In a decision handed down just prior to Christmas, DP (a pseudonym) v Bird  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.
There was a recent reference in the excellent “Law and Religion UK” blog to a decision on the liability of a Church of England vicar and Parish Council for an injury suffered in a church hall: see “Church liability: fall from ladder” (David Pocklington, 8 March 2017). Since this case brings together two of my main academic interests, Law & Religion and Workplace Health & Safety (see my book on the topic, 2nd ed 2016, the cover of which is above), I couldn’t resist a comment on how this sort of case may have been resolved in Australia.