The High Court of Australia has handed down a significant decision on the law of “vicarious liability”, ruling that a church body is not automatically liable for sexual assault carried out by priests or ministers, where those persons are not employed by the church. In Bird v DP (a pseudonym) [2024] HCA 41 (13 November 2024) the court ruled (by 6-1 majority) that the doctrine of vicarious liability should not be extended to apply to relationships “akin to employment”. In doing so it upheld an appeal against the decision of the Victorian Court of Appeal that the Roman Catholic Bishop of Ballarat (and the diocese) should be held to be vicariously liable for historic acts of child abuse committed by one Coffey, who at the time was an assistant priest in the diocese. It was accepted at all times that a priest is not an employee of the bishop or diocese. (For reasons why this is correct, see my previous post on employment status of clergy).

While I think this decision on vicarious liability is the correct application of the law of Australia, I want to stress that this does not mean I think churches should not be able to be held civilly liable for abuse committed by clergy. I have argued that an alternative doctrine, known as “non-delegable duty” (NDD), should apply even in cases of intentional sexual abuse, where a church has accepted the care of children and young people into its activities. However, NDD was not argued at the initial stages of this litigation, and the High Court held in Bird that they would defer until another day a ruling on whether NDD can apply in cases of intentional wrongdoing.

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