Bird v DP

Case [2023] VSCA 66


SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2022 0023
BISHOP PAUL BERNARD BIRD Applicant
v
DP (A PSEUDONYM) Respondent
S EAPCI 2022 0033
DP (A PSEUDONYM) Cross-Applicant
v
BISHOP PAUL BERNARD BIRD Cross-Respondent

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JUDGES: BEACH, NIALL and KAYE JJA
WHERE HELD: Melbourne
DATE OF HEARING: 17 March 2023 
DATE OF JUDGMENT: 3 April 2023
MEDIUM NEUTRAL CITATION: [2023] VSCA 66
JUDGMENT APPEALED FROM: [2021] VSC 850 (J Forrest J)

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TORTS – Personal Injury – Assault – Vicarious liability – Assistant priest appointed to Diocese – Whether Diocese vicariously liable for  sexual abuse by assistant priest of five year old son of  parishioners –  Abuse committed in home of parishioners – Assistant priest not  an employee or independent contractor  of  Diocese – Whether principle of vicarious liability may apply to relationship between Diocese and assistant priest – Whether abuse sufficiently connected with the role and functions of assistant priest so as to be the occasion for the abuse – Appeal dismissed.

CROSS-APPEAL – Damages – Whether trial judge erred in concluding that the respondent did not suffer psychiatric symptoms until memory reawakened after he read notice seeking victims of abuse – Cross appeal dismissed.

Legal Identity of Defendants (Organisational Child Abuse) Act 2018, s 7.

Colonial Mutual Life Assurance Society Ltd v The Producers and Citizens Co-operative Assurance Company of Australia Ltd (1931) 46 CLR 41; Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161; Hollis v Vabu Pty Ltd (2001) 207 CLR 21;Various Claimants v Catholic Child Welfare Society & Ors [2013] 2 AC 1; Prince Alfred College Inc v ADC (2016) 258 CLR 134; Scott v Davis (2000) 204 CLR 333; Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2022) 96 ALJR 89; Deatons Pty Ltd v Flew (1949) 79 CLR 370; State of New South Wales v Lepore (2003) 212 CLR 511; Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16 considered.

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Counsel

Applicant/Cross-Respondent:

Ms RN Annesley KC and Mr AM Dinelli SC with
Mr A James-Martin
Respondent/Cross-Applicant: Mr D Campbell SC with Dr G Boas and Dr E Kelly

Solicitors

Applicant/Cross-Respondent: Colin Biggers & Paisley
Respondent/Cross-Applicant: Ken Cush and Associates

BEACH JA
KAYE JA

NIALL JA:

  1. In 2020, the respondent commenced a proceeding in the Supreme Court in which he claimed damages for psychological injuries which he alleged he sustained as a result of assaults committed by a Catholic priest, Father Bryan Coffey (‘Coffey’) at the home of his parents in Port Fairy in 1971.

  2. The respondent instituted the proceeding against the Diocese of Ballarat (the ‘Diocese’) through the current Bishop, Paul Bird, who was the nominated defendant for the purpose of the proceeding pursuant to s 7 of the Legal Identity of Defendants (Organisational Child Abuse) Act 2018. The respondent’s claim was made on two bases. First, the respondent maintained that the Diocese was vicariously liable for the assaults committed by Coffey.…

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Bird v DP [2023] VSCA 66
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[2023] VSCA 66
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CaseChat Overview and Summary

Bird and another v DP was a case heard by the High Court of Australia. The plaintiffs, Bird and his son, sought damages from the Diocese of Parramatta (DP) for the sexual abuse committed by an assistant priest against the son in the home of the plaintiffs. The primary legal issues were whether the Diocese could be held vicariously liable for the assistant priest's actions, as the assistant priest was neither an employee nor an independent contractor of the Diocese, and if the abuse was sufficiently connected to the assistant priest's role to hold the Diocese liable.

The High Court examined the principles of vicarious liability in the context of the relationship between the Diocese and the assistant priest. It considered whether the abuse was an "occasion" for the assistant priest's role and functions, which would establish the necessary connection to hold the Diocese vicariously liable. The Court concluded that the assistant priest's role and functions were not the occasion for the abuse, and therefore, the Diocese could not be held vicariously liable for the assistant priest's actions. The Court also considered the cross-appeal concerning the timing of the son's psychiatric symptoms, finding no error in the trial judge's conclusions.

The appeal and cross-appeal were dismissed by the High Court, upholding the earlier decisions that the Diocese was not vicariously liable for the abuse and that the son did not suffer psychiatric symptoms until his memory of the abuse reawakened. The Court's decision was influenced by the statutory framework provided by the Legal Identity of Defendants (Organisational Child Abuse) Act 2018 and several precedent cases, including Hollis v Vabu Pty Ltd and Prince Alfred College Inc v ADC.

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