I introduction

1 The ‘Course of Employment’ Test
The ‘course of employment’ test¹⁷ provides that in addition to liability for authorised acts, an employer may also be liable for wrongful and unauthorised acts if they are so connected with authorised acts that they may be regarded as modes, although improper modes, of doing them. However, according to this test, the employer is not responsible if the unauthorised and wrongful act is not so connected with the authorised act as to be a mode of doing it, but is an independent act.¹⁸
Determining when intentional wrongdoing¹⁹ amounts to an improper mode of doing an authorised act is notoriously difficult. Nonetheless, the ‘course of employment’ test remains an essential inquiry under Australian law. In Deatons²⁰ it was interpreted so that intentional wrongdoing can only give rise to vicarious liability if it was ‘incidental’²¹ to the employment, in the sense of being done in ‘furtherance of the master’s interests’, or in ostensible pursuit of the employer’s business, or in apparent execution of authority which the employer holds the employee out as having.²² The difficulty in characterising deliberate, criminal sexual abuse of a child by an employee of an institution in this way is obvious. Vicarious liability for child sexual abuse was considered by the High Court in New South Wales v Lepore (‘Lepore’),²³ discussed in more detail below. However, the reasons of the Court in relation to vicarious liability were varied with no clear ratio. Deatons was not overruled, despite some suggestion that vicarious liability could arise in respect of child sexual abuse in an institutional context. This has left survivors facing considerable uncertainty as to whether a claim relying on vicarious liability will be successful or not under Australian law.