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.

I previously commented on these proceedings at different stages: for comment on the initial decision of the trial judge, see here; for comment on the Victorian Court of Appeal decision, see here. I also wrote a comment on the pending High Court of Australia appeal which can be found here. My summary of the proceedings from that last post was:

In Bird v DP (A Pseudonym) the High Court will address two important questions about the civil liability of institutions for child sexual abuse perpetrated by representatives of the institution. The case involves a claim against the Roman Catholic Bishop of Ballarat as liable for child abuse committed in 1971 by Father Coffey, a priest working for the diocese. The trial judge and the Victorian Court of Appeal have ruled that while Coffey was not an employee, the diocese is nevertheless vicariously liable for the abuse. This involves an extension of the ‘stage 1’ issue of vicarious liability (the question as to which legal relationships allow attribution of liability) which is being challenged in the appeal. The High Court has also been asked in a notice of contention to consider whether, if the Court of Appeal was wrong on the vicarious liability issue, liability might alternatively be sheeted home to the diocese under the principle of non-delegable duty (NDD). This would require the High Court to overturn its previous decision in NSW v Lepore on the point that the NDD doctrine cannot be applied to intentional torts. This article argues that the appeal should be allowed, the notice of contention upheld, and Lepore be overruled on this issue.

The outcome of the High Court decision is that I was half right, and half “not yet right”! I was correct when I said that the decisions of the lower courts were not correct on the question of vicarious liability. This doctrine, which imposes strict liability on one party for wrong committed by someone else, has almost always required the establishment of a formal employer-employee relationship. The High Court agreed that this should remain the norm, and that this form of liability should not be extended to relationships “akin to employment”.

There is a joint “plurality” judgment from Gageler CJ, Gordon, Edelman, Steward and Beech-Jones JJ, a concurring separate judgment from Jagot J, and a judgment from Gleeson J in which her Honour would have accepted the “akin to employment” extension but holds that on the facts there was no liability as the actions of Coffey were not in the scope of his (quasi?) employment.

Imposition of vicarious liability involves two main questions, which have come to be called “stage 1” (is there a relationship between the defendant and the wrongdoer which the law recognises as creating VL), and “stage 2” (was the wrong committed in the course or scope of that relationship?) The primary issue in this case was the relevant test for stage 1. In recent years the UK Supreme Court (UKSC) has approved extension of the stage 1 test to include a relationship “akin to employment”.

The plurality judgment notes that there is an unbroken series of High Court of Australia (HCA) decisions over the last 20 years or so ruling that “stage 1” of the vicarious liability test can (with limited exceptions) only be satisfied by the existence of an employment relationship between the actual wrongdoer and the defendant. They say that the Victorian Court of Appeal were in error in adopting the arguments in favour of extending this to pick up the “akin to employment” category. See [47]:

[47] The issue is whether, in undertaking the first step of that inquiry, the Court should now expand the boundaries of vicarious liability beyond a relationship of employment to one that is “akin to employment”. Contrary to the decisions of the courts below and the submissions of DP, the answer is no.

The judgment notes from [54] the extensions made by the UKSC. However, they note at [60] some of the implications this extension has had and conclude that this is not the way the law of Australia should be developed. They say:

[63] In light of this Court having rejected, on more than one occasion over the last 25 years, both the starting point and the basis on which the Supreme Court of the United Kingdom extended the law of vicarious liability, the issue is squarely in the hands of the legislatures. This Court should not, by developing the common law, deny the centrality of the employment relationship nor abandon that requirement. As this Court stated in Sweeney, “[w]hatever may be the logical and doctrinal imperfections and difficulties in the origins of the law relating to vicarious liability, the two central conceptions of distinguishing between independent contractors and employees and attaching determinative significance to course of employment are now too deeply rooted to be pulled out”. Those deep roots of reliance on a threshold requirement of an employment relationship for a finding of vicarious liability extend to other Australian courts, the legislatures (including in relation to drafting employment legislation) and insurers. That list is not exhaustive.

They note that legislation has addressed some of these issues, but conclude that the court should not intervene to extend the common law in ways that the legislature has not done so far. (There is now legislation specifically holding churches and other institutions liable for child abuse committed by persons in an “akin to employment” relationship, which would include clergy- see eg in NSW Civil Liability Act 2002 s 6H. However, this provision does not apply to abuse which occurred before the commencement of that provision, in 2019.)

I agree with this decision on the vicarious liability point, as I noted in my previous post. However, I think it unfortunate that, the matter having been raised by a “notice of contention” (a document lodged by the plaintiff DP on the appeal), the judgment says that the court will not consider the possible extension of a non-delegable duty to cover intentional torts, which I think is a preferable way of dealing with the issue. The extension is not precluded for the future, just that they hold that it was not raised in the courts below and that there may have been a need for more fact-finding before it could have held that it applied in this case- see eg [42]-[43].

Jagot J in effect agreed with the plurality. Gleeson J dissented on the “akin to employment” issue, arguing that the previous course of HCA authority did not preclude this extension of the law. However, her Honour concluded that even if stage 1 of the test were satisfied, on the facts Coffey was not acting in the course of his relationship, and so stage 2 would not have been satisfied.

The decision of the High Court here provides clarity on an issue which had become confused after the decision of the Victorian Court of Appeal (and had the potential for a wide range of unintended consequences, as the High Court noted has happened in the UK). It does not, of course, prevent civil actions against churches where it can be shown that church officials were aware of the abuse and should have taken action to prevent it occurring. But in my view the court should revisit as soon as possible the application of the NDD doctrine to intentional wrongdoing. Doing so will allow civil actions to be taken in a range of circumstances where churches accepted young people into their care in youth groups, or orphanages, or schools, or other contexts, and should be required to accept responsibility where, while in their care, the children were abused by those who had been trusted to look after them.