Testing vicarious liability - Some UK insight on an unresolved Australian issue

In brief - With an application for special leave sought, will the High Court of Australia consider DP v Bird and in doing so, a recent decision of the Supreme Court of the United Kingdom? Will the High Court overturn the Victorian Court of Appeal on its application of the principles of vicarious liability for religious personnel in the context of the social and personal relationship between the perpetrator and victim?

Barry Congregation (UK)

In Trustees of the Barry Congregations of Jehovah's Witnesses v BXB [2023] UKSC 15, the Supreme Court of the United Kingdom (the equivalent court to the High Court of Australia), considered the question of vicarious liability for the Barry Congregation of the Jehovah's Witnesses with respect to allegations of a sexual assault committed by a religious Elder.

The plaintiff was a member of the Barry Congregation and she and her husband formed a close personal friendship with Mr and Mrs S, who were also members of the Congregation and for which Mr S was an Elder. Mr S was having marriage difficulties with Mrs S due to abuse of alcohol and began engaging in unwanted inappropriate behaviours with the plaintiff, including hugging her, kissing her and holding her hand. Nevertheless, the plaintiff was asked by Mrs S and Mr S's father, another Elder within the congregation, to continue the friendship with Mr S. 

On a subsequent occasion, following another fight between Mr and Mrs S, the plaintiff and her husband visited Mr and Mrs S's home and the plaintiff was asked by Mrs S to speak with Mr S to "talk some sense into him". Mr S was intoxicated and during this conversation, he sexually assaulted the plaintiff. The plaintiff subsequently brought a claim for damages against the Barry Congregation alleging that it ought to be vicariously liable for the alleged assault. 

First instance decisions

The test for vicarious liability in the UK is a two stage test that considers:

1. The relationship between the wrongdoer and the institution
2. The connection between the relationship and the wrongful act. 

Both the trial and appeal courts found that Mr S's role as an Elder within the Barry Congregation was one of 'quasi-employment' attracting vicarious liability and that the alleged assault took place in circumstances connected to the carrying out of religious duties, on the basis that the friendship between the plaintiff and Mr S was due to Mr S's good standing within the Congregation.

Supreme Court decision 

The Supreme Court affirmed the lower court's decision that stage one of the vicarious liability test had been satisfied on the basis that:

• an Elder was part of the hierarchical structure of the Barry Congregation
• there were formal processes for appointing and removing Elders
• Mr S was assigned 'work', which he carried out "in furtherance of, and integral to, the aims and objectives of the Jehovah’s Witness organisation". 

That the role was entirely voluntary was not held to be relevant. 

However, most importantly, the Supreme Court found that stage two of the vicarious liability test had not been satisfied. The Supreme Court found that:

• the assault was not connected to the work of duties that Mr S was authorised to do by the Barry Congregation
• although the plaintiff and Mr S had evangelised together on the day of the assault, by the time the alleged assault occurred, the plaintiff was at Mr S's home in a personal capacity
• Mr S was not exercising control or authority over the plaintiff at the time of the assault, such that would consider him to be abusing his position as an Elder. Rather, Mr S was abusing his close personal friendship with the plaintiff and it was their close relationship which provided the context for the alleged assault to take place. 

Is this case of importance to the Australian jurisdiction?

Case law on vicarious liability for religious personnel is extremely limited throughout common law jurisdictions. Presently, there is no High Court of Australia decision on this area, although special leave has been sought from the High Court to consider the Court of Appeal decision of Bird v DP [2023] VSCA 66, in which the Victorian Court of Appeal upheld the first instance decision that a Diocese was vicariously liable for the wrongful acts of an assistant priest, Father Coffey, which occurred in DP's family home in the context of a social visit. 

The High Court of Australia has, however, determined in Prince Alfred College Incorporated v ADC [2016] HCA 37 that the "relevant approach" for the consideration of an institution's vicarious liability for the wrongful acts of its employees was whether the:

• institution had assigned the employee any special role
• position the employee is in as regards the victim, taking into account relevant factors such as authority, power, trust, control and the ability to achieve intimacy with the victim. 

In many ways, the UK's vicarious liability test is analogous to the Australian vicarious liability test and, although the Barry Congregation v BXB has been decided by a similar superior level court, the UK Supreme Court's remarks are not binding in Australia. It is likely that the High Court of Australia, if it chooses to grant special leave, will merely consider this judgment as helpful obiter dicta in deciding the Bird v DP matter. 

The Victorian Court of Appeal in Bird v DP applied this test and found that:

• Father Coffey was not an employee of the Diocese, but his role made him the embodiment of the Diocese within the community and the Diocese had clothed him with the authority of the Diocese, as well as providing for his livelihood and controlling aspects of the role he was to perform. 
• The Diocese placed Fr Coffey in a position of power, authority and respect which enabled him to achieve intimacy with DP's family. His role as an assistant priest was one where he was entrusted to spend time alone with DP, which afforded him the opportunity and occasion for the abuse. Despite the visits being social in nature, they were a central aspect of his role as an assistant priest, even though they were not for religious or evangelical reasons. 

There are clearly some analogous factual circumstances between the Australian Bird v DP case and the UK decision of Barry Congregation v BXB and it is clear that if the High Court grants special leave, it will be a significant decision for all religious institutions and vicarious liability of their religious personnel in the context of their personal and social relationships with members of the community.

We are hopeful for future guidance from the courts distinguishing where the 'official' religious duties of religious personnel end, and 'personal' or 'social' relationships begin, particularly given the serious implications of a finding of vicarious liability in these contexts.