The case of Bird v DP (a pseudonym) VSCA 66 (3 April 2023) marks a significant development in historical abuse cases in religious institutions, and confirms that the principle of vicarious liability is not limited to employment relationships.
In that case, the Victorian Supreme Court of Appeal upheld the decision that the Catholic Diocese of Ballarat was vicariously liable for sexual abuse committed by a parish priest.
This decision is significant because of the overall quantum awarded, the award of aggravated damages, the costs decision, and the failure of the Plaintiff’s case in negligence.
However, this article will focus on its ramifications for the law of vicarious liability and organisations that engage volunteers and religious leaders.
Background
The Plaintiff (DP) alleged that he was sexually abused by Father Coffey (Coffey), a priest within the Diocese of Ballarat (the Diocese), on two occasions in 1971. DP attended St Patrick’s Primary School (School) and St Patrick’s Catholic Church (St Patrick’s), which were located in the Diocese. Coffey was an assistant priest at St Patrick’s and a teacher at the School. Coffey attended DP’s family home to provide matrimonial advice to DP’s parents, and the abuse occurred at DP’s home when DP was 5 years old.
DP commenced proceedings against the Diocese through the Bishop, Paul Bird, who was the nominated defendant for the purpose of the proceeding pursuant to s 7 of the Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (Vic).
DP alleged that the Diocese of Ballarat was vicariously liable for Coffey’s assaults, and that the Diocese was directly liable in negligence as a result of the failure by the Bishop of the Diocese to exercise reasonable care in his authority, supervision and control of Coffey’s conduct.
In its defence the Diocese admitted that in 1971 it appointed priests to parishes within the Diocese, including St Patrick’s, through the Bishop. The Diocese also admitted that Coffey’s duties as a priest at St Patrick’s and in the Diocese included the provision of pastoral support and spiritual guidance to members of the congregation that worshipped at the St Patrick’s. However, the Diocese denied that it was vicariously liable for Coffey’s actions as a Catholic priest.
Justice Forrest ultimately accepted that DP was abused on two occasions. In deciding whether the Diocese was vicariously liable for Coffey’s conduct, Forrest J considered the following questions:
- Nature of the Relationship: Did the relationship between Coffey and the Diocese or Bishop give rise to vicarious liability on the part of the Diocese for Coffey’s conduct? and
- Liability: If so, is the Diocese or the Bishop liable for Coffey’s unlawful conduct (noting that the assaults were unlawful and far outside Coffey’s clerical role)?
Justice Forrest was satisfied that both questions could be answered in the affirmative, and found that the Diocese was vicariously liable for Coffey’s conduct. His Honour’s consideration of those questions is set out below.
Nature of the relationship
DP asserted that the Diocese was vicariously liable irrespective of whether Coffey was an employee of the Diocese.1
The Diocese asserted that it could not be vicariously liable for Coffey’s conduct unless Coffey was an employee of the Diocese at the time of the alleged abuse. The Diocese relied on the High Court authority of Sweeney v Boylan Nominees Pty Ltd (Sweeney) to support their argument that vicarious liability is limited to employment relationships.
Considering relevant authorities from Australia, Canada and the UK,2 Justice Forrest concluded that ‘the Court in Prince Alfred College did not endorse a confined theory of vicarious liability (restricted solely to an employer/employee relationship) as contended by the Diocese’, and that vicarious liability ought not be limited to ‘preconceived notions of agency or employment’.
His Honour also explored the applicability of Sweeney in the context of this proceeding, and noted that that Sweeney ‘stands for the proposition that a principal cannot be liable for the acts or omissions of an independent contractor — no more, no less’.
Justice Forrest found that Coffey was not an employee of the Diocese, but was otherwise satisfied that the relationship between Coffey and the Diocese could give rise to vicarious liability.
Liability
Justice Forrest then considered whether the Diocese should be liable for Coffey’s conduct, given that the abuse was committed outside the lawful scope of Coffey’s engagement by the Diocese.
Citing Prince Alfred College, His Honour held that:
“The appropriate inquiry is whether [Coffey’s] role as [a priest] placed him in a position of power and intimacy vis-à-vis [DP] such that [Coffey’s] apparent performance of his role as [a priest] gave the occasion for the wrongful acts and that because he misused or took advantage of his position, the wrongful acts could be regarded as having been committed in the course of his employment.”
Justice Forrest found that Coffey was conducting a ‘pastoral visit’ when he committed the alleged abuse and that the Diocese was vicariously liable for Coffey’s criminal conduct by reason of:
- the close nature of the relationship between the Bishop, the Diocese and the Catholic community where St Patrick’s was located;
- the Diocese’s general control over Coffey’s role and duties within St Patrick’s parish;
- Coffey’s pastoral role in the local Catholic community; and
- the relationship between DP, his family, Coffey and the Diocese, which was one of intimacy and trust in the authority of Christ’s representative, personified by Coffey.
Forrest J concluded:
“I am also satisfied that Coffey’s role as a priest under the direction of the Diocese placed him in a position of power and intimacy vis-à-vis DP that enabled him to take advantage of DP when alone — just as he did with other boys. This position significantly increased the risk of harm to DP. He misused and took advantage of his position as a confidante and pastor to DP’s family; this enabled him to commit the unlawful assaults upon DP.”
Consequently, the Diocese was held to be vicariously liable for Coffey’s abuse of DP, and ordered to pay $230,000 in general damages, and $20,000 in aggravated damages. Justice Forrest did not make a separate finding of negligence against the Diocese.
The Appeal
The Diocese ultimately appealed the decision to the Court of Appeal on the following grounds:
- Vicarious Liability: In circumstances where Coffey was not an employee of the Diocese, the trial judge erred in finding that the Applicant was vicariously liable for Coffey’s conduct; and
- Opportunity and occasion for wrong conduct: If the relationship between the Diocese and Coffey gave rise to a relationship of vicarious liability, the trial judge erred in concluding that the relationship was such as to find that the Diocese was so liable.
Vicarious Liability
The Court of Appeal held that ‘Coffey was the servant of the Diocese, notwithstanding that he was not, in a strict legal sense, an employee’, and that the trial judge was correct to conclude that the relationship between Coffey and the Diocese was one which, in an appropriate case, would render the Diocese vicariously liable for any tort committed by Coffey in his role as an assistant priest within the Diocese.
The Court of Appeal upheld Justice Forrest’s decision that the Diocese could be vicariously liable for Coffey’s conduct on the basis that:
- Coffey had no other vocation, nor the right to undertake any other vocation;
- Coffey could not delegate his role or duties;
- Coffey’s livelihood was provided for by the Diocese;
- Coffey wore the uniform of a Roman Catholic priest, and it was common to wear the clerical collar when providing pastoral care;
- Coffey did the work of the Diocese in the Parish to which he was appointed; and
- The Diocese did its work by and through him.
Opportunity and occasion for wrongful conduct
The Diocese argued that it did not provide Coffey with the opportunity and occasion for the wrongful conduct for the following reasons:
- priests exercised a lot of discretion and the Diocese was not ‘all powerful’ in the management of clergy and the activities of an assistant parish priest;
- the friendship between DP’s family and Coffey was social and not connected with his role as an assistant priest; and
- there was insufficient evidence to show that the Diocese designated special functions to Coffey as an assistant priest.
The Court of Appeal did not accept these arguments, and found that the Bishop ultimately retained overriding authority over all priests in the Diocese. Additionally, by appointing and maintaining Coffey as an assistant priest, the Diocese gave him a degree of power and authority to enable him to achieve such intimacy with DP’s family. It was also found that pastoral work required priests to develop personal acquaintances and friendships with parishioners. It was through this work that Coffey gained ‘authority, power, trust, control and the ability to achieve intimacy’ with parishioners, including with DP’s family and DP.
Significance of the decision
The case confirms that vicarious liability is not limited to employment relationships and sends a strong message that religious organisation may be vicariously liable for abuse committed by religious leaders (such as priests), even if those leaders are not employees. The case also highlights how liability can attach to pastoral care provided by individuals connected with religious organisations, and how claims can be effectively pursued against unincorporated organisations under the Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (Vic).
It is important that organisations that engage or appoint volunteers and religious leaders consider whether they hold insurance that extends to criminal abuses by volunteers and other non-employees. As it stands, there is no absolute, unequivocal defence against liability for the consequences of criminal abuse simply because the perpetrator is not an employee.
How Moores can help
Moores is supporting religious organisations to understand the impact of this decision, and the safeguards that can be adopted to minimise the risk of harm and liability.
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1 – following authorities from the UK and Canada, as well as the decision of the High Court in Prince Alfred College Inc v ADC,10
2 – Hollis v Vabu Pty Ltd (Bicycle Couriers case) (2001) 207 CLR 21; 181 ALR 263; [2001] HCA 44; Plaintiff A and B v Bird (2020) 300 IR 235; [2020] NSWSC 1379; Roman Catholic Trusts Corp for Diocese of Sale v WCB (2020) 62 VR 234; [2020] VSCA 328; Bazley v Curry [1999] 2 SCR 534; Lister v Hesley Hall Ltd [2002] 1 AC 215; BN v Anglican Church [2020] MBQB 2; Maga v Archbishop of Birmingham [2010] 1 WLR 1441; Various Claimants v Catholic Child Welfare Society [2013] 2 AC.