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.
As in other parts of the Western world, the church has been in the spotlight over the last few years in Australia as the scope and impact of sexual abuse committed by clergy, and in some cases covered up by church leaders, has become more apparent. Here the Royal Commission into Institutional Responses to Child Sexual Abuse is doing what seems to be an excellent job in encouraging victims to come forward and report harm they have suffered in this way. It is painful for Christians and others who have supported community organisations like the YMCA to hear the stories of what has happened to vulnerable children who should have been cared for, but instead were in some cases exploited for sexual gratification. But it is vital for the truth to come out about these events, so that victims can feel that they are finally being heard, and where possible receive compensation for the harm they have suffered.
As well as teaching “Law and Religion” as an elective, I teach “Torts” to first year law students. Torts is about civil liability, “suing people for stuff” as I sometimes summarise it. The question of the liability of churches for the sexual abuse suffered by children at the hands of members of the clergy provides one area where two of my main academic interests co-incide. Recently I was invited to deliver a paper on the question of holding churches responsible for damages in this area, to a local law firm, Kelso’s, who are acting on behalf of a number of clients who have been harmed in this way. (The firm runs an excellent “unofficial” website connected with the Royal Commission.) The paper can be found here for those who are interested in exploring some of the legal issues.