I introduction

E Dual Vicarious Liability: Reform to Impose Liability upon More than One Institution
Under Australian common law, it is not possible for two parties to be vicariously liable for a defendant’s wrong.¹²⁵ The position is otherwise in England.¹²⁶ In Catholic Child Welfare,¹²⁷ Lord Phillips approved the dicta of Rix LJ in Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd that what the court looks for is ‘a situation where the employee in question … is so much a part of the work, business or organisation of both employers that it is just to make both employers answer for his negligence’.¹²⁸
Lord Phillips held that the relationship of the tortfeasor with each defendant determines whether the defendant is liable.¹²⁹ In that case, the diocesan bodies responsible under statute for managing a residential school for boys left it to ‘the Institute’, a lay Roman Catholic order, to nominate a headmaster and appoint the teachers from brother members of the Institute. The brothers entered into contracts with the diocesan bodies but it was the relationship of the brothers with the Institute which enabled their placement as teachers in the school. Lord Phillips held that it was ‘fair, just and reasonable’ for vicarious liability for child sexual abuse by brother teachers to be shared by the two defendants.¹³⁰
In Day v The Ocean Beach Hotel Shellharbour Pty Ltd,¹³¹ Leeming JA noted that there were statutory forms of dual vicarious liability under Australian law,¹³² but that short of legislative reform, the acceptance of dual vicarious liability would have to come from the High Court.¹³³ The issue was not addressed by the Royal Commission in its Report. However, as has been recognised in England, there is no persuasive reason why the law should not be reformed to permit a court to find more than one defendant vicariously liable for institutional child sexual abuse in circumstances where the abuser is part of the ‘work, business or organisation’ of more than one institution.