Abuse Law: What is vicarious liability? 

Vicarious liability is where a party can be held legally responsible for the actions of another party. Vicarious liability has two essential characteristics. First, it is liability for the negligence (or other wrong) of another. Secondly, it is strict liability – that is, liability without proof of fault. A person can be vicariously liable for the negligence of another no matter how careful the person was in all relevant matters, such as choosing and supervising the other.   

Relationships in which a party may be liable vicariously include contractors and sub-contractors, where a sub-contractor fails to complete a job. However, vicarious liability is most commonly associated with the relationship between employer and employee, and this is typically the relationship when vicarious liability is alleged in abuse law claims. An employer can be liable for negligent acts or omissions by an employee in the course of their employment. It does not matter whether the employer gave their permission to the employee to act, or not to act, in the way that caused the damage. 

The common law of Australia has been slow to clearly identify the type of factual situations which would (or would not) attract vicarious liability in an institutional abuse setting. In the matter of Prince Alfred College Inc v ADC [2016] HCA 37, ADC was a boarder at Prince Alfred College in the early 1960s. He was abused by a boarding house master named Bain. The relevant principles are set out in the decision of the High Court. Their Honours reviewed the early English and Australian authorities, together with the Canadian and United Kingdom case law on vicarious liability, and also considered the earlier decision of New South Wales v Lepore [2003] HCA 4. In Prince Alfred College Inc v ADC [2016] HCA 37, their Honours stated at [81]: 

“The relevant approach is to consider any special role that the employer has assigned to the employee and the position in which the employee is thereby placed vis-à-vis the victim.  In determining whether the apparent performance of such a role may be said to give the ‘occasion’ for the wrongful act, particular features may be taken into account.  They include authority, power, trust, control and the ability to achieve intimacy with the victim.  The latter feature may be especially important.  Where, in such circumstances, the employee takes advantage of his or her position with respect to the victim, that may suffice to determine that the wrongful act should be regarded as committed in the course or scope of employment and as such render the employer vicariously liable.”