Bird v DP (a pseudonym) [2024] HCA 41
In a much anticipated judgment, the High Court has refused to expand the concept of vicarious liability to relationships that are ‘akin to employment’.
Background
The Plaintiff brought proceedings in the Victorian Supreme Court for alleged abuse by Father Bryan Coffey (‘Coffey’), on two occasions in 1971. The abuse was said to have occurred during pastoral visits at the Plaintiff’s family home. Coffey, who was an assistant priest, was not formally employed by the Roman Catholic Diocese of Ballarat (‘the Diocese’).
The Plaintiff alleged that the Diocese was:
- Directly liable, on the basis that it failed to exercise effective supervision and control over Coffey
- Vicariously liable for Coffey’s abuse.
The Plaintiff also sought to agitate for the first time in the High Court that the Diocese was liable for breach of a non-delegable duty of care.
Victorian decisions
The Victorian Supreme Court (‘VSC’) found in favour of the Plaintiff, determining that the Diocese was vicariously liable for Coffey’s abuse, notwithstanding that he was not an employee or agent of the Diocese. The VSC was not satisfied that the Diocese was directly liable on the basis that the risk of injury was not foreseeable prior to 1971 (and this issue was not considered further).
The Diocese appealed the decision to the Victorian Court of Appeal (VCA).The VCA, in rejecting the appeal, found that Coffey was acting as a ‘servant’ of the Diocese, consistent with a finding of vicarious liability. The Diocese was said to have exercised control over Coffey.
The Diocese appealed to the High Court.
High Court’s decision
The key issue before the High Court was whether the relationship between Coffey and the Diocese, in the absence of an employment relationship, could give rise to a finding of vicarious liability.
In a majority judgment, the High Court refused to expand the concept of vicarious liability to relationships that are ‘akin to employment’. As Coffey was not an employee of the Diocese, it could not be vicariously liable.
Looking back over its past decisions, particularly over the last 25 years, the majority of the High Court noted that a relationship of employment has always been a necessary precursor in Australia for a finding of vicarious liability. The majority specifically stated that the High Court had consistently refused to expand the scope of vicarious liability over this time.
While the majority of the High Court recognised the ‘harshness’ of their decision, they refused to ‘widen the goalposts’ to accommodate policy considerations (society’s views) or follow the path taken by overseas jurisdictions. The majority noted that such a step would introduce too much uncertainty, as seen in the UK and Canada. Instead, they considered that if a change in this area of law is to take effect, this task ‘is squarely in the hands of the legislatures’.
It should be noted that while Justice Gleeson agreed with the orders of the Court, her Honour dissented on the question of whether the scope of vicarious liability should be extended. Her Honour was disappointed that the Court had missed the opportunity to develop the law in accordance with society’s expectations and consistent with other jurisdictions.
The Court also considered whether an agent/principal relationship was applicable to that of Coffey and the Diocese. The High Court said that this type of relationship is inconsistent with a finding of vicarious liability, as a principal’s liability is a primary liability for the agent’s actions (which is different to vicarious liability). In the context of the law of ‘agency’, it was determined that Coffey was not acting as a ‘true agent’ of the Diocese, as his abuse was not perpetrated with the Diocese’s express or implied authorisation.
Finally, the High Court dismissed the attempt to argue the Diocese was liable for a breach of non-delegable duty on the basis that it was not pleaded or run in the courts below. However, the majority did go further to state that a non-delegable duty of care is distinct from vicarious liability and arises in circumstances where the defendant has taken on the responsibility of ensuring that care is taken, however the law in Australia remains that non-delegable duty cannot arise for an action based on intentional wrongs by delegates.
The wider context
In light of the High Court’s comments, it will be interesting to see if the various Parliaments of Australia choose to make legislative changes in contrast to this common law position, specifically in abuse cases.
This decision clarifies that an employer/employee relationship is required before there can be a finding of vicarious liability.
Vicarious liability will not apply in other non-employment contexts, such as:
- Labour-hire
- Independent contractors,
- Foster care and crisis care arrangements, and
Every case turns on its own facts, and the first question will be whether the “independent contractor” is an employee. A non-delegable duty of care in certain situations may be relevant and an organisation’s direct negligence (like a failure to properly supervise) should always be considered. However, at least for now, it is clear that organisations will not be liable for the ‘tortious’ acts committed by those who are not their employees, or their agents whose acts were not authorised.
During the early stages of a claim, the specifics of an alleged employment relationship must be thoroughly investigated, to determine the potential for vicarious liability.
This Case Note was written by Principal Matthew McDonald with the assistance of Solicitor Billy Ellen. Please contact Matthew if you have any questions or require further information.
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