Vicarious liability confined by the High Court

Bird v DP (a pseudonym) [2024] HCA 41 – the key takeaway

The High Court has clarified and limited the scope of vicarious liability in an important decision both for abuse claims and more generally. Vicarious liability is a legal principle that allows one person to be held accountable for the acts of another, most commonly in situations of employment.

Background

The Respondent (DP) claims that he was assaulted and sexually abused on two occasions in 1971 by Father Coffey (Fr Coffey), DP commenced proceedings against the bishop (Bird) of the Diocese in which Coffee operated in the Supreme Court of Victoria in 2020.

DP said that he suffered psychological injuries and alleged that the Diocese was directly liable for the assaults because of a failure to exercise reasonable care in its supervision and control of Fr Coffey. Further, it was claimed that the Diocese was vicariously liable for Fr Coffey’s actions because he was in a relationship “akin to employment”, relying on elements of control and authority amongst other things.

At first instance the claim in negligence failed but DP was successful in establishing vicarious liability. The decision was subsequently appealed by the Diocese to the Victorian Court of Appeal, the appeal was dismissed and special leave was granted for the Diocese to appeal to the High Court of Australia where the High Court held that the Diocese was not vicariously liable for the actions of Fr Coffey.

The High Court decision

The High Court decision clarified the basis for liability at common law, noting that primary liability can be established through two types of direct duty: duties to take reasonable care or a non-delegable duty of care.

The High Court could not consider whether a non-delegable duty existed as the issue had not been raised in the courts below. This leaves the law as stated in Lepore (2003) 212 CLR.

Non-delegable duties are direct duties owed to ensure that reasonable care is taken by the delegates of the Principal. The duty is more stringent than direct duties to take reasonable care. It is not sufficient for the Principal to take reasonable steps to make sure that reasonable care is taken, it must ensure that reasonable steps are in fact taken. This duty can only be imposed where there is a special relationship of care, supervision and control but it will not be imposed with respect to actions based on deliberate criminal conduct.

The majority of the High Court determined that vicarious liability can only be established in Australia if there is an employment relationship between the parties or a true agency relationship. It is no longer sufficient to establish vicarious liability based on a relationship that is “akin to employment” or independent contractual relationships.

Key takeaway

The decision will sound loudly in claims for historical sexual and physical abuse, particularly for religious organisations but also for victim survivors of abuse in other situations such as in home care. However, the case is of wide ambit and Plaintiffs’ may have difficulty establishing vicarious liability in other cases for personal injury where the wrongdoer, although working for the interests of the Defendant, is not an employee or true agent.