Bird v DP (a pseudonym)

• Jurisdiction: Australia Federal only
• Judge: Gageler CJ,Gordon,Edelman,Steward,Beech-Jones JJ,Gleeson J.,Jagot J.
• Judgment Date: 13 November 2024
• Neutral Citation: [2024] HCA 41
• Year: 2024
• Docket Number: M82/2023
• Court: High Court

Bishop Paul Bernard Bird

Appellant

and

DP (a pseudonym)

Respondent

[2024] HCA 41

Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot AND Beech-Jones JJ

M82/2023

HIGH COURT OF AUSTRALIA

Torts — Intentional torts — Vicarious liability — Where priest committed sexual abuse whilst carrying out pastoral duties as representative of Diocese — Where priest not agent or employee of Diocese — Whether Diocese vicariously liable for priest's sexual abuse — Whether vicarious liability extends beyond relationships of employment to relationships “akin to employment”.

Appeals — Issue not raised at trial — Where respondent sought to rely on non-delegable duty — Where factual basis for duty not pleaded or tested at trial — Prejudice.

Words and phrases — “agency”, “akin to employment”, “course of employment”, “negligence”, “nominated defendant”, “non-delegable duty”, “prejudice”, “representative”, “scope of employment”, “sexual abuse”, “strict liability”, “unincorporated association”, “vicarious liability”.

Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (Vic), ss 1, 5, 7.

Representation

B W Walker SC with A M Dinelli KC and A D James-Martin for the appellant (instructed by Colin Biggers & Paisley Lawyers)

D R Campbell SC with G J Boas, J A G McComish and E H R Kelly for the respondent (instructed by Ken Cush & Associates)

ORDER

• 1. Appeal allowed.

• 2. Set aside orders 2 and 5 of the Court of Appeal of the Supreme Court of Victoria made on 3 April 2023 and, in their place, order that:

  • (a) The appeal be allowed with costs; and

  • (b) The orders made by the Supreme Court of Victoria on 25 January 2022 and 28 February 2022 be set aside and, in their place, order that the proceeding be dismissed with costs.

• 3. The appellant pay the respondent's costs of and incidental to the application for special leave to appeal and the appeal to this Court.

On appeal from the Supreme Court of Victoria

1 Gageler CJ, Gordon, Edelman, Steward AND Beech-Jones JJ. In 1971, at the age of five, the respondent (“DP”) was assaulted and sexually abused at his parents' home in Port Fairy on two separate occasions by Father Bryan Coffey (now deceased) (“Coffey”), a Catholic priest from St Patrick's, the local parish church. The church was, and is, within the Roman Catholic Diocese of Ballarat (“the Diocese”).

2 In 2020, DP commenced proceedings in the Supreme Court of Victoria claiming damages for psychological injuries he had sustained as a result of the assaults committed by Coffey. DP alleged that the Diocese was vicariously liable for the actions of Coffey and, additionally, that it was liable in negligence by reason of the Diocese's (and the relevant Bishop's) failure to exercise reasonable care in its authority, supervision and control of the conduct of Coffey. As the Diocese is an unincorporated association and not a legal person, DP instituted the proceeding against the Diocese through the current Bishop of Ballarat, Paul Bird, who was the nominated defendant for the purpose of the proceeding, pursuant to s 7 of the Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (Vic) (“the Legal Identity Act”).

3 The primary judge held the Diocese vicariously liable for the assaults, notwithstanding a finding that Coffey was not an employee of the Diocese and in the absence of a finding that the assaults occurred in the course of an agency relationship between Coffey and the Diocese. DP's claim that the Diocese was directly liable to him in negligence failed. The Diocese admitted that it owed a duty of care to DP in relation to the conduct of priests appointed to the parish in their dealings with parishioners and their families. The primary judge found that the relevant risk of harm was that Coffey in the course of his pastoral duties might assault a parishioner's child but did not accept that the Diocese knew or ought to have known of that risk prior to 1971 or during 1971. The primary judge held that the second condition of DP's case on negligence – foreseeability of risk – was not met and that the Diocese was therefore not liable for the breach of duty it owed to DP. DP did not appeal that finding. The primary judge assessed DP's damages in the sum of $230,000. The Court of Appeal unanimously dismissed the Diocese's appeal. The Diocese was granted special leave to appeal.

4 This appeal raises three issues:

• (1) whether, under the common law of Australia, absent a relationship of employment between a wrongdoer and a defendant, vicarious liability applies – or should be extended – to a relationship which is not one of employment, a relationship sometimes described as akin to employment; 1

• (2) if the relationship between Coffey and the Diocese was one which gave rise to a relationship of vicarious liability, whether the Diocese was liable for Coffey's conduct; and

• (3) whether this Court should consider DP's notice of contention that the Diocese is liable for breach of a non-delegable duty owed to DP.

5 This is the first time this Court has been asked to consider whether, absent a relationship of employment between a wrongdoer and a defendant, a diocese or a bishop may be held vicariously liable for the unlawful actions of a priest who sexually abuses a child. That, in turn, raises the question whether a relationship of employment is a necessary precursor – or a threshold requirement – to a finding of vicarious liability. As will be explained, the position in Australia is that an employer may be vicariously liable for the acts of its employees, but there is no such liability for the acts of those who are not in an employment relationship but, instead, are, for example, independent contractors or in a relationship “akin to employment”. There being no finding of a relationship of employment between the Diocese and Coffey, the appeal must be allowed. The second issue is not reached. DP's notice of contention fails at the threshold; it was not raised in the courts below.

Background

6 The primary judge considered DP's claim as raising two fundamental and closely inter-related questions. First, was the relationship between Coffey and the Diocese or the Bishop capable of giving rise to a finding of vicarious liability on the part of the Diocese for Coffey's conduct? Second, if there was a relationship that could give rise to vicarious liability, was the Diocese or the Bishop liable for Coffey's unlawful conduct, it being accepted that the assaults were unlawful and far outside Coffey's clerical role?

7 On the first question, the primary judge concluded that there was no binding decision in Australia that foreclosed the possibility that a diocese, or bishop, could be held vicariously liable for the actions (lawful or unlawful) of a priest appointed by a bishop. After considering the decisions of this Court in Hollis v Vabu Pty Ltd, 2 Sweeney v Boylan Nominees Pty Ltd 3 and Prince Alfred College Inc v ADC, 4 of the Supreme Court of Canada in Bazley v Curry, 5 and of the Supreme Court of the United Kingdom in Various Claimants v Catholic Child Welfare Society 6 (“ Christian Brothers”), the primary judge rejected the Diocese's central proposition that vicarious liability is confined to a relationship of employment and, among other things, considered that this Court in Prince Alfred College did not endorse such a “confined theory”.

8 The primary judge said that the correct approach to the first stage of the vicarious liability analysis “ought not be limited by preconceived notions of agency or employment” but, rather, should be “directed to the totality of the relationship”. The primary judge considered that, in this case, that required a “holistic and broad inquiry into the circumstances surrounding: the relationship between the Diocese and Coffey; the role of … the [then] parish priest (Father O'Dowd) and Coffey; Coffey's role within the Port Fairy Catholic community; and Coffey's relationship with DP and his family”.

9 To that end, his Honour made findings about: (i) the relationship between Coffey and the Diocese; (ii) Coffey's role as an assistant parish priest in the Catholic community at Port Fairy; (iii) the control exercised by the Diocese or the Bishop over Coffey in his role as assistant parish priest; (iv) the centrality of Coffey's work to that of the Diocese and the Church's mission in Port Fairy; (v) the opportunity the Diocese provided to Coffey to abuse his power or authority; (vi) Coffey's relationship with DP and his family both generally and at the time of the assaults; (vii) the vulnerability of potential victims to the wrongful exercise of Coffey's authority; and (viii) the circumstances in which Coffey carried out the assaults on DP.

10 What follows is a summary of those findings, which were not challenged by the Diocese.

The relationship between Coffey and the Diocese

11 A diocese, through the person of the bishop of that diocese, appoints priests and assistant priests to parishes within that diocese. Coffey was ordained in July 1960. In 1966, Coffey was appointed by the then Bishop of Ballarat to St Patrick's parish church in Port Fairy as an assistant parish priest to the then parish priest. Coffey was engaged in this role at the time of the assaults in 1971. Coffey was not employed by the Diocese or engaged by the Diocese as an independent contractor. There was no finding that Coffey was an agent of the Diocese.

Control exercised by the Diocese or the Bishop over Coffey as assistant parish priest

12 The relationship between Coffey and the Diocese (through the Bishop of Ballarat) was governed by a strict set of normative rules – encapsulated in Canon Law – that each of them subscribed to. Those rules, although legally unenforceable, permitted the Bishop to exercise control over Coffey that was “at least as great as, if not greater than, that enjoyed by an employer”.

13 The Bishop (and by him, the...