Vicarious liability


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In claims for damages for personal injuries, it may not always be commercially viable to seek damages from the individual who caused the injuries.

This is because they may not be insured and, if this is the case, they may not be able to meet a court order.

As such, it is, from the outset, important to examine the circumstances in which the injuries are sustained and query whether there is an entity associated with the individual, and whether the relationship between the individual and the entity is of such a nature that it may be possible to argue the entity should be held liable for the individual’s acts or omissions which caused, or materially contributed, to the injuries.

If such a relationship exists, the first port of call in any claim for damages for personal injuries is to try and establish the entity owed and breached its duty of care to the claimant. Alternatively, another avenue which may be available is to establish that, by virtue of the individual’s employment, the employer is vicariously liable for the individual’s acts or omissions and, consequently, the claimant’s injuries. 

A simple illustration of this is an employee failing to properly stack shelves, with an item falling on a customer’s head and causing them to suffer injuries. Rather than seek damages from the employee as an individual, it would be advisable to instead, pursue the claim against their employer.

One important caveat at this juncture is whether there is a relationship in existence, such as employer and employee, to enliven the potential for a finding of vicarious liability. If the individual is, for example, an independent contractor, a relationship to justify a finding of vicarious liability may not be in existence, really leaving the claimant with potentially limited recourse. 

If there is an employment relationship, attention must then be turned to whether the employee’s actions fall within the scope of their employment. If, for example, an individual who is employed to arrange flowers assaults a customer, it is unlikely their employer need worry about any allegations of vicarious liability. 

However, context matters and the waters tend to become unclear in circumstances where, for example, an employed guard at a night club assaults a patron or where a police officer causes personal injuries to an individual when executing an arrest. 

The devil is in the detail and much will depend on the nature of the employee’s position, the associated virtues and responsibilities that attach to that role, and the interplay between those factors and the circumstances in which the injuries are sustained.

In respect to claims involving childhood sexual abuse, where, for example, a teacher is the alleged abuser, to be successful in establishing the employer is vicariously liable for the teacher’s criminal actions, close attention must be paid to the interconnectedness between the nature of the teacher’s position and role within the organisation vis-à-vis the student victim. 

In this regard, the High Court stated in Prince Alfred College Inc v ADC [2016] 258 CLR 134, that the test to be applied in any vicarious liability claim is an examination of the power, trust, control and the ability to achieve intimacy with the victim which the employee is entrusted with by virtue of their employed position, and which they then manipulate to abuse their victims. Unfortunately, in light of the facts of the case and as it was not required to do so, the High Court did not specifically address the issue of vicarious liability involving allegations of abuse made against members of religious institutions. 

As such, claims of abuse alleged to have been perpetrated by priests, nuns and the like remain complex. The issue in such claims, and one that is often touted by respondent solicitors, is that the alleged perpetrators of the abuse are not paid employees in a traditional master-servant type relationship. Consequently, they are of the opinion that, in those circumstances, the first limb in considering whether a relationship exists to found a finding of vicarious liability fails entirely.

Whilst perhaps technically accurate in the sense that such perpetrators are not ‘employed’ by the relevant religious entity, this line of reasoning entirely ignores any monetary benefit, including stipends, which the alleged perpetrator receives for their services. However, by analogy with the principles of contract law, consideration needs only be sufficient but not adequate.

It does, however, appear nonsensical to classify such people as independent contractors given the vocation they have chosen, the deep faith-based interconnectedness they have with the religious entity, the fact that they may have to be ordained into the particular religious entity and the like.

This grey area has caused a great deal of uncertainty for survivors of historical abuse who are pursuing compensation for their injuries against religious entities, as well as solicitors on both sides of the legal equation.

Recently, for the first time and applying the above High Court test, a superior Australian Court, in DP v Bishop Paul Bernard Bird [2021] VSC 850, held the responsible Catholic Diocese vicariously liable for the criminal actions of one its Assistant Parish Priests. The case involved historical childhood sexual abuse perpetrated against a child, in his home, by an assistant Catholic Parish Priest.

Consistent with historical judgments, the Supreme Court of Victoria found the Assistant Parish Priest was not an employee of the Diocese. The Court did, however, find that the relationship, particularly given the Diocese’s control over the Priest’s role and duties, was akin to one of employment such the relationship was sufficient to enliven the potential of a vicarious liability finding.

Somewhat disappointingly, the Court did not really explore its justification in that respect.  Notwithstanding the lack of reasoning though, DP is consistent with some overseas decisions where Courts have held that religious individuals, such as Priests, do occupy roles with the governing religious entity that really places them in positions akin to that of an employee/authorised agent and employer/principal to justify a finding of vicarious liability.

Whilst every case will turn on its own facts, it is of particular note that the decision of the Victorian Supreme Court was made despite the abuse occurring in a family home, away from the Church. Ultimately, the Court awarded DP $230,000, consisting of $200,000 in general damages, $20,000 for aggravated damages and $10,000 for special damages.

As in almost all claims involving historical abuse, careful consideration must be paid to the nature of the relationship between the abuser and the religious entity and between the abuser and the abused. There is not, therefore, any fixed rule that can be applied in all claims of this nature.

Of course, caution must be exercised when discussing the impact of the decision in DP, and the extent to which it may be applied in subsequent claims. In part, this is because the decision is not binding in Queensland. Additionally, the lack of discussion in respect to the ‘employment’ relationship leaves an important aspect of the legal equation open to further debate. Nonetheless, the issue of religious entities’ vicarious liability in historical abuse claims has been progressed and somewhat further clarified, all of which is beneficial for claimants seeking damages for their past abuse.

  1. Photo credit: Alexander Isreb

This article is of a general nature and should not be relied upon as legal advice. If you require further information, advice or assistance for your specific circumstances, please contact the Fisher Dore team.


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