Victoria has passed new legislation expanding vicarious liability so institutions can be held responsible not only for employees but also for people in roles “akin to employment,” such as clergy and volunteers. The reform closes a loophole from Bird and strengthens victim-survivors’ ability to pursue civil compensation for child abuse.
Background
In Bird v DP (a pseudonym) [2024] HCA 41, 13 November 2024 (Bird decision), the High Court of Australia held that vicarious liability could only be found in employee and employer relationships (not those in a relationship “akin to employment”). The High Court stated that it was ultimately a matter for legislatures, not Australian Courts, to extend the scope of relationships that can give rise to vicarious liability in Australia.
Following the Bird decision, on 18 November 2025, Victoria introduced the Justice Legislation Amendment (Vicarious Liability of Child Abuse) Bill 2025, for the purpose of overcoming the vicarious liability restriction following the Bird decision. The bill was introduced to make institutions vicariously liable for the abuse of children by persons akin to employees of those institutions.
Legislation Passed
On 17 February 2026, the bill was passed through both houses. The legislation has now commenced operation, following Royal Assent on 24 February 2026.
Link to the legislation
A breakdown of the amendments are below.
Section 93C of the Wrongs Act 1958 – Statutory vicarious liability of institutions of child abuse
New section 93C makes institutions vicariously liable for the abuse of a child by an employee of the institution or an individual akin to an employee of the institution if:
- the apparent performance by the employee, or individual akin to an employee of a role in which the institution placed that employee or individual supplies the occasion for the abuse of the child by that employee or individual, and,
- the employee or individual akin to an employee takes advantage of or uses that occasion to abuse the child.
In determining whether an individual is “akin to an employee”, a court may consider (but is not limited in what a Court may have regard to):
- whether the individual carries out activities as an integral part of the activities carried on by the institution; and does do for the benefit of the institution.
- the extent of the institution’s control over the individual in carrying out of the individual’s activities.
The legislation specifies that an individual contractor is not an individual akin to an employee of an institution.
In determining whether an institution placed the employee or individual akin to an employee in a role that supplies the occasion for the abuse of the child by that employee or individual, the court may have regard to whether the institution placed that employee or individual in a position or role in which that employee or individual has:
- authority, power or control over the child; or
- the trust of the child; or
- the ability to achieve intimacy with the child.
The legislation specifies that there are ‘no limits on any matter to which a Court may have regard’ when determining whether an individual is akin to an employee and when determining whether an institution placed the employee or individual akin to an employee in a role that supplies the occasion of the abuse by that employee or individual.
Section 93D of the Wrongs Act 1958 – Liability of institutions which are public sector bodies
In the case of an institution that is a public sector body within the Public Administration Act 2004, or another person or body acting on behalf of the State, the legislation makes the State the appropriate defendant for the purposes of a claim for vicarious liability pursuant to section 93C.
Relevant organisations
Relevant organisations include institutions organised to do work that includes the care, supervision, and control of children (including churches), bodies corporate, government departments, NGOs, and the Victorian police.
Part 3 – Amendment of Limitations of Actions Act 1958
These amendments are intended to allow persons whose vicarious liability claims were resolved during the period of the Bird decision and the commencement of these reforms to apply to the Court to have a settlement or judgement set aside and commence another action. The amendments to the Limitations of Actions Act 1958 permit the Supreme Court to set aside a Deed of Settlement or Judgement between 13 November 2024 to the date of commencement of the Justice Legislation Amendment (Vicarious Liability for Child Abuse) Act 2026. The Court may set aside a Deed of Settlement or Judgement if satisfied it is just and reasonable to do so.
Implications of the change
- The reforms effectively restore into law the position prior to the Bird Decision, recognising that persons who act in a role akin to employment can attract vicarious liability for institutions in respect of abuse of a child.
- This legislation allows victim-survivors to pursue claims against institutions for abuse perpetrated by employees and persons who are not formally employed but who are akin to employees (for example, a priest). In determining if a person is “akin to an employee” the Court may consider whether the individual carries out activities as an integral part of the activities carried on by the institution and the institutions control over the individual carrying out the individual’s activities.
- The Court will need to be satisfied that the institution supplied the “occasion” for the abuse of the child, by the institution placing the individual in a position of authority or control over a child; or placed in a position of trust with a child; or the ability to achieve intimacy with the child.
- There is broad discretion on what a Court may have regard to when considering whether an individual is “akin to an employee” and when determining whether an institution placed the employee or individual akin to an employee in a role that “supplies the occasion” of the abuse by that employee or individual.
- Victim-survivors can seek to set aside Deeds of Settlement or Judgements between 13 November 2024 to the date of the commencement of the Justice Legislation Amendment (Vicarious Liability for Child Abuse) Act 2026. The Court will need to be satisfied that it is just and reasonable to set aside a prior settlement.
For further information
Please get in contact with Erin Rooney or Ben Tallboys
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