Joshua Yuvaraj (University of Auckland – Faculty of Law) has posted Undue Judicial Restraint in Bird v DP (University of Western Australia Law Review) on SSRN. Here is the abstract:
This article argues that the decision of the majority in Bird v DP (a pseudonym) [2024] HCA 41 (‘Bird’) was characterised by undue judicial restraint, principally in its reasoning for maintaining the restriction of the doctrine of vicarious liability in tort to employment relationships (rather than including relationships ‘akin to employment’ as in the United Kingdom). The majority was unduly restrained in rejecting the role of policy considerations in making its determination; in under-emphasising the logic of expanding the scope of the doctrine; and in overstating concerns about maintaining the certainty of the doctrine. This analysis still matters even after the High Court expanded non-delegable duties to cover intentional tortious acts in AA v The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle [2026] HCA 2, and the Victorian Parliament imposed retrospective statutory vicarious liability: non-delegable duties have different aims and thresholds, while legislative solutions are politically fragile and inconsistent. The article thus situates Bird in the longstanding debate in Australian jurisprudence between the Kirby/Mason school of legal realism and the Dixon/Heydon school of legal originalism, showing why Bird presents no clear obstacle to expanding the first stage of the vicarious liability enquiry. In doing so, it provides a Kirby‑ian reminder that concerns about the law’s coherence need not obviate the Court’s role in shaping the law in response to changing social circumstances, not least in the protection of the most vulnerable in society.
Recommended!
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