High Court rejects expansion of vicarious liability
In the case of Bird v DP (a pseudonym) [2024] HCA 41, the High Court rejected the notion that vicarious liability can extend to relationships ‘akin’ to employment.
By majority consisting of Chief Justice Gageler and Justices Gordon, Edelman, Steward, and Beech-Jones, the court held that there were two reasons for why the principles of vicarious liability would not be extended to the defendant for the tortious conduct of an assistant priest.
Background
The plaintiff brought a claim against the Roman Catholic Diocese of Ballarat through the standing bishop of Ballarat St Patrick’s parish church, Paul Bird[1].
He claimed damages for psychological injuries sustained as result of historic sexual abuse carried out at the plaintiff’s Port Fairy House on two separate occasions in 1971 by Father Brian Coffee, who at the relevant time was an assistant priest of the Port Fairy parish[2].
The High Court considered whether the Diocese:
- was vicariously liable for the actions of Coffey as assistant priest; and
- breached a non-delegable duty of care to the plaintiff, by failing to exercise reasonable care in its authority, supervision and control over Coffey.
First Instance [2021] VSC 850
At trial, Justice Forrest accepted that the Diocese was vicariously liable for the assaults against DP. DP’s claim that the Diocese was directly liable in negligence failed.
The decision on vicarious liability was made despite finding that Coffey was not an employee of the Diocese. The trial judge held that a correct approach to vicarious liability analysis should be ‘directed to the totality of the relationship’[3] and requires a ‘holistic and broad inquiry’[4] into all circumstances that give a relationship characteristics ‘akin[5]’ to employment. His Honour found the nature of Coffey’s relationship with the Port Fairy community, the Plaintiff and the Plaintiff’s family was founded upon Coffey’s affiliation with the Diocese, and therefore satisfied the test.
However, his Honour did not accept the Diocese knew or ought to have known of that risk prior to 1971 or during 1971. In the absence of foreseeable risk, the plaintiff’s claim of direct liability in negligence failed.
The Diocese was granted special leave to appeal.
Appeal [2023] VSCA 66
In the Court of Appeal, Justices Beach, Niall and Kaye agreed with Justice Forrest.
The nature of the relationship between the Diocese and a priest (or assistant priest) was determined as ‘sui generis’ (‘of its own kind’).[6] The character of the relationship was unique and significant enough for the Diocese to be held vicariously liable for the plaintiff’s harm.
The Diocese was granted leave to appeal.
The High Court
The majority of the High Court successfully overturned the decisions of the lower courts. Their Honours set out the following two reasons as to why the principles of vicarious liability would not be extended to the Diocese for Coffey’s tortious conduct:
- Blurring the distinction between an employee and a person ‘akin’[7] to employment should be avoided at all costs. Overriding the clear distinction between employee and independent contractor poses a risk of indeterminacy and incoherence for future litigation and vicarious liability should always be applied in the strictest sense.
- Their Honours cited the 2017 Organisational Child Abuse amendments of the Wrongs Act[8] as specifically recommending that the new statutory duty of care[9] for institutions be applied prospectively and not retrospectively. Citing a lack of instruction from The Royal Commission, their Honours found no evidence the common law doctrine of vicarious liability should be extended to associations beyond a strict understanding of an employment relationship.
Conclusion
The decision of the High Court ratifies the strict parameters for the application of vicarious liability and will prevent survivors of historic sexual abuse from bringing actions against religious institutions arising out of the actions of individuals who were not in an employment relationship with the institution. It will also affect the application of vicarious liability to other relationships ‘akin’ to employment (such as independent contractors and volunteers).
Strict restriction on the application of vicarious liability leads the Australian common law away from emerging UK trends, emphasising the ‘scope of vicarious liability was being widened too far’.[10] However, it remains to be seen whether the legislature will seek to remedy this outcome.
This article was written with the assistance of Rhia Davies, Paralegal.
[1] s 7 Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (Vic) (Legal Identity Act).
[2] Coffey appointed to his role in the Port Fairy parish by the then Bishop of Ballarat (‘the Bishop’) on behalf of the Diocese.
[3] Bird v DP (a pseudonym) [2024] HCA 41, at [8].
[8] Wrongs Amendment (Organisational Child Abuse) Act 2017 (Vic).
[9] Post- The Royal Commission into Institutional Responses to Child Sexual Abuse (2017).
[10] BXB v Trustees of the Barry Congregation of Jehovah's Witnesses [2024] AC 567, at [48].