Suing for Vicarious Liability: When someone in a position of authority commits a serious act of abuse, survivors are often left asking not only how it happened, but who can be held legally responsible. In many cases, the answer includes the employer.
Under the legal principle of vicarious liability, an employer can be held liable for wrongful acts committed by their employees in the course of employment. For abuse by police officers, teachers, foster carers, medical professionals, and other government employees, this means the State of NSW itself may be liable for the harm caused to you.
This fact sheet explains what vicarious liability means, when it applies, how a claim against the State works, and what compensation you may be entitled to.
Key Takeaways
- Vicarious liability allows an employer to be held responsible for certain wrongful acts committed by their employees in the course of their employment.
- The State of NSW can be sued in civil proceedings as the employer under the Crown Proceedings Act 1988 (NSW), subject to the usual rules on vicarious liability.
- Common situations include abuse by police officers, teachers, foster carers, and medical staff in public hospitals.
- For child sexual abuse claims, there is no limitation period in NSW. Survivors of historical abuse can still bring a claim today.
- For other abuse claims, a three-year limitation period generally applies from when the cause of action is discoverable.
- The civil standard of proof is lower than the criminal standard; a claim can succeed even where no criminal charges were laid.
- O’Brien Criminal & Civil Solicitors is recognised for its work in vicarious liability claims against the State. Read our civil case studies here.
When A Claim Against The State May Be Available
A vicarious liability claim may be worth exploring if:
- A government employee used their role, authority, or access to commit abuse against you
- The abuser was a police officer, teacher, foster carer, caseworker, or public hospital employee
- The employer placed the abuser in a position of power or trust that facilitated the harm
- You suffered abuse in an institutional setting run or funded by the State
- The abuse occurred years or decades ago. These are historical claims, which can remain open, particularly for child sexual abuse
What Is Vicarious Liability? Suing For Abuse By A Government Employee
Vicarious liability is a legal principle that makes an employer responsible for certain wrongful acts committed by their employees in the course of their employment. In abuse cases, this means that a school, police department, hospital, or government agency may be held liable where the abuse was so closely connected with the employee’s role that the employment relationship materially increased the risk of it occurring.
NSW courts look at whether the employment placed the abuser in a position of authority, trust, or power that facilitated the wrongdoing. Merely giving the abuser an opportunity to commit the act is not enough; the wrongful conduct must be closely connected to the nature of the job and the authority or trust conferred by the employer.
The High Court of Australia examined this principle in Prince Alfred College Incorporated v ADC [2016] HCA 37, setting out the key test for institutional abuse cases. The court held that the relevant question is whether the employee was given power or authority by the employer that was used to commit the wrong, not merely access or opportunity.
Claims against the State of NSW are brought under the Crown Proceedings Act 1988 (NSW), which allows the State to be sued in civil proceedings as if it were a private person.
When Does Vicarious Liability Apply?
Not every harmful act by a government employee gives rise to a claim against the State. Courts apply a close-connection test to determine whether the employer should bear responsibility.
The employee was given authority or trust by the employer. If the employer placed the employee in a role that gave them power, unsupervised access to vulnerable people, or institutional authority, this weighs in favour of vicarious liability. Examples include a police officer using their badge to gain access to a victim, a teacher using their position to isolate a student, or a caseworker using their role to manipulate someone in their care.
The employment created or increased the risk. The employment must have materially increased the risk of harm occurring, not merely provided background conditions in which harm became possible. Courts look at whether the role itself enabled the wrongdoing.
The conduct was connected to the employee’s duties. The abuse does not need to occur during work hours or on work premises, but it must be sufficiently connected to the employee’s role. An off-duty officer who uses police resources, facilities, or authority to commit abuse may still expose the State to liability.
Common Situations Where Vicarious Liability May Arise
Police Abuse and Misconduct
A police officer who uses their authority, police vehicles, police facilities, or their badge to commit abuse may expose the State of NSW to a vicarious liability claim. This includes physical assault, sexual abuse, coercive conduct, and unlawful detention. See also our fact sheet on unlawful arrest.
Abuse in Government Schools
Teachers, coaches, and other staff who abuse students while employed by a NSW Government school may give rise to a claim against the NSW Department of Education. Survivors of historical school abuse, including abuse that occurred decades ago, may still have claims available to them.
Abuse in Foster Care and Out-of-Home Care
Children placed in foster care or residential care by the State who experience abuse by carers or caseworkers may be able to bring a claim against the State. The Royal Commission into Institutional Responses to Child Sexual Abuse confirmed that the State can be held liable in these circumstances, and its findings continue to shape how NSW courts approach these cases.
Abuse by Medical Professionals in Public Hospitals
Patients abused by doctors, nurses, or other clinical staff employed by NSW Health may be able to claim against the State. These cases are assessed under both the vicarious liability principles and the Civil Liability Act 2002 (NSW).
Misconduct by Public Servants
Public servants who interact with vulnerable individuals in government housing, welfare services, or justice settings and who use their role to commit abuse may also expose their employer to liability.
How A Claim Against The State For Vicarious Liability Works
A civil claim for vicarious liability against the State of NSW is brought in the NSW District Court or Supreme Court. The defendant is the State itself, not the individual employee, although both can sometimes be joined.
Under the Crown Proceedings Act 1988 (NSW), the State is represented by the Crown Solicitor’s Office. In police misconduct cases, proceedings are typically brought against the State of NSW as the employer of the officer involved.
To succeed in a vicarious liability claim, you generally need to establish that the abuser was an employee of the State (not an independent contractor), that they committed a wrongful act such as assault, battery, or sexual abuse, that there is a sufficient connection between the wrongful act and the employment, and that you suffered harm as a result.
Does the Abuser Need to Have Been Convicted?
No. A prior criminal conviction is strong evidence in a civil claim, but it is not required. The civil standard of proof is the balance of probabilities, lower than the criminal standard of beyond reasonable doubt. Claims can proceed and succeed even where no criminal charges were laid, or where a prosecution was unsuccessful.
Time Limits For Suing For Vicarious Liability
Time limits vary depending on the nature of the claim.
Child sexual abuse, no limitation period. For claims based on child sexual abuse, the NSW Limitation Amendment (Child Abuse) Act 2016 removes the normal limitation period, so there is no time limit on bringing a civil claim, regardless of when the abuse occurred. Survivors of historical abuse can still pursue a claim today.
Other forms of abuse. For other forms of abuse, a three-year limitation period generally applies from when the cause of action is discoverable under the Limitation Act 1969 (NSW), and courts have limited discretion to extend time in exceptional circumstances.
If you are unsure whether your claim is within time, seek legal advice as soon as possible.
What Compensation Can You Seek? Suing for Vicarious Liability
In a successful vicarious liability claim against the State, a court may award the following:
General damages: compensation for pain, suffering, and loss of enjoyment of life. Courts assess these by reference to the nature and severity of the abuse, its duration, and the psychological impact on the survivor.
Past and future economic loss: if the abuse affected your ability to work or earn income, either at the time or into the future, you may be entitled to compensation for those losses.
Past and future treatment costs: the cost of psychological treatment, counselling, medical care, and ongoing support needs arising from the abuse.
Aggravated damages: where the conduct was particularly high-handed, or where the State’s response caused additional harm (for example, through institutional denial or cover-up), aggravated damages may be awarded.
Exemplary damages: in cases involving a serious abuse of power, courts may award exemplary damages to punish the conduct and deter similar behaviour.
Settlements in these cases are often confidential, but NSW courts have awarded and approved significant compensation in cases involving police abuse, institutional sexual abuse, and prolonged misconduct by government employees.
Evidence That Supports a Claim
Building a strong case requires careful evidence gathering. Useful evidence in vicarious liability claims includes:
Records connecting the abuser to their employment: duty rosters, vehicle logs, facility access records, and any documents showing the abuser was acting in an official capacity at the relevant time.
Criminal records and findings: if the abuser was convicted of offences arising from the same conduct, those findings are admissible in the civil claim and will strongly support your case, although a civil claim can still succeed even without a conviction.
Psychological and medical evidence: expert reports documenting the harm suffered, its connection to the abuse, and anticipated future treatment needs are central to any damages assessment.
Your own account: a detailed, consistent account of what happened, when, where, and how the abuser’s employment role facilitated the conduct is foundational to the claim.
Witness evidence: statements from people who witnessed the conduct, were aware of the abuser’s behaviour, or can speak to the institutional environment at the time.
Complaints and internal records: prior complaints made to the employer, internal investigations, or disciplinary records can support arguments that the institution knew or should have known about the risk.
Real-World Scenarios Of Vicarious Liability
Scenario 1: Off-Duty Officer Using Police Resources
A police officer, while technically off duty, uses a police vehicle and police radio to attend a location and commit a physical assault. The use of police resources and authority to facilitate the conduct may be sufficient to establish the necessary connection between the employment and the harm, even though the officer was not rostered on at the time.
Scenario 2: Historical School Abuse
A survivor of sexual abuse by a teacher at a NSW Government school comes forward decades later. Because the abuse constitutes child sexual abuse, there is no limitation period under the Limitation Amendment (Child Abuse) Act 2016. The claim then proceeds against the Department of Education on the basis that the teacher’s position of authority over students was central to how the abuse was carried out.
Scenario 3: Caseworker in Out-of-Home Care
A child in State-arranged residential care is abused by a caseworker who exploits their role to isolate and manipulate the child over an extended period. The State’s placement of the caseworker in a position of unsupervised authority over a vulnerable child is central to the close-connection test, the employment materially increased the risk of harm occurring.
Frequently Asked Questions On Vicarious Liability
Does the abuser have to have been convicted of a criminal offence before I can bring a civil claim?
No. A criminal conviction is useful evidence, but is not required. Civil claims are assessed on the balance of probabilities, which is a lower standard than the criminal threshold of beyond a reasonable doubt. Many successful civil claims proceed where criminal charges were never laid or where a prosecution did not succeed.
What if the abuse happened decades ago?
For child sexual abuse, there is no limitation period in NSW; you can bring a claim regardless of when the abuse occurred. For other forms of abuse, time limits vary and legal advice is important to understand where you stand.
What if I am not sure whether the abuser was an employee or a contractor?
This is a question your lawyer will assess. Whether someone is legally an employee or an independent contractor depends on the actual nature of the working relationship, not just how it was described. In some circumstances, liability can attach even where the abuser was engaged as a contractor.
Will I have to go to court?
Many of these claims are resolved through negotiation and confidential settlement before reaching trial. Your solicitor will advise on the prospects of resolution at each stage.
What if I reported the abuse at the time and nothing was done?
Evidence that the institution received prior complaints and failed to act can support arguments that the State knew or should have known about the risk. It may also be relevant to aggravated damages. It does not prevent a claim; in fact, it can strengthen one.
What to Do Next
If you have experienced abuse by a government employee, take the following steps:
- Seek medical or psychological support if you have not already done so. Your well-being is the priority, and treatment records also support your claim.
- Write down what happened in as much detail as you can, including dates, locations, how the abuser’s employment role was connected to the conduct, and who else may have been aware.
- Gather any supporting documents, letters, messages, records of prior complaints, or any other material connected to the abuse.
- Do not assume your claim is out of time. For child sexual abuse, there is no limitation period. For other claims, time limits vary, and a solicitor can advise.
- Contact a specialist civil solicitor. Vicarious liability claims against the State are legally complex, and specialist advice makes a real difference to the outcome.
How O’Brien Criminal & Civil Solicitors Can Help: Suing for Vicarious Liability
O’Brien Criminal & Civil Solicitors is nationally recognised for its work in civil compensation claims involving institutional abuse, police misconduct, and vicarious liability against the State. Our civil law team has extensive experience running complex cases against the NSW Government and other institutional defendants, including cases involving police abuse, historic child sexual abuse, and institutional abuse.
We understand that coming forward is a significant step. Our role is to manage the legal process with care and discretion, gathering evidence, dealing with the Crown Solicitor’s Office on your behalf, and representing you through every stage of the claim.
Call O’Brien Criminal & Civil Solicitors on 02 9261 4281 or enquire online for a confidential consultation. You do not need to have all the answers before you call.
This fact sheet provides general legal information only and does not constitute legal advice. Every situation is different. If you believe the State may be responsible for abuse you have experienced, seek independent legal advice about your specific circumstances promptly.
