From: Jason W
Neyers <jneyers@uwo.ca>
Sent: Wednesday
13 November 2024 20:20
To: obligations
Subject: ODG: HCA
on Vicarious Liability of bishop for priests
I read the majority (or plurality in Australian English), and have to
say that I do not find it convincing. (Reading the rest will have to wait
for tomorrow).
First, I am not sure how the court would explain the venerable cases
(which one expect to have been incorporated in Australian law long ago) that
recognized vicarious liability for borrowed servants or servants pro hac vice
(some of which were volunteers vis-à-vis their 'employer') which suggest that
the existence of a contract of employment is not a touchstone for the
relationship necessary for vicarious liability.
Second, I find it hard to believe that there could be no vicarious
liability if someone worked for another person on a gratuitous basis (as a
volunteer intern for example) and committed a tort, when if the same act was
done by a person employed under similar working conditions but on a minimum
salary there would be vicarious liability. Something seems off ...
The old cases justified imposing vicarious liability on the basis of a
master /servant relationship which suggests that that category of vicarious
liability is broader than modern concepts of employment. I think that the High
Court has mistakenly conflated those two categories. The question to be asked
therefore (if one likes being as traditional as the High Court seems to want to
be) was: what are the indicia of a master/servant relationship. Since control
traditionally was the touchstone and it was admitted that there was as
great, if not more, control than in an employment relationship, Priest/Bishop
would seemingly be a master/Servant relationship which could attract vicarious
liability.
Third, no justification is given for the rule relied on by the court
that true agency (the attribution of acts) conceptually mandates only
express, implied or apparent authority. As long ago as the 1930s, agency
scholars such as Cecil Wright argued that there was no reason of principle why
the rules of attribution for vicarious liability and for true agency should be
different, so no necessary reason why the acts of sexual abuse could not be
attributed if the liability for sexual assault could be attributed for
vicarious liability.
Sincerely,
Jason Neyers
Professor of Law
Faculty of Law
Western University
Law Building Rm 26
e. jneyers@uwo.ca
t. 519.661.2111 (x88435)
From: Robert Stevens <robert.stevens@law.ox.ac.uk>
Sent: November 13, 2024 6:27 AM
To: Paula Giliker <Paula.Giliker@bristol.ac.uk>;
Neil.Foster <Neil.Foster@newcastle.edu.au>;
obligations <obligations@uwo.ca>
Subject: RE: HCA on Vicarious Liability of bishop for priests
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.
A
judge presented with a case that has been argued on the wrong basis may well be
tempted to try to get to the correct result (in the abstract or as an exam
question) by distorting the doctrine of the basis upon which the case has
actually been argued. That temptation may be overwhelming where the plaintiffs
who will be denied a claim that should succeed if argued properly are children
who have been the victims of grotesque abuse.
That
is the sorry history of vicarious liability in the Commonwealth in child
abuse cases over the last 25 years, from Bazley v Curry (Canada), Lister v
Hazley Hall (UK) through to today Bird v DPP (Australia).
The
problem with distorting other rules to get at the right result is demonstrated
by the dreadful mess of UK law over that period. Once the law broke free of its
traditional moorings (employees, acting in a way that was either authorise or
an unauthorised mode of an authorised act) litigants (naturally enough) tried
to test the limits of the new rule. The problem was made worse by the academic
orthodoxy since the 1970s that vicarious liability is a form of strict
liability for harm justified by a basket of policy concerns (eg enterprise
liability). In the UK, the judges have tried in recent years to put the genie
back into the shattered lamp, but because the articulated rules have no
relationship to the policies that are (still) said to justify them, it just
looks arbitrary and unconvincing.
As
other areas of the law of torts have returned in recent years to a position
recognisable by lawyers of earlier generations (eg liability for pure economic
loss, liability of public authorities for failing to confer benefits) vicarious
liability has been a sad outlier, collapsing into an unjustifiable mess.
We should have a label for the necessary
relation between one person and another sufficient for the vicarious liability
rules to be engaged. Traditionally that label has been master/servant . We can
have an argument about who should count for this purpose (is a contract
necessary? what degree of control suffices?) but it makes no sense to have two
labels for one category as English law now does (employees and other people a
bit like employees). The Australians get that right.
If, like me, you think that the rules cannot
be explained as a form of strict liability for harm caused (one of many proofs
of this is that there is no requirement to show that the employer made any
causal contribution to the harm, nor can the employer escape liability by
proving beyond peradventure the absence of any contribution by the employment)
but is rather based upon the actions of the employee being attributed to the
employer, than the traditional Salmond test makes perfect sense, and again the Australian
courts were right not to have been so keen as other jurisdictions to abandon
it.
Similarly, the default rule is that
non-delegable duties that care will be taken arise whenever one party assumes
responsibility for another s person or property. If I bail my car to you, if
that car is then destroyed by the negligence of a sub-bailee, it won t avail
you to show that you have been perfectly careful.
So, according to the orthodox position, that
still prevails in Australia, this case should have been argued, as Professor
Foster powerfully argues, as a non-delegable duty case, not on the basis of
vicarious liability. Again, the academics may be partly to blame for the fact
that this was not done in the past: the leading Australian torts textbook once
claimed that non-delegable duties are just a form of vicarious liability under
a different label, which they are not. This led to the (obvious) mistake that is
New South Wales v Lepore, which will now hopefully be challenged before the
HCA.
If a case is not pleaded and argued
competently, clients will have a claim against those advising them. I don t
think it is consistent with the judicial function to give judgment according to
anything other than the law, and the case as pleaded and argued, however much
sympathy we may have for the terrible wrong done to the victim.
Rob
From: Paula Giliker <Paula.Giliker@bristol.ac.uk>
Sent: 13 November 2024 09:16
To: Neil Foster <neil.foster@newcastle.edu.au>;
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
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].
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