DP v Bird: is vicarious liability on the move in historical abuse proceedings?

• Published date: 27 April 2022
• Law Firm: Carroll & O'Dea
• Author: Mr Charles Harrison

Abstract

DP (a pseudonym) v Bird ¹ is a Victorian Supreme Court decision of J Forrest J (Forrest J) handed down on 21 December 2021.

This decision is of interest for a number of reasons including the overall quantum awarded, the award of aggravated damages, and the failure of the Plaintiff's case in negligence. This article will focus on its ramifications upon the law of vicarious liability, specifically the availability of such a finding in historical abuse proceedings and what, if any, tension exists between this decision and the earlier 2021 decision of the Victorian Supreme Court in PCB v Geelong College.²

Introduction and background

The Plaintiff (DP) alleges that he was sexually abused by Father Coffey (Coffey), a priest incardinated within the Diocese of Ballarat (the Diocese), on two occasions in 1971. The alleged abuse, on both occasions, occurred at DP's family home. At the time of the alleged abuse, Coffey was the assistant parish priest to Father O'Dowd at St Patrick's Port Fairy (located within the Diocese) and a teacher at the associated St Patrick's primary school (the school). Father Coffey taught at the school during the relevant period.

In its defence, the Diocese admitted that during 1971, the Diocese, through the Bishop appointed priests to parishes within the Diocese including St Patrick's and that "Father Coffey's duties as a priest at the church and in the Diocese including the provision of pastoral guidance and support and spiritual guidance to members of the congregation that worshipped at the church".³ The Diocese denied that it was vicariously liable for Coffey's actions as a Catholic priest.⁴

The vicarious liability arguments

Whether the Diocese was vicarious liable for any assault of DP by Coffey was one of the six primary issues to be determined.⁵ Justice Forrest ultimately accepted that DP was abused on two occasions.⁶ Consequently, in deciding whether to impose vicarious liability on the Diocese, Forrest J posited that this task raises two "fundamental and closely inter-related questions":⁷

1. 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?⁸
2. If there is a relationship that gives 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?⁹

Justice Forrest ultimately answered both questions in the affirmative and, thus, imposed a finding of vicarious liability on the Diocese.

Question 1 ' nature of the relationship

DP's argument

DP asserted that, following authorities from the UK and Canada, as well as the decision of the High Court in Prince Alfred College Inc v ADC,¹⁰ the Diocese ought be vicariously liable irrespective of whether Coffey was an employee of the Diocese. Justice Forrest determined that "a finding of vicarious liability is not limited by any lack of formal employment indicia such as written contract" and should be determined by "reference to a number of the factors identified by the High Court in Hollis v Vabu Pty Ltd in terms of the totality of the...