Vicarious Liability in Australia – A brief look at the current position and how it accords with Vicarious Liability in England and Wales

The ongoing developments regarding vicarious liability in England and Wales have been covered previously by my colleagues in the BLM Abuse and Neglect News Blog; especially in light of the recent cases of Blackpool FC v DSN [2021] EWCA Civ 1352 and TVZ v Manchester City Football Club [2022] EWHC 7 (QB) in which the basis for a vicarious liability finding was considered in detail.

Some recent blogs on vicarious liability include:

In Australia, similar to England and Wales, there have been some recent cases dealing with the issue of vicarious liability which provide further guidance as to how these types of cases are being dealt with.

PCB v The Geelong College

The case of PCB v The Geelong College [2021] VSC 633 was hailed as a landmark case not only for the level of damages awarded as a result of a finding of liability on the grounds of negligence but also for reframing the way a Defendant ought to approach vicarious liability in proceedings concerning historic sexual abuse.

The Claimant brought proceedings against the College which established, owned and operated a building known as the House of Guilds which was a space for students to pursue hobbies and crafts. The Claimant alleged that a community member, who had no formal relationship with the College but was sometimes left to supervise the House of Guilds and occasionally had access to keys, groomed and sexually assaulted him on more than 50 occasions, including at the House of Guilds, in the community member’s car as well as the Claimant’s home.

The College submitted that it should not be held liable for various reasons including:
• It provided a full-time warden and had a system of rostering and supervision within the House of Guilds;
• Prior to the enactment of the Working with Children Act 2005, when the alleged conduct took place, was a “different time”;
• It was not in a position to exercise control over what happened on premises other than its own; and
• the abuse occurred as a result of contact between the Claimant and the community member that was arranged with the knowledge and permission of the Claimant’s parents.

As to the allegation that the College was vicariously liable for the abuse perpetrated by the community member on the basis that he was in an employment-like relationship with the College, the Judge dismissed it and affirmed that vicarious liability requires:

• the presence of a relationship of employer and employee; and
• a special role that the employer has assigned to the employee.

There had been no formal directions or assignments to the community member by the College thus there was no relationship between the College and the perpetrator.

As such the claim for vicarious liability was dismissed.

DP v Bird

The case of DP v Bird [2021] VSC 850 required the Court to consider whether the Diocese of Ballarat was vicariously liable for sexual abuse allegedly perpetrated by one of its priests, Father Coffey, on two occasions in 1971. The abuse occurred at Father Coffey’s home. He was the assistant parish priest as well as a teacher at the associated primary school.

The issues considered in that case were:

  1. Was the relationship between the priest and the Diocese or Bishop such that it gave rise to vicarious liability on the part of the Diocese for the priest’s conduct? (i.e. the nature of the relationship)
  2. If there is a relationship that gives to vicarious liability, is the Diocese or the Bishop liable for the priest’s unlawful conduct, it being accepted that the assaults were unlawful and far outside the priest’s clerical role? (i.e. should the Diocese be held liable?)

The Judge considering the matter ultimately found that the answer was yes to both of these questions and found that the Diocese were vicariously liable for Father Coffey’s conduct.

The Claimant relied upon authorities in the UK and Canada that the Diocese ought to be vicariously liable irrespective of whether the priest was an actual employee. The Diocese argued that unless it can be proven Father Coffey was its employee, then it cannot be held liable for the Father Coffey’s conduct arguing that the law in Australia at this time meant that considering vicarious liability outside of an employment scenario was prevented.

The Judge raised that “whether or not a priest can be said to be an employee of his or her diocese or bishop turns on the facts of the case, in particular, the manner of the priest’s appointment and the nature or structure of the relevant religious organisation”.

His analysis of the case law was that there was not a confined theory of vicarious liability restricted solely to an employer/employee relationship as contended by the Diocese.

For present purposes, it was accepted that the priest was not an employee of the Diocese as such but otherwise found in the claimant’s favour in respect of the nature of the relationship determining that vicarious liability ought not be limited to “preconceived notions of agency or employment” and, in line with other case law, “the inquiry ought to be directed to the totality of the relationship so as to enable a determination as to whether the Diocese should be held vicariously liable for Coffey’s actions as an assistant parish priest”.

The Judge considered the appropriate inquiry was whether Father Coffey’s role as a priest placed him in a position of power and intimacy such that his apparent performance of his role as a priest gave the occasion for the wrongful acts and that because he misused or took advantage of his position, the wrongful acts could be regarded as having been committed in the course of his employment.

It was ultimately found that Father Coffey was engaged in a pastoral visit when committing the alleged abuse thus in a position of power and therefore the Diocese was vicariously liable for Father Coffey’s conduct due to:

  1. The close nature of the relationship between the Bishop, the Diocese and the Catholic community in Port Fairy (where St Patrick’s school was located),
  2. The Diocese’s general control over Father Coffey’s role and duties within St Patrick’s parish,
  3. Father Coffey’s pastoral role in the Port Fairy Catholic community; and
  4. The relationship between the Claimant, his family, Father Coffey and the Diocese, which was “one of intimacy and imported trust in the authority of Christ’s representative, personified by Coffey”.

Brief comparison with recent English case law

As above, I refer to my colleagues’ blog posts as to the specificities relating to the law of vicarious liability in England and Wales.

The general rule is that vicarious liability is considered via an established two stage test which is:

  1. Is the relevant relationship between the perpetrator and organisation one of employment or “akin to employment”? Where it is not clear then regard should be had to the following (amongst other issues as identified in the Christian Brothers case):
    • The employer is more likely to have the means to compensate the victim and can be expected to have insured against that liability
    • The act will have been committed as a result of activity being taken by the employee on behalf of the employer
    • The employee’s activity is likely to be part of the business activity of the employer
    • The employer by employing the employee to carry out on the activity will have created the risk of the act being committed by the employee.
    • The employee will to a greater or a lesser degree have been under the control of the employer
  2. If so, was the act sufficient to closely connect with that employment or quasi-employment?

In respect of the recent cases of Blackpool and DSN (2021) and TVZ v Manchester City Football Club (2021), the Courts found:

  1. Blackpool v DSN – in the first instance, it found Blackpool Football Club to be vicariously liable as it was accepted that the relationship between the Club and abuser was one akin to employment and that the tort committed was in circumstances closely connected with the functions or duties arising from that relationship.  The Court of Appeal reversed this decision and held that the Club was not liable. The basis for this was that it was determined there was not a relationship akin to employment as there must be at the very least some measure of control that the Defendant is able to exert over the activities of the perpetrator to make it fair, just and reasonable to impose liability for his torts and in this case, “Blackpool FC was under no relevant statutory duty to boys who wanted to play football and did not ‘place’ the boys with Mr Roper in any meaningful sense of the word. The opposite was the case: Mr Roper scouted for boys who had no previous connection with Blackpool FC at all unless and until he introduced them to Blackpool.”
  • TVZ v Manchester City Football Club – regarding the issue of vicarious liability, the judge acknowledged that this was highly fact sensitive and that its resolution was not entirely straightforward: it depended on a detailed assessment of the nature of the relationship between the perpetrator (Mr Bennell) and the defendant.  The judge determined that the claimants had failed to establish ‘the essential ingredient of their case’, namely that Mr Bennell was in a relationship with the defendant “akin to employment” as Mr Bennell’s footballing activities were voluntary and undertaken in his spare time, his activities as a football coach had a distinct existence independent of the defendant, and there was very little evidence of the Defendant exercising control over Mr Bennell’s activities amongst other things.  As such the claimants’ claims were dismissed (as well as for other reasons including limitation).

Conclusion

The issue of vicarious liability still very much remains an area that needs to be considered in minute detail and on a case-by-case basis with each claim depending on its specific facts and circumstances. The specific role/s of the accused perpetrator, the supervising entity and the complainant always needs to be closely examined, including the context in which the alleged abuse occurred.  This is notwithstanding the specific test/criteria established and utilised in order to determine whether a finding of vicarious liability should be made.

What is clear is that the same issues relating to vicarious liability arise over various jurisdictions and a general unwillingness to make a finding of vicarious liability in cases where the specifics of an abuser’s involvement/employment with an association being sued is not crystal clear.  It is also important to be aware that whilst there are some recent (comprehensive) decisions in this area those in DSN (noted above) and in BXB v Barry Congregation of Jehovah’s Witnesses (2021) are being appealed and the latter will proceed to a hearing at the Supreme Court in late 2022.

Written by Suzanne Houghton, Solicitor at BLM (Suzanne.Houghton@blmlaw.com).

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s