Your doctors’ advertising could decide who wears the next negligence or any other claim, and the taxman with it

One of these signature blocks says the entity treats patients. The other says the doctor does. A complaint can turn on which one you use.

Uber just paid US$40 million for a driver it swears it does not employ. How your doctors advertise decides whether an Australian practice wears the same risk, and whether payroll tax ever reaches you.

By David Dahm, CEO and Founder, Health and Life. Published 21 September 2026.

Last week an arbitrator in California ordered Uber to pay US$40 million to the family of Emily Normandin-Parker. She was 23. Her driver pulled over at a gore point on a freeway in Orange County, told her and her friend to get out, and drove off. She was struck and killed. The arbitrator, retired Californian judge Richard Stone, found the driver showed far more worry for his new car than for his passengers, and that in a fit of anger he needlessly stopped where it was neither safe nor legal.

Uber’s defence, as always, was that it does not employ drivers. It calls them partners. Nobody believed it. The arbitrator held that Uber offers transport to the public through its own app, sets the fares and controls the ride, which makes it a common carrier owing its passengers a duty it cannot hand off, and that Proposition 22, the Californian law that classifies app drivers as independent contractors, does not immunise it from vicarious liability for their negligence.

Two caveats before anyone panics. It was a private arbitration, so it binds nobody and sets no precedent, and it is American law. What travels is the pattern. The more a business presents itself as the one delivering the service, the less its contractor labels protect it.

Before anyone says that is America and this is Australia, consider what happened here on 1 August 2025. Five judges of the NSW Court of Appeal held Uber liable for $81 million in payroll tax. The authority they leaned on was Thomas and Naaz, a medical practice in Sydney. Our sector’s case is now the precedent that beat a global technology platform. The High Court heard Uber’s appeal on 8 April 2026 and judgment is still reserved.

The reasoning is the part that should worry you. The court found the drivers were supplying their driving services to Uber, not merely to the riders, because transporting riders is what Uber’s business is. Swap driver for doctor and rider for patient and read that sentence again.

So the question for every practice owner is uncomfortable but simple. If your arrangements look like Uber’s, which court do you think you are walking into?

Vabu got there first, but the High Court has moved twice since

None of this is new. In Hollis v Vabu, decided in 2001, a courier company swore blind its bicycle riders were independent contractors. One of them flattened a pedestrian on a Sydney footpath. The High Court held the riders were employees and the company wore the claim.

The reasoning is worth reading if you own a practice. The riders wore the company’s uniform. They could not set their own prices. They could not build goodwill of their own. They were presented to the world as part of the business.

That last point is the one everybody skips. Vabu was caught partly on how it held its couriers out to the public. Now open your practice website. If it says “meet our doctors”, that is not marketing copy. It is evidence on the only question that matters here: is this doctor running their own business, or yours? And unlike a payroll tax assessment, which is a number with a ceiling, a claim arising from a tenant doctor’s clinical error is open ended.

Two more recent decisions change how that evidence gets used, and it is worth being precise about them, because the loose version of this argument is easy for a lawyer to knock over. In 2022, in Personnel Contracting and Jamsek, the High Court shifted characterisation away from a broad survey of the relationship and gave primacy to the terms of the written contract where the parties have committed their relationship to writing. Then in November 2024, in Bird v DP, the Court held by six to one that an employment relationship is a necessary precursor to vicarious liability in this country, and expressly refused to extend it to relationships merely “akin to employment”, which includes independent contractors and volunteers. Australia is now out of step with the UK, Canada, Ireland and New Zealand on exactly this point.

Risk one: recharacterisation. If the arrangement is found to be employment in substance, vicarious liability is not a novel proposition at all. It is automatic, and it has been since long before Vabu. A practice that has spent a decade telling the public these are its doctors, sets the fees, writes the roster, runs the clinical day and restrains the doctor from working down the road is not fighting a test case. It is handing over the evidence for an ordinary one.

Risk two: the entity’s own negligence. This needs no doctrinal extension whatever. A practice can be sued in its own right for what it actually did, or failed to do: triage at the front desk, recall and results follow-up, the software that sends the reminders, credentialling of who it let use the rooms, and representations to patients about who was treating them. Every one of those is the entity’s system, not the doctor’s clinical judgment. Every one of them is documented. And your website, invoices and email footers are the evidence that the entity, not the doctor, was running them.

There is a trap in the middle of this. The same set of facts is now assessed under four different tests. For payroll tax, the question is whether there is a relevant contract and whether an exclusion applies. For the Fair Work Act, section 15AA has since 26 August 2024 directed that employment be determined by the real substance, practical reality and true nature of the relationship, deliberately unwinding the contract primacy of the 2022 decisions. For a negligence claim at common law, the 2022 approach still governs. You can therefore be a contractor for one purpose and an employee for another on identical facts. What your practice tells the public is evidence in every one of them.

And the ATO reads the same evidence. Income tax is the fourth test. In TR 2023/4 the Commissioner treats a practitioner presenting as an emanation of the business as a factor in whether they are an employee for PAYG withholding purposes, and paragraph 45 names the material he looks at: websites, letterheads, tax invoices, encounter sheets, reminders and group SMS fee notices. PCG 2023/2 then risk rates you on whether a comprehensive written agreement matches what actually happens day to day. We work through both, and what a bailment based service fee agreement has to do to survive them, in the ATO employee versus contractor briefing and Doctors Pay Calculator.

And do not assume indemnity absorbs it. The doctor’s medical defence organisation covers the doctor. Your business insurance covers the entity for what the entity does. Neither is designed to pick up an entity held liable for a practitioner’s clinical decision, and a direct claim in negligence against the practice for its own systems, rostering or credentialling is a separate argument again. Ask your broker and your MDO the question in writing before you need the answer.

Which name is on the email?

An email address in a practice manager’s name pulled one of our clients into a patient complaint that had nothing to do with them. The title is the giveaway: in a genuine tenant doctor arrangement there is no practice and no practice manager, only a service entity and an administrator, and the address on the email should belong to the doctor’s own practice. The same paperwork decides whether you pay payroll tax. Here is the 24 point audit we now run on every practice.

Print the audit below. Walk around your own practice with it before you read another word. Every “no” is evidence against you.

A job title nearly cost our client their case

Here is how abstract this is not.

A service entity we act for, commonly mistaken for the doctors’ practice, received a complaint about a tenant doctor, arising out of a consultation that turned on the patient’s gender identity. The complaint named the service entity as a party alongside the doctor. That entity does not treat anyone. It owns a building, some equipment and a roster of administrative staff.

So why was it there? Because the practice had used the wrong email address. Every message to that patient went out from a practice manager address at the centre, under a practice manager signature block, when it should have gone from the doctor’s own address in the doctor’s own name. On the face of the paperwork, the entity looked like the business responsible for the care. The doctor’s own name barely appeared on anything the patient had received.

The entity was eventually removed as a party, but only after a fight, and after the cost, the time and the disclosure that came with it. Nothing about the clinical question changed. A job title in an email address dragged a landlord into someone else’s complaint, and a correctly worded signature block would have kept it out.

The words that do the damage

At the risk of sounding pedantic about vocabulary, the words are the evidence.

• Contractor should be Tenant Doctor.
• Medical centre should be the premises, or the building name.
• Our practice should be the service entity.
• Our doctors should be the Tenant Doctors practising here.
• Our patients should be Dr Smith’s patients.
• We bulk bill should be Dr Smith bulk bills her patients.

Every phrase on the left tells the same story: one business, supplying medical care to the public, through doctors it engages. That is precisely the story that sank Thomas and Naaz, and precisely the picture that made Vabu liable. A revenue office will read your website long before it reads your service agreement. So will a plaintiff lawyer.

And do not lean on “independent practitioner” because you found it in RACGP accreditation material. The Standards are about clinical governance and patient safety. No revenue office, tribunal or court is bound by them. If you set the fees, write the roster, run the clinical day, restrain the doctor from working down the road and advertise “our team”, calling that doctor an independent practitioner simply hands the auditor a contradiction in your own words.

While you are there, check the invoices and letterheads

This is where most practices quietly convict themselves, because the software generates these documents and nobody has read one in years.

The Tenant Doctor invoices the patient for the medical service. The service entity invoices the doctor for rent and services. If your entity is issuing receipts to patients in its own name and ABN, you have documented the opposite of whatever your agreement says.

Same with letterheads. Referral letters, results, recalls, care plans, account statements, email footers. If all of it goes out under one logo with the doctors listed underneath like staff, you have built the Vabu picture yourself, at scale, in writing.

The rule worth knowing: holding out

Here is the part nobody talks about. Every state and territory except Western Australia has the same statutory exclusion, in near identical words. If the doctor ordinarily performs services of that kind to the public generally, the contract is not a relevant contract at all, and payroll tax never reaches it.

All seven publish the same guidance on it, a ruling called PTA021. For years that ruling said the exclusion applied only if the contractor ran a genuine independent business. In October 2018 the Victorian Supreme Court held that requirement is simply not in the Act. Five jurisdictions have since rewritten their ruling. South Australia and the Northern Territory still publish the 2009 version, test and all, eight years after a court struck it out.

Why that matters to you. A ruling is the revenue office’s opinion, not the law, and these ones have already been proved wrong once on this very section. So when a ruling tells you the exclusion is really about how many principals you contract with, treat that as an opening position rather than the answer.

So a Tenant Doctor maintaining their own website, their own business name and their own advertising is not being vain. It is evidence, and it is the same evidence that keeps the entity out of a complaint. Being flat out is not the test. A doctor with a six week wait who never advertises and appears nowhere except your website looks, on paper, like your employee.

Do this properly and you do not need the GP concessions at all. Those are mostly tied to bulk billing percentages, reported annually, and reviewable at any state budget. The holding out exclusion covers every practitioner, not just GPs, and does not move with your billing mix or the next election.

One warning before you start typing

Do not spend this afternoon rewriting your website.

Only change the language if you believe the arrangement has been misclassified, meaning the substance is genuinely a Tenant Doctor arrangement and the labels have simply drifted away from it. Then the rewrite aligns your documents with what is already true.

If the substance is not there, relabelling makes it worse. A revenue office or a court that finds you renamed everything while the fees, rosters, restraints and patient relationships stayed exactly as they were will treat that as window dressing, and penalties follow. If you genuinely employ your doctors, employ them properly and pay the tax.

So the order is: work out what the arrangement really is, fix the substance if it needs fixing, then make the words match.

The accidental upside

So here is the question. Are you worried about being sued?

Most owners answer that they are worried about a payroll tax bill, and fair enough, because an assessment arrives with a number on it and a date to pay. A claim or a complaint involving a Tenant Doctor does not announce itself, is not capped, and is the exposure least likely to be picked up cleanly by anyone’s policy. Do not assume indemnity absorbs it either: the doctor’s medical defence organisation covers the doctor, your business insurance covers the entity for what the entity does, and neither is built for an entity joined to someone else’s clinical matter. Ask your broker and your MDO in writing before you need the answer.

But it is the same fix. The moment you stop holding your doctors out as yours, and they start genuinely holding themselves out to the public as their own business, with their own name, their own advertising, their own invoices, their own letterhead and their own email address, you have built the evidence for both problems at once.

Go looking for protection from a claim and you may accidentally find you have solved your payroll tax problem on the way through. Same documents, same facts, two very different bills avoided.

That is the opposite of what Uber did. It spent years arguing about the label and never changed the picture.

Related reading on this blog

• Payroll and Income Contractor Liability: How You Publicly Identify Now Matters
• Why advertising your practice as a “Medical Centre” or “Clinic” may be a bad idea
• Uber crumbles under payroll tax: why medical and healthcare still have an escape route
• A Genuine Tenant Doctor arrangement attracts no payroll tax
• The difference between a Tenant Doctor and an Independent Contractor

Sources

• Uber ordered to pay US$40 million over the death of a passenger left on a freeway, September 2026
• Hollis v Vabu Pty Ltd [2001] HCA 44
• Chief Commissioner of State Revenue v Uber Australia Pty Ltd [2025] NSWCA 172, case note
• Uber Australia Pty Ltd v Chief Commissioner of State Revenue, High Court of Australia, S170/2025
• Bird v DP (a pseudonym) [2024] HCA 41, and a practitioner note on its workforce implications
• CFMMEU v Personnel Contracting [2022] HCA 1 and ZG Operations v Jamsek [2022] HCA 2, case note
• Ellis v The Wallsend District Hospital (1989) 17 NSWLR 553, discussed in Turner Freeman, Who do I sue in a medical negligence claim, and the Commonwealth review of non-delegable duties and vicarious liability
• Fair Work Act s 15AA whole of relationship test, in force 26 August 2024
• Harmonised payroll tax rulings and which jurisdictions have adopted each
• PTA021 as published by each revenue office: NSW, Victoria, Queensland, South Australia, Northern Territory, Tasmania and the ACT.