DP v Bird

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Bishop not vicariously liable for abuse by clergy

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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Liability of a bishop for abuse by clergy- on appeal

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.

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Vicarious Liability of Bishop for abuse committed by clergy

In a decision handed down just prior to Christmas, DP (a pseudonym) v Bird [2021] 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.

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