Express Law No. 326

9 December 2024

Bird v DP (a pseudonym) [2024] HCA 41

On 13 November 2024, the High Court handed down its decision in Bird v DP (a pseudonym) [2024] HCA 41 concerning whether vicarious liability applies, or should be extended, to non-employment relationships.

Implications

In arriving at its decision, the High Court provided useful authority for institutions on 3 issues relevant to determining vicarious liability, including its:

• application by determining whether vicarious liability applies to or should be extended to non-employment relationships, which are sometimes described as relationships ‘akin to employment’
• meaning by clarifying what is meant by the expression ‘vicarious liability’ in Australian law
• determination by restating the relevant inquiry for determining vicarious liability in Australian law.

Background

The case concerned historical sexual abuse against DP by a priest of the Roman Catholic Diocese of Ballarat (Diocese). The priest was appointed by the Bishop to a local parish church, which was within the Diocese. The priest was not an employee or ‘agent’ of the Diocese.

Because the priest is now deceased, the victim brought proceedings against the Diocese through the current Bishop of Ballarat.

At first instance, the Supreme Court of Victoria found that the Diocese was vicariously liable for the sexual assaults committed by the priest, notwithstanding a finding that the priest was not an employee nor an agent of the Diocese, on the basis that the relationship was one ‘akin to employment’.

The primary judge identified that the vicarious liability analysis should be ‘directed to the totality of the relationship’ and, in this case, that analysis required a ‘holistic and broad inquiry’ into the relationship between the Diocese and the priest, his role within the Catholic community and his relationship with the plaintiff’s family.

The Supreme Court’s decision was upheld by the Victorian Court of Appeal. The majority of the High Court noted that the Court of Appeal described ‘the relationship between a diocese and a priest as necessarily sui generis, founded in the context of the hierarchical system of a diocese of the Roman Catholic Church, and held that the content of that relationship was such that it could, in an appropriate case, attract the principle of vicarious liability by the Diocese for a wrongful act by a priest in the performance of his work’: [25]. However, in the High Court 6 judges (Gageler CJ, and Gordon, Edelman, Steward and Beech-Jones JJ and, in a separate judgment, Jagot J) allowed the appeal: [72]; [186]. Gleeson J dissented.

Reasoning of the High Court

Vicarious liability does not extend beyond relationships of employment

Five judges of the High Court found that it was not appropriate to expand the boundaries of vicarious liability beyond a relationship of employment, to one ‘akin to employment’: [47]. In coming to this decision, the majority observed:

• There is ‘no solid foundation for expansion of the doctrine or for its bounds to be redrawn’ as a relationship of employment ‘has always been a necessary precursor’ in Australian common law to a finding of vicarious liability, and it has always been necessary that the wrongful acts must be committed in the course or scope of employment: [48].
• While a number of Canadian and UK cases had expanded the boundaries of vicarious liability, the majority rejected that approach because the issue is ‘squarely in the hands of the legislatures’: [63].
• The two central conceptions of distinguishing between independent contractors and employees and attaching determinative significance to course of employment are now too deeply rooted in Australian law to be pulled out: [63].
• While this approach may be described as ‘harsh’, and the relationship between the Diocese and the priest exhibited ‘certain features that resembled that of a relationship of employer and employee’, it would produce ‘uncertainty and indeterminacy’ to extend vicarious liability to relationships akin to employment: [64]–[65].
• Any extension of the threshold for vicarious liability more broadly and to respond to cases such as the present is ‘properly the province of the legislature’: [67].

In a separate judgment, Justice Jagot also said that vicarious liability should not be extended to non-employment relationships. One reason is that Hollis v Vabu Pty Ltd, Scott v Davis, and Sweeney v Boylan Nominees Pty Ltd stand firmly against any such extension. This is on the ground, among others, that the degree of uncertainty in the existing common law doctrine should not be exacerbated on a vague and unprincipled basis, possibly leading to indeterminacy and incoherence in the law: [241].

The dissenting judgment of Justice Gleeson disagreed with the majority’s reasoning regarding the extension of vicarious liability to other (non-employment) relationships. However, her Honour found that even if vicarious liability was so extended to this type of relationship, the Diocese would not be vicariously liable for the priests’ actions because the assaults occurred in circumstances where the priest ‘opportunistically took advantage of his role to commit them’, and they were not committed in the course of his role as a parish priest: [80].

In her Honour’s view, the relationship between the Diocese and the priest is capable of attracting vicarious liability, even though this relationship was ‘akin’ to employment rather than a true employer/employee relationship. Her Honour described the case as ‘a missed opportunity for the Australian common law to develop in accordance with changed social conditions and in tandem with developments in other common law jurisdictions’: [79].

Meaning of ‘vicarious liability’ in Australian law

The majority identified 3 areas where the expression ‘vicarious liability’ is used in Australian law:

1. The first area of law is agency, a form of primary liability where the actions of a person are attributed to the defendant ‘on the basis that the acts were done for the defendant with the defendant’s express implied or apparent authorisation’. The majority said the expression ‘vicarious liability’ is inapposite for this form of liability given it is the acts of the agent that are attributed to the principal: [31]–[33].
2. The second area of law is where liability is imposed on a defendant for breach of a ‘non-delegable duty’. Such a duty arises where the nature of the relationship between the defendant and the other person to whom the duty is owed is one where the defendant has assumed particular responsibility to ensure that care is taken. The majority noted that a breach of a non-delegable duty is a direct rather than vicarious form of liability: [36]–[37].
3. The third area of law, where the use of the term is apposite, involves cases of secondary liability based on attribution of liability of another, not attribution of the acts, of a wrongdoer to a defendant. The majority said this is vicarious liability in its true or proper sense. Put simply, vicarious liability is concerned with attribution of liability, not fault: [29], [44]–[47].

The relevant inquiry for determining vicarious liability in Australia

The majority restated that the relevant inquiry to be undertaken as to a finding of vicarious liability is twofold:

1. Whether the alleged tortfeasor was an employee of the defendant, and then
2. Whether the relevant act or omission of the alleged employee took place in the course or scope of that employment: [46].

Text of the decision is available at: Bird v DP (a pseudonym) [2024] HCA 41.

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