Recent cases on vicarious liability in the context of historical abuse

Vicarious liability is a developing area of law particularly in respect of personal injury claims for historical abuse. This article outlines three recent cases with a view to identifying a common thread.

The Childcare Centre Worker

In Plaintiffs A, B, C, and D v Bird¹, Schmidt AJ considered whether a childcare centre was vicariously liable for sexual abuse perpetrated by a person variously described as follows in documentary materials before the Court:

“Owner, a volunteer, cook, OHS officer, maintenance person, the playground supervisor, and a member of staff”.

Referring to the considerations in Hollis v Vabu², Schmidt AJ concluded the perpetrator was in fact an employee taking into account the following indicia:

• While the perpetrator was described as a volunteer, he was also said to be part of management and the centre’s playground supervisor.
• The perpetrator was not paid wages for his work, which he agreed would have reduced the amount of his pension, but he was remunerated by the various benefits he received.
• There was no question as to the extent of the perpetrator’s integration into the childcare’s business, given the nature of the work he performed at the centre for over 12 hours a day, Monday to Friday, as well as maintenance work on the weekend.
• Had the perpetrator not performed his work, others would have had to be employed to undertake that work, and the work he performed was the type of work which others were also employed to perform.
• There was no question that the childcare centre and its owner were able to control the work the perpetrator did.  The perpetrator had little control over when or how he performed his work, that being highly regulated, both by the centre’s policies and the applicable regulatory scheme.
• The perpetrator was presented to parents, children and other staff as an emanation of the childcare centre, wearing the same uniform as the other employees, which helped his identification as a member of staff.
• The perpetrator attended some, but not all, staff meetings.
• The childcare centre’s supervision of the perpetrator was no different to the supervision of other employees.
• All of the work that the perpetrator performed, and the work practices the childcare centre implemented and he followed, were thus consistent with him being an employee.

Ultimately, Schmidt AJ concluded that the considerable authority given to the perpetrator, the control which the childcare centre had and exercised over his work, his integration into the business, how he was represented to others, and how he was supervised, must result in the conclusion that he was an employee, not a volunteer.

Despite the perpetrator falling into a recognised category where vicarious liability can apply, Schmidt AJ commented that even if she had concluded the perpetrator was a volunteer, the childcare centre would still have been vicariously liable in the circumstances. This was based on AJ Schmidt’s consideration of the test in Prince Alfred College Incorporated v ADC³ and “the orthodox route of considering whether the approach taken in decided cases furnishes a solution to further cases as they arise”.

For convenience, the Prince Alfred test is outlined below:

In the present case, the appropriate enquiry is whether [the perpetrator’s] role as housemaster placed him in a position of power and intimacy vis-à-vis the respondent, such that [the perpetrator’s] apparent performance of his role as housemaster gave the occasion for the wrongful acts, and that because he misused or took advantage of his position, the wrongful acts could be regarded as having been committed in the course or scope of his employment. The relevant approach requires a careful examination of the role that the [the school] actually assigned the housemasters and the position in which [the perpetrator] was thereby placed vis-à-vis the respondent and the other children.

Schmidt AJ also commented on the vulnerability of the perpetrator’s victims, and that there was considerable importance in the deterrent effect of vicarious liability being imposed for a perpetrator’s activities in that environment. Schmidt AJ commented that by finding vicarious liability, it may encourage those who are vicariously liable to take steps to reduce the risk of future harm.

The Assistant Parish Priest

In DP (a pseudonym) v Bird⁴, Forrest J considered whether the Bishop or Diocese could be vicariously liable for abuse perpetrated by an assistant parish priest. This enquiry was expressed as two questions:

1. Was the relationship between the perpetrator and the Diocese or Bishop such that it gives rise to vicarious liability on the part of the Diocese for the perpetrator’s conduct?
2. If there is a relationship that gives rise to vicarious liability, is the Diocese or the Bishop liable for the perpetrator’s unlawful conduct, it being accepted that the assaults were unlawful and far outside the perpetrator’s clerical role.

Like Schmidt AJ in Plaintiff’s A, B, C, and D v Bird, Forrest J considered the decision in Hollis v Vabu. He concluded that, applying the criteria in that case, the perpetrator was not an employee of the Diocese given the absence of any formal employment contract or arrangement and the lack of immediate control or supervision by the Diocese of the perpetrator’s activities.

However, this conclusion was not fatal to the claimant’s case as Forrest J considered the appropriate determination of whether the Diocese may be vicariously liable for the perpetrator’s assaults required a “holistic and broad inquiry” which took into account the following factors:

• The relationship between the perpetrator and the Diocese
• The perpetrator’s role as an assistant parish priest in the community.
• The control exercised by the Diocese or the Bishop over the perpetrator and his role as an assistant parish priest.
• The centrality of the perpetrator’s work to that of the Diocese and the Church’s mission in the community.
• The opportunity the Diocese provided to the perpetrator to abuse his power or authority.
• The perpetrator’s relationship to the victim and with his family, both generally and at the time of the assaults.
• The vulnerability of potential victims to the wrongful exercise of perpetrator’s authority.
• The circumstances in which the perpetrator carried out the assaults of the victim.

In relation to the first question identified above, after careful examination and consideration of each of the above factors, Forrest J ultimately found the Diocese was vicariously liable by reason of:

1. the close nature of the relationship between the perpetrator and the Bishop, the Diocese and the Catholic community;
2. the Diocese’s general control over the perpetrator’s role and duties within the parish;
3. the perpetrator’s pastoral role in the community; and
4. the relationship between the victim, his family, the perpetrator, and the Diocese which was one of intimacy and imported trust in the authority of Christ’s representative, personified by the perpetrator.

In relation to the second question, Forrest J further found, the perpetrator’s role as a priest under the direction of the Diocese placed him in a position of power and intimacy vis-à-vis the victim that enabled him to take advantage of the victim when alone. This position significantly increased the risk of harm to the victim. The perpetrator misused and took advantage of his position as a confidante and pastor to the victim’s family, which enabled him to commit the assaults. Consequently, despite the unlawful nature of the abuse, the Diocese was vicariously liable for the perpetrator’s assaults.

The Honorary Member of the House Guilds

In PCB v Geelong College⁵, O’Meara J considered whether a school was vicariously liable for a perpetrator who was an honorary member of its “House of Guilds”, being a building or complex of spaces fitted out to facilitate woodwork, ceramics and other crafts. The House of Guilds was open to students of the school but could also be attended by members of the community upon the payment of a membership fee.

The perpetrator was not ever trained as a teacher and did not have any formal status as a teacher paid by the school.  That being said, the school did not contest the proposition that there were a series of links between it and the perpetrator, including:

• a statement in the school magazine that the perpetrator was helping to run the House of Guilds;
• the perpetrator’s giving instruction in relation to woodwork to a student and reporting in writing in respect of progress (whilst being paid privately by a student’s parents);
• the perpetrator’s regular presence at and involvement in the House of Guilds such that some witnesses referred to him as, in effect, part of the ‘fabric’ of the place;
• the perpetrator’s relatively free interaction with both staff and students whilst he was at the House of Guilds, including assisting children; and
• the perpetrator’s occasional involvement in the supervision of students in the House of Guilds.

Whilst the plaintiff and some witnesses gave evidence they thought the perpetrator was a teacher, others said they knew he was not a teacher, and O’Meara J did not accept the school generally held the perpetrator out as a teacher of the school to those attending the House of Guilds.

O’Meara J concluded that the school was not vicariously liable for the criminal acts perpetrated on the student. In finding the perpetrator was not akin to an employee, O’Meara J concluded the perpetrator more likely endeavoured to infiltrate the operations of the House of Guilds and perhaps the school more generally for his own purposes.  His conduct in doing so should not be taken to have been or to be akin to an employee. There was no evidence that any of his conduct in respect of the school was by any formal direction by the school headmaster or management, nor was he assigned a professional title, paid by the school, or supervised by a superior at the school.  Further, the school did not ever maintain a personnel or any other form of ‘employment’ style file in respect of the perpetrator.

O’Meara J commented the Prince Alfred test related to whether an employer should be vicariously liable for the unlawful acts of its employee. Consequently, the employer/employee relationship was already established, and the test is not to be used as a framework for finding vicarious liability in cases where that relationship is not already apparent. This is in some contrast to the comment of Schmidt AJ in Plaintiffs A, B, C and D v Bird as outlined above, however as noted in that case, Schmidt AJ had already undertaken the exercise of examining the relationship between the perpetrator and the childcare centre and concluding it was one of employment.

O’Meara J further stated that the relationship of employer and employee is a necessary intermediate step in making a finding of vicarious liability, and the reasoning in Prince Alfred does not remove this requirement. It is not enough to simply search for a “special role” that may have been held by the perpetrator, discerned by reference to a multifactorial analysis untethered to any distinct, assigned, or formal relationship between the parties.

Conclusion – possible common threads

It is clear that this area of law is one requiring further judicial consideration and guidance and will continue to develop. In the meantime, what might be drawn from the three cases outlined above is that:

1. The lack of a contract of employment may not be fatal to a finding of vicarious liability.
2. If there is no contract of employment, it is essential to carefully examine the relationship between the perpetrator and the potentially vicariously liable party to determine if it is akin to employment.
3. The perpetrator having a “special role” in association with the potentially vicariously liable party is not enough. Reference must be had to previous caselaw regarding the indicia of an employment relationship and the principles of vicarious liability, including Hollis v Vabu, and Sweeney v Boylan Nominees Pty Ltd⁶.
4. The test in Prince Alfred is not of itself a test for vicarious liability. A relationship of employment (or one akin to employment) must first be established. Once this is done, the Prince Alfred test can be used to assess whether the employer should be vicariously liable for unlawful acts clearly not within the scope of employment.

^{1 Plaintiffs A, B, C & D v Bird, Clancy and Little Pigeon Pty Ltd t/as Footprints Childcare Centre [2020] NSWSC 1379
2 Hollis v Vabu Pty Ltd [2001] HCA 44
3 Prince Alfred College Incorporated v ADC (2016) 258 CLR 134
4 DP (a pseudonym) v Bird [2021] VSC 850
5 PCB v Geelong College [2021] VSC 633
6 Sweeney v Boylan Nominees Pty Limited [2006] HCA 19}

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