| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 192/10 |
| Determination date | 30 November 2010 |
| Member | G J Wood |
| Representation | K O'Sullivan ; D Mitchell |
| Location | Wellington |
| Parties | Katz v Mana Coach Services Ltd |
| Summary | RECOVERY OF MONIES - Applicant claimed $562 in legal costs incurred after being charged with careless driving - Applicant driving bus when crossed centre line and hit car on other side of road that had stopped to give way - Applicant discharged without conviction - Applicant claimed respondent obliged to indemnify her for legal costs - Respondent resisted claim - Authority found employment agreement did not deal with indemnification - Therefore, case to be decided on basis of common law of indemnification - Found generally employee entitled to be indemnified for expenses incurred as result of work, including in some cases, legal costs in defending cases brought over their activities while at work - However, indemnity did not extend to cases where criminal conduct established or where employee did something that was not their duty to do - Found employee also had obligation under common law to pay special damages for damage suffered by employer because of breach of implied term that employee would exercise due care and diligence in work - Found if applicant’s claim successful would create illogical situation where respondent required to indemnify applicant for legal costs but could then reclaim those costs because of applicant’s breach - Found appeared applicant admitted liability - Found must have either been found guilty or pleaded guilty in order to have been discharged without conviction - Found applicant not entitled to be indemnified because of admitted breach of duty, namely negligent crossing of centre line causing accident - Found respondent did not employ drivers to crash into cars on other side of road - Found reasonable performance of duties did not extend to that type of negligence therefore neither did respondent’s duty to indemnify - Application dismissed - Bus driver |
| Result | Application dismissed ; Costs reserved |
| Main Category | Recovery of Monies |
| Cases Cited | Attorney-General v Jones unreported, High Court, Wellington, Quilliam J,16 Jun 1981, M73/79;Christchurch City Council v Davidson [1996] 2 ERNZ 1 ; [1997] 1 NZLR 275;F v Attorney-General [1994] 2 ERNZ 62;Masonry Design Solutions Ltd v Bettany unreported, Colgan CJ, 21 Aug 2009, AC 30/09;New Zealand Tramways and Public Passengers Transport Employees' Union Inc v Wellington City Transport Ltd [2010] ERNZ 522 |
| Number of Pages | 5 |
| PDF File Link: | wa 192_10.pdf [pdf 21 KB] |