High Court: December 2024

TORTS

Vicarious liability – where priest committed sexual abuse whilst carrying out pastoral duties as representative of Diocese – whether vicarious liability extends beyond relationships of employment to relationships ‘akin to employment’

In Bird v DP (a pseudonym) [2024] HCA 41 (13 November 2024), the High Court allowed an appeal by the Bishop of Ballarat, who was the nominated defendant in the original proceedings for the Roman Catholic Diocese of Ballarat (‘the Diocese’), against the respondent (‘DP’), who was assaulted and sexually abused by a priest at a church within the Diocese (‘the Priest’), in 1971 when he was five years old. In 2020, DP sued for damages for psychological injuries arising from the abuse and alleged the Diocese was vicariously liable and liable in negligence for failing to exercise reasonable care in its authority, supervision and control of the Priest’s conduct. The Priest assaulted and abused DP twice while visiting DP’s home: once when he volunteered to put DP to bed after a dinner party and once inside a tent when DP showed him that tent which was a Christmas gift.

Original proceedings

The primary judge in the Supreme Court of Victoria and the first appeal judge in the Court of Appeal decided in favour of DP. The primary judge interpreted the Australian case law (Hollis v Vabu Pty Ltd [2001] HCA 44, Sweeney v Boylan Nominees Pty Ltd [2006] HCA 19 and Prince Alfred College Inc v ADC [2016] HCA 37) and some Canadian and United Kingdom case law (Bazley v Curry [1999] 2 SCR 534 and Various Claimants v Catholic Child Welfare Society [2013] 2 AC 1) as not ‘foreclosed’ to expanding vicarious liability to the relationship of a priest with their diocese and rejected the Diocese’s argument that Australian courts have adopted a ‘confined theory’ of vicarious liability where it is strictly confined to relationships of employment (at [7]). To determine if vicarious liability was made out in this case, the primary judge assessed the totality of the Priest’s relationship with the Diocese according to factors outlined at [9].

The Court of Appeal made a similar inquiry into the doctrine and found that vicarious liability has been recognised as going beyond a ‘confined theory’ in situations of true agency. It adopted a similar approach to the trial judge in assessing the factors underpinning the Priest’s relationship with the Diocese which are outlined at [27].

Grounds of appeal

The issues on appeal were:

• whether vicarious liability applies, or should be extended, to a relationship which is not employment but is ‘akin to employment’;
• if vicarious liability is possible for a relationship ‘akin to employment’, whether the Diocese was liable for the Priest’s conduct; and
• whether, pursuant to a notice of contention by DP, the Diocese is liable for breach of a non-delegable duty owed to DP.

Majority judgment

The High Court majority (Gageler CJ, Gordon, Edelman, Steward and Beech-Jones JJ) overturned the primary judge and Court of Appeal’s expansion of vicarious liability and rejected DP’s notice of contention as it was not raised in the original proceedings. The majority judgment was resoundingly clear: any expansion of vicarious liability is a matter for the legislature. While Jagot J’s separate judgment agreed with the majority, Gleeson J’s was in dissent.

The majority rejected the primary judge and Court of Appeal’s reading of the case law, stating:

‘The common law of Australia, as repeatedly stated by this Court, has adhered to the rule that a relationship of employment is a necessary precursor to a finding of vicarious liability’ (at [45]).

The majority consequently considered whether they should expand the boundaries of vicarious liability to a relationship that is ‘akin to employment’ and found ‘the answer is no’ (at [47]). They outlined the doctrine’s development, highlighting a ‘tortured history’ in which the concept has been difficult to cohere and unstable (at [48]). They found the High Court has never adopted an overarching theory based on ‘enterprise risk’ and has repeatedly refused to extend its boundaries to independent contractors (at [49]). In addressing Canada and the United Kingdom’s expansion of vicarious liability, the majority found it was based on:

‘contestable policy choices and allocations of risk which are matters upon which minds might differ and which this Court has repeatedly rejected as a sound basis for determining and developing the law of vicarious liability and duties of care’ (at [62]).

The majority addressed the policy implications: yes, the current principle can be harsh and deny victims compensation despite the relevant relationship being virtually equivalent to that of employment. However,

‘without a “clear or stable” principle for the imposition of vicarious liability, expanding the threshold requirement to accommodate relationships that are “akin to employment” would produce uncertainty and indeterminacy…’ (at [65]).

Minority dissent

Gleeson CJ found vicarious liability was capable of expansion based on an ‘evolution of attitudes’ towards child sexual abuse (at [78]). She remarked on the movement of several common law jurisdictions toward expanding vicarious liability and highlighted Australia’s removal of limitation periods for civil child sexual abuse actions, stating:

‘Without vicarious liability being an available cause of action for such historical abuse, the point of removing those limitation periods is significantly diminished’ (at [76]).

She also diverged from the majority’s narrow reading of the case law, citing Ng Huat Seng [2017] 2 SLR 1074 in finding that:

‘certain relationships “when whittled down to their essence, possess the same fundamental qualities as those which inhere in employer-employee relationships”, so that it is anomalous not to impose vicarious liability for torts committed in the course of the relationship’ (at [86]).

Gleeson CJ proposed a new test of first, asking if a tortfeasor is either an employer or an independent contractor. If the answer is neither, the court may then determine if the relationship is one that is akin to employment based on several factors broadly encompassing integration, subservience and dependence.

However, Gleeson CJ ultimately agreed with the majority’s orders as she found the assaults were not done in the course of the Priest’s employment. She found both occurred in situations that arose because DP’s parents trusted him in some personal capacity and his role did not justify him being left alone with DP. She stated:

‘[the Priest’s] role gave him neither authority nor power to insist on being alone with DP, nor any capacity to control DP’s parents in relation to decisions about allowing DP to be in [the Priest’s] sole care… That role did not involve, for example, providing religious instruction to DP alone or securing DP’s participation with [the Priest] in religious activities alone together, such as preparation for masses in which DP might have been [the Priest’s] altar boy’ (at [182]).

LEGAL CAPACITY

Immigration – cancellation of visa – where appellant’s visa mandatorily cancelled on the basis of ‘substantial criminal record’ – where appellant lacked legal capacity to make representations sought or to empower person to make decisions on his behalf

In BIF23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 44 (4 December 2024), the High Court allowed an appeal by an immigration detainee (‘appellant’), whose visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) (‘the Act’), against a decision of the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Minister’) to not reissue the notification of that cancellation. This was on the grounds the appellant lacked legal capacity to respond to the invitation made in the notification, or to formally empower a person to make decisions on his behalf by granting an enduring power of attorney or seeking the appointment of a guardian.

The notification invited the appellant to make representations to the Minister about revoking the cancellation within 28 days of receipt. It was issued and received at a time when the appellant was severely affected by schizoaffective disorder and experienced intense psychotic symptoms. He was not appointed a legal guardian until after the 28-day period had expired. The Minister refused to re-notify the appellant because the notification was seen as validly made pursuant to s 501CA(3) of the Act.

Grounds of appeal

The appellant initially appealed on the same grounds that were unsuccessful in the original proceedings: it was not ‘practicable’, in the language of s 501CA(3), to notify the appellant given his legal incapacity. However, throughout the hearing, a different ground emerged: the Minister could not discharge the duty to give notification in accordance with s 501CA(3) until the appellant obtained legal capacity or a legal guardian was appointed.

Majority judgment

The High Court majority (Gordon A-CJ, Edelman and Steward JJ) rejected the initial ground, finding that words like ‘practicable’ are ‘directed only at the physical step of giving notification and no more’ (at [40]). But they accepted the new ground, finding that duties such as that in s 501CA(3) give rise to an assumption of legal capacity. The minority judgment (Jagot and Beech-Jones JJ) agreed with the majority along similar lines.

The majority discussed the concept of legal incapacity and then discussed whether s 501CA(3) gives rise to an assumption of legal capacity. They did this with recourse to the foundations of the concept, and the language, statutory context and purpose of s 501CA(3). Regarding legal incapacity, the majority highlighted that ‘it is a fundamental principle that, in order for a person to do a legally effective act, they must have the necessary legal capacity to do so’ (at [37]). Historically emerging from the protective royal prerogative to act for the benefit of a ‘lunatic’ (at [35]), the majority stressed that the ‘common law’s concern to protect those who, for whatever reasons, lack capacity’ is embedded and reflected in legislation (at [39]).

Turning to the legislation, they found the use of the words ‘give’, ‘invite’ and ‘person’ presupposes a person’s legal capacity to make the decisions needed to respond effectively to such a notice:

‘the giving of the notice, particulars and invitation under s 501CA(3) will not be legally efficacious if those documents are given to a person who lacks legal capacity to make decisions with respect to the notice and invitation at the time the notice and invitation was delivered to them’ (at [41]).

This is because they inferred Parliament understood the ‘fundamental and well-established’ principle that people need legal capacity to ‘do a legally effective act or make a legally effective decision’ (at [42]). To establish an intent to eschew this principle would thus need ‘very clear language’ (at [43]). The fact that other provisions of the Act expressly apply to people without legal capacity informed the reading that s 501CA(3) was intended to assume legal capacity. The provision’s purpose to afford procedural fairness in a situation where, by virtue of s 501(5), natural justice does not apply was evident in the relevant Explanatory Memorandum and supported this construction (at [50]).

The majority addressed the Minister’s reliance on Minister for Immigration and Border Protection v EFX17 (2021) HCA 9 (‘EFX17’) in which an ‘incapacity to understand’ due to difficulties with English did not require the Minister to renotify under s 501CA(3). They distinguished such an incapacity from ‘an actual lack of legal capacity’ whereby someone can only make legal decisions through a legal guardian (at [55]). Unlike the present case, in EXF17 ‘there was no suggestion that the respondent lacked the ability to seek assistance’ (at [59]).

Vincent Barry is Assistant Legal Editor at the Law Society Journal.