Bird v DP (a pseudonym)
[2024] HCA 41
•13 November 2024
HIGH COURT OF AUSTRALIA
GAGELER CJ,
GORDON, EDELMAN, STEWARD, GLEESON, JAGOT AND BEECH‑JONES JJBISHOP PAUL BERNARD BIRD APPELLANT
AND
DP (A PSEUDONYM) RESPONDENT
Bird v DP (a pseudonym)
[2024] HCA 41
Date of Hearing: 14 March 2024
Date of Judgment: 13 November 2024M82/2023
ORDER
1.Appeal allowed.
2.Set aside orders 2 and 5 of the Court of Appeal of the Supreme Court of Victoria made on 3 April 2023 and, in their place, order that:
(a)The appeal be allowed with costs; and
(b)The orders made by the Supreme Court of Victoria on 25 January 2022 and 28 February 2022 be set aside and, in their place, order that the proceeding be dismissed with costs.
3.The appellant pay the respondent's costs of and incidental to the application for special leave to appeal and the appeal to this Court.
On appeal from the Supreme Court of Victoria
Representation
B W Walker SC with A M Dinelli KC and A D James-Martin for the appellant (instructed by Colin Biggers & Paisley Lawyers)
D R Campbell SC with G J Boas, J A G McComish and E H R Kelly for the respondent (instructed by Ken Cush & Associates)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Bird v DP (a pseudonym)
Torts – Intentional torts – Vicarious liability – Where priest committed sexual abuse whilst carrying out pastoral duties as representative of Diocese – Where priest not agent or employee of Diocese – Whether Diocese vicariously liable for priest's sexual abuse – Whether vicarious liability extends beyond relationships of employment to relationships "akin to employment".
Appeals – Issue not raised at trial – Where respondent sought to rely on non-delegable duty – Where factual basis for duty not pleaded or tested at trial – Prejudice.
Words and phrases – "agency", "akin to employment", "course of employment", "negligence", "nominated defendant", "non-delegable duty", "prejudice", "representative", "scope of employment", "sexual abuse", "strict liability", "unincorporated association", "vicarious liability".
Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (Vic), ss 1, 5, 7.
GAGELER CJ, GORDON, EDELMAN, STEWARD AND BEECH-JONES JJ. In 1971, at the age of five, the respondent ("DP") was assaulted and sexually abused at his parents' home in Port Fairy on two separate occasions by Father Bryan Coffey (now deceased) ("Coffey"), a Catholic priest from St Patrick's, the local parish church. The church was, and is, within the Roman Catholic Diocese of Ballarat ("the Diocese").
In 2020, DP commenced proceedings in the Supreme Court of Victoria claiming damages for psychological injuries he had sustained as a result of the assaults committed by Coffey. DP alleged that the Diocese was vicariously liable for the actions of Coffey and, additionally, that it was liable in negligence by reason of the Diocese's (and the relevant Bishop's) failure to exercise reasonable care in its authority, supervision and control of the conduct of Coffey. As the Diocese is an unincorporated association and not a legal person, DP instituted the proceeding against the Diocese through the current Bishop of Ballarat, Paul Bird, who was the nominated defendant for the purpose of the proceeding, pursuant to s 7 of the Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (Vic) ("the Legal Identity Act").
The primary judge held the Diocese vicariously liable for the assaults, notwithstanding a finding that Coffey was not an employee of the Diocese and in the absence of a finding that the assaults occurred in the course of an agency relationship between Coffey and the Diocese. DP's claim that the Diocese was directly liable to him in negligence failed. The Diocese admitted that it owed a duty of care to DP in relation to the conduct of priests appointed to the parish in their dealings with parishioners and their families. The primary judge found that the relevant risk of harm was that Coffey in the course of his pastoral duties might assault a parishioner's child but did not accept that the Diocese knew or ought to have known of that risk prior to 1971 or during 1971. The primary judge held that the second condition of DP's case on negligence – foreseeability of risk – was not met and that the Diocese was therefore not liable for the breach of duty it owed to DP. DP did not appeal that finding. The primary judge assessed DP's damages in the sum of $230,000. The Court of Appeal unanimously dismissed the Diocese's appeal. The Diocese was granted special leave to appeal.
This appeal raises three issues:
(1)whether, under the common law of Australia, absent a relationship of employment between a wrongdoer and a defendant, vicarious liability applies – or should be extended – to a relationship which is not one of employment, a relationship sometimes described as akin to employment;[1]
(2)if the relationship between Coffey and the Diocese was one which gave rise to a relationship of vicarious liability, whether the Diocese was liable for Coffey's conduct; and
(3)whether this Court should consider DP's notice of contention that the Diocese is liable for breach of a non-delegable duty owed to DP.
[1]See, eg, Various Claimants v Catholic Child Welfare Society ("Christian Brothers") [2013] 2 AC 1 at 18 [47], citing E v English Province of Our Lady of Charity [2013] QB 722. See also Cox v Ministry of Justice [2016] AC 660 at 673 [32]; Armes v Nottinghamshire County Council [2018] AC 355 at 378-380 [59]-[64]; BXB v Trustees of the Barry Congregation of Jehovah's Witnesses [2024] AC 567 at 591-592 [68]-[69].
This is the first time this Court has been asked to consider whether, absent a relationship of employment between a wrongdoer and a defendant, a diocese or a bishop may be held vicariously liable for the unlawful actions of a priest who sexually abuses a child. That, in turn, raises the question whether a relationship of employment is a necessary precursor – or a threshold requirement – to a finding of vicarious liability. As will be explained, the position in Australia is that an employer may be vicariously liable for the acts of its employees, but there is no such liability for the acts of those who are not in an employment relationship but, instead, are, for example, independent contractors or in a relationship "akin to employment". There being no finding of a relationship of employment between the Diocese and Coffey, the appeal must be allowed. The second issue is not reached. DP's notice of contention fails at the threshold; it was not raised in the courts below.
Background
The primary judge considered DP's claim as raising two fundamental and closely inter-related questions. First, was the relationship between Coffey and the Diocese or the Bishop capable of giving rise to a finding of vicarious liability on the part of the Diocese for Coffey's conduct? Second, if there was a relationship that could give rise to vicarious liability, was the Diocese or the Bishop liable for Coffey's unlawful conduct, it being accepted that the assaults were unlawful and far outside Coffey's clerical role?
On the first question, the primary judge concluded that there was no binding decision in Australia that foreclosed the possibility that a diocese, or bishop, could be held vicariously liable for the actions (lawful or unlawful) of a priest appointed by a bishop. After considering the decisions of this Court in Hollis v Vabu Pty Ltd,[2] Sweeney v Boylan Nominees Pty Ltd[3] and Prince Alfred College Inc v ADC,[4] of the Supreme Court of Canada in Bazley v Curry,[5] and of the Supreme Court of the United Kingdom in Various Claimants v Catholic Child Welfare Society[6] ("Christian Brothers"), the primary judge rejected the Diocese's central proposition that vicarious liability is confined to a relationship of employment and, among other things, considered that this Court in Prince Alfred College did not endorse such a "confined theory".
[2](2001) 207 CLR 21.
[3](2006) 226 CLR 161.
[4](2016) 258 CLR 134.
[5][1999] 2 SCR 534.
[6][2013] 2 AC 1.
The primary judge said that the correct approach to the first stage of the vicarious liability analysis "ought not be limited by preconceived notions of agency or employment" but, rather, should be "directed to the totality of the relationship". The primary judge considered that, in this case, that required a "holistic and broad inquiry into the circumstances surrounding: the relationship between the Diocese and Coffey; the role of … the [then] parish priest (Father O'Dowd) and Coffey; Coffey's role within the Port Fairy Catholic community; and Coffey's relationship with DP and his family".
To that end, his Honour made findings about: (i) the relationship between Coffey and the Diocese; (ii) Coffey's role as an assistant parish priest in the Catholic community at Port Fairy; (iii) the control exercised by the Diocese or the Bishop over Coffey in his role as assistant parish priest; (iv) the centrality of Coffey's work to that of the Diocese and the Church's mission in Port Fairy; (v) the opportunity the Diocese provided to Coffey to abuse his power or authority; (vi) Coffey's relationship with DP and his family both generally and at the time of the assaults; (vii) the vulnerability of potential victims to the wrongful exercise of Coffey's authority; and (viii) the circumstances in which Coffey carried out the assaults on DP.
What follows is a summary of those findings, which were not challenged by the Diocese.
The relationship between Coffey and the Diocese
A diocese, through the person of the bishop of that diocese, appoints priests and assistant priests to parishes within that diocese. Coffey was ordained in July 1960. In 1966, Coffey was appointed by the then Bishop of Ballarat to St Patrick's parish church in Port Fairy as an assistant parish priest to the then parish priest. Coffey was engaged in this role at the time of the assaults in 1971. Coffey was not employed by the Diocese or engaged by the Diocese as an independent contractor. There was no finding that Coffey was an agent of the Diocese.
Control exercised by the Diocese or the Bishop over Coffey as assistant parish priest
The relationship between Coffey and the Diocese (through the Bishop of Ballarat) was governed by a strict set of normative rules – encapsulated in Canon Law – that each of them subscribed to. Those rules, although legally unenforceable, permitted the Bishop to exercise control over Coffey that was "at least as great as, if not greater than, that enjoyed by an employer".
The Bishop (and by him, the Diocese) exerted no direct control over Coffey's hours of work, his day-to-day tasks or his manner of carrying them out. Such activities were subject to the supervision and direction of the parish priest, who in turn reported to the Bishop. However, Coffey's assignment at St Patrick's parish church was "subject to the ultimate authority of the Diocese, as exercised by the Bishop, to remove any priest". In other words, "it was at the will of the Diocese that Coffey received and maintained the assignment for the entire period". The Diocese was found to have "ultimate control over the parameters of Coffey's appointment, namely the duration, the location, the general duties, the responsibility of supervision and the benefits provided to Coffey for accepting the assignment" at St Patrick's. The Diocese also provided for Coffey’s livelihood, accommodation, clerical garb and vestments.
Centrality of Coffey's work to the Diocese and the Church's mission in Port Fairy
Coffey's role was integrally interconnected with the fundamental work and function of the Diocese. The primary judge found that there was a "general or widely‑held expectation by the Port Fairy Catholic community" that "priests stood as representatives of the Church's values and must embody them always" and that "Coffey carried out the work of the Diocese 'in its place'". Coffey was described as "the servant of the Diocese" and as an "emanation" and "representative" of it. By virtue of his role as assistant parish priest, Coffey's work "comprised the 'very essence' of the public manifestation of the Diocese and the Church in Port Fairy" and he commanded the respect and trust of the local parishioners.
Coffey's role as assistant parish priest in the Catholic community at Port Fairy
As assistant parish priest, Coffey did the work of the Diocese in the parish and the Diocese did its work by and through him. The primary judge found that the "Diocese, through the Bishop, [had given] Coffey the imprimatur to undertake religious caring for the spiritual life of the Port Fairy flock". This included: conducting religious services in St Patrick's parish church, such as taking confessions and mass; teaching religious education at the local Catholic school, also St Patrick's; and providing pastoral guidance and support and spiritual guidance to parishioners, including through visits to parishioners' homes.
Opportunity the Diocese provided to Coffey to abuse his power or authority
Pastoral visits to parishioners' homes were "an integral part" of Coffey's role and enabled him to achieve a high degree of intimacy with parishioners and their families. The primary judge found that Coffey made a practice of visiting and interacting with parishioners at their homes at various times of day and establishing a relationship of intimacy with Catholic families within the Diocese, including joining families for dinner and providing advice and support to them on the personal issues they confronted. He also attended social functions of his parishioners.
The primary judge found that the provision of unsupervised pastoral care to families, including children, during such visits was "part and parcel of Coffey's role" and reflected the implicit trust of families in him as a priest of the Church whose teachings and ministry they devotedly adhered to. "It was this position, closely connected to his task as a provider of pastoral care, that Coffey was able to take advantage of, in committing his abuse of young boys, including DP." Coffey preyed on the vulnerability of young boys, whom he abused when separated from their parents.
Coffey's relationship to DP and his family
DP was born in Port Fairy in February 1966. He was raised in a strict Catholic family. DP and his family attended Mass at St Patrick's parish church every Sunday over which, as already mentioned, Coffey sometimes officiated. DP also attended St Patrick's primary school, where he was taught religious education by Coffey during his preparatory year in 1971. Both the primary school and the parish church were located close to DP's home.
As part of his pastoral role as assistant parish priest, Coffey regularly visited DP's family home. During these visits, Coffey counselled and mediated between DP's parents in respect of their matrimonial issues and also spent time, unsupervised, with DP in his bedroom. The primary judge found that "Coffey's role as the assistant parish priest and his affinity with DP's family placed him in a position of trust and authority vis-à-vis DP and his family" and "[i]t was in this position that he committed the assaults".
The circumstances in which Coffey assaulted DP
During two such visits to DP's parents' home in 1971, when DP was only five years old, Coffey assaulted and sexually abused DP. The first assault took place around March or April 1971, in the course of "a social gathering at the family home attended by Coffey" one evening. During the evening, DP became tired and Coffey offered to put DP to bed. Once alone in DP's bedroom, Coffey proceeded to sexually assault him. On 26 December 1971, the second assault occurred when Coffey was visiting DP's family home. DP took Coffey out to the backyard to show him a tent he had received for Christmas. Once inside the tent, Coffey sexually assaulted him.
Primary judge
The primary judge concluded that the Diocese was capable of being vicariously liable for Coffey's conduct by reason of: 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 within St Patrick's parish; Coffey's pastoral role in the Port Fairy Catholic community; and the relationship between DP, his family, Coffey and the Diocese, which was one of intimacy and imported trust in the authority of Christ's representative, personified by Coffey.
In relation to the second question – which turned on whether Coffey's role as a priest merely provided an opportunity for the wrongful act or whether it provided the occasion for that act – the primary judge concluded Coffey's role provided both the opportunity and the occasion. That conclusion was reached on the basis that Coffey's role as a 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 – just as Coffey had done with other boys. The primary judge also held that this position increased the risk of harm to DP; that Coffey misused and took advantage of his position as a confidant and pastor to DP's family and it was this that enabled Coffey to commit the unlawful assaults upon DP.
Court of Appeal
The Diocese's appeal to the Court of Appeal was dismissed. The Court unanimously upheld the primary judge's conclusion that the Diocese was vicariously liable for the two assaults committed by Coffey.
The Court of Appeal recognised that "[o]rdinarily, issues relating to vicarious liability arise in a context in which the particular tortfeasor has been engaged by the principal, against whom liability is asserted, to undertake a particular task or function" and, in such a case, there are two questions: (1) whether the tortfeasor was an employee, as distinct from an independent contractor, engaged by the principal; and (2) if so, whether, at the time the tort was committed, the employee was acting in the course of the employment of the principal.
In relation to the first question, the Court of Appeal rejected the Diocese's proposition that vicarious liability was confined to a relationship of employment. The Court of Appeal described the relationship between a diocese and a priest or assistant 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.
After referring to the observations of this Court in Hollis – that the modern doctrine relating to vicarious liability of an employer for the torts committed by an employee "was adopted not by way of an exercise in analytical jurisprudence but as a matter of policy"[7] and that "[a] fully satisfactory rationale for the imposition of vicarious liability in the employment relationship has been slow to appear in the case law"[8] – the Court of Appeal said "two important points" emerged from the case law. First, vicarious liability has been recognised as extending beyond an employment relationship to situations of true agency,[9] although the Court cautioned that the term "agent" was apt to be "misused". Second, there was a commonality of the factors that were central to the issue whether, in an appropriate case, the relationship is one to which the principle of vicarious liability might apply. By way of example, the Court of Appeal referred to the power of the principal to control the performance of the work by the tortfeasor, and the degree of integration of the tortfeasor in the business or work of the principal, such that the tortfeasor represented the business of the principal or was "an emanation of the principal", and, in doing so, conducted the business of the principal.
[7]Hollis (2001) 207 CLR 21 at 37 [34].
[8]Hollis (2001) 207 CLR 21 at 37 [35]. See also Sweeney (2006) 226 CLR 161 at 166 [11].
[9]Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41.
The Court of Appeal found that the primary judge was "correct to conclude that the relationship between Coffey, as assistant priest, and the Diocese, was one which ... would render the Diocese vicariously liable for any tort committed by Coffey in his role as an assistant priest within the Diocese". The Court rested that conclusion on the following features of the relationship between the Diocese and Coffey:
(1)the Diocese appointed Coffey to be assistant priest and had ultimate control over the parameters of his appointment including its duration, location, general duties, responsibility of supervision and benefits. The Church's Canon Law "permitted the Bishop to exercise control over Coffey that was at least as great as, if not greater than, that enjoyed by an employer";
(2)Coffey's work was not carried out independently of the Diocese but as its representative, such that Coffey's work was the public manifestation of the Diocese in Port Fairy;
(3)the Diocese provided for Coffey's livelihood, clerical garb and vestments, and clothed him with "an aura of charisma and authority"; and
(4)Coffey was "[i]n a real and relevant sense ... the servant of the Diocese, notwithstanding that he was not, in a strict legal sense, an employee of it".
On the question of liability – the second question – the Court concluded that the Diocese was vicariously liable for the two assaults committed by Coffey against DP on the basis that, among other things, Coffey in his role as assistant priest did in fact regularly visit the homes of parishioners and interact with their families and Coffey's role as assistant priest placed him in a position of trust and authority vis-à-vis DP and his family, and it was in this position that he committed the assaults.
As will be explained, 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. As will be explained, 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.
What is "vicarious liability"?
The expression "vicarious liability" has been used to describe different types of liability in different areas of the law.[10] It is therefore necessary, at the outset, to identify when the expression "vicarious liability" is capable of applying before turning to consider whether an employment relationship is a necessary precursor to such a finding.
[10]CCIG Investments Pty Ltd v Schokman (2023) 97 ALJR 551 at 561-562 [49]-[53], 565 [65], 567-568 [70]-[75]; 410 ALR 479 at 490‑491, 495-496, 497-499. See also Darling Island Stevedoring and Lighterage Co Ltd v Long (1957) 97 CLR 36 at 57, 60-61; The Commonwealth v Introvigne (1982) 150 CLR 258 at 260, 269, 271; New South Wales vLepore (2003) 212 CLR 511 at 591-592 [231]; Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2022) 275 CLR 165 ("CFMMEU") at 199 [82].
Agency
The first area of law where the expression "vicarious liability" has been used is where one person is, in a broad sense, an agent of another.[11] It is a form of primary liability where the acts of another 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 of the acts, or ratification of the acts by the defendant.[12] In other words, the acts were done with the defendant's "seal of ... approval", amounting to an acceptance of the acts as the defendant's own.[13] For this form of liability, based on vicarious acts or vicarious conduct, the expression "vicarious liability" is inapposite.[14] Thus, in contrast to true vicarious liability, it is not the liability, but the acts of the agent that are attributed to the principal.
[11]Schokman (2023) 97 ALJR 551 at 561 [50], 562-563 [55]-[58] and the authorities and materials cited; 410 ALR 479 at 490, 492‑493. See also Deatons Pty Ltd v Flew (1949) 79 CLR 370 at 380.
[12]Schokman (2023) 97 ALJR 551 at 562 [55]; 410 ALR 479 at 492, citing Morgans v Launchbury [1973] AC 127 at 135, 140, 144. See also Soblusky v Egan (1960) 103 CLR 215 at 231; Lepore (2003) 212 CLR 511 at 591-592 [231]; CFMMEU (2022) 275 CLR 165 at 199-200 [82].
[13]Schokman (2023) 97 ALJR 551 at 561 [50]; 410 ALR 479 at 490, citing Laski, "The Basis of Vicarious Liability" (1916) 26 Yale Law Journal 105 at 105, 107. See also (2023) 97 ALJR 551 at 562-563 [55]-[56]; 410 ALR 479 at 492.
[14]Schokman (2023) 97 ALJR 551 at 561 [50], 562-563 [55]-[58] and the authorities and materials cited; 410 ALR 479 at 490, 492-493. See also Lloyd v Grace, Smith & Co [1912] AC 716 at 724‑725, 728‑729, 738-740.
Two further points should be made about this particular use of the term vicarious liability. Words like "agent" and "representative" might begin an inquiry about the possible liability of a defendant for the actions of a wrongdoer, but they are not the end of the inquiry.[15] No wider proposition than that just stated has been adopted by this Court.[16] As the majority of this Court stated in Sweeney,[17] the previous decisions of this Court, including Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co of Australia Ltd,[18] Scott v Davis[19] and Hollis,[20] do not establish that A may be vicariously liable for the conduct of B if B does no more than "represent" A (in the loose sense of merely acting for the benefit or advantage of A) whether under the rubric of "representation" or "agency".[21]
[15]Sweeney (2006) 226 CLR 161 at 172 [29], citing Scott v Davis (2000) 204 CLR 333 at 423 [268]. cf CFMMEU (2022) 275 CLR 165 at 235 [184] and the authorities cited.
[16]See, eg, Sweeney (2006) 226 CLR 161 at 171 [26].
[17](2006) 226 CLR 161 at 172 [29].
[18](1931) 46 CLR 41 at 48-50.
[19](2000) 204 CLR 333 at 423 [268].
[20](2001) 207 CLR 21 at 40 [42], 42-45 [48]-[57].
[21]Sweeney (2006) 226 CLR 161 at 172 [29], citing Colonial Mutual Life (1931) 46 CLR 41 at 48-50, Scott (2000) 204 CLR 333 at 423 [268], and Hollis (2001) 207 CLR 21 at 40 [42], 42‑45 [48]-[57].
Colonial Mutual Life is instructive. The conclusion reached in that case was that the company that engaged an agent (albeit an independent contractor) to solicit for the creation of legal relationships between the company and others was liable for the slanders uttered in the course of soliciting proposals.[22] The agent's actions were "in right of the [c]ompany with its authority".[23] Liability was imposed because of "the combination of the engagement of the contractor as the agent of the principal to bring about legal relations between the principal and third parties, and the slander being uttered in the course of attempting to induce a third party to enter legal relations with the principal".[24] Put in different terms, the conclusion in Colonial Mutual Life "depend[ed] directly upon the identification of the independent contractor as the principal's agent (properly so called) and the recognition that the conduct of which complaint [was] made was conduct undertaken in the course of, and for the purpose of, executing that agency".[25] Contrary to the submissions of DP, the decision in Colonial Mutual Life does not justify the attribution of Coffey's conduct to the Diocese or the Bishop under the rubric of "vicarious liability".
[22]Colonial Mutual Life (1931) 46 CLR 41 at 46, 50; Sweeney (2006) 226 CLR 161 at 171 [24].
[23]Colonial Mutual Life (1931) 46 CLR 41 at 50.
[24]Sweeney (2006) 226 CLR 161 at 171 [24].
[25]Sweeney (2006) 226 CLR 161 at 170 [22].
Nor do the decisions of this Court in Soblusky v Egan[26] or Scott[27] provide any basis for a conclusion that Coffey's conduct could be attributed to the Diocese or the Bishop through the rules of agency which were at the heart of the reasoning in those cases.[28] In Soblusky, this Court held that responsibility, by attribution of conduct, arose for one party who was "driving by his agent" in the sense that "management of the vehicle is done by the hands of another and is in fact and law subject to direction and control".[29] In Scott, a majority of this Court held that the facts did not establish a relationship of agency by which the conduct of a pilot who took an aeroplane on a joyride could be attributed to the owner of the aeroplane, where the owner did not retain direction or control of the aeroplane.[30]
[26](1960) 103 CLR 215.
[27](2000) 204 CLR 333.
[28]See also Schokman (2023) 97 ALJR 551 at 563 [56]; 410 ALR 479 at 492. cf Scott (2000) 204 CLR 333 at 385 [159], 437‑438 [305]-[306].
[29](1960) 103 CLR 215 at 231.
[30](2000) 204 CLR 333 at 341-342 [16], 415-416 [244], 440 [311], 459-460 [357]-[358].
Although DP expressly pleaded that Coffey was the agent of the Diocese, there was no finding that Coffey was the true agent of the Diocese in the sense described above. That is unsurprising. The unlawful acts done by Coffey were not done (and could not have been done) as the "true agent"[31] of the Diocese; they were not done with the Diocese's, or the then Bishop's, express, implied or apparent authorisation, and at no time were those acts ratified by them.
[31]Colonial Mutual Life (1931) 46 CLR 41 at 50.
Non‑delegable duty
The second area of law in which the expression "vicarious liability" has been used, but where its use is also inapposite, is liability imposed on a defendant for breach of a "non‑delegable duty". A "non‑delegable" or "personal" duty of care is "a duty ... of a special and 'more stringent' kind".[32] It is not merely a duty to take care, but a "duty to ensure that reasonable care is taken";[33] to "ensure that the duty is carried out";[34] or to "procur[e] the careful performance of work [assigned] to others".[35] Liability for breach of a non-delegable duty is therefore direct – not vicarious.[36]
[32]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. See also 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].
[33]Kondis (1984) 154 CLR 672 at 686 (emphasis added). See also Introvigne (1982) 150 CLR 258 at 270-271; Burnie Port Authority (1994) 179 CLR 520 at 550; Lepore (2003) 212 CLR 511 at 551-552 [101], 598 [254].
[34]Lepore (2003) 212 CLR 511 at 565 [144].
[35]Woodland v Swimming Teachers Association [2014] AC 537 at 573 [5].
[36]Introvigne (1982) 150 CLR 258 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. See also Lepore (2003) 212 CLR 511 at 562 [136].
Such duties of care have been recognised as arising out of relationships of employer and employee;[37] school and pupil;[38] hospital and patient.[39] That list is not exhaustive. 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, rather than merely to take reasonable care. For example, where the defendant has "undertaken the care, supervision or control of the person or property of another or is so placed in relation to that person or [their] property as to assume a particular responsibility for [their] or its safety, in circumstances where the person affected might reasonably expect that due care will be exercised".[40] A "core instance" of a non‑delegable duty at common law is the duty that an employer usually owes to employees to provide a safe system of work.[41] Under that non-delegable duty, the employer is liable for any negligence on the part of its independent contractor or employee in failing to adopt a safe system of work.[42]
[37]See, eg, Kondis (1984) 154 CLR 672.
[38]See, eg, Introvigne (1982) 150 CLR 258.
[39]See, eg, Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542 at 561-562 [59]; Introvigne (1982) 150 CLR 258 at 270, 275; Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at 601-604.
[40]Lepore (2003) 212 CLR 511 at 533-534 [35], quoting Kondis (1984) 154 CLR 672 at 687. See also, eg, Burnie Port Authority (1994) 179 CLR 520 at 550-551; Schokman (2023) 97 ALJR 551 at 567 [70]; 410 ALR 479 at 497-498.
[41]Schokman (2023) 97 ALJR 551at 567 [70]; 410 ALR 479 at 497-498, citing Kondis (1984) 154 CLR 672 at 688.
[42]Kondis (1984) 154 CLR 672 at 688.
Notice of contention and non-delegable duty
By a notice of contention, DP sought to have this Court affirm the decision of the Court of Appeal on the basis that the Diocese, through the Bishop, is liable to DP for breach of a non‑delegable duty owed to DP to protect him from the risk of sexual abuse by its priests, including Coffey, in the course of Coffey's functions and duties as a priest and as a representative, servant or agent of the Diocese. The Bishop submitted that the Diocese would be irremediably prejudiced by a non‑delegable duty being advanced on appeal in this Court for the first time. That submission should be accepted. The notice of contention cannot be entertained.
As a general rule, all substantial issues between parties should be settled at trial and new issues should not be raised on appeal.[43] That rule, however, is not absolute.[44] A party will generally be refused permission to rely on a point not taken below, among other grounds, where a party seeks to raise a case which did not arise on the pleadings;[45] where if the issue had been raised at the trial, it might have been the subject of evidence;[46] or where the issue requires a fresh consideration of facts that are neither admitted nor beyond controversy.[47] A party may be permitted to rely upon a point not taken below, however, if the other party concedes that its case would not have been presented differently if the point had been taken below.[48]
[43]Coulton v Holcombe (1986) 162 CLR 1 at 7-8. See also Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438; D'Orta‑Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 at 17-18 [34]-[36]; Burrell v The Queen (2008) 238 CLR 218 at 223 [15]-[16].
[44]Coulton (1986) 162 CLR 1 at 8-9, quoting O'Brien v Komesaroff (1982) 150 CLR 310 at 319. See also Suttor (1950) 81 CLR 418 at 438; Water Board v Moustakas (1988) 180 CLR 491 at 497; Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317 at 365-366 [151].
[45]See, eg, Saffron v Société Minière Cafrika (1958) 100 CLR 231 at 240.
[46]See, eg, Suttor (1950) 81 CLR 418 at 438; Coulton (1986) 162 CLR 1 at 7-8; Moustakas (1988) 180 CLR 491 at 497; Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598 at 1608 [51]; 200 ALR 447 at 461.
[47]Coulton (1986) 162 CLR 1 at 8, quoting Komesaroff (1982) 150 CLR 310 at 319.
[48]See, eg, R & R Fazzolari Pty Ltd v Parramatta City Council (2009) 237 CLR 603 at 634 [108].
The imposition of a non‑delegable duty on the Diocese was not raised in the courts below. It was not raised on the pleadings or addressed in the evidence.[49] There were only two issues at trial – vicarious liability and negligence. The second issue – that the Diocese was liable in negligence by reason of the Diocese's (and the relevant Bishop's) failure to exercise reasonable care in its authority, supervision and control of the conduct of Coffey – failed at trial. DP did not appeal that finding.[50]
[49]Suttor (1950) 81 CLR 418 at 438, quoting Grey v Manitoba and North Western Railway Co of Canada [1897] AC 254 at 267.
[50]See [3] above.
The nature and content of the particular duty and responsibility allegedly owed to DP as a non‑delegable duty as set out in the notice of contention was not identified or pleaded at trial. For example, there was no pleading about, and the evidence did not address, whether there was an element in the relationship between the Bishop, or the Diocese, and DP from which it could be inferred that they had assumed a special responsibility or higher duty to ensure that reasonable care was taken for the safety of DP in one or more of several circumstances, including in DP's parents' home, because the Bishop or the Diocese had undertaken the care, supervision or control of DP, or were so placed in relation to DP as to assume a particular responsibility for his safety in circumstances where DP might reasonably expect that due care would be exercised by them.[51] Put in different terms, the factual inquiry for a non‑delegable duty, a breach of which gives rise to direct liability, can be and often is different from the inquiries that were pursued in respect of the issues argued at trial in this matter.
[51]See, eg, Lepore (2003) 212 CLR 511 at 533-534 [35], quoting Kondis (1984) 154 CLR 672 at 687. See also Burnie Port Authority (1994) 179 CLR 520 at 550-551; Schokman (2023) 97 ALJR 551 at 567 [70]; 410 ALR 479 at 497-498.
The significance of the fact that the particular nature and content of the non-delegable duty allegedly owed to DP as set out in the notice of contention was not identified or pleaded at trial, or addressed during the course of the trial, is reinforced by two further considerations. First, the notice of contention might require this Court to reopen and overrule this Court's decision in Lepore that a non‑delegable duty cannot arise for an action based upon intentional wrongs by delegates[52] in circumstances where the facts have not been pleaded or tested. At the very least, the notice of contention would require this Court to consider the existence of any non-delegable duty to ensure that care is taken in circumstances of intentional wrongdoing.[53] Again, the factual basis for such a duty was not pleaded or tested. Second, during the course of oral submissions, the nature and content of the non‑delegable duty propounded by DP was stated in less precise and arguably broader terms.
[52]Lepore (2003) 212 CLR 511 at 533 [34], 535 [38], 601 [265], 624 [339].
[53]Lepore (2003) 212 CLR 511 at 572 [162]. See also Williams v Milotin (1957) 97 CLR 465 at 474; Gray v Motor Accident Commission (1998) 196 CLR 1 at 9-10 [22]; Australian Securities and Investments Commission v Cassimatis [No 8] (2016) 336 ALR 209 at 306 [504]-[505].
This Court is confined to deciding the issues which the courts below were invited by DP to decide and which remain in dispute in this Court. The notice of contention must be dismissed.
Vicarious liability
The third area of law where the expression vicarious liability has been used, and where its use is apposite, involves cases of secondary liability based on attribution of liability, not attribution of the acts, of a wrongdoer to a defendant. This is vicarious liability in its true or proper sense – liability based on the attribution of the liability of another.[54] As is self-evident, vicarious liability is a form of strict liability, whereby a defendant is held liable for the wrongs of another, despite the defendant being free of fault.[55]
[54]Schokman (2023) 97 ALJR 551 at 561-562 [51]; 410 ALR 479 at 491. See also Darling Island Stevedoring (1957) 97 CLR 36 at 57.
[55]Prince Alfred College (2016) 258 CLR 134 at 148 [39]. See also Sappideen and Vines (eds), Fleming's The Law of Torts, 11th ed (2024) at 493 [17.10].
The common law of Australia, as repeatedly stated by this Court,[56] 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[57] and by common law principles which inform the content and construction of a contract of employment.[58]
[56]Schokman (2023) 97 ALJR 551 at 555-556 [12]-[14], 565 [64]‑[66]; 410 ALR 479 at 482-483, 495-496. See also Burnie Port Authority (1994) 179 CLR 520 at 575; Scott (2000) 204 CLR 333 at 380 [139], 436 [301]; Hollis (2001) 207 CLR 21 at 36 [32]; Lepore (2003) 212 CLR 511 at 535 [40], 580‑581 [196]-[197]; Sweeney (2006) 226 CLR 161 at 167 [12], 173 [33]; Prince Alfred College (2016) 258 CLR 134 at 148 [39]-[40], 149-150 [45], [49]; CFMMEU (2022) 275 CLR 165 at 199-200 [82], 239 [191].
[57]See, eg, CFMMEU (2022) 275 CLR 165 at 225 [161].
[58]WorkPac Pty Ltd v Rossato (2021) 271 CLR 456 at 477 [56]‑[58], 478-479 [62]; CFMMEU (2022) 275 CLR 165 at 226 [162], 228 [172].
In Australia, an employer may be liable for the acts of its employees, but there is no vicarious liability, in the sense it is now being discussed, for the acts of those not in a relationship of employment, namely acts of third parties outside of that context. If the act complained of is not that of an employee, then the defendant is not, without more, liable.[59] Most recently, in CCIG Investments Pty Ltd v Schokman[60] – decided after the Court of Appeal handed down the decision the subject of this appeal – this Court restated that the "just limits",[61] or "essential requirement",[62] for this form of secondary or attributed liability, sometimes described as a rule of law,[63] are "marked out" by the rule that the employee's wrongful act – for which liability is attributed to the employer – "must be committed in the course or scope of the employment".[64] The relevant inquiry is, therefore, twofold:[65] whether the alleged tortfeasor was an employee of the defendant,[66] and then the separate question whether the relevant act or omission of the alleged employee took place in the course or scope of that employment.[67]
[59]See, eg, a non-delegable duty and statutory duties such as s 91 of the Wrongs Act 1958 (Vic).
[60](2023) 97 ALJR 551 at 555-556 [12]-[14], 565 [64]; 410 ALR 479 at 482-483, 495. See also Lepore (2003) 212 CLR 511 at 535 [40], 582 [202], 588 [221], 594 [242]; Sweeney (2006) 226 CLR 161 at 167 [12], 171 [23], citing Pollock, Essays in Jurisprudence and Ethics (1882) at 126; Prince Alfred College (2016) 258 CLR 134 at 159-160 [80]‑[81]; CFMMEU (2022) 275 CLR 165 at 239 [191].
[61]Schokman (2023) 97 ALJR 551 at 555 [13], 565 [64]; 410 ALR 479 at 482, 495.
[62]Schokman (2023) 97 ALJR 551 at 555 [12]; 410 ALR 479 at 482, citing Prince Alfred College (2016) 258 CLR 134 at 148-149 [40]-[41].
[63]Schokman (2023) 97 ALJR 551 at 555 [12]; 410 ALR 479 at 482, citing Bugge v Brown (1919) 26 CLR 110 at 117.
[64]Schokman (2023) 97 ALJR 551 at 555 [13], 565 [64]; 410 ALR 479 at 482-483, 495.
[65]CFMMEU (2022) 275 CLR 165 at 239 [191].
[66]Sweeney (2006) 226 CLR 161 at 167 [12]; see also 171 [23]. See, eg, Hollis (2001) 207 CLR 21 at 41-46 [46]-[60].
[67]See, eg, Deatons (1949) 79 CLR 370 at 379‑382, 383, 386; Prince Alfred College (2016) 258 CLR 134 at 149 [41]-[42], 159-160 [80]-[81]; Schokman (2023) 97 ALJR 551 at 556-559 [14]-[34]; 410 ALR 479 at 483-487. See also Colonial Mutual Life (1931) 46 CLR 41 at 49.
The issue is whether, in undertaking the first step of that inquiry, the Court should now expand the boundaries of vicarious liability beyond a relationship of employment to one that is "akin to employment". Contrary to the decisions of the courts below and the submissions of DP, the answer is no.
Vicarious liability has had a tortured history not only in this Court[68] but also in other jurisdictions.[69] So, for example, more than 20 years ago, in Hollis,[70] this Court observed that the modern doctrine relating to vicarious liability of an employer for the torts committed by an employee "was adopted not by way of an exercise in analytical jurisprudence but as a matter of policy"[71] and that "[a] fully satisfactory rationale for the imposition of vicarious liability in the employment relationship" has proven to be quite elusive.[72] Since then, this Court has, more than once, repeated those concerns describing vicarious liability as, among other things, an "unstable principle",[73] for which a "coherent basis"[74] and "fully satisfactory rationale" for its imposition have been "slow to appear in the case law".[75] Part of the difficulty may have been the use of the expression "vicarious liability" to describe three different concepts. But even with vicarious liability in its true or proper sense – liability based on the attribution of the liability of another – this Court has not accepted an overarching theory based on "enterprise risk" beyond any employment relationship.[76] Whether or not true vicarious liability can be explained by any theory based on a relationship of employment,[77] a relationship of employment has always been a necessary precursor in this country 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 the employment.[78] There is no solid foundation for expansion of the doctrine or for its bounds to be redrawn.
[68]Prince Alfred College (2016) 258 CLR 134 at 148 [38]‑[39], 149 [41], [44], 150 [46]. See also Darling Island Stevedoring (1957) 97 CLR 36 at 56-57; Scott (2000) 204 CLR 333 at 424 [277]; Hollis (2001) 207 CLR 21 at 37 [35]; Lepore (2003) 212 CLR 511 at 580 [196]; Sweeney (2006) 226 CLR 161 at 166-167 [11]; Schokman (2023) 97 ALJR 551 at 561‑562 [48]-[53], 566 [69]; 410 ALR 479 at 490-491, 497.
[69]See, eg, Bazley [1999] 2 SCR 534 at 543-545 [10]-[14], [16]; Jacobi v Griffiths [1999] 2 SCR 570 at 581 [11]. See also Lister v Hesley Hall Ltd [2002] 1 AC 215 at 223-224 [15], 226 [20], 231-232 [34]-[35]; English Province of Our Lady of Charity [2013] QB 722 at 728-731 [12]-[25]; Christian Brothers [2013] 2 AC 1 at 11 [19]; Various Claimants v Barclays Bank plc [2020] AC 973 at 981-987; BXB [2024] AC 567 at 572-573 [2]‑[3].
[70](2001) 207 CLR 21.
[71]Hollis (2001) 207 CLR 21 at 37 [34], citing Darling Island Stevedoring (1957) 97 CLR 36 at 56-57. See also Lepore (2003) 212 CLR 511 at 580 [196]; Sweeney (2006) 226 CLR 161 at 166-167 [11]; Schokman (2023) 97 ALJR 551 at 566‑567 [69]; 410 ALR 479 at 497.
[72]Hollis (2001) 207 CLR 21 at 37 [35]. See also Lepore (2003) 212 CLR 511 at 580 [196]; Sweeney (2006) 226 CLR 161 at 166-167 [11]; Prince Alfred College (2016) 258 CLR 134 at 149 [44], 150 [46]; Bird v DP (a pseudonym) (2023) 69 VR 408 at 428 [81].
[73]Prince Alfred College (2016) 258 CLR 134 at 148 [39]. See also Sweeney (2006) 226 CLR 161 at 166-167 [11].
[74]Prince Alfred College (2016) 258 CLR 134 at 148 [39].
[75]Prince Alfred College (2016) 258 CLR 134 at 148 [39], quoting Hollis (2001) 207 CLR 21 at 37 [35]; see also 149-150 [44]-[46]. See also Sweeney (2006) 226 CLR 161 at 166-167 [11]; Schokman (2023) 97 ALJR 551 at 561 [48], 566 [69]; 410 ALR 479 at 490, 497. See also Rolph et al, Balkin & Davis Law of Torts, 6th ed (2021), ch 26 at 861-862 [26.1].
[76]Prince Alfred College (2016) 258 CLR 134 at 153 [59], 158 [74]; Schokman (2023) 97 ALJR 551 at 555-556 [13]; 410 ALR 479 at 482-483. See also Stevens, Torts and Rights (2007) at 258-259.
[77]See Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161 at 167 [12], referring to Neyers, "A Theory of Vicarious Liability" (2005) 43 Alberta Law Review 287.
[78]Schokman (2023) 97 ALJR 551 at 555 [13], 565 [64]; 410 ALR 479 at 482-483, 495.
Over the last 25 years, this Court has repeatedly refused to extend the boundaries to include independent contractors[79] or to extend the doctrine by reference to policy considerations as the sole or determinative basis for developing the principle. For this Court to do so now would require the Court to revisit and overrule Hollis[80] and Sweeney[81] and at least aspects of Scott[82] and Lepore.[83]
[79]See, eg, Scott (2000) 204 CLR 333 at 342 [18], 343 [20], 422‑424 [268]-[273], [276]-[277], 440 [311], 459‑460 [357]-[358]; Hollis (2001) 207 CLR 21 at 36 [32]; Sweeney (2006) 226 CLR 161 at 171 [26], 172 [29]; Schokman (2023) 97 ALJR 551 at 562 [51]; 410 ALR 479 at 491.
[80](2001) 207 CLR 21.
[81](2006) 226 CLR 161. See [63] below.
[82](2000) 204 CLR 333.
[83](2003) 212 CLR 511.
The redrawing of the boundaries in Canada and the United Kingdom of the relationships between a tortfeasor and one who may be liable for the conduct of the tortfeasor under the rubric of "vicarious liability" has previously been rejected by this Court on a number of occasions at a level of principle. Moreover, subsequent history has also shown that the expansion adopted by those countries has not been without difficulty.
That redrawing arguably started with the 1999 decision of the Supreme Court of Canada in Bazley which held that an employer could be vicariously liable for sexual assaults committed by an employee.[84] That case focussed on whether there was a material increase in the risk of harm as a consequence of the employer's enterprise and duties entrusted to the employee. The imposition of liability on the employer in such circumstances was said to be justified by two policy considerations:[85] first, that the employer carried on an enterprise which carried risks (and that employer should be liable if the risks materialised);[86] and second, deterrence of future harm, including that holding the employer responsible would encourage the employer to take greater care when deciding who to employ.[87]
[84][1999] 2 SCR 534 at 567-568 [57]-[58].
[85]Bazley [1999] 2 SCR 534 at 555 [35].
[86]Bazley [1999] 2 SCR 534 at 546-547 [19], 548-549 [22], 553 [30], 554 [31].
[87]Bazley [1999] 2 SCR 534 at 554-555 [32]. See also John Doe v Bennett [2004] 1 SCR 436 at 445-446 [20].
Then, in 2002, a decision of the House of Lords in Lister v Hesley Hall Ltd,[88] another employment case in which an employer was found vicariously liable for its employee warden's sexual assaults, went further. The previous Canadian decisions (including Bazley) were very influential.[89] The approach focussed on the "relative closeness of the connection between the nature of the employment and the particular tort"[90] – the degree of connection between the conduct and the employment – which was to be shown to warrant finding vicarious responsibility.[91] Specifically, the question was whether there was a "sufficient connection" between the abuse and the work the warden was employed to do;[92] or such a connection of the unlawful acts with the duties of the employee that they fell within the scope of the employment duties.[93] Even so, there were some significant differences in the reasons given by the members about how that focus on connection should be understood to be related to the United Kingdom's existing understanding of vicarious liability.[94] For example, Lord Steyn described the case of Morris v C W Martin & Sons Ltd[95] as a "classic example of vicarious liability for intentional wrongdoing" and as "high authority on the principles of vicarious liability".[96] But that case, properly understood, involved a breach of a personal, non‑delegable duty owed by the sub-bailee to the bailor of goods.[97] What was said in Lister conflated the two species of liability.[98] As stated earlier, breach of a non-delegable duty is not a species of vicarious liability but, rather, is a form of direct liability.
[88][2002] 1 AC 215.
[89]Lister [2002] 1 AC 215 at 222-223 [10], 229 [23], 230 [27], 237 [48].
[90][2002] 1 AC 215 at 229, 238.
[91]Lister [2002] 1 AC 215 at 223-224 [15], 226-227 [20], 229‑230 [24]-[25], 230 [28], 232 [37], 245 [69]-[70].
[92]Lister [2002] 1 AC 215 at 237.
[93][2002] 1 AC 215 at 229, 238.
[94]See, eg, Lister [2002] 1 AC 215 at 223-224 [15], 226‑227 [20], 230 [27]-[28], 232-233 [36]-[38], 237 [48], 241 [59], 250 [82]-[83].
[95][1966] 1 QB 716.
[96]Lister [2002] 1 AC 215 at 225‑226 [19]. See also Schokman (2023) 97 ALJR 551 at 567-568 [71]-[76]; 410 ALR 479 at 498-500.
[97]Morris [1966] 1 QB 716 at 725, 728, 736-738.
[98]See [36] above.
Five Justices of this Court in Prince AlfredCollege stated that principles of vicarious liability such as those stated in Bazley in Canada and Lister in the United Kingdom "do not reflect the current state of the law in Australia".[99] That approach was not new. This Court took an important turn in 2003 in Lepore[100] when it rejected the vicarious liability reasoning in Bazley and in Lister.
[99](2016) 258 CLR 134 at 149-150 [45].
[100]Lepore (2003) 212 CLR 511 at 584-586 [210]-[213] and 587 [218].
Something must then be said of later decisions of the United Kingdom on which much emphasis was placed by the courts below and by DP. These decisions built on the approaches to vicarious liability in Bazley and Lister which this Court had rejected. It is appropriate to start with the decision of the Supreme Court of the United Kingdom in 2012 in Christian Brothers.[101] That case concerned the liability of a lay Roman Catholic order – the Brothers of the Christian Schools ("the Institute") – for sexual and physical abuse perpetrated by teachers against pupils at a residential institution for boys in need of care.[102] The teachers were lay brothers of the Roman Catholic Church and, although members of the Institute, were not bound by contract to the Institute but by vows each had taken.[103] The Institute was an unincorporated association whose mission was to provide Christian education to children.[104] The question on appeal was whether the relationship between the Institute and the teachers attracted the principles of vicarious liability.[105]
[101][2013] 2 AC 1.
[102]Christian Brothers [2013] 2 AC 1 at 7-8 [1]-[4].
[103]Christian Brothers [2013] 2 AC 1 at 20 [57].
[104]Christian Brothers [2013] 2 AC 1 at 20 [59].
[105]Christian Brothers [2013] 2 AC 1 at 8 [2].
Lord Phillips of Worth Matravers, for the Supreme Court of the United Kingdom, opened his analysis by observing that "[t]he law of vicarious liability is on the move".[106] It is important to understand, however, that this "movement" in the law of vicarious liability in England emerged from a radically different set of starting principles, which were not the law in Australia. The point is best illustrated by looking at what Lord Phillips described as the established propositions underpinning the law of vicarious liability in England:[107] (i) it is possible for an unincorporated association to be vicariously liable for the tortious acts of one or more of its members; (ii) D2 may be vicariously liable for the tortious act of D1 even though the act in question constitutes a violation of the duty owed to D2 by D1 and even if the act in question is a criminal offence; (iii) vicarious liability can even extend to liability for a criminal act of sexual assault; and (iv) it is possible for two different defendants, D2 and D3, each to be vicariously liable for the single tortious act of D1.[108]
[106]Christian Brothers [2013] 2 AC 1 at 11 [19].
[107]Christian Brothers [2013] 2 AC 1 at 11 [20].
[108]Christian Brothers [2013] 2 AC 1 at 11-12 [20].
Proposition (i) did not then, and does not now, reflect the law in Australia.[109] Proposition (iii) is in tension with the requirement that the acts must be committed in the course of employment.[110] Another way of analysing the propositions is that the Court included under the general rubric of "vicarious liability" the areas of "agency" and "non-delegable duty" when, as has been explained, those areas of law are distinct and should not be shoe-horned into a single doctrine of vicarious liability but kept separate.
[109]See, eg, Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Ellis (2007) 70 NSWLR 565 at 577 [52].
[110]See Lepore (2003) 212 CLR 511 at 594 [240]; cf 544 [67].
It was these propositions, unchallenged in that Court, that led Lord Phillips to state that it had become "more difficult to identify the criteria that must be demonstrated to establish vicarious liability than it was 50 years ago".[111] It was in that context that although the two‑stage inquiry remained, the principle was expanded beyond a relationship of employment so that, in some circumstances, a relationship that is "akin to employment" will be sufficient to impose vicarious liability.
[111]Christian Brothers [2013] 2 AC 1 at 12 [21].
Decided as a preliminary issue, the Supreme Court held that the Institute was capable of being held vicariously liable on that extended basis for the sexual and other abuse alleged to have been committed by the brother teachers at the residential institution. The factors which led the Supreme Court to conclude that the relationship between the Institute and the brother teachers was "sufficiently akin" to employment[112] as to warrant the imposition of vicarious liability were that: "(i) The institute was subdivided into a hierarchical structure and conducted its activities as if it were a corporate body. (ii) The teaching activity of the brothers was undertaken because the provincial directed the brothers to undertake it. ... (iii) The teaching activity undertaken by the brothers was in furtherance of the objective, or mission, of the institute. (iv) The manner in which the brother teachers were obliged to conduct themselves as teachers was dictated by the institute's rules."[113]
[112]Christian Brothers [2013] 2 AC 1 at 20 [60].
[113]Christian Brothers [2013] 2 AC 1 at 20 [56].
The Supreme Court justified its adoption of the test of "akin to employment" on the grounds that the policy objective underlying vicarious liability is "to ensure, in so far as it is fair, just and reasonable, that liability for tortious wrong is borne by a defendant with the means to compensate the victim".[114] The Court stated that it was for "the court to identify the policy reasons why it is fair, just and reasonable to impose vicarious liability and to lay down the criteria that must be shown to be satisfied in order to establish vicarious liability".[115] The policy reasons for the overarching test – that usually made it "fair, just and reasonable" to impose vicarious liability on an employer – were stated to be:[116] "(i) the employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability; (ii) the tort will have been committed as a result of activity being taken by the employee on behalf of the employer; (iii) the employee's activity is likely to be part of the business activity of the employer; (iv) the employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee; (v) the employee will, to a greater or lesser degree, have been under the control of the employer".[117] It followed, in the Court's view, that "[w]here the defendant and the tortfeasor are not bound by a contract of employment, but their relationship has the same [five] incidents, that relationship can properly give rise to vicarious liability on the ground that it is 'akin to that between an employer and an employee'".[118]
[114]Christian Brothers [2013] 2 AC 1 at 15 [34] (emphasis added).
[115]Christian Brothers [2013] 2 AC 1 at 15 [34].
[116]Christian Brothers [2013] 2 AC 1 at 15 [35].
[117]Christian Brothers [2013] 2 AC 1 at 15 [35]. cf Cox [2016] AC 660 at 669 [20]-[21].
[118]Christian Brothers [2013] 2 AC 1 at 18 [47].
The decision at the time contributed to, and provoked, discussion and debate about whether departing from the classical paradigm of employer-employee would introduce too much uncertainty.[119] History showed those concerns were not unfounded. Less than four years later, the primacy of the five incidents enunciated in Christian Brothers became less clear.[120] The enduring relevance of the distinction between employee and independent contractor as a relevant touchstone of vicarious liability in England was then also open to doubt.[121] In later cases in the United Kingdom, the question became whether "the relationship between the defendant and the tortfeasor has particular characteristics justifying the imposition of [vicarious] liability".[122] Some of the subsequent cases and the resulting imposition of liability for the acts of a tortfeasor in circumstances deemed "akin to employment" have been described as "difficult"[123] and subject to criticism.[124] These have included the vicarious liability of a prison service for injuries caused to a prison catering manager by the negligence of a prisoner,[125] and the liability of a council for physical and sexual abuse allegedly carried out by two foster parents.[126]
[119]See, eg, Morgan, "Case and comment – Revising vicarious liability: a commercial perspective" [2012] Lloyd's Maritime and Commercial Law Quarterly 175; Morgan, "Recasting Vicarious Liability" (2012) 71 Cambridge Law Journal 615; O’Sullivan, "Case and Comment – The Sins of the Father: Vicarious Liability Extended" (2012) 71 Cambridge Law Journal 485; Tan, "A sufficiently close relationship akin to employment" (2013) 129 Law Quarterly Review 30.
[120]Cox [2016] AC 660 at 669 [20]-[21].
[121]See, eg, Armes [2018] AC 355. See also Barclays Bank plc v Various Claimants [2018] EWCA Civ 1670 at [61].
[122]Armes [2018] AC 355 at 376 [54].
[123]See, eg, Armes [2018] AC 355 at 383 [76].
[124]See, eg, Rolph et al, Balkin & Davis Law of Torts, 6th ed (2021), ch 26 at 878-880 [26.16]; Dickinson, "Fostering Uncertainty in the Law of Tort" (2018) 134 Law Quarterly Review 359.
[125]See, eg, Cox [2016] AC 660.
[126]See, eg, Armes [2018] AC 355.
So, just over seven years after Christian Brothers, in Various Claimants v Barclays Bank plc, the Supreme Court revisited Lord Phillips' statement that "[t]he law of vicarious liability is on the move" and asked "how far that move can take it".[127] The Court clarified that two elements had to be shown before a person could be made vicariously liable for the torts committed by another and that both had been expanded by the courts in the United Kingdom in recent years. The two elements were identified as: "a relationship between the two persons which makes it proper for the law to make the one pay for the fault of the other" and "the connection between that relationship and the tortfeasor's wrongdoing".[128] In relation to the first element – the issue with which Barclays Bank was concerned – the Court noted that, historically, vicarious liability had been limited to the relationship between employee and employer.[129] Whether or not it is a correct reading of the decision to suggest that the Supreme Court sought to "'walk back' the scope of vicarious liability",[130] the Court nevertheless restated the approach to be adopted in these terms:[131]
"The question ... is, as it has always been, whether the tortfeasor is carrying on business on his own account or whether he is in a relationship akin to employment with the defendant. In doubtful cases, the five 'incidents' identified by Lord Phillips may be helpful in identifying a relationship which is sufficiently analogous to employment to make it fair, just and reasonable to impose vicarious liability. Although they were enunciated in the context of non-commercial enterprises, they may be relevant in deciding whether workers who may be technically self-employed or agency workers are effectively part and parcel of the employer's business. But the key, as it was in Christian Brothers [2013] 2 AC 1, Cox [2016] AC 660 and Armes [2018] AC 355, will usually lie in understanding the details of the relationship. Where it is clear that the tortfeasor is carrying on his own independent business it is not necessary to consider the five incidents."
[127][2020] AC 973 at 980 [1].
[128]Barclays Bank [2020] AC 973 at 980 [1].
[129]Barclays Bank [2020] AC 973 at 980 [1].
[130]Rolph et al, Balkin & Davis Law of Torts, 6th ed (2021), ch 26 at 880 [26.16].
[131]Barclays Bank [2020] AC 973 at 987 [27] (emphasis added).
In sum, the decision in Christian Brothers not only started from a different set of propositions, but the identified rationale for the expansion of the doctrine – being an assessment of what is fair, just and reasonable – depended on contestable policy choices and the allocation of risk, which are matters upon which minds might differ[132] and which this Court has repeatedly rejected as a sound basis for determining and developing the law of vicarious liability[133] and duties of care.[134]
[132]See, eg, Cox [2016] AC 660 at 669 [20]-[21].
[133]See, eg, Lepore (2003) 212 CLR 511 at 560 [128], 586 [212]; Prince Alfred College (2016) 258 CLR 134 at 148-150 [38]‑[47].
[134]See, eg, Sullivan v Moody (2001) 207 CLR 562 at 579-581 [49]-[54], which rejected the test in Caparo Industries Plc v Dickman [1990] 2 AC 605 at 617-618.
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. This Court should not, by developing the common law, deny the centrality of the employment relationship nor abandon that requirement. As this Court stated in Sweeney, "[w]hatever may be the logical and doctrinal imperfections and difficulties in the origins of the law relating to vicarious liability, the two central conceptions of distinguishing between independent contractors and employees and attaching determinative significance to course of employment are now too deeply rooted to be pulled out".[135] Those deep roots of reliance on a threshold requirement of an employment relationship for a finding of vicarious liability extend to other Australian courts, the legislatures (including in relation to drafting employment legislation) and insurers. That list is not exhaustive.
[135]Sweeney (2006) 226 CLR 161 at 173 [33].
Insisting on a threshold requirement of an employment relationship for a finding of vicarious liability, including in cases such as the present, has been described as harsh.[136] The acts of perpetrators, like those of Coffey, are predatory and the effect of them devastating.[137] The relationship between the Diocese and Coffey – whilst distinct – exhibited certain features that resembled that of a relationship of employer and employee.
[136]Rolph et al, Balkin & Davis Law of Torts, 6th ed (2021), ch 26 at 863 [26.3]. See, eg, English Province of Our Lady of Charity [2013] QB 722 at 734 [36].
[137]Australia, Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report (2017), vol 3 at 14, 23-24, 77-156.
But without a "clear or stable" principle for the imposition of vicarious liability,[138] expanding the threshold requirement to accommodate relationships that are "akin to employment" would produce uncertainty and indeterminacy in at least two ways. The first has been addressed – the "akin to employment" test has led to results in the United Kingdom which have expanded liability to relationships which hitherto would not have been understood to involve one party being liable for another's wrongs.
[138]Sweeney (2006) 226 CLR 161 at 166 [11]. See also Hollis (2001) 207 CLR 21 at 37-38 [35]; Lepore (2003) 212 CLR 511 at 580 [196]; Prince Alfred College (2016) 258 CLR 134 at 149 [44], 150 [46]; Schokman (2023) 97 ALJR 551 at 561 [48], 566 [69]; 410 ALR 479 at 490, 497.
The second area of uncertainty and indeterminacy that comes from divorcing the threshold test for vicarious liability from an employment relationship is that it risks further complicating the already fraught distinction between employees and independent contractors. It is true that the case law in the United Kingdom still insists on the separateness of the category of independent contractor (or, more generally, relationships not akin to employment), in which vicarious liability will not arise.[139] The relevant question "is, as it has always been, 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".[140] Nevertheless, it is difficult to see how reliance on only a subset of the indicia in cases "akin to employment" will not generate difficulty distinguishing employees from independent contractors more broadly. It is no answer to that challenge that central instances of contracting will still be simply resolved; the difficulties are inevitable with "borderline cases".[141]
[139]Barclays Bank [2020] AC 973 at 986 [24].
[140]Barclays Bank [2020] AC 973 at 987 [27].
[141]Lepore (2003) 212 CLR 511 at 536 [42].
In Breen v Williams,[142] Gaudron and McHugh JJ said:
"Advances in the common law must begin from a baseline of accepted principle and proceed by conventional methods of legal reasoning. Judges have no authority to invent legal doctrine that distorts or does not extend or modify accepted legal rules and principles. Any changes in legal doctrine, brought about by judicial creativity, must 'fit' within the body of accepted rules and principles."
Abandoning the threshold requirement of a relationship of employment for the purposes of vicarious liability does not fit within the body of accepted rules and principles. The difficulties that have existed and presently exist with vicarious liability in Australia, and overseas, as well as the other matters that have been identified, do not provide a proper basis for the development of the common law by extension of the threshold more broadly, or to address the specific issue of whether a diocese or a bishop may be held vicariously liable for the unlawful actions of a priest who sexually abuses a child, on an incremental basis.[143] Reformulation of the law of vicarious liability is properly the province of the legislature.[144]
[142](1996) 186 CLR 71 at 115. See also Dietrich v The Queen (1992) 177 CLR 292 at 320-321.
[143]See generally Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 at 13 [3], 33-34 [77]; Swick Nominees Pty Ltd v LeRoi International Inc[No 2] (2015) 48 WAR 376 at 449 [387].
[144]Breen (1996) 186 CLR 71 at 115. Victoria, Family and Community Development Committee, Betrayal of Trust: Inquiry into the Handling of Child Abuse by Religious and Other Non-Government Organisations (2013), vol 2 at 546-552 ("Parliamentary Committee Report"); Australia, Royal Commission into Institutional Responses to Child Sexual Abuse, Redress and Civil Litigation Report (2015) at 77-78, 470-473, 495.
In Australia, the legislature has sought to address these issues of institutional liability following on from various reports,[145] which have explicitly called for reform by parliamentary intervention given the confined, and uncertain, scope of liability for intentional torts under the doctrine of vicarious liability at common law in Australia.[146] The 2015 Redress and Civil Litigation Report of the Commonwealth Royal Commission into Institutional Responses to Child Sexual Abuse ("the Redress Report") considered parliamentary reform to be the proper and appropriate vehicle for ensuring institutional accountability and redress for the harms committed by members and employees.[147] And steps have been taken by legislatures. The difficulty is that the steps taken by the various legislatures have not been consistent[148] and, in some important respects, amendments to civil liability, following the recommendations of Royal Commissions,[149] are prospective.[150]
[145]See Parliamentary Committee Report (2013) at 552; Redress Report (2015) at 57-59.
[146]See Parliamentary Committee Report (2013) at 546-551; Redress Report (2015) at 53-54.
[147]Redress Report (2015) at 54-55, 491-492.
[148]See, eg, Civil Liability Act 2002 (NSW), ss 6G, 6H, inserted by the Civil Liability Amendment (Organisational Child Abuse Liability) Act 2018 (NSW). See also Civil Liability Act 2002 (Tas), ss 49I, 49J, inserted by the Justice Legislation Amendment (Organisational Liability For Child Abuse) Act 2019 (Tas); Civil Liability Act 1936 (SA), ss 50A, 50G, inserted by the Civil Liability (Institutional Child Abuse Liability) Amendment Act 2021 (SA); Personal Injuries (Liabilities and Damages) Act 2003 (NT), s 17G, inserted by the Personal Injuries (Liabilities and Damages) Amendment Act 2022 (NT).
[149]See, eg, Redress Report (2015) at 57.
[150]See, eg, Civil Liability Act 2002 (NSW), Sch 1, cl 44; Civil Liability Act 2002 (Tas), s 4(8); Wrongs Act 1958 (Vic), s 93; cf Civil Liability Act 1936 (SA), s 50D(1); Personal Injuries (Liabilities and Damages) Act 2003 (NT), s 17B(5).
It is sufficient to address the position in Victoria. The introduction in Victoria of the Legal Identity Act does not provide a basis for imposing vicarious liability. The lack of a legal person capable of being sued had historically been a notorious impediment to the redress of abuse occurring in the context of unincorporated organisations, even when those organisations controlled valuable property held by corporate trustees.[151] That was remedied by the Legal Identity Act, the stated purpose of which is "to provide for child abuse plaintiffs to sue an organisational defendant in respect of unincorporated non-government organisations which use trusts to conduct their activities".[152] It makes it possible for an "NGO", defined to mean a non-government organisation that is an unincorporated association or body,[153] to be vicariously liable for the wrongs of its employees. But, as the Diocese submitted, the Act deals with the issue of legal personality. It does not alter the substantive law of vicarious liability. A relationship of employment is still required.
[151]Parliamentary Committee Report (2013) at 511, 530-536; Redress Report (2015) at 496-511; cf Ellis (2007) 70 NSWLR 565.
[152]Legal Identity Act, s 1.
[153]Legal Identity Act, s 5.
That construction of the Legal Identity Act is reinforced by the extrinsic materials to the Act. The Explanatory Memorandum recorded that the "Bill responds to the problem identified in finding 26.3 and recommendation 26.1 [of the 2013 Parliamentary Committee Report], and adopts an approach to the same problem recommended by recommendation 94 of the [Redress Report]".[154] Chapter 26 of the Parliamentary Committee Report is divided into five sections. Finding 26.3 and recommendation 26.1 deal with the use of trusts as an aspect of legal identity of non‑governmental organisations.[155] Section 26.5 deals separately with issues of vicarious liability and non-delegable duty.[156] Recommendation 94 of the Redress Report, to which the Explanatory Memorandum refers, forms an aspect of Ch 16.[157] Issues of vicarious liability and non‑delegable duty are, however, addressed in recommendations 89 to 93, found within Ch 15.[158] Those recommendations were directed to the establishment of statutory liability for child sexual abuse with a reverse onus, and a statutory non-delegable duty. In particular, recommendation 93 was that "[s]tate and territory governments should ensure that the non‑delegable duty and the imposition of liability with a reverse onus of proof apply prospectively and not retrospectively".[159] The Victorian Parliament gave effect to that recommendation in March 2017, with the suggested prospective effect, under the Wrongs Amendment (Organisational Child Abuse) Act 2017 (Vic), inserting Pt XIII of the Wrongs Act1958 (Vic).
[154]Victoria, Legislative Assembly, Legal Identity of Defendants (Organisational Child Abuse) Bill 2018, Explanatory Memorandum at 1.
[155]Parliamentary Committee Report (2013) at 536.
[156]Parliamentary Committee Report (2013) at 545-552.
[157]Redress Report (2015) at 511.
[158]Redress Report (2015) at 495.
[159]Redress Report (2015) at 495.
This is not one of those areas 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.[160]
[160] Tame v New South Wales (2002) 211 CLR 317 at 394 [224], citing Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49 at 60-63 [19]-[28]. See, eg, R v Swaffield (1998) 192 CLR 159 at 193‑195 [66]-[70], 202 [92]; PGA v The Queen (2012) 245 CLR 355 at 369 [18], 373 [30], 378 [46], 384 [64].
Conclusion and orders
For those reasons, the appeal should be allowed. The appellant agreed to pay DP's costs of and incidental to the special leave application and the appeal. Orders 2 and 5 of the Court of Appeal of the Supreme Court of Victoria made on 3 April 2023 should be set aside and, in their place, order that:
1. The appeal is allowed with costs.
2.The orders made by the Supreme Court of Victoria on 25 January 2022 and 28 February 2022 be set aside and, in their place, order that the proceeding be dismissed with costs.
GLEESON J.
Introduction
In Canada,[161] England and Wales,[162] and Ireland,[163] the courts have imposed vicarious liability on religious bodies for sexual abuse by priests and members of religious orders in certain circumstances. In doing so, those courts have recognised that an organisation can be vicariously liable not only for the torts of its employees, but also for the torts of persons whose relationship with the organisation is "akin to employment". In Singapore, vicarious liability has also been held to be capable of arising in relationships that are akin to employment.[164] Similarly, in the civilian tradition, a defendant can be vicariously liable for the wrongs committed by someone who is not strictly an employee.[165]
[161]See, eg, JohnDoe v Bennett [2004] 1 SCR 436.
[162]See, eg, Various Claimants v Catholic Child Welfare Society [2013] 2 AC 1 ("Christian Brothers").
[163]See, eg, Hickey v McGowan [2017] 2 IR 196.
[164]See, eg, Ng Huat Seng v Munib Mohammad Madni [2017] 2 SLR 1074 ("Ng Huat Seng").
[165]Code civil (France), Art 1242; Bürgerliches Gesetzbuch (Germany), §831-832; Codice civile (Italy), Art 2049; Obligationenrecht (Switzerland), Art 55; Allgemeines bürgerliches Gesetzbuch (Austria), §1313a-1315.
In 2015, the Royal Commission into Institutional Responses to Child Sexual Abuse anticipated that Australian courts, too, would recognise and impose liability on institutions for criminal acts of their members or employees that cause harm to children, in the absence of legislative action.[166]
[166]Australia, Royal Commission into Institutional Responses to Child Sexual Abuse, Redress and Civil Litigation Report (2015) at 54.
In Victoria, the State in which DP suffered sexual abuse as a child at the hands of a Catholic assistant parish priest in 1971, the Limitation of Actions Amendment (Child Abuse) Act 2015 (Vic) lifted the previous limitation period for actions for personal injury suffered as a result of child abuse. That legislative change was made in response to the publication in 2013 of a report entitled Betrayal of Trust, following the Inquiry into the Handling of Child Abuse by Religious and Other Non-Government Organisations.[167] A key finding of the report was that victims of child abuse found it difficult to initiate actions within the relevant limitation period and this was a barrier to claims against non-government organisations arising out of such abuse.[168]
[167]Victoria, Legislative Assembly, Limitation of Actions Amendment (Child Abuse) Bill 2015, Explanatory Memorandum at 1.
[168]Victoria, Family and Community Development Committee, Betrayal of Trust: Inquiry into the Handling of Child Abuse by Religious and Other Non-Government Organisations (2013), vol 2 at 527, 543 [Finding 26.8].
Following the Victorian initiative, Parliaments across Australia removed limitation periods for civil actions for damages arising from sexual abuse of children.[169] These reforms have been described as "a landmark socio-legal development in the common law world".[170] There is no reason to doubt that the main reason for lifting these limitation periods was to enable survivors of historical child sexual abuse to bring claims against institutions with which perpetrators of that abuse were associated. Without vicarious liability being an available cause of action for such historical abuse, the point of removing those limitation periods is significantly diminished, particularly in the context of this Court's rejection of the principle of non-delegable duty as a basis for a school authority's liability for the sexual abuse of a pupil by an employed teacher in New South Wales v Lepore.[171]
[169]Limitation of Actions Act 1936 (SA), s 3A; Limitation of Actions Act 1958 (Vic), s 27P(1); Limitation Act 1969 (NSW), s 6A(1); Limitation of Actions Act 1974 (Qld), s 11A; Limitation Act 1974 (Tas), s 5B(1)(a); Limitation Act 1981 (NT), s 5A; Limitation Act 1985 (ACT), s 21C(1)-(2); Limitation Act 2005 (WA), s 6A.
[170]Mathews and Dallaston, "Reform of Civil Statutes of Limitation for Child Sexual Abuse Claims: Seismic Change and Ongoing Challenges" (2020) 43 University of New South Wales Law Journal 386 at 386.
[171](2003) 212 CLR 511 ("Lepore") at 534-535 [36]-[39], 598-601 [254]-[263], 609-610 [292]-[295], 624 [340]. See also Prince Alfred CollegeIncv ADC (2016) 258 CLR 134 ("Prince Alfred College") at 141 [3].
The relevance of this is that the Royal Commission and the Victorian Parliament had a range of options available to determine what should be done to "address, or alleviate the impact of, past and future child sexual abuse and related matters in institutional contexts".[453] The Royal Commission concluded that "the current civil litigation systems and past and current redress processes have not provided justice for many survivors".[454] In dealing with the duty of institutions it dealt with both direct and vicarious liability of institutions, and non‑delegable duties of care.[455] In so doing, it considered approaches overseas, namely in Canada and the United Kingdom.[456] It considered a range of options for legislative reform.[457] In that process it issued a Consultation Paper and consulted broadly with governments, organisations, and many representative bodies, and held a public hearing.[458] It ultimately recommended State and Territory legislative reform in which an institution would be subject to a new statutory non‑delegable duty to take reasonable care to prevent the sexual abuse of a child with the onus of proof to be reversed so that, on the plaintiff establishing that the abuse occurred, an institution would be liable for child sexual abuse by its members or employees unless the institution proved it took reasonable steps to prevent abuse.[459] It specifically recommended that the new statutory duty of care apply prospectively and not retrospectively.[460] It also recommended legislative reform to ensure the existence of a proper defendant for all claims of institutional child sexual abuse.[461] The Royal Commission did not recommend, for example, that there be national (or any) legislative reform amending or extending the common law doctrine of vicarious liability to relationships other than the employment relationship or that the relationship between a relevant organisation and a member of that organisation be deemed to be either an employment relationship or that of principal and agent in the sense that gives rise to vicarious liability (either prospectively or retrospectively).
[453]Australia, Royal Commission into Institutional Responses to Child Sexual Abuse, Redress and Civil Litigation Report (2015) at 2.
[454]Australia, Royal Commission into Institutional Responses to Child Sexual Abuse, Redress and Civil Litigation Report (2015) at 5.
[455]Australia, Royal Commission into Institutional Responses to Child Sexual Abuse, Redress and Civil Litigation Report (2015) at 460.
[456]Australia, Royal Commission into Institutional Responses to Child Sexual Abuse, Redress and Civil Litigation Report (2015), Ch 15.3.
[457]Australia, Royal Commission into Institutional Responses to Child Sexual Abuse, Redress and Civil Litigation Report (2015), Ch 15.4.
[458]Australia, Royal Commission into Institutional Responses to Child Sexual Abuse, Redress and Civil Litigation Report (2015), Ch 15.5.
[459]Australia, Royal Commission into Institutional Responses to Child Sexual Abuse, Redress and Civil Litigation Report (2015) at 489-493.
[460]Australia, Royal Commission into Institutional Responses to Child Sexual Abuse, Redress and Civil Litigation Report (2015), Ch 15.6, particularly recommendations 89-93 at 495.
[461]Australia, Royal Commission into Institutional Responses to Child Sexual Abuse, Redress and Civil Litigation Report (2015), Ch 16, specifically recommendation 94 at 511.
The enactment of the Legal Identity of Defendants (Organisational Child Abuse) Act and the Wrongs Amendment (Organisational Child Abuse) Act reflect part of the Victorian Parliament's response to the Royal Commission report, as well as the Family and Community Development Committee report, Betrayal of Trust.[462] In the Second Reading Speech relating to the Wrongs Amendment (Organisational Child Abuse) Act, the Attorney‑General said that the Act "implements recommendation 26.4 of Betrayal of Trust, and addresses recommendation 91 of the Royal Commission (and that recommendation's scoping guidance in recommendations 92 and 93)".[463] The Attorney‑General added that in "recognition of the uncertainties that exist in the current common law, the bill creates a new duty via statute",[464] a response which "balances the interests of plaintiffs and defendants".[465] The Attorney‑General contrasted the new statutory duty resulting from this balancing of considerations with "the law of vicarious liability, where liability can be imposed upon an organisation even if that organisation is free from fault".[466] The Attorney‑General also said that "[f]inally, the bill is prospective in operation. To enable organisations to be educated about the meaning and impact of the bill prior to it coming into effect, the bill will only apply to child abuse that occurs on or after the proposed default commencement date, being 1 July 2017. Prospective application of the reform is in line with the recommendations of both Betrayal of Trust and the Royal Commission. In saying this, it is important to note that the common law, in particular the law of vicarious liability, will still be available ... as an avenue for organisational child abuse plaintiffs alongside the bill. When the common law changes, it does so with retrospective effect. If the Australian common law develops as it has overseas, survivors of organisational child abuse will be able to utilise that avenue accordingly."[467]
[462]Victoria, Family and Community Development Committee, Betrayal of Trust: Inquiry into the Handling of Child Abuse by Religious and Other Non-Government Organisations (2013), vol 2 at 551. See, eg, Victoria, Legal Identity of Defendants (Organisational Child Abuse) Bill 2018, Explanatory Memorandum at 1.
[463]Victoria, Legislative Assembly, Parliamentary Debates (Hansard) 23 November 2016 at 4537.
[464]Victoria, Legislative Assembly, Parliamentary Debates (Hansard) 23 November 2016 at 4537.
[465]Victoria, Legislative Assembly, Parliamentary Debates (Hansard) 23 November 2016 at 4537.
[466]Victoria, Legislative Assembly, Parliamentary Debates (Hansard) 23 November 2016 at 4537.
[467]Victoria, Legislative Assembly, Parliamentary Debates (Hansard) 23 November 2016 at 4539.
Taken as a whole, the terms of the Victorian Parliament's legislative reforms responsive to the Royal Commission report and to Betrayal of Trust weigh heavily against any expansion of the common law doctrine of vicarious liability. The "genius of the common law" includes that the "the first statement of a common law rule or principle is not its final statement",[468] but its genius also includes many self-imposed checks and balances against "unprincipled, social engineering on the part of the common law judges".[469] It is one thing to accept that the common law should not stand still merely "because the legislature has not moved" to adapt to changing social conditions,[470] but another to change a common law principle in circumstances where the legislature has responded to a comprehensive review of the common law's inadequacies by the enactment of statutory provisions which make no change to that common law principle. The contemplation in the Attorney‑General's Second Reading Speech that the common law may develop in Australia as it has overseas[471] (to expand the doctrine of vicarious liability to apply to relationships akin to employment if it is fair, just, and reasonable as a matter of policy that vicarious liability be imposed[472]) is not to be understood as an invitation to do so. In particular, and as noted, the Royal Commission report considered the development of vicarious liability overseas, including in Various Claimants v Catholic Child Welfare Society,[473] and recommended a response that did not expand the doctrine of vicarious liability,[474] but instead imposed a new statutory personal or non‑delegable duty of care which was to be prospective only, not retrospective.
[468]Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 585, referred to in Scott v Davis (2000) 204 CLR 333 at 370 [109].
[469]Scott v Davis (2000) 204 CLR 333 at 372 [120].
[470]Hollis v Vabu Pty Ltd (2001) 207 CLR 21 at 46 [59].
[471]Victoria, Legislative Assembly, Parliamentary Debates (Hansard) 23 November 2016 at 4539.
[472]eg, Various Claimantsv Catholic Child Welfare Society [2013] 2 AC 1 at 15 [34]. See also Armes v Nottinghamshire County Council [2018] AC 355; Various Claimantsv Barclays Bank plc [2020] AC 973.
[473]Australia, Royal Commission into Institutional Responses to Child Sexual Abuse, Redress and Civil Litigation Report (2015) at 471-473.
[474]See, eg, Australia, Royal Commission into Institutional Responses to Child Sexual Abuse, Redress and Civil Litigation Report (2015) at 489-493.
Further, the terms of the Victorian Parliament's legislative response are irreconcilable with the notion, put forward by the respondent, that the Legal Identity of Defendants (Organisational Child Abuse) Act provides a statutory context for facilitating a finding of vicarious liability. According to this argument, because the Legal Identity of Defendants (Organisational Child Abuse) Act remedies the circumstance that the Diocese is not a legal entity capable of being sued, it must be taken that it also remedies the fact that, as an unincorporated association without legal personhood, the Diocese could not and did not employ Father Coffey. On this basis, the respondent submitted that s 7(4) of that Act (which provides that "[a] court may substantively determine a claim in a proceeding founded on or arising from child abuse for which there is a proper defendant under this section as if the NGO itself were incorporated and capable of being sued and found liable for child abuse in respect of the claim"), in effect, bridges the gap between the common law of vicarious liability (dependent on an employment relationship) and the respondent's claim against the Diocese for Father Coffey's tortious conduct against the respondent (the Diocese not being Father Coffey's employer because it has no legal personhood).
There is no reasonably open reading of the Legal Identity of Defendants (Organisational Child Abuse) Act which could be taken to have that effect. That Act does not have the effect of deeming an NGO to be incorporated. Still less, does it deem an NGO to be an employer of, relevantly, its members. The Act does no more than, relevantly, enable an NGO to nominate a proper defendant and provide a default provision if an NGO does not do so. In this case, the default provision, s 8, is not engaged because the Diocese has nominated its current Bishop to be the proper defendant on its behalf.
It is also significant that in the most recent decisions of the Supreme Court of the United Kingdom concerning vicarious liability, the high tide of vicarious liability appears to be in retreat in that country.[475] While the statement made in Various Claimants v Catholic Child Welfare Society was that "[t]he law of vicarious liability is on the move",[476] the issue in Various Claimants v Barclays Bank plc was "how far that move can take it".[477] In deciding that issue, Baroness Hale of Richmond referred to Armes v Nottinghamshire County Council as "[t]he last, and perhaps the most difficult, case".[478] It may be inferred that it was the most difficult case because the reasoning in it is in tension with the immediately succeeding observation that nothing in the earlier cases, including Armes v Nottinghamshire County Council, suggested that "the classic distinction between employment and relationships akin or analogous to employment, on the one hand, and the relationship with an independent contractor, on the other hand, has been eroded".[479] The tension is apparent in the fact that the "the classic distinction" is between employment relationships and independent contractor relationships – the "analogous to employment" relationship as a source of vicarious liability being novel.[480] Given that, one way or another, the law of vicarious liability had expanded in scope in the United Kingdom, the control of that expansion arguably reimposed to some extent in Various Claimants v Barclays Bank plc was to emphasise that, in considering a relationship "analogous to employment", the question remained if "the tortfeasor is carrying on [their] own independent business" in which event there would be no relationship "analogous to employment".[481] As Lord Burrows JSC observed in BXB v Trustees of the Barry Congregation of Jehovah's Witnesses,[482] the case of Various Claimants v Barclays Bank plc revealed "an anxiety that the scope of vicarious liability was being widened too far".[483]
[475]See BXB v Trustees of the Barry Congregation of Jehovah’s Witnesses [2024] AC 567 at 585 [48]; Various Claimants v Barclays Bank plc [2020] AC 973.
[476][2013] 2 AC 1 at 11 [19].
[477][2020] AC 973 at 980 [1]
[478][2020] AC 973 at 986 [23].
[479][2020] AC 973 at 986 [24].
[480][2020] AC 973 at 986 [25]. See also Various Claimants v Catholic Child Welfare Society [2013] 2 AC 1 at 18 [47], citing E v English Province of Our Lady of Charity [2013] QB 722; John Doe v Bennett [2004] 1 SCR 436 at 449 [27].
[481][2020] AC 973 at 987 [27].
[482][2024] AC 567.
[483]BXB v Trustees of the Barry Congregation of Jehovah's Witnesses [2024] AC 567 at 585 [48].
In summary, there is no proper basis to revisit the reasoning in Hollis v Vabu Pty Ltd, Scott v Davis, and Sweeney v Boylan Nominees Pty Ltd. Nor is there a proper basis to endorse the extension of the common law doctrine of vicarious liability that would be required to enable the Diocese to be found vicariously liable for the tortious conduct of Father Coffey against the respondent. The Legal Identity of Defendants (Organisational Child Abuse) Act does not, for the purpose of the application of the doctrine of vicarious liability, remedy the fact that, as an unincorporated association without legal personhood, the Diocese could not and did not employ Father Coffey.
The new claim – a non-delegable duty
In a notice of contention, the respondent sought to make a claim not put to the primary judge or the Court of Appeal that the Diocese "is liable to the respondent for breach of a non‑delegable duty owed to the respondent to protect him from the risk of sexual abuse by its priests, including Father Bryan Coffey, in the course of Coffey's functions and duties as a priest and as a representative, servant or agent of the Diocese".
The Diocese opposed the respondent being granted leave in this appeal to make a new basis for the claim for damages. The basis for the Diocese's opposition was that it would be placed in position of irremediable prejudice in that this personal or non‑delegable duty had never been pleaded or identified below and the Diocese therefore had no opportunity to adduce evidence about matters relevant to such a special duty being imposed. The Diocese also submitted that the imposition of such a personal or non‑delegable duty would require the re‑opening and overruling of New South Wales v Lepore,[484] which had not been sought in the Courts below (or, for that matter, argued).
[484](2003) 212 CLR 511.
The respondent's arguments in support of the grant of leave to raise the new claim that the Diocese owed him a personal or non‑delegable duty of care do not confront the insuperable obstacles to the adoption of that course. The respondent argued that the posited personal or non‑delegable duty of care arises from the same facts as found by the Courts below and did not require any further factual findings. That argument is untenable. Precision in identifying the context of any duty of care is necessary, but even more so in respect of an asserted personal or non‑delegable duty of care.[485] The non‑delegable duty of care asserted in the notice of contention is a duty to "protect" the respondent from the risk of sexual abuse by the priests of the Diocese, including Father Coffey in the course of his functions and duties as a priest and as a representative, servant or agent of the Diocese. Even if a personal or non‑delegable duty of care of that width and indeterminacy could arise, it should be inferred that the Diocese could have adduced evidence relevant to both the imposition and the alleged breach of that duty of care.
[485]New South Wales v Lepore (2003) 212 CLR 511 at 529 [23]; Prince Alfred College Inc v ADC (2016) 258 CLR 134 at 169 [114].
For example, the duty sought to be imposed in the notice of contention was reframed in oral argument as a duty "to ensure that the young boy was not exposed to a risk of harm", with the asserted breach of the duty as "causing, or allowing, [Father Coffey] to have unsupervised access to young children without there being any restrictions on supervision". Whether as proposed initially or as reframed, the asserted duty is incoherent and indeterminate. It raises more questions than it answers. What does "its priests" mean in respect of the Diocese – only priests formally assigned to a parish within the Diocese or any priest who happened to be within the area of the Diocese? What are the criteria which distinguished the respondent from any other child – being a parishioner of the parish to which Father Coffey was assigned as assistant priest or being Catholic and the child of Catholic parents? What is the geographical extent of the asserted duty – is it delimited by the boundaries of the Diocese or does it extend to any location in which a priest of a parish within the Diocese is present? What is the functional extent of the asserted duty – does it apply only to children whom the Diocese has placed under the care, supervision, or authority of one of its priests or to all children with whom one of its priests might interact? What is the temporal extent of the asserted duty – where is the line to be drawn between a priest acting in an independent capacity and the unavoidably nebulous notion of a priest acting in the course of his functions and duties or as a representative, servant or agent of the Diocese?
Given the scope of these unanswered questions, it cannot be inferred that the Diocese would have been unable to adduce evidence potentially relevant to the existence of the asserted personal or non‑delegable duty of care. In these circumstances, the respondent cannot be permitted to raise the asserted personal or non‑delegable duty of care for the first time in this Court.[486] Further observations about the imposition of a personal or non‑delegable duty of care on a body such as the Diocese should await a case in which the issue is properly raised and the asserted duty is both identified with precision and has an adequate factual foundation. That is not the present case.
[486]Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438; Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598 at 1608 [51]; 200 ALR 447 at 461.
Conclusion
For these reasons, the Diocese's appeal must succeed. The orders proposed by Gageler CJ, Gordon, Edelman, Steward and Beech‑Jones JJ should be made.
Bird v DP (a pseudonym) [2024] HCA 41
Jane Jones (a pseudonym) v Waller Legal Pty Ltd [2025] VSC 42
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