On 13 November 2024, the High Court handed down three long-awaited judgments relevant to cases involving allegations of institutional abuse. The first, Bird v DP,^[1] confirmed that in Australia vicarious liability is limited to an employment relationship. The Court declined to expand the types of relationships that give rise to vicarious liability. The second and third, Willmot v State of QLD^[2] and RC v Salvation Army^[3] clarified that a permanent stay of proceedings in historical abuse cases will only be ordered in limited circumstances.

Below, we recap the Court’s findings and the impacts on liability in institutional abuse cases.

Bird v DP

Bird v DP was an appeal from the Victorian Court of Appeal. The Plaintiff alleged that in 1971 he was sexually abused by a priest of the Roman Catholic Diocese of Ballarat during pastoral visits to his family home. The priest was not an employee or agent of the Diocese and his actions were not done with the express or implied authorisation of the Diocese. The relationship between the priest and the Diocese was governed by Canon Law and to that extent allowed the Diocese to exercise control over the priest. A key part of the priest’s role was to conduct pastoral visits to parishioners’ homes.

The Plaintiff argued that the relationship between the Diocese and the priest gave rise to vicarious liability for the abuse on the part of the Diocese on the basis that it was akin to the employment relationship. This was accepted by the Supreme Court of Victoria at first instance and the Victorian Court of Appeal on appeal.

However, a majority of the High Court held that in Australia the principles of vicarious liability are confined to employment relationships. In doing so, the Court held that it has repeatedly refused to extend the boundaries of the doctrine of vicarious liability to include independent contractors, or by reference to policy considerations. The High Court held that expanding the doctrine to accommodate relationships that are ‘akin to employment’ would produce uncertainty and indeterminacy and referred to a number of cases in the United Kingdom and Canada which it said evidenced this uncertainty.

The impact on the law of vicarious liability

Plaintiffs will not be able to bring a vicarious liability claim against an institution unless they can establish that the perpetrator was an employee of the institution. This would include claims involving alleged abuse by foster carers, volunteers or contractors. Accordingly, plaintiffs in these circumstances will be left to consider whether they have a viable negligence claim or a claim against the institution on some other basis. Of course, what constitutes an employee, versus some other category such as a contractor, is likely to become a further battleground in these cases.

The decision provides clarity on the limits of vicarious liability in Australia.

Willmot v State of QLD

In Willmot, the Plaintiff made various allegations of sexual and physical abuse that occurred in the late 1950s when she was in the care of the State of Queensland. The abuse was alleged to have been perpetrated by her foster father, persons when the Plaintiff was a resident at a State dormitory and by members of her family.

The Supreme Court of Queensland had granted a permanent stay of the proceedings on the basis that a fair trial was not possible due to the time that had passed since the events in question, and the resulting impact on the availability of witnesses and evidence. The Queensland Court of Appeal dismissed the Plaintiff’s appeal.

The High Court held that the State’s application for a permanent stay should be dismissed, except for certain abuse allegedly perpetrated by the foster parents and Mr Pickering, a family member of the Plaintiff. In allowing the stay in relation to the alleged abuse by Mr Pickering, the Court concluded that given the abuse occurred in private and the only other witness (Mr Pickering) had died, and given there was no documentary evidence regarding the abuse, there was extreme forensic prejudice to the State such that a permanent stay was justified. In relation to the alleged abuse by the foster parents, the Court found that the allegation that “[the Plaintiff] was regularly subjected to beatings for minor infractions of the rules” was so vague that it was incapable of a meaningful response, defence or contradiction.

However, in relation to the rest of the allegations of abuse, despite the death of key witnesses, the Court found that a fair trial was possible given that many of the matters of asserted forensic disadvantage were not shown to have any causal connection with the effluxion of time before the proceedings were commenced. For example, a number of key witnesses died in the 1960s and there was no evidence that documents had been destroyed. The Court also found that there were sufficient sources of evidence from witnesses.

In coming to the above decision, the High Court noted (among other things) that:

1. Given the removal of time bars for matters involving historical child abuse allegations, the reality is that such claims are commonly commenced many years after the alleged abuse occurred.
2. The onus of proving that a permanent stay should be granted lies on the defendant and a stay should only be ordered in exceptional circumstances.
3. The mere passing of time, in and of itself, does not enliven the power to stay proceedings for abuse of process.
4. Permanent stay cases are highly fact-specific.

RC v Salvation Army

In RC, the District Court of WA granted a permanent stay on the basis that the alleged abuse by a Salvation Army officer had occurred 60 years earlier, key witnesses, including the perpetrator, had died, there was a lack of documentary evidence. Accordingly, the Defendant could not meaningfully defend the proceedings or have a fair trial. The WA Court of Appeal dismissed the Plaintiff’s appeal. The High Court allowed the appeal, overturning the permanent stay.

Applying the principles in Willmot, the High Court held that the Salvation Army had not discharged its heavy onus to obtain a stay because it had not established that the trial would be unfair. In doing so, the High Court found (among other things) that:

1. Other Salvation Army officers who had worked at the institution were available to give evidence.
2. The availability of evidence as to other claims of sexual abuse by the perpetrator and witnesses who were abused diminished the significance of the perpetrator’s unavailability at trial.
3. While it could be accepted that the Salvation Army had incomplete records, there was no evidence of documents known to be lost.
4. The Salvation Army had evidence of the perpetrator’s role at the institution and was able to advance a position that the perpetrator was not an employee.
5. There are cases where a party can do no more than deny the main allegation tried in the criminal courts every day. In such cases, a trial judge ordinarily exercises care before accepting uncorroborated evidence of this kind, and the required level of impairment for a permanent stay is that the trial would be unfair.

The future of permanent stays

The decisions in Willmot and RC confirm what has been apparent for some time – that Courts will only grant permanent stays in matters involving historical abuse allegations in limited circumstances and the cases in which a permanent stay will be granted are highly fact-specific. It is a high bar to establish that a trial will be unfair. The death of a perpetrator or another key witness or the unavailability of documentary evidence is no longer sufficient to justify a permanent stay. If there is other available evidence, for example other employees or residents of the institution who can give evidence or even limited documentary evidence that supports a claim, a permanent stay is unlikely to be granted.

However, Willmot makes clear that permanent stays are not entirely off the table and that where the passage of time can be shown to have significantly impacted a case a permanent stay may be granted. For example, where the perpetrator is the only other possible witness and they have died, or where it can be established that key documents existed but have been destroyed and there is no other available evidence. Similarly, extremely vague allegations may attract a permanent stay.

In NSW, the future of permanent stays will also be affected by whether the Limitation and Civil Liability Amendment (Permanent Stays) Bill 2024 currently before parliament passes. The Bill provides that permanent stays will only be granted in exceptional circumstances, not including the passage of time or the death of a witness.

_{[1] Bird v DP [2024] HCA 41.}

_{[2] Willmot v State of Queensland [2024] HCA 42.}

_{[3] RC v Salvation Army [2024] HCA 43.}