The recent High Court of Australia ruling in Bird v DP marks a watershed moment in the ongoing discussion of institutional responsibility for historical abuse. On November 13, 2024, the Court upheld decades of precedent by declining to extend vicarious liability to relationships ‘akin to employment,’ a decision that carries profound implications for both Defence practitioners and complainants.
While maintaining the strict boundaries of employer-employee relationships in vicarious liability claims, the Court simultaneously delivered companion rulings that strengthened survivors’ ability to pursue historical cases.
This analysis examines the Court’s reasoning, implications, and place within Australia’s evolving landscape of institutional liability.
High Court’s Findings in Bird v DP
Overview of Bird v DP case
In 2020, in the Supreme Court of Victoria, the plaintiff (DP) alleged that, in 1971, he was assaulted and sexually abused by a Catholic priest, Father Bryan Coffey (Coffey), on pastoral visits to his parents’ house. DP claimed that the Catholic Bishop of Ballarat, namely Paul Bird, who represented the Ballarat Diocese, was vicariously liable for the psychological injuries sustained as a consequence of the assaults committed by Coffey. The Victorian Supreme Court ruled that the Diocese was vicariously liable for Coffey’s abuse of DP on the basis that the abuse had occurred in the course of an agency relationship between Coffey and the Diocese as the provision of unsupervised pastoral care to families was part of Coffey’s role and placed him in a position of authority and trust that allowed him to perpetrate the alleged abuse.
Subsequently, it was agreed in an appeal to the Victorian Court of Appeal that whilst Coffey was not an employee, the Diocese was still vicariously liable for the acts of criminal abuse as the relationship between Coffey and the Diocese was ‘akin to employment’.
The High Court, however, overturned the decisions of the lower courts, holding that vicarious liability cannot be imposed in the absence of a genuine employer-employee relationship. Accordingly, it was decided that vicarious liability could not extend to relationships that do not strictly comprise – but are ‘akin to’ – employment, such as between Diocesan authorities and parish priests. Likewise, a relationship of agency was not found as Coffey was not acting with the Diocese’s express, implied, or apparent authorisation and at no time were his actions ratified by the Diocese.
Historical context of church liability cases
In New South Wales v Lepore & Anor [2003] 212 CLR 511, a case involving a Housemaster who sexually abused a student, the High Court held that vicarious liability could potentially apply if the assault occurred ‘in the course of employment’. However, despite this general principle, the Court was divided on whether the teacher’s actions could be considered within the scope of employment, leaving the boundaries of vicarious liability open to interpretation.
Against this backdrop, the majority in Prince Alfred College Incorporated v ADC [2016] HCA 37 clarified that while vicarious liability may apply to wrongful or even criminal acts committed by an employee, the mere fact that the employment provides an opportunity for the act is insufficient.
The employment must also ‘provide the occasion’ for the act to occur, taking into account factors such as authority, power, trust, control, and the potential for intimacy between the employee and the victim, as well as the special role the employer has assigned to the employee and the position this creates relative to the victim.
It was subsequently established that an employer could be vicariously liable for an employee’s sexual assault if both elements of this “relevant approach” are satisfied. However, the application of vicarious liability in cases involving criminal acts by non-employees has remained unclear until now.
Impact of the High Court's Decision
The employment relationship question
The High Court’s decision solidifies the narrow scope of vicarious liability, establishing clear limitations on the ability of complainant’s of historical sexual abuse to bring claims against religious institutions for the actions of individuals who are not in a formal employment relationship with the institution. This ruling also has broader implications for the application of vicarious liability to other relationships that may be considered ‘akin’ to employment, such as those involving independent contractors or volunteers.
Consequently, this ruling reinforces the principle that a true employment or agency relationship is a prerequisite for vicarious liability. While factors such as a member’s position involving intimacy, trust, and the potential for misconduct, as highlighted in Prince Alfred College Inc v ADC [2016] HCA 37, are relevant, they are insufficient, in and of themselves, to establish vicarious liability if a true employment relationship is absent.
Significance of maintaining legal precedent
Traditionally, in Australia, the concept of vicarious liability has involved a well-established two-stage test before the liability for wrongdoing by one person will be attributed to another. For vicarious liability to be established, there must be a clear and sufficient connection between the employee’s role and the incident. Ultimately, A must be employed by B, and the relevant wrongdoing occurred within the scope of A’s employment with B. However, over the years, questions arose as to whether the concept of vicarious liability could extend to relationships akin to employment, such as independent contractors and volunteers.
This question was finally addressed when the Court had occasion to consider, and ultimately, refused to accept in the decision of Bird v DP. Here, their Honours considered if Australian courts were to extend vicarious liability to relationships ‘akin to employment’, it risks bringing uncertainty and indeterminacy as to which relationships can give rise to vicarious liability and finalised that any extension of that principle is a matter for the legislature, not Australian courts.
In doing so, the High Court reaffirmed Australia’s longline of precedent, which the Court, over the last 25 years, has repeatedly refused to extend the doctrine to include independent contractors or policy considerations as the only basis for developing the principle.
Comparison with other jurisdictions (UK/Canada)
In allowing the appeal and setting aside the Court of Appeal’s orders the High Court has maintained its refusal to follow the approach taken in overseas jurisdictions, particularly in the United Kingdom and in Canada.
In these countries, vicarious liability has been expanded in recent years to also include non-employment relationships that are ‘akin’ to an employment relation. In this context, then, vicarious liability of the Church may exist where the perpetrator of the abuse has a sufficiently close relationship to the Church and the conduct is sufficiently related to the conduct authorised by the Church.
Impact on Future Abuse Cases
Rulings on permanent stays
Additionally, the High Court also recently ruled in Willmot v State of QLD and RC v Salvation Army that permanent stays should only be used in exceptional circumstances in historical abuse cases. It was recognised that complainants of child sexual abuse take an average of more than 20 years to tell someone about the abuse, and this should, thus, not exclude survivors of abuse from justice.
Accordingly, the High Court will only grant permanent stays in cases where a trial would be unfair. However, the death of an accused or a witness or the unavailability of certain documentary evidence is no longer sufficient to justify a permanent stay if there is other evidence and witnesses available.
Key Takeaways
- The High Court of Australia ruled in Bird v DP that the Catholic Church is not vicariously liable for sexual abuse committed by priests, as they are not considered employees.
- The decision reaffirms Australia's longstanding legal precedent, refusing to extend vicarious liability to relationships 'akin to employment,' in contrast to the approach taken in the UK and Canada.
- Despite limiting vicarious liability, the High Court also ruled in Willmot v State of QLD and RC v Salvation Army that permanent stays should only be granted in exceptional circumstances.
- The rulings have significant implications for both abuse survivors seeking justice and religious institutions facing historical abuse claims, as they clarify the legal framework for pursuing such cases in Australia.
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Written By
Drew Hamilton
Drew Hamilton is founding partner at Hamilton Janke Lawyers. Admitted to the Supreme Court of New South Wales as a Solicitor and also listed on the High Court of Australia register.
