Introduction
Should organisations be held vicariously liable for the actions of those who aren’t employees – for example, spiritual appointments, contractors or their volunteers?
The question of whether organisations could be held vicariously liable for the conduct of those who operated in a position that was ‘akin to employment’ was put before the High Court in the recent case of Bird v DP proceedings.[i] Whilst both the Primary Judge and Court of Appeal had found that relationships that ‘emanate’ an employment relationshipmay give rise to vicarious liability,[ii] on further appeal the High Court has confirmed its long held position that an employment relationship is the precursor to establishing a claim for vicarious liability.[iii]
What does this mean for churches, schools and other not-for-profit organisations?
This recent decision means that organisations are unlikely to be held vicariously liable for the misconduct of personnel that are not employees. Following the lower court rulings in Victoria, in some circumstances organisations could have been potentially held vicariously liable for the misconduct of a personnel that were not employees. This arguably would have included a liability arising from a volunteer, even where that volunteer was not engaged in employment with the organisation or is now deceased. The Court ruling in Bird v DP now reinforces that an employment relationship is necessary for giving rise to vicarious liability, and organisations are unlikely to be held vicariously liable for the conduct of those who do not hold the employment relationship including their volunteers or spiritual appointees (referenced as roles akin to employment).
It should be noted that this will primarily impact historical claims. Since the Royal Commission, legislative amendment has introduced a positive duty on organisations that work with children (see below for further details).
What is Vicarious Liability?
Vicarious liability is liability based on the attribution of the liability of another, where the defendant is held liable for the wrongdoings of another despite being free from fault.[iv]
Vicarious liability is imposed where two elements are satisfied:
- There is an employment relationship between the wrongdoer and the defendant; and
- The wrongdoer committed the wrongdoing in the course of that relationship.[v]
High Court of Australia Decision in Bird v DP
In 1971, the respondent (‘DP’) was sexually assaulted on two separate occasions by father Bryan Coffey, a catholic priest from St Patrick’s parish church, a church within the Roman Catholic Diocese of Ballarat (‘the Diocese’).[vi]
While the primary judge and Victorian appellate Court held the Diocese vicariously liable for the crimes committed by Coffey on the basis that Coffey was “an emanation of the principal”,[vii] which reflected the position in the UK and Canadian case law (as discussed below) the High Court of Australia has now confirmed its position, firmly delineating it from the legal position of the other jurisdictions that vicarious liability only arises in Australia within the context of an Employer-Employee relationship.
The majority of the Court referred to the factors of an employment relationship set out in Hollis, including the exercise of control of the employer over the selection and conduct of the employee, and stated that these factors reflect the central idea that the employer “should be held liable for creating or increasing a risk of harm that has materialised in the employee’s pursuit of the enterprise.”[viii] The Court also referred to its decisions in Sweeney, Lepore and Scott, and stated that to expand the scope of vicarious liability beyond an employment relationship would be to redraw the boundaries established over the past 25 years of precedent.[ix]
The Court found that the scope should not be extended to apply to non-employment relationships, and that there was no foundation for its bounds to be redrawn. [x] The Court stated that extending the scope of relationship to include those relationships ‘akin to employment’ would produce indeterminacy and uncertainty by both unnecessarily expanding the liability within relationships and further complicating the distinction between an employee and independent contractor for the purpose of determining the threshold for vicarious liability.[xi] The Court concluded that abandoning the threshold requirement of the relationship of employment for vicarious liability does not fit within the body of accepted rules and principles.[xii]
The majority summarised it’s position as follows:
“…the position in Australia is that an employer may be vicariously liable for the acts of its employees, but there is no such liability for the acts of those who are not in an employment relationship but, instead, are, for example, independent contractors or in a relationship “akin to employment”. There being no finding of a relationship of employment between the Diocese and Coffey, the appeal must be allowed.”[xiii]
UK and Canada
This High Court decision differs from the United Kingdom and Canadian position, which recognises relationships that are ‘akin to employment’ as relationships that may give rise to vicarious liability.[xiv] In the Canadian decision Bazely and United Kingdom decision Lister v Hesley Hall Ltd, [xv] the Courts placed emphasis on whether there was a ‘sufficient connection’ between the abuse and the work the employee was engaged to do. However in the High Court decision Prince Alfred College, the Court expressly identified that these decisions did not reflect the current state of law in Australia.[xvi] A reminder that this case dealt with what conduct is considered to be within the course of employment in an employment relationship, and the sufficient connection test was not adopted by Australia.
The present case rejects the reasoning behind United Kingdom decisions such as Maga v Archbishop of Birmingham and E v English Province of Our Lady Charity in which the relationship between a priest and their religious order was deemed to be akin to employment and able to give rise to vicarious liability.[xvii] As mentioned above, the High Court held that following these decisions would create indeterminacy and uncertainty in the law. The Court established that Australia has moved away from the position of these jurisdictions (and indeed made the point of noting that some of these jurisdictions have had to curtail the expansionary results of these positions),and that circumstances that give rise to vicarious liability claims, even in relation to churches, non-for-profit organisations and schools, are firmly situated within an employment relationship.
The Court has made it clear that any change to the position that vicarious liability arises only out of the employment relationship is a matter for legislative reform, not one for the determination in the common law.
Statute and Non-delegable Duty
It should be noted that while organisations may not be held vicariously liable for the actions of their volunteers or other non-employee relations, organisations still have a prospective obligations relating to a statutory duty of care established following the Royal Commissions’ Redress and Civil Litigation Report (2015).[xviii] Parliaments across Australia have adopted legislation to impose organisational liability for child abuse, [xix]obligating relevant organisations to ensure that the care executed is reasonable to prevent the abuse of a child by an individual within the relevant organisation while that child is under their duty of care.[xx]
The Court did not address the issue of non-delegable duty in this case as, in addition to other factors, it had not been brought up in the primary trials. These duties that already exist between employer and employee, hospital and patient and school and pupil, were recognised by the Court and it was open to future cases to bring forward an argument that this applies in a religious context. However, it was recognised by the Court that changes to the laws regarding statutory duty of care had already been enacted.
Whilst the circumstances in which an organisation may be held to be vicariously liable have been clarified and narrowed comparatively to other jurisdictions, particularly in respect of historical claims, the new statutory duty of care requirements in the relevant legislation places the onus of proof on organisations to prove that they have exercised all reasonable care to prevent abuse in respect to children in its care.
At Vocare Law, we understand the devastating impact institutional failures can have on individuals and for the ongoing fulfilment of the mission of the organisation. We seek to deliver Just Redemptive Outcomes for our clients and are here to assist should you require support.
Authors:
Ava Assanti (Paralegal)
Luke Borgert (Senior Associate)
Tim Whincop (Director)
Footnotes
[i] Bird v DP (a pseudonym) [2024] HCA 41.
[ii] Bird v DP(a pseudonym) (2023) 69 VR 408 [129]-[130].
[iii] Bird v DP (a pseudonym) [2024] HCA 41[45].
[iv] Ibid [44].
[v] Ibid [81] ; Hollis (2001) 207 CLR 21.
[vi] Bird v DP (a pseudonym) [2024] HCA 41[1].
[vii] Ibid [104].
[viii] Hollis (2001) 207 CLR 21 cited in Bird v DP (a pseudonym) [2024] HCA 41[90].
[ix] Sweeney (2006) 226 CLR 16; Lepore (2003) 212 CLR 511; Scott (2000) 204 CLR 333 cited in Bird v DP (a pseudonym) [2024] HCA 41[49].
[x]Bird v DP (a pseudonym) [2024] HCA 41[ 45] [48].
[xi]Ibid [65] [66].
[xii]Ibid [68].
[xiii]Ibid [5].
[xiv] Christian Brothers [2013] 2 AC 1.
[xv] Bazley [1999] 2 SCR 534; Lister v Hesley Hall Ltd [2002] 1 AC 215; Bird v DP (a pseudonym) [2024] HCA 41 [51].
[xvi] Prince Alfred College (2016) 258 CLR 134; Bird v DP (a pseudonym) [2024] HCA 41 [53].
[xvii] Maga v Archbishop of Birmingham [2010] 1 WLR 1441; E v English Province of Our Lady Charity [2013] QB 722.
[xviii] Australia, Royal Commission into Institutional Responses to Child Sexual Abuse, Redress and Civil Litigation Report (2015)
[xix] Civil Liability Act 2002 (NSW) s 6G, 6H ; Civil Liability Act 2003 (Qld) s 33D, 33F; Wrongs Act 1968 (Vic) s 91(2).
[xx] Wrongs Act 1968 (Vic) s 91(2).
