Private Law Theory

ABSTRACT
In Bird v DP, the High Court clarified the law of vicarious liability. It insisted that a relationship of employment was a ‘necessary precursor’ for vicarious liability to attach. This Australian divergence from the jurisprudential approach of the United Kingdom and Canada has meant that, for many survivors of historic sexual abuse, the quest for compensation becomes more difficult. In this context, there has been vigorous debate regarding the expansion of vicarious liability to encompass relationships ‘akin to employment’. We argue this expansion should not occur. A legislative expansion would hold non-culpable institutions liable where no intention to indemnify the wrongdoer’s liability exists. We argue that liability should track culpability. A doctrinal analysis reveals the law of negligence is presently sufficient to hold culpable entities liable. This proposition undermines the strength of the main arguments in favour of reform. In any event, there are sound practical reasons to resist reform.

Dinelli, Leo and Carne, Tom and Archibald, Felix, Letting Bird Fly: Vicarious Liability and the Question of Statutory Intervention (November 11, 2025).