One of the most common questions not-for-profit organisations ask us is: What happens if our volunteer does something ‘wrong’? Will we be legally liable (responsible) for the actions of our volunteers?
Liability of organisations for the actions of volunteers was considered in the recent High Court case Bird v DP (a pseudonym) [2024] HCA 41 (Bird).
The High Court made it clear that an organisation will not be vicariously liable for the acts of its volunteers in respect of common law claims.
In this article, we explain what this means for volunteer-involving organisations.
What is legal liability?
A person is legally liable (responsible) for their acts or omissions (things they do or don’t do). A person includes an organisation.
Legal liability for wrong-doing arises from statutory and common law.
Statutory law outlines duties and obligations in legislation made by parliament.
Common law is the body of principles developed by judges interpreting and applying earlier Court decisions on a case-by-case basis.
What is vicarious liability?
Vicarious liability is a common law principle that one person may be held liable for the wrongful act or omission of another person – for example, where an employer is held liable for the act or omission of its employees.
What was the decision in this case?
In Bird, the High Court found that the Diocese of Ballarat was not vicariously liable for the assault and sexual assault committed by a volunteer parish priest at common law because:
- the priest was not an employee of the Diocese
- the priest was not an agent of the Diocese, and
- the volunteer relationship was not intended to create a legally binding arrangement between the priest and the Diocese akin to that of the relationship between employee and employer.
The High Court very clearly rejected the idea that vicarious liability should be extended beyond strict employment relationships to "relationships akin to employment." This means an organisation cannot be vicariously liable for the acts of its volunteers in respect of common law claims.
Does Bird mean that not-for-profit organisation will not be held liable for any wrongful acts or omissions of volunteers?
No. Organisations should be very wary of making significant changes because of Bird:
- Bird only relates to the doctrine of vicarious liability at common law and does not alter the situation where organisations may be held liable for the actions of volunteers under statutory law,
- Bird was decided on particular facts that may not apply in your situation, and
- even though vicarious liability may not apply, organisations may be found to be directly liable at common law or under legislation.
What should not-for-profit organisations do?
To reduce the risks associated with engaging volunteers, organisations should:
- Ensure volunteers sign a volunteer agreement that clearly outlines their duties and obligations, and the organisations’ responsibilities. Not-for-profit Law has a template volunteer agreement available for download.
- Provide a comprehensive induction process to ensure volunteers understand the scope of their role and can effectively undertake volunteer activities. Not-for-profit Law has a sample volunteer role description and sample volunteer induction checklist in Part 3 of our National Volunteer Guide.
- Conduct at least annual reviews of workplace health and safety and other policies applying to volunteer activities to ensure compliance with legislation and that the organisation is following the policies and procedures.
- Maintain appropriate supervision of volunteer activities to ensure volunteer activities are being conducted safely, legally, and in accordance with the organisations’ standards.
- Ensure adequate insurance to cover reasonable risks arising from volunteer activities is in place and review cover annually, including seeking clarity from the insurer / insurance broker when unsure about what is and what is not covered or when the activities of the organisation change. More information about insurance and volunteers can be found in Part 4 of our National Volunteer Guide.
- Notify the insurer in accordance with the policy of insurance of any circumstances or events that may give rise to a claim of negligence in relation to volunteer activities.
We are in the process of updating our National Volunteer Guide to better explain vicarious liability in the context of this High Court case.
The content on this webpage was last updated in April 2025 and is not legal advice. See full disclaimer and copyright notice.
