Introduction

The High Court of Australia’s decision in Bird v DP (a pseudonym) [2024] HCA 41 is a defining judgment in the area of vicarious liability and institutional accountability for historical child sexual abuse. The case addresses whether a religious organisation can be held vicariously liable for the wrongful acts of a priest who was not an employee, and whether such liability can be extended to relationships “akin to employment”.

Background

In 1971, the respondent (“DP”), then five years old, was sexually assaulted on two occasions by Father Bryan Coffey, a Catholic priest of St Patrick’s parish in Port Fairy, within the Diocese of Ballarat. The abuse occurred at DP’s home during Coffey’s pastoral visits. In 2020, DP brought proceedings in the Supreme Court of Victoria against the Diocese, seeking damages for psychological injuries arising from the assaults.

As the Diocese is an unincorporated association, DP relied on the Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (Vic) to name the then-current Bishop of Ballarat, Paul Bird, as the nominated defendant. DP claimed that the Diocese was vicariously liable for Coffey’s actions and, alternatively, liable in negligence.

The primary judge found the Diocese vicariously liable, despite no employment or agency relationship between Coffey and the Diocese. However, DP’s negligence claim failed. The Court of Appeal upheld the vicarious liability finding. The Diocese obtained special leave to appeal to the High Court.

Key Legal Issues and Questions for the Court

The High Court considered key issues concerning the scope of vicarious liability, institutional accountability, and the admissibility of new arguments on appeal.

1. Vicarious Liability Beyond Employment: The Court was required to consider whether vicarious liability under Australian common law can extend to relationships that are “akin to employment” in the absence of an employment relationship.
2. Institutional Responsibility for Criminal Acts: The Court examined whether the relationship between Father Coffey and the Diocese of Ballarat gave rise to a duty that could render the Diocese vicariously liable for Coffey’s acts of child sexual abuse.
3. Non-Delegable Duty of Care: The Court assessed whether it was appropriate to consider a claim based on a non-delegable duty of care when it was not pleaded or determined at trial and whether raising it on appeal would unfairly prejudice the appellant. The issue arose in the context of the respondent’s claim against the Diocese through a nominated defendant under the Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (Vic).

Case Authorities and Cited Precedents

The following authorities were cited or discussed by the High Court in Bird v DP to evaluate the scope of vicarious liability and the circumstances under which institutions may be held liable for the wrongful acts of non-employees:

1. Hollis v Vabu Pty Ltd [2001] HCA 44 – Clarified the distinction between employees and independent contractors, focusing on control, representation, and integration into the business.

Link: Full Case

• Prince Alfred College Inc v ADC [2016] HCA 37 – Explored whether a school was vicariously liable for sexual abuse committed by a teacher, focusing on the role and opportunity provided by the institution.

Link: Full Case

Court’s Findings

The High Court delivered a unanimous decision, focusing on the legal requirements for vicarious liability and the procedural integrity of appellate arguments. The key findings are as follows:

1. Employment Relationship: The Court found that there was no employment relationship between Father Coffey and the Diocese. Coffey was not subject to the Diocese’s control or direction in line with employment.
2. Vicarious Liability: The absence of an employment relationship meant that the Diocese could not be held vicariously liable under Australian common law. The Court reaffirmed that vicarious liability does not extend to relationships merely “akin to employment.”
3. Non-Delegable Duty: The respondent’s argument based on a non-delegable duty of care failed at the threshold. The claim was not pleaded or tested at trial and raising it for the first time on appeal would have caused procedural unfairness to the appellant.
4. Appeal Outcome: The High Court allowed the appeal, set aside the orders of the Victorian Court of Appeal and the Supreme Court, and dismissed the original proceeding. The respondent was ordered to pay the appellant’s costs for the special leave application and the appeal.

Legal Implications and Precedent Summary

Bird v DP confirms that under Australian law, vicarious liability is strictly tied to the existence of an employment relationship. It diverges from international trends that extend liability to relationships akin to employment. The Court maintained the integrity of procedural rules by refusing to consider late-raised legal arguments.

This case, alongside Hollis v Vabu and Prince Alfred College v ADC, forms part of a trilogy that defines the contours of institutional liability in Australia. It sends a clear message that while claimants may access statutory pathways, common law principles remain tightly framed.

Conclusion

The High Court’s decision in Bird v DP has substantial implications for future claims against religious and charitable institutions. It reinforces the necessity for plaintiffs to clearly establish employment relationships when seeking to invoke vicarious liability.

If you are navigating legal issues involving historical abuse, institutional liability, or complex civil litigation, Pentana Stanton Lawyers can provide you with the legal clarity and support you need.

Contact our experienced legal team today for trusted advice tailored to your circumstances.