penalty type implications, if you don't do what Uber said. Okay. And the idea that Uber was trying to suggest that it was creating all these independent businesses that people could grow on their own behalfs, like it could grow your own independent business, the court just said was a pure fiction.

So it, it found that this is, again, much like hol and bu an employment type or [00:13:00] more akin to an employment relationship than an independent contractor relationship. The court made comments about the lengths to which Uber in its written documents, in its legal contracts, in its representations by counsel on its behalf.

Were going to these enormous lengths to try and avoid any language that suggested they had employees. In the form of their drivers. And in fact, the court says at one point that Uber resorts in its documents too. And I quote to fictions, twisted language and even brand new terminology, the merits of which we think warrant a degree of skepticism.

And the court goes on to say, reflecting on the Uber case. We cannot help being reminded of Queen Gertrude's most celebrated line. The lady doth protests too much me thinks so. The court's point here is that Uber is at such pains to deny an employment employer relationship with its drivers, that in itself causes [00:14:00] the court to be cynical about that.

Melissa Castan: Trying a bit too hard,

Jo Kyriakakis: trying a bit too

Melissa Castan: hard. Jo, I asked you at the start who's gonna be responsible if a courier or a driver going too fast crashes into someone and causes so some harm? What do you think the answer is gonna be in the Australian court? Responses.

Jo Kyriakakis: It's really unclear. I think the situation in Australia, we have to speculate for now.

The UK decision didn't directly deal with responsibility for harms by Uber drivers, but the underlying reasoning of the court is the kind of thing we would apply here in Australia. I think the UK cases definitely suggest that there is a strong argument that the way Uber operates exerts a high level of control over the drivers, and that would definitely point toward more of an employee arrangement, which would mean they should take responsibility for harms caused by their drivers.

On the other hand, there are features of the Uber [00:15:00] arrangement that might point toward an independent contractor. So for example, the fact that the Uber drivers do use their own cars. It is different to using a bicycle. Okay. And even in Hollis, the court suggested that a car

Melissa Castan: is different to a bike

Jo Kyriakakis: because it's, but

Melissa Castan: Hollis was such a long time ago, they wouldn't have anticipated this kind of arrangement.

Jo Kyriakakis: No, I don't think so. Although, as I said, justice Callinan had his eye on the future and thought your tying up or your limiting work arrangements, yeah. That might grow in the future, but they didn't directly address this at all. Absolutely. But I think there's a strong policy argument that it should be the Uber or Deliveroo or the company that is making the large amounts of profits over these, out of these enterprises.

These are the people who are in a position to provide a practical remedy for those who are harmed. They have the financial resources. Moreover, they're the ones who have set the enterprise in motion that is creating the risk to others. They're [00:16:00] benefiting financially from it and often with a lot of financial benefit, individual drivers may not be in the position to financially compensate.

Although I do appreciate car insurance may change that a little bit In the case of a car accident. And finally, Uber or Deliveroo are in a position to take steps to minimize risk. They could manage their system of service delivery in a way that minimizes risk and that seems a good place for that responsibility to lie.

So we wait and see. I think, Melissa, what the future holds. Jo Kyriakakis. Thank you very much. Thank you.

Just Cases is a production of Monash Law School music today by the Good Lords and Kilo Bot. Next time on just Cases the case of Ahmed Ted.

The striking thing about the case is that it's as if the majority judges. Went out of their way to depart from legal tradition to find that the government had the power to [00:17:00] detain Mr.

Alker,

the story of a man who just wanted to go home, but who the high court said could be detained for the rest of his life, subscribed to just cases on iTunes and SoundCloud. And check out some other episodes, head to just Cases podcast.com. And if you've got an idea for an episode, do get in touch with us on Twitter.

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