Bird v DP (A pseudonym) – High Court of Australia 2024
The High Court has delivered its judgment in this case, which has been eagerly awaited by lawyers, institutions and insurers involved in the abuse law space. This decision of the High Court in this case will extensively impact the rights of abuse survivors. The decision also creates a division, whereby survivors who were abused after 2018 will have access to justice in these cases, and survivors who were abused before 2018 (the vast majority) will not. We will delve into these issues later, but first we should consider the facts of this case and its history.
The Plaintiff, DP was sexually assaulted by Father Bryan Coffey when he was 5 years old. The Plaintiff argued that the Catholic Church (via the Bishop of Ballarat, Paul Bird) should be vicariously liable for Coffey’s actions on the basis that the relationship between the Diocese and Coffey was “akin to employment”.
General principles of vicarious liability mean that an employer is liable for the actions of their employees. When considering a relationship that is “akin to employment” it is important to look at indicia such as control (the employer controls how, where and when the employee works), integration (the worker represents the business), remuneration (how the worker is paid), tools (the worker is provided with equipment, housing, uniform etc) and ability to delegate. It seems clear that the relationship between a Priest and the Diocese is “akin to employment”.
The Court accepted at first instance that the Diocese was vicariously liable for the actions of Coffey and DP was successful. He was awarded damages. The Church appealed to the Victorian Court of Appeal, and were unsuccessful. The Appeal was dismissed and again, it was held that the Diocese were vicariously liable for the actions of Coffey.
It is relevant to note at this point, that the decision of the Court of Appeal in relation to vicarious liability was in keeping with a general trend in the development of the common law, both overseas and in Australia.
Following the decision of the Victorian Court of Appeal, the Diocese (via the Bishop, Paul Bird) appealed to the High Court. The appeal before the High Court raised three issues:
- Whether vicarious liability should be extended to a relationship “akin to employment”;
- If vicarious liability existed was the Diocese liable for Coffey’s conduct?
- Whether the Court should consider whether the Diocese is liable for breach of a non-delegable duty owed to the Plaintiff.
The Court declined to consider the third question. We will not go into the reasons for this here.
In respect of the first question, the High Court determined that an employment relationship MUST exist to give rise to a finding of vicarious liability, and that in this situation there was no such employment relationship (between the Diocese and Father Coffey). Not only was DP unsuccessful in the High Court, he was also ordered to pay the costs of the Diocese.
The decision of the High Court is an outlier. It also has ramifications for claims brought against other institutions, where perpetrators of sexual abuse were not strictly employees. This decision means there MUST be amendments to the law in this area. We will delve into this in the next blog post.
