Bird v DP (a pseudonym) [2023] VSCA 66.

In the matter of Bird v DP (a pseudonym) [2023] VSCA 66, the plaintiff, DP, commenced court proceedings against the Diocese of Ballarat seeking damages for his injuries and losses as a result of childhood sexual abuse by Father Bryan Coffey at the plaintiff’s parent’s home during pastoral visits in 1971 (when the plaintiff was five years old).  

At the trial, the key issues were: 

      1) whether the Diocese of Ballarat and the current Bishop, being Paul Bird, were able to be held liable for Fr Coffey’s actions and conduct, despite Fr Coffey being an assistant priest; and  

      2) the fact that an assistant priest is not a formal employee of the Diocese of Ballarat.  

In late 2021, the Court handed down their decision that, despite Fr Coffey not holding a form of formal employment, the Diocese of Ballarat was “…all powerful in the management of clergy within a Diocese”, and that the activities and conduct of an assistant priest was under the “direct control” of the Priest, of whom reported to the bishop. This ruling meant that the Diocese of Ballarat was held vicariously liable for the abuse of DP by Fr Coffey. The Court awarded DP damages in the amount of $230,000.  

The Diocese of Ballarat appealed the trial judge’s decision, with the primary issues for the appeal being whether:  

       1) the principle of vicarious liability can apply to a relationship between a Diocese and an assistant priest; and  

       2) if the answer to the above is yes, whether the abuse was sufficiently connected with the role and functions of the assistant priest so as to be the occasion [emphasis added] for the abuse.  

A cross appeal was submitted by DP regarding whether the trial judge erred in concluding that DP had not suffered psychiatric symptoms/injuries until his recollections reactivated after reading a notice seeking victims of abuse in 2018, and the resulting approach by the trial judge towards the damages awarded.  

At the appeal, it was uncontested that, at the time of the alleged abuse, Fr Coffey was neither an employee of the Diocese of Ballarat nor an independent contractor engaged by the Diocese of Ballarat.  

Appeal - Vicarious Liability

At [114] the Court of Appeal provided: 

…the decision of the High Court in Colonial Mutual Life, and in particular the judgment of Dixon J, makes it clear that, in an appropriate case, a relationship may give rise to vicarious liability on the part of a principal, notwithstanding the tortfeasor was not an employee of the principal. In such a case, vicarious liability is imposed on the principal for the actions of the tortfeasor, on the basis that the work performed by the tortfeasor and the business of the principal were so interconnected that the tortfeasor represented the business of and/or the principal, and, by doing so, conducted the business of the principal. 

When considering the facts in this matter, the Court of Appeal held at [125], [129] – [130], and [148]: 

The relationship between Father Coffey and the Diocese through the person of the Bishop was governed by a strict set of normative rules that each of them had subscribed to, and which enabled Coffey to embody the Diocese in his pastoral role. Those rules of Canon law also permitted the Bishop to exercise control over Coffey that was at least as great as, if not greater than, that enjoyed by an employer. The formal structures that were in place allowed the Bishop to exercise control over, and to limit the area of independent action on the part of, the priest. The Bishop had the means to do so by providing instruction, supervision, transfer, limitation on authority, and ultimately by seeking sanctions, including expulsion, from church authority. In return the priest was clothed with the authority of the church. 

As the judge inferred, Coffey’s livelihood was provided for by the Diocese. In performing his work, Coffey wore the uniform of the Roman Catholic priest. Father Dillon described how, in undertaking the pastoral aspect of the work, it was usual for the assistant priest to wear the clerical collar. As assistant priest, duly appointed by the Bishop, Coffey did the work of the Diocese in the parish to which he was appointed, and the Diocese did its work by and through him. In a real and relevant sense, Coffey was the servant of the Diocese, notwithstanding that he was not, in a strict legal sense, an employee of it. In terms of the principles discussed by the High Court in Colonial Mutual Life, Hollis and Sweeney, by virtue of his role as an assistant priest appointed by the Diocese, Coffey was an emanation of the Diocese. 

In those circumstances, in our view, the judge was correct to conclude that the relationship between Coffey, as assistant priest, and the Diocese, was one which, in an appropriate case, would render the Diocese vicariously liable for any tort committed by Coffey in his role as an assistant priest within the Diocese. 

Applying those principles to the evidence in the present case, we consider that the judge was well justified in concluding that the position of power and intimacy, invested in Coffey as an assistant priest of the parish, provided him not only with the opportunity to sexually abuse the respondent, but also the occasion for the commission of those wrongful acts. 

Cross Appeal – Psychiatric Injury/Symptoms

In relation to DP’s psychiatric injuries/symptoms, the Court of Appeal held at [241] that: 

…contrary to the submission advanced on behalf of [DP], the judge did not conclude that the assaults committed by Coffey did not have any relevant effect on [DP’s] psychiatric state. Based on the opinion of Dr Jager, that the assaults had predisposed [DP] to anxiety, the judge concluded that the assaults did have some causative effect, albeit that the symptomatic sequelae of that effect had remained dormant until [DP’s] memories of the assaults had been reactivated by the December 2018 notice. As we have already discussed, and for the reasons we have given, we are satisfied that there was a substantial basis for the judge to form that conclusion. 

Ultimately, the Court of Appeal dismissed the appeal made by the Diocese of Ballarat and upheld the trial’s judge’s decision that the Diocese of Ballarat is vicariously liable for the actions of assistant priest, Fr Coffey. The Court of Appeal dismissed the cross appeal on damages made by DP.  

We are specialist abuse lawyers and can help you receive acknowledgement, meaningful apology and financial resolution from those institutions and systems of power that failed to protect you from harm. If you would like advice in relation to a childhood or adult sexual, physical and/or psychological/emotional abuse claim in any jurisdiction in Australia, please reach out to the author, Emily Wright, at Littles Lawyers today. 

Further Abuse Law information and case law updates written by our Emily Wright can be found on our website.  

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