Dear Neil:

 

Thank you for the post and the information about the case. I do not share your confidence that the result will ultimately be overturned if it is appealed up to the HCA since I do not think that the result is as contradictory to cases (such as Sweeney v Boylan Nominees Pty Ltd) as you claim. I say this for two reasons. First, your list of the relationships to which vicarious liability is possible is incomplete since Australian law has long recognized vicarious liability for borrowed servants or servants pro hac vice which means that the existence of a contract of employment is not a touchstone for the relationship necessary for the doctrine. Second, in light of this I think that your classification of a priest as an independent contractor is conclusory and counter-intuitive—just because priests do not have contacts of employment does not make them independent contractors ipso facto, otherwise servants pro hac vice would be excluded. Moreover, I think it reasonable to assume that, to paraphrase the words of Lord Aktin, in Australian law there must be, and is, some general conception of relations giving rise to vicarious liability, of which the particular cases found in the books are but instances. Whatever that generalization is, my gut reaction is that priests fall within it.

 

If pushed I would argue that the generalization is “representative”, which is quite consistent with Dixon’s observations in Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-Operative Assurance Co-Operative of Australia Ltd where he distinguished between the types of relationships to which vicarious liability did and did not obtain:

 

The work, although done at his request and for his benefit, is considered as the independent function of the person who undertakes it, and not as something which the person obtaining the benefit does by his representative standing in his place and, therefore, identified with him for the purpose of liability arising in the course of its performance. The independent contractor carries out his work, not as a representative but as a principal.

 

Happy New Year everyone!

 

 

 

Dear Obligations colleagues;

I have an interest in “law and religion” issues and as part of a blog I run on that I have posted on a recent decision from Victoria finding a Roman Catholic Bishop vicariously liable for abuse committed by a priest. I think the decision is wrong as a matter of Australian law (it would be probably uncontroversial at the moment in the UK.) Those who follow vicarious liability may find it of interest. It also has some comments on non-delegable duty and I have linked to a “pre-print” version of a chapter I wrote a few years ago on the topic which may also be of interest.

All the best to all for a Happy New Year!

Regards

Neil

 

 

 

 

neilfoster posted: " In a decision handed down just prior to Christmas, DP (a pseudonym) v Bird [2021] VSC 850 (22 December 2021), a judge of the Victorian Supreme Court ruled that the Roman Catholic Bishop of the Diocese of Ballarat could be sued as vicariously liable for c"   New post on Law and Religion Australia   Vicarious Liability of Bishop for abuse committed by clergy by neilfoster In a decision handed down just prior to Christmas, DP (a pseudonym) v Bird [2021] VSC 850 (22 December 2021), a judge of the Victorian Supreme Court ruled that the Roman Catholic Bishop of the Diocese of Ballarat could be sued as vicariously liable for child sexual abuse committed by an assistant parish priest against the plaintiff DP when he was 5 years old (in 1971). The decision (as noted in a recent online press report) seems to be the first time a diocese has been found vicariously liable under common law principles for the actions of a priest, in Australia. In this note I will suggest that the reason for this is that the decision is wrong, as inconsistent with clear High Court of Australia authority. This does not mean that I think that the organised church ought to be allowed to escape liability for harm committed by clergy to children in its care. To the contrary, as explained below, I think the High Court ought to revisit another area of common law which prevents many such claims at the moment. But the decision in DP is not consistent with the course of development of the law of vicarious liability and will, in my judgment, be overturned if there is an appeal on this point. Read more of this post neilfoster | December 30, 2021 at 9:23 pm | Tags: DP v Bird, Vicarious Liability | Categories: Civil Liability of Churches, Clergy child abuse, clergy employment status, Tort law | URL: https://wp.me/p5y42V-2ep Like   Unsubscribe to no longer receive posts from Law and Religion Australia. Change your email settings at Manage Subscriptions. Trouble clicking? Copy and paste this URL into your browser: http://lawandreligionaustralia.blog/2021/12/30/vicarious-liability-of-bishop-for-abuse-committed-by-clergy/     Thanks for flying with WordPress.com