Key Takeaways

• Vicarious liability (a form of strict liability whereby a defendant is attributed with the liability of another, despite the defendant bring free of fault) and non-delegable duty (a personal duty/direct duty owed to ensure that reasonable care is taken) are different concepts, which should not be (but are often in practice) conflated and/or misapplied.
• A relationship akin to employment (such as between the Catholic Church and a Parish Priest) will not be sufficient to impose a finding of vicarious liability. The High Court is not prepared to redraw the boundaries of vicarious liability as has occurred in Canada and the United Kingdom.
• Even where the relationship is sufficient to attract vicarious liability, it will not be a given that a court will find the tort(s) were committed in the course of that relationship – see the dissenting decision of Gleeson J in Bird. Whilst Her Honour was prepared to find that the law of vicarious liability in Australia should shift to align itself with the Canadian and UK authorities, Her Honour found that the subject Priest’s role did not give him the occasion for that harm as explained in Prince Alfred College.
• The result in Bird has led to demands for legislative reform to remove its (as acknowledged by the High Court) harsh impact. Whether the legislatures of each State and Territory of Australia will respond remains to be seen where the Commonwealth Royal Commission into Institutional Responses to Child Sexual Abuse recommended relevant changes to the law occur prospectively (not retrospectively), and legislation implementing changes to that effect (albeit differing between some States and Territories) already exists.
• The abolition of limitation periods in Australia for historical abuse matters has not altered the long-standing Moubarak principles by which applications for permanent stay should be considered, albeit that it may/will inform the analysis where claims can and should now be expected to be brought many years after relevant events such that the passage of time cannot (without more) enliven the courts’ power to grant a stay.
• The lack of defendant success in stay applications – in all three decisions given by the High Court (including GLJ) the defendants either failed outright, or substantially failed – suggests that even where historical abuse claims are made decades after the alleged events a permanent stay will only be granted in the most exceptional circumstances, and the high burden rests with defendants. Where there is or was an ability for a defendant to have investigated and inform itself of the allegations made the defendant’s onus is unlikely to be made out.
• Non-delegable duty looms large as the next area for High Court review. There are several clues in the judgements that suggest that the High Court will take some convincing that it should overturn the decision in Lepore that a non-delegable duty does not extend to the prevention of intentional criminal conduct by a third party. Willmot, however, suggests care needs to be taken in both pleading such a duty (plaintiff side) and responding to an allegation of such a duty (defendant side). The framing of pleadings (as always) will play a significant role in any matter(s) that come before the High Court.

Conclusion

The High Court in Bird, Willmot, and RC provide important clarification with respect to vicarious liability and permanent stay applications and are essential reading. How and if the High Court will be prepared to change the scope of non-delegable duty is to be seen, but undoubtedly will be tested in the not-too-distant future. The High Court provides some clues as to the position it may adopt, but how matters are pleaded and argued in this area will not doubt have a significant bearing on where the court directs us.

Further information / assistance regarding the issues raised in this article is available from the author, Scott Cowell, Partner or your usual contact at Moray & Agnew.