FEATURE ARTICLE -
Advocacy, Issue 98: December 2024
“No conception can be understood except through its history …; and of no legal conception in … law is this more true than the notion of Responsibility for Tortious Acts.”[1]
The principle of vicarious liability has had a somewhat “tortured history” within the Australian Courts and other jurisdictions.[2] While largely thought to be a well-settled point of law in Australia, with clearly defined boundaries, there has been somewhat of a resurgence of the consideration of this legal principle in Australian Courts over the last several years.[3]
The latest decision on this principle from the High Court of Australia is the highly anticipated decision in Bird v DP (a pseudonym).[4] For the first time, the Court was asked to consider whether a defendant may be held vicariously liable for the actions of a tortfeasor where there is no employment relationship, such that vicarious liability would extend to those relationships that are “akin to employment”.
The issues on appeal before the High Court concerned:
- whether the Diocese was vicariously liable for the assistant priest’s conduct with the necessary two-fold inquiry to be answered positively; and
- whether the Diocese breached a non-delegable duty owed to DP – a new contention raised at the appeal.
Although this case is familiar to many, it is worth a quick recap. In 1971, Father Brian Coffey was an assistant parish priest at St Patrick’s Catholic Church in Port Fairy, within the Roman Catholic Diocese of Ballart.[5] Coffey was a regular visitor to DP’s family home in his pastoral role and would counsel and mediate issues between DP’s parents.[6] He would also spend unsupervised time with DP.[7] DP alleged that in 1971 at age 5 years, he was sexually abused by Coffey on two separate occasions: in March or April 1971 and on 26 December 1971.[8]
In 2020, DP commenced proceedings claiming damages for psychological injury caused by the sexual abuse as perpetrated by Coffey.[9] DP alleged the Diocese was both vicariously liable for the actions of Coffey, and liable in negligence by reason of the Diocese’s failure to exercise reasonable care in its authority, supervision and control of the conduct of Coffey. DP submitted that vicarious liability should be determined with reference to the factors as identified in Hollis v Vabu Pty Ltd.[10]
In the decision at first instance, Forrest J discussed in great detail the relationship between Coffey and the Diocese,[11] and ultimately found that the Diocese was vicariously liable for Coffey’s conduct that were ‘directed to the totality of the relationship’.[12] This was by reason of, inter alia, the close nature of the relationship between the Bishop, the Diocese and the Catholic Community in Port Fairy, the Diocese’s general control over Coffey’s role and duties, Coffey’s pastoral role in the community, and the relationship between DP, his family, Coffey and the Diocese being one of intimacy and imported trust.[13] As to the second question directed at vicarious liability, His Honour found that Coffey’s role provided both the opportunity and occasion for the wrongful act because his role as a Parish priest under the direction of the Diocese placed him in a position of power and intimacy vis-à-vis DP that enabled Coffey to take advantage of DP when alone.[14]
DP was unsuccessful in his claim that the Diocese was negligent for Coffey’s abuse,[15] and this point was never appealed by DP.
The Court of Appeal unanimously upheld the primary judge’s findings and conclusions.[16]
However, the High Court entirely disagreed with the findings of the courts below in reaffirming the principles relating to vicarious liability. Relevantly and as was to be explained, the Court held that:[17]
‘in the absence of an employment relationship, it was not open to hold the Diocese vicariously liable for the two assaults committed by Coffey against DP. Any other analysis that uses language that infers fault or risk – such as control – is inapposite in a claim of vicarious liability. … pointing to fault seeks to appeal to basic principles or ideas that inform so much of the law of tort but have no role to play in vicarious liability. Vicarious liability is concerned with attribution of liability, not fault.’
As the Court set out, ‘the expression “vicarious liability” has been used to describe different types of liability in different areas of the law,’ and it is necessary to identify when vicarious liability applies, before considering, whether an employment relationship is a necessary precursor.’[18] The Court proceeded to discuss the consideration of agency, non-delegable duty, and vicarious liability in respect of its application to the expression.[19]
While DP had pleaded that Coffey was the agent of the Diocese, there was no finding that he (Coffey) was a “true agent”, and therefore, the unlawful acts done by Coffey were not done with the Diocese’s, ‘express, implied or apparent authorisation.’[20] This issue was not revisited by the Court.
For the first time in the hearing of the matter on appeal, DP advanced the contention that he was owed by the Diocese a non-delegable duty,[21] the second area of law where vicarious liability has been used. The Court restated that “non-delegable” or “personal” duty, is ‘… of a special or “more stringent” kind’,[22] and is a duty to ‘ensure that reasonable care is taken’[23] [emphasis in the original] with liability for breach of this duty being direct, not vicarious.[24] The Court dismissed consideration of this issue as it was confined to deciding the issues that DP had invited the earlier courts to decide. [25] A non-delegable duty was never pleaded or addressed in the evidence before the courts – the only two issues at trial were vicarious liability and negligence.[26] The issue of negligence failed and that finding was never appealed by DP.[27]
The plurality then turned its discussion to the third area of law – vicarious liability. As previously set out, ‘vicarious liability in its true or proper sense [is] liability based on the attribution of the liability of another…’ not the ‘attribution of the acts, of a wrongdoer to a defendant.’[28]
Vicarious liability in the common law of Australia has always adhered to the rule that a relationship of employment is a necessary precursor,[29] that this is an “essential requirement” for secondary liability,[30] and there was no vicarious liability for the acts of those not in a relationship of employment, that is, acts of third parties outside of that context.[31] Further, where liability is attributed to the employer it ‘must be committed in the course or scope of the employment.’[32] As the Court noted this is the two-fold inquiry of vicarious liability: whether the alleged tortfeasor was an employee of the defendant, and then separately, whether the act or omission of the alleged employee took place in the course or scope of that employment.[33] To date, the Court has not accepted that vicarious liability applies beyond any strict employment relationship and Court determined that there was ‘no solid foundation’ to expand the doctrine or for the ‘bounds to be redrawn’ now,[34] especially where it has repeatedly refused to extend those boundaries to include independent contractors.[35]
While the Court reviewed how the law of vicarious liability is on the move within overseas jurisdictions, including England where it has extended the principle to those relationships that are “akin to employment,” the Court said it was important to understand those movements emerged from ‘a radically different set of starting principles’ for vicarious liability which were not law in Australia.[36] There have since been efforts by the UK Supreme Court to retreat from this expanded position.[37]
Ultimately, the Court declined to expand the scope of vicarious liability, largely on policy grounds and to so now would ‘produce uncertainty and indeterminacy in at least two ways’.[38] The first, being the “akin to employment” test. The Court considered any extension of vicarious liability in this way ‘is squarely in the hands of the legislatures’ and that there are ‘deep roots’ of the employment relationship being a threshold requirement for a finding of vicarious liability’ which extends to other Australian courts, the legislatures and insurers.[39]
The second area to produce uncertainty and indeterminacy arises the risk of ‘further complicating the already fraught distinction between employees and independent contractors.[40] The Court restated the relevant question is ‘whether the tortfeasor is carrying on business on his own account or whether [the tortfeasor] is in a relationship akin to employment with the defendant’,[41] and to now consider indicia of a subset of cases that are “akin to employment” would ‘generate difficulty distinguishing employees from independent contractors more broadly.’[42]
The Court then turned its discussion to address cases of child sexual abuse and institutional liability, and where legislation has sought to address such issues as those before the Court, particularly following the 2015 Redress and Civil Litigation Report of the Commonwealth Royal Commission into Institutional Response to Child Sexual Abuse.[43] As observed by the Court, there is inconsistency amongst the various legislation, and some amendments to civil liability apply prospectively.[44] In Victoria, where DP’s claim originated, the introduction of the Legal Identity Act remedied the issue around bringing proceedings against unincorporated organisations and dealt with the issue of legal personality. However, as the Diocese submitted and was accepted by the Court, this was not an alteration of the substantive law of vicarious liability and an employment relationship is still required.[45] The Court held that this was not an area ‘of the law where the intersection between the common law and statute permits the Court to analogise from statute to adapt or expand the principle of vicarious liability beyond relationships of employment.[46]
As it was found that vicarious liability did not apply, the issue to the Diocese’s liability of Coffey’s conduct was not reached.
Ultimately, the plurality allowed the appeal, with the orders made by the Supreme Court of Victoria set aside and an order made to dismiss the proceeding with costs.[47]
Justice Gleeson reached the same conclusion as the majority allowing the appeal and dismissing the proceedings but determined the issues differently. His Honour disagreed that there was not a basis for the further development of vicarious liability and the expansion to those cases which are “akin to employment” are modest in operation.[48] His Honour sets out his analysis that would allow such expansion against the seven features identified in Hollis that were also evident (bar one) in the Diocese’s appointment of Coffey as an assistant parish priest. Gleeson J concluded that the relationship which existed between Coffey and the Diocese was ‘fairly described as “akin to employment”’ given the characteristics of that relationship and Coffey was not an independent contractor.[49]
However, His Honour proceeded to find that the courts below had erred in finding that Coffey’s role place him in a position of trust and authority vis-à-vis DP and his family and that Coffey’s abuse of DP occurred in the court of his relationship with the Diocese. His Honour determined that while Coffey’s role, in providing pastoral care, placed him in a position of trust, this was insufficient to conclude the sexual assaults occurred in the course of his role as there was nothing in the factual findings of the courts below that gave Coffey authority or power to insist on being alone with DP.[50] His Honour concluded that while ‘Coffey’s role gave him the opportunity to harm DP … it was not the occasion for that harm’ as explained in Prince Alfred College.[51] Gleeson J held that while the relationship between the Diocese and Coffey attracted vicarious liability, DP failed in his claim as Coffey’s torts were not committed in the course of that relationship.[52]
Briefly, while Jagot J wrote a separate judgement from the majority he ultimately reached the same conclusion. His Honour’s determined that the conclusion of the courts below involved an extension, rather than application of the common law principle of vicarious liability but that the extension should not be adopted and become part of the common law in Australia.[53] Jagot J includes his own analysis of the law of vicarious liability, including where both he uncertainties and certainties of the rule lies and when exceptions to the general rule should be made, and whether the courts below applied or extended the principle and why the principles of vicarious liability should not be extended. His Honour agreed the Diocese’s appeal must succeed, and the orders proposed by the plurality be made.[54]
The High Court’s decision is clear and resolute – vicarious liability at common law does not extend to those relationships that are “akin to employment”. While this arguably creates more difficulties in pursuing what are complex and distressing claims for institutional child sexual abuse, arguably creating a more torturous process for those victims seeking redress, to remedy this situation will require further review and amendments by the legislatures. As the Court noted (and which has not been discussed in great detail in this summary) the legislation as it relates to these issues is inconsistent amongst the States and Territories. The continued developments in this area of law, and how this decision will be applied in other similar cases, will remain of great interest to practitioners and their clients.
[1] John H. Wigmore, ‘Responsibility for Tortious Acts: Its History’ (Part II. Harm Done by Servants and Other Agents: 1300-1850) (1894) 7(7), Harvard Law Review 315.
[2] Bird v DP (a pseudonym) [2024] HCA 41 at [48] (‘Bird v DP’) citing Prince Alfred College Inc v ADC (2016) 258 CLR 134 (‘PAC’); Darling Island Stevedoring and Lighterage Co Ltd v Long (1957) 97 CLR 36 at 56-57 (‘Darling Island Stevedoring’); Scott v Davis (2000) 204 CLR 333 at 242 [277] (‘Scott v Davis’); Hollis v Vabu Pty Ltd (2001) 207 CLR 21 at 37 [35] (‘Hollis’); New South Wales v Lepore (2003) 212 CLR 511 at 580 [196] (‘Lepore’); Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161 at 166-167 [11] (‘Sweeney’); CCIG Investments Pty Ltd v Schokman (2023) 97 ALJR 551 at 561-562 [48]-[53] (‘Schokman’). Case authorities for the international jurisdictions have been omitted but can be found at footnote 69.
[3] See e.g., PAC; Schokman; Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2022) 275 CLR 165.
[4] [2024] HCA 41 (‘Bird v DP’).
[5] Bird v DP at [2].
[6] Bird v DP at[19].
[7] Bird v DP at [19].
[8] Bird v DP at [20].
[9] DP (a pseudonym) v Bird [2021] VSC 850
[10] (2001) 207 CLR 21; DP (a pseudonym) v Bird [2021] VSC 850 at [121].
[11] Forrest J’s lengthy discussion is set out at from [116] to [282]. He explores the case authority both in Australian and overseas on the issue. From paragraphs [224] to [277] he considers and discusses the relevant factors in answering the two questions on vicarious liability: whether the Diocese was vicariously liable for Coffey’s conduct and whether the Diocese had placed Coffey in a position of power and intimacy vis-à-vis DP.
[12] Bird v DP at [8].
[13] Bird v DP at [21].
[14] DP (a pseudonym) v Bird [2021] VSC 850 at [280]-[281]; Bird v DP at [22].
[15] DP (a pseudonym) v Bird [2021] VSC 850 at [278]-[279].
[16] Bird v DP (A Pseudonym) (2023) 69 VR 408; 2023 323 UR 174; [2023] VSCA 66.
[17] Bird v DP at [29].
[18] Bird v DP at [30].
[19] Bird v DP from [31].
[20] Bird v DP at [35].
[21] Bird v DP at [40].
[22] Bird v DP at [36] citing Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 550, quoting Kondis v State Transport Authority (1984) 154 CLR 672 at 686 (‘Kondis’); Lepore (2003) 212 CLR 511 at 530 [25], 551-552 [101], 598 [254]; Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22 at 27 [6].
[23] Bird v DP at [36] citing Kondis (1984) 154 CLR 672 at 686; The Commonwealth v Introvigne (1982) 150 CLR 258 at 270-271(‘Introvigne’); Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 550; Lepore (2003) 212 CLR 511 at 551-552 [101], 598 [254].
[24] Bird v DP at [36] citing Introvigne at 271, 275, 279; Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 at 329-330; Schokman (2023) 97 ALJR 551 at 567-568 [70]-[73]; 410 ALR 479 at 497-499; Lepore (2003) 212 CLR 511 at 562, [136].
[25] Bird v DP at [43].
[26] Bird v DP at [40].
[27] Bird v DP at [40].
[28] Bird v DP at [44] citing Schokman and also referring to Darling Island Stevedoring (1957) 97 CLR 36 at 57.
[29] Bird v DP at [45].
[30] Bird v DP at [46] citing Schokman.
[31] Bird v DP at [46].
[32] Bird v DP at [46] citing Schokman.
[33] Bird v DP at [47] citing Deatons Pty Ltd v Flew (1949) 79 CLR 370 at 380; PAC; Schokman and referring to Colonial Mutual Life (1931) 46 CLR 41 at 49.
[34] Bird v DP at [48].
[35] Bird v DP at [49].
[36] Bird v DP at [55].
[37] Bird v DP at [250] per Jagot J.
[38] Bird v DP at [65].
[39] Bird v DP at [63].
[40] Bird v DP at [66].
[41] Bird v DP at [66].
[42] Bird v DP at [66].
[43] The Report did include recommendations relating to issues of vicarious liability and non-delegable duty with reform to be taken by the State and Territory governments, including to make institutions liable for institutional child sexual abuse by persons associated with the institution, unless the institution proves it took all reasonable steps to prevent the abuse.
[44] Bird v DP at [68].
[45] Bird v DP at [69].
[46] Bird v DP at [71].
[47] The appellant had agreed to pay DP’s costs of and incidental to the special leave application and the appeal, see [71].
[48] Bird v DP at [85]-[86].
[49] Bird v DP at [176].
[50] Bird v DP at [182].
[51] Bird v DP at [182].
[52] Bird v DP at [183].
[53] Bird v DP at [184]-[185], per Jagot J.
[54] Bird v DP at [186], [257].
