Thanks for sending this through Neil.   

I found the judgment both well constructed and well considered.  I think it does fit within the recent guidance issued by the High Court of Australia in Prince Alfred College, but share your concerns about using the term ‘vicarious liability’ to cover all instances in which strict liability might be imposed on one person for the tort of another. 

What is clear from the judgment of J Forrest J is that the relationship that triggered the liability was not that between the Diocese and the priest per se, but the relationship between the Diocese and the plaintiff and the position the priest was put in vis-à-vis the plaintiff by the Diocese.  This is different to cases in which strict liability for the tort of another is imposed by reason of the relationship between the defendant and the tortfeasor, for which generally only an employment relationship will qualify.  J Forrest J describes the distinguishing feature of this latter type of case as arising on ‘commercial and industrial facts’ (at [188]), a distinction which does not seem to me to be particularly useful. 

In response to Jason, the tortfeasor in CML was a contractual agent, being authorised to obtain insurance proposals and collect premiums on behalf of his principal.  It is therefore closer to DP than the standard case of vicarious liability for an employee, where there is no need to prove the existence of any relationship between the employer and the plaintiff.  The trigger for the liability in CML was the relationship between the principal and the contracting party and the position the agent was placed in vis-à-vis the contracting party by the principal. 

The emphasis on facts by both the High Court of Australia and the UK Supreme Court in cases of vicarious liability is understandable.  There is a need, however, for some degree of guidance by those courts to prevent judges in lower courts making category mistakes.  That risk is currently quite high given that a single term is used to describe instances of strict liability for the tort of another which are factually distinct ie triggered by different relationships.  The question seems to be one of balance.  General tests have proven too fallible to be useful, but pointing lower courts to make appropriate factual analogies without indicating when and why those factual analogies are appropriate can create as many problems. 

It seems to me, therefore, that there is authority for imposing strict liability for the tort of another outside an employment relationship in Australia (eg CML), it’s just that the High Court of Australia has not been as clear as it might have been in isolating the circumstances in which such liability might arise.  Prince Alfred College was a step in the right direction, but more work is needed to assist lower courts make the necessary factual distinctions.  The UK Supreme Court faces a similar challenge following the decision in Barclays Bank. 

It is worth noting that J Forrest J also considered the question of whether an award of damages for vicarious liability could extend to exemplary damages, which he denied (at [474]). 

All the best for 2022

Christine