Abuse Law: What is vicarious liability?

Vicarious liability is where a party can be held legally responsible for the actions of another party. Vicarious liability has two essential characteristics. First, it is liability for the negligence (or other wrong) of another. Secondly, it is strict liability – that is, liability without proof of fault. A person can be vicariously liable for the negligence of another no matter how careful the person was in all relevant matters, such as choosing and supervising the other.   

 

Relationships in which a party may be liable vicariously include contractors and sub-contractors, where a sub-contractor fails to complete a job. However, vicarious liability is most commonly associated with the relationship between employer and employee, and this is typically the relationship when vicarious liability is alleged in abuse law claims. An employer can be liable for negligent acts or omissions by an employee in the course of their employment. It does not matter whether the employer gave their permission to the employee to act, or not to act, in the way that caused the damage. 

 

The common law of Australia has been slow to clearly identify the type of factual situations which would (or would not) attract vicarious liability in an institutional abuse setting. In the matter of Prince Alfred College Inc v ADC [2016] HCA 37, ADC was a boarder at Prince Alfred College in the early 1960s. He was abused by a boarding house master named Bain. The relevant principles are set out in the decision of the High Court. Their Honours reviewed the early English and Australian authorities, together with the Canadian and United Kingdom case law on vicarious liability, and also considered the earlier decision of New South Wales v Lepore [2003] HCA 4. In Prince Alfred College Inc v ADC [2016] HCA 37, their Honours stated at [81]: 

 

“The relevant approach is to consider any special role that the employer has assigned to the employee and the position in which the employee is thereby placed vis-à-vis the victim.  In determining whether the apparent performance of such a role may be said to give the ‘occasion’ for the wrongful act, particular features may be taken into account.  They include authority, power, trust, control and the ability to achieve intimacy with the victim.  The latter feature may be especially important.  Where, in such circumstances, the employee takes advantage of his or her position with respect to the victim, that may suffice to determine that the wrongful act should be regarded as committed in the course or scope of employment and as such render the employer vicariously liable.” 

 

Where, in such circumstances, the employee takes advantage of his or her position with respect to the victim, that may suffice to determine that the wrongful act should be regarded as committed in the course or scope of employment and, as such, render the employer vicariously liable 

 

Further to Prince Alfred, DP (a pseudonym) v Bird [2021] VSC 850; BC202114025 (DP v Bird) is a Victorian Supreme Court decision that was handed down on 21 December 2021. In this case, the Plaintiff (DP) alleged that he was sexually abused by Father Coffey (Coffey), a priest incardinated within the Diocese of Ballarat, on two occasions in 1971. The alleged abuse occurred at DP’s family home. At the time of the alleged abuse, Coffey was the assistant parish priest to Father O’Dowd at St Patrick’s Port Fairy (located within the Diocese) and a teacher at the associated St Patrick’s Primary School (the school). Father Coffey taught at the school during the relevant period. 

 

Whether the Diocese was vicarious liable for any assault of DP by Coffey was one of the six primary issues to be determined. When deciding whether to impose vicarious liability on the Diocese, the judge posited that this raises two fundamental and closely inter-related questions, being:  

 

  1. 1. Was the relationship between Coffey and the Diocese or Bishop such that it gives rise to vicarious liability on the part of the Diocese for Coffey’s conduct? 

 

  1. 2. If there is a relationship that gives to vicarious liability, is the Diocese or the Bishop liable for Coffey’s unlawful conduct, it being accepted that the assaults were unlawful and far outside Coffey’s clerical role?

 

The judge ultimately answered both questions in the affirmative and, therefore, imposed a finding that the Diocese was vicarious liability. 

 

We are specialist abuse lawyers and can help you receive acknowledgement, meaningful apology and financial resolution from those institutions and systems of power that failed to protect you from harm. If you would like advice in relation to a childhood or adult sexual, physical and/or psychological/emotional abuse claim, please reach out to the author and Littles Lawyers today. 

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