Case Note: Bird v DP (a pseudonym) [2024] HCA 41

7 January 2025

Prepared by Laura Cooley (Solicitor) & Conlan Fercher (Associate)

A full copy of the case can be accessed here.

Background

Judges	Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech‑Jones JJ
Held	High Court of Australia, on appeal from the Supreme Court of Victoria
Date of Hearing	14 March 2024
Date of Judgement	13 November 2024
Appellant	Bishop Paul Bernard Bird
Respondent	DP (a pseudonym)
Considered	Torts – Intentional torts – Vicarious liability – Where priest committed sexual abuse whilst carrying out pastoral duties as representative of Diocese – Where priest not agent or employee of Diocese – Whether Diocese vicariously liable for priest's sexual abuse – Whether vicarious liability extends beyond relationships of employment to relationships "akin to employment". Appeals – Issue not raised at trial – Where respondent sought to rely on non-delegable duty – Where factual basis for duty not pleaded or tested at trial – Prejudice.

First Instance - Supreme Court of Victoria

DP commenced proceedings in the Supreme Court of Victoria claiming damages for psychological injuries sustained in 1971 as a result of being sexually assaulted by Father Bryan Coffey (now deceased). Coffey was a Catholic priest within the Roman Catholic Diocese of Ballarat. The nominated defendant in the proceedings was the current Bishop of Ballarat, Paul Bird.

It was alleged by DP that the Diocese was vicariously liable for the actions of Coffey, and that the Diocese was liable in negligence due to its failure to exercise reasonable care in its authority, supervision and control of the conduct of Coffey.

Whilst Coffey was not an employee of the Diocese, the primary judge was of the view that the analysis of vicarious liability should be “directed to the totality of the relationship”,[1] and found:-

- Coffey was not employed by the Diocese, engaged as an independent contractor, or an agent of the Diocese.[2]

- The Diocese had control over Coffey’s appointment and duties.[3]

- Coffey’s role involved carrying out the work of the Diocese “in its place” and he was a “servant of the Diocese”.[4]

- The Diocese, through Coffey’s role as assistant parish priest, conducted religious services and other activities including visits to parishioners’ homes.[5]

- The visits to parishioners’ homes were integral to Coffey’s role and reflected the trust of the families in him, which he was able to take advantage of.[6]

- Coffey’s role and his affinity with DP’s family placed him in a position of trust and authority in which he committed the assaults.[7]

- The two assaults took place when putting DP to bed and when DP was showing Coffey a tent he received for Christmas.[8]

The primary judge considered the above characteristics of the relationship between Coffey, the Diocese, and the Catholic community, and held the Diocese was capable of being vicariously liable for Coffey’s conduct.[9] Further, Coffey’s role provided the opportunity and the occasion for the assaults of DP.[10]

However, it was found that the Diocese was not liable to DP in negligence. While the Diocese admitted it owed DP a duty of care in relation to the conduct of priests, the relevant risk of harm (that Coffey might assault a child in his duties) was not found to be reasonably foreseeable and the Diocese was therefore not liable for any breach of duty.[11]

Court of Appeal

The Diocese appealed to the Court of Appeal and that appeal was dismissed. The Court of Appeal upheld the primary judge's conclusion that the Diocese was vicariously liable for the two assaults committed by Coffey against DP.[12]

The Court of Appeal noted vicarious liability has been recognised as extending beyond employment relationships and accepted the primary judge’s finding that the relationship between Coffey and the Diocese would give rise to vicarious liability for any tort committed by Coffey in his role.[13] The Court of Appeal accepted the Diocese was vicariously liable for the assaults against DP on the basis that Coffey did regularly visit parishioners’ homes in his role and that it was in that position he committed the assaults.[14]

Appeal to the High Court

The Diocese appealed to the High Court, and the Court considered:-

1. Whether, under the common law of Australia, absent a relationship of employment between a wrongdoer and a defendant, vicarious liability applies – or should be extended – to a relationship which is not one of employment, a relationship sometimes described as akin to employment;

2. If the relationship between Coffey and the Diocese was one which gave rise to a relationship of vicarious liability, whether the Diocese was liable for Coffey's conduct; and

3. Whether the Court should consider DP's notice of contention that the Diocese is liable for breach of a non-delegable duty owed to DP.[15]

Vicarious Liability in Australia

In Australia, an employer is vicariously liable for the acts of employees, however there is no such liability for those who are in a relationship “akin to employment”.

It is accepted that vicarious liability may arise in agency relationships, however it was held that Coffey’s unlawful acts were not done with the Diocese’s express, implied or apparent authorisation, therefore no agency relationship arose.[16]

The position in Australia is that a relationship of employment is a necessary precursor to a finding of vicarious liability.[17] It must then be determined that the relevant act/omission of the employee took place in the course or scope of that employment.[18]

Vicarious Liability in other jurisdictions

The High Court did refer to various decisions from Canada and the United Kingdom where the relationship of “akin to employment” has been accepted to give rise to vicarious liability however noted there are vastly different propositions underpinning those laws, which do not reflect the laws in Australia.[19]

The Supreme Court of the United Kingdom has established the overarching test to impose vicarious liability on an employer involves the following five factors:-

i. The employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability;

ii. The tort will have been committed as a result of activity being taken by the employee on behalf of the employer;

iii. The employee's activity is likely to be part of the business activity of the employer;

iv. The employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee; and

v. The employee will, to a greater or lesser degree, have been under the control of the employer.[20]

In addition to the above, it must be established there must be "a relationship between the two persons which makes it proper for the law to make the one pay for the fault of the other" and "the connection between that relationship and the tortfeasor's wrongdoing".[21]

The Present Case

In relation to the present circumstances, the High Court stated the relationship between the Diocese and Coffey did exhibit certain features that resemble an employment relationship,[22] however extending the law of vicarious liability to relationships that are “akin to employment” would produce uncertainty and indeterminacy,[23] and reformulation of the law of vicarious liability does not fit within the accepted rules and principles in Australia.[24]

It was noted that the relationship of ‘employment’ is defined by statute,[25] and it is therefore in the hands of the legislatures to extend the law of vicarious liability.[26]

The Notice of Contention

DP raised a notice of contention that the Diocese is liable to DP for breach of its non-delegable duty of care to protect him from the risk of sexual abuse by Coffey. However, as the non-delegable duty was not pleaded in the first instance, the High Court did not entertain it.[27]

Jagot J did however raise questions for consideration regarding the non-delegable duty, including, inter alia: whether the duty applies to any child, or only children whom the Diocese has placed under the care, supervision or authority of one of its priests; and, the line to be drawn between a priest acting in an independent capacity and acting in the course of his functions and duties or as a representative, servant or agent of the Diocese.[28]

Gleeson J Dissenting

In her dissenting judgement, Gleeson J stated vicarious liability should be extended to relationships “akin to employment”. It was concluded that religious organisations should be held vicariously liable for torts committed by a person engaged in the pursuit of the purposes of the organisation, where the legal relationship with the organisation is based upon canon law (opposed to a contact of employment), in the same way that the organisation would be vicariously liable for the same tort committed by an employee, despite the differing legal bases of the relationships.[29]

Gleeson J considered that the imposition of vicarious liability for Coffey as an assistant priest in the performance of his role is consistent with the imposition of vicarious liability on an enterprise for the torts of an employee, and same does not offend the general rule that an enterprise is not vicariously liable for the torts of an independent contractor. It is therefore not problematic to expand the law of vicarious liability to relationships “akin to employment”.[30] Further, it was noted that international case law and recent statutory reforms in Australia provide justification for that extension to cover relationships between church bodies and the members who represent them.[31]

Despite the conclusion that the relationship between the Diocese and Coffey attracted vicarious liability, Gleeson J did not consider Coffey’s torts were committed in the course of that relationship.[32] Coffey’s role did not involve provision of domestic assistance and there was nothing to suggest the role justified him being alone with DP in providing pastoral care. Therefore, while the role gave Coffey the opportunity to harm DP, the assaults did not occur in the course of his relationship with the Diocese.[33]

Summary

The High Court has declined to extend the scope of vicarious liability to relationships ‘akin to employment’ and has confirmed that an employee/employer relationship must be present for vicarious liability to apply. The High Court has stated it is in the hands of the legislature to expand the scope of vicarious liability.

This decision is significant noting the increase in historical sexual abuse claims involving institutions that operate outside of the employment sphere. This decision has highlighted that assessing liability in those cases requires focus on the principles of negligence, including foreseeability of harm and the existence of a non-delegable duty of care.

[1] Bird v DP (a pseudonym) [2024] HCA 41, [8].