In my view there are people who get paid to do work who are neither employees nor independent contractors: office-holders. Examples are corporate directors and paid trustees. Ranson v Customer Systems plc [2012] EWCA Civ 841, [21]: ‘The appointment of a person as a company director does not make that person an employee of the company. A director is the holder of an office. Nor does appointment as a company director of itself bring into existence any contract between the director and the company.’ If we go outside of private law we find judges, Ministers of the Crown, legislators etc.

Bill Swadling tells the story that Barry Nicholas once filled out a form which asked (as I recall) whether he was an employee or a contractor/in business and rejected the dichotomy, writing in the box ‘corporator’ (of the college). He was like a director in being part of the main decision-making organ of the college rather than its employee. But even though in that sense a fellow of a college is not an employee, Jason has a good point that they may be a ‘representative’ nonetheless, acting for the college and not as a principal.

I should think a Catholic priest has a substantial affinity to an office-holder—indeed, though I am not strong on Canon law, I should think he (necessarily he) is an office-holder—and in this sense may be neither employee nor independent contractor, but may nonetheless be a representative and not a principal (in the language of Sir Owen Dixon quoted by Jason).

Cheers,

Lionel

 

 

 

Dear Jason;

Thanks for your detailed reply, my friend. I beg to differ, however.

I concede that there are some cases recognising vicarious liability for employees pro hac vice, though very few. But since the logic of that analysis is that they are in fact employees, I don’t think this is an exception to the general principle that VL usually (apart from the other 3 minor categories) arises in an employment relationship. In other words it is the employment category, not a formal “contract of employment”, that satisfies the stage 1 test.

You suggest that priests are not best classified as “independent contractors”. But I disagree. Under Australian law at the moment there are only two “pigeonholes” into which someone can be placed if they do paid work. One is employee; if that is excluded, the person is an independent contractor. North and Bromberg JJ put it this way in Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd [2015] FCAFC 37 at [173]:

 

The divide between employee and independent contractor appears to be binary. In Australia, no third category has yet been recognised by the law to describe the worker and none is apparent. That means that the worker will either be an employee or an independent contractor.

 

The idea of a “representative agent” as a third category drawn from CML, as attractive as it sounds in theory, was explicitly rejected in Sweeney as well as in Scott v Davis [2000] HCA 52 and Hollis v Vabu Pty Ltd (2001) 207 CLR 21 over the clear articulation of the idea by McHugh J in dissent in both the earlier cases. So, despite the apparent oddity of saying so, I have long thought that clergy under Australian law are formally independent contractors where they receive a stipend or some other payment in connection with their work.

All the best for the New Year!

Regards

Neil

 

 

 

 

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