Can a bishop be held personally liable for child sexual abuse committed by a member of the clergy under their authority? The Victorian Court of Appeal has recently held that they can, in its decision in Bird v DP (a pseudonym) [2023] VSCA 66 (3 April 2023) (“the Bird appeal decision“). That decision upheld an earlier trial decision to the same effect in DP (a pseudonym) v Bird [2021] VSC 850 (22 December 2021), which I commented on previously here. In that earlier comment I suggested that there were reasons to conclude that the trial judge was wrong. In this comment I will be briefly noting why I continue to hold that view, and hence conclude that the Victorian Court of Appeal is also wrong, on the specific question of what is known as “vicarious liability”.

I want to stress that, despite my view that this decision is incorrect as a matter of Australian common law on the question of vicarious liability, I fully support churches being held liable for child abuse perpetrated by clergy who have been entrusted with the care of children. As I said in my previous post, my doubt about the decision on vicarious liability:

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… 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

Clearly I was wrong about the appeal decision in Victoria. But I still maintain that the decision may be overturned if taken to the High Court of Australia. Below I briefly explain why.

This post, like the previous one I linked to above, contains more “law” than “religion.” I won’t go over the details covered in the previous post, which I strongly recommend readers review to get a fuller picture of the legal principles. Still, by way of reminder, here are a few important principles:

• “Vicarious liability” is a common law doctrine which allows one person (D) to be sued by a victim of harm (V) based on a civil wrong (a “tort”, most commonly in these cases the tort of battery) which was actually committed by W, the wrongdoer.
• In order for this doctrine to apply, the courts apply a two-stage test. (1) Was the relationship between D and the wrongdoer W, the sort of relationship which the law has recognised as creating vicarious liability? (2) If so, were the actions of W carried out “in the course of”, or “within the scope of” that relationship?
• The classic relationship establishing vicarious liability is that of an employer and an employee. There are very few other examples in Australian law where vicarious liability can be made out. Paid working relationships in Australia fall, on current accepted authority, into only two categories: employment, or an “independent contract”. Vicarious liability can be established where there is an employment relationship, but on current High Court of Australia authority, not for situations of “independent contract”. Three decisions of the High Court handed down in fairly quick succession around the turn of the current century have been seen as clearly precluding any broad expansion of vicarious liability for independent contractors: 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. 
• Ministers of religion have for many years been assumed not to be employees. I have explored the general law on the employment status of clergy in an earlier comment, and in brief the current situation seems to be that most paid clergy should be regarded as falling into the category of “independent contractors”.
• In the UK, unlike Australia, the courts in recent years have recognised a category of work which is described as “akin to employment”, into which clergy would fall: see eg The Catholic Child Welfare Society v Various Claimants & The Institute of the Brothers of the Christian Schools [2013] 2 AC 1. But this expansion has not so far been accepted by the High Court of Australia.

The facts of the Bird case are unfortunately all too familiar. The claimant DP says that he was sexually abused by one Father Coffey, in 1971 when the priest was an assistant priest in his local parish, and had gained the trust of his family due to his clerical position. Father Coffey was convicted in 1999 of a number of counts of child sexual abuse of other children (see para [35]). DP is now suing the the Diocese of Ballarat through the current Bishop, Paul Bird.

A number of barriers to such claims have been removed in recent years, following the work of the Royal Commission into Institutional Child Abuse. In Victoria, as in NSW and other Australian jurisdictions, there is now no limitation period for such claims, and problems previously encountered in suing an unincorporated body like a Diocese of the Roman Catholic Church have been overcome by legislation.

Nevertheless, while it is now possible to sue a Diocese even for events that happened some time ago, a common law claim in battery does require proof that the Diocese was legally responsible for the wrongs of the priest. Here the Victorian Court of Appeal fills that gap by holding that the Diocese can be held vicariously liable for the actions of Father Coffey.

I think the court’s analysis is correct when it discusses the “stage 2” question about the “course of employment”. If indeed Father Coffey was an employee at the time, it seems reasonable to hold that the Diocese had created the “opportunity” for him to commit child abuse, in the test spelled out by the High Court of Australia in its decision in Prince Alfred College Inc v ADC (2016) 258 CLR 134 (see the careful discussion of the “scope” issues at paras [132]-[164] of the Bird appeal decision.)

But I think the court is not persuasive when dealing with the “stage 1” issue: what sort of relationship between the parties will justify a finding of vicarious liability? It should be noted first that the appeal court accepts (as the trial judge had found) that the characteristics of the relationship between the priest and the diocese did not mean that Father Coffey was an employee. See para [94]: “Coffey could not be considered to be an employee of the Diocese.”

So in order to find that vicarious liability existed, the court needed to “distinguish” the three major High Court decisions noted above, which seemed to clearly rule out expanding vicarious liability for the actions of non-employees. In short, the main case which the court referred to was the decision in Colonial Mutual Life Assurance Society Ltd v The Producers and Citizens Co-operative Assurance Company of Australia Ltd (1931) 46 CLR 41 (“CML“).

CML is an important decision, not least because the main judgment in the case was that of Dixon J, usually regarded as Australia’s greatest common law judge. (For cricket fans, his Honour is effectively the “Don Bradman” of High Court judges.) The facts were that two insurance companies were competing for business. They each employed “agents” (not employees) whose job it was to sell policies to customers. They had, however, instructed their agents not to slander the competitors in seeking to make a sale. On one occasion, however, that is what happened. As the Bird appeal court put it:

While attempting to obtain business for the appellant, the agent made defamatory statements concerning the respondent, which was another assurance company. The respondent issued proceedings for defamation against both Ridley and the appellant. The trial judge found in favour of the respondent and entered judgment for damages against Ridley and the appellant. On appeal, the High Court, by majority (Evatt and McTiernan JJ dissenting) held that, in performing canvassing duties under the agreement, Ridley was not acting independently, but was acting as the representative of the appellant, and, accordingly, the appellant was liable for the slanders spoken by Ridley. 

Bird appeal decision, para [85]

If that quote were all we had to go on, the case here seems easy. Surely one can say that a priest “represents” the Diocese? But the subsequent treatment of the CML case is not that easy. In the later decision in Sweeney it was made clear that merely “representing” someone was not enough to establish vicarious liability (and the Bird appeal decision acknowledges this, at [89]). The decision in CML was later seen to be confined to a very narrow category: cases of what can be described as “true agency”. So, for example, in a fairly recent comment on the case in Hallmark Construction Pty Ltd v Harford [2020] NSWCA 41 , Basten JA in the NSW Court of Appeal noted that:

[74] Generally speaking, liability in tort is confined to cases where the relationship is one of employment and the acts are done in the course of the employment. As explained in Sweeney v Boylan Nominees Pty Ltd  (2006) 226 CLR 161; [2006] HCA 19 at [22], CML did not overturn that general principle. Rather CML identified an exception where the independent contractor had authority to bind the principal contractually…

The Bird appeal decision takes the ratio of the CML case to be wider than this. The court says this in summarising its approach:

However, 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. (Footnote 93: Sweeney (2006) 226 CLR 161, 171 [24])

Bird appeal decision, para [114]

However, with respect, the phrase at the conclusion of this paragraph, which the footnote suggests is support by the decision of the High Court in Sweeney, is slightly misleading. Paragraph [24] from the majority decision in Sweeney concludes as follows:

 It stands within those bounds because of the closeness of the connection between the principal’s business and the conduct of the independent contractor for which it is sought to make the principal liable. The relevant connection is established by the combination of the engagement of the contractor as the agent of the principal to bring about legal relations between the principal and third parties, and the slander being uttered in the course of attempting to induce a third party to enter legal relations with the principal.

Sweeney v Boylan Nominees (2006) 226 CLR 161, 171 [24])

In other words, the “connection” which established vicarious liability in CML was not just a general connection of “representing” or “conducting business on behalf of”- it was a specific connection due the power of the agent to create legal relationships between the insurance company and the customer, and the slander being uttered in the course of that process. No-one suggests that an assistant priest like Coffey would have power to enter binding contractual agreements on behalf of the diocese, and in any event the wrongs which he committed had nothing to do with any contractual agency.

In short, on the basis of recent treatment of the CML case by the High Court, it is hard to see how this extension of vicarious liability by the Bird appeal court represents the correct view of the common law of Australia. Of course, if appealed, the High Court has the authority to adjust the common law in this way. But in my view, especially in light of complexities created in the UK by the recent expansion of vicarious liability by the UK Supreme Court, there is a better solution.

As I noted in my previous post, I think the High Court of Australia could fashion a much better solution to the problems in this area by revisiting its decision in NSW v Lepore (2003) 212 CLR 511 (which currently excludes intentional torts like battery from the operation of the doctrine of “non-delegable duty”). That principle allows strict liability for the actions of independent contractors, and it would not be a very large extension of the principle to hold that churches owe such a duty to protect children from child abuse when they agree to minister to children and care for them. I hope that in future that change may take place, to ensure that those who were abused by clergy receive proper compensation, without bringing about the wide and unpredictable changes that ad hoc adjustments to the law of vicarious liability may create.