'Employment or Nothing': An Analysis of Bird v DP and the Australian Approach to Vicarious Liability in Cases of Institutional Abuse

Abstract

This article concerns the extent to which institutions should be held vicariously liable for abuse perpetrated by non-employees. Recently, in Bird v DP (‘Bird’), the High Court of Australia confirmed that a relationship of employment is a precondition to vicarious liability attaching to a defendant (subject to limited exceptions). Contrary to developments in overseas jurisdictions, the Court refused to expand the doctrine to encapsulate relationships ‘akin to employment’. This article first details the doctrine of vicarious liability and its application to institutional abuse cases. It then compares the historical approach in Australia to that adopted in the United Kingdom and Canada. Finally, it focuses upon the decision in Bird and analyse the competing arguments as to the appropriateness of the binary ‘employment or nothing’ test.