The principle of vicarious liability is, to some extent, incoherent. It is indisputable that the case law has moved well beyond the original confines of the doctrine — the basis of its imposition having, to some extent, undercut by development elsewhere in tort law, and its rationale continuing to be subject to conjecture and disagreement. This article seeks to improve the situation by suggesting that the law of vicarious liability should be reconceptualised as having its basis in the law of agency. It does so in the context of the liability of educational providers to victims of abuse.Gray argues
The Royal Commission into Institutional Responses to Child Sexual Abuse (‘Royal Commission’) continues to hold hearings into alleged abuse within institutions, primarily educational institutions. The scale of the alleged abuse is staggering. The Royal Commission’s Redress and Civil Litigation Report estimates a possible 60 000 survivors of institutional sexual abuse thus far. The Commission’s hearings and findings will have flow-on effects on many facets of the legal system. It is expected that there may be an increase in civil claims against educational providers for alleged abuse, as well as substantial reform to relevant legislation.
Several cases have recently considered the civil liability of educational providers for abuse, committed by their employees, of victims under their care (usually children), including the recent High Court of Australia decision Prince Alfred College Inc v ADC. This sad situation raises many important and difficult legal issues, primarily: the question of the extent to which the educational provider is vicariously liable for the abuser’s actions; the extent to which the educational provider may be deemed directly negligent for what has occurred; and, in some cases, questions of limitation periods, given that the survivor of the abuse may not seek legal redress until long after the events. It goes without saying that, quite apart from any legal issues, survivors of sexual abuse require society’s deepest compassion and caring for what they have suffered, the symptoms and consequences of which may endure through their lives. As a society, we must do what we can to assist in the healing process, and it is recognised that the legal system can play its part in this, as part of a much broader response. However, in and of itself, the fact a person has suffered abuse does not (and should not) automatically translate to an actionable legal claim against the institution who engaged the abuser.
The extent to which an educational provider may be vicariously liable for the actions of their employee is part of a bigger issue of the future of the principle of vicarious liability in the law. Courts in the modern era continue to struggle to articulate a rational basis for the doctrine, tests of liability remain very difficult to apply in particular cases, and fine distinctions are made that may not reflect the realities of current employment settings. The likely increase in the number of claims in this area will place in the spotlight the appropriateness of current legal principle.
This article surveys recent major developments in the law on vicarious liability. The main focus of the discussion will be the question of the liability of educational providers for abuse. However, these questions cannot be answered in isolation from the more general principles of vicarious liability and other liability issues, including limitation periods. Thus, some cases that do not directly involve questions of educational institutions and abuse will be discussed. Part II of this article summarises the existing law in three jurisdictions: Canada, the United Kingdom (‘UK’) and Australia, including the recent High Court of Australia decision in Prince Alfred College. A comparison among these jurisdictions is appropriate given the common law tradition they share, and because superior courts of each jurisdiction regularly refer to, and often adopt, principles developed from the others in this area of law. Part III critiques existing theories of vicarious liability.
Part IV explores the potential of agency principles to rationalise principle in this area. This is important because, while historically vicarious liability had an agency basis, modern case law tends not to use this concept. The thesis of this article is that vicarious liability is best sourced in principles of agency, and the law should return to it, and its limits. Concededly, the High Court in Prince Alfred College did not utilise agency principles. However, over the long term, the basis of vicarious liability has changed greatly. Furthermore, in tort law more broadly, concepts have undergone rapid transformation and refinement, for example strict liability and liability of public authorities for non-feasance. In this light, it is not too late for reconceptualisation of the law of vicarious liability. In saying this, it is acknowledged that the legal principle of vicarious liability is just one of the legal principles affecting the question of financial compensation for survivors of institutional sexual abuse. Other legal rules, for instance statutes of limitation and the so-called ‘Ellis defence’, have made it difficult in practice for survivors of sexual abuse to obtain legal redress. There has been both successful and unsuccessful legislative reform in this area. An outcome of the Royal Commission may well be further legal reforms, in substantive and procedural law, to facilitate compensation claims by survivors of institutional sexual abuse. Further, the full force of negligence principles should be applied directly against institutions that do not take proper care in the selection or supervision of staff members. While in the past, institutions may have argued ignorance about possible child sexual abuse, or difficulty in obtaining information about a person’s past record, no one today can claim to be unaware of the risk of abuse, or legitimately complain of difficulties in researching an individual’s past.
In other words, there have been legitimate arguments in the past that vicarious liability must be robustly applied to institutions because otherwise survivors of such abuse may be left without a remedy. However, given robust application of negligence principles, developments in accessibility of information, past recent reforms and possible future reform due to the Royal Commission’s work, these concerns may be lessened. The article will now briefly consider the history and rationale of vicarious liability, examine the authorities, and critique existing rationales, before suggesting a reconception of this area of law on the basis of agency principles. It will be argued that given changes in the law of negligence, the rationale for imposing vicarious liability has (largely) evaporated, even if this is little recognised in the cases.