In a decision handed down just prior to Christmas, DP (a pseudonym) v Bird [2021] VSC 850 (22 December 2021), a judge of the Victorian Supreme Court ruled that the Roman Catholic Bishop of the Diocese of Ballarat could be sued as vicariously liable for child sexual abuse committed by an assistant parish priest against the plaintiff DP when he was 5 years old (in 1971). The decision (as noted in a recent online press report) seems to be the first time a diocese has been found vicariously liable under common law principles for the actions of a priest, in Australia. In this note I will suggest that the reason for this is that the decision is wrong, as inconsistent with clear High Court of Australia authority. This does not mean that I think that the organised church ought to be allowed to escape liability for harm committed by clergy to children in its care. To the contrary, as explained below, I think the High Court ought to revisit another area of common law which prevents many such claims at the moment. But the decision in DP is not consistent with the course of development of the law of vicarious liability and will, in my judgment, be overturned if there is an appeal on this point.

Background- what is “vicarious liability”?

This blog concerns “law and religion” issues- I should note at the outset that this post is more about law than religion, and I will need to delve into legal doctrine to explain my views. But I hope this may be helpful to those not familiar with the law of torts (civil wrongs) and the law of vicarious liability in particular. For those, however, interested in an even more detailed review of the area as it stood a few years ago, I recommend this paper.

In short, tort law is that body of rules determining when legal liability arises for private law wrongs. One such wrong is the action for battery, which involves touching someone else’s body without their permission. Child sexual assault is an act of battery (someone who is under the age of majority cannot legally consent to sexual touching.) The person who commits such an act can be sued for damages by the victim. But the law of “vicarious liability” enlarges the class of persons who can be sued for such an act, by attaching liability for the tort to someone who is in a relevant relationship with the actual wrongdoer, where such relationship is recognised by the law as allowing such liability.

In any claim for damages based on the vicarious liability of D (the “defendant”) for the actual wrongdoing of W (the wrongdoer) to a victim (V), two questions need to be answered. The first (the “stage 1” question) is whether D and W are in a relationship recognised by the law as creating vicarious liability. The second (the “stage 2” question) is whether W was acting “in the course (or scope) of” that relationship. Vicarious liability is a form of “strict” liability, because it deems the party who is vicariously liable, to be guilty of the wrong, on the basis of the relationship with the wrongdoer, so long as the wrong was committed in the course of the relationship. There is then no need to show any actual wrong committed by D. While this may seem unfair at first, vicarious liability is a long-standing doctrine of the law which is usually accounted for by those who regularly enter into the relevant relationships, taking out insurance to cover their deemed liability.

The Stage 1 question- what relationships create possible vicarious liability?

The first question to be addressed, then, is what are the legal relationships between parties that will create possible vicarious liability? If this first question is not answered in the victim’s favour, then the claim will be dismissed. In my view this claim should have been dismissed because there is no authority allowing a bishop/priest relationship to be recognised as creating vicarious liability.

There are in effect only four recognised relationships under Australian law as it stands at the moment which create vicarious liability. Two of them arise very rarely. (For detailed justification of these claims, I refer the interested legal reader to Luntz, Hambly, Burns, Dietrich, Foster, Grant and Harder Luntz & Hambly’s Torts: Cases, Legislation and Commentary, 9th edition, ch 17, of which in the interests of full disclosure I should mention I am the author.)

The only recognised relationships creating vicarious liability in Australia at the moment are:

• the employer/employee relationship;
• the relationship between commercial partners in a firm (not domestic “partners”);
• the relationship between a principal and a “true” agent (where the agent has authority to enter into contracts on behalf of the principal)- and vicarious liability seems likely to attach only to wrongs committed in the course of entering such a contract: see Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41;
• the relationship between an owner of a motor vehicle and someone who is permitted to drive the vehicle (and arguably this may only arise where the owner is present in the vehicle while it is being driven by the other person)- see Soblusky v Egan (1960) 103 CLR 215.

Much more could be (and has been!) said about each of the above, but for our purposes the key issue is that by far the most common such relationship is the first, that between an employer and an employee. There have been attempts to widen the set of circumstances in which vicarious liability should arise- in particular, in three significant decisions of the High Court of Australia, Scott v Davis [2000] HCA 52, Hollis v Vabu Pty Ltd (2001) 207 CLR 21, and Sweeney v Boylan Nominees Pty Ltd (2006) 227 ALR 46. But in each of those decisions, especially in the last-mentioned, the court ruled firmly that vicarious liability should be confined to an employer/employee relationship, and not be extended to cover “independent contractors”.

In the UK the class of “stage 1” relationships has been expanded, by decisions up to and including the UK Supreme Court ruling that vicarious liability can be applied to relationships “akin to employment”- see for example The Catholic Child Welfare Society v Various Claimants & The Institute of the Brothers of the Christian Schools [2013] 2 AC 1 and Cox v Ministry of Justice [2016] AC 660 (although even in the UK there has been some retreat from the very broad expansion in this area in Barclays Bank plc v Various Claimants [2020] AC 973). But in the UK the width of the ‘akin to employment’ test can be seen in Barry Congregation of Jehovah’s Witnesses v BXB [2021] EWCA Civ 356, [2021] 4 WLR 42, where a volunteer ‘elder’ in a congregation was found to be in a relationship with the church ‘akin to employment,’ and hence the congregation liable for the rape of an adult member of the church committed in a social context in a private home.

In the church context, a key factor is that clergy have historically not been regarded as “employees” of their congregations or their “denominations”. I have reviewed cases on these issues in a previous post (though for one recent example which provides something of an exception to the general rule see this post). Still, here in DP as in many previous cases, the trial judge, J Forrest J, held that the priest who had committed the abuse, was not an employee of the diocese:

Applying the Hollis criteria, I am not convinced that Coffey can be treated as an employee of the Diocese given the absence of any formal employment contract or arrangement and, as will be discussed, the lack of immediate control or supervision by the Diocese over Coffey’s activities.  Although many other features of the employment relationship and referred to in the authorities are apparent, for present purposes, I will accept that Coffey was not an employee of the Diocese.

DP v Bird, at para [211].

Having come to that conclusion, and none of the other established categories of vicarious liability being relevant, it would seem that his Honour ought to have dismissed the vicarious liability claim. But instead he in effect went on to apply the “extended” category of “akin to employment” adopted from the UK decisions (although not explicitly using that phrase). He concluded that the “stage 1” question could be resolved by:

a holistic and broad inquiry into the circumstances surrounding:  the relationship between the Diocese and Coffey; the role of both the 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

DP v Bird, at para [212].

In taking this approach his Honour relied, at para [214], on comments from Lord Reed in the Cox decision (which as noted above was handed down at the height of the “akin to employment” approach in the UK.) In doing so, with respect, his Honour made a number of errors. One was that he chose to ignore the clear comments to the contrary which had been made by the NSW Court of Appeal in the decision of Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Ellis (2007) 70 NSWLR 565, where Mason P noted that:

The relationship between members of a Church such as the Roman Catholic Church and individual office holders in that Church is far remote from any category that has been found to entail vicarious liability.

Ellis, at [53], quoted in DP v Bird at [202].

While this was not a decision of the Victorian Court of Appeal (which would of course have been formally binding on J Forrest J), it was a decision of a “superior appellate court” in another Australian jurisdiction which arguably his Honour should have followed unless convinced it was “plainly wrong”.

Second, his Honour took comments from the decision of the High Court of Australia in Prince Alfred College Inc v ADC (2016) 258 CLR 134 in support of his extension of the “stage 1” test to what was in effect an “akin to employment” test. But it is clear that Prince Alfred, while it dealt with vicarious liability for child sexual assault, was not a decision on the “stage 1” issue. The very first paragraph of that decision noted that the wrongdoer in that case was an “employee” of the College. That status was never questioned. The decision says nothing about the stage 1 issue, being focussed instead on the “stage 2” question of when an employee who commits an intentional tort can be found to be acting “in the course of employment”. As such it provides no authority for a widening of the “stage 1” test. While formally acknowledging that the decision did not deal with this issue at para [174], his Honour says that

As I see it, these statements were intended to assist lower courts to navigate this whole area, including whether the relationship is such that it gives rise to vicarious liability.

DP v Bird at para [175].

With respect, it is hard to find this “intention” in the words of the High Court.

Thirdly, his Honour chose not to follow the decision of the High Court in Sweeney, which as noted above was directly on point on the “stage 1” question as to whether vicarious liability could be extended broadly to categories other than employment such an “independent contractor”. The legal status of a member of the clergy seems best described as that of an independent contractor (in this respect I disagree with the submissions of the Diocese which apparently opposed this view- see para [193]). Vicarious liability for independent contractors has been rejected in Sweeney. Until the High Court comes to a different conclusion, it seems that vicarious liability for actions of clergy is not supported at common law.

Statutory vicarious liability for clergy

If it is thought that religious organisations should be held vicariously liable for sexual assaults committed by clergy, then it is always possible for Parliament to so provide. This is what has happened in NSW, where following the findings of the Royal Commission into Institutional Child Abuse, a number of reforms were made to allow civil claim in this State. The relevant reform here was the introduction of section 6G of the Civil Liability Act 2002 (NSW), which now extends the definition of “employee” for the purposes of that portion of the Act as follows: ” “employee” of an organisation includes an individual who is akin to an employee of the organisation”. The phrase “akin to an employee” is defined in ways which pick up comments of the UK Supreme Court on that notion following the developments in that country noted previously. Under s 6H of the Act, religious organisations are deemed to be vicariously liable for actions of “employees” as so defined, which will clearly extend to clergy.

Extension of the meaning of the term by legislation is, in my view, much preferable to an over-broad extension by judicial ruling. The Parliament can craft the extension in ways which limit the change to deal with the specific problem that they see needs to be addressed, and add definitions which will not create unintended consequences.

But for whatever reason, the Parliament of Victoria, while making a number of similar changes to its laws, has not chosen to itself extend the definition of “employee” in this way (a fact noted in DP v Bird by J Forrest J at [207]). While his Honour is correct to note that the view taken by Parliament does not of itself resolve the question as to what the common law on the matter is, that the Parliament of NSW saw a need for the changes it made does at least provide some support for my view that the common law does not justify the extension made here, and that Parliamentary action was needed.

How else can churches be held liable for actions of clergy?

The view that I have put- that generally churches cannot be held vicariously liable under Australian common law for the actions of clergy- leads to the question whether there is some other way that such liability might be imposed. I believe there is. As this post is already too long I won’t go into the details here. But in short, I think there is another common law doctrine which provides a much better way for religious organisations to be held liable for child sexual assault.

The doctrine goes by the name of “non-delegable duty” (NDD), and for those interested there is a chapter I wrote in a book published a few years ago which explains the elements in great detail: see “Convergence and Divergence: The Law of Non-Delegable Duties in Australia and the United Kingdom” in Robertson & Tilbury (eds) Divergences in Private Law (Hart, 2016) at 109 – 134. To sum up, the NDD principle requires, among other things, that those who have been entrusted with the care of young people will be held strictly liable for carelessness that causes harm to those children. If it were not for one specific decision of the High Court of Australia, NSW v Lepore (2003) 212 CLR 511 (per the majority), it would also allow recovery of damages where harm had been caused by an intentional tort such as battery committed by someone who had been entrusted to carry out the supervision of children, such as a priest. The NDD doctrine would apply whether or not a priest or other wrongdoer was an employee. I argue that this majority holding by the High Court should be revisited and the court should rule (as the UK Supreme Court has now ruled, see Armes v Nottinghamshire County Council [2017] UKSC 60 at [51]) that strict liability for intentional torts can be imposed under the NDD doctrine.

Use of the NDD doctrine in cases of clergy child abuse would provide a more coherent and limited ground for recovery which would be only a slight development of the doctrine as it now stands, as pointed out in the Federal Court decision of Pioneer Mortgage Services Pty Ltd v Columbus Capital Pty Ltd [2016] FCAFC 78 at [64] (with reference to my 2016 chapter noted above). The High Court declined to revisit the question in Prince Alfred College Inc v ADC (2016) 258 CLR 134 at [36], holding that in that case they had not been presented with enough material to justify disturbing a fairly recent holding. But they have not precluded the possibility of reconsideration at some time in the future. Such reconsideration would be of potential benefit to survivors of historical clerical child abuse, as even the generally beneficial changes made in State law to allow actions in the future do not always apply where the abuse happened some time in the past.

This rethinking will be all the more needed if, as I have argued here, the common law of vicarious liability in Australia probably does not attach liability to denominational institutions for abuse committed by clergy, and if, as I suggest, the decision in DP v Bird turns out to be wrong.