The High Court affirms employment relationship as a necessary precursor to a finding of vicarious liability: Bird v DP (a pseudonym) [2024] HCA 41

DP v Bird marks the first occasion on which the High Court has been asked to determine whether one who could be held liable for a wrongdoer's actions, in the absence of an employment or agency relationship, can be found vicariously liable. In its decision on 13 November 2024, the Court ruled against extending vicarious liability to relationships "akin to employment," confirming that liability will remain confined to situations where a relationship of employment exists.

The Claim

DP commenced proceedings in the Supreme Court of Victoria against the Catholic Diocese of Ballarat, through its current Bishop, Paul Bird (the Diocese) alleging that the Diocese was vicariously liable for the abuse perpetrated by Fr Coffey. The trial judge determined that the Diocese was vicariously liable for the abuse committed by Coffey, despite finding that no employment nor agency relationship existed.

The Diocese appealed the Supreme Court decision to the Victorian Court of Appeal which unanimously dismissed same.

The Diocese was subsequently granted special leave to appeal to the High Court and the crux of its submissions was that the requirement for a relationship of employment was entrenched in the doctrine of vicarious liability and ought not be abandoned or extended to include relationships ‘akin to employment’.

The Decision

In joint judgement of Gageler CJ, Gordon, Edelman, Seward, and Beech-Jones JJ (with Gleeson J dissenting), the Court found that there was no solid foundation for the expansion of the doctrine of vicarious liability or for its bounds to be redrawn. Further, the Court considered that expanding the threshold requirement to accommodate relationships that are ‘akin to employment’ would produce uncertainty and indeterminacy.

In coming to its determination, the Court outlined the areas of law where vicarious liability is used as follows:

1. where a person does wrongful acts as agent such that the wrongful acts are within the defendant’s express, implied or apparent authorisation;
2. breach of non-delegable duty; and
3. where liability is based on the attribution of liability, not attribution of acts.

Only the third was apposite in this case, for which the Court had repeatedly stated that a relationship of employment was a necessary element to establish vicarious liability.

The Court stated that redrawing of 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 vicarious liability has been previously rejected by it on a number of occasions and highlighted that such expansion adopted by these countries has not been without difficulty.

Further, the Court considered that vicarious liability is not one of the areas of law where the intersection between common law and statute permits the Court to analogise from statute to adapt or expand the principle of vicarious liability beyond relationships of employment.

Gleeson J disagreed with the plurality that relationships akin to employment do not attract vicarious liability in Australia. Rather, her Honour considered that the relationship between Coffey and the Diocese was capable of imposing vicarious liability but in this case, the Diocese is not vicariously liable for the sexual abuse inflicted by Coffey because those acts occurred in circumstances where Coffey opportunistically took advantage of his role to commit them.

The Impact

The High Court decision reinforces the traditional scope of vicarious liability and clarifies that the imposition of vicarious liability remains strictly tied to employment or agency, and does not extend to other forms of association or control.

The ruling offers greater certainty for individuals and organisations, particularly in cases involving independent contractors, volunteers, or other non-employed persons, who may now be shielded from vicarious liability in scenarios where such relationships are not present.

While the ruling has significant implications for cases in the abuse space, its impact will likely extend far beyond this area, shaping the future of vicarious liability in a range of contexts.