Vicarious Liability for Criminal Conduct: A Comparative Analysis of Australia and the UK

The 2016 High Court of Australia case, Prince Alfred College Incorporated v ADC [2016] HCA 37, established the underlying principles for determining vicarious liability in cases involving criminal conduct.

In this case, a former boarder at Prince Alfred College (PAC) sued the college for damages, claiming that he was sexually abused by a housemaster. The respondent argued that PAC was vicariously liable for the assault.

The High Court provided guidance on the issue of vicarious liability involving intentional or criminal acts. In doing so, the court reviewed Australian, Canadian, and English authorities.

The majority of the court determined that for vicarious liability to apply, the employment must not only provide an opportunity for the wrongful act but also provide the "occasion" for it to occur. They stated that it is crucial to consider any special role assigned to the employee and the position they hold vis-à-vis the victim. Factors such as authority, power, trust, control, and the ability to establish intimacy with the victim can be taken into account, and the ability to exploit the employee's position with respect to the victim may be sufficient in itself.

These principles have been widely adopted in Australian courts, in determining whether an organisation is vicariously liable for the criminal acts of its employees.

Garrett v Victorian Workcover Authority [2023] VSCA 144

The recent Australian case of Garrett v Victorian Workcover Authority [2023] VSCA 144 sheds further light on the application of vicarious liability in employment contexts.

The case involved a claim for damages for psychological injury sustained by an armed security guard due to the actions of a fellow guard.

The court examined the specific role assigned to the co-security guard and the degree of power and control he possessed over the applicant. By drawing from the principles established in the Prince Alfred College, the court emphasised that the employment must provide the "occasion" for the commission of the tort.

Ultimately, the Court concluded that the employment relationship in this case did not constitute the "occasion" for the tort, as the co-security guard's actions were disconnected from his required role as a security guard. This decision demonstrates the need for a case-by-case analysis when applying the principles of vicarious liability in employment contexts.

Bird v DP (A Pseudonym) [2023] VSCA 66

In Bird v DP (A Pseudonym) [2023] VSCA 66, the Court of Appeal examined the relationship between a Diocese and an assistant priest.

The court explored the application of vicarious liability beyond conventional employment arrangements. It found that an assistant priest, although not a formal employee or independent contractor of the Diocese, operated under strict normative rules and Canon Law that governed the relationship. The court found that the Diocese could be held vicariously liable for the assistant priest's actions because he represented the Diocese and acted on its behalf.

In coming to this decision, the court emphasised the unique dynamics of the assistant priest's position, which involved a position of power and intimacy. This position provided both the opportunity and occasion for the assistant priest to commit the wrongful acts. In recognising the authority and trust placed in the assistant priest by his role, the court concluded that the Diocese, as the entity exercising control over him, could be held responsible for his actions.

A comparative analysis to UK case law 

The recent UK Supreme Court case of Trustees of the Barry Congregation of Jehovah's Witnesses v BXB [2023] UKSC 15 presented a contrasting approach to vicarious liability.

Here, the court analysed the relationship between the appellant and an elder who committed the sexual assault, ultimately concluding that the appellant organisation was not vicariously liable.

The court stressed the importance of both the nature of the relationship between the defendant and the tortfeasor and whether the wrongful conduct was closely connected to the authorised acts. The court found that the sexual assault was unrelated to the elder's role as an elder and lacked the necessary connection to the authorised activities.


In determining the existence of vicarious liability, Australian authorities place particular emphasis on the position of the tortfeasor and whether they hold a position of power and intimacy, providing them with the opportunity and occasion for abuse.

Conversely, the UK courts adopt a more stringent approach, focusing on the relationship between the organisation and the tortfeasor. They consider both the nature of the relationship between the defendant and the tortfeasor, as well as the close connection between the wrongful conduct and the authorised acts.

Presently, the current UK approach sets a higher standard for establishing vicarious liability for criminal acts, requiring a closer connection to authorised acts. This narrower interpretation aims to limit the extent of vicarious liability, ensuring that organisations are not held responsible for every wrongful act committed by their members or employees.