ABSTRACT
In Bird v DP, the High Court confined vicarious liability to relationships of employment. This was a triumph of formalism, out of step with history and principle. While the Court was rightly hesitant to follow England and Canada, where vicarious liability has been imposed using nebulous policy considerations, the better approach was to continue developing the categories of vicarious liability incrementally, by reference to the doctrine’s fundamental concerns, including control and enterprise risk. Problematically, Bird appears to form part of a project to shift liability for enterprises to the law of non-delegable duties, which rests on insecure foundations and should not be extended to intentional torts. The attempt to overrule Lepore in the pending High Court appeal in AA v Trustees of the Roman Catholic Church is Bird coming home to roost. Legislation is needed to reverse Bird and ensure that the post-Royal Commission reforms fulfil their original purpose.
Mohseni, Aryan and Gomes, Zachary, Vicarious Liability and the Triumph of Form in Bird: Coming Home to Roost? (August 25, 2025), (2026) 100 Australian Law Journal (forthcoming).
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