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Friday, April 12, 2013

Legal interpretation-Howard v Queensland [2001] 2 Qd R 154., Summary of Whistleblowers Protection Act 1994 (Qld), Hypothetical

Howard v Queensland [2001] 2 Qd R 154.

(Court of Appeal)

Judges: McMurdo P, Thomas JA and Ambrose J.

Facts: The appellant is the complainant in this action against the respondent, claiming for damages for psychiatric injury. Under the Whistleblowers bulwark Act, the appellant can be classified as a whistleblower; and the allegations do by the appellant are that the actions made against him by two of his fellow employees constituted reprisal under s41 of the Act, and that the defendant is secondaryly liable for their actions. Mr. Howard is appealing from a decision trialed by a court.

Legal Issues:

1. Should the demurrer be upheld on the ground that on the neat construction of the Act vicarious obligation is excluded?

2. Assuming that the act leaves vicarious liability open, does the affidavit allege facts capable of establishing such liability against the defendant? [Paragraph 10]

3. Costs.

Legal Reasoning:

1. The application of the normal rules of vicarious liability regarding knowledgeable torts, as in this case, is not necessarily valid.

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The two tests arising from Deatons Pty Ltd v Flew (1949) 79 CLR 370, being, whether the wrongful act was one to which the ostensible achievement of his masters work gives occasion, and whether it was commit under cover of the function in which he is placed as a vocalism of his maser. In this case, these tests are not satisfied, as the illegal acts committed by employees fall outside their scope of employment, and the employer did not slip away those acts.

2. The affidavit does not allege facts capable of establishing vicarious liability. No allegations concerning the system of handling employee unsoundnesss; and that the act of making a complaint were in the scope of an employee, were made. It should be noted that the unlawful complaints of the...

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