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.
Law and Religion Australia 