One of the most common questions not-for-profit organisations ask us is: What happens if our volunteer does something ‘wrong’? Will we be legally liable (responsible) for the actions of our volunteers?
Liability of organisations for the actions of volunteers was considered in the recent High Court case Bird v DP (a pseudonym) [2024] HCA 41 (Bird).
The High Court made it clear that an organisation will not be vicariously liable for the acts of its volunteers in respect of common law claims.
In this article, we explain what this means for volunteer-involving organisations.
What is legal liability?
A person is legally liable (responsible) for their acts or omissions (things they do or don’t do). A person includes an organisation.
Legal liability for wrong-doing arises from statutory and common law.
Statutory law outlines duties and obligations in legislation made by parliament.
Common law is the body of principles developed by judges interpreting and applying earlier Court decisions on a case-by-case basis.
What is vicarious liability?
Vicarious liability is a common law principle that one person may be held liable for the wrongful act or omission of another person – for example, where an employer is held liable for the act or omission of its employees.
What was the decision in this case?
In Bird, the High Court found that the Diocese of Ballarat was not vicariously liable for the assault and sexual assault committed by a volunteer parish priest at common law because:
- the priest was not an employee of the Diocese
- the priest was not an agent of the Diocese, and
- the volunteer relationship was not intended to create a legally binding arrangement between the priest and the Diocese akin to that of the relationship between employee and employer.
The High Court very clearly rejected the idea that vicarious liability should be extended beyond strict employment relationships to “relationships akin to employment.”
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