Bird v DP

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:

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.
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. Secondly, he contended that the Diocese was directly liable in negligence as a result of the failure by the then Bishop of the Diocese to exercise reasonable care in his authority, supervision and control of the conduct of Coffey.
After a trial lasting fourteen days, the judge, in a reserved decision,[1] concluded that Coffey had committed the assaults which DP had alleged. His Honour held that the Diocese was vicariously liable for those assaults, but that the respondent had not established that the Diocese was directly liable to him in negligence. The judge assessed the respondent’s total damages in the sum of $230,000.
[1]DP (a pseudonym) v Bishop Paul Bernard Bird [2021] VSC 850 (‘Reasons’).
The applicant originally sought leave to appeal the decision of the judge on the following grounds:
1.In circumstances where Coffey was found not to be an employee of the Diocese, the learned trial judge erred in finding that the applicant was vicariously liable for his conduct.
2.Further or alternatively to Ground (1), the learned trial judge erred in holding that the Diocese could be vicariously liable for the conduct of another.
3.Alternatively to Grounds (2) and (3), and assuming that the relationship between the Diocese and Coffey gave rise to a relationship of vicarious liability (which is denied), the learned trial judge erred in concluding that that relationship was such as to found a conclusion that the Diocese was so liable.
Particulars
As part of this ground of appeal, the appeal [sic], the applicant challenges the subordinate findings of fact that:
(a)the Diocese was “all powerful in the management of clergy within a diocese” and that activities of an assistant parish priest were under the “direct control” of the priest, who reported to the Bishop; and
(b)the visits to DP’s home were part of Coffey’s pastoral role,
each of which formed part of the erroneous conclusion of law that the Diocese was vicariously liable.
Before the hearing of the appeal, the applicant advised the Court and the respondent that he no longer intended to rely on ground 2.
The respondent, by application for leave to cross-appeal, seeks to appeal the award of damages on the following ground:
1.The trial judge erred in concluding that the Cross-Applicant did not suffer compensable loss until he read the Notice.

Background circumstances

Before considering the issues relating to liability, it is convenient, first, to summarise the background circumstances relating to the respondent’s claim against the applicant. This summary is largely derived from the outline of the circumstances of the case contained in the judge’s reasons.
The applicant was born in Port Fairy in February 1966. He was raised in a strict Catholic family. The local Catholic primary school, St Patrick’s, and the parish church, also St Patrick’s, were located close to the applicant’s home. The church and school were each within the Ballarat Diocese. At the relevant time, Bishop Ronald Mulkearns was the appointed bishop in charge of the Diocese. Coffey, who was ordained in July 1960, was appointed to St Patrick’s as an assistant priest in 1966.
In early 1971, DP commenced at the preparatory level at St Patrick’s Primary School. At that time, Coffey was the assistant parish priest to Father Patrick O’Dowd, and he taught at the school. In his evidence, DP described two separate occasions in 1971 in which he was assaulted by Coffey. The applicant did not admit those assaults took place, but the judge was satisfied on the balance of probabilities that Coffey did assault DP in the manner alleged.
Subsequently, in 1975 and 1976, when DP was in the final two years of his primary school education, he was taught by a female teacher, who, he alleged, physically abused him by striking him over the head and dragging him by the ear. After the applicant completed his primary school education, he commenced secondary studies at the Warrnambool Technical School where he was a student for the next three years. He then moved to Warrnambool Community School for Years 9 to 11. He completed his education in 1983. From that time, and for several years, he was employed, mainly on a casual basis, in businesses in Port Fairy and Warrnambool.
In the meantime, in the early 1980s, DP formed a sexual relationship with an older boy, Danny. DP was about 15 years of age at that time. The relationship lasted for a number of years. In 1985, Danny suffered severe injuries in a motor vehicle collision. A few months later he committed suicide while he was an inpatient at a rehabilitation centre. In the same year, in March 1985, DP’s parents were killed in an horrific motor vehicle accident in New South Wales. Following an extensive police investigation, the Coroner concluded that the accident had been caused by the driver of another vehicle falling asleep, as a result of which his vehicle crossed onto the incorrect side of the roadway. However, DP harboured the firm suspicion that his father had deliberately caused the collision.
At some point during the 1980s, DP commenced using hard drugs, including heroin and cocaine. In 1988, he moved to Melbourne and obtained employment with the Melbourne and Metropolitan Tramways Board, initially as a tram conductor, and then subsequently as a driver. In 1993, he moved to Sydney, where he had several ‘agency’ jobs. In 1995, he obtained employment in a customer service role with Canon. In 1996, while living in Sydney, DP met his partner, Peter, and they have remained partners since then.
In 1999, DP suffered a workplace injury to his back. As a result, he was awarded a lump sum compensation payment of $45,000. Following that he had intermittent employment on modified duties, and after one or two years his employment was ultimately terminated.
In August 2000, DP commenced receiving the Commonwealth carer payment and a carer allowance on the basis that he was then the carer of his partner, Peter. At the time of the trial, he had remained on that payment. In 2001, DP and Peter moved to Melbourne and purchased a house in Melton South where they remained living.
Between 2001 and 2006, DP operated and managed two café businesses. In 2006, he was declared bankrupt.
In the meantime, from 2003 until the present time, DP suffered symptoms of depression, anxiety, panic disorder and agoraphobia. In histories, which he gave to his general practitioner and treating psychologists, he attributed a number of causes to those emotional states. They included: his relationship with Peter, his father’s treatment of himself and his siblings when he was a child, his financial problems, the death of his parents, and the physical abuse to which he had been subjected by the female teacher at school.
From 2006, DP was treated with anti-depressants by his general practitioner, Dr Watson. Subsequently, in January 2011, he consulted Mr Simon Lush, a clinical psychologist at Western Psychological Services (‘WPS’). DP had eleven sessions of treatment with Mr Lush, the last of which was in August 2012. In the following year, in May 2013, DP consulted another clinical psychologist at that service, Ms Kim Marr, and he was treated by her on twenty occasions up to and including September 2014. In October 2014, DP was referred to Dr Angelo Pagano, also a clinical psychologist at WPS, and he continued to consult Dr Pagano since that time.
In March 2014, DP’s sister, K[2], died as a result of a brain tumour. DP had been close to K. In the same year, he commenced to investigate the circumstances of the deaths of his parents, and that process lasted for another three or four years. During that period, he spent a substantial amount of time and effort communicating with individuals and organisations in Victoria and New South Wales concerning the facts relating to their deaths, including whether he was entitled to compensation.
[2]A pseudonym.
In November 2014, DP made a complaint to the Towards Healing organisation, which was a redress body established by the Catholic Church. The complaint was based on the mental and physical abuse to which he alleged he had been subjected by the teacher at St Patrick’s Primary School. In March 2015, Dr Pagano provided a report to DP’s then solicitors commenting on the effects of that abuse. In 2016, DP’s claim for compensation in relation to the school abuse was rejected by the Towards Healing organisation.
In 2016, DP instituted a claim against the Transport Accident Commission (‘TAC’) for payments under the Transport Accident Act 1986 in relation to the death of his parents. In June 2016, that claim was rejected by TAC, and his subsequent appeal to the Victorian Civil and Administrative Appeal was dismissed.
In 2016, DP sought an ex gratia payment of $780,000 from the New South Wales government as a result of the psychological trauma, which he had sustained as a result of the death of his parents. Dr Pagano wrote a letter to the then Opposition Spokesperson in the New South Wales Parliament, supporting that claim for ‘ill health suffered [by DP] … following the death of his parents in a motor vehicle accident on March 19, 1985’. In September 2016, the New South Wales government refused DP’s request for the ex gratia payment.
In late 2018, a friend of DP, by the name of Nicole, sent him a copy of an advertisement in a local Port Fairy newspaper, the ‘Moyne Gazette’, which sought information about potential victims of Coffey (the judge referred to that advertisement as ‘the December advertisement’). That advertisement had been placed in the newspaper by the solicitors who, in the current proceedings, have acted for DP, Messrs Ken Cush & Associates. At that time, DP had not told anyone (apart, on his own account, from his partner Peter) about the fact that Coffey had assaulted him, until he contacted the office of Ken Cush & Associates in January 2019 after reading the advertisement. He spoke to a solicitor, and told him details of the assaults which Coffey committed against him. The present proceeding was issued on 27 March 2020.

Summary of evidence on the issue of liability

In his evidence, the applicant said that his mother was a devoted Catholic, that she was ‘heavily into’ the Catholic church, and she expected her children also to be committed to the religion in that way. His father was also a committed Catholic.
DP said that from an early age the relationship between his parents was quite strained, and there was a lot of arguing and bickering between them. During that time, Coffey used to come to talk to his parents about their matrimonial difficulties, and when he did so, DP and his siblings were not permitted to remain in the room. After Coffey had talked to his parents, he would come to DP’s room, sit on his bed, hold his hand, and talk to him. This happened on five or six occasions. DP said that at that time he had been raised to trust the ‘man of God’. During that time Coffey was present for weekly Masses which DP attended, but Coffey did not officiate at them.
DP commenced school in the preparatory grade in 1971. At that time Coffey would come to the classroom and teach religious education. In the meantime, in November 1970, DP’s grandmother died. Following that, a ‘wake’ was held at the family home and Coffey attended it. During the evening, DP became tired and Coffey said that he would put DP to bed. Coffey carried DP over his shoulder, and on the way to the bedroom, Coffey slapped him twice on the buttocks. Coffey then put DP under the sheets, sat on the edge of the bed, and talked to DP. After a short time, DP started to fall asleep. When he woke, he found Father Coffey’s hand under the sheets fondling his private parts. DP said that he did not tell his mother at the time, because his mother would tell his father, and he would then be in trouble.
The second occasion of abuse occurred on Boxing Day 1971. DP had been given an Indian tent by his parents as a Christmas present. Coffey attended the family home on Boxing Day for a visit. DP went outside with Coffey and showed him the new tent. They both entered the tent, and then Coffey again indecently assaulted DP for about three minutes.
Father Kevin Dillon gave evidence as to the role and function of a Catholic priest. Father Dillon was ordained in 1969. In the following sixteen years, he performed different roles as an assistant priest and as an administrator. From 1985 until 2001, he served as the parish priest at St John’s Catholic church in Mitcham, and between 2001 and 2017 he was the parish priest at St Mary’s Catholic church in Geelong. Since then, Father Dillon had performed the role of parish priest at St Simon’s church in Rowville.
Father Dillon commenced his training at the Corpus Christi seminary in Werribee in 1962. That seminary was operated under the authority of the Bishops of Melbourne, Ballarat, Sandhurst, Sale and Hobart. The education at the seminary included instruction as to the roles, duties and functions of a priest. The focus of the training concerned providing service to the ordinary person in the parish. Father Dillon stated that he had always considered that the work of a priest within the context of the parish is the fundamental expression of priesthood. He said that the focus of the teaching was to be a minister in the best sense of providing pastoral care to the people in the parish.
Father Dillon said that in his training he was taught Canon law. That law was contained in a code that was originally formulated in the 16^th century, but which had been the subject of a major revision in 1983. He said that Canon law applies throughout the world.
Father Dillon explained that all parish priests are appointed by the Bishop, who has the authority to make the appointments. The rights and responsibilities of a priest who has been appointed are prescribed by the code of Canon law. For example, a parish priest is required to celebrate a Mass each Sunday. The position of assistant priest is different to that of a parish priest, and the relationship between the two was essentially that of ‘a master and apprentice’.
Father Dillon then gave evidence about the number of specific Canons that were tendered in evidence. He noted that one particular Canon (Canon 465) had the effect that any clergy who was to serve in the Diocese had to be appointed and directed by the Bishop. The Bishop has authority over all the priests in the Diocese. Further, under Canon 476, an assistant priest acts under the direction of the parish priest. Thus, the parish priest exercised a degree of control over the assistant priest and had power to give him directions and instructions. That Canon also provides that the assistant priest should undertake the same duties and responsibilities of the parish priest in the pastoral care of the people. Father Dillon explained that there was a chain of command, and the assistant priest would take his instructions and directions from the priest.
Father Dillon further stated that the fundamental work of a priest involved visiting the sick, and officiating at baptisms and funerals and the like. One of the tasks was to conduct the ceremony of the blessing of a home. Father Dillon said that it was part of his role as a parish priest to visit people in their homes, in order to get to know them. In doing so, he would wear his clerical attire. He said that throughout the 1970s the assistant priest did not need to obtain the approval of the parish priest to make home visits. Such a function would have been regarded as one which the assistant priest was instructed to do. The visiting of homes was seen as an integral part of parish pastoral care. It was usual to visit parishioners in their homes, so that the priest could get to know them in their place of comfort, and form a positive relationship with them.
In cross-examination, Father Dillon said that in permitting the parish priest to have the care and management of the parish, the Bishop would allow him some authority. He also said that some of the visits that he made as a priest were to old friends, and to the families of fellow priests.
At the trial, the judge admitted in evidence extracts of statements of nine witnesses who were indecently assaulted by Father Coffey when they were young boys. That evidence was admitted as tendency evidence pursuant to s 97 of the Evidence Act 2008. The evidence demonstrated that four of those boys were sexually abused by Coffey in their own homes during visits to that home by Coffey.
In February 1999, Coffey was convicted at the Ballarat County Court of 12 counts of indecent assault on a male person under the age of 16 years, one count of indecent assault on a girl under the age of 16 years and one count of false imprisonment. He was sentenced to 3 years’ imprisonment which was wholly suspended.

Judge’s reasons on the issue of liability

The judge commenced by addressing the question whether the respondent had established that Coffey had abused him on the two occasions referred to in his evidence. His Honour was satisfied that the first assault, alleged by the respondent, occurred, save that he was not satisfied that that assault took place at a wake for the respondent’s grandmother. He considered that it was more probable that the assault took place at a social gathering at the respondent’s family home that was attended by Coffey.[3] The judge accepted the evidence of the respondent as to the circumstances in which the second assault occurred and concluded that that assault was also proven on the balance of probabilities.[4]
[3]Ibid [109].
[4]Ibid [115].
Having reached those conclusions, the judge then addressed the question as to whether the Diocese was vicariously liable for the assaults of the respondent by Coffey. His Honour commenced by considering whether Coffey could be regarded as an employee of the Diocese. He noted that, as the High Court stated in Stevens v Brodribb Sawmilling Co Pty Ltd,[5] the existence or absence of control in the relationship was no longer a reliable indicator of an employment relationship; rather, the emphasis was not on the exercise of control, but rather on the right to exercise it.[6]
[5](1986) 160 CLR 16 (Mason, Wilson, Brennan, Deane and Dawson JJ); [1986] HCA 1 (‘Stevens’).
[6]Reasons, [131].
The judge then considered the decision of the High Court in Hollis v Vabu Pty Ltd.[7] His Honour noted that the decision of the majority, that the courier in that case was an employee, and not an independent contractor, was due to a number of features including: the unskilled nature of the work; the extent to which Vabu controlled the manner of the courier’s work; the importance of that control; the extent to which the courier outwardly represented Vabu; and Vabu’s control over the financial arrangements with the courier.[8] The judge also noted that other potential indicia of employment, identified by the courts, have included: the right of the employer to the exclusive services of the employee; the provision of paid holiday or sick leave; the deduction of income tax from the employee’s pay; the right to suspend or dismiss the employee; the fact that the employee cannot delegate or subcontract the work without reference to the employer; the fact that the employee does not have a separate place of work and does not advertise their services to the world at large; the fact that the employee does not provide and maintain their own significant tools or equipment; and the fact that the employee is paid regular wages and superannuation payments.[9]
[7](2001) 207 CLR 1 (Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ); [2001] HCA 8 (‘Hollis’).
[8]Ibid [135].
[9]Ibid [136].
The judge then discussed the decisions of the High Court in Sweeney v Boylan Nominees Pty Ltd,[10] of the Supreme Court of Canada in Bazley v Curry,[11] of the Court of Appeal of the United Kingdom in Maga v Archbishop of Birmingham & Anor[12] and of the Supreme Court of the United Kingdom in Various Claimants v Catholic Child Welfare Society & Ors.[13]
[10](2006) 226 CLR 161 (Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ); [2006] HCA 19 (‘Sweeney’).
[11][1999] 2 SCR 534 (‘Bazley’).
[12][2010] 1 WLR 1441 (‘Maga’).
[13][2013] 2 AC 1 (Lord Phillips, Baroness Hale, Lord Kerr, Lord Wilson and Lord Carnwath JJSC) (‘Various Claimants’).
Having traversed those decisions, the judge then turned to the decision of the High Court in Prince Alfred College Inc v ADC[14] which was concerned with the question of the liability of a school in respect of sexual assaults committed against a student by a house master employed by the school. The judge considered that the High Court did not endorse a ‘confined theory’ of vicarious liability restricted solely to the existence of an employer/employee relationship as contended by the applicant.[15] His Honour, in that respect, stated:
As has been seen, other jurisdictions have moved away from the position advocated by the Diocese. The statements of the High Court in Prince Alfred College demonstrate, I suggest, that there is room for an Australian court to adopt a robust and contemporaneous approach to vicarious liability drawing “heavily on various factors identified in cases involving child sexual abuse” in overseas jurisdictions. In such cases, courts will need to “make and develop the common law, as distinct from discovering and declaring it”, which may involve making judgments about “[i]dentification, modification or even clarification of some general principle or test … in the context of, and by reference to, contestable and contested questions”.[16]
[14](2016) 258 CLR 134 (French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ); [2016] HCA 37 (‘Prince Alfred College’).
[15]Reasons, [176].
[16]Ibid [178].
In that respect, the judge rejected the proposition, relied on by the applicant, that vicarious liability is confined solely to the employment situation. His Honour considered that in Sweeney the High Court did not lay down an absolute rule to that effect, and that the Court had stated, in relation to independent contractors, that ‘the person engaging the contractor will generally not be vicariously liable’.[17] In support of that proposition, the judge referred to the decision of the High Court in Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Cooperative Assurance Company of Australia Ltd.[18]
[17]Sweeney (2006) 226 CLR 161, 167 [12].
[18](1931) 46 CLR 41 (Gavan Duffy CJ, Rich, Starke, Dixon, Evatt and McTiernan JJ); [1931] HCA 53 (‘Colonial Mutual Life’).
Thus, the judge considered that the only ‘door’ that was shut by Sweeney was that limited to the relationships between a person engaged, as an independent contractor, to perform work on behalf of another in the context of a commercial or industrial setting.[19] In that respect, the judge further noted that it was not submitted on behalf of the applicant that the relationship between the Diocese and Coffey was one of principal and independent contractor.[20]
[19]Reasons, [190].
[20]Ibid [193].
The judge considered that the question which he was required to address was as follows:
… whether the wrongs of a person who is clearly not an independent contractor can be imposed on a second person with whom that first person has an ongoing, defined and close relationship with authority vested in the first person, albeit that it is not one of employment (in an industrial or contractual sense).[21]
[21]Ibid [199].
The judge then turned to the facts of the case. Applying the criteria identified by the High Court in Hollis, the judge was not satisfied that Coffey could be treated as an employee of the Diocese.[22] His Honour considered that the correct approach to the question, whether the Diocese may be vicariously liable for Coffey’s assaults of the respondent, involved an inquiry into: the relationship between the Diocese and Coffey; the roles of the parish priest (Father O’Dowd) and Coffey; Coffey’s role within the Port Fairy Catholic community; and Coffey’s relationship with the respondent and his family.[23]
[22]Ibid [211].
[23]Ibid [212].
In considering the relationship between Coffey and the Diocese, the judge took into account that, on the evidence of Father Dillon, the Bishop was ‘all powerful’ in the management of clergy within a Diocese, and that the activities carried out by an assistant parish priest were under the direct control of the parish priest, who in turn reported to the Bishop. The judge inferred that the Diocese provided accommodation for both Father O’Dowd and Coffey and supplied his clerical garb and vestments.[24]
[24]Ibid [228]–[229].
In respect of Coffey’s role in the community, the judge noted that the support that he was required to give to the parish priest was not confined to work within the church, but also included pastoral activities in private homes that extended to getting to know the people of the parish and to relate to them in the privacy of their own home.[25]
[25]Ibid [233]–[234].
The judge noted that a Bishop exerts limited control over the day-to-day activities of an assistant parish priest, and that he has no direct control over the assistant priest’s hours of work and the like. However, Coffey’s assignment at St Patrick’s was subject to the ultimate authority of the Diocese as exercised by the Bishop to remove any priest, and to exercise discretion over the appointment of priests to parishes. In that respect, the judge noted:
The Diocese had ultimate control over the parameters of Coffey’s appointment, namely the duration, the location, the general duties, the responsibility of supervision and the benefits provided to Coffey for accepting the assignment. Despite the day-to-day supervision of Father O’Dowd, it was at the will of the Diocese that Coffey received and maintained the assignment for the entire period.
It can be accepted that, in contrast to Hollis, the Diocese or Bishop did not exercise the kind of control over Coffey’s work that Vabu did in relation to its couriers. However, the Diocese, as just discussed, had the right to exercise control over certain aspects of a priest’s work even if only “incidental or collateral” to his main work. [26]
[26]Ibid [237]–[238].
In considering the question of the centrality of Coffey’s work to that of the Diocese, the judge noted the evidence of Father Dillon that priests stood as representatives of the church’s values, and that they must embody them always as they could be called upon at any time to fulfil their duties. The judge thus considered that Coffey carried out the work of the Diocese ‘in its place’.[27] Further, the Diocese, through the Bishop, had given Coffey the imprimatur to undertake religious care for the spiritual life of the Port Fairy flock, and in that capacity he was ‘out and about’ in the community as part of his pastoral role, which included visiting parishioners homes and interacting with the family and the children.[28]
[27]Ibid [240]–[241].
[28]Ibid [242].
Finally, the judge noted the evidence of Father Dillon that the training of priests emphasised the role of the confessional and the intimacy of priests with members of the parish for pastoral care and guidance.[29] The judge noted the tendency evidence given by four of the persons who had been abused by Coffey in their homes, and the evidence of the respondent, that Coffey had visited his family home on multiple occasions for the purported purpose of advising the family in the context of the respondent’s parents’ marital problems.[30] The judge concluded, from the evidence of Father Dillon, the respondent and the other persons who had been abused, that pastoral visits to Catholic family homes were part of Coffey’s duties, and that Coffey’s pastoral role extended to attending social functions of his parishioners.[31] The judge noted the evidence of the tendency witnesses and of the respondent, that the provision of unsupervised pastoral care to families was part and parcel of Coffey’s role, and it placed him in a position in which he was able to take advantage of that role to commit the abuse complained of.[32]
[29]Ibid [245].
[30]Ibid [247].
[31]Ibid [261].
[32]Ibid [266].
In conclusion, the judge was satisfied that on the occasion of the two assaults on the respondent, Coffey was engaged in a pastoral visit, in that his participation in Catholic social life in the community was as much a part of his role as celebrating Mass. The respondent’s parents permitted Coffey to be alone with the respondent in his bedroom and in the tent, because of their implicit trust in him as a priest of the church.[33]
[33]Ibid [273]–[277].
The judge then summarised his conclusions on the questions, first, whether the relationship between Coffey and the Diocese or the Bishop was such as to give rise to vicarious liability on the part of the Diocese for Coffey’s conduct, and, if so, secondly, whether the Diocese or the Bishop were liable for the unlawful conduct of Coffey. His Honour stated:
By reason of —
(a)the close nature of the relationship between the Bishop, the Diocese and the Catholic community in Port Fairy;
(b)the Diocese’s general control over Coffey’s role and duties within St Patrick’s parish;
(c) Coffey’s pastoral role in the Port Fairy Catholic community; and
(d) the relationship between DP, his family, Coffey and the Diocese, which was one of intimacy and imported trust in the authority of Christ’s representative, personified by Coffey
— the Diocese is vicariously liable for his conduct.
The first question is answered affirmatively.
I am also satisfied that Coffey’s role as a priest under the direction of the Diocese placed him in a position of power and intimacy vis-à-vis DP that enabled him to take advantage of DP when alone — just as he did with other boys. This position significantly increased the risk of harm to DP. He misused and took advantage of his position as a confidante and pastor to DP’s family; this enabled him to commit the unlawful assaults upon DP.
The second question is also answered affirmatively.
It follows that I hold that, notwithstanding the unlawful nature of Coffey’s acts, the Diocese is vicariously liable for his assaults on DP.[34]
[34]Ibid [278]–[282].
The judge then turned to the other claim by the respondent that was based on the proposition that the Diocese itself had breached its duty of care to him. His Honour considered that there was insufficient evidence upon which to found a conclusion that the Diocese or the Bishop should have known of the potential misconduct of Coffey. Accordingly, there was insufficient evidence to demonstrate that there was a foreseeable risk in 1971 that Coffey might assault young boys such as the respondent.[35]
[35]Ibid [305]–[306].

Submissions of applicant

Ground 1

By ground 1, the applicant has submitted that the acceptance by the judge, that Coffey was not an employee of the Diocese, necessarily precluded a finding that the Diocese could be liable for the wrongdoing of Coffey. The applicant submitted that the existence of a relationship of employer and employee is a necessary foundation for a conclusion that the Diocese was vicariously liable for the wrongs of Coffey. In particular, it was submitted, in Australia, except for some narrowly defined exceptions which are not relevant to this case, vicarious liability requires an employment relationship between the tortfeasor and the defendant.
In support of that proposition, counsel relied on the decisions of the High Court in Sweeney and in Scott v Davis.[36] In that respect, counsel submitted that the judge’s analysis of the decision of the High Court in Sweeney was wrong, as it overlooked that, in Sweeney, the High Court rejected the proposition that the distinction between employee and independent contractor should be abandoned in favour of a wider principle. Further, it was contended, the High Court in Prince Alfred College[37] reinforced the proposition that the requirement, that the employee’s wrongful act be committed in the course or scope of employment, has remained a touchstone for vicarious liability.
[36](2000) 204 CLR 333.
[37](2016) 258 CLR 134, 149 [44], 150 [46].
Counsel submitted that the test, that must be applied in order to find a principal liable for the actions of a tortfeasor, involves two necessary steps. First, it must be concluded that the tortfeasor was an employee of the principal. Secondly, the actions of the tortfeasor must have been committed in the course of the employment relationship. Counsel submitted that, in effect, the judge incorrectly ‘collapsed’ the first limb of that test into the second limb, and thus applied the principles, stated by the High Court in Prince Alfred College, as a single test for a conclusion of vicarious liability. In doing so, it was submitted, the judge incorrectly treated the decisions of the High Court in Hollis and Sweeney, and the decision of the New South Wales Court of Appeal in Day v The Ocean Beach Hotel Shellharbour Pty Ltd[38] as a subset of cases in which a principal may be found to be vicariously liable for the wrong of a tortfeasor.
[38](2013) 85 NSWLR 335 (‘Day’).
Counsel for the applicant further submitted that the broader approach to vicarious liability, discussed by McHugh J in Hollis,[39] has been specifically not embraced by the High Court in subsequent decisions such as Sweeney. Further, counsel submitted that the decision by the High Court in Colonial Mutual Life, which extended vicarious liability to an ‘agent’ of the principal, did not avail the respondent in this case, because, it was contended, that decision was limited to a ‘true agent’ who had the ability to enter into legal relations on behalf of the principal. In support of that proposition counsel relied on the subsequent discussion concerning Colonial Mutual Life in Sweeney[40] and Scott v Davis.[41] Counsel submitted that the relationship between Coffey and the Diocese was not that of principal and agent in the sense discussed in those cases. Counsel further submitted that the authorities have made it clear that, in that respect, the High Court has made it clear that the fact that a tortfeasor might represent a principal is an insufficient basis, on its own, for a finding of vicarious liability on the part of the principal.[42]
[39](2000) 207 CLR 21, 50–61 [72]–[102].
[40](2006) 226 CLR 161, 170–2 [21]–[27].
[41](2000) 204 CLR 333, 423–4 [269]–[273] (Gummow J), 435 [299] (Hayne J).
[42]Sweeney (2006) 226 CLR 161, 172 [29]; Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1, 12–13 [21]–[22]; [2009] HCA 35.
Counsel further noted that the High Court, to date, has declined to follow decisions in foreign jurisdictions, which have expanded the circumstances in which vicarious liability applies beyond that of an employment relationship. In that respect, counsel noted that in England and Wales, the decision in Various Claimants, expanded the concept of vicarious liability to encompass a wider set of relationships which are analogous to that of employment. Counsel also referred to the Canadian decisions of Bazley and Jacobi v Griffiths.[43] It was submitted that that approach has not been adopted in Australia, and is one which the High Court, in Prince Alfred College, specifically rejected. Further, it was contended, the approach in the United Kingdom and in Canada is contrary to the principle, which is established in Australian authorities, that the question whether vicarious liability exists in a particular case involves a two-step enquiry which must not be conflated. In that respect, counsel submitted, the judge further erred by treating those two steps as being closely interrelated, an approach which, it was contended, was contrary to the principles stated by the High Court in Construction, Forestry, Maritime Mining and Energy Union v Personnel Contracting Pty Ltd.[44]

Ground 3

[43][1999] 2 SCR 570 (‘Jacobi’).

[44](2022) 96 ALJR 89 (‘Personnel Contracting’).

Under ground 3, counsel submitted that, if the Court rejects ground 1, and concludes that the relationship between the Diocese and Coffey was one which might give rise to a relationship of vicarious liability, nevertheless the judge erred in determining that, in the circumstances of the case, that relationship was such as to found a conclusion that the Diocese is liable for the two assaults committed by Coffey against the respondent. Counsel noted that the applicable test is whether the employment (or other relationship) provided both the opportunity and the occasion for the commission of the tortious conduct. In the present case, it was submitted, there was an insufficient basis for the Court to have been satisfied the Diocese provided Coffey with that opportunity and occasion for the conduct in which he engaged.

First, it was submitted, the evidence did not support the proposition stated by the judge that the Diocese was ‘all powerful’ in the management of clergy within the Diocese and the activities of an assistant parish priest who is under the ‘direct control’ of the priest. In that respect, counsel relied on the evidence of Father Dillon that the priest exercised a lot of discretion in the manner in which he conducted his duties, and as such was given a significant degree of autonomy in the care, management and responsibility of the parish.
Secondly, counsel submitted that the evidence precluded a conclusion that Coffey’s priestly duties provided the opportunity or occasion for the wrongful conduct. In his evidence, Father Dillon said that the parish priests and assistant priests did not work regular hours, they were normal people, who, outside their particular roles, also participated in social outings and the like. It was submitted the evidence demonstrated that Coffey had developed a friendship with the respondent’s family and the connection between Coffey and that family was social, and was not connected with his role as the assistant priest. In respect of the first incident, the abuse was committed by Coffey at a party, which was not attended by him by reason of his position as assistant priest. The fact that Coffey was at a parishioner’s home did not itself establish the requisite connection between his role as an assistant priest and the opportunity and occasion that he took advantage of to abuse the respondent.
Thirdly, it was submitted, the judge’s analysis of Coffey’s role as an assistant priest failed to take into account a number of matters, including: the evidence that Canon law did not designate any special function to an assistant priest; the absence of any evidence as to what was required of Coffey as an assistant priest following his appointment in 1966; and the absence of evidence of any special role performed by Coffey, in his capacity as an assistant priest, in respect of his attendance in parishioner’s homes.

Submissions of respondent

Ground 1

In response to ground 1, counsel for the respondent submitted that properly analysed the decisions of the High Court in Sweeney and Hollis do not preclude a finding of vicarious liability in a case to which the employment/independent contract dichotomy is inapplicable. In that respect, counsel submitted that the decision of the High Court in Colonial Mutual Life is particularly relevant because it supports the application of vicarious liability to a person who stands in the place of and represents a defendant, that is neither an independent contractor nor an employee. Counsel noted that in both Hollis and Sweeney the High Court accepted that vicarious liability might apply to a relationship other than that of employment. In particular, it was submitted, vicarious liability extends beyond an employer/employee relationship to a context in which an agent is held out as having the authority of a principal. It was submitted that in such a case, where the ‘agent’ is not an independent contractor, there was appropriate scope for the imposition of vicarious liability in respect of the actions of that agent.
Counsel further submitted that the judge did not inappropriately conflate the ‘two-step process’ for the assessment of vicarious liability that was endorsed by the High Court in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd.[45] First, it was submitted, the two-step approach which was endorsed by the High Court in Personnel Contracting applies in cases where the issues are whether the relationship is that of employment or independent contractor. Secondly, in any event, it was submitted that the judge’s reasons did not conflate the two issues. The judge did consider the same factors in determining each of the two issues, but he did so separately, for different purposes, and by according the various factors different weights.

Ground 3

[45](2022) 96 ALJR 89.

In response to ground 3, counsel submitted that the evidence of Father Dillon provided a substantial basis for the finding by the judge that the Bishop was ‘all powerful’ in the management of clergy within the Diocese.[46] In that respect, counsel referred to the evidence of Father Dillon, and the findings by the judge, as concerning the overall control exercised by the Diocese (or the Bishop) over Coffey in his role as an assistant parish priest.
[46]Reasons, [228].
Counsel further submitted that the second contention made by the applicant — that there was insufficient evidence to connect Coffey’s pastoral duties with the visits that he made to the respondent’s home — was based on selective fragments of the evidence of Father Dillon. In that respect counsel referred to the evidence of Father Dillon as to the particular importance of the involvement by a priest in the personal lives of parishioners as part of the priest’s pastoral role. In that respect, counsel noted that the applicant did not challenge the evidence given by Father Dillon, nor did it call any evidence in rebuttal of his testimony. In those circumstances it was submitted that it was appropriate for the judge to apply the evidence given by Father Dillon to the circumstances in which Coffey became involved in the lives of the respondent’s family.
Counsel further submitted that the third contention made by the applicant under ground 3 — as to the role of an assistant priest — involved a selective approach by the applicant to aspects of the evidence, without taking that evidence into account, and ignoring the consideration by the judge of the evidence as a whole. In particular, counsel referred to the evidence given by Father Dillon about the role of an assistant priest under the authority of the bishop and the parish priest, which included: the obligation of the assistant priest under Canon law to perform the same duties as the parish priest; and the role of the assistant priest in visiting individual homes, and becoming acquainted with parishioners, as an integral part of the pastoral care role of the assistant priest in the context of the parish.

Preliminary consideration — legal status of the applicant

As we have indicated, before the hearing of the appeal, the applicant abandoned reliance on ground 2. Nevertheless, as a prelude to considering grounds 1 and 3, it is relevant first to say something about the legal status of the applicant.
In effect, the applicant was sued as a nominated defendant pursuant to the Legal Identity ofDefendants (Organisational Child Abuse) Act 2018 (the ‘2018 Act’). It was necessary to institute proceedings against the defendant pursuant to that Act, because at all material times the Catholic Diocese of Ballarat, which was an ecclesiastical province of Melbourne, was an unincorporated association. As such, its status as an unincorporated association presented particular difficulties to the institution in litigation in cases such as the present.
Those difficulties were specifically exposed by the decision of the New South Wales Court of Appeal in Trustees of the Roman Catholic Church v Ellis.[47] In that case, the plaintiff, in 2004, commenced proceedings for damages alleging that he had been sexually assaulted by an assistant priest of the church in the Archdiocese of Sydney between 1974 and 1979. The first defendant in the proceeding was the then current Archbishop of the Archdiocese of Sydney, who had been appointed to that position in 2001. The second defendant consisted of the Trustees of the Roman Catholic Church for the Archdiocese of Sydney. The plaintiff made an application for an extension of time. Patten AJ dismissed the proceeding against the first defendant, but extended the limitation period against the second defendant (the Trustees).[48] The second defendant appealed against the decision, and the plaintiff in turn cross-appealed against the decision dismissing the proceeding against the first defendant. The Court of Appeal upheld the appeal of the second defendant, and dismissed the plaintiff’s cross-appeal.
[47](2007) 70 NSWLR 565 (‘Ellis’).
[48]Ellis v Pell [2006] NSWSC 109.
In considering the cross-appeal, Mason P commenced by noting that the inability to sue an unincorporated association in tort arises because the principles of vicarious liability are not engaged if a plaintiff can do no more than point to a direct tortfeasor who was a fellow member of the association.[49] His Honour considered that the relationship between the members of a church such as the Roman Catholic Church and individual office holders in the church to be far remote from any category that has been found to entail vicarious liability. In that respect he observed:
The relationship between an assistant parish priest and the ‘members’ as a whole is too slender and diffuse to establish agency in contract or vicarious liability in tort.[50]
[49]Ellis (2007) 70 NSWLR 565, 577 [52].
[50]Ibid 578 [54].
Having made those remarks, Mason P noted that the basal requirement in respect to such a representative proceeding was that the members of the association must have the ‘same liability’ in respect of the cause of action that was asserted by the plaintiff. That requirement presented particular difficulty in the case of an association such as the first defendant that had a fluctuating membership.[51] Mason P concluded:
The nature of the episcopacy in the Roman Catholic Church is, to my understanding, arguably sufficient to ground a finding that the Archbishop has the capacity to control most activities conducted in the name of the Church in the Archdiocese. My point is that this alone does not translate automatically into a basis for establishing some species of vicarious liability in every member of the Church at any point of time or a basis for finding that the Archbishop is a corporation sole.[52]
[51]Ibid 579–80 [63]–[67].
[52]Ibid 583 [78].
Accordingly, it was held that a representative order was not available, so that the first defendant (the Archbishop) was properly dismissed by Patten AJ as a party to the proceedings.[53]
[53]Ibid 586 [93].
The decision in Ellis is the relevant context to the introduction of the 2018 Act. The explanatory memorandum, the Second Reading Speech of the Attorney-General, and indeed the specific provisions of that Act, make it clear that the central purpose of the Act was to address the underlying issue which precluded the institution of representative proceedings in cases such as Ellis.
Section 1 of the 2018 Act specifies the purpose of the Act as follows:
The main purpose of this Act is to provide for child abuse plaintiffs to sue an organisational defendant in respect of unincorporated non-Government organisations which use trusts to conduct their activities.
Section 5 of the Act defines a ‘non-government organisation that is an unincorporated association or body’ as an ‘NGO’. Section 4(2)(b) provides that the Act applies to that NGO if, but for being unincorporated, the NGO would otherwise have been capable of being sued and found liable for a claim founded on or arising from child abuse. Section 7(2) provides that an ‘entity’ that is nominated under sub-s 1 incurs any liability from the claim on behalf of the NGO ‘as if the NGO had been incorporated and capable of being sued and found liable for child abuse’. That is, in this case, s 7(2) provides that the appellant, having been nominated, incurred any liability arising from the respondent’s claim on behalf of the NGO as if the NGO had been a corporate entity and capable of being sued or found liable for child abuse. Section 7(4) thus provides that in such a case, the court may determine a claim founded on or arising from child abuse ‘as if the NGO itself had been incorporated.’ Substantively Section 10 is, in effect, the corollary of those provisions. It provides that, equally, a nominated defendant may rely on any defence or immunity that would otherwise have been available to the NGO as a defendant to the claim had the NGO been incorporated.
It is evident that the combined effect of those provisions is not only to ensure the proper nomination of a representative party to an NGO, but, importantly, to provide that the NGO bear the same legal liabilities to an abused claimant, and have the same defences to a claim for such abuse, as if the NGO were an incorporated entity. In that way, as we have stated, the effect of the provisions that we have discussed is to convert an unincorporated association (an NGO) to a fictitious incorporated entity, for the purpose, not only of the nomination of an appropriate defendant, but also to impose on the entity the same liabilities that would have applied had the entity been incorporated at the time of the abuse.

Analysis and conclusion – ground 1

It was common ground on this appeal that, at the relevant time, Coffey was neither an employee of the Diocese, nor was he an independent contractor engaged by it. The first issue, which is thus raised by ground 1, is whether the particular relationship between Coffey and the Diocese was one to which the principles of vicarious liability may, in an appropriate case, apply. Ground 3 is relevant if the applicant does not succeed on the first ground, so that it is concluded that the relationship between the Diocese and Coffey was one which might give rise to vicarious liability. Ground 3 raises the issue whether the criminal assaults committed by Coffey against the respondent were sufficiently related to that relationship so as to give rise to a liability of the Diocese in respect of them.
Ordinarily, issues relating to vicarious liability arise in a context in which the particular tortfeasor has been engaged by the principal, against whom liability is asserted, to undertake a particular task or function. In such a case, the first question which arises is whether the tortfeasor was an employee, as distinct from an independent contractor, engaged by the principal. The second question, which may arise, is whether, at the time the tort was committed, the employee was acting in the course of the employment of the principal. As has been discussed in the authorities,[54] in that context of such a relationship, those two questions are separate and should not be conflated.
[54]See, for example, Personnel Contracting (2022) 96 ALJR 89, 136 [191] (Gordon J).
The central contention, by the applicant under ground 1, is that vicarious liability is confined solely to cases in which there is a relationship of employment, and to other defined exceptions which do not apply in the present case.
In Victoria, there is a division of opinion, in decisions at first instance, as to whether vicarious liability may apply outside an employment relationship. In PCB v Geelong College,[55] the Court was concerned with a case in which a person, who was not an employee of the defendant college, purported to assist students in the woodwork facility maintained by the college, and in doing so sexually abused the plaintiff. O’Meara J held that the presence of a relationship of employer and employee is a necessary intermediate step or foundation for the application of vicarious liability.[56] On the other hand, in O’Connor v Comensoli,[57] Keogh J, following the decision of J Forrest J in the present case, held that the defendant Archbishop was vicariously liable for the sexual abuse of the plaintiff that had been perpetrated by a priest appointed as assistant priest in the Kilmore Parish.
[55][2021] VSC 633 (‘PCB’).
[56]Ibid [303].
[57][2022] VSC 313.
It is evident that the question, whether vicarious liability is confined only to cases involving a relationship with employment, may not be resolved by the first seeking to identify the underlying rationale for the imposition of vicarious liability in such a relationship. As the High Court observed in Hollis,[58] the modern doctrine relating to vicarious liability of an employer for the torts committed by an employee ‘… was adopted not by way of an exercise in analytical jurisprudence but as a matter of policy’.[59] The court also noted that the identification of a fully satisfactory rationale for the imposition of vicarious liability in the employment relationship has proven to be quite elusive.[60]
[58]Hollis (2001) 207 CLR 21.
[59]Ibid 37 [34].
[60]Ibid 37 [35]; see also Sweeney (2006) 226 CLR 161, 166 [11]; State of New South Wales v Lepore (2003) 212 CLR 511, 580 [196] (Gummow and Hayne JJ); [2003] HCA 4 (‘Lepore’).
Nevertheless, two important points do emerge from an examination of the cases, which we will discuss. First, it is evident that the principle of vicarious liability has not been confined solely and exclusively to cases in which the relationship between the tortfeasor and the principal is that of employer and employee. In particular, it has been recognised in the authorities that, in certain circumstances, vicarious liability may apply in respect of a relationship which is not that of employment. Secondly, the cases reveal, in large measure, a commonality of the factors that are central to the issue whether, in an appropriate case, the relationship is one to which the principle of vicarious liability may apply.
The first point is based on the decision of the High Court in Colonial Mutual Life Assurance Society Ltd v The Producers and Citizens Cooperative Assurance Company of Australia Ltd,[61] and, in particular, the landmark judgment of Dixon J.
[61](1931) 46 CLR 41; [1931] HCA 53 (‘Colonial Mutual Life’).
In Colonial Mutual Life, the appellant, an assurance company, engaged one Ridley to act as a canvasser and agent in respect of its life insurance policies. The engagement was contained in an agreement which provided (inter alia) that the duties of the agent might be performed by himself or by his clients or servants, and that nothing in the agreement should be construed to prevent the agent from engaging in any other business or occupation provided that the agent should not act for any other life assurance or accident insurance society. The agreement further provided that the agent must not use language which might reflect on the character, integrity or conduct of any other person or institution.
While attempting to obtain business for the appellant, the agent made defamatory statements concerning the respondent, which was another assurance company. The respondent issued proceedings for defamation against both Ridley and the appellant. The trial judge found in favour of the respondent and entered judgment for damages against Ridley and the appellant. On appeal, the High Court, by majority (Evatt and McTiernan JJ dissenting) held that, in performing canvassing duties under the agreement, Ridley was not acting independently, but was acting as the representative of the appellant, and, accordingly, the appellant was liable for the slanders spoken by Ridley.
Gavan Duffy CJ and Starke J, in their joint judgment, noted that the nature of the appellant’s engagement of Ridley gave the appellant significant power to control and direct Ridley’s actions. Further, the class of acts, which Ridley was engaged to do, involved the use of arguments and statements to persuade the public to effect policies of insurance with the appellant, so that he spoke ‘with the voice of’ the appellant. Accordingly, the appellant was liable for Ridley’s defamatory statements made about the respondent.[62]
[62]Ibid 46-47.
Dixon J, with whom Rich J agreed, commenced by noting that Ridley was not the servant of the appellant. Nevertheless, Dixon J considered that the role performed by Ridley was such as to give rise to a vicarious liability in the appellant for the wrongs committed by Ridley. His Honour stated his reasons for that conclusion in the following terms:
In my opinion, the liability of a master for the torts committed by his servant in the course of his employment is not imposed upon the appellant by the agency agreement, but I do not think that it follows that the appellant incurs no responsibility for the defamation published by the ‘agent’ in the course of his attempts to obtain proposals.
In most cases in which a tort is committed in the course of the performance of work for the benefit of another person, he cannot be vicariously responsible if the actual tortfeasor is not his servant and he has not directly authorized the doing of the act which amounts to a tort. The work, although done at his request and for his benefit, is considered as the independent function of the person who undertakes it, and not as something which the person obtaining the benefit does by his representative standing in his place and, therefore, identified with him for the purpose of liability arising in the course of its performance. The independent contractor carries out his work, not as a representative but as a principal. But a difficulty arises when the function entrusted is that of representing the person who requests its performance in a transaction with others, so that the very service to be performed consists in standing in his place and assuming to act in his right and not in an independent capacity. In this very case the ‘agent’ has authority to obtain proposals for and on behalf of the appellant; and he has, I have no doubt, authority to accept premiums. When a proposal is made and a premium paid to him, the Company then and there receives them, because it has put him in its place for the purpose. This does not mean that he may conclude a contract of insurance which binds the Company. It may be, and probably is, outside his province to go beyond soliciting and obtaining proposals and receiving premiums; but I think that in performing these services for the Company, he does not act independently, but as a representative of the Company, which accordingly must be considered as itself conducting the negotiation in his person.[63]
[63]Ibid 48-49.

Dixon J then concluded:
If the view be right which I have already expressed, that the ‘agent’ represented the Company in soliciting proposals so that he was acting in right of the Company with its authority, it follows that the Company in confiding to his judgment, within the limits of relevance and of reasonableness, the choice of inducements and arguments, authorized him on its behalf to address to prospective proponents such observations as appeared to him appropriate. The undertaking contained in his contract not to disparage other institutions is not a limitation of his authority but a promise as to the manner of its exercise. In these circumstances, I do not think it is any extension of principle to hold the Company liable for the slanders which he thought proper to include in his apparatus of persuasion.
The wrong committed arose from the mistaken or erroneous manner in which the actual authority committed to him was exercised when acting as a true agent representing his principal in dealing with third persons. I do not think a distinction can be maintained between breaches of duty towards third persons with whom the agent is authorized to deal and breaches of duty towards strangers, committed in exercising that authority. If what he does is done as the representative of his principal, it cannot matter, apart from questions of estoppel and of apparent as opposed to real authority, whether the injury which it inflicts is a wrong to one rather than another person.[64]
[64]Ibid 50.
In considering the decision in Colonial Mutual Life, it is important to keep in mind the admonition in the authorities that no term has been more misused in legal discourse then the word ‘agent’.[65] In the context of the concept of vicarious liability discussed by Dixon J, the term ‘agent’ is confined to a person who represented the principal by ‘acting in right of’ the principal with its authority. Thus, as the plurality of the High Court subsequently observed in Sweeney,[66] the cases, including, Colonial Mutual Life, do not establish a principle that A may be vicariously liable for the conduct of B if B does no more than ‘represent’ A (in the sense of acting for the benefit or advantage of A).[67]
[65]Kennedy v De Trafford [1897] AC 180, 188 (Lord Hershell); Colonial Mutual Life (1931) 46 CLR 41, 50 (Dixon J); Scott v Davis (2000) 204 CLR 333, 435 [299] (Hayne J).
[66](2006) 226 CLR 161.
[67]Ibid 172 [29].
In Hollis, the appellant was injured when struck on a footpath by a courier riding a bicycle. The courier was engaged by the respondent, which operated a courier business delivering articles to customers. The courier was unable to be identified personally, but at the time of the accident, he was wearing a uniform which indicated he was engaged by the respondent. The couriers engaged by the respondent were paid fixed rates per job. A certain amount was deducted from their remuneration to contribute to the cost of insurance. They were required to wear the uniform of the respondent, and to act in accordance with specific instructions concerning their dress, appearance, language, delivery procedure and dealing with clients. The couriers were required to use their own bicycles. On appeal, the High Court held (Callinan J dissenting) that the respondent was vicariously liable for the negligent actions of the courier.
The majority (Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ), in their joint judgment, commenced by noting that the parties did not challenge the general rule that an employer is vicariously liable for the acts of an employee, but not for the tortious acts of an independent contractor.[68] In that respect, their Honours noted that in Colonial Mutual Life, Dixon J described an independent contractor as one who carries out the work, not as a representative of another, and, in particular, that Dixon J had ‘…fixed upon the absence of representation and of identification with the alleged employer as indicative of a relationship of principal and independent contractor’.[69]
[68]Hollis (2001) 207 CLR 21, 36 [32].
[69]Ibid 39 [39]-[40].
Their Honours then stated:
In general, under contemporary Australian conditions, the conduct by the defendant of an enterprise in which persons are identified as representing that enterprise should carry an obligation to third parties to bear the cost of injury or damage to them which may fairly be said to be characteristic of the conduct of that enterprise. In delivering the judgment of the Supreme Court of Canada in Bazley v Curry, McLachlin J said of such cases that ‘the employer’s enterprise [has] created the risk that produced the tortious act’ and the employer must bear responsibility for it. McLachlin J termed this risk ‘enterprise risk’ and said that ‘where the employee’s conduct is closely tied to a risk that the employer’s enterprise has placed in the community, the employer may justly be held vicariously liable for the employee’s wrong’. Earlier, in Ira S Bushey & Sons, Inc v United States, Judge Friendly had said that the doctrine of respondeat superior rests ‘in a deeply rooted sentiment that a business enterprise cannot justly disclaim responsibility for accidents which may fairly be said to be characteristic of its activities’.[70]
[70]Ibid 40 [42] (citations omitted).
Their Honours then noted seven factors which led to the conclusion that the courier in question was an employee, and not an independent contractor, of the respondent so as to render the respondent liable for the negligent conduct of the courier. Those factors included: the courier was not providing skilled labour or labour which required special qualifications; the courier had little control over the manner of performing the work; the courier was presented to the public and those using the courier services as an emanation of the respondent, he was publicly identified as part of the respondent’s working staff;[71] the respondent superintended the courier’s finances; and Vabu had not only the right to exercise control in incidental or collateral matters, but also there was considerable scope for the exercise of such control.[72]
[71]Ibid 42-3 [50]–[52].
[72]Ibid 41-45 [48]–[57].
A number of those factors, of course, are not applicable to the relationship between Coffey and the Diocese. It is for that reason that Coffey could not be considered to be an employee of the Diocese. However, the decision in Hollis is important, because it demonstrates the relevance and significance, as a criterion of vicarious liability, of the circumstance that the particular tortfeasor’s role was so closely tied with the enterprise of the employer that he or she was presented to the public as carrying out the work of, and representing, the employer. In that respect, their Honours referred with apparent approval to the passage in the judgment of McLachlin J of the Supreme Court of Canada in Bazley v Curry[73] that an employer may be held vicariously liable where the employer’s enterprise created the risk and where the employee’s conduct was closely tied to the risk, which the employer’s enterprise placed in the community.
[73]Bazley [1999] 2 SCR 534, 548.
In this context it is relevant to note the different approach to vicarious liability that was advanced by McHugh J in his separate judgment in Hollis. In essence, his Honour considered that it was not possible to characterise the courier as an employee of the respondent. However, his Honour considered that, rather than confining the question of the application of vicarious liability to the dichotomy of the employee and independent contractor, the better approach was to develop principles concerning vicarious liability that reflect modern social conditions.[74] Specifically in the circumstances, McHugh J considered that the respondent was vicariously liable for the negligence of the courier because it controlled the courier, the courier was acting for its economic benefit, and at the time of the accident the courier was ‘on the business’ of the respondent.[75]
[74]Hollis (2001) 207 CLR 21, 50 [72].
[75]Ibid 57 [91]–[92].
In a number of subsequent decisions, the courts have declined to adopt the broader statement of principle so formulated by McHugh J.[76] Nevertheless, it is apparent that the approach adopted by McHugh J was based on similar factors as those adopted by the majority, namely, the right of the principal to control the work performed by the agent, and the circumstance that the agent was working in, and for the economic benefit of, the business of the principal.
[76]Sweeney (2006) 226 CLR 161, 167 [12]; Scott v Davis (2000) 204 CLR 333; Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1, 12–13 [21]–[22]; Day (2013) 85 NSWLR 335, 342–3 [18]–[19] (Leeming JA).
It is convenient next to refer, by way of contrast to the decision in Hollis, to the decision of the High Court in Scott v Davis.[77] That case is an instance of a relationship in a non-commercial context, which was clearly not one to which the principle of vicarious liability applied.
[77]Scott v Davis (2000) 204 CLR 333 (Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ).
In Scott v Davis, during a birthday party at a country property, the defendant, who was the owner of a two-seater airplane, permitted it to be used for a joyride by other persons who attended the party. The defendant asked a licensed pilot, who was also a guest at the party, to fly the plane. The plane crashed through the negligence of the pilot, and as a result, a child passenger was injured. The High Court (McHugh J dissenting) held that the defendant was not vicariously liable for the negligence of the pilot. The appellant plaintiff had submitted that the defendant was liable because the pilot had used the plane for the defendant’s purposes and, as such, was acting as the ‘agent’ of the defendant. The majority of the High Court concluded that that factor was an inadequate basis to found vicarious liability on the part of the defendant for the negligence of the pilot. In particular, there was no commercial or contractual relationship between the pilot and the defendant. Rather, the circumstances in which the pilot flew the airplane was a ‘social context’ in which the defendant had no realistic power to control the conduct of the pilot.[78] There was thus no relevant connection between the ‘business’ of the defendant and the function performed by the pilot.
[78]Ibid 342 [18] (Gleeson CJ), 423-4 [269]-[273] (Gummow J), 436-7 [301]-[302] (Hayne J), 459 [357]-[358] (Callinan J).
In Sweeney v Boylan Nominees Pty Ltd,[79] the High Court again focussed on the significance of the degree, or absence, of connection between the principal’s business and the conduct of the tortfeasor, and, in particular, the degree to which the work of the tortfeasor was identifiable as that of the business of the principal.
[79]Sweeney (2006) 226 CLR 161.
In Sweeney, the manager of the defendant convenience store arranged for a mechanic to fix the defective door of the refrigerator in the store. The mechanic attended and tightened the screws to the door. The plaintiff, who was a customer of the store, was injured when the door of the refrigerator fell and struck her. The trial judge found that the mechanic did not act with reasonable care, and that the defendant was vicariously liable because the mechanic had acted as its servant or agent. The mechanic was not an employee of the defendant, but was a contractor, engaged by the defendant from time to time. The mechanic would invoice the defendant for the hours that he worked. He used his own uniform and tools, maintained his own insurance, and his van advertised his own business. The High Court (Kirby J dissenting) held that the mechanic was not an employee of the defendant, but an independent contractor, so that the defendant was not vicariously liable for his negligence.
In reaching that conclusion, the majority (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ) noted that in Colonial Mutual Life, the agent, in soliciting proposals, had been acting ‘in the right of the company and with its authority,’ and the service that he performed consisted of standing in the principal’s place and assuming to act in its right and not in an independent capacity.[80] Relevantly, their Honours noted that the conclusion in Colonial Mutual Life:
... depended directly upon the identification of the independent contractor as the principal’s agent (properly so called) and the recognition that the conduct of which complaint is made was conduct undertaken in the course of, and for the purpose of, executing that agency.[81]
[80]Ibid 168 [14] – 169 [19].
[81]Ibid 170 [22].
Their Honours further explained:
The conclusion reached in Colonial Mutual Life, that the party engaging an agent (albeit as an independent contractor) to solicit for the creation of legal relationships between that party and others is liable for the slanders uttered in the course of soliciting proposals, stands wholly within the bounds of the explanations proffered by Pollock for the liability of a master for the tortious acts of a servant. It stands within those bounds because of the closeness of the connection between the principal's business and the conduct of the independent contractor for which it is sought to make the principal liable. The relevant connection is established by the combination of the engagement of the contractor as the agent of the principal to bring about legal relations between the principal and third parties, and the slander being uttered in the course of attempting to induce a third party to enter legal relations with the principal.[82]
[82]Ibid 171 [24].
Having referred to the previous decisions in Hollis and Scott v Davis, the majority noted that, in the instant case, the defendant did not control the way in which the mechanic worked, the mechanic supplied his own tools and equipment, and brought his own skills to bear on the work that was done, and that, unlike in Hollis, the mechanic ‘was not presented to the public as an emanation of the respondent’.[83]
[83]Ibid 173 [32].
In the context of the present case, the significance of Hollis and in Sweeney is that, in each case, the court specifically applied the approach of Dixon J in Colonial Mutual Life in regarding the extent, to which the tortfeasor presented as an emanation of the principal, as a central factor in determining whether the relationship was one in which the principal was vicariously liable for the actions of the tortfeasor.
In that respect, an allied consideration, which has been taken into account, is whether the tortfeasor had the right or power to delegate the work for which he or she had been engaged by the principal. The right to delegate is a factor which is related to the question whether the role of the tortfeasor in question was a part or emanation of the principal’s business, or whether, on the other hand, the tortfeasor undertook that role in an independent capacity having, as such, the right to select the person or persons who were to perform the tasks for which the tortfeasor was engaged.
In Stevens,[84] the High Court was concerned with the question whether the respondent sawmilling company was vicariously liable for the negligence of Gray who it had engaged to snig and load logs at the mill. The Court held that the snigger was not an employee of the respondent so that the respondent was not vicariously liable for his negligence. On that issue, the members of the court took into account a number of factors, including the degree of control or right of control by the respondent of the snigger, and also matters pertaining to the engagement, such as the mode of remuneration, the provision of equipment, the hours of work, holidays, deduction of income tax and the like. Relevantly, for the purposes of this case, the court also took into account that the snigger was able to, and did, employ his own son in the actual performance of the cartage operations. In that regard, Mason J (with whom Brennan J and Deane J agreed) noted that the power to delegate is an ‘important factor’ in deciding whether a worker is an employee or independent contractor.[85] In similar terms, Wilson J and Dawson J noted:
Apart from anything else, Gray was able to employ his son in the actual performance of his cartage operations. An unlimited power of delegation of this kind was viewed as being almost conclusive against the contract being a contract of service in AMP Society v Chaplin.[86]
[84](1986) 160 CLR 16.
[85]Ibid 26.
[86]Ibid 38 (citation omitted).
Finally, in this context, it is also relevant to consider the recent decision of the High Court in Personnel Contracting. The question in that case was whether the second appellant, McCourt, was an employee of the respondent for the purposes of the Fair Work Act 2009 (Cth). On the appeal to the High Court, it was accepted that the terms ‘employee’ and ‘employer’ in the Act have the same meaning as those accorded to them by the common law. While the case did not involve the issue of vicarious liability, nevertheless, the members of the High Court referred to a number of the authorities which we have discussed, including Hollis, Stevens and Colonial Mutual Life.
In Personnel Contracting,[87] McCourt, who was a backpacker, entered into an agreement with the respondent, which was a labour hire company. The respondent placed McCourt at a project site that was controlled by a builder, Hanssen Pty Ltd. The appellants commenced proceedings in the Federal Court seeking compensation and penalties pursuant to the Fair Work Act 2009 for unpaid entitlements to McCourt. The High Court held (Steward J dissenting) that McCourt was an employee of the respondent.
[87](2022) 96 ALJR 89.
In reaching that decision, the members of the court adopted different approaches to the question. There was a division of opinion between members of the court as to whether the issue should be determined solely by reference to the written contract between McCourt and the respondent, or whether it was also permissible to take into account the circumstances in which McCourt performed duties pursuant to the contract. In addition, there was a difference of opinion as to whether it was appropriate to apply the ‘multifactorial’ approach of the common law, by taking into account the various indicia of employment, such as the mode of remuneration, the provision of maintenance of equipment, the obligation to work, the hours of work and provision of holidays, and the like. Nevertheless, notwithstanding those differences, there was a commonality of approach in respect of two points, which are relevant to the present case, namely, whether the work provided by McCourt was part of, and integrated into the business of the respondent, and whether the respondent had the right to control the work performed by McCourt.
In that regard, Kiefel CJ, Keane and Edelman JJ, in their joint judgment, considered that there was some value in the ‘own business/employer’s business’ dichotomy, which had been applied in previous authorities. Their Honours noted that that dichotomy focused on the question whether the employee’s work was ‘so subordinate to the employer’s business’ that it could be seen to have been performed as an employee of that business rather than as part of an independent enterprise’.[88] In determining that question, the court took into account that McCourt had no right to exercise control over what work he was to do and how he was to perform that work.[89]
[88]Ibid 104 [39].
[89]Ibid 111 [77].
Gageler J and Gleeson JJ considered that the ‘multifactorial approach’ was an appropriate basis to determine the issue. That approach took into account, among other matters, the extent of control of the putative employer, and the extent to which the putative employee could be seen to work in his or her own business, as distinct from the business of the putative employer. In that respect, their Honours considered that it was relevant to take into account ‘… the extent to which the work done by the putative employee can be seen to be integrated into the business of the putative employer’.[90]
[90]Ibid 117 [113].

The judge then outlined the ‘multiple reasons’ why he did not accept the respondent’s account of the way in which the assaults committed by Coffey had affected him during his lifetime. The first reason was the failure of the respondent to disclose Coffey’s conduct and its effects to any member of his family or friends until after he saw the December advertisement. The respondent himself said that he had not told anyone about the matter, apart from his partner, who was not called to give evidence. In view of the judge’s reservations as to the respondent’s reliability as a witness, he did not accept that that disclosure occurred. The judge also considered that it was ‘extraordinary’ that in the process of making the school abuse complaint in 2014 (with the help of two firms of solicitors), the respondent did not then mention the abuse committed by Coffey.[133]
[133]Ibid [57].
The second reason given by the judge was the respondent’s concession that he did not inform any of his treating psychologists at WPS — Mr Lush, Ms Marr or Dr Pagano — or his general practitioner, Dr Watson (who had treated him since 2001), of the assaults committed by Coffey until after he had contacted his solicitors in January 2019.[134] The judge noted that in his 2014 statement concerning the school abuse, and in the history that he gave to Dr Pagano, the respondent had said that until the time of the school abuse committed by the teacher, he had had a normal and straightforward childhood.[135] The judge did not accept the explanation that the respondent was too embarrassed or disgraced to mention the Coffey abuse to others. His Honour considered that the differing accounts, that the respondent had given over the course of time, had been ‘tailored to further the particular wrong which he perceived as the cause of his problems …’.[136]
[134]Ibid [58].
[135]Ibid [60]-[61].
[136]Ibid [63].
Thirdly, the judge did not accept the evidence by Associate Professor Quadrio that the respondent’s delay in disclosing the abuse could be explained by studies of the responses of other victims of sexual abuse in similar settings. The judge, in that respect, noted that Professor Quadrio’s opinion was based on one (albeit lengthy) interview with the respondent and the respondent’s statement. The respondent’s solicitors had not provided Professor Quadrio with any material, such as reports or notes, from the treating general practitioner or the psychologists, or the material that accompanied his claim for compensation from the New South Wales government, TAC and Towards Healing.[137] The judge considered that it was particularly significant that the respondent did not tell Mr Lush, Ms Marr or Dr Pagano of the assaults, in circumstances in which Dr Pagano had, on two separate occasions, provided reports supporting claims for compensation relating to his depression and anxiety arising from the school abuse and the death of his parents.[138]
[137]Ibid [68].
[138]Ibid [70].
The fourth reason given by the judge was that the respondent had an obsessive personality, which caused him to focus on a particular episode in his life which he perceived at a particular time to be the cause of his problems.[139] Fifthly, the judge had the ‘distinct impression’ that the respondent was prepared to blame others for what he saw as his life’s tragedies or misfortunes. Sixthly, the judge noted that the respondent had failed to call several relevant witnesses who, it could be reasonably expected, would be called to give evidence, in view of the challenge to his account both of the immediate and long-term effects of the assaults. Those witnesses included Dr Pagano (or Mr Lush or Ms Marr) and Dr Watson, neither of whom were called to give evidence. In that respect, the judge noted that there was a ‘yawning chasm’ in terms of corroborative evidence, in that no family member, no partner, no treating doctor and no treating psychologist was called to give evidence supporting the respondent’s claim.[140]
[139]Ibid [72].
[140]Ibid [75].
In those circumstances, the judge concluded that he had ‘considerable reservations to the point of substantial doubt’ about most of the evidence of the respondent as to the effects of Coffey’s assaults on him.[141]
[141]Ibid [76].
The judge then turned to the issues of liability. Having concluded that the applicant was vicariously liable for the two assaults which his Honour found had been committed by Coffey, the judge then turned to the question of damages. Having summarised the evidence of the respondent and the three supporting witnesses, his Honour stated:
The end result of the evidence of these witnesses is that it is clear (consistent with the evidence of the psychologists) that DP has suffered psychological issues over the past 20 years. However, none of the witnesses substantiate any relationship between the Coffey assaults and psychological symptoms prior to 2019. It is, however, also apparent that since reading the December advertisement and consulting lawyers in respect of this litigation that the effect of the Coffey assaults has become a major focus of DP’s life.[142]
[142]Ibid [337].
The judge then discussed the previous claims that had been made by the respondent in respect of psychological injury that he had sustained as a result of other trauma — in particular, the abuse by the school teacher and the death of his parents. His Honour set out in some detail letters written by Ms Marr, a letter written by Dr Pagano to Dr Watson in April 2016, the letter written by Dr Pagano to TAC in March 2016, and four further letters written by Dr Pagano to Dr Watson between January 2016 and September 2018. Having done so, his Honour noted as follows:
The end result is that the treating psychologists diagnosed a number of identifiable psychiatric conditions: major and persistent depressive disorder, panic disorder and agoraphobia. None were attributed to the Coffey assaults, as DP did not mention the assaults notwithstanding the number of visits and the confidentiality associated with his attendances. On multiple occasions his symptoms were attributed to a variety of causes — primarily that of the school abuse and the death of his parents.[143]
[143]Ibid [356].
The judge next considered the evidence of the two psychiatrists, Associate Professor Quadrio and Dr Jager. In respect of the differences between the opinions expressed by those doctors, the judge noted, first, that Associate Professor Quadrio has ‘far greater’ specialist knowledge in the area of institutional and childhood abuse than Dr Jager, and, secondly, that Dr Jager’s 43 minute Skype conference with the respondent could not give him a sufficient understanding of the respondent’s condition, as compared with the lengthy initial meeting between the Associate Professor and the respondent.[144]
[144]Ibid [366]-[368].
The judge then discussed the basis upon which Associate Professor Quadrio had expressed her opinion. He noted that before the initial meeting and her first report, the respondent’s solicitors had not provided Associate Professor Quadrio with any material relating to the respondent’s past life or treatment, apart from a statement made by the respondent after he had consulted his lawyers. In particular, the solicitors had not provided Associate Professor Quadrio with material from Dr Watson or WPS. Accordingly, Associate Professor Quadrio simply relied on the respondent’s account. In that respect, the judge observed:
To put it bluntly, this makes her assessment close to impossible to accept in light of the evidence adduced at trial: she had only the account of a witness whom I regard as significantly unreliable, particularly when attributing his psychological symptoms to a particular cause.[145]
[145]Ibid [373].
Having identified further issues relating to the account given by the respondent to Associate Professor Quadrio, his Honour concluded:
The end result is that my findings of fact are totally out of kilter with those upon which Associate Professor Quadrio relies. I do not accept the diagnosis of complex PTSD, depression, anxiety and/or agoraphobic anxiety connected to the Coffey assaults in the manner described by her.[146]
[146]Ibid [379].
The judge noted that the treating psychologists, who had attributed the respondent’s psychological symptoms to other causes, had had a significant advantage in that they had seen the respondent in a clinical setting, without the influence of litigation. His Honour concluded by reiterating that neither Associate Professor Quadrio nor Dr Jager had ‘anything like’ the picture of the respondent and his life that had emerged in the course of evidence given in the trial.[147] The judge concluded that, with one exception, he was not satisfied that the respondent had established, on the balance of probabilities, the underlying factors which underpinned Associate Professor Quadrio’s opinion, attributing his PTSD, depression, anxiety and agoraphobia to the assaults committed by Coffey. That exception consisted of the respondent’s psychological symptoms, particularly depression and anxiety, which he had suffered after he had read the December advertisement.[148]
[147]Ibid [382].
[148]Ibid [383].
The judge further considered an inference, of the kind that was considered in Jones v Dunkel,[149] was applicable in respect of the failure of the respondent to call evidence from a number of persons who were not called to give evidence, and who might have been able to give evidence concerning matters relevant to the respondent’s claim for damages. His Honour noted that three of the respondent’s four siblings were alive and available. He considered that it would have been natural for the respondent to call one or more of them, as they could have shed some light on whether the respondent had experienced the problems that he alleged were the result of the assaults committed by Coffey. Accordingly, his Honour concluded that he could more confidently accept the inference contended for by the applicant, and contrary to the evidence advanced on behalf of the respondent, that his psychological symptoms from an early age were not due to Coffey’s abuse, but were related to the school abuse, or alternatively, occurred at a later time in his life and resulted from other trauma.[150]
[149](1959) 101 CLR 298 (Dixon CJ, Kitto, Taylor, Menzies and Windeyer JJ).
[150]Reasons, [394].
The judge also considered it would have been natural and expected for the respondent to call both Dr Watson and Dr Pagano, as they had treated the respondent up to and at the time of the trial. In particular, the failure to call the treating practitioner, Dr Watson, was particularly ‘stark’.[151] On the other hand, there was a significant body of reports and communications by Dr Pagano and also Ms Marr that was tendered in evidence, which gave some picture of the respondent’s psychological problems and their asserted causes. Accordingly, the inference was not as powerful as that which would be drawn in the case of the absence of Dr Watson, but nevertheless, Dr Pagano’s opinion as to any causal connection between the Coffey assaults and the development of any psychological symptoms of the respondent would have been of ‘real relevance’ to a critical issue in the case.[152]
[151]Ibid [396].
[152]Ibid [397].
The judge then concluded that there were ‘multiple problems’ with accepting the respondent’s case as to both the onset of his psychological symptoms caused by the Coffey assaults, and in determining the relationship of his current symptoms to those assaults.[153] For those reasons, the judge rejected the respondent’s case that his symptoms commenced at the time of the assaults committed by Coffey, or at any time before December 2018. He was, however, satisfied that after the respondent read the December advertisement, his memories of the assaults were revived and have since then played a part — along with other issues — in the production of his symptoms of depression and anxiety.[154]
[153]Ibid [401].
[154]Ibid [401].
The judge acknowledged that there was no expert psychiatric opinion that supported the conclusion that he had reached. However, he noted that neither psychiatrist, who had been called to give evidence, had been provided with the correct factual basis for their conclusions, and that the treating psychiatrist and general practitioner had not been called to give evidence.[155] The judge specifically rejected the opinion of Associate Professor Quadrio that the respondent suffered PTSD as a result of the Coffey assaults. He concluded that since December 2018, the respondent had become fixated with those results, and as a consequence he had suffered anxiety and depression. The judge considered that the other events in the respondent’s life had also contributed to his symptoms. The judge also concluded that the symptoms suffered by the respondent as a result of Coffey’s assaults would persist indefinitely. On that basis, the judge assessed the appropriate general damages for the respondent’s pain and suffering and loss of enjoyment of life in the sum of $200,000.[156] In addition, his Honour awarded a further sum of $20,000 by way of aggravated damages as compensation for the breach of trust by Coffey in sexually abusing DP in circumstances in which he could not be protected by his parents,[157] and $10,000 for future medical expenses.[158]
[155]Ibid [417].
[156]Ibid [424]–[428].
[157]Ibid [455].
[158]Ibid [449].

Submissions of applicant — damages

The central submission, made on behalf of the respondent in support of the cross-appeal, was expressed in the respondent’s written case in the following terms:
It was not properly open to the trial judge to conclude that the tortious injury having occurred in 1971, the plaintiff only suffered compensable damage from December 2018, after seeing the notice …
In support of that submission, counsel for the respondent contended that the judge’s conclusion was inconsistent with the expert medico-legal evidence given by both Associate Professor Quadrio and Dr Jager. In particular, counsel noted that Dr Jager’s conclusion was that the abuse by Coffey predisposed the respondent to anxiety and he attributed ‘one sixth’ of the respondent’s anxiety condition to that abuse. Thus, it was submitted that on the evidence of either expert, the respondent had suffered some damage that was directly attributable to the abuse committed in 1971. It was further submitted that the judge did not find that the respondent had suffered no psychiatric injury before seeing the December advertisement. Rather, the judge focussed on the point in time at which the respondent suffered symptoms of depression and anxiety, but in doing so ignored the actual causes of the psychiatric injury.
Counsel submitted that against the background of agreement between the two medico legal experts, there was no basis for the judge to conclude that the respondent did not suffer any relevant harm when he was abused in 1971.
Counsel further submitted that the judge erred in rejecting the opinion given by Associate Professor Quadrio, because the judge considered that she had not been provided with relevant material. Associate Professor Quadrio was subsequently provided with the information that she lacked when she first saw the respondent, and she provided a further opinion in which she adhered to her initial view. In re-examination, she confirmed that the additional material had not altered her original opinion. Accordingly, it was submitted, there was no basis for the judge to reject the opinion expressed by Associate Professor Quadrio.
Counsel further submitted that the finding by the judge that the respondent had been sexually abused by Coffey in 1971 necessitated a conclusion that the respondent was injured by the batteries and assaults committed by Coffey at the time. In those circumstances, it was submitted, it could not logically be concluded that the respondent, having suffered injury by the sexual abuse in 1971, nevertheless suffered no compensable harm until he read the December notice almost 48 years later. It was submitted that the judge’s finding to that effect was so unreasonable that no decision maker could have made it. In particular, it was submitted that it was unthinkable that the sexual abuse of a kind engaged in by Coffey did not there and then injure, and cause psychiatric harm to, the respondent. Counsel noted that the abuse by Coffey was the ‘first intrusion’ into DP’s psychiatric wellbeing. DP subsequently suffered other insults to his psyche, resulting from the violent conduct of his father, the abuse by his teacher, and the death of his parents. It was submitted that while those further incidents aggravated his injury, they did not exclude the original insult to his psychiatric state. Counsel further submitted that although the later incidents may have been the focus of the respondent’s perception of the cause of his symptoms, that did not displace the underlying injury that originally resulted from Coffey’s assault.
In response, counsel for the applicant submitted that the conclusion by the judge, that the respondent suffered no psychological or other symptoms until he read the December notice, is unimpeachable. In support of that submission counsel noted four points that were made by the judge, each of which, it was submitted, were amply based on the evidence.
First, the judge noted the out-of-court statements made by the respondent, and the history that he gave to treating professionals, in which he did not refer to the assaults committed by Coffey, but instead described a normal childhood. Secondly, the judge referred to the material adduced from the treating psychologists, the effect of which was that there was no connection between the Coffey assaults and the respondent’s psychological condition. In that respect, the judge noted that the respondent’s treating psychologist, Dr Pagano, had expressed the opinion, in a number of reports, that the respondent’s complex psychological condition was due to other causes than the assaults committed by Coffey. Thirdly, counsel noted that the judge had concluded that he had ‘little confidence’ in the opinions formed by the two consultant psychiatrists, because they had received an ‘illusory picture’ of the effect of the assaults on the respondent. In that respect, the judge having analysed the evidence of Associate Professor Quadrio, concluded that she relied solely on the respondent’s word as to the cause of his problems, and that the account given by the respondent to Associate Professor Quadrio was completely inconsistent with the account that he had given to his treating professionals. Fourthly, counsel noted that the judge correctly applied the Jones v Dunkel inference which fortified that contrary conclusion, namely, that prior to 4 December 2018 the respondent had not suffered any psychological condition relating to the assaults committed by Coffey.
In those circumstances, counsel submitted that the judge’s conclusion, that the respondent did not experience any symptoms of depression and anxiety until he read the December 2018 notice, was open to the judge and was not infected by error.

Cross-appeal — analysis and conclusions

The cross-appeal, and the submissions advanced on behalf of the respondent, were directed to particular findings of fact by the judge, and specifically to his conclusion that the respondent did not suffer symptoms of injury until the December 2018 notice was brought to his attention.
The principles, relating to such a ground of appeal, have been well established by a series of decisions in the High Court.[159] For present purposes, the principles established by those authorities were sufficiently summarised in the decision of this Court in Southern Colour(Vic) Pty Ltd v Parr,[160] in the following terms:
On appeal, the Court is required to undertake a ‘real review’ of the evidence in respect of the findings made by the judge, and the reasons for the judge’s conclusions. Where the finding, that is under review, depended on the acceptance or rejection by the trial judge of the evidence of a particular witness or witnesses, the appellate court should only set aside that finding if, after making due allowance for the advantages enjoyed by the trial judge, that finding is ‘glaringly improbable’ or ‘contrary to compelling inferences’. On the other hand, in general, an appellate court is in as good a position as the trial judge to decide the proper inferences to be drawn from facts which are undisputed, or which have been established by the evidence. In deciding the proper inference to be drawn, the appellate court should, however, give respect and weight to the conclusion of the judge, but, having reached its own conclusion, it must give effect to it.[161]
[159]Warren v Coombes (1979) 142 CLR 531, 551; [1979] HCA 9; Fox v Percy (2003) 214 CLR 118, 126–7 [25] (Gleeson CJ, Gummow and Kirby JJ); [2003] HCA 22; Devries v Australian National Railways Commission (1993) 177 CLR 472, 480 (Deane and Dawson JJ); [1993] HCA 78; Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550, 558–9 [43] (French CJ, Bell, Keane, Nettle and Gordon JJ); [2016] HCA 22 (‘Robinson Helicopter’).
[160][2017] VSCA 301.
[161]Ibid [78] (citations omitted) ( Santamaria, Kaye and Ashley JJA).

In similar terms, in Robinson Helicopter, the High Court stated:
The fact that the judge and the majority of the Court of Appeal came to different conclusions is in itself unremarkable. A court of appeal conducting an appeal by way of rehearing is bound to conduct a ‘real review’ of the evidence given at first instance and of the judge's reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings. But a court of appeal should not interfere with a judge's findings of fact unless they are demonstrated to be wrong by ‘incontrovertible facts or uncontested testimony’, or they are ‘glaringly improbable’ or ‘contrary to compelling inferences’. In this case, they were not. The judge’s findings of fact accorded to the weight of lay and expert evidence and to the range of permissible inferences. The majority of the Court of Appeal should not have overturned them.[162]
[162]Robinson Helicopter (2016) 331 ALR 550, 558–9 [43] (citations omitted) (French CJ, Bell, Keane, Nettle and Gordon JJ).
In essence, the respondent, by the cross-appeal, has sought to establish two errors of fact by the primary judge. First, it was submitted, the judge erred in rejecting the expert evidence of Associate Professor Quadrio that the sexual abuse by Coffey was a fundamental contributor to the respondent’s long-term psychiatric issues. Secondly, it was submitted that it was not open to the judge to conclude that the respondent did not suffer any relevant injury when he was abused in 1971, and that he first suffered such injury after his attention was drawn to the 2018 notice.
In respect of the first submission, there was a substantial basis upon which the judge was entitled not to rely on the evidence of Associate Professor Quadrio.
As we have noted, the first interview conducted by the associate professor with the respondent was lengthy and detailed. It is quite clear that the respondent spent some time in the interview outlining to Associate Professor Quadrio the various events in his life and how he said that they affected him. In doing so, the respondent told Associate Professor Quadrio that very soon after the abuse, he was affected by it in a number of different ways, which persisted throughout his lifetime. As the primary judge noted, in that respect, the only information that was then available to Associate Professor Quadrio concerning that matter was the account given to her by the respondent at that interview. Most significantly, the respondent’s solicitors had chosen not to provide her with material that was central to that issue, and, in particular reports and material from the long-term general practitioner who had been responsible for the medical and psychological care of the respondent, Dr Watson, or any of the three psychologists who had treated him, on a regular and ongoing basis, during the nine years that had preceded the first interview with Associate Professor Quadrio.
In addressing and forming her conclusion as to the possible or probable effects of Coffey’s abuse, it would have been most relevant, and indeed critical, for Associate Professor Quadrio to have been provided with the reports of the three treating psychologists, most particularly Dr Pagano. In particular, it would have been relevant for Associate Professor Quadrio to be informed that the respondent had told him that, apart from the fact that his parents were strict Catholics, he had otherwise enjoyed a ‘relatively normal early childhood without significant trauma’ before he suffered physical and psychological abuse at St Patrick’s School, and that since suffering that abuse at school, he had experienced panic attacks. It would also be relevant for Associate Professor Quadrio to have been provided with the report of Dr Pagano in which he stated that the respondent had maintained some anger about his parents not having protected him from the teacher’s abuse, that while at school the respondent had experienced ‘multiple incidents of victimisation, bullying, being singled out and humiliated’.
The respondent, at the first interview, did inform Associate Professor Quadrio that he had been attending Dr Pagano, and that he did not advise Dr Pagano of the abuse, because of his feelings of shame. He told the associate professor that he had to build trust with Dr Pagano before he could speak about it.
However, by the time that Associate Professor Quadrio first examined the respondent in February 2020, the respondent had attended multiple treatment sessions with Dr Pagano, in which he had related to Dr Pagano, in some detail, all the other incidents in his life. The respondent did not attend Dr Pagano for the purposes of recounting to him his problems. Rather, those attendances were for the specific purpose of obtaining psychological counselling that would address and treat his emotional and psychological problems and the causes that underlay them.
In those circumstances, it would have been particularly relevant to Associate Professor Quadrio to have been provided with reports from Dr Pagano, which made it plain that the respondent had not even mentioned the abuse to him, let alone subjectively attributed any of his problems to that abuse. Such material, if it had been available to Associate Professor Quadrio, would have provided her with a proper basis upon which to form an expert conclusion as to whether or not the abuse perpetrated by Coffey had made any material contribution to the psychological problems suffered by the respondent up to the time at which he learned of the 2018 notice. The judge was, in our view, entirely correct to conclude that Associate Professor Quadrio did not have ‘anything like the picture of DP in his life that emerged in the course of the trial’.[163]
[163]Ibid [382].
It may be acknowledged that at the time at which Associate Professor Quadrio provided her second report (in June 2021) she had been provided with a report by Dr Pagano to the respondent’s previous solicitors dated 31 March 2015, as well as with the statement that was made by the respondent in his claim to Towards Healing dated 10 November 2014. However, it would not seem that that material effectively repaired the hiatus in information that was originally available to Associate Professor Quadrio when she formulated the opinion contained in her first report, and which she appears to have repeated in her second report. In the letter written by Dr Pagano dated 31 March 2015, he attributed the respondent’s psychological conditions to the circumstances in which his parents died as a result of the motor vehicle accident in March 1985, as well as to the abuse to which he had been subjected at school, and the subsequent death of his sister, K. Relevantly, Associate Professor Quadrio, in her second report, having referred to Dr Pagano’s report, stated: ‘In essence I would concur with Dr Pagano’s assessment of [DP]’. In any event, the judge was entitled to be less persuaded by an opinion adhered to after the provision of an incomplete history, than one formed initially upon the basis of a full and complete history.
Further and importantly, the judge, having had the opportunity of observing the respondent in evidence and under cross-examination, concluded that he had ‘considerable reservations to the point of substantive doubt’ as to the reliability of the evidence given by the respondent as to the effects of the Coffey assaults on him.[164] The judge formed that conclusion, concerning the reliability of that aspect of the respondent’s evidence, having had the advantage of observing the respondent give evidence, and be cross-examined in some detail. That conclusion was reinforced by the contemporaneous reports written by Dr Pagano, which attributed the respondent’s problems to other incidents and trauma that he had experienced during his life.
[164]Ibid [76].
As the judge observed, the respondent’s account of the relationship between the Coffey assaults and the onset of his lifelong symptoms was ‘squarely contradicted’ by several out-of-court statements which he had made and histories he had given to the treating professionals. The judge further noted that the respondent had not only not made any reference to those assaults in the course of giving those histories and making those statements, but he had described having had a normal childhood up until the time at which he suffered abuse at the hands of the school teacher.[165] The judge’s conclusion was further fortified by the Jones v Dunkel inference that was available as a result of the failure of the respondent to call in evidence his treating psychologist, and members of his family and friends who had known him when he was younger.
[165]Ibid [404].
For those reasons, we are not persuaded that the judge erred in not accepting the expert opinion given by Associate Professor Quadrio that there was a causal connection between the Coffey abuse and the psychological issues suffered by the respondent up to the time at which he learned of the 2018 notice.
The second point, raised by counsel under the cross-appeal, is that it is inconceivable that the abuse perpetrated by Coffey could not have caused some material psychological harm to the respondent. As counsel put it, that abuse was the ‘first intrusion’ into the respondent’s psychiatric wellbeing. Thus, it was submitted that it was not open to the judge to conclude that the respondent did not suffer any psychological sequelae as a result of the abuse committed by Coffey.
In addressing that point, it is important to understand properly the conclusion that the judge formed about the relationship between the assaults by Coffey on the respondent, and the respondent’s current psychological condition.
It is clear from his reasoning that the judge rejected the case made by the respondent that he suffered injury and symptoms at the time of, and resulting from, the assaults committed by Coffey. However, the judge was satisfied that when the respondent read the December 2018 advertisement, his memories of the assaults were ‘revived’ and since then had played a material role in the production of his symptoms of anxiety and depression.[166] In that way, the judge was satisfied that since the respondent saw the December 2018 advertisement, his ‘psyche had been detrimentally affected by the “reawakened memories” of the two instances of assault’.[167]
[166]Ibid [401].
[167]Ibid [414].
In reaching that conclusion, the judge stated that while he regarded the opinion of Dr Jager as ‘less than satisfactory’, he considered that the doctor was right in ascribing some portion of the respondent’s current psychological symptoms to the assaults.[168] In that respect, the judge evidently referred to the opinion expressed by Dr Jager that the abuse had predisposed the respondent to anxiety, so that Dr Jager attributed one part (one sixth) of his current anxiety condition to that abuse.
[168]Ibid [418].
In that way, and contrary to the submission advanced on behalf of the respondent, the judge did not conclude that the assaults committed by Coffey did not have any relevant effect on the respondent’s psychiatric state. Based on the opinion of Dr Jager, that the assaults had predisposed the respondent to anxiety, the judge concluded that the assaults did have some causative effect, albeit that the symptomatic sequelae of that effect had remained dormant until the respondent’s memories of the assaults had been reactivated by the December 2018 notice.[169] As we have already discussed, and for the reasons we have given, we are satisfied that there was a substantial basis for the judge to form that conclusion.
[169]Compare March v E & MH Stramare Pty Ltd (1991) 171 CLR 506, 514 (Mason CJ); [1991] HCA 12.
That conclusion does leave open one further matter for consideration. The respondent’s claim for damages was based on the tort of trespass to the person, which is actionable per se.[170] In the absence of any evidence as to injury at all, the respondent would have been entitled to an award of general damages as compensation for the assaults. In determining the amount of those damages, it was relevant to take into account the nature and circumstances of the particular assaults, and in particular, the insult to the respondent’s person, and any feelings of distress occasioned by them.[171] The evidence of the respondent, as to his immediate feelings in respect of the assaults, was quite limited. He did give evidence that, at the time of the second assault in the tent, he reacted by yelling out to his mother, and himself exiting the tent. Nevertheless, it would be indisputable that the reprehensible assaults committed by Coffey on the five year old respondent must have been particularly confronting and unpleasant experiences for him, albeit that he did not suffer any psychological sequelae as a result of them for a number of years.
[170]Carter v Walker (2010) 32 VR 1, 38 [215] (Buchanan, Ashley and Weinberg JJA).
[171]Forde v Skinner (1830) 4 Car & P 239, 240; 172 ER 687; Hurst v Picture Theatres Ltd [1915] 1 KB 1,10 (Buckley LJ); Loudon v Ryder [1953] 2 QB 202, 208-9 (Singleton LJ).
The judge’s award of $200,000 damages to compensate the respondent for his pain and suffering and loss of enjoyment of life did not expressly include a specific allowance for the nature and circumstances of the assaults. However, the award of $20,000 of aggravated damages was directed to the circumstances of the indecent assaults, and to the respondent’s suffering at the time of them, albeit that the judge focussed on the breach of trust by Coffey in perpetrating of both assaults, and the furtive and clandestine manner in which they were committed.[172] Taking into account the amount of damages awarded to the respondent as general damages and aggravating damages, we are satisfied that they did subsume a sufficient measure of compensation for the immediate injury occasioned to the respondent’s person and feelings by the indecent assaults.
[172]Reasons, [454] –[455]; cf Carter v Walker (2010) 32 VR 1, 53 [283]; De Reus v Gray (2003) 9 VR 432, 452 [28] (Winneke P).
For those reasons, the respondent does not succeed on the cross-appeal.

Summary of conclusions

For the foregoing reasons, the applicant has failed to succeed on either of the two grounds of appeal relied on. We grant the applicant leave to appeal on those grounds, but otherwise dismiss the appeal.
Similarly, we grant the respondent leave to appeal the award of damages made by the primary judge, but dismiss that appeal.
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[2023] VSCA 66

3 April 2023