The expansion of vicarious liability in Victoria

Victorian Parliament has passed legislation that overturns the High Court’s decision in Bird v DP, expanding the definition of vicarious liability for child abuse to cover relationships 'akin to employment'.

The background

The High Court determined in the decision of Bird v DP that vicarious liability did not extend beyond relationships of employment to relationships 'akin to employment'.

Victorian Parliament has now introduced the Justice Legislation Amendment (Vicarious Liability for Child Abuse) Act 2026 (the Act) to address the decision in Bird and expand the scope of vicarious liability to include relationships between organisations and individuals that occupy roles 'akin to employment'.

Critically, the amendments to the vicarious liability regime will apply to claims founded on or arising from child abuse that occurred both before and after the Act’s commencement.

The Act amends:

1. the Wrongs Act 1958 (Wrongs Act) in relation to vicarious liability for child abuse (including historical child abuse), and
2. the Limitation of Actions Act 1958 (Limitations Act) in relation to setting aside certain settlements or judgments.

Amendments to the Wrongs Act 1958

The Act inserts a new Part XIIA – Statutory vicarious liability for child abuse, consisting of four sections. The amendments to the Wrongs Act apply to any proceeding in which a claim is founded on or arising from child abuse, regardless of when the abuse occurred. It is also intended that a claim under the new part could be made against an unincorporated organisation (in accordance with the Legal Identity of Defendants (Organisational Child Abuse) Act 2018).

Section 93A(1) states that nothing in the new part limits the operation of organisational liability for child abuse, which applies to child abuse that occurred on or after 1 July 2017 (Part XIII). Section 93A (2) provides that the new part does not affect the operation of the interaction between non-delegable duties and vicarious liability (Division 6, Part X). Finally, section 93A(3) allows for the new part to apply both retrospectively and prospectively to child abuse claims and whether or not the abuse occurred before, on or after the commencement of the new part.

Section 93B sets out various definitions that apply to the new part. Crucially, the definition of ‘institution’ is defined to mean a ‘relevant organisation’ (within the meaning of section 88 of the Wrongs Act) and the State – clarifying that a statutory claim of vicarious liability for child abuse under the new part is intended to include the State.

Section 93C(1) provides that an institution is vicariously liable for child abuse by an individual employee or person akin to an employee of an institution if:

1. the apparent performance by the individual of a role in which the institution placed that person supplies the occasion for the abuse of the child by that person, and
2. the individual takes advantage of or uses that occasion to abuse the child.

Section 93C(2) outlines non-exhaustive factors that the Court may consider in determining whether an individual is akin to an employee of an institution. These include:

1. whether the individual carries out activities as an integral part of the activities carried on by the institution, and does so for the benefit of the institution,
2. the extent of the institution’s control over the individual in the carrying out of the individual’s activities, and
3. other matters – including whether the individual is paid (in money or in kind) for the work, the circumstances of appointment and termination, and the individual’s role in relation to the hierarchy (seniority) in the institution.

Section 93C(3) states that an independent contractor is not an individual akin to an employee of an institution.

Section 93C(4) essentially codifies the existing common law test for the imposition of vicarious liability (see Prince Alfred College v ADC (2016) 258 CLR 134, 159 [81] and CCIG Investments Pty Ltd v Schokman (2023) 278 CLR 165, 181–182 [32]–[34]). It sets out non-exhaustive factors that the Court may consider in determining whether an institution placed an individual employee/akin to an employee in a role that supplied the occasion for the child abuse, including whether the institution placed the individual in a position or role in which the individual has:

1. authority, power or control over the child, or
2. the trust of the child, or
3. the ability to achieve intimacy with the child.

The explanatory memorandum highlights that this new section is not intended to limit the Court’s discretion to consider other factors as it sees fit.

Section 93C(5) provides that nothing in the new section limits any other matter to which the Court may have regard.

Section 93D outlines the appropriate defendant to sue where the institution is a public sector body or another person or body acting on behalf of the State. It provides that any liability incurred by that institution (by reason of new section 93C) is incurred by the State.

Amendments to the Limitation of Actions Act 1958

The Act amends sections of the Limitations Act relating to actions for personal injury resulting from child abuse (Division 5 of Part IIA). The amendments allow plaintiffs who resolved their claims in the period between the Bird decision and the commencement of the Act, to apply to the Court to have a settlement or judgment set aside and commence another action, if a Court considers it is ‘just and reasonable’ to do so. These amendments mirror the amendments previously made for childhood abuse claims impacted by limitations issues and the Ellis Defence. Accordingly, some institutions may face settlement revisit claims that focus on the issue of vicarious liability.

Implications for you

The Act is intended to overcome the effects of the High Court’s decision in Bird.

From 25 February 2026, insurers must be aware that vicarious liability in child abuse claims – notwithstanding when the abuse occurred – has expanded to include individuals that are found to be in a relationship with an institution that is 'akin to employment'. This will be determined by the Court as a matter of fact, taking into account various factors set out in the Act, as well as any other matter the Court considers relevant.

The commencement of the Act will see ongoing claims being amended to include pleadings that allege statutory vicarious liability. There is also the possibility of further activity in respect of settlement revisits.

Moving forward, institutions and their insurers should consider whether individuals alleged to have perpetrated child abuse fall within the scope of being in a relationship with an institution that is ‘akin to employment’. The test of the relationship as formulated by the Act is extremely broad and includes factors such as:

1. whether the individual carried out activities that were an integral part of the organisation and the extent of the institution’s control in this regard,
2. whether the individual is paid (in money or in kind),
3. the circumstances of appointment and termination,
4. the individual’s place in the organisation and level of seniority, and
5. the positioning of the individual in relation to the child, including the authority, power or control over and trust of the child.