From: Neil Foster
<neil.foster@newcastle.edu.au>
Sent: Wednesday 13 November 2024
01:59
To: obligations@uwo.ca
Subject: ODG: HCA on Vicarious
Liability of bishop for priests
Dear Colleagues;
The High Court of Australia has handed down a decision today, Bird
v DP (a pseudonym) [2024] HCA 41
(13 November 2024) in which it holds (by 6-1 majority) that the doctrine of
vicarious liability should not be extended to apply to relationships akin to
employment . In doing so it upholds an appeal against the decision of the
Victorian Court of Appeal in [2023] VSCA 66, (2023) 69 VR 408 that the Roman
Catholic Bishop of Ballarat (and the diocese) should be held to be vicariously
liable for historic acts of child abuse committed by one Coffey, who at the
time was an assistant priest in the diocese. It was accepted at all times that
a priest is not an employee of the bishop or diocese.
There is a joint plurality judgment from GAGELER CJ, GORDON, EDELMAN,
STEWARD AND BEECH-JONES JJ, a concurring separate judgment from Jagot J, and a
judgment from Gleeson J in which her Honour would have accepted the akin to
employment extension but holds that on the facts there was no liability as the
actions of Coffey were not in the scope of his (quasi?) employment.
Imposition of vicarious liability, of course, involves two main
questions, which have come to be called stage 1 (is there a relationship
between the defendant and the wrongdoer which the law recognises as creating
VL), and stage 2 (was the wrong committed in the course or scope of that
relationship?) The primary issue in this case was the relevant test for stage
1. As colleagues here will be well aware, in recent years the UK Supreme Court
has approved extension of the stage 1 test to include a relationship akin to
employment .
The plurality judgment notes that there is an unbroken series of HCA
decisions over the last 20 years or so ruling that stage 1 of the vicarious
liability test can (with limited exceptions) only be satisfied by the existence
of an employment relationship between the actual wrongdoer and the defendant.
They say that the VCA were in error in adopting the arguments in favour of
extending this to pick up the akin to employment category. See [47]:
[47] 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.
The judgment notes from [54] the extensions made by the UKSC. However,
they note at [60] some of the implications this extension has had and conclude
that this is not the way the law of Australia should be developed. They say:
[63] 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".[1]
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.
They note that legislation has addressed some of these issues, but
conclude that the court should not intervene to extend the common law in ways
that the legislature has not done so far.
I agree with this decision, as I noted in my SSRN piece on the appeal:
see https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4810264
. However, I think it unfortunate that, the matter having been raised by a
notice of contention, the judgment says that the court will not consider
the possible extension of a non-delegable duty to cover intentional torts,
which I think is a preferable way of dealing with the issue. The extension is
not precluded for the future, just that they hold that it was not raised in the
courts below and that there may have been a need for more fact-finding before
it could have held that it applied in this case- see [42]-[43].
As noted, Jagot J in effect agrees with the plurality. Gleeson J
dissents on the akin to employment issue, arguing that the previous course of
HCA authority does not preclude this extension of the law. However, her Honour
concluded that even if stage 1 were satisfied, on the facts Coffey was not
acting in the course of his relationship and so stage 2 would not have been
satisfied.
The judgements helpfully cite a number of colleagues from our list.
Regards
Neil
NEIL FOSTER
Associate Professor, School of Law and Justice
College of Human and Social Futures,
University of Newcastle, NSW
T: +61 2 49217430
E: neil.foster@newcastle.edu.au
Further details: http://www.newcastle.edu.au/profile/neil-foster
My publications: http://works.bepress.com/neil_foster/ , http://ssrn.com/author=504828
Blog: https://lawandreligionaustralia.blog
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