By: Richard Leder OAM, Sean O’Connor, Rhyse Collins and Deniz Coskundag

Bird v DP [2024] HCA 41 | View previous article summarising the decision

At a glance

• The High Court unanimously found that the Diocese of Ballarat was not vicariously liable for the tortious conduct of one of its priests against the respondent when he was a child.
• The plurality (Gageler CJ, Gordon, Edelman, Seward, and Beech-Jones JJ, Jagot J agreeing separately) found that the common law doctrine of vicarious liability did not extend beyond the employment setting in Australia.
• While a notice of contention raised the issue of non-delegable duties, the Court decided against considering that issue because the issue was not raised in the courts below.

Facts and primary judgment

1. The respondent, DP, sued the appellant, Bishop Paul Bird (as nominal defendant for the Catholic Diocese of Ballarat), for damages arising from historic abuse alleged against a priest of the Diocese, Fr Bryan Coffey. The abuse occurred at DP’s family home in Port Fairy in 1971, where Coffey was appointed assistant priest. The claim was made on the basis that the Diocese was either directly liable for the assaults of DP through negligence, or that it was vicariously liable for the assaults.

2. At first instance, Justice Jack Forest held that the Diocese was vicariously liable for the actions of Coffey, notwithstanding the lack of an employment or agency relationship between the Diocese and Coffey at the time of the abuse.

3. His Honour awarded DP $230,000 in damages.

4. While the Diocese admitted that it owed a duty of care to DP relative to the conduct of priests appointed to the parish, DP’s claim that the Diocese was directly liable to him in negligence failed at trial because the relevant risk of harm was not known prior to or during 1971, nor was the risk of injury to DP foreseeable.

Victorian Court of Appeal

5. The Diocese appealed to the Victoria Court of Appeal on the basis that His Honour erred in imposing vicarious liability on the Diocese in circumstances where it was not Coffey’s employer. DP cross appealed on the basis that the trial judge had erred in finding that the damage did not materialise until he recalled it later in time.

6. In a joint judgment of Beach, Kaye and Niall JJA, the Court of Appeal dismissed the appeal, finding that the relationship between the Diocese and Coffey was of its own kind and that, by virtue of his role as an assistant priest of the Diocese, Coffey was an emanation of it, and therefore the Diocese was vicariously liable for the abuse of DP. The cross appeal was also dismissed.

High Court Judgment and Implications

7. Three sperate judgments were delivered by the High Court:

• The majority judgment of Chief Justice Gageler, Justices Gordon, Edelman, Seward, and Beech-Jones,
• the judgment of Justice Gleeson, and
• the judgment of Justice Jagot.

8. While the judgments of the majority and Justice Jagot concluded that the common law doctrine of vicarious liability in Australia did not extend beyond the employment relationship, Justice Gleeson held that the common law should expand the doctrine so that it applied to relationships ‘akin to employment’.

The majority judgment

9. The majority ruled that the law of agency did not permit an argument that Coffey was a ‘true agent’ of the Diocese for the purposes of the abuse committed, as his acts were not done with the Diocese’s express, implied, or apparent authorisation and at no time were they ratified by the Diocese. In coming to this conclusion, the majority examined the concept of vicarious liability and reinforced the boundaries on the use of agency and secondary liability based on attribution of liability.

10. The majority ruled that: whilst the relationship between the Diocese and Coffey – while distinct – exhibited certain features that resembled that of a relationship of employer and employee… expanding the threshold requirement to accommodate relationships that are “akin to employment” would produce uncertainty and indeterminacy.

11. The majority outlined that appealing to policy considerations or the approach adopted in Canada and the United Kingdom, which extended vicarious liability beyond employment relationships is not a determinative basis for developing the principle in Australia and any such fundamental changes to the doctrine sat with the legislature rather than the judiciary.

12. A question was raised before the High Court whether a non-delegable duty of care was owed to DP by the Diocese to protect him from a risk of harm. The majority decided not to consider this argument as it was not pleaded or raised in the courts below. Further, the majority noted that considering the non-delegable duty allegedly owed by the Diocese would require the Court to reconsider its earlier decision in Lepore – which found that a non-delegable duty cannot arise for an action based upon intentional wrongdoings by delegates. The majority therefore dismissed the respondent’s notice of contention and did not consider this issue further.

Justice Gleeson’s judgment

13. Her Honour noted that courts in other common law jurisdictions, as well as legislatures around the world, had imposed vicarious liability beyond the employment setting. Her Honour also considered the legislative changes made by the various state and territory governments around Australia enabling survivors to sue unincorporated non government organisations reflected societal recognition that they should be capable of being sued for the wrongdoing of persons associated with them. Her Honour concluded that a ‘modest expansion of vicarious liability to relationships akin to employment accords with’ the ‘central justification’ for its imposition on the employment setting, namely ‘enterprise risk’.

14. Her Honour did not agree with the plurality that the expansion of vicarious liability beyond the employment setting was at odds with previous High Court judgments, instead concluding that there was no clear prohibition on such an extension and, that in some circumstances, the High Court had found vicarious liability in settings beyond employment.

15. In considering the relationship between the Diocese and Coffey, Her Honour found that it was one that was akin to employment because Coffey was subservient to the Diocese, was unable to have a career a priest independently of the Diocese, was an emanation of the Diocese by virtue of his role, was provided with the ‘tools of [the] trade’ by the Diocese, and the Diocese exercised considerable control over him in respect of his appointment.

16. While Her Honour found that the appointment to the parish gave Coffey the opportunity to commit the abuse, Her Honour ultimately concluded that the Diocese was not vicariously liable for the abuse as Coffey did not commit it in the course of his appointment (in other words, the role did not provide him with the occasion to commit the abuse).

Justice Jagot’s Judgment

17. Her Honour agreed with the majority that the common law doctrine of vicarious liability could not be extended beyond the employment setting. In doing so, Her Honour noted that, in circumstances where it was accepted that Coffey was not an employee, the Court of Appeal’s imposition of a vicarious liability on the basis that Coffey was an ‘emanation’ of the Diocese was contrary to what the authorities stated, namely, that caution should be used when reference is made to loose concepts like ‘agent’, ‘representative’, and ‘emanation’ when considering vicarious liability. Instead, Her Honour considered that the authorities supported the proposition that a vicarious liability can only be imposed in the employment setting and that a principal will not typically be vicariously liable for the tortious conduct of an independent contractor (unless very limited, unique, and defined circumstances applied).

18. Her Honour considered that the Court of Appeal had engaged in the wrong inquiry and should have asked itself the following three questions:

• Did the Diocese directly authorise the tortious conduct of Coffey?
• For the purpose of vicarious liability, was Coffey an employee, independent contractor, or ‘true agent’ of the Diocese?
• If yes to question 2, was Coffey’s tortious conduct engaged in the course of his employment?

In Her Honour’s view, all three questions were answered in the negative, and therefore there was no path for imposing vicarious liability for Coffey’s conduct.

19. Her Honour considered that the issue of non-delegable duties could not fall for consideration as it represented irremediable prejudice to the Diocese, given it was not raised in the courts below. In so concluding, Her Honour opined that the scope of the non-delegable duty raised by the respondent was so ‘incoherent and indeterminate’ that it raised more questions than answers.

Implications

20. The judgment of the majority and Justice Jagot reinforces the traditional approach to vicarious liability and confirms that a relationship of employment is required to enliven the doctrine in Australia.

21. A relationship that is “akin to employment” is not enough.

22. Every claim in which an allegation of vicarious liability is made, will require a close examination of the relationship between alleged employer and tortfeasor. It will always be a question of fact as to whether that relationship might be said to be one of employer/employee.

23. The judgment is not authority for the proposition that every Priest or clergy member is not an employee. As above, whether an employment relationship exists will be a question determined upon the unique facts in every case.

24. The decision will impose significant limits on the ability of victims of historic abuse to recover damages for abuse perpetrated outside a strict employment setting. Leaving aside religious institutions, we expect a broad variety of community organisations, sporting clubs, organisations like Scouts and those largely run by volunteers will take comfort that a vicarious liability unlikely to arise.Conversely, settings such as schools where teachers have an employment relationship with the operator of the school, are not impacted by the decision.

25. Further, the decision will not impact claims where negligence/direct liability can be established

26. The majority judgment and separate judgment of Justice Gleeson have left open the door for legislative intervention in respect of vicarious liability, although such intervention was not recommended by the Royal Commission into Institutional Responses to Child Sexual Abuse. That said, lobbying for legislative intervention has already started, including calls by former Prime Minister Julia Gillard.

27. Consideration of non-delegable duties and whether they extend to unincorporated non-Government organisations ‘should await a case in which the issue is properly raised and the asserted duty is both identified with precision and has an adequate and factual foundation’, the High Court said.