DP (a pseudonym) v Bird
[2021] VSC 850
•22 December 2021
| 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 number of decisions relating to Coffey’s engagement as assistant priest at St Patrick’s: see s 3 (definition of ‘management member’ para (b)).
DP contends that as a result of the actions of Coffey he has developed, amongst other psychological conditions, complex post-traumatic stress disorder, which has affected him since the age of five and all but destroyed his earning capacity.
The Diocese does not admit that Coffey assaulted DP and denies that it is vicariously liable for his actions. It ultimately admitted that it owed a duty of care to DP, but asserts it was not breached. If the Diocese fails on those points, it says that the primary sources of DP’s mental health issues are unrelated to the assault(s) and there is no cogent evidence to sustain an award of damages for economic loss.
For the reasons that follow, I have determined that:
(a) Coffey assaulted DP as he alleges;
(b) The Diocese is vicariously liable for the assaults perpetrated by Coffey;
(c) DP has not established that the Diocese was negligent;
(d) DP’s general damages (pain and suffering and loss of enjoyment of life) should be assessed at $200,000;
(e) There should be no award of damages for loss of earning capacity (past and future);
(f) Damages for medical and like expenses should be assessed at $10,000;
(g) Aggravated damages should be awarded in the sum of $20,000;
(h) There should be no award of damages for exemplary damages.
The background to the claim
Much of the following is, I think, uncontroversial. If any part is not, these are my findings of fact save where otherwise indicated.
DP is now 55 years of age. He was born in Port Fairy on 16 February 1966 and raised in a strict Catholic family.
He had four elder siblings: Rhonda, born in 1954; Kaye, born in 1955 (deceased in 2014); Brendan, born in 1957; and Sandra, born in 1960.
DP’s father ran a fish-and-chip business in Warrnambool. His mother managed the family and the family home in William Street, Port Fairy. DP was particularly close to his mother. DP says that he did not get on with his father who was a strict disciplinarian and violent towards members of the family, including DP.
The local Catholic primary school, St Patrick’s, is located about 200 metres from the family home. The parish church, also St Patrick’s, is nearby on the corner of the Princes Highway and College Street. The church and school are within the Ballarat Diocese.
Bishop Ronald Mulkearns (‘Bishop Mulkearns’) was the appointed bishop in charge of the Diocese between 1971 and 1997. The parish of Port Fairy, St Patrick’s, was within that Diocese.
Coffey was ordained on 24 July 1960. He was appointed to St Patrick’s as an assistant priest in 1966.
DP’s grandmother, Mary Donohue, died on 13 November 1970 and the funeral was held several days later at St Patrick’s church.
In early 1971, at the age of five, DP commenced ’prep’ at St Patrick’s primary school. During that school year DP suffered from asthma and missed much of the year’s schooling.
At that time, Coffey was the assistant parish priest to Father Patrick O’Dowd (‘Father O’Dowd’) and taught at the school.
DP asserts that in 1971 on two separate occasions — the first in March or April at his grandmother’s wake and the second on Boxing Day — he was assaulted by Coffey. I shall describe those assaults in more detail later.
In 1975 and 1976, DP was in his final primary school years — grades 5 and 6 at St Patrick’s. He was taught by a female primary teacher (‘the teacher’). He says that on “several” occasions she physically abused him. She would “crack” him over the head and drag him by the ear outside. The abuse was also emotional over those two years (‘the school abuse’). These allegations have not been substantiated but have been repeated on many occasions with different emphasis by DP.
After completing primary school, in 1977 DP commenced his secondary studies at the Warrnambool Technical School. He was a student at that school for years 7 to 9 and then moved to the Warrnambool Community School for years 9 to 11. He completed those scholastic years successfully but did not progress beyond Year 11. He finished his schooling in 1983.
At some time in the early 1980s (the evidence of DP was particularly confusing as to dates), he formed a sexual relationship with an elder boy, Danny. DP may have been as young as fifteen when this relationship commenced. In any event, the relationship lasted for several years until Danny’s death.
Danny suffered severe injuries in a motor vehicle accident in 1985 and some nine months afterwards committed suicide whilst a patient at Caulfield Hospital Rehabilitation Centre.
From 1983 and for several years subsequently DP was employed, mainly on a casual basis, in businesses in Port Fairy and Warrnambool.
On 19 March 1985, tragedy struck the family. DP’s parents were killed in a horrific traffic accident at Balranald, New South Wales. There was an extensive police investigation. The coroner concluded that the accident was caused by the driver of another vehicle falling asleep and crossing onto the incorrect side of the roadway. DP still harbours the suspicion that his father deliberately caused the collision.
At the time of his parents’ death, DP was 19 years of age and living at home in Port Fairy with his parents. The family home was sold and DP was required to find alternative accommodation in the Warrnambool district.
At some point in time during the 1980s, DP commenced using hard drugs — heroin and cocaine. This lasted for a number of years but had ceased by the time he moved to Sydney in 1993.
In 1988, DP moved to Melbourne and obtained employment with the Melbourne and Metropolitan Tramways Board, initially as a conductor and then as a driver.
In 1993, DP moved to Sydney. He had several ”agency” jobs and eventually obtained permanent employment in 1995 with Canon in a customer service role.
In 1996, in Sydney, DP met his partner, Peter. They remain partners.
In 1999, DP suffered a workplace back injury which ultimately resulted in him receiving a lump sum payment of $45,000. He was on and off work for several years (on modified duties) and ultimately in 2000 or 2001 his employment was terminated.
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. Coffey was sentenced to three years’ imprisonment, wholly suspended.
In August 2000, DP commenced receiving the Commonwealth Carer Payment and the Carer Allowance — on the basis that he was the carer of his partner, Peter. That continues to the present day.
In 2001, DP and Peter moved to Melbourne and purchased a house in Melton South. They continue to reside in that house.
Soon after his arrival in Melbourne, DP consulted Dr Marcus Watson, a general practitioner in Melton who continues to treat him.
Between 2001 and 2006, DP operated and managed café businesses. The first, in Main Street, Bacchus Marsh — Muzza’s — was a partnership between himself and Peter. The second — called at different times Yvonne’s Diner and Baydonmur — in Bakery Square, Melton, operated for several years but ultimately proved to be a financial disaster.
From 2003 through to the present time, DP has suffered from symptoms of depression, anxiety, panic disorder and agoraphobia which were attributed (in histories to his general practitioner and treating psychologists) to a variety of causes: in particular to his relationship with Peter, his and his sibling’s treatment as children by their father, financial problems, the death of his parents and the school abuse.
DP was declared bankrupt in 2006. The bankruptcy continued for about five years.
From 2006, DP was treated with antidepressants by his general practitioner, Dr Watson.
In January 2011, DP consulted Mr Simon Lush, a clinical psychologist at Western Psychological Services (‘WPS’) and saw him on 11 occasions until August 2012.
In May 2013, DP consulted Ms Kim Marr, a clinical psychologist at WPS, and saw her on 20 occasions until September 2014.
In March 2014, DP’s sister, Kaye, with whom he was close, died of a brain tumour.
In October 2014, Ms Marr ceased practising. DP was referred to Dr Angelo Pagano, also a clinical psychologist at WPS, and has seen him regularly since that time.
In 2014, DP commenced to investigate the circumstances of his parents’ deaths and this occupied him (though not full-time) for at least another three to four years. He spent considerable time and effort communicating with individuals and organisations in Victoria and New South Wales concerning the facts surrounding their deaths, including whether he was entitled to compensation.
In November 2014, DP made a complaint to the Towards Healing organisation (a redress body established by the Catholic Church) in relation to the school abuse. He asserted that he had been physically and mentally abused by a female teacher at St Patrick’s school over a period of two years when in grades 5 and 6. He consulted two firms of solicitors and sought compensation.
In March 2015, Dr Pagano provided a report to Slater and Gordon — DP’s then solicitors — commenting on the effects of “the abuse that occurred between 1976 and 1977 while [DP] was a student at St Patrick’s Primary School, Port Fairy, the psychological and lifestyle effects subsequent to the abuse, other problems and recommended treatment and likely costs”.[3]
[3] Exhibit D25.
In 2016, the claim for compensation in relation to the school abuse was rejected by the Towards Healing organisation.
In 2016, DP made a claim on the Transport Accident Commission (‘TAC’) for payments under the Transport Accident Act 1986 in relation to the death of his parents.
On 6 June 2016, DP’s claim was rejected by the TAC. His appeal to the Victorian Civil and Administrative Tribunal (‘VCAT’) 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 sustained by him as a result of the death of his parents.
In August 2016, at DP’s request, Dr Pagano wrote to Ms Jodie McKay MP, then opposition transport spokesperson in the New South Wales Parliament, supporting DP’s claim for “potential benefits” as a result of “ill health suffered” “following the death of his parents in a motor vehicle accident on March 19, 1985”.[4]
[4]Exhibit D24.
In September 2016, the New South Wales government refused DP’s request for an ex-gratia payment.
In late 2018 (most likely December 2018), a friend by the name of Nicole sent DP a copy of an advertisement in a local Port Fairy newspaper, the Moyne Gazette, which sought information about potential victims of Coffey (‘the December advertisement’).[5] It had been placed in the newspaper by the solicitors acting for DP in this case, Ken Cush & Associates.
[5]Exhibit D14.
DP had told no one else (apart from Peter, on his account) about the fact that Coffey had assaulted him until he rang the office of Ken Cush & Associates in January 2019 after reading the December advertisement. He spoke to Mr Kitchen, solicitor, and disclosed details of the Coffey assaults to him.
This claim was issued on 27 March 2020. In his pleaded case and that advanced at trial, DP contended that the assaults by Coffey had caused long-term psychological damage (including post-traumatic stress disorder) which had caused major pain and suffering and destroyed his earning capacity.
The issues in this case
As I see it, the following are the primary issues to be determined:
·Was DP assaulted by Coffey?
·Is the Diocese vicariously liable for any assault of DP by Coffey?
·Is the Diocese liable in negligence for any assault of DP by Coffey?
·If Coffey assaulted DP, what injuries and damage did DP suffer?
·What is the appropriate assessment of DP’s compensatory damages?
·Is the Diocese liable for an award of aggravated or exemplary damages?
The credibility of DP
I will initially deal with my findings as to the credibility of DP, which are relevant to the outcome on both liability and assessment of damages.
There are multiple reasons (set out below) for not accepting DP’s account of the way in which the assaults by Coffey have affected him during the course of his life. I should make it clear, however, that I am not able to conclude that DP deliberately lied when giving evidence. Rather, he appears to be a complex individual who at times reconstructs events to suit his current perception of a particular occurrence.
The first is DP’s failure to disclose Coffey’s conduct and its effects to any member of his family, or friends, until after he saw the December advertisement. He said he told his current partner, Peter, in about 1998 of the fact of the Coffey assaults. This, on his account, was the first time he had told anyone about Coffey’s behaviour. However, Peter was not called and given my reservations as to DP’s reliability I do not accept that this disclosure occurred. Otherwise, DP conceded that he told no one until he read the December advertisement. I am conscious that Mr Harrison, a friend called by DP, said that DP had mentioned the fact of being assaulted approximately five or six years ago. Whilst I accept his evidence generally, this evidence was imprecise and underwhelming. Moreover, it was inconsistent with DP’s own account. I think it far more likely that this conversation occurred in 2019, after DP read the December advertisement.
It is extraordinary that in the process of making the school abuse complaint to a Catholic redress body — with the help of two firms of solicitors — that DP did not mention Coffey’s actions. Indeed, it is puzzling in the extreme that on his own account the first disclosure of the Coffey abuse (apart from that to Peter — which I do not accept) was to a lawyer whom he had never met, by telephone, after reading the December advertisement.
Second, and, in my view, of greater significance, is DP’s concession that he did not inform any of his treating psychologists at WPS, Mr Lush, Ms Marr or Dr Pagano (who treated him from 2011), or his general practitioner, Dr Watson (who treated him from 2001), of the assaults by Coffey until after he had contacted his solicitors in January 2019 in response to the December advertisement. He was well aware that in a confidential setting these professionals were treating him for his psychological problems, their causes, and their effects upon him.
DP saw Dr Watson regularly and was prescribed antidepressant medication for his psychological condition. He saw the WPS psychologists on numerous occasions (over 40) and did not recount Coffey’s behaviour during these sessions. On the other hand, he informed these treating specialists and his general practitioner of many other events in his past life which he said had profoundly affected his psyche — particularly that of the violence of his father towards the family, the impact of the death of his parents, the school abuse, the death of his sister, his relationship with his partner and his bankruptcy.
It is of significance that in 2014 in his signed statement[6] concerning the school abuse — completed for the purpose of pursuing a claim for compensation with Towards Healing — DP attributed his manifest and significant psychological symptoms to the teacher’s prolonged abuse. He stated that, up until the time of the school abuse, he had led a “straightforward and quite normal” childhood. In cross-examination, he explained this omission by stating that he was ashamed to divulge the offending of Coffey.[7]
[6]Exhibit D9.
[7]T823-24.
Dr Pagano recounted a similar history in his 2015 report,[8] prepared at DP’s request, which supported DP’s claim for compensation about the school abuse. In the report, DP’s psychological problems (major depressive disorder, persistent depressive disorder, panic disorder and agoraphobia) were attributed to the school abuse with no mention of the Coffey assaults. Again, DP described to Dr Pagano a normal upbringing prior to the school abuse: “otherwise it was a relatively normal early childhood without significant trauma prior to his abuse at St Patrick’s School”.
[8]Exhibit D25.
I do not accept the explanation that DP was too “embarrassed and disgraced”[9] to mention the Coffey abuse to others (including his treating professionals). This may quite reasonably have accounted for his failure to do so as a child, teenager and for a significant part of his adult life. But as I have just stated, it does not square with his accounts to others of the cause of his problems and particularly to those professionals in a therapeutic confidential setting; nor does it sit comfortably with his first disclosure of the abuse — by telephone to a solicitor he had never met.
[9]T793.
Moreover, it is out of character with the person I saw and heard in the witness box who was quick to attribute blame to others for his misfortunes. I think that the real explanation is that advanced by the Diocese: that DP’s account is tailored to further the particular wrong which he perceived as the cause of his problems — whatever that might be at the time.
This selective approach of DP as to attribution of his psychological issues is also evidenced by his capacity to segregate parts of his life as it suits him and depending on the circumstances.
An example is his partnership with Peter running a café — ‘Muzza’s’ — between 2001 and 2004. Despite the fact that his claim is for destroyed earning capacity caused by the Coffey assaults, this enterprise was not mentioned in DP’s particulars of “past loss of earning capacity” which states that he was unemployed in 2001 and only commenced a café business in 2004. He did not mention ‘Muzza’s’ in his evidence-in-chief. In fact, he managed the business and did the cooking, with Peter occasionally helping out.[10] In cross-examination, he gave the following answers:
[10]T266; T860-63.
Counsel:DP, when you say this business, did you run any other business?
DP:Yes, I did.
Counsel:What was that called?
DP:That was with Peter.
Counsel:What was that called?
DP:It was Peter’s business in 2001.
Counsel:What was that called?
DP:Muzzas, m-u-z-z-a-s.
Counsel: What was that?
DP:It was a café as well.
Counsel:Where was that, was that in the same location at 49 Bakery Square?
DP:Yes. The reason why that has not been declared to you is because it was a partnership business.
Counsel:So you were in a partnership business with [Peter] from when to when?
DP:From 2001 til 2004, and then I moved into Bakery Square and put it in my name in 2004 to 2006.
Counsel:Muzzas business was a café, correct?
DP:Yes, that’s correct.
Counsel:And it was operated by you and [Peter] between 2001 and 2004?
DP:Correct.
Counsel:And what was the location?
DP:Um, it was in Bacchus Marsh.
Counsel:Where abouts in Bacchus Marsh?
DP:Main Street, Bacchus Marsh.
Counsel:And did you – you have not declared that in terms of any – in this proceeding before now, is that correct, you’ve not told anyone about that?
DP:I have not told because that is a business co-ownership between me and [Peter].
Counsel:Yes?
DP:So all I was asked to declare was what I [owned] for myself.[11]
[11]T859.
Indeed, in this litigation, in the history initially provided to Associate Professor Quadrio (a consulting forensic psychiatrist engaged by DP’s lawyers) at a lengthy consultation in her rooms, he underplayed the effect of the school abuse and the death of his parents and emphasised the role of the Coffey assaults with the commencement of symptoms from that time. This was totally inconsistent with the accounts he gave to his treating psychologists as to the causes and onset of his symptoms.
Third, I do not accept the evidence of Associate Professor Quadrio that this delay in disclosing the abuse can be explained by studies of the responses of other victims of sexual abuse in similar settings. In her report of February 2020 (‘first report’), she said as follows:
In the first years of his relationship with Dr Pagano, DP did not disclose details of the sexual abuse. This is a typical avoidance in male survivors, it reflects that shame that is almost universal and it is a barrier to help seeking as has been the case with DP.
Putting aside the basic proposition that each case turns on its own facts, Associate Professor Quadrio’s opinion was based on one (admittedly lengthy) interview with DP at her rooms and DP’s statement. DP’s solicitors elected not to provide the Associate Professor with any material which might have assisted her at this consultation, such as reports or notes from the treating general practitioner, or the psychologists.[12] Nor did they provide any material that accompanied his claims for compensation from the New South Wales government, TAC and Towards Healing in respect of other unrelated insults to his psyche.
[12]The only information given to the Associate Professor was a statement of DP made in November 2019.
The Associate Professor did not seek any additional information and simply relied upon DP’s word as to the cause of his problems and the asserted basis for the delay in disclosing the Coffey allegations. In these circumstances, reliance upon generalised propositions are ill-conceived and do not substantiate the opinion she ultimately provided.
Moreover, it was not just in “the first years” that DP did not disclose the fact of the assaults to Dr Pagano. He did not tell Mr Lush or Ms Marr of the fact or the details. He did not disclose any information about Coffey’s assaults (not just omitting details) until after he had contacted the solicitors in early 2019, some five years after Dr Pagano commenced treating him. This was in circumstances where Dr Pagano had on two separate occasions provided reports supporting claims for compensation relating to depression and anxiety arising from the school abuse and the death of his parents.
I shall return to this when I deal with the assessment of damages, but the end result is that I cannot be satisfied that the Associate Professor had anything like a true picture of DP and this undermines any confidence I could have in her opinion.
Fourth, I formed the distinct view that DP had, at least to a layman’s perception, a close to obsessive personality. His behaviour in relation to the investigations concerning the death of his parents demonstrates this starkly. It is not at all clear what triggered his crusade, but what is apparent is that the goalposts kept shifting. Initially (and still today), he suspected that his father (who he regarded as a violent man) had deliberately driven into the path of an oncoming vehicle with the intention of killing his mother and committing suicide. Then he turned his attention to the construction of the road and blamed the Mains Road Authority in New South Wales for the accident. This crusade continued to the point of him writing a number of letters to Members of Parliament and eventually meeting with the responsible Shadow Minister in Sydney. As I see it, this trait colours his perception of events and causes him to focus on a particular episode in his life which he sees as the cause of his problems.
Fifth, I also have the distinct impression that DP is prepared to blame others for what he sees as his life’s tragedies or misfortunes, as suggested by the Diocese. He blamed his sister for failing to make a TAC claim for him in relation to the death of his parents. Of course, at the time he was of majority and could have made the application himself, but to this day he sees her as the perpetrator of this injustice. He blames his father for his mother’s death, notwithstanding the coroner’s finding that it was the other driver who was responsible. He blamed the school abuse and later, after reading the December advertisement, he blamed the Coffey assaults as the root cause of his life problems. Even during the trial he accused Dr Pagano of unlawfully disclosing information to the Court about his condition and said he would terminate the doctor’s engagement.
Sixth is the failure by DP to call several relevant medical witnesses whom it could reasonably be expected would be called, given the challenge to his account of both the immediate and long-term effects of the assaults. Neither Dr Pagano (or any of his predecessors at WPS) nor Dr Watson were called to support his case as to the cause of his psychological problems or the effects of the Coffey assaults. There was no question of unavailability. Not only is a Jones v Dunkel[13] inference available based on that failure but also that described by Lord Mansfield in Blatch v Archer.[14] I shall return to this in more detail when I deal with the assessment of damages.
[13](1959) 101 CLR 298.
[14](1774) 98 ER 969.
Indeed, there is a yawning chasm in terms of corroborative evidence of DP’s account: no family member; no partner; no treating doctor; no treating psychologist. If there were any immediate or delayed psychological consequences of the Coffey assaults during his childhood or teen years then family or close friends could have reasonably been expected to be called — especially given the attack on his reliability by the Diocese. No one gave before and after evidence. The closest in time to the assaults was Ms Margaret Jago, who first met DP as a fellow student after the assaults — her evidence simply confirmed some of the childhood issues that DP experienced.
The end result is that I have considerable reservations to the point of substantive doubt about most of the evidence of DP as to the effects of the Coffey assaults upon him. Absent corroboration or a soundly drawn inference from the evidence, I cannot be satisfied that his personal account of the trials and tribulations that he now attributes to those assaults meets the requisite standard of proof.
However, as will become apparent, I do not have the same concerns about his account of the Coffey assaults and the circumstances in which Coffey regularly visited the family home. This is for two reasons. First and primarily, the evidence of the other boys (discussed in detail in a moment) who were abused by Coffey strongly corroborates the account of DP both as to Coffey’s ‘MO, as well as the manner of the assaults. Second, DP’s evidence on this issue rings true — it does not appear to be exaggerated and has remained generally constant since he disclosed it in 2019.
Was DP assaulted by Coffey?
Before I go to the alleged circumstances surrounding each assault, I think it helpful to restate three simple but sometimes overlooked propositions.
First, DP carries the onus of proof: he is required to prove his case on the balance of probabilities, both as to the happening of the assault(s) and the consequences that may translate into an award of damages.[15]
[15]Evidence Act 2008 s 140 (‘Evidence Act’).
Second, the fact that these alleged events occurred nearly 50 years ago when DP was five years of age is particularly relevant. Juries in criminal trials are instructed that, where a delay has been shown to inflict a forensic disadvantage on an accused, they must take the forensic disadvantage into account when considering the evidence.[16] These disadvantages were spelt out by McHugh J in Longman v The Queen:[17]
The fallibility of human recollection and the effect of imagination, emotion, prejudice and suggestion on the capacity to “remember” is well documented. The longer the period between an “event” and its recall, the greater the margin for error. Interference with a person’s ability to ”remember” may also arise from talking or reading about or experiencing other events of a similar nature or from the person’s own thinking or recalling. Recollection of events which occurred in childhood is particularly susceptible to error and is also subject to the possibility that it may not even be genuine …
No matter how honest the recollection of the complainant in this case, the long period of delay between her formal complaint and the occurrence of the alleged events raised a significant question as to whether her recollection could be acted upon safely. The likelihood of error was increased by the circumstances in which the complainant said the incidents occurred. The opportunity for error in recalling, twenty years later, two incidents of childhood which are alleged to have occurred as the complainant awoke, and then pretended to be asleep, are obvious. Experience derived from forensic contests, experimental psychology and autobiography demonstrates only too clearly how utterly false the recollections of honest witnesses can be …
To the potential for error inherent in the complainant’s evidence must be added the total lack of opportunity for the defence to explore the surrounding circumstances of each alleged offence. By reason of the delay, the absence of any timely complaint, and the lack of specification as to the dates of the alleged offences, the defence was unable to examine the surrounding circumstances to ascertain whether they contradicted or were inconsistent with the complainant’s testimony.[18]
[16]Jury Directions Act 2015 s 39.
[17](1989) 168 CLR 79.
[18]Ibid [107–8] (citations omitted).
Third, in contradistinction to the second point, it is well accepted that delay in making a complaint is not inconsistent with the credibility of the complainant’s account. In the criminal law this is reflected by s 53 of the Jury Directions Act 2015. In giving directions to a jury, a trial judge may advert to many reasons why a victim of sexual assault may delay or hesitate in complaining about such an offence. For instance: ignorance about the nature, quality and character of the act performed; feelings of powerlessness; a fear of family dissolution or punishment for the offender; having been sworn to secrecy, or feeling compelled to secrecy, by threats of harm to themselves or other people; feelings of responsibility, guilt or blameworthiness for the acts that occurred; feelings of shame or embarrassment; a fear of bringing disgrace to the family; or a fear of not being believed.
All these considerations (on both sides of the ledger) hold good for judges in their determination of the facts of a particular civil case.
The first assault
DP said that Coffey was a regular visitor to his parents’ house. He recounted that, in or around 1970–1971, “there was [sic] marital problems in the family. Coffey used to come around … to talk to my parents”.[19] DP said that on about five or six occasions Coffey had visited DP in his bedroom.[20]
[19]T311.
[20]T316.
He said that the first assault by Coffey occurred at the wake of his paternal grandmother, which was held at his family home at some time in the early part of 1971.[21] In cross-examination, DP said that it occurred in March or April of that year.[22]
[21]T318.
[22]T811–12.
During the evening, DP became tired; Coffey offered to put him to bed: “He put me over his shoulder and carried me into the bedroom and … slapped me on the bum [on] the way in”[23] using two “forceful slap[s]”.[24]
[23]T320.
[24]T322.
Once in DP’s bedroom, Coffey put him to bed “under the sheets” and sat on the edge of the bed talking to DP while he “dozed off”. DP then “woke up to find [Coffey’s] hand under the sheets fondling with my … personal parts”, meaning his penis and “ball area”, inside the fly of his pyjama pants. [25] This continued for five minutes or so, after which Coffey said, “Oh we’ll be all right”, and returned to the party still going in the lounge room of the house.[26] DP went back to sleep.
[25]T323.
[26]T324.
DP and Coffey were alone during this episode. He did not tell his mother or anyone else what had occurred.
The second assault
DP said that Coffey assaulted him on a second occasion on Boxing Day 1971 (also when DP was five years old).
Coffey was again visiting the family home. DP took him out to the backyard to show him an “Indian tent” that he had received for Christmas. DP climbed into the tent and Coffey followed him into it. Inside the tent Coffey asked:
…basically, “Do you like what Santa brought you? Is it a good present?” and he proceeded to lift my shirt and tickle me on the stomach down towards the … bottom region of my body … towards my … genital region of my body, as far down as below the belly button.[27]
The tickling continued for three minutes or so, at which point DP yelled out for his mother, who was outside the tent. DP then left the tent. When his mother asked him what was wrong, DP replied, “Oh, can I just get out of here please?”.[28]
[27]T327.
[28]T327.
DP did not tell his mother nor anyone else in his family about this second assault by Coffey.
The tendency evidence
On a preliminary application as to the admissibility of tendency evidence under s 97 of the Evidence Act 2008, I ruled that, collectively, extracts from the statements of nine witnesses, who were assaulted by Coffey as young boys, were evidence of his tendency to:
(a) have a sexual interest in young Catholic boys who came into his orbit when he was assistant parish priest in the Western District of Victoria; and
(b) act on that interest by physically interacting with, to the point of assaulting, such young Catholic boys.[29]
[29]DP (a pseudonym) v Bishop Bird [2021] VSC 453.
Accordingly, the extracts were tendered at the trial.[30] A table summarising the allegations is contained within the ruling and is reproduced below (with some minor amendments):
[30]Exhibit P7.
DESCRIPTION OF ALLEGED CONDUCT DATE TIME PLACE CIRCUMSTANCES WITNESS(ES) 1. A boy aged 6–7 years was sexually abused by Coffey including in the boy’s home during a visit by Coffey. On each occasion Coffey put his hands down the boy’s pants, kneaded his buttocks and rubbed around his anus. 1960–1963 Various Coffey’s mother’s home in Ballarat; the boy’s home in Ballarat. In the course of ‘horseplay’ between Coffey and the boy and in the context of Coffey’s pastoral work in the parish. Trevor Tagilabue. 2. [Reference to Number 2 has been removed.] 3. A boy aged 6 years was sexually abused by Coffey in the boy’s home. Coffey put his hands down the boy’s pants, fondled his genitals and pushed his finger upon the boy’s anus. 1963 Evening The boy’s home in Terang. In the course of ‘horseplay’ between Coffey and the boy and in the context of Coffey’s pastoral work in the parish. Michael Glennen
— Deceased4. A boy aged 8 years was sexually abused by Coffey at the boy’s home. Coffey put his hands down the boy’s pants, pretended to smack him and pushed his finger into the boy’s anus. 1963 Evening The boy’s home in Terang. In the course of ‘horseplay’ between Coffey and the boy and in the context of Coffey’s pastoral work in the parish. ‘GMP’
5. A boy in Years 3–6 was sexually abused by Coffey at St Patrick’s School, Port Fairy and the sacristy of the Port Fairy Church. Coffey grabbed the boy when naked in the shower and fondled and rubbed his penis and penetrated the boy’s anus with his finger. During altar boy service, Coffey held the boy from behind, placed his hand in the boy’s pants and fondled his penis and testicles. The boy saw Coffey touching other boys in the shower after football. 1963–1967 Various Sports change rooms; sacristy of the Port Fairy. Church. Following school football games, during altar boy service and in the context of Coffey’s pastoral work in the parish. ‘DJ’ 6. A boy in Years 3–6 was sexually abused by Coffey in the sacristy of the Port Fairy Church, at the boy’s home, and at St Patrick’s School, Port Fairy. During altar boy service, Coffey held the boy from behind, pressed his erect penis into the boy’s back, and placed his hand in the boy’s pants and fondled his buttocks. Following a football competition, Coffey grabbed the boy when naked in the shower and rubbed his thighs. The boy saw Coffey touching other boys in the showers after football. 1965–1968 Various Sports change rooms; the boy’s home in Yambuk; sacristy of the Port Fairy Church. While the victim was engaged in altar boy duties, during a visit by Coffey to the boy’s home to see his parents, and in the showers following a football game, and in the context of Coffey’s pastoral work in the parish. ‘MJG’ 7. A boy in Year 2 was sexually abused by Coffey at St Patrick’s School, Port Fairy. The boy was directed to attend Coffey in a room at the School, where Coffey placed his hand in the boy’s pants and fondled his penis. 1966 During school hours St Patrick’s School, Port Fairy. When the boy was directed by a nun at the School to attend Coffey in a room at the School, and in the context of Coffey’s pastoral work in the parish. ‘VRJ’ 8. A boy in Year 6 was sexually abused by Coffey at St Patrick’s School, Port Fairy. The boy was directed to attend Coffey in a room at the School, where Coffey spanked the boy’s bare bottom, rubbed his backside and anus and penetrated the boy’s anus with his finger. 1968 During school hours St Patrick’s School, Port Fairy. When the boy was directed by a nun at the School to attend Coffey in a room at the School, and in the context of Coffey’s pastoral work in the parish. ‘PFS’ 9. A boy aged
12–13 years was sexually abused by Coffey in the presbytery of St Joseph’s Church in Ouyen during school hours. Coffey spanked the boy’s bare buttocks and fondled his genitals. Coffey went on cross-country runs with the boy during lunchtimes on school days and the boy was required to change in the presbytery and be weighed by Coffey near the shower.1973–1974 During school hours Presbytery of St Joseph’s Church, Ouyen. The boy was sent to see Coffey in the presbytery by teachers. The boy was required to go on cross-country runs and to change and shower in Coffey’s bedroom in the presbytery, and in the context of Coffey’s pastoral work in the parish. Peter Lonergan 10. A boy aged about 13 years was sexually abused by Coffey while a pupil at St Joseph’s School, Ouyen at the presbytery of St Joseph’s Church, Ouyen. Coffey required him to change in Coffey’s bedroom after cross-country runs, weighed him while naked, and on at least four occasions made the boy lay on his bed and then rubbed the boy’s thighs and buttocks before forcefully penetrating the boy’s anus with his penis. 1975–1976 During school hours Presbytery of St Joseph’s Church, Ouyen. Following lunchtime cross-country runs while changing and showering in Coffey’s bedroom in the presbytery, and in the context of Coffey’s pastoral work in the parish. Bernard Healey
— Deceased.
With one exception, this body of evidence was not challenged by the Diocese. The exception was the evidence of Mr Bernard Healey, which was comprised of two statements — one made in 1998 and the other in 2007.
Mr Healey is deceased and his two statements related to Coffey were admitted under s 63 of the Evidence Act — “Exception — civil proceedings if maker not available”.
The Diocese argued that there were substantial inconsistencies between:
(a) the 1998 statement made by Mr Healey to a police investigator;[31] and
(b) the 2007 statement made by Mr Healey to Catholic Professional Standards.[32]
[31]Exhibit P7.
[32]Exhibit D21.
The Diocese contended that the discrepancies were such that no weight should be attached to Mr Healey’s evidence. I accept that there are several major inconsistencies as to the actions of Coffey and have disregarded Mr Healey’s evidence concerning Coffey’s conduct.
The following features of the other instances of abuse of the boys (excluding Mr Healey) were common to the account given by DP of his assaults by Coffey:
·The age of the alleged victims — all the boys were pre-pubescent or in early puberty, ranging from six to 13 years of age.
·All of the boys lived, or encountered Coffey, within the parish.
·A number of the alleged instances of abuse (four) took place during a visit to the boy’s home.
·A number of the boys (five) described Coffey putting his hand into the boy’s pants and fondling his genitals and/or anus and/or penetrating his anus.
·A number of the boys (three) described Coffey “smacking” or “spanking” the boy’s buttocks.
Only two of the eight boys informed an adult of the abuse at or around the time it occurred.
Finding as to the occurrence of the assaults
The Diocese’s position was essentially to put DP to his proof. Senior counsel urged me to apply a “critical and cautious approach”[33] in assessing the evidence of DP and contended that on the balance of probabilities I could not be satisfied that either assault occurred.[34]
[33]T1250.
[34]T1280.
However, it was not suggested either to DP in cross-examination or in final submissions that DP was lying in relation to his general description of the assaults. Nor was the tendency evidence of eight of the nine boys challenged.
That, of course, does not relieve DP of the need to prove the happening of the assaults to the requisite standard.[35]
[35]Evidence Act s 140.
Notwithstanding the failure to call any family member who was present on either occasion, I am satisfied to the requisite standard that DP was assaulted by Coffey in the manner he alleges. His account of each incident rings true, it does not appear to be exaggerated, and, most importantly, it is strongly corroborated by the tendency evidence.
I do not accept the Diocese’s submission that relatively minor discrepancies in DP’s account of the first assault undermines his evidence as a whole. This is to be expected when recounting in detail events now 50 years in the past. In general terms there is no significant inconsistency between his evidence and other versions that he has given. In my view, the account given by DP in evidence is plausible and sits conformably with the description of other assaults perpetrated by Coffey on young boys — particularly those involving smacking of the buttocks.
Subject to the following qualification, the first assault is made out as alleged by DP.
I am not satisfied that the first assault took place at a wake for DP’s grandmother. DP’s evidence was that the “wake” was held several months after the death of his grandmother at between 8:00pm and 8:30pm. There was lots of drinking, music and DP’s extended family were there on holidays.[36]
[36]T251; T319-20.
Prior to giving evidence, DP in several out of court statements described the gathering as a “party”. In examination-in-chief, DP described the first assault by Coffey as having taken place in March or April at an “evening party” at home with extended family in attendance “.[37] In cross-examination, he stated “it was only the adults that were… allowed to come to the party”.[38]
[37]T318-19; T807.
[38]T808.
Associate Professor Quadrio in her first report notes that the assault occurred at “one of the regular parties at [DP’s family’s] house”.[39] The report of Dr Jager also describes the first assault as a “party”.[40] Both these accounts were based on DP’s history to the doctors.
[39]Exhibit P11.
[40]Exhibit D19.
It is highly uncommon for a wake to be held four months after the death. The out-of-court statements militate against acceptance of DP’s description of a wake.
I am ,therefore, not satisfied that the first assault took place at a wake for his grandmother; more likely it was a social gathering at the family home attended by Coffey.
In relation to the second assault, the Diocese again contended that there were such discrepancies in DP’s description that I should be satisfied that there was a significant exaggeration, at the least, by DP in his description of the actions of Coffey. Indeed, the Diocese went on to submit that this interaction between Coffey and DP did not constitute an assault.
I reject that contention as I do the submission as to the veracity of DP’s account of this incident.
The substance of the Diocese’s complaint went to the nature of the “tickling” engaged in by Coffey and whether it was or was not sexual in nature.
DP at no time suggested that Coffey had actually touched his genitals during this assault. Whether or not the tickling proceeded below DP’s belly button is, it seems to me, of no real consequence notwithstanding the Diocese’s urging to examine every minute detail of DP’s account.
The short point is that I accept that Coffey for several minutes and within the confines of the tent tickled DP on and around the stomach including below his belly button and this constituted an assault.
The second assault is also made out as alleged by DP.
Is the Diocese vicariously liable for the assault(s) of DP by Coffey?
In 1966, Coffey was appointed by the then Bishop of Ballarat, James O’Collins (‘Bishop O’Collins’), as an assistant priest to Father O’Dowd, the parish priest of St Patrick’s.[41] Coffey was engaged in this role at the time of the assaults in 1971.[42]
[41]Paragraphs [5] and [6] of the defence of the Diocese.
[42]Ibid.
The Diocese admitted that during 1971 the Diocese, through the Bishop, appointed priests to parishes within the Diocese including St Patrick’s, Port Fairy,[43] and that:
Father Coffey’s duties as a priest at the church and in the diocese included the provision of pastoral guidance and support and spiritual guidance to members of the congregation that worshipped at the church. [44]
[43]Paragraphs [3] and [4] of the defence of the Diocese.
[44]Paragraph [7] of the defence of the Diocese.
However, the Diocese, both in its defence and its conduct in the trial, denied that the Diocese was vicariously liable for Coffey’s conduct as a Catholic priest.[45]
[45]Paragraph [43] of the defence of the Diocese.
This dispute, as I see it, raises two fundamental and closely inter-related questions.
First, was the relationship between Coffey and the Diocese or Bishop such that it gives rise to vicarious liability on the part of the Diocese for Coffey’s conduct?
Simply put (and I hope I do no disservice to counsels’ detailed submissions) DP says that, following authority in the United Kingdom and Canada as well as the decision in Prince Alfred College Inc v ADC[46] in this country, the Diocese is liable irrespective of whether Coffey was its employee. A finding of vicarious liability is not limited by any lack of formal employment indicia such as a written contract. It should be determined by reference to a number of the factors identified by the High Court in Hollis v Vabu Pty Ltd[47] in terms of the totality of the relationship between the Diocese and Coffey.
[46](2016) 258 CLR 134 (‘Prince Alfred College’).
[47](2001) 207 CLR 21, [41] – [45] (‘Hollis’).
The Diocese, in response, contends that unless it is demonstrated that a priest is an employee of the Diocese then it cannot be vicariously liable. That, it is said, is the end of the inquiry: the High Court decision in Sweeney v Boylan Nominees Pty Ltd[48] prevents an Australian court (at least at this level) from considering vicarious liability outside an employment scenario. The Diocese says that the High Court has made clear that the distinction between employee and independent contractor is “critical” to the determination of vicarious liability and has rejected suggestions that a less categorical approach should be adopted. This, the Diocese says, means that absent an affirmative conclusion as to the existence of an employment relationship no finding of vicarious liability is open. The Diocese submits, and I accept, that s 7(2)(b) of the Legal Identity of Defendants (Organisational Child Abuse) Act 2018 does not address the issue of vicarious liability and cannot of itself result in attribution of Coffey’s unlawful conduct to the Diocese.
[48](2006) 226 CLR 161 (‘Sweeney’).
Second, if there is a relationship that gives rise to vicarious liability, is 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?
DP says that it is. Consistent with Prince Alfred College[49] and United Kingdom and Canadian cases, the relationship between Coffey and DP’s family and the circumstances of the assaults upon DP are sufficient to establish liability on the part of the Diocese. The Diocese contends that howsoever the relationship is categorised it cannot be held liable for Coffey’s unlawful acts, which were wholly outside his clerical duties.
[49](2016) 258 CLR 134, [81].
I should here mention the following. There does not appear to be a binding decision in this country on the issue of whether a diocese, or bishop, is vicariously liable for the actions (lawful or unlawful) of a priest appointed by a bishop.
Lord Steyn, in Lister v Hesley Hall Ltd,[50] said of the doctrine of vicarious liability:
Vicarious liability is legal responsibility imposed on an employer, although he is himself free from blame, for a tort committed by his employee in the course of his employment. Fleming observed that this formula represented “a compromise between two conflicting policies: on the one end, the social interest in furnishing an innocent tort victim with recourse against a financially responsible defendant; on the other, a hesitation to foist any undue burden on business enterprise”.[51]
[50][2002] 1 AC 215 (‘Lister’).
[51]Ibid [14], quoting John G Fleming, The Law of Torts (LBC Information Services, 9th ed, 1998) 409–10.
That observed, this is not the place to discuss the jurisprudential basis for vicarious liability being imposed upon a party who may have no knowledge of, or plays no part in, the actions of a person who causes harm to another.[52] It is authoritatively established (and has been for over a hundred years) that in tort an employer is vicariously liable for the conduct of an employee acting within the course of their employment (and, on occasions, outside it). On the other hand, a principal is not vicariously liable for the actions or omissions of an independent contractor.[53]
[52]In the United Kingdom, see the discussion in Mohamud v Wm Morrison Supermarkets plc [2016] AC 677, [10]–[11], [17] (Lord Toulson). In Australia, see Scott v Davis (2000) 204 CLR 333, [106]–[122] (McHugh J), [123]–[239] (Gummow J) (‘Scott’).
[53] Scott (2000) 204 CLR 333, [18]–[33]; Sweeney (2006) 226 CLR 161, [12]; Day v The Ocean Beach Hotel Shellharbour Pty Ltd (2013) 85 NSWLR 335, [18]–[21].
As a starting point, it is clear that there is no presumption in Australian law that a religious cleric is not or cannot be an employee of a religious organisation or church.[54]
[54]Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95.
Whether or not a priest can be said to be an employee of his or her diocese or bishop turns on the facts of the case, in particular, the manner of the priest’s appointment and the nature or structure of the relevant religious organisation.[55]
[55]Ibid [31].
In Humberstone v Northern Timber Mills,[56] Dixon J said:
The question is not whether in practice the work was in fact done subject to a direction and control exercised by an actual supervision or whether an actual supervision was possible but whether ultimate authority over the man in the performance of his work resided in the employer so that he was subject to the latter’s order and directions.[57]
[56](1949) 79 CLR 389.
[57]Ibid [404].
Subsequently, in Stevens v Brodribb Sawmilling Co Pty Ltd,[58] Wilson and Dawson JJ (with whom Brennan and Deane JJ agreed) held that the existence or absence of control in the master–servant sense is no longer a reliable indicator of an employment relationship given that:
[I]n modern conditions a person may exercise personal skills so as to prevent control over the manner of doing his work and yet nevertheless be a servant.[59]
Further, in the same case Mason J held:
[T]he common law has been sufficiently flexible to adapt to changing social conditions by shifting the emphasis in the control test from the actual exercise of control to the right to exercise it, ”so far as there is scope for it”, even if it be “only in incidental or collateral matters” … Furthermore, control is not now regarded as the only relevant factor. Rather it is the totality of the relationship between the parties which must be considered.[60]
[58](1986) 160 CLR 16 (‘Stevens’).
[59]Ibid [10].
[60]Ibid [19] (citations omitted).
So, the modern test of control has “[shifted] the emphasis … from the actual exercise of control to the right to exercise it”, including even in “incidental or collateral matters”.[61] This “modern approach” requires a holistic assessment of the practical reality of the relationship. The court must “have regard to a variety of criteria”,[62] of which control is one. This is exemplified by the High Court’s decision in Hollis.
[61]Ibid, quoting Zuijs v Wirth Bros Pty Ltd (1955) 93 CLR 561 [571].
[62]Ibid [9].
In Hollis, an (unidentified) bicycle courier struck down and injured the plaintiff, Mr Hollis, while working for the defendant courier company, Vabu Pty Ltd (‘Vabu’). The issue, on which the vicarious liability of Vabu turned, was whether the courier was an employee of Vabu or an independent contractor.
The majority (Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ) said of the rationale for the principle of vicarious liability:
In Bazley v Curry, the Supreme Court of Canada saw two fundamental or major concerns as underlying the imposition of vicarious liability. The first is the provision of a just and practical remedy for the harm suffered as a result of the wrongs committed in the course of the conduct of the defendant’s enterprise. The second is the deterrence of future harm, by the incentive given to employers to reduce the risk of accident, even where there has been no negligence in the legal sense in the particular case giving rise to the claim.
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 persons 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 Bushley & 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”.[63]
[63]Hollis (2001) 207 CLR 21, [41]–[42] (emphasis added) (citations omitted).
The majority held that the courier was an employee, due to the following features:
·The unskilled nature of the labour, not needing special qualifications: “A bicycle courier is unable to make an independent career as a free-lancer or to generate any ‘goodwill’ as a bicycle courier. The notion that the couriers somehow were running their own enterprise is intuitively unsound”.[64]
·The extent to which Vabu controlled its couriers’ manner of work: the couriers had fixed start times and had no say in the jobs they were assigned. They could not refuse work on pain of termination.
·The importance of this control, because of the centrality of the couriers’ work, to Vabu’s business: “Vabu’s whole business consisted of the delivery of documents and parcels by means of couriers. Vabu retained control of the allocation and direction of the various deliveries. The couriers had little latitude … Vabu’s business involved the marshalling and direction of the labour of the couriers, whose efforts comprised the very essence of the public manifestation of Vabu’s business”.[65]
·The extent to which the couriers outwardly represented Vabu: “[C]ouriers were presented to the public and to those using the courier service as emanations of Vabu”.[66] The couriers wore uniforms bearing Vabu’s logo and were forbidden from wearing certain attire while working.
·Vabu’s control over financial arrangements: Vabu produced pay summaries which couriers could dispute, but only within a certain time. There was no scope for negotiating remuneration. Vabu also arranged insurance for couriers and deducted the cost of this from their pay.
[64]Ibid [48].
[65]Ibid [57].
[66]Ibid [50].
Other potential indicia of employment that have been identified by courts include the following:
·The employer has the right to the exclusive services of the employee.[67]
·The provision of paid holidays or sick leave.[68]
·The deduction of income tax from the employee’s pay.[69]
·The right to suspend or dismiss the employee.[70]
·The employee cannot delegate or subcontract their work without reference to the employer.[71]
·The employee does not have a separate place of work or advertise their services to the world at large.[72]
·The employee does not provide and maintain their own significant tools or equipment.[73]
·The employee is paid regular wages and superannuation payments are made for them, rather than providing invoices for each job performed.[74]
[67]Abdalla v Viewdaze Pty Ltd [2003] AIRC 504, [34] (‘Abdalla’).
[68]Ibid.
[69]Stevens (1986) 160 CLR 16 [9].
[70]Ibid [11].
[71]Ibid [13].
[72]Abdalla [2003] AIRC 504, [34].
[73]Ibid; Sweeney (2006) 226 CLR 161, [73]. The emphasis in this feature is on the significance, meaning the cost or complexity, of the equipment. In Hollis, the majority differentiated in this regard between motorcycle couriers and bicycle couriers working for Vabu, all of whom provided their own vehicles. The former had been held to be independent contractors in a previous proceeding, while the High Court majority found that the New South Wales Court of Appeal had placed too much weight on this factor in deeming the bicycle couriers not to be employees, given the relatively low cost and other, non-work related uses of a bicycle.
[74]Sweeney (2006) 226 CLR 161, [54].
Three years after Hollis in New South Wales v Lepore,[75] the High Court considered the question of vicarious liability of a school authority for the sexual abuse of a student by a teacher. The separate judgments are difficult to reconcile and the decision in Prince Alfred College has resolved much of that dilemma. I will not explore it further.
[75](2003) 212 CLR 511 (‘Lepore’).
The boundaries of the employment relationship and that of independent contractor and principal were considered by the High Court in 2006 in Sweeney. It is this decision (and subsequent decisions applying its ratio) that the Diocese relied upon to argue that the only relationship which could give rise to vicarious liability was that of employer and employee. It needs close consideration.
In Sweeney, a customer at a convenience store was injured when the door of a refrigerator containing milk cartons fell and struck her. She sued the company with responsibility for servicing and maintaining the refrigerator. The refrigerator door had been recently repaired, negligently, by a mechanic who was engaged by the company as a contractor, and not an employee. The mechanic invoiced the company for the work he did for it and for parts he used. He arranged his own workers’ compensation and public liability insurance. His van advertised his own business, and the company did not provide him with a uniform, tools, equipment or vehicle, nor did it exercise any control over the way in which he carried out his work.
Concluding that the mechanic was not an employee of the service company,[76] the Court considered the question of whether vicarious liability could nevertheless arise given the mechanic’s relationship with the service company:
Whatever may be the justification for the doctrine, it is necessary always to recall that much more often than not, questions of vicarious liability fall to be considered in a context where one person has engaged another (for whose conduct the first is said to be vicariously liable) to do something that is of advantage to, and for the purposes of, that first person. Yet it is clear that the bare fact that the second person’s actions were intended to benefit the first or were undertaken to advance some purpose of the first person does not suffice to demonstrate that the first is vicariously liable for the conduct of the second. The whole of the law that has developed on the distinction between employees and independent contractors denies that benefit or advantage to the one will suffice to establish vicarious liability for the conduct of the second. But there is an important, albeit distracting, consequence that follows from the observation that the first person seeks to gain benefit or advantage from engaging the second to perform a task. It is that the relationship is one which invites the application of terms like “representative”, ”delegate” or “agent”. The use of those or other similar expressions must not be permitted to obscure the need to examine what exactly are the relationships between the various actors.[77]
[76]Sweeney (2006) 226 CLR 161, [6].
[77]Ibid [13].
The majority also said:
Three recent decisions of this Court have examined questions of vicarious liability: Scott v Davis, Hollis v Vabu Pty Ltd and New South Wales v Lepore. It is unnecessary to rehearse all that is established by those decisions. It is important, however, to begin examination of the issues in this appeal from a frank recognition of some considerations that are reflected in those decisions. First, “[a] fully satisfactory rationale for the imposition of vicarious liability in the employment relationship has been slow to appear in the case law”. Secondly, “the modern doctrine respecting the liability of an employer for the torts of an employee was adopted not by way of an exercise in analytical jurisprudence but as a matter of policy”. That may suggest that the policy to which effect was given by “the modern doctrine” is clearly identified, but, as is implicit in the first proposition, the policy which is said to lie behind the development of the modern doctrine is not and has not been fully articulated. Thirdly, although important aspects of the law relating to vicarious liability are often traced to the judgment of Parke B in Quarman v Burnett, neither in that decision, nor in other early decisions to which the development of the doctrine of vicarious liability may be traced, does there emerge any clear or stable principle which may be understood as underpinning the development of this area of the law. Indeed, as is demonstrated in Scott, the development of the law in this area has not always proceeded on a correct understanding of the basis of earlier decisions.
Nonetheless, as the decisions in Scott, Hollis and Lepore show, there are some basic propositions that can be identified as central to this body of law. For present purposes, there are two to which it will be necessary to give principal attention. First, there is the distinction between employees (for whose conduct the employer will generally be vicariously liable) and independent contractors (for whose conduct the person engaging the contractor will generally not be vicariously liable). Secondly, there is the importance which is attached to the course of employment. Whether, as has recently been suggested, these, or other, considerations would yield a compelling and unifying justification for the doctrine of vicarious liability need not be decided in this matter. In particular, whether, as suggested, the justification for the doctrine of vicarious liability is found in an employer’s promise in the contract of employment to indemnify the employee for legal liability suffered by the employee in the conduct of the employer’s business is a large question which is better examined in the light of full argument.[78]
[78]Ibid [11]–[12] (emphasis added) (citations omitted).
And then, after considering earlier decisions of the Court, their Honours said:
But the wider proposition that underpinned the argument of the appellant in this case, that if A "represents" B, B is vicariously liable for the conduct of A, is a proposition of such generality that it goes well beyond the bounds set by notions of control (with old, and now imperfect analogies of servitude) or set by notions of course of employment.
These bounds should not now be redrawn in the manner asserted by the appellant. Hitherto the distinction between independent contractors and employees has been critical to the definition of the ambit of vicarious liability. The view, sometimes expressed, that the distinction should be abandoned in favour of a wider principle, has not commanded the assent of a majority of this Court.
In Scott, the majority of the Court rejected the contention that the owner of an aircraft was vicariously liable for the negligence of the pilot of that aircraft if the pilot operated the aircraft with the owner's consent and for a purpose in which the owner had some concern. The argument that “a new species of actor, one who is not an employee, nor an independent contractor, but an ‘agent’ in a non-technical sense” should be identified as relevant to determining vicarious liability, was rejected.
In Hollis, the Court amplified the application of the distinction between independent contractors and employees to take account of differing ways in which some particular enterprises are now conducted. As was said in the joint reasons:
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 persons to bear the cost of injury or damage to them which may fairly be said to be characteristic of the conduct of that enterprise.
But neither in Scott nor in Hollis, nor earlier in [Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co of Australia Ltd], was there established the principle that A is vicariously liable for the conduct of B if B ”represents” A (in the sense of B acting for the benefit or advantage of A). On the contrary, Scott rejected contentions that, at their roots, were no different from those advanced in this case under the rubric of ”representation” rather than, as in Scott, under the rubric “agency”. As was said in Scott of the word ”agent”, to use the word “representative” is to begin but not to end the inquiry.[79]
[79]Ibid [26]–[29] (citations omitted).
The Diocese contends that these passages conclusively dispose of DP’s argument as to the existence of vicarious liability outside an established employment relationship.
I will return to these submissions shortly. I think it helpful now, in light of the Diocese’s contention, to examine how the criteria for determining the existence of a relationship giving rise to vicarious liability have been developed in other Commonwealth jurisdictions. This is particularly so in the context of child abuse cases and the liability of dioceses/institutions for the actions of priests or clergy under their general control or direction.
In Hollis, the High Court considered with apparent approval the Canadian Supreme Court decision in Bazley v Curry,[80] an employer/employee case in which an employee sexually abused a child in the care of a residential children’s home. In Bazley, it was held that an employer should be held vicariously liable for the conduct of its employee where such conduct is sufficiently incidental to a risk to the community inherent in its business, and the risk eventuates and causes loss or damage to a member of the community.[81]
[80][1999] 2 SCR 534 (‘Bazley’).
[81]Ibid [22], [38].
McLachlin J (who delivered the lead judgment) identified the issue as follows:
The fundamental question is whether the wrongful act is sufficiently related to conduct authorized by the employer to justify the imposition of vicarious liability. Vicarious liability is generally appropriate where there is a significant connection between the creation or enhancement of a risk and the wrong that accrues therefrom, even if unrelated to the employer’s desires. Where this is so, vicarious liability will serve the policy considerations of provision of an adequate and just remedy and deterrence. Incidental connections to the employment enterprise, like time and place (without more), will not suffice.[82]
[82]Ibid [41(2)] (emphasis in original).
Her Honour then set out a list of factors (non-exhaustive) relevant in determining whether vicarious liability exists in the particular case:
(a)the opportunity that the enterprise afforded the employee to abuse his or her power;
(b)the extent to which the wrongful act may have furthered the employer’s aims … ;
(c)the extent to which the wrongful act was related to friction, confrontation, or intimacy inherent in the employer’s enterprise;
(d) the extent of power conferred on the employee in relation to the victim;
(e)the vulnerability of potential victims to wrongful exercise of the employee’s power.[83]
[83]Ibid [41(3)].
Applying these factors to cases of sexual abuse by employees of others, McLachlin J said:
[T]here must be a strong connection between what the employer was asking the employee to do (the risk created by the employer’s enterprise) and the wrongful act. It must be possible to say that the employer significantly increased the risk of harm by putting the employee in his or her position and requiring him [or her] to perform the assigned tasks.[84]
[84]Ibid [42] (emphasis in original). This passage was subsequently cited by the Supreme Court of the United Kingdom in Various Claimants v Catholic Child Welfare Society [2013] 2 AC 1, [64] (‘Christian Brothers’).
Accordingly, since 2000, this is the test by which Canadian courts determine vicarious liability in sexual abuse cases irrespective of whether the perpetrator is or is not properly categorised as an employee. So, recently in BN v Anglican Church,[85] Menzies J applied the Bazley test in holding that an Anglican diocese was liable for sexual assaults of a young girl by a priest whilst at Sunday School.
[85][2020] MBQB 2.
Subsequently, a number of decisions of the Court of Appeal and Supreme Court of the United Kingdom have considered the application of the Bazley test in the United Kingdom in determining whether a cleric may be treated as if he was an employee (or quasi-employee) of a diocese or institution. And whether that body should be held vicariously liable for his conduct where it involved unlawful physical, emotional or sexual abuse outside the scope of his usual duties.
There are some minor caveats as to the application of these decisions. First, the conclusions of the respective Courts were, to a certain extent, dependent on the evidence adduced at trial as to the relationship between the particular diocese or organisation and the cleric. Second, as will be discussed, the approach adopted in the United Kingdom differs somewhat to that in Canada; neither has been accepted authoritatively in this country.
In Maga v Archbishop of Birmingham,[86] decided in 2010, the claimant successfully sued a Catholic archdiocese for damages for personal injuries, arguing that the archdiocese was vicariously liable for his sexual abuse at the hands of a priest who lived and worked within its bounds. The priest had taken on particular responsibility as part of his duties for work involving young people, including organising “discos” (which were open to both Catholic and non-Catholic youths within the archdiocese), various clubs and football teams. The claimant, who was not a Catholic, came into contact with the priest when he was around 12 or 13 years of age by attending (at the priest’s invitation) one of the “discos”. From there, the claimant was engaged by the priest to do odd jobs around the presbytery, at a house privately owned by him, and, on one occasion, in the church itself. The abuse occurred mainly at the presbytery, but also at the priest’s house and in his car.
[86][2010] 1 WLR 1441 (‘Maga’).
At first instance, whilst it was accepted that “youth work” was part of the priest’s engagement as a cleric, it was held that the abuse was not sufficiently connected with the priest’s employment by the Church to render the archdiocese vicariously liable.
The Court of Appeal allowed the appeal, holding that the correct test for the vicarious liability of an employer laid down by Lord Steyn in Lister was satisfied: the abuse was “so closely connected with [the priest’s] employment” as a priest at the Church “that it would be fair and just to hold the [archdiocese] vicariously liable”.[87]
[87]Ibid [38] (Lord Neuberger MR), quoting Lister [2002] 1 AC 215, [28].
Lord Neuberger MR said the particular authority vested in the priest by the employer in such a case tightened the connection between employment and abuse:
[T]he progressive stages of intimacy were to my mind only possible because Father Clonan had the priestly status and authority which meant that no one would question his being alone with the claimant. It is this that provides the close connection between the abuse and what Father Clonan was authorised to do.[88]
[88]Ibid [84].
Two years later in Various Claimants v Catholic Child Welfare Society,[89] the Supreme Court of the United Kingdom considered the issue in the context of the liability of a Catholic institute for the unlawful conduct of brothers under its direction towards students at the institute.
[89][2013] 2 AC 1 (‘Christian Brothers’).
This was a class action brought by 170 men who had been sexually abused as children at a residential school for “boys in need of care” against two groups of defendants — the board of managers of the school who employed the teachers who committed the abuse, and the Institute of the Brothers of the Christian Schools (the ‘Institute’), a worldwide association of Catholic lay brothers from which the school’s teachers were drawn. The issue on appeal (both to the Court of Appeal and the Supreme Court) was whether the Institute had a sufficiently close connection to the abuse to satisfy the Lister test and should be held vicariously liable as well as the board of managers.
While this issue was readily determined in respect of the liability of the board of managers (due to the contract of employment between it and the teachers), both the Court of Appeal and the Supreme Court were required to consider the application of the Lister test where there was no clear-cut employer/employee relationship — such as that between a religious order or institution and a cleric.
Lord Phillips (with whom the other members of the Court agreed) formulated the following test:
(a) Is the relationship between the tortfeasor and the defendant such as to give rise to vicarious liability for the wrongdoing? That is, is the relationship, in its “essential elements”, sufficiently akin to that of employer/employee relationship?
(b) Is the abuse sufficiently connected to the tortfeasor/defendant relationship to make the defendant vicariously liable for the abuse?[90]
[90]Ibid [35], [47].
Lord Phillips said:
The relationship that gives rise to vicarious liability is in the vast majority of cases that of employer and employee under a contract of employment. The employer will be vicariously liable when the employee commits a tort in the course of his employment. There is no difficulty in identifying a number of policy reasons that usually make it fair, just and reasonable to impose vicarious liability on the employer when these criteria are satisfied: (i) the employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability; (ii) the tort will have been committed as a result of activity being taken by the employee on behalf of the employer; (iii) the employee’s activity is likely to be part of the business activity of the employer; (iv) the employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee; (v) the employee will, to a greater or lesser degree, have been under the control of the employer.[91]
[91]Ibid [35].
And subsequently added:
At para 35 above, I have identified those incidents of the relationship between employer and employee that make it fair, just and reasonable to impose vicarious liability on a defendant. Where the defendant and the tortfeasor are not bound by a contract of employment, but their relationship has the same incidents, that relationship can properly give rise to vicarious liability on the ground that it is “akin to that between an employer and an employee”.[92]
And also:
In the context of vicarious liability the relationship between the teaching brothers and the institute had many of the elements, and all the essential elements, of the relationship between employer and employees. (i) The institute was subdivided into a hierarchical structure and conducted its activities as if it were a corporate body. (ii) The teaching activity of the brothers was undertaken because the provincial directed the brothers to undertake it. True it is that the brothers entered into contracts of employment with the Middlesbrough defendants, but they did so because the provincial required them to do so. (iii) The teaching activity undertaken by the brothers was in furtherance of the objective, or mission, of the institute. (iv) The manner in which the brother teachers were obliged to conduct themselves as teachers was dictated by the institute’s rules.[93]
[92]Ibid [47].
[93]Ibid [56].
Brief mention should be made of a series of subsequent decisions of the Supreme Court of the United Kingdom which affirmed the Court’s reasoning in Christian Brothers and held definitively that vicarious liability may arise outside the formal boundaries of an employer/employee relationship by applying the criteria set out by Lord Phillips: Cox v Ministry of Justice,[94] Mohamud v Wm Morrison Supermarkets plc,[95] and Armes v Nottinghamshire County Council.[96]
[94][2016] AC 660 (‘Cox’).
[95][2016] AC 677.
[96][2018] AC 355.
It follows that I am able to more confidently accept inferences put by the Diocese and contrary to the evidence advanced on behalf of DP — namely that his psychological symptoms (if accepted) from an early age were not due to the Coffey abuse but related to the school abuse or, alternatively, that those symptoms at later points in time were caused by other trauma in his life.
I should mention that the Diocese produced a lengthy list of potential witnesses who were not called by DP. Most were peripheral family members or friends. Jones v Dunkel must be applied with a modicum of common sense — there was no genuine expectation that DP would call a cast of thousands who may, by accident or design, have rated a mention in the evidence.
The position in relation to the second class of evidence — that of the treating professionals — is different. It would have been natural and expected for DP to call both Dr Watson and Dr Pagano — in fact, both treated DP during the trial. Each could have given evidence as to whether DP suffers from any form of PTSD, and if so, its relationship to the Coffey assaults. They could also have given evidence as to the current state of the established conditions of anxiety and depression, their severity and any relationship to the Coffey assaults. This is particularly so with Dr Watson, who has seen DP for a period of nearly 20 years. The failure to call the treating general practitioner in those circumstances is stark.
On the other hand, despite their absence there is a significant body of material adduced from Dr Pagano and also from Ms Marr in the form of reports and communications which convey, at least, a picture of DP’s psychological problems, their asserted causes, the treatment of DP, and the treating professionals’ opinions. So, to that extent, the inference is not as powerful as that associated with the failure to call Dr Watson. Nevertheless, Dr Pagano’s opinion as to any causal connection between the Coffey assaults and the development of PTSD, or the other psychological symptoms experienced by DP, would have been of real relevance to a critical issue in the case and was not adduced.
I do not accept that the Diocese should have been expected to call Dr Pagano as part of its case. True it is that it served him with a subpoena, but that is irrelevant to the Jones v Dunkel test. One would have expected, and it would be natural for, the patient to call his or her treating doctor where there was a contest about diagnosis and causation. It would not have been natural or expected for the Diocese to call the treating professionals.
Findings as to the effects of Coffey’s assaults upon DP
DP carries the burden of proof on this issue, just as he does on the liability of the Diocese.
There are multiple problems with acceptance of DP’s case as to both the onset of psychological symptoms caused by the Coffey assaults and determining the relationship of his current symptoms to those assaults.
Ultimately, and for reasons I will explain in a moment, I reject DP’s case that his symptoms commenced at the time of the Coffey assaults or at any time prior to December 2018. I am, however, satisfied that once he read the December advertisement the memories of the Coffey assaults were revived and have since that time played, along with his other issues, a part in the production of his symptoms of depression and anxiety.
I will not repeat my findings as to DP’s reliability set out at [54] – [77].
But I will briefly emphasise several things that emerge from the material I have referred to.
First, DP’s account of the relationship between the Coffey assaults and the onset of lifelong symptoms attributable to them is squarely contradicted by several out-of-court statements made by him and histories to treating professionals which I have referred to. Not only did he not refer to the assaults, but he described a normal childhood up until the school abuse. In this regard, I accept the statements and reports of each of the psychologists, both as to the history given by DP and their opinions. These are treating professionals with no vested interest in the outcome of this litigation.
It is not just an omission of a reference to the Coffey assaults and his repeated description of a normal childhood up until the time of the school abuse; it is also significant that the statements of DP to his treating professionals and to various organisations emphasised the relationship of his major psychological issues to a totally different event or events and were nuanced or skewed to fit the context in which those statements were made.
Second, on the material adduced from the treating psychologists, there is no connection between the Coffey assaults and DP’s psychological condition. It cannot be overlooked that his current treating psychologist (who has seen him over 40 times) acting upon DP’s account to him opined in several comprehensive reports that DP’s complex psychological condition was due to causes other than the Coffey assaults.
Third, for reasons already expressed, I have little confidence in the opinions of the consultant psychiatrists who, in the main, relied upon an illusory picture of the effect of the Coffey assaults upon DP.
Even if I accepted Associate Professor Quadrio’s opinion as to the effect of the Coffey abuse, which I do not, it has significant limitations given the other factors which have impacted upon DP’s psych: —“Any and all traumas impacting on a young child have… the potential to compromise their functions”.[272] She described the school abuse as “significant”[273] and the family as “dysfunctional”.[274]
[272]T1016.
[273]T916.
[274]T966.
The result to this point is that the case for DP falls far short of establishing on the balance of probabilities that any psychological condition that he had (whatever its nomenclature) prior to December 2018 is related to the Coffey assaults.
Fourth, connected to the second point — and as just discussed — there is a powerful Jones v Dunkel inference pointing to a contrary conclusion, namely that, prior to December 2018, DP did not suffer from any psychological condition related to the Coffey assaults. It is far more likely that his psychological issues were related to the other factors in his life, particularly the school abuse, the death of his parents, the tribulations of his business and his relationship with his partner. I draw this inference with greater confidence given the failure to call Dr Watson and, to a lesser extent, Dr Pagano, for the reasons set out earlier. If either attributed his current symptoms (or those over recent years) to the Coffey assaults then surely they would have been called by DP.
Indeed, I conclude that when DP told Dr Pagano and the Towards Healing representative that he had enjoyed a normal childhood up until the school abuse that was, indeed, his perception at the time.
In Ho v Powell[275], Hodgson JA said:
In considering [whether the limited material which the court has is an appropriate basis on which to reach a reasonable decision], it is important to have regard to the ability of parties, particularly parties bearing the onus of proof, to lead evidence on a particular matter, and the extent to which they have in fact done so.[276]
Simply put, it was in DP’s power to quell the controversy as to the effects of Coffey’s unlawful assaults upon him by calling the professionals who had treated him for years and knew him well. This is particularly so given that he asserted that his whole life and his ability to engage in employment had been significantly diminished by Coffey’s behaviour. He instead called a forensic psychiatrist who saw him for the first time in 2020 and elected not to call the two treating professionals who had treated him for a combined total period in excess of twenty-five years. In addition, not one member of his family or his partner was called. The whole of the evidence and the onus of proof needs to be viewed in that light.
[275](2001) 51 NSWLR 572.
[276]Ibid, [15].
This consideration reinforces (if it was needed) the proposition that DP has not established to the requisite standard a causal link between the Coffey assaults and any psychological symptoms prior to December 2018.
I am, however, satisfied that since DP saw the December advertisement his psyche has been detrimentally affected by the reawakened memories of those two incidents. I accept the evidence of his friends that over the past three years he has been distressed when describing Coffey’s behaviour and that he ruminates over it.
The Diocese submitted, and I accept, that “his current crusade… is his blaming the symptoms and the experiences in relation to this [abuse] and that’s been a focus since 2019”.[277]
[277]T1328.
Indeed, this now appears to be his focus, just as the school abuse and the cause of the death of his parents were in the past. Dr Pagano and Ms Marr both reported DP’s focus on past events[278] and now, with reawakening (as I see it) of the memory of the Coffey assaults, this has become centre stage.
[278]Exhibits D2 and D23.
I appreciate that in reaching this conclusion there is no psychiatric opinion in direct support of it. I hope that the reason for that is apparent — neither psychiatrist had anything like the true picture and the treating psychologist and general practitioner were not called.
Whilst I regard the opinion of Dr Jager as less than satisfactory, I consider that he is right in ascribing some portion of DP’s current psychological symptoms to the Coffey assaults. I think that given DP’s personality Coffey’s conduct has, in a way similar to the close to obsessive behaviour demonstrated by him in relation to his parents’ deaths, become his focus and continues to play a part in his ongoing depression and anxiety.
But I repeat that I can only be satisfied that this dates from the time DP became aware of the Coffey assaults on other boys and then placed the matter in the hands of his solicitors. That, of course, is not to say that the effects of the Coffey assaults upon him are not a genuine cause of his current symptoms.
Endeavouring to anticipate the future course of his symptoms related to the Coffey assaults is difficult. Neither psychiatrist reached the conclusion I have reached. Associate Professor Quadrio did, however, say the following as to the effect of this litigation upon DP:
Litigation itself is very traumatising because of a lot people will have managed by deliberately trying to not think about it, remember it, talk about it, avoid any – avoid any triggers, and then becoming involved in litigation means you’ve got to tell the story, then begin reliving the experiences, and people can be seriously re-traumatised.
You never know how someone is going to react. They can be – they can be severely symptomatic in the immediate aftermath and make a good recovery, or they can go on and become extremely chronic, or every shade of grey in between.[279]
[279]T1012.
As best I can estimate and notwithstanding the removal of the litigation trigger, it is likely that the symptoms attributable to the Coffey assaults will persist for some time, if not indefinitely. This is consistent with the opinions of both Associate Professor Quadrio and Dr Jager — indeed this seems to be one of the few issues that they could agree upon. So, whilst I do not accept Associate Professor Quadrio’s evidence on attribution I think her prognosis as to the continuation of the symptoms of anxiety and depression can be accepted, particularly in light of DP’s longstanding symptoms — whatever the cause.
DP will remain aggrieved and will continue to blame Coffey (rationally or irrationally) for his actions and for what he perceives to be the effect upon his life, just as he did with fixing blame on others in relation to the school abuse and the death of his parents. This will translate into heightened anxiety and depression into the foreseeable future.
Whilst I accept that there will be other contributing factors to DP’s condition, I am reasonably satisfied that a cause of his ongoing symptoms is, and will be, the Coffey assaults.
Pain and suffering damages
I do not accept that DP suffered any form of PTSD as a result of the Coffey assaults. I reject Associate Professor Quadrio’s opinion which proceeded on an incorrect factual basis and is inconsistent with the opinion of the treating psychologists.
As I have just mentioned, I conclude that since December 2018 DP has become fixated with the Coffey assaults and their effect upon him. This has meant that they are, in part, responsible for the anxiety and depression that he now suffers. The other events, described in the psychologists’ reports as being causative over the years in his psyche, also play a part in his array of symptoms. I do not accept that his agoraphobia has in any meaningful way been aggravated or influenced by the Coffey assaults. This was a feature in the years before 2019 and there is no evidence that it has worsened since that time. I cannot find any evidence that supports a suggestion that he has sustained a personality change as a result of the Coffey assaults.
As to the future duration of his symptoms attributable to the Coffey assaults I have, for the reasons just set out, concluded that these will persist indefinitely, and the effects of the Coffey assaults will continue to play a part. In reaching my conclusion as to the appropriate assessment of damages, I have taken into account that other factors unrelated to the Coffey assaults will from time to time be causative of symptoms but that the effects of the Coffey assaults will be ongoing.
Counsel for DP put a figure of $300,000 - $400,000 for pain and suffering damages and counsel for the Diocese a figure of between $100,000–$150,000. No doubt the estimate by counsel for DP was based on his case on the duration of symptoms related to the Coffey assaults over a 50-year period in the past and indefinitely into the future succeeding.
In my view, the proper assessment of pain and suffering and loss of enjoyment of life damages — past and future — is $200,000.
Loss of earning capacity (past and future) damages
Notwithstanding the bold nature of DP’s claim for earning loss (in final submissions in a sum of just over $1,500,000), it received little support from Associate Professor Quadrio — even on the limited and selective information that she had.
In her first report, she opined that it was possible “in some small way” that the Coffey assaults contributed to DP’s history of sporadic employment.[280]
[280]Exhibit P11.
In evidence in chief, Associate Professor Quadrio said as follows:
I think he’s been able to maintain employment over – over most of his adult life, and – but, um, what I talked about was his mistrust and avoidance has probably limited him, um, but it hasn’t stopped him.[281]
[281]T1008.
When asked during cross-examination whether it was fair to say she was simply unable to, with any reliability, put any weight on the effect of abuse by Coffey in relation to DP’s employment, she said:
I couldn’t put a precise estimate on it, no.[282]
[282]T1009.
Given my conclusion as to the onset of symptoms in December 2018, there is, in my opinion, no scope for any award of damages for past loss of earnings. This is for the following reasons.
First, on my findings as to actionable damage to DP as a result of the Coffey assaults, the only arguable period of loss is between December 2018 when he read the December advertisement and the present time. During that period DP has been in receipt of the carer’s pension. He has been on that pension for nearly 20 years. He has not worked since the café business closed and forced him into bankruptcy some 10 years ago. He did not exercise any earning capacity in the ensuing period when he was free of symptoms referable to the Coffey assaults. In short, any residual earning capacity that he possessed after the café business closed was not exercised for reasons other than the Coffey assaults.
Second, in any event, even if one accepted DP’s account, it is unclear what, if any, effect the Coffey assaults have had on his earning capacity. I have already referred to Associate Professor Quadrio’s opinion. That evidence, when combined with the other undisputed issues in his life which have affected his psyche, make it well-nigh impossible to ascertain whether there has been a discernible loss of income.
Third, it follows that I regard the reports of the forensic accountants on behalf of DP and the Diocese as irrelevant.[283]
[283]Exhibits P12 and D20.
In short, I am not satisfied on the balance of probabilities that DP has suffered any past loss of earnings attributable to the Coffey assaults. I have conducted this analysis on the traditional basis — estimation of past loss reduced by past contingencies. I reach the same conclusion applying a Malec v JC Hutton Pty Ltd[284] approach to past hypothetical loss,[285] for the reasons I will now set out in relation to future loss.
[284](1990) 169 CLR 638 (‘Malec’).
[285]See New South Wales v Moss (2000) 54 NSWLR 536.
In relation to any future loss of earning capacity, this is essentially a Malec claim. Recently in Talacko v Talacko,[286] the High Court said of this type of claim:
In the second category, the existence of a loss is sufficiently shown by proving that the tort caused a permanent impairment of the value of the plaintiff's existing right. It is enough that the right is "something of value" and that its value is diminished or lost.[287]
[286](2021) 95 ALJR 417.
[287]Ibid [43].
This is consistent with what was said by the High Court in Malec:that the assessment of future or hypothetical events requires a plaintiff to demonstrate that the loss is more than “speculative”.[288]
[288]Malec (1990) 169 CLR 638, [7].
I accept the Diocese’s submission that there is no cogent evidence to support an award for future loss of earning capacity. As with the case for past loss of earnings, there is no proper evidentiary basis to find that DP has been deprived of the loss of “something of value” — let alone one that can then be measured in any meaningful way. Consistent with my conclusion as to the claim for loss of earnings since 2019, DP has not demonstrated that he either had any earning capacity or that the Coffey assaults have in a material way diminished that earning capacity to an extent that would permit an assessment of damages pursuant to the Malec principle.
To put it bluntly, and somewhat repetitively, the die was cast well prior to 2019 in relation to DP’s participation in the workforce, from which he had effectively retired when he went bankrupt. That decision and his past employment history was unrelated to the Coffey assaults. No relevant loss of opportunity has been demonstrated and no allowance should be made under this head of damage.
It follows that the claim for past and future loss of superannuation of over $200,000 must also fail.
Medical expenses — past and future
In the particulars of special damage filed shortly prior to trial, DP claimed “a global amount of $10,000 for past medical expenses”.[289]
[289]Particulars of Special Damages dated 27 May 2021 [8].
DP asserted, at least impliedly, that this related to treatment from Dr Watson and Dr Pagano. Neither doctor was called, and no evidence was led, to justify this amount. The Diocese correctly contended that, in the absence of any evidence as to actual payments made for past medical expenses (as opposed to a guess by an expert witness) there was no scope for such an award. I agree and no allowance ought to be made for past medical expenses.
The claim for future medical expenses was based upon Associate Professor Quadrio’s assessment that DP would need ongoing future treatment which would require:
(a) monthly sessions with a clinical psychologist;
(b) medication; and
(c) GP annual review.
The total claim for future treatment costs was just short of $110,000.
For reasons set out previously, I do not accept Associate Professor Quadrio’s opinion in relation to the cause of DP’s psychological symptoms or as to his current condition – particularly that of PTSD. I find it difficult to relate this hypothetical estimate to the reality that there is no evidence of any past expense incurred for the treatment of his symptoms of depression and anxiety.
As best I can determine, DP will need some ongoing psychological treatment which is causally related to the Coffey abuse. He may also need medication, such as antidepressants and medication for anxiety.
This may well persist indefinitely. But, on the other hand, he may well have needed this form of treatment for his psychological condition irrespective of the Coffey assaults.
Doing the best I can, I think an appropriate allowance is $10,000 for future medical expenses.
Should there be an award of aggravated damages?
Aggravated damages are compensatory in nature and may be awarded to a plaintiff “when the harm done to him by a wrongful act was aggravated by the manner in which the act was done”.[290]
[290]Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118, 149 (‘Uren’), quoted in Gray v Motor Accident Commission (1998) 196 CLR 1, [6] (‘Gray’).
In Cassell v Broome[291] Lord Devlin adopted what he had said in Rookes v Barnard,[292]:
Additional compensation for the injured feelings of the plaintiff where his sense of injury resulting from the wrongful physical act is justifiably heightened by the manner in which or the motive for which the defendant did it.[293]
[291][1972] AC 1027, [1124] (‘Cassell’).
[292][1964] AC 1129.
[293]Cassell [1972] AC 1027, [1124]. See also Spautz v Butterworth (1996) 41 NSWLR 1, [15].
It is also established that aggravation may come not only from conduct directly associated with the alleged tortious conduct but subsequent conduct which may have the same effect. So the manner in which a defendant may conduct a proceeding brought against it may lead to an award of aggravated damages.[294]
[294]See Houda v New South Wales [2005] NSWSC 1053.
DP asserted that aggravated damages were available in this case on two separate bases:
(a) The conduct of Coffey and the circumstances of the abuse, that is, cloaked in secrecy so as to avoid any detection by DP’s parents; and
(b) The conduct of the Diocese in the defence of the case and particularly in respect of senior counsel’s cross-examination of DP.
In relation to the first basis — the surreptitious nature of Coffey’s conduct — I think that there is force in this contention. Whilst I have not accepted that there was any immediate consequence to DP’s psyche as a result of the two assaults, that does not mean that the circumstances in which they occurred can be treated as irrelevant – particularly as they have now become a focus of DP and productive of ongoing anxiety and depression.
I am conscious that the award of compensatory damages takes into account the damage to DP’s mental condition as a result of the Coffey assaults. Nevertheless, the circumstances in which the assaults occurred provide a proper basis upon which to award an additional amount in the form of aggravated damages; this was a breach of trust by Coffey perpetrated on both occasions in a clandestine fashion on a young boy who could not be protected by his parents.
There should be an award of damages on this basis. I can see no reason why the Diocese should not be vicariously liable for such an award given that it relates directly to Coffey’s conduct and is compensatory in nature.
On the second basis, in closing submissions, counsel for DP focused on the conduct of senior counsel for the Diocese in her cross-examination of DP.
Whilst it is not uncommon (particularly in defamation cases) for an award of aggravated damages to be made based on the conduct of a case, this case does not fall into that category.
True it is that counsel’s cross-examination was lengthy and unsympathetic to DP. Counsel implied in her cross-examination that DP was, at the least, exaggerating the circumstances surrounding the assaults. But in a case where the allegations against Coffey first surfaced nearly 50 years after the events, and where on DP’s own account there were no witnesses, none of this was surprising or inappropriate — particularly so given the variety of other potential causes for DP’s alleged psychological injury.
The end result is that whilst I have some sympathy for DP’s position in relation to the nature of the cross-examination, I do not regard it as providing grounds for an award of aggravated damages.
In my view, an appropriate award is $20,000.
Should there be an award of exemplary damages?
DP contended that exemplary damages were available by reason of the following:
(a) the Diocese’s actual or constructive knowledge about the risk of paedophilia amongst priests in the Diocese;
(b) the risk posed by Coffey;
(c) the prolific nature of Coffey’s offending between 1960 to 1975;
(d) the failure of the Diocese to reprimand or remove Coffey from office and its failure after his conviction to laicise Coffey; and
(e) the conduct of counsel for the Diocese in suggesting that the Coffey abuse did not occur when the Diocese had pleaded that it did not know and could not admit.
For the following reasons, I do not accept that any of these matters give rise to an award of exemplary damages.
In Australia, it has been accepted by the High Court that exemplary damages will be awarded in cases of “conscious wrongdoing in contumelious disregard of another’s rights”.[295]
[295]Whitfeld v De Lauret & Co Ltd (1920) 29 CLR 71, 77. See also Uren (1966) 117 CLR 118, 138, 147, 154, 160; XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448, 470; Lamb v Cotogno (1987) 164 CLR 1, 13 (‘Lamb’); Gray (1998) 196 CLR 1, [14] (‘Gray’).
In Gray,[296] the majority said as follows:
[E]xemplary damages could not properly be awarded in a case of alleged negligence in which there was no conscious wrongdoing by the defendant.[297]
[296](1998) 196 CLR 1.
[297]Gray [22] (emphasis added).
In Lamb,[298] the High Court held that it was not necessary to establish actual malice on the part of the wrongdoer:
Whilst there can be no malice without intent, the intent or recklessness necessary to justify an award of exemplary damages may be found in contumelious behaviour which falls short of being malicious or is not aptly described by the use of that word.[299]
[298](1987) 164 CLR 1.
[299]Lamb [13] (citations omitted).
On its face, therefore, it must be dubious whether, in a case involving vicarious liability, an innocent party should be held liable for an award of exemplary damages based on the conduct of the person for whom vicarious liability was imposed.
Counsel for DP were not able to identify any case in which an employer (or in this case, a quasi-employer) had been held vicariously liable for exemplary damages.
However, there are a couple of instances where exemplary damages have been awarded against an employer which has been held vicariously liable for the actions of its employee. In New South Wales v Ibbett,[300] the High Court considered the question of the State’s responsibility for such an award of damages where a police officer assaulted the plaintiff. Subsequently in Zorom Enterprises Pty Ltd v Zabow,[301] the New South Wales Court of Appeal upheld an award of exemplary damages against an employer where a bouncer unlawfully assaulted a patron of a nightclub.
[300](2006) 229 CLR 638 (‘Ibbett’).
[301](2007) 71 NSWLR 354 (‘Zorom Enterprises’).
Although both cases resulted in the award being upheld, neither offers any definitive guidance. In Ibbett, the liability of the State arose as a result of misconduct by police and liability turned on the application of a particular statutory provision. Indeed, the High Court’s remarks appear to, at least, leave open the question of the rationale behind an award where vicarious liability has been imposed upon an innocent party:
Such authorities in this Court assume that awards of exemplary damages may properly be made against a principal or employer who is vicariously liable for the tortious acts or omissions of an agent or employee; they do not canvass any rationale for the making of such awards.
The nature of vicarious liability most recently was treated by this Court in Sweeney v Boylan Nominees Pty Ltd and need not be further considered here. But why, it has been asked, should shareholders of a corporation bear the burden of the punishment by the medium of an award of exemplary damages for corporate conduct in which they took no part? That question itself recapitulates arguments presented in the nineteenth century in related fields, before the development of modern ideas of corporate identity and responsibility.[302]
[302]Ibbett (2006) 229 CLR 638, [44]–[45] (citations omitted).
In Zorom Enterprises, the Court of Appeal held that such a claim was tenable and dismissed the appeal against the award. However, in doing so, it relied upon an earlier decision of New South Wales v Bryant,[303] in which the Court, as with Ibbett, awarded exemplary damages arising out the conduct of police officers. As in Ibbett, this required consideration of the terms of the Law Reform (Vicarious Liability) Act 1983 (NSW) in the context of police misconduct.
[303](2005) 64 NSWLR 281 (‘Bryant’).
Whilst the decisions in Ibbett, Zorom Enterprises and Bryant might tend to the conclusion that exemplary damages may be available in a vicarious liability situation, Ibbett and Bryant (in which there is a fulsome discussion of the concept) turned directly upon principles of statutory construction and police misconduct.
For my part, I would share the implied doubt of the High Court as to the availability of such an award of damages in a case such as the present one.
The end result, I think, is that given the nature of an award of exemplary damages, it would seem at odds with the policy rationale of such an award if an innocent party was the subject of an award of damages designed to punish it for a contumelious act committed by a person unauthorised to carry out that activity. In the absence of any other evidence to connect the Diocese with the actions of Coffey there is, in my opinion, no basis to make an award of exemplary damages based on the vicarious liability of the Diocese.
In any event, and contrary to that conclusion, assuming exemplary damages are available, it is not appropriate to make such an award in this case.
As the High Court observed in Gray, such awards are “rarely” made.
Whilst the circumstances of this case constitute a breach of trust on the part of Coffey, these events occurred nearly 50 years ago and little or nothing could be achieved by punishment of the Diocese and its current Bishop. This is particularly so given the findings of the Royal Commission and the establishment of schemes to redress the injustices perpetrated by members of the clergy, and particularly those under the direction of the Diocese and the Bishop.
In this regard, I adopt the following parts of Keogh J’s reasons relevant to exemplary damages in Lonergan v Trustees of The Sisters of Saint Joseph,[304] a case which also involved the unlawful actions of Coffey:
I accept the defendants’ submissions, and on that basis will not make an award of exemplary or aggravated damages. The Bishops’ knowledge that serious allegations of sexual abuse of children had been made against two other priests was relevant to the foreseeability of the risk of harm to Catholic children if they were alone in the care or company of Diocesan priests, and to breach by the Diocese of a duty owed to the plaintiff. However, there is no evidence the Diocese was aware that Coffey had sexually abused children before he was appointed parish priest at Ouyen, or of grounds for suspicion that he had done so. The Sisters were aware that in his time at Ouyen Coffey was regularly alone with Catholic children, including in circumstances where they needed to change in and out of running clothes. Again, that is knowledge relevant to foreseeability and breach. However, viewed at the time Mr Lonergan was abused, the evidence does not establish that either the Diocese or the Sisters acted in deliberate or reckless and contumelious disregard of Mr Lonergan’s rights, or that their conduct was so reprehensible that it involved flagrant conscious wrongdoing.
…
More generally both defendants had implemented schemes to respond to persons who were abused as children, and systems of protection to avoid future abuse. That is not to say the steps taken by the defendants are above criticism. However, I accept the conduct of the defendants is not such as to justify an award of exemplary or aggravated damages.[305]
[304][2021] VSC 651.
[305]Ibid [211]–[212].
In this case, the only evidence of any actual knowledge on the part of the Diocese is the discussion between Ridsdale and Bishop Mulkearns in 1961. As I have already discussed, this leads nowhere in relation to the allegations against Coffey in the negligence case. I repeat that there is no evidence of any actual knowledge of Coffey’s misconduct nor, as I have found, is there any evidence that would lead to an inference that the Diocese should have known of Coffey’s proclivities. Even if there was constructive knowledge on the part of the Diocese, there is no authority that I am aware of that would permit an award of exemplary damages on the basis of such imputed knowledge. Exemplary damages require “conscious wrongdoing”.
The allegations relating to the Diocese’s treatment of Coffey subsequent to the assaults are also misconceived. The contumelious behaviour which gives rise to a claim for exemplary damages must have a connection with the tort itself, not just egregious conduct at large. In this case, DP has failed to prove negligence on the part of the Diocese and therefore any nexus between the subsequent alleged misconduct on the part of the Diocese is irrelevant. The facts in Lamb demonstrate this amply.
Of course, it would be a different matter if the negligence of the Diocese was established and there was subsequent conduct referable to that negligence — such as moving a priest from one parish to another when the Diocese became aware of his unlawful behaviour. But that is not the case here.
Similarly, an allegation about the conduct of the trial is misconceived as grounds for a claim of exemplary damages.
The claim for exemplary damages fails.
Conclusion
There will be judgment for DP in the sum of $230,000. The parties will be at liberty to make submissions as to costs.
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