Vicarious Liability Beyond Employment: Holding Institutions Accountable in Historical Abuse Cases

A church was found liable for abuse committed by a Deacon who was not employed by it under the principles of vicarious liability.

The background

The plaintiff brought a claim in the New South Wales Supreme Court alleging that in October 2005, when he was 14 or 15 years old, he was subjected to sexual abuse by a Deacon of the church (SS) of which his family were parishioners. The alleged abuse occurred following a church event which occurred over a period of a few days and nights.

The plaintiff alleged that on the final night of this event, he spent the night with SS at the church and in the morning, SS was to drive him home. It was alleged that the abuse occurred when the plaintiff fell asleep in SS’s car on their way to breakfast.

The plaintiff subsequently amended his pleadings to include allegations of grooming for events which preceded the subject abuse. The allegations were directed at both SS and the Diocese.

In issue

This case raised the following important legal issues:

• Whether the Diocese was negligent in failing to protect the children of the congregation, including the plaintiff; and
• Whether the Diocese could be held vicariously liable for the actions of SS, given the nature of relationship between SS and the Diocese.

The decision at trial

Negligence

At trial, numerous witnesses gave evidence that:

• The plaintiff revealed the sexual abuse to them;
• They had noticed inappropriate interactions between SS and young men at the church; and/or
• They had experienced inappropriate interactions with SS.

SS also gave evidence denying the allegations made by the plaintiff, and admitting that the Diocese did not undertake certain checks and inquiries of SS for the period prior to May 2006 (when SS was ordained as a priest), including working with children and police checks.

Following a detailed examination of the evidence, the Court largely accepted the plaintiff’s evidence and found that, on the balance of probabilities, the October 2005 abuse occurred as alleged however, it rejected the claim that any grooming occurred. Additionally, it considered that whilst it would be indicative of negligence had the Diocese been required to undertake checks and inquiries of SS and failed to do so, there was no evidence to suggest these checks and inquiries would have revealed anything to put the Diocese on notice.

Accordingly, the Court rejected any finding of negligence on the part of the Diocese on the basis that no one in the church hierarchy was aware of any misconduct on the part of SS and the plaintiff’s claim against the Diocese failed.

Vicarious Liability

Despite the Court’s finding that the Diocese was not negligent, it was still required to consider whether the Diocese was vicariously liable for the abuse perpetrated by SS.

It was not disputed that, at the time the abuse occurred, SS was not employed by the Diocese, and it was submitted that, by virtue of this fact alone, there could be no finding of vicarious liability. The Diocese conceded however that this was contrary to the Victorian Court of Appeal decision in Bird v DP (2023) 69 VR 408 (that is, vicarious liability can arise in the absence of an employment relationship where the hierarchical structures allowed for the principal to exercise control, and limited the independent action of, the tortfeasor), and accepted that the Court was bound to follow Bird unless it thought that decision was 'plainly wrong'.

Nevertheless, the Diocese submitted that the principles in Bird could not support a finding of vicarious liability in this case.

The Court acknowledged that an appeal in Bird was heard by the High Court in March 2024, however noted that the decision remained reserved at the time of its decision in the instant case. It considered that it would not be in the interests of justice to delay judgment until that decision was handed down.

The Court considered that SS was engaged in many aspects of church life including leading the liturgy committee, preparing the parish newsletter and in the choir and youth groups. It was this level of involvement, and his position within the Diocese, which allowed SS to form close relationships (and establish a level of trust) with many families of the community and provided SS the opportunity for the abuse to occur.

The Court also noted that, unlike other Deacons, SS did not have a separate occupation, was at the church essentially full-time (albeit as a volunteer), lived in the presbytery and, was subject to the same training and directions as the parish priest - particularly regarding matters relating to youth and child protection. As such, the Court considered that, for all intents and purposes (save for the payment of remuneration), SS was an employee of the Diocese.

The Court held that the Diocese was liable for SS’s conduct due to the close connection between SS’s actions and his role within the Diocese, satisfying the requirements for vicarious liability.

Implications for you

This case emphasises that it is simply not enough for a plaintiff to identify that there were failures on the part of the institution, in order for a court to find negligence, it must be shown that those failures caused or contributed to the occurrence of the abuse.

Additionally, this case reinforces the Court’s views that minor inconsistencies in the reporting of allegations of historical abuse will not be detrimental to a plaintiff’s claim provided it is satisfied, on the balance of probabilities, that the overarching substance of the complaints are consistent with the ongoing suffering.

This case highlights important legal principles regarding institutional liability and the responsibility of organisations to prevent and address misconduct by their members.

Whilst it is still a developing area, this case highlights the Court’s willingness to extend the principles of vicarious liability beyond the traditional master-servant relationship and reinforces that institutions can be held vicariously liable for the actions of individuals acting within the scope of their roles, even on a voluntary basis, especially in cases involving vulnerable individuals, such as minors. However, there is a level of uncertainty as to what approach adopted by the courts is correct until the High Court hands down its decision in Bird.