The post-AA landscape: Navigating the remaining gaps in institutional abuse liability

Institutional defendants are already pushing back hard and arguing that AA applies narrowly. Regardless of where the parameters of non-delegable duty end up, there will be situations where a non-delegable duty won’t apply, but vicarious liability could apply.

That’s why it’s so important for governments around Australia not to delay or hide behind the AA decision as an excuse for failing to implement law reform following another significant High Court decision, Bird v DP, which limited vicarious liability to a restrictive employer-employee framework.

There has already been some worrying commentary in this direction. In Queensland, where I practice, the Attorney-General this month (March) told Parliament the need for reforms post-Bird had been “overtaken” by the AA decision. Views like this misunderstand both decisions.

AA and Bird address fundamentally different legal doctrines. AA concerns non-delegable duties of care – that is, the duty an institution owes directly to a child in its care. Bird, by contrast, concerns vicarious liability – the circumstances in which an institution can be held responsible for the wrongful acts of its agents, including those who may not be formal employees. These are separate and complementary avenues of recovery, and a development in one does not cure the deficiencies in the other.

Consider a child who is sexually abused by a volunteer scout leader during a weekend camping trip organised by a local scouting association. The scout leader is not employed by the association – he is an unpaid volunteer who gives his time on weekends.

Because the scouting association is a community organisation, and because the child’s parents have entrusted their child to the group voluntarily and on an informal basis, the relationship of “supervision and control” required to establish a non-delegable duty of care under AA may be difficult to prove.

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It is not the same as a school, where attendance is compulsory and the institution exercises clear day-to-day authority over the child. Yet the scouting association recruited this volunteer, placed him in a position of trust and authority, and sent him into the bush alone with children.

Under a broader vicarious liability framework – of the kind enacted in the ACT and Victoria following the Bird decision – the association could be held liable for the acts of its volunteer, because he was acting in furtherance of its activities. But in the jurisdictions where the law has not changed after Bird, the child has no vicarious liability claim, because the scout leader was not an employee. The child falls through the gap.

It must also be recognised that both non-delegable duty and vicarious liability remain difficult legal hurdles to clear, and there will still be many cases where a plaintiff cannot establish either. Even where there has been law reform on vicarious liability and with AA now in play, there will be plenty of survivors unable to prove an institution is legally responsible for the abuse they suffered.

There’s a two-stage test for vicarious liability that sets the bar high, and the High Court was clear in AA that a non-delegable duty is a special duty that will only apply to certain types of relationships between survivors and an institution. For example, in some school and church scenarios.

Practitioners will need to exercise additional care when drafting pleadings, as a non-delegable duty claim requires pleading a direct duty owed by the institution, whereas vicarious liability turns on the perpetrator’s relationship with the institution – and failing to plead both where the facts support it risks leaving a survivor without a viable cause of action.

To put it plainly: AA is a welcome addition to the legal toolkit in institutional child abuse claims, but it does not replace the missing tool. Without resolving the longstanding deficiencies in vicarious liability law following Bird, there is a gap for survivors abused by volunteers, contractors, or clergy who fall outside a strict employment relationship.

State and territory governments should not be content to lag behind the ACT and Victoria in fixing the injustice created by Bird simply because the High Court has opened one new door. The door that Bird closed – or, more accurately, refused to open – still requires a legislative key. Practitioners should treat AA as an important but incomplete development and continue to advocate for legislative reform of vicarious liability. Survivors deserve every available avenue to seek justice.

Heather Kerley is a senior associate and state team leader for the Queensland and Northern Territory abuse law practices at Maurice Blackburn.