Warning: This article contains details about sexual abuse which may be upsetting for some readers. Reader discretion is advised.
The High Court of Australia has determined that vicarious liability only applies in formal employment relationships, and in two other matters, that previously granted permanent stays of proceedings should be overturned in whole or in part.
In issue
- The High Court delivered its judgment in relation to whether vicarious liability extends beyond relationships of employment to relationships 'akin to employment' in Bird v DP.
- In two other cases (W v Queensland and RC v The Salvation Army (Western Australia) Property Trust), it considered the impact of availability of witnesses and documents on due process and establishing the high bar of a fair trial.
The background
In Bird v DP, DP was assaulted and sexually abused at his parents' home in Port Fairy on two separate occasions by Father Bryan Coffey (now deceased) a Catholic priest from St Patrick's, the local parish church. DP commenced proceedings in the Supreme Court of Victoria claiming damages for psychological injuries he had sustained as a result of the assaults committed by Coffey. DP alleged that the Diocese was vicariously liable for the actions of Coffey.
RC commenced an action against the Salvation Army in the District Court of Western Australia claiming damages for sexual abuse. He alleged that a Lieutenant Frank Swift had abused him between August 1959 and April 1960, when RC was 12 and 13 years old and in the care of the Nedlands Boys' Home (the Home). The Home was owned and operated by the Salvation Army. Lt Swift was a Salvation Army Officer at the Home.
Ms W’s case involved a claim for damages for abuse which had occurred more than 50 years ago while she was in institutional and also family foster care.
The decision at trial
In Bird, the primary judge held the Diocese vicariously liable for the assaults, notwithstanding a finding that Coffey was not an employee of the Diocese and in the absence of a finding that the assaults occurred in the course of an agency relationship between Coffey and the Diocese.
In RC, the Salvation Army successfully applied for a permanent stay of the proceedings on the basis that it could not meaningfully defend the proceedings.
In Ms W, the State applied for an order that the proceedings be permanently stayed on the basis that the lapse of time since the alleged conduct occurred, and the consequential effects of that delay, had a burdensome effect on the State that is so serious that a fair trial is not possible for any of the allegations. The primary judge granted a permanent stay of the proceedings.
The decision on appeal
In Bird, the Court of Appeal unanimously dismissed the Diocese's appeal. The Diocese was granted special leave to appeal.
In RC, the primary judge granted the permanent stay. RC's appeal to the Court of Appeal of the Supreme Court of Western Australia was dismissed.
In W, the Court of Appeal of the Supreme Court of Queensland dismissed Ms W's appeal. Subsequently, Ms W was granted special leave to appeal.
The High Court decisions
The case of Bird v DP was the first time the High Court had to determine the question of whether a relationship of employment is a necessary precursor – or a threshold requirement – to a finding of vicarious liability. As there was no finding of a relationship of employment between the Diocese and Coffey, the Diocese’s appeal was allowed. The High Court held that the expansion of the doctrine of vicarious liability in Australia was a matter for the legislature.
The High Court specifically said: 'Abandoning the threshold requirement of a relationship of employment for the purposes of vicarious liability does not fit within the body of accepted rules and principles. The difficulties that have existed and presently exist with vicarious liability in Australia, and overseas, as well as the other matters that have been identified, do not provide a proper basis for the development of the common law by extension of the threshold more broadly…'.
In RC’s case, the High Court decided that the Court of Appeal was wrong to conclude that there could be no fair trial of these proceedings. The Salvation Army's application for a permanent stay of the proceedings should have been dismissed, and the claim will now proceed to trial. The High Court did not accept that the trial will be a contest where RC makes allegations that the Salvation Army says it can do no more than deny, and held that the Salvation Army has sufficient information to make a meaningful response to RC's allegations. The High Court also observed that cases where a party can do no more than deny the main allegation are tried in the criminal courts every day. In such cases, a trial judge ordinarily exercises care before accepting uncorroborated evidence. It therefore concluded that the Salvation Army had not discharged its heavy onus to obtain a stay because it had not identified that the trial of the joined issues would be unfair.
In W, the appeal was allowed in part. The State's application for a permanent stay was dismissed, except in relation to certain specific allegations of physical abuse. The High Court observed that it was for the State to show how and why the absence of contemporaneous or other evidence would impede it answering the case against it such that the trial of a particular claim will be necessarily unfair. It also noted that the issues in dispute were narrow. Ms W's claims of breach did not require an inquiry into the adequacy of the steps taken by the State to ensure that reasonable care was taken for Ms W's safety while she was in foster care, at the Girls' Dormitory, or in the care of her relatives. This facilitated the Court’s findings that the appeal should be allowed in part as a fair trial was possible in relation to at least some of the allegations.
Implications for you
The Bird case is significant for institutions and their insurers, as it indicates clearly that there can be no vicarious liability for the actions of a person not directly employed by the relevant organisation.
The two stay cases highlight the difficulties for institutions in meeting historical abuse claims as they show that court will not simply accept arguments about the lack of availability of witnesses or documents to defend allegations made against them and will closely determine the particular circumstances to critically examine whether a defendant has met the very high standard of establishing whether a fair trial can occur.
