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.
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.…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Bird v DP [2023] VSCA 66
Case
[2023] VSCA 66
Decision Date
CaseChat Overview and Summary
Bird and another v DP was a case heard by the High Court of Australia. The plaintiffs, Bird and his son, sought damages from the Diocese of Parramatta (DP) for the sexual abuse committed by an assistant priest against the son in the home of the plaintiffs. The primary legal issues were whether the Diocese could be held vicariously liable for the assistant priest's actions, as the assistant priest was neither an employee nor an independent contractor of the Diocese, and if the abuse was sufficiently connected to the assistant priest's role to hold the Diocese liable.
The High Court examined the principles of vicarious liability in the context of the relationship between the Diocese and the assistant priest. It considered whether the abuse was an "occasion" for the assistant priest's role and functions, which would establish the necessary connection to hold the Diocese vicariously liable. The Court concluded that the assistant priest's role and functions were not the occasion for the abuse, and therefore, the Diocese could not be held vicariously liable for the assistant priest's actions. The Court also considered the cross-appeal concerning the timing of the son's psychiatric symptoms, finding no error in the trial judge's conclusions.
The appeal and cross-appeal were dismissed by the High Court, upholding the earlier decisions that the Diocese was not vicariously liable for the abuse and that the son did not suffer psychiatric symptoms until his memory of the abuse reawakened. The Court's decision was influenced by the statutory framework provided by the Legal Identity of Defendants (Organisational Child Abuse) Act 2018 and several precedent cases, including Hollis v Vabu Pty Ltd and Prince Alfred College Inc v ADC.