Vicarious Liability: Does Liability Extend Beyond the Employment Relationship?
On 13 November 2024, the High Court of Australia allowed an appeal from the Court of Appeal of the Supreme Court of Victoria which concerned a decision around vicarious liability, and whether institutions can be held liable for the unlawful actions of someone who is not covered by an employment contract. The full decision can be found at this link (Decision). This Decision highlights the circumstances in which vicarious liability applies and places emphasis on the importance of the contractual relationship of employment.
Background
In 1971, at the age of five, ‘DP’ was assaulted and sexually abused by Father Bryan Coffey (Coffey), a now deceased Catholic priest from the local parish church, St Patrick’s. The abuse occurred on two separate occasions, in his parent’s home in Port Fairy. In 1999, Coffey received a three-year suspended sentence after being convicted of charges that included indecent assault of males and females under the age of 16.
St Patrick’s is within the Catholic Diocese of Ballarat (Diocese). In 2020, ‘DP’ commenced proceedings in the Supreme Court of Victoria claiming damages for psychological injuries he had suffered as a result of the abuse. It was alleged that the Diocese was vicariously liable for Coffey’s actions. Crucially, Coffey was an assistant parish priest and not an employee of the Diocese.
The primary judge held the Diocese vicariously liable for the assaults. It was held that despite not having an employment contract, Coffey was a ‘servant of the diocese’ and held a position of authority and trust which allowed him to have access to children.
The Diocese appealed to the Court of Appeal and the appeal was unanimously dismissed. The Diocese was then granted special leave to appeal to The High Court.
What is Vicarious Liability?
Vicarious liability is the principle that employers can be held legally responsible for the unlawful actions that occur in connection with a person’s employment. This can include actions committed in the workplace or at other places where the person was performing work-related functions. In order for organisations to comply with its duty of care, organisations need to demonstrate they have taken all reasonable steps to prevent unlawful actions and misconduct from occurring and respond appropriately to any incidents that do occur.
The High Court Decision
The High Court considered the issue of whether vicarious liability applies, or should be extended, to a relationship which is not governed by an employment contract, and whether the relationship between Coffey and the Diocese gave rise to a relationship of vicarious liability. This was the first time the Court was asked to consider whether a religious institution could be held vicariously liable for one of their priests sexually abusing a child when there was no employment contract involved.
The High Court allowed the appeal from the Diocese. The High Court found that there was no employment relationship between the Diocese and Coffey, and the finding of vicarious liability was overturned.
What Does This Mean?
This decision highlights the importance of the contractual relationship of employment. The circumstances under which organisations can be held vicariously liable are limited to situations where the person who committed the act is under an employment contract. Therefore, it appears that there is less emphasis placed on the person’s role but rather their engagement with the organisation. The legal focus is on the rights and obligations contained in the employment contract, regardless of how the parties involved label their working relationship.
This decision will likely impact survivors of institutional abuse seeking redress. Plaintiff lawyers will need to carefully consider the relationship between alleged abusers and the institution they wish to hold vicariously liable. Some religious institutions require ministers of religion to be bound by employment contracts and others do not, which means vicarious liability will have to be decided on a case-by-case basis.
The High Court stated in its judgment that, ‘reformulation of the law of vicarious liability is properly the province of the legislature’. It is therefore expected that regulatory reform will occur in the coming months, as Attorney-General offices from Australia’s states and territories announced they would meet in January 2025 to consider urgent legislative reforms, following this High Court decision.
How can Safe Space Legal help?
Regardless of the contractual arrangement between workers and volunteers, organisations must be taking active steps to mitigate risks of harm to children and young people. Organisations who engage workers and volunteers must ensure that they are complying with the National Principles of Child Safe Organisations and relevant state based Child Safe Standards, which requires organisations to mitigate risk of abuse and harm to children and young people.
Organisations must also ensure that they are compliant with the Reportable Conduct Scheme, which has a wide definition of employee and extends to those who are not in an employment contract with the organisation.
The team at Safe Space Legal have extensive experience working with organisations to support and strengthen their safeguarding practices. We work with employers across Australia to ensure they are meeting their child safety obligations and legal health and safety obligations. We frequently conduct independent safeguarding investigations when critical incidents occur.
Safe Space Legal provides services to ensure organisations are best practice leaders in safeguarding and are taking reasonable steps to mitigate risk of harm to children and young people. We tailor the following services to our clients’ needs:
- Drafting legally sound Child Safety and Wellbeing policies, procedures, and codes of conduct.
- Supporting organisations to identify gaps in policy and/or practice which put the organisation at risk of non-compliance with legal obligations through audits and gap analyses.
- Delivering training to ensure organisations and staff are aware of their legal obligations.
- Conducting safeguarding investigations which are compliant with relevant state and territory legislation and regulations.
- Ensuring that complaints handling and reporting processes are compliant with legal obligations.
- Empowering organisations respond to child safety allegations and complaints regarding health and safety breaches.
- Providing sound legal advice on risk mitigation and risk management
Contact office@safespacelegal.com.au or call (03) 9124 7321 to organise a complementary discussion in relation to your organisation’s child safety and safeguarding needs.