You may have read in recent news stories about a recent High Court of Australia decision involving the Catholic Church’s liability for misbehaviour by a priest – see for example

The case in question is Bird v DP (A Pseudonym) [2024] HCA 41 and the case may have implications for volunteers in the emergency services.  The issue was whether the Catholic church was vicariously liable for the intentional tort of a former, now deceased, priest who had sexually abused DP.   Vicarious liability is a type of liability, traditionally an employer, is liable for the torts committed by its employee even though the employer itself has done nothing wrong.

I have previously argued that an organisation that uses volunteers will also be vicariously liable for the actions of the volunteers even though they are not employees – see

The High Court’s decision in Bird v DP turns those arguments on their head. In Bird’s case, in a joint judgment Chief Justice Gageler, along with Justices Gordon, Edelman, Steward and Beech-Jones JJ held that vicarious liability could only arise where there was an employee/employer relationship.  They said (at [5]):

… the position in Australia is that an employer may be vicariously liable for the acts of its employees, but there is no such liability for the acts of those who are not in an employment relationship but, instead, are, for example, independent contractors or in a relationship “akin to employment”.

I had argued, based on precedents such as those discussed in the posts above and in particular Hollis v Vabu [2001] HCA 44 that a relationship akin to employment would be sufficient and that a volunteer in the emergency services looks for all purposes like an employee, the only difference is that they don’t get paid.  But it appears that is not sufficient.   At [46] to the judges said:

In Australia, an employer may be liable for the acts of its employees, but there is no vicarious liability, in the sense it is now being discussed, for the acts of those not in a relationship of employment, namely acts of third parties outside of that context. If the act complained of is not that of an employee, then the defendant is not, without more, liable…

And (at [48], references omitted):

Vicarious liability has had a tortured history not only in this Court but also in other jurisdictions. So, for example, more than 20 years ago, in Hollis, this Court observed that the modern doctrine relating to vicarious liability of an employer for the torts committed by an employee “was adopted not by way of an exercise in analytical jurisprudence but as a matter of policy” and that “[a] fully satisfactory rationale for the imposition of vicarious liability in the employment relationship” has proven to be quite elusive. Since then, this Court has, more than once, repeated those concerns describing vicarious liability as, among other things, an “unstable principle”, for which a “coherent basis” and “fully satisfactory rationale” for its imposition have been “slow to appear in the case law”. Part of the difficulty may have been the use of the expression “vicarious liability” to describe three different concepts. But even with vicarious liability in its true or proper sense – liability based on the attribution of the liability of another – this Court has not accepted an overarching theory based on “enterprise risk” beyond any employment relationship. Whether or not true vicarious liability can be explained by any theory based on a relationship of employment, a relationship of employment has always been a necessary precursor in this country to a finding of vicarious liability and it has always been necessary that the wrongful acts must be committed in the course or scope of the employment. There is no solid foundation for expansion of the doctrine or for its bounds to be redrawn.

Justice Gleeson, in a separate judgement disagreed on the assessment of vicarious liability. She referred to developments overseas, in particular in the UK and Canada and said (at [79]):

This case is a missed opportunity for the Australian common law to develop in accordance with changed social conditions and in tandem with developments in other common law jurisdictions. For the reasons given below, I do not agree with the plurality that relationships that are akin to employment do not attract vicarious liability in Australia.

At [86] Gleeson J quoted from the decision in Hollis v Vabu where Chief Justice Gleeson (Gleeson J’s father) along with Justices, Gaudron, Gummow, Kirby and Hayne JJ explained the concept of enterprise risk.  The said:

In general, under contemporary Australian conditions, the conduct by the defendant of an enterprise in which persons are identified as representing that enterprise should carry an obligation to third persons to bear the cost of injury or damage to them which may fairly be said to be characteristic of the conduct of that enterprise.

She said (at [88]-[89]):

The statement explains vicarious liability by reference to the responsibility of an enterprise for harms caused in the conduct of the enterprise, and particularly, responsibility for harms caused by persons who are “identified as representing that enterprise”. That is not a new idea. The suggestion that vicarious liability reflects the function of an enterprise “as a mechanism for absorbing, controlling and spreading social and economic risks” appears in both early case law and academic writings.

The plurality’s statement in Hollis is consistent with the enterprise liability theory of vicarious liability, which underpins the current doctrine of vicarious liability in Canada and England and Wales. In particular, the statement accords with the observation of Lord Reed (with whom Baroness Hale, Lord Kerr and Lord Clarke agreed) in Armes v Nottinghamshire County Council that, of the various justifications for the imposition of vicarious liability in the English and Welsh case law:

“The most influential idea in modern times has been that it is just that an enterprise which takes the benefit of activities carried on by a person integrated into its organisation should also bear the cost of harm wrongfully caused by that person in the course of those activities.”

The idea of the enterprise risk would say that volunteers are an essential part of the agency’s enterprise. An agency like a rural fire service or state emergency service cannot operate without its volunteers. They turn out in response to requests for help made to the agency, they wear uniforms and travel in vehicles that identify them not as individuals but as the agency for which they volunteer. Their training, methods of operation, tasking etc are all controlled by the agency.

At [93] Gleeson J said:

The enterprise liability theory, as articulated by this Court in Hollis, and as followed in Lepore and in Sweeney, is the central justification for vicarious liability in Australia. A modest expansion of vicarious liability to relationships that are akin to employment accords with that central justification.

Although Gleeson J disagreed with the view of the law expressed in the majority joint judgment, she did agree that in this case there would be no vicarious liability. She said (at [183]) ‘although the relationship between the Diocese and Coffey attracted vicarious liability, Coffey’s torts were not committed in the course of that relationship.’

Jagot J in a further separate judgement agreed with the majority that the concept of vicarious liability is restricted to employer and employees.

What are the implications?

The majority judgement was critical of the use of the term ‘vicarious liability’ to mean on of three routes by which a superior is legally responsible for the conduct of others.  Vicarious liability, as now explained by the High Court is limited to employers and employees.

Agency

But a principal can be liable for the conduct of its agent. Agency (at [31]):

… is a form of primary liability where the acts of another person are attributed to the defendant on the basis that the acts were done for the defendant with the defendant’s express, implied or apparent authorisation of the acts, or ratification of the acts by the defendant. In other words, the acts were done with the defendant’s “seal of … approval”, amounting to an acceptance of the acts as the defendant’s own.

For emergency service volunteers it is likely that they are the agent if not the employee of the service in that they perform their duties at the direction of and subject to the control of the service for which they volunteer.

Non-delegable duty of care

Agencies may be found to owe a ‘non-delegable’ duty of care that is a duty not only to take reasonable care but ensure that reasonable care is taken by others.  At [37] the majority said:

Such a duty arises where the nature of the relationship between the defendant and the other person to whom the duty is owed is one where the defendant has assumed particular responsibility to ensure that care is taken, rather than merely to take reasonable care. For example, where the defendant has “undertaken the care, supervision or control of the person or property of another or is so placed in relation to that person or [their] property as to assume a particular responsibility for [their] or its safety, in circumstances where the person affected might reasonably expect that due care will be exercised”.

A ‘classic’ example of the non-delegable duty is the duty owed to a patient by a hospital and the hospital cannot defend a claim in negligence on the basis that it employed qualified professional staff to provide health care.  If there is a failure to provide reasonable care then the hospital has failed to ensure that reasonable care is taken.   A similar argument could be made for the emergency services (noting in many cases, as discussed elsewhere in this blog, the emergency and in particular the fire services do not owe any duty of care to those in need of rescue).  But if circumstances arise where someone wants to allege negligence or some other tort by one of the emergency services they would not sue the individual volunteer but the service on the basis that the service breached its non-delegable duty.

Direct duty of care

Finally, there is a direct duty of care. If the agency’s volunteer is negligent then the agency has been negligent. The agency may have a duty to ensure that volunteers are adequately trained, resourced and supervised such that a failure to do any of those things or to otherwise arrange a ‘reasonable’ response may be a breach of the agency’s direct duty of care.

Legislative intervention

At [63] the majority said that if the concept of vicarious liability is to be extended that is a matter for the legislature.  With respect to volunteers all Australian states and territories have passed legislation to say that volunteers are not personally liable for any negligence where there actions are performed in good faith and in accordance with the directions of the agency for which they volunteer (see Civil Law (Wrongs) Act 1958 (ACT) s 8; Civil Liability Act 2002 (NSW) s 61; Personal Injuries (Liabilities and Damages) Act 2003 (NT) s 7; Civil Liability Act 203 (Qld) s 39; Volunteer Protection Act 2001 (SA) s 4; Civil Liability Act 2002 (Tas) s 47; Wrongs Act 1958 (Vic) s 37; Volunteers and Food and Other Donors (Protection From Liability) Act 2002 (WA)  s 6; Commonwealth Volunteers Protection Act 2003 (Cth) s 6).

Except in NSW and Queensland, these provisions specifically provide that any liability that would have fallen to the volunteer is to be worn by the community organisation for which they volunteer thereby imposing a form of vicarious liability.  The Commonwealth Act only applies to people who volunteer for a commonwealth agency eg volunteer guides at the National Gallery of Australia or the like.

Emergency services legislation also has provisions to protect the agency from liability for acts done in good faith and to protect its volunteer members. In some cases that legislation also creates a system of vicarious liability where the agency, rather than a member, is liable for any default (see for example Victoria State Emergency Service Act 2005 (Vic) s 42; Country Fire Authority Act 1958 (Vic) s 92).

Policy choices

Agencies can adopt policies to accept liability even if that is not strictly required. The Cathollic church could have agreed to pay DP’s damages rather than take the matter to the High Court if they wanted to. The emergency services recongise that if they don’t protect their volunteers they won’t have any volunteers and organsiations like the NSW Rural Fire Service have gone to considerable lengths to ensure relevant protection – (see for example Gaps in NSW RFS volunteer workers compensation (August 28, 2024) and the response by the RFS published in a comment to that post; Eburn Michael, Dovers Stephen (2012) Australian wildfire litigation. International Journal of Wildland Fire 21, 488-497 https://doi.org/10.1071/WF11094).

Conclusion

I note that despite the High Court’s assertion that this decision is consistent with its previous judgments over the last 25 years, clearly the 4 judges in the Victorian Supreme Court and Gleeson J in the High Court as well as a number of commentators (including this one) disagree.   It remains to be seen what the implications of this decision are. No doubt over the next few years cases will make their way to the court to determine the issue.  It should be noted that volunteers have not been sued and are unlikely to be but this case does throw some doubt into the legal position.