Vicarious liability has been an area of change and confusion in recent years.
Practitioners and clients involved in child sexual abuse or other intentional tort matters will be accustomed to having attended mediations where the opposing parties advocate, each with claimed adherence to authority, completely opposite views about whether an institution will bear liability for the acts of an individual tortfeasor. For a fundament doctrine such as vicarious liability, with its “all or nothing” nature, this has led to considerable uncertainty around its scope and reach.
To illustrate that uncertainty and change:
- In the United Kingdom, an unincorporated association has been held to bear vicarious liability for intentional torts perpetrated by its non-employee members who worked in its institutions[2]. There have been multiple attempts to have Australian courts follow this authority.
- In Canada vicarious liability has been found to apply where the institution’s relationship with the perpetrator is “akin to an employment relationship”[3].
- In Victoria, in first instance and appellate decisions[4], it was found that vicarious liability could apply in ecclesiastical (non-employment) relationships, where the tortfeasor was under the principal’s control and was an emanation of the principal (e.g. where the priest was argued to be an emanation of the Diocese). This required a factual inquiry as to the nature of the relationship. Similar findings have been made in NSW[5].
- There are cases in Australia, particularly in the construction sector, where vicarious liability has been found or imposed outside of strict employment relationships[6]. For example where a labour hire worker is found to be a pro hac vice employee of a principal. These cases involve the Court determining whether a relationship, purported as an independent contractor or labour hire relationship, was in fact a contract of service. This is a fact-specific inquiry[7]. These arguments have been deployed in intentional tort cases involving perpetrators who are not the legal employee of the defendant, with submissions that the defendant exercised day-to-day control over the relevant activities.
- Submissions have been made in intentional abuse cases about “agency”, with the suggestion that because the perpetrator wore a certain uniform, followed certain rules or somehow implemented the business of the institution, that the perpetrator was its “agent”, leading to vicarious liability.
The High Court has cleared the air with its unanimous decision of Bird. In doing so the High Court clarified the doctrine of vicarious liability in Australia as follows:
- First, there is vicarious liability in the agency sense[8]. It is not enough that the tortfeasor is some kind of “representative” of the defendant. There must be a relationship of true agency (e.g. where the tortfeasor had authority to bind the defendant to legal relations with others, and/or where the tortious acts were authorised by the defendant) and the tort must have occurred in the course of that agency[9].
- Second, there is vicarious liability in the (strict) employment sense. The High Court stated clearly that without a relationship of employment there can be no vicarious liability[10]. The Court refused to recognise vicarious liability as extending into relationships “akin to employment”[11].
Vicarious liability in Australia thus can only apply:
- to “true agents”, where the law would recognise a formal relationship of agency; or
- to employees.
This means that there can be no vicarious liability going forward, without one of the above factors applying. A clear example of this is the December 2024 ruling by the Victorian Court of Appeal that the vicarious liability case involving a football club volunteer was “untenable”[12].
There still may be cases where there is a factual dispute on whether or not a tortfeasor was an “employee”. For example, where the High Court found that the ostensibly subcontracted bicycle courier was an employee[13], and the labour-hire and construction cases above. Those cases were not overruled by Bird, having been decided on the basis of whether or not an employment relationship existed on the facts.
In child sexual abuse cases, if true employment applies, vicarious liability will still be imposed subject to the existing criteria[14]. The plaintiff needs to establish that the tort arose from a special role that the employer has assigned to the employee and the position in which the employee was thereby placed vis-à-vis the victim (including by reference to authority, power, trust, control and the ability to achieve intimacy with the victim)[15]. For cases that do not involve employees (or true agents), plaintiffs will require a claim in negligence.
[1] Bird v DP (a pseudonym) [2024] HCA 41
[2] Various Claimants v Catholic Child Welfare Society [2012] UKSC 56
[3] John Doe v Bennett [2004] 1 SCR 436
[4] Bird v DP (a pseudonym) [2023] VSCA 66, O’Connor v Comensoli [2022] VSC 313 (appealed but not on this point), DP (a pseudonym) v Bird [2021] VSC 850
[5] AA v Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle [2024] NSWSC 1183 at [210]-[219] and TT v The Diocese of Saint Maron, Sydney & SS (No 3) [2024] NSWSC 943 at [263]. Final orders in each of those cases were stayed, on terms, pending an appeal (as at the date of this article).
[6] Recent examples include CFMEU v Personnel Contracting Pty Ltd [2022] HCA 1, Mt Owen Pty Ltd v Parkes [2023] NSWCA 77 at [33], Hallmark Construction Pty Ltd v Brett Harford [2020] NSWCA 41 at [88]-[90]
[7] Mt Owen, see [49]
[8] Colonial Mutual Life Assurance Society Ltd v Producers & Citizens Co-operative Assurance Company of Australia Ltd [1931] HCA 53
[9] Bird at [31]-[35]
[10] Bird at [46]
[11] Bird at [47]
[12] Footscray Football Club Ltd v Kneale [2024] VSCA 314, at [700], per Beach JA and Forrest AJA, Emerton P agreeing in that respect
[13] Hollis v Vabu Pty Ltd [2001] HCA
[14] Although “there is no bright line of distinction between conduct of an employee which might attract vicarious liability on the one hand, and conduct which does not”; Garrett v VWA [2023] VSCA 144 at [70]
[15] Prince Alfred College Incorporated v ADC [2016] HCA 37 at [81]