by Professor Paula Giliker, University of Bristol Law School
The recent decision of the High Court of Australia (HCA) in Bird v DP [2024] HCA 41 creates a radical split between the treatment of vicarious liability in Australia and other common law states such as England and Wales and Canada. It is therefore a case worthy of consideration across the common law world. Its impact will be examined in this blog.
For clarity, vicarious liability is a rule of responsibility that holds the employer liable for the torts of its employees where there is:
- A relationship capable of giving rise to vicarious liability; and
- The tortfeasor commits a tort in the course of that relationship.
The problem in Bird was that the adult plaintiff (who had been sexually abused at the age of 5 by a priest during pastoral visits to his parents’ home) was unable to show that the priest was an employee or agent of the Roman Catholic Diocese. On this basis, the Church argued, the plaintiff could not establish a relationship giving rise to vicarious liability. As might be imagined, this is not a new argument given the significant number of claims brought against the Catholic Church in the light of evidence of wide-spread institutional sexual abuse. The UK Supreme Court in Various Claimants v The Catholic Child Welfare Society [2012] UKSC 56 (commonly known as CCWS) refused to allow the absence of an employment relationship to block a claim brought by 170 men making accusations of abuse by members of a religious order. The Court ruled that the relationship between the perpetrators and the religious order was so close as to be “akin” to that of employment. This would satisfy the first stage of the vicarious liability test. It later clarified in Cox v Ministry of Justice [2016] UKSC 10 that a relationship akin to employment would arise where “harm is wrongfully done by an individual who carries on activities as an integral part of the business activities carried on by a defendant and for its benefit”: [24]. The same position exists in Canada (John Doe v Bennett [2004] 1 SCR 436) and other common law states (see Gleeson J, Bird [73]).
While it can be argued that recognition of a relationship “akin to employment” is an inevitable step given the move away from traditional contracts of employment to more precarious working relationships (as seen in the Uber/Deliveroo litigation), undoubtedly it has proven beneficial to abuse survivors seeking to make religious organisations vicariously liable for the sexual abuse they have suffered.
Australia, however, has to date refused to accept that priests could be regarded as “employees” of the Church and rejected the “akin to employment” test. This led to calls for a change to the law to assist abuse victims and specific legislation such as the Civil Liability Amendment (Organisational Child Abuse Liability) Act 2018 (NSW) to assist such claims. The plurality in Bird, however, was not prepared to budge:
The common law of Australia, as repeatedly stated by this Court, has adhered to the rule that a relationship of employment is a necessary precursor to a finding of vicarious liability. In that context, a relationship of employment operates within a legal framework, defined by statute and by common law principles which inform the content and construction of a contract of employment: [45].
The Court makes it clear that it is drawing the outer limits of vicarious liability, with employment as a “threshold requirement”.
The plurality focused on the potential instability of any “akin to employment” test which it regarded as based on ideas of “enterprise risk”: [48]. The law, it stated, needs a clear and stable principle. Cases such as CCWS were dismissed as based on radically different starting principles and failing to draw a clear line between vicarious liability and distinct areas of law such as agency and non-delegable duties. This, in its view, had led to undesirable uncertainty in UK law and made the law too dependent on matters of policy. This is, indeed, a criticism that might have been made following the decision in Armes v Nottinghamshire CC [2017] UKSC 60, but the UK Supreme Court responded to such criticism in Various Claimants v Barclays Bank [2020] UKSC 13. Barclays may have convinced Gleeson J. that the “akin to employment” test was modest in scope, but not the plurality which argued that despite its apparent limiting intention, UK law still depends on contestable policy choices and the allocation of risk: [62]. The reassurances of Lord Burrows in BXB v Trustees of the Barry Congregation of Jehovah’s Witnesses [2023] UKSC 15, [58](ii) that “the ‘akin to employment’ expansion does not undermine the traditional position that there is no vicarious liability where the tortfeasor is a true independent contractor in relation to the defendant” made no impression on the Court save for Gleeson J. (dissenting on this point: [147], [151]).
The conclusion? “Reformulation of the law of vicarious liability is properly the province of the legislature”: [67].
Where does this leave victims of institutional sexual abuse in Australia?
Given the priest in Bird was deceased, the plaintiff had little option but to sue the Diocese. A claim for negligence was rejected at first instance; negligence in cases of non-recent abuse being extremely difficult to prove. This left the plaintiff with few options, of which establishing vicarious liability seemed the most obvious. In 2016 (Prince Alfred College v ADC [2016] HCA 37) the High Court had appeared to adopt a more generous approach in recognizing that sexual abuse could be regarded as taking place in the course of employment. Bird, however, essentially rules out vicarious liability as an option for victims of institutional abuse when the perpetrator worked as a volunteer or non-employee.
What can be done?
Given the scale of the institutional abuse problem, three options can be identified.
Option One: Establish a non-delegable duty or an agency relationship
The Victoria Court of Appeal in Bird had suggested that the stage 1 test could be satisfied if the worker was so closely tied with the enterprise of the employer that he or she was presented to the public as carrying out the work of, and representing, the employer. Without getting into a debate whether this is primary or secondary liability, such an argument was dismissed out of hand by the High Court. Primary liability could arise under true agency, that is, where the tortfeasor is the principal’s agent (properly so called), but this would not assist with a claim for vicarious liability: [31]-[35]; relying on Sweeney v Boylan Nominees [2006] HCA 19.
A non-delegable duty seems more promising. Australia has been willing to impose non-delegable duties to ensure reasonable care is taken towards those over whom the defendant has assumed particular responsibility. This includes employers, schools, and hospitals. Such an argument was not rejected in Bird but dismissed on the procedural ground that it had not been pleaded at first instance and the Diocese would be irremediably prejudiced if it were advanced for the first time on appeal to the High Court. This leaves it “in play”.
However, NSW v Lepore [2003] HCA 4 is authority that the non-delegable duty to ensure reasonable care is taken would not extend to intentional misconduct, such as sexual abuse. The HCA confirmed that Lepore remained an obstacle that would have to be overcome ([42]). No system, as yet, has taken the leap to finding that a failure to ensure reasonable care is taken includes both negligent and intentional harm. UK judge Lord Reed in Armes, [51] questioned whether this could be justified on principle or common sense, but such comments were obiter and non-binding. Bird indicates that while the non-delegable duty argument is possible, given Lepore, it would have to be argued up to HCA level for the court to consider a change of position. Jagot J.’s assertion that such a duty would be “incoherent and indeterminate” ([255]), while not necessarily the view of the other judges, does not inspire confidence. This makes it a costly and risky option and is likely to deter most plaintiffs. Post-Bird, plaintiffs have tried to argue non-delegable duties on the basis of negligence but inevitably faced insurmountable problems of establishing breach.
Option Two: Push for a more generous interpretation of “employee”
Gleeson J observed that the HCA in Hollis v Vabu [2001] HCA 44 had been minded to a more generous interpretation of “employee” adapted to contemporary Australian conditions. However, it is clear that the plurality in Bird favoured a narrow reading of Hollis. Applying Bird, the Victoria Supreme Court in December 2024 rejected an argument that the religious brother could be categorised as an employee by reason of his placement at the school with a range of duties, his description as staff in the College annuals, and his relationship with the College being subject to direction of the rector: [310]. What was needed was evidence of an intention to create a legally enforceable employment relationship.
Option Three: Push for legislation
The plurality’s position is clear:
In light of this Court having rejected, on more than one occasion over the last 25 years, both the starting point and the basis on which the Supreme Court of the United Kingdom extended the law of vicarious liability, the issue is squarely in the hands of the legislatures: [63]. (note the plural)
There has been some legislation in recent years, but notably, it has varied between States and Territories and is limited in scope. It was also prospective, i.e., can only assist future litigants. It offers no hope to survivors of non-recent institutional abuse, bar specific legislation across Australia that has made it easier for litigants to overcome limitation bars (see Gleeson J [76]). While survivors groups are currently pushing for legislation, it is more a question of desperation rather than design. It does seem, however, to have had some impact. The Sydney Morning Herald in late December 2024 reported that Attorneys-general offices will consider urgent legislative reform in the light of the Bird decision. It is to be hoped that legislation will follow and that it will be both consistent across Australia and retrospective to assist survivors of non-recent institutional sexual abuse.
Conclusion
To say Bird is disappointing is an understatement. It is devasting to survivors of non-recent institutional child sexual abuse where their abuser is not a traditional employee. It also seems to place doctrinal purity above a responsive law of tort capable of rectifying the wrongs of the past suffered by the most vulnerable in our societies. Its negative reading of UK law and its failure to engage with the changing nature of employment relationships, which often do not bear the imprimatur of a traditional contract of employment, leaves Australia at odds with most of the common law world. And abuse survivors looking for solutions outside the doctrine of vicarious liability. In the words of Gleeson J, “[t]his case is 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.”