Stay of Proceedings in Abuse Law: Bird v DP [2024] HCA 41 Explained
As we all may know, permanent stay of proceedings of historical abuse claims is a very live topic in this area of law currently, and it is important that both survivors and practitioners are kept up to date on the Courts decisions and commentary in these application hearings.
In this matter, 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).
Supreme Court & Court of Appeal
At the primary hearing, the key issues were:
- 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
- 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:
- the principle of vicarious liability can apply to a relationship between a Diocese and an assistant priest; and
- 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.
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.
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.
High Court of Australia
The principal issue on the appeal to the High Court was whether the relationship between the priest and the Diocese, in the absence of an employment relationship, could give rise to a finding of vicarious liability on the part of the Diocese for the assaults committed by the priest. A majority of the High Court held that the principles of vicarious liability are confined to employment relationships, holding that the High Court has repeatedly refused to extend the boundaries of the doctrine of vicarious liability to include independent contractors, or by reference to policy considerations. Expanding the doctrine to accommodate relationships that are “akin to employment” would produce uncertainty and indeterminacy. As the priest was not an employee, there could be no finding of vicarious liability on the part of the Diocese.
The High Court held that the Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (Vic) did not provide a basis for imposing vicarious liability. That Act remedied a historical impediment to the redress of abuse occurring in the context of unincorporated associations, being the lack of a legal person capable of being sued. It did not alter the substantive law of vicarious liability. A relationship of employment is still required.
The High Court unanimously declined to consider DP’s further contention that the Diocese owed him a non-delegable duty of care. That contention was not pleaded at first instance or raised in the courts below and the Diocese would be irremediably prejudiced if it were advanced for the first time on appeal to the High Court.
Ultimately, on 13 November 2024, the High Court of Australia ordered as follows:
- Appeal allowed.
- 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;
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.
c. The appellant pay the respondent’s costs of and incidental to the application for special leave to appeal and the appeal to this Court.
Further updates in relation to the stay of proceedings of historical abuse cases can be found in other articles on our website.
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 Littles Lawyers today.
If you have any queries regarding the article, please contact via Free Claim Checker or email us.
