Chloe Silvester, Head of General Practice, Practical Guidance
Stephen Tuck, Legal Writer, Practical Guidance Personal Injury Victoria
Ben Newling, Legal Writer, Practical Guidance Personal Injury NSW
Alex Bassingthwaighte, Legal Writer, Practical Guidance Personal Injury Queensland
In November of last year, the High Court of Australia delivered a pivotal decision in the case of Bird v DP, which has significant implications for the doctrine of vicarious liability in Australia. This decision has maintained the existing boundaries of vicarious liability, resisting the trend seen in other jurisdictions to extend liability to institutions for actions by individuals who are not formal employees. Now that some time has passed, this blog explores the broader implications of the decision and its impact on personal injury law practice, with a focus on the specific responses seen in Victoria, New South Wales, and Queensland.
The Decision
The central issue in Bird v DP was whether the Catholic Diocese of Ballarat could be held vicariously liable for the sexual abuse of a child by an assistant parish priest, who was not legally an employee of the Diocese. The High Court, in a 5-2 majority decision, rejected the expansion of vicarious liability to cover relationships "akin to employment." The Court emphasised that an employment relationship remains a necessary precondition under Australian common law for vicarious liability to be imposed. The majority dismissed attempts to create a new category of legal actor that could attract vicarious liability through analogies to concepts like "agency" or being an "emanation" of an institution.
Mandy Tisler, advisor to Practical Guidance Personal Injury Victoria, has over 20 years of experience as an insurance litigation lawyer and has expertise in defending a wide range of personal injury claims, with a particular focus on sensitive and complex claims. Mandy notes that the decision in Bird v DP “is consistent with the black-letter approach to employment relationships seen in ZG Operations Australia Pty Ltd v Jamsek and CFMMEU v Personnel Contracting Pty Ltd”.
Implications of the Decision
The decision has several important implications:
- Vicarious liability remains constrained: The High Court has maintained a conservative approach, restricting vicarious liability to employment relationships. The decision firmly rejects expanding liability to the unique relationship between religious organizations and clergy members.
- Legislative reform prioritized: By deferring to the legislature's policy choices, the Court has reinforced the need for comprehensive statutory reforms to impose liability on institutions for child abuse by non-employees. The Royal Commission's recommendations provide a roadmap for such reforms. Mandy Tisler observes that “legislatures around Australia have put considerable thought into reforms of abuse law compensation systems. It follows that courts will consider it appropriate to defer to the legislative process where possible.”
- Coherence over fairness: The Court prioritised preserving coherence in vicarious liability principles over perceived fairness in individual cases. Expanding boundaries based on vague criteria like "akin to employment" risked incoherence and uncertainty.
- Prejudice on appeals: The decision underscores that new causes of action generally cannot be raised for the first time on appeal if the lack of factual findings below would cause prejudice to the other party.
- Non-delegable duties unresolved: While rejecting the respondent's late attempt to raise a non-delegable duty claim, the Court left open whether such a duty could ever apply to intentional criminal acts like sexual abuse.
Responses and Legislative Reforms
Federal
The Standing Committee of Attorneys-General is considering a legislative intervention, having met on 21 February 2025 to discuss the implications and potential reforms.
Victoria
Legislative intervention in Victoria is likely to await a position being adopted by the Standing Committee of Attorneys-General: see the statement by Jaclyn Symes to the Victorian Legislative Council. In the meantime, courts will apply the Bird decision in relevant cases, such as Taylor v Trustees of Christian Brothers [2025] VSC 25, which may render some claims based on vicarious liability unviable.
New South Wales
Following the Bird decision, a motion was raised in the New South Wales parliament for legislative reform to address the situation. The New South Wales parliament is currently considering legislative reform, with a focus on closely monitoring and interacting with other jurisdictions. The desire is to ensure that any reform relating to the vicarious liability of organizations for those akin to employees is carefully considered for its potential impact.
Queensland
In Queensland, the decision has been criticised by the Australian Lawyers Alliance as a setback for survivors of institutional child sexual abuse. Although no legislative reform has been announced, it is anticipated that Queensland will align its abuse legislation with the ethos driving prior reforms and other High Court decisions, such as Wilmott v State of Queensland (2024) 419 ALR 623; [2024] HCA 42, to create easier access to justice for abuse survivors.
Key Takeaways for Practitioners
The High Court's decision in Bird v DP is a landmark ruling that clarifies the limits of vicarious liability under current common law principles. It highlights the need for legislative action to expand access to justice for survivors and address the limitations of current common law principles. The decision has crystallised the need for comprehensive legislative reforms to govern institutional child abuse liability and expand access to justice for survivors, with specific responses and potential reforms being considered in Victoria, New South Wales, and Queensland.
*All views expressed, including those of Mandy Tisler, are the authors’ own.
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