Vicarious liability and non-delegable duty 

Three distinct routes can make one party answerable for harm caused by another, and problem questions routinely confuse them. Vicarious liability is strict and derivative: the employer is liable because the employee committed a tort, without any wrongdoing of its own. A non-delegable duty is personal and direct: the defendant owes a duty to ensure that reasonable care is taken, and cannot discharge it by engaging someone competent. Direct negligence is the defendant's own failure. Identifying which is in play determines what must be proved.

Vicarious liability: the relationship

Vicarious liability attaches to the employment relationship and, in general, not to the engagement of an independent contractor. Australian law long approached the distinction through a multifactorial survey — control, provision of equipment, delegation, presentation to the public, mode of remuneration — of the kind applied in Hollis v Vabu Pty Ltd (2001) 207 CLR 21.

That approach was substantially reframed in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2022) 275 CLR 165.¹ Where the parties have committed their relationship to a comprehensive written contract that is not a sham and has not been varied, the characterisation is determined by the rights and obligations that contract creates, not by how the work was performed in practice. The multifactorial matters survive, but as a guide to construing the contract rather than as a free-ranging inquiry into the reality of the working relationship.

Vicarious liability: the course of employment

The tort must be committed in the course of employment. Negligent acts are usually straightforward: an authorised act performed carelessly remains within the course of employment, and even an act performed in an unauthorised manner may be. The difficulty lies with deliberate wrongdoing, where the conduct is by definition not what the employer engaged the employee to do.

For intentional torts, Prince Alfred College Inc v ADC (2016) 258 CLR 134 directs attention to whether the employment provided the occasion for the wrongdoing — the special role, and the authority, power, trust, control and intimacy it conferred.² The question is not whether the employer authorised the act, but whether the employment placed the employee in a position that made the wrong possible in the way it occurred. Mere opportunity, of the kind any co-worker would have, is not enough.

For employee status under the Fair Work Act 2009 (Cth) itself, Parliament has since reversed that approach. Section 15AA⁶, in force from 26 August 2024, requires the question to be answered by "ascertaining the real substance, practical reality and true nature of the relationship", with regard had "not only to the terms of the contract governing the relationship, but also to other factors relating to the totality of the relationship including, but not limited to, how the contract is performed in practice". The Note to the section says it was enacted in response to Personnel Contracting and Jamsek.

It does not follow that Personnel Contracting is displaced here. Section 15AA operates "for the purposes of this Act", so characterisation at common law — which is the question vicarious liability turns on — is untouched, and ss 15AB to 15AD let a qualifying high-income individual opt out of s 15AA altogether. Check which question you are answering before choosing the test.

Non-delegable duty

Some relationships attract a duty that goes further: a duty to ensure that reasonable care is taken, which is not discharged by delegating the task to an apparently competent contractor. School authorities and pupils, hospitals and patients, and employers and employees are established categories, and the unifying idea identified in Kondis v State Transport Authority (1984) 154 CLR 672 is the vulnerability of the person to whom the duty is owed and their dependence on the defendant's care.³ Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 extended comparable reasoning to a dangerous activity conducted on land.

There was a limit, and in 2026 it went. In New South Wales v Lepore (2003) 212 CLR 511 a majority held that there could be no common law non-delegable duty in respect of harm caused by an intentional criminal act.⁴ The High Court re-opened and overturned that holding in AA v The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle [2026] HCA 2, allowing the appeal 5:2: a non-delegable duty may be breached by the intentional conduct of the duty-holder or their delegate.⁵ Two things survive. The duty is still not absolute liability — there is no liability unless the duty-holder or its delegate defaulted in taking reasonable care — but an intentional criminal act by a delegate now counts as such a default. And overturning the holding decides no particular case: AA's own damages were reduced to the caps in Pt 2 of the Civil Liability Act 2002 (NSW).

Why the distinction changes the answer

The three routes fail in different places, which is why they must be pleaded and analysed separately. A vicarious liability claim fails if the wrongdoer was an independent contractor, whatever the employer's own conduct. A non-delegable duty claim fails if the relationship is not one in which such a duty arises, or if neither the duty-holder nor its delegate defaulted in taking reasonable care. A direct negligence claim — negligent selection, inadequate systems, failure to supervise — survives both of those failures, and is often the claim that succeeds when the others do not.

The civil liability statutes should also be checked: several jurisdictions modify the operation of proportionate liability and contribution in ways that affect how loss is apportioned once liability is established.

Agents, partners and the limits of the categories

Vicarious liability is not confined to employment. Partners are liable for the wrongful acts of a partner acting in the ordinary course of the firm's business, and a principal may be liable for an agent acting within the scope of the authority conferred. Both rest on the same underlying idea — that a person who conducts an enterprise through others should answer for the risks that enterprise creates — but neither should be assumed. A relationship described as agency in a contract may not be one in law, and the scope of authority conferred is a question of construction.

Courts have also declined to extend vicarious liability to relationships resembling employment but falling outside it. The invitation to recognise a broader "akin to employment" category has been pressed in Australia without the success it has found elsewhere, and the safer approach in a problem question is to characterise the relationship carefully rather than to reason by analogy from the outcome one would prefer.

Applying this in a problem question

1. Identify the wrongdoer and the relationship precisely — employee, or independent contractor under a comprehensive written contract?
2. If a written contract governs, construe its rights and obligations first, and treat the working arrangements as an aid to construction rather than as the test.
3. Characterise the tort as careless or deliberate, because that selects the course-of-employment analysis you apply.
4. For deliberate wrongdoing, ask what the role conferred — authority, trust, control, intimacy — and whether it supplied the occasion rather than mere opportunity.
5. Ask separately whether the relationship is one attracting a non-delegable duty. Since AA it reaches a delegate's intentional criminal act, but it still requires a default in taking reasonable care by the duty-holder or the delegate, and it is not absolute liability.
6. Plead the defendant's own direct negligence in the alternative; it frequently survives when the derivative routes fail.

The limit of that approach was marked in CCIG Investments Pty Ltd v Schokman (2023) 278 CLR 165⁷. Kiefel CJ, Gageler, Gordon and Jagot JJ held at [33] that "[w]here no more can be pointed to than that the employment provides an opportunity for the employee's wrongful act to take place, the connection with the employment is tenuous". Opportunity is not occasion; ask whether the employment placed the employee in a special position.

Self-check

• Have I kept vicarious liability, non-delegable duty and direct negligence separate rather than merging them?
• Have I applied the contract-focused approach where a comprehensive written contract exists?
• Have I asked whether the employment supplied the occasion, not merely the opportunity?
• Have I checked the relevant civil liability statute before apportioning loss?