I introduction

2 Vicarious Liability Only in Respect of ‘Employees’
Another significant limitation of vicarious liability at common law is that traditionally, it is limited to employees and does not extend to wrongdoing of independent contractors.²⁴ This is a deeply entrenched limit on the scope of vicarious liability.²⁵ However, there are also longstanding criticisms of it.²⁶ Professor Atiyah once noted that changing work practices might require this dichotomy between employees and contractors to be revisited.²⁷ The more employers contract out work to avoid tax and employment consequences, or vicarious liability, the greater the impact on potential compensation through vicarious liability. Further, poorly resourced or underinsured contractors (who may be cheaper to engage) may be unable to meet any liability to a plaintiff harmed by their work done at the request of the employer. In Northern Sandblasting Pty Ltd v Harris,²⁸ and in Hollis v Vabu Pty Ltd,²⁹ McHugh J agreed with Professor Atiyah’s arguments and favoured development of the law. To date this has been a minority view in the High Court. These issues are however increasingly relevant to this debate, as in the sectors involved in working with children, significant responsibilities are frequently contracted out.
Other working relationships can be difficult to pigeonhole as relationships of employment. Foster care is a well-known example that is usually not an employment relationship with the institution with responsibility for the child, so falls outside the scope of vicarious liability. There are particular issues within the context of religious organisations³⁰ where the relationship of a priest or religious official to the parish or diocese or other church entity often falls outside the traditional employment paradigm. In a number of recent English and Canadian decisions dealing with the liability of the church for sexual abuse by priests, courts have found relationships ‘akin to’ employment which sufficed for the purposes of establishing the vicarious liability of the church or diocesan body.³¹ These developments acknowledge that strict adherence to the form of traditional employment relationships would be unduly limiting of the public policy justifications for vicarious liability. These issues are equally apposite to claims brought by survivors against the clergy in Australia.