Throughout this blog I have talked about vicarious liability – the rule that an employer is labile if their employee is negligent even where the employer has not been negligent in the way they select or manage employees. I have also argued that agencies that use volunteers – in this context the emergency services – will also be vicariously liable for the negligence of their volunteers even though there is no employer/employee relationship.

Bishop Paul Bernard Bird v DP

That argument has been tested albeit in contexts removed from the emergency services. In the first case, Bishop Paul Bernard Bird v DP (a pseudonym) [2023] VSCA 66, the Victorian Supreme Court of Appeal had to determine whether the Diocese of Ballarat (the ‘Diocese’) through the current Bishop, Paul Bird, was vicariously liable to DP for historic sexual abuse by one of the church’s assistant priests, Father Bryan Coffey.  Coffey was neither an employee nor an independent contractor ([77]).

The applicant argued that vicarious liability can only apply where there is an employment relationship. The Court of Appeal rejected this holding (at [82]) that, after a review of the legal precedents:

… it is evident that the principle of vicarious liability has not been confined solely and exclusively to cases in which the relationship between the tortfeasor and the principal is that of employer and employee. In particular, it has been recognised in the authorities that, in certain circumstances, vicarious liability may apply in respect of a relationship which is not that of employment.

A significant case in this area is Hollis v Vabu (2001) 207 CLR 21 where the High Court determined that a courier company was vicariously liable for the negligence of the courier. In that case the High Court found that the company was an employer even though it had tried to structure the arrangements to ensure the couriers were independent contractors. Even so the Court of Appeal in DP’s case said (at [94]):

…  the decision in Hollis is important, because it demonstrates the relevance and significance, as a criterion of vicarious liability, of the circumstance that the particular tortfeasor’s role was so closely tied with the enterprise of the employer that he or she was presented to the public as carrying out the work of, and representing, the employer.

Important factors identified by the majority (Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ), and McHugh J in a separate judgement were:

…  the right of the principal to control the work performed by the agent, and the circumstance that the agent was working in, and for the economic benefit of, the business of the principal.

In Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161 the defendant was not vicariously liable for the conduct of a fridge mechanic that failed to properly fix a commercial fridge so that the door fell onto a customer. In that case (at [103]):

… the defendant did not control the way in which the mechanic worked, the mechanic supplied his own tools and equipment, and brought his own skills to bear on the work that was done, and that, unlike in Hollis, the mechanic ‘was not presented to the public as an emanation of the respondent’.

At [114]-[116] the Court of Appeal said:

… a relationship may give rise to vicarious liability on the part of a principal, notwithstanding the tortfeasor [wrongdoer] was not an employee of the principal. In such a case, vicarious liability is imposed on the principal for the actions of the tortfeasor, on the basis that the work performed by the tortfeasor and the business of the principal were so interconnected that the tortfeasor represented the business of and/or the principal, and, by doing so, conducted the business of the principal…

… central to the application of the principle to employees is that, inherent in the relationship, is a contractual right of the employer to control the performance of the duties of the employee. By being subject to such control, the employee necessarily forms part of or represents the enterprise of the employer…

The Court then went onto consider ‘whether, applying the principles which we have discussed’ the evidence demonstrated relationship between the Diocese and Coffey, that would attract vicarious liability even though Coffey was not an employee.  Finding that a relevant relationship did exist the court noted (at [124]-[129]) that:

  • Coffey was appointed to his role by the Bishop;
  • The relationship was governed ‘by a strict set of normative rules that each of them had subscribed to… Those rules of Canon law also permitted the Bishop to exercise control over Coffey that was at least as great as, if not greater than, that enjoyed by an employer…’;
  • The Bishop could exercise control over Coffey ‘… by providing instruction, supervision, transfer, limitation on authority, and ultimately by seeking sanctions, including expulsion, from church authority. In return the priest was clothed with the authority of the church.’
  • … in his work as assistant priest, Coffey was very much a representative, and conducted the work, of the Diocese. His role, and the work he performed in undertaking that role, was necessarily and integrally interconnected with the fundamental work and function of the Diocese. In discharging his duties in that role, Coffey was not acting independently of the Diocese, but as a representative of it.’
  • He wore the uniform of a priest.
  • ‘As assistant priest, duly appointed by the Bishop, Coffey did the work of the Diocese … and the Diocese did its work by and through him. In a real and relevant sense, Coffey was the servant of the Diocese, notwithstanding that he was not, in a strict legal sense, an employee of it.’

Kneale v Footscray Football Club

The issue next arose in Kneale v Footscray Football Club Ltd [2023] VSC 679. In this case Richards J held that the football club was not vicariously liable for the wrongful conduct of a volunteer – the wrongful conduct again being historic sexual abuse.  Her Honour considered the role of the wrongdoer in this case was unlike the role of the priest. She said (at [36]-[37]):

… the relationship between the Club and Hobbs in this case did not remotely resemble that between the Diocese and the assistant priest in Bird. I note in particular the following:

(a)        Hobbs’ roles with the Club were informal, undocumented, and uncertain.  The Club had no written policies regarding the recruitment, supervision, or control of its volunteers.  This informality contrasts with the ‘strict set of normative rules’ that enabled the assistant priest to embody the Diocese in Bird.

(b)       The work performed by Hobbs was to sell membership and raffle tickets to the public, along with other volunteers.  Hobbs also claimed to have looked after the office when no-one was there and to have been a ‘doorman type thing’.  No‑one was quite sure what work he did for the Under 19s team.  Although he was well known and a constant presence at the Club, it was not possible to say that the work he performed was so interconnected with the business of the Club that he was, in effect, conducting that business.

(c)        Although the handling of money by volunteers was supervised, there was no evidence that the Club exercised control over Hobbs in relation to any other aspect of his work.  … The supervision of Hobbs’ work with the Under 19s was so slight that no-one could say what work he in fact did.

(d)       While there was a good deal of evidence that Hobbs exploited his access to Club premises and membership tickets, there was no evidence that the Club clothed him with authority to represent it in anything other than selling tickets and raising funds.

(e)        There was no evidence that Hobbs wore a uniform or any garments associated with the Club.  While most of the Under 19s personnel in the group photo in the June 1987 edition of The Bulldog wore some kind of uniform, Hobbs did not.

For those reasons, I did not consider that there was evidence on which the jury could reasonably have found that the relationship between the Club and Hobbs was one in which vicarious liability could arise.

Emergency services

These cases are not about the emergency services but are about when there may be vicarious liability even when there is no employment. The question is to ask whether a volunteer in the emergency services looks more like the priest Coffey, or the sports volunteer Hobbs.

Members of the emergency services are generally appointed by the Chief Officer, there are strict rules and procedures in place including requirements for training, the exercise of delegated authority by people who complete relevant training and obtain various ranks, there are detailed and formal procedures to impose sanctions up to and including dismissal. An emergency service has prescribed functions and duties but it cannot perform them without its volunteers. The volunteers represent their service as shown by their uniforms and the vehicles. The work they perform is ‘necessarily and integrally interconnected with the fundamental work and function’ of the service to which they volunteer. They do the work of the service.

Even if members may provide some of their own equipment (eg a pocket knife or a belt pouch) emergency service members are issued with the principal tools necessary to do their work – their uniforms and other PPE, vehicles, fire fighting equipment, flood boats, life jackets, rescue cutting tools, first aid kits, defibrillators etc.

They cannot delegate their tasks other than in accordance with the rules of their organisation. If a person engages with a business as an independent contractor, they get a task but it is then up to them to decide how the task is done, and they may do it themselves or get their own staff to do it. Consider for example if you engage a plumber – you tell them the problem and they work out how to fix it and they may do it themselves or get their apprentice, who you’ve never met to do it. In the emergency services a unit commander may be tasked to do something and he or she can delegate to members in the unit but they cannot delegate the task to someone outside the organisation. How they perform the task, and to whom they can assign roles are all determined by the organisation.

Unlike the priest, emergency service volunteers do not earn their livelihood from the work nor is it necessarily their ‘full time’ engagement.  But unlike Hobbs, their work is not ‘informal, undocumented, and uncertain’. Emergency service volunteers are controlled through the chain of command, codes of conduct and in most cases legislation.

Conclusion

I would suggest the amount of control and the integration of emergency service volunteers into the work of the emergency services organisation looks much more like Coffey than Hobbs.  In those circumstances I am confirmed in my view that an emergency service organisation will be vicariously liable for the torts of its volunteers even though they are not employees.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.