In Jonathon v Synod of the Diocese of Adelaide of the Anglican Church of Australia Inc & Anor [2021] SADC 51 (on JADE) an issue arose as to a proposed pleading of vicarious liability, the details of which are set out in a headnote.
The Applicant claims damages for personal injuries, loss and damage suffered by him when he was a resident at two boys’ homes for which he alleges the First Respondent was responsible between 1948 and 1965. The Second Respondent is joined in the proceedings as the entity responsible for overseeing the two homes and the Applicant’s care. The Applicant seeks an order for leave to file a Fifth Statement of Claim. The application is opposed.
By the proposed amended pleading, the Applicant seeks to add a cause of action in Vicarious Liability against the First Respondent relative to the two Superintendents at one of the homes where he resided; and seeks to plead further material facts relative to the actions of those two Superintendents, and his plea that the First Respondent breached the duty of care owed to him.
The First Respondent challenges the cause of action in Vicarious Liability upon the basis that no employment relationship between the First Respondent and the two Superintendents is pleaded, and that there is no other material fact pleaded upon which such a cause of action can arise. The First Respondent also argues that the manner in which it was substituted into the Action in place of another First Respondent does not stop it challenging the proposed amendments to the Statement of Claim.
The Court held at [63]:
I find that neither Mr Sealy-Bell nor Mr Snaith were employed by the first respondent. I find that the applicant does not plead a factual basis whereby it can be argued that the first respondent’s responsibility for Mr Sealy-Bell and Mr Snaith’s employer, namely the COEBH Inc., results in an employment relationship between Mr Sealy-Bell, Mr Snaith and the first respondent. There is therefore no factual basis upon which a cause of action in vicarious liability can be made out against the first respondent. The proposed pleading of vicarious liability is not arguable and could likely be struck out for setting out no cause of action.