Bird v DP (a pseudonym)

Case [2024] HCA 41

HIGH COURT OF AUSTRALIA

GAGELER CJ,
GORDON, EDELMAN, STEWARD, GLEESON, JAGOT AND BEECH‑JONES JJ

BISHOP PAUL BERNARD BIRD  APPELLANT

AND

DP (A PSEUDONYM)  RESPONDENT

Bird v DP (a pseudonym)

[2024] HCA 41

Date of Hearing: 14 March 2024
Date of Judgment: 13 November 2024

M82/2023

ORDER

1.Appeal allowed.

2.Set aside orders 2 and 5 of the Court of Appeal of the Supreme Court of Victoria made on 3 April 2023 and, in their place, order that:

(a)The appeal be allowed with costs; and

(b)The orders made by the Supreme Court of Victoria on 25 January 2022 and 28 February 2022 be set aside and, in their place, order that the proceeding be dismissed with costs.

3.The appellant pay the respondent's costs of and incidental to the application for special leave to appeal and the appeal to this Court.

On appeal from the Supreme Court of Victoria

Representation

B W Walker SC with A M Dinelli KC and A D James-Martin for the appellant (instructed by Colin Biggers & Paisley Lawyers)

D R Campbell SC with G J Boas, J A G McComish and E H R Kelly for the respondent (instructed by Ken Cush & Associates)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Bird v DP (a pseudonym)

Torts – Intentional torts – Vicarious liability – Where priest committed sexual abuse whilst carrying out pastoral duties as representative of Diocese – Where priest not agent or employee of Diocese – Whether Diocese vicariously liable for priest's sexual abuse – Whether vicarious liability extends beyond relationships of employment to relationships "akin to employment".

Appeals – Issue not raised at trial – Where respondent sought to rely on non-delegable duty – Where factual basis for duty not pleaded or tested at trial – Prejudice.

Words and phrases – "agency", "akin to employment", "course of employment", "negligence", "nominated defendant", "non-delegable duty", "prejudice", "representative", "scope of employment", "sexual abuse", "strict liability", "unincorporated association", "vicarious liability".

Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (Vic), ss 1, 5, 7.

  1. GAGELER CJ, GORDON, EDELMAN, STEWARD AND BEECH-JONES JJ.   In 1971, at the age of five, the respondent ("DP") was assaulted and sexually abused at his parents' home in Port Fairy on two separate occasions by Father Bryan Coffey (now deceased) ("Coffey"), a Catholic priest from St Patrick's, the local parish church. The church was, and is, within the Roman Catholic Diocese of Ballarat ("the Diocese").

  2. In 2020, DP commenced proceedings in the Supreme Court of Victoria claiming damages for psychological injuries he had sustained as a result of the assaults committed by Coffey. DP alleged that the Diocese was vicariously liable for the actions of Coffey and, additionally, that it was liable in negligence by reason of the Diocese's (and the relevant Bishop's) failure to exercise reasonable care in its authority, supervision and control of the conduct of Coffey. As the Diocese is an…

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Bird v DP (a pseudonym) [2024] HCA 41
Case
[2024] HCA 41
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by a Diocese concerning its vicarious liability for sexual abuse committed by a priest. The dispute arose from a claim by the respondent, DP, who alleged sexual abuse by a priest while carrying out pastoral duties. The central question was whether the Diocese could be held vicariously liable for the priest's actions, even though the priest was not an employee or agent of the Diocese.

The legal issues before the Court were whether vicarious liability in Australia extends beyond relationships of employment to include relationships "akin to employment," and if so, whether such a relationship existed in this case. The Court also considered whether a non-delegable duty could be relied upon, noting that this issue had not been raised or tested at trial and that the respondent would face prejudice if permitted to rely on it.

The High Court reasoned that Australian law, unlike in some other jurisdictions such as Canada, England, and Ireland, does not currently recognise vicarious liability for individuals who are not employees or in a relationship "akin to employment." The Court found that there was no established legal basis for extending vicarious liability to the relationship between the Diocese and the priest in this instance, as there was no finding of an employment relationship. The Court noted that while legislative changes in Victoria had addressed limitation periods for child abuse claims, this did not alter the common law principles of vicarious liability.

The appeal was allowed, and the orders of the Court of Appeal of the Supreme Court of Victoria were set aside. The High Court ordered that the proceeding be dismissed with costs. The appellant was also ordered to pay the respondent's costs of and incidental to the application for special leave to appeal and the appeal to the High Court.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside orders 2 and 5 of the Court of Appeal of the Supreme Court of Victoria made on 3 April 2023 and, in their place, order that:

(a) The appeal be allowed with costs; and

(b) The orders made by the Supreme Court of Victoria on 25 January 2022 and 28 February 2022 be set aside and, in their place, order that the proceeding be dismissed with costs.

3. The appellant pay the respondent's costs of and incidental to the application for special leave to appeal and the appeal to this Court.

Background

Background to the litigation

This is the first time this Court has been asked to consider whether, absent a relationship of employment between a wrongdoer and a defendant, a diocese or a bishop may be held vicariously liable for the unlawful actions of a priest who sexually abuses a child. That, in turn, raises the question whether a relationship of employment is a necessary precursor – or a threshold requirement – to a finding of vicarious liability. As will be explained, the position in Australia is that an employer may be vicariously liable for the acts of its employees, but there is no such liability for the acts of those who are not in an employment relationship but, instead, are, for example, independent contractors or in a relationship "akin to employment". There being no finding of a relationship of employment between the Diocese and Coffey, the appeal must be allowed. The second issue is not reached. DP's notice of contention fails at the threshold; it was not raised in the courts below. Background The primary judge considered DP's claim as raising two fundamental and closely inter-related questions. First, was the relationship between Coffey and the Diocese or the Bishop capable of giving rise to a finding of vicarious liability on the part of the Diocese for Coffey's conduct? Second, if there was a relationship that could give rise to vicarious liability, was the Diocese or the Bishop liable for Coffey's unlawful conduct, it being accepted that the assaults were unlawful and far outside Coffey's clerical role? On the first question, the primary judge concluded that there was no binding decision in Australia that foreclosed the possibility that a diocese, or bishop, could be held vicariously liable for the actions (lawful or unlawful) of a priest appointed by a bishop. After considering the decisions of this Court in Hollis v Vabu Pty Ltd,[2] Sweeney v Boylan Nominees Pty Ltd[3] and Prince Alfred College Inc v ADC,[4] of the Supreme Court of Canada in Bazley v Curry,[5] and of the Supreme Court of the United Kingdom in Various Claimants v Catholic Child Welfare Society[6] ("Christian Brothers"), the primary judge rejected the Diocese's central proposition that vicarious liability is confined to a relationship of employment and, among other things, considered that this Court in Prince Alfred College did not endorse such a "confined theory".[2](2001) 207 CLR 21.[3](2006) 226 CLR 161.[4](2016) 258 CLR 134.[5][1999] 2 SCR 534.[6][2013] 2 AC 1. The primary judge said that the correct approach to the first stage of the vicarious liability analysis "ought not be limited by preconceived notions of agency or employment" but, rather, should be "directed to the totality of the relationship". The primary judge considered that, in this case, that required a "holistic and broad inquiry into the circumstances surrounding: the relationship between the Diocese and Coffey; the role of … the [then] parish priest (Father O'Dowd) and Coffey; Coffey's role within the Port Fairy Catholic community; and Coffey's relationship with DP and his family".

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GAGELER CJ, GORDON, EDELMAN, STEWARD AND BEECH-JONES JJ GLEESON J
This is not one of those areas of the law where the intersection between the common law and statute permits the Court to analogise from statute to adapt or expand the principle of vicarious liability beyond relationships of employment.[160] [160] Tame v New South Wales (2002) 211 CLR 317 at 394 [224], citing Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49 at 60-63 [19]-[28]. See, eg, R v Swaffield (1998) 192 CLR 159 at 193‑195 [66]-[70], 202 [92]; PGA v The Queen (2012) 245 CLR 355 at 369 [18], 373 [30], 378 [46], 384 [64].Conclusion and orders For those reasons, the appeal should be allowed. The appellant agreed to pay DP's costs of and incidental to the special leave application and the appeal. Orders 2 and 5 of the Court of Appeal of the Supreme Court of Victoria made on 3 April 2023 should be set aside and, in their place, order that:1. The appeal is allowed with costs.2.The orders made by the Supreme Court of Victoria on 25 January 2022 and 28 February 2022 be set aside and, in their place, order that the proceeding be dismissed with costs. Introduction In Canada,[161] England and Wales,[162] and Ireland,[163] the courts have imposed vicarious liability on religious bodies for sexual abuse by priests and members of religious orders in certain circumstances. In doing so, those courts have recognised that an organisation can be vicariously liable not only for the torts of its employees, but also for the torts of persons whose relationship with the organisation is "akin to employment". In Singapore, vicarious liability has also been held to be capable of arising in relationships that are akin to employment.[164] Similarly, in the civilian tradition, a defendant can be vicariously liable for the wrongs committed by someone who is not strictly an employee.[165][161]See, eg, JohnDoe v Bennett [2004] 1 SCR 436. [162]See, eg, Various Claimants v Catholic Child Welfare Society [2013] 2 AC 1 ("Christian Brothers").[163]See, eg, Hickey v McGowan [2017] 2 IR 196.[164]See, eg, Ng Huat Seng v Munib Mohammad Madni [2017] 2 SLR 1074 ("Ng Huat Seng"). [165]Code civil (France), Art 1242; Bürgerliches Gesetzbuch (Germany), §831-832; Codice civile (Italy), Art 2049; Obligationenrecht (Switzerland), Art 55; Allgemeines bürgerliches Gesetzbuch (Austria), §1313a-1315. In 2015, the Royal Commission into Institutional Responses to Child Sexual Abuse anticipated that Australian courts, too, would recognise and impose liability on institutions for criminal acts of their members or employees that cause harm to children, in the absence of legislative action.[166] [166]Australia, Royal Commission into Institutional Responses to Child Sexual Abuse, Redress and Civil Litigation Report (2015) at 54. In Victoria, the State in which DP suffered sexual abuse as a child at the hands of a Catholic assistant parish priest in 1971, the Limitation of Actions Amendment (Child Abuse) Act 2015 (Vic) lifted the previous limitation period for actions for personal injury suffered as a result of child abuse. That legislative change was made in response to the publication in 2013 of a report entitled Betrayal of Trust, following the Inquiry into the Handling of Child Abuse by Religious and Other Non-Government Organisations.[167] A key finding of the report was that victims of child abuse found it difficult to initiate actions within the relevant limitation period and this was a barrier to claims against non-government organisations arising out of such abuse.[168] [167]Victoria, Legislative Assembly, Limitation of Actions Amendment (Child Abuse) Bill 2015, Explanatory Memorandum at 1.[168]Victoria, Family and Community Development Committee, Betrayal of Trust: Inquiry into the Handling of Child Abuse by Religious and Other Non-Government Organisations (2013), vol 2 at 527, 543 [Finding 26.8].

Ratio Decidendi

Legal Principle Established

Established by: GAGELER CJ, GORDON, EDELMAN, STEWARD AND BEECH-JONES JJ, GLEESON J

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