From: Paula Giliker <Paula.Giliker@bristol.ac.uk>

Sent: Wednesday 13 November 2024 09:16

To: Neil Foster; obligations@uwo.ca

Subject: Re: HCA on Vicarious Liability of bishop for priests

 

Thank you Neil.  Australia seems determined to go its own way - and UK law, notably Lister and CCWS, ends up in its firing line.

 

Controversially, the majority state: "Reformulation of the law of vicarious liability is properly the province of the legislature" [67].

 

While this makes more sense in the Australian context, the different legislative instruments to date following the Royal Commission report do not give one confidence that this is the optimal step.

 

There is a sense that the courts are being steered away from vicarious liability and towards non-delegable duties (Edelman J is in the majority). While interesting, this does not, of course, help survivors of clergy sexual abuse, a topic sadly dominating the headlines in UK newspapers today.

 

Best wishes, Paula

 

 

From: Neil Foster <neil.foster@newcastle.edu.au>
Sent: 13 November 2024 01:58
To: obligations@uwo.ca <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

 

 

The University of Newcastle
Hunter St & Auckland St, Newcastle NSW 2300

The University of Newcastle

Top 200 University in the world by QS World University Rankings 2021

I acknowledge the Traditional Custodians of the land in which the University resides and pay my respect to Elders past, present and emerging. 
I extend this acknowledgement to the Worimi and Awabakal people of the land in which the Newcastle City campus resides and which I work.

CRICOS Provider 00109J

 

 

[1]           Sweeney (2006) 226 CLR 161 at 173 [33].