By: Richard Leder OAM, Chris Lawrance and Lauren Davis
Bird v DP (A Pseudonym)
At a glance
- In 2020, DP commenced proceedings claiming damages arising from sexual assaults committed by a Catholic Priest, Father Bryan Coffey, at the home of DP’s parents in Port Fairy in 1971.
- At first instance, Justice Jack Forest held that the Diocese was vicariously liable for the actions of Coffey and awarded DP compensation of $230,000.
- The Diocese unsuccessfully appealed and was then granted special leave to appeal to the High Court.
- On 14 March 2024, the High Court of Australia heard the appeal by the Diocese of Ballarat of the judgment of the Victorian Court of Appeal in Bishop Paul Bernard Bird v DP (A Pseudonym) [2023] VSCA 66.
- While the High Court’s decision is yet to be handed down, the complexity of the legal questions it is considering means its judgment is likely to have significant consequences in the institutional abuse space and beyond.
Background
The initial proceeding, commenced by DP in 2020, claimed damages arising from sexual assaults committed by a Catholic Priest, Father Bryan Coffey, at the home of DP’s parents in Port Fairy in 1971. At first instance, Justice Jack Forest held that the Diocese was vicariously liable for the actions of Coffey and awarded DP compensation of $230,000.
After its unsuccessful appeal the Victorian Court of Appeal, the Diocese was granted special leave to appeal to the High Court.
The High Court is now considering whether:
- as a matter of common law, the doctrine of vicarious liability applies to, or should be extended to, a relationship that is neither one of employment nor “true agency”
- the “relevant approach” explained in Prince Alfred College1 requires the precise identification of how the defendant put the tortfeasor in a position to harm the plaintiff, and how that position led to the tort that eventuated, and
- the Diocese owed DP a non-delegable duty of care to protect him from the risk of sexual abuse by its priests, including Father Bryan Coffey, in the course of Coffey’s functions and duties as a priest.
Ground One – Vicarious liability requires a relationship of employment or agency
The Diocese submitted that to establish vicarious liability a plaintiff needs to establish an “employment relationship” or a relationship that is “akin to employment”.
On behalf of the Diocese, Mr Bret Walker SC drew on the distinctions between employees and independent contractors, noting that these distinctions can lead to an outcome of vicarious liability (if an employee is involved) or not (if an independent contractor is involved). He submitted that a priest’s position “is more remote from the rights, obligations and corelative control that an independent contractor displays”.
For vicarious liability to exist in these circumstances, the Diocese submitted that the Court would either have to expand or abandon the concept of “akin to employment”, contrary to previous judgments from the High Court.2 The Diocese further submitted that the Court has been asked a number of times to reformulate the test for vicarious liability in a way that abandons this need for an “employment relationship”, but has never accepted this approach.
Mr Walker submitted that a crucial objective of the common law is stability. To depart from previous decisions would produce uncertainty, and any further reform should be made by Parliament, not the Court. He noted that the government has continued to introduce a raft of legislative reforms, such as those addressing the liability of state police officers, but has not opted to impose vicarious liability between a religious institution and its members.
Mr Walker also argued there is a correlation between a Diocese and a priest and an organisation and its volunteer members, highlighting the point that not every individual who works with others in an organisation is expected to be an employee.
On the point of “control”, which had been addressed in earlier decisions, Mr Walker submitted that this test did not adequately distinguish between a contractor and employee. Mr Walker submitted “The Bishop… has certain ecclesiastical authority, none of which has any civil force… There is a deep inappropriateness about visiting upon the Diocese… a vicarious liability on the basis that there is a hierarchy that works for them.”
The final element of this ground of appeal is that of “agency”, and the application of the principles set out Colonial Mutual Life Assurance Society3. The Diocese relied on, which confirmed that the principle of agency is limited to cases where the tortfeasor is the principal’s agent, and rejected any wider the High Court.
Ground Two – The Courts below misapplied Prince Alfred College
Mr Walker submitted that the Court of Appeal erred in holding that the Diocese had placed Coffey in a position that provided both the “opportunity” and the “occasion” for the assaults. In making this submission, it noted that the error from the lower courts arose from a failure to analyse the actual responsibilities that the Diocese charged Coffey with, and how such responsibilities gave rise to the offending.
Mr Walker drew a distinction between the decision in Prince Alfred College and DP’s case. In Prince Alfred College, the perpetrator was tasked with putting children to bed. Coffey, who would attend parishioners’ homes to visit families, was not responsible for putting children to bed.
In essence, Mr Walker submitted that the relationship that gave rise to the harm was one between the priest and a parent, and not that of the child. As such, the Diocese argued it did not give Coffey a position that would give rise to the occasion, or the mere opportunity, to offend.
Ground Three – Notice of Contention: Non-delegable duty does not apply
At the outset, the Diocese urged the High Court not to entertain the merits of the Notice of Contention because it was not the premise of the case put to the lower courts.
The High Court appeared to disagree with that assertion. In particular, Justice Edelman noted that cases involving non-delegable duties are often run together with vicarious liability and agency, and the failure to use the “non-delegable duty” label should not be any more determinative than the failure to use the “agency” label.
Anticipating the High Court’s views to consider the Notice of Contention, the Diocese submitted that the common law must be developed in two steps:
- the category of Diocese and parishioner is amongst the relationships that give rise to a non-delegable duty, and
- that non-delegable duties can be owed by a party to prevent a third person from inflicting harm by intentional torts.
The Diocese submitted that the second step had been previously rejected by the High Court,4 which found that crime or intentional wrongdoing is not within the ambit of the wrongdoing for which a person on whom there is imposed a non-delegable duty of care can be held liable. Accordingly it argued that, for the High Court to form the view that a non-delegable duty exists, it would have to make a radical extension to the non-delegable duty liability to encompass criminal conduct.
In response to the Diocese’ submissions, Justice Edelman stated “…it is very hard to see why intentional wrongdoing would be carved out from non-delegable duties…”
Awaiting the decision
From the oral submissions heard, it seems clear the High Court considers the most contentious issue in this case to be whether a non-delegable duty arises.
While we do not speculate on the direction the High Court will take, the legal questions it is considering are complex and likely to have significant consequences in the institutional abuse space and beyond.
We will continue to monitor the developments in this significant case and provide updates as they arise.
[1] (2016) 258 CLR 134 (Prince Alfred College)
[2] Hollis v Vabu (2001) 207 CLR 21; Scott v Davis (2000) 204 CLR 333; Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161.
[3] Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-Operative Assurance Co of Australia (1931) 46 CLR 215
[4] New South Wales v Lepore (2003) 212 CLR 511