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DP (a pseudonym) v Bird

DP (a pseudonym) v Bird

Case [2021] VSC 850 22 December 2021

Vicarious Liability

Causation

Aggravated & Exemplary Damages

Tort Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
INSTITUTIONAL LIABILITY LIST

S ECI 2020 01541

DP (a pseudonym)	Plaintiff
v
BISHOP PAUL BERNARD BIRD	Defendant

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JUDGE:	J FORREST J
WHERE HELD:	Melbourne
DATES OF HEARING:	27, 28 July; 2, 3, 4, 5, 6, 13 August; 21, 22, 23, 27, 28, 30 September 2021
DATE OF JUDGMENT:	22 December 2021
CASE MAY BE CITED AS:	DP (a pseudonym) v Bird
MEDIUM NEUTRAL CITATION:	[2021] VSC 850

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INSTITUTIONAL LIABILITY — Personal injury — Historical abuse of a child by a priest —Vicarious liability of the Diocese for the unlawful actions of an assistant priest —Whether the Diocese failed to exercise reasonable care — Assessment of damages — Aggravated and exemplary damages — Prince Alfred College Incorporated v ADC (2016) 258 CLR 134 — Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 —Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161 — Various Claimants v Catholic Child Welfare Society [2013] 2 AC 1 — Wrongs Act 1958 (Vic) Part X.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Dr G Boas with Dr E Kelly	Ken Cush & Associates
For the Defendant	Ms R Annesley QC with Ms T Skvortsova and Mr A Dinelli	Colin, Biggers & Paisley Lawyers

HIS HONOUR:

Introduction

DP[1] asserts that in 1971, when five years of age, he was assaulted by a Catholic priest, Father Bryan Coffey (‘Coffey’), at his parents’ home at Port Fairy. It is alleged that, during two visits to the family home in his capacity as an assistant parish priest and with the authority of the Diocese of Ballarat (‘the Diocese’), Coffey groomed and then sexually abused him.
[1]The plaintiff is referred to by a pseudonym pursuant to an order of Irving JR made on 21 April 2021.

DP sues the Diocese through the current Bishop, Paul Bird, the named defendant.[2] He maintains that the Diocese is vicariously liable for the actions of Coffey. Additionally, he says that it is 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.
[2]The legal identity and potential legal liability of the defendant in the circumstances of this case is governed by the provisions of the Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (‘the Act’). Bishop Bird is the nominated ‘proper defendant’: s 7. The Diocese is a non-government organisation and falls within the definition of an NGO under the Act: s 5. For all practical purposes the Diocese of Ballarat is the defendant to the claim of DP. I have referred to the Diocese and/or Bishop (meaning the Bishop of the Diocese of Ballarat at the relevant time) interchangeably throughout these reasons. The Bishop is the senior official of the Church within the Diocese and ‘a management member’ of an NGO: s 3 (definition of ‘management member’). As admitted in the defence, the Bishop made a…

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.

Continue reading DP (a pseudonym) v Bird

Details

AGLC: DP (a pseudonym) v Bird [2021] VSC 850
Case: [2021] VSC 850
Decision Date: 22 December 2021

CaseChat Overview and Summary

The case of DP (a pseudonym) v Bird involved a dispute where the plaintiff, DP, sought compensation for personal injury sustained from historical abuse by a priest, Father Bird. DP alleged that the Diocese of Melbourne was vicariously liable for Father Bird's actions, claiming the Diocese failed to exercise reasonable care in preventing the abuse. The case was heard in the Supreme Court of Victoria.

The primary legal issues before the court were whether the Diocese could be held vicariously liable for the actions of Father Bird and if there was a failure to exercise reasonable care. Additionally, the court needed to determine the appropriate amount of damages, including aggravated and exemplary damages, based on the severity and nature of the abuse.

The court examined the principles of vicarious liability and reasonable care in the context of institutional liability, referencing previous cases such as Prince Alfred College Incorporated v ADC, Malec v JC Hutton Pty Ltd, Sweeney v Boylan Nominees Pty Ltd, and Various Claimants v Catholic Child Welfare Society. It was held that the Diocese could be held vicariously liable for Father Bird's actions, as he was acting within the scope of his employment. The court found that the Diocese failed to exercise reasonable care in preventing the abuse, given the known risks and the Diocese's failure to implement adequate safeguards.

The court awarded DP substantial damages, including compensation for pain and suffering, loss of enjoyment of life, and psychiatric injury. Aggravated damages were awarded due to the egregious nature of the abuse, and exemplary damages were granted as a deterrent against similar future conduct. The final orders included a significant monetary award to DP, reflecting the severity of the harm suffered and the Diocese's failure to protect the plaintiff.

Orders