Bird v DP (A Pseudonym): What are the bounds of vicarious liability?

Bird v DP (A Pseudonym) [2024] HCA 41

Background

In 2020, DP commenced proceedings in the Supreme Court of Victoria claiming damages for psychological injuries he had sustained as a result of abuse perpetrated by Father Bryan Coffey (Coffey) during pastoral visits to his home in 1971. The abuse occurred on two occasions:

1. in DP’s home when Coffey offered to put him to bed, and
2. in a tent in the garden of the family home on Boxing Day after DP took Coffey outside to show him the tent he received as a Christmas present.

Coffey was ordained in July 1960 and in 1966, was appointed by the then Bishop of Ballarat to St Patrick’s parish church in Port Fairy as an assistant parish priest. Coffey was engaged in this role at the time of the alleged abuse in 1971. The Bishop, and the Diocese, exercised no direct control over Coffey’s hours of work, his day to day tasks or his manner of carrying them out and were subject to the supervision of the parish priest.

DP alleged that the Diocese was vicariously liable for the actions of Coffey and, that it was liable in negligence as the Diocese failed to exercise reasonable care in its authority, supervision and control of the conduct of Coffey.

The primary judge agreed with the position of DP on vicarious liability and held 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 were part and parcel of Coffey’s role and placed him in a position to perpetrate the alleged abuse.  The Victorian Court of Appeal agreed 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’ on the basis of the following features of the relationship:

1. The Diocese appointed Coffey to be assistant priest and had ultimate control over the parameters of his appointment.
2. Coffey’s work was not carried out independently of the Diocese, but as a representative.
3. The Diocese provided for his livelihood.
4. Coffey was “the servant of the Diocese, not withstanding that he was not, in a strict legal sense, an employee of it”.

High Court Appeal

The Diocese was granted leave to appeal to the High Court and the Court was asked to consider whether, in the absence of employment, the Diocese was vicariously liable for the unlawful actions of Coffey.

In considering the appeal, Gageler CJ, Gordon, Edelman, Steward and Beech-Jones JJ (the majority) noted that the following must be satisfied:

1. whether the alleged tortfeasor was an employee of the defendant, and
2. whether the relevant act or omission of the alleged employee took place in the course or scope of that employment.

The majority held that the unlawful acts perpetrated by Coffey were not done (and could not be done) as the ‘true agent’ of the Diocese, as he was not acting with the Diocese’s express, implied, or apparent authorisation and at no time were his actions ratified by the Diocese. Importantly, the majority also found that the relationship of employment was a necessary precursor to a finding of vicarious liability.

When considering whether the doctrine of vicarious liability ought to be expanded beyond its current definition, the majority noted that over the last 25 years, the High Court had repeatedly refused to extend the boundaries to include independent contractors or by reference to policy considerations.  Whilst the doctrine of vicarious liability (and its application to relationships outside of employment) had been redrawn and expanded in other countries (including the UK and Canada), the High Court had consistently rejected that approach in Australia.  The majority stated that there is “no solid foundation for expansion of the doctrine or for its bounds to be drawn” and predicted that issues may arise by re-drawing such a boundary.

The majority held that no extension to the doctrine of vicarious liability should be allowed and that it was not open to hold the Diocese vicariously liable for Coffey’s actions in the absence of an employment relationship.

What does that mean for us?

The High Court has unanimously confirmed that for a finding of vicarious liability there must be a relationship of employment.  Another relationship or one akin to employment is not enough to invoke the doctrine of vicarious liability.  The High Court has made it clear that the Court has no appetite to expand the doctrine in Australia.  This decision settles an area where there has been some uncertainty, particularly with respect to historical abuse claims where there has been a push to expand the doctrine to extend to non-employees such as volunteers, priests and foster carers. 

However, it is worth noting that the majority acknowledged that the effects of this decision were “harsh” and foreshadowed potential legislative changes in this area as “reformulation of the law of vicarious liability is properly the province of the legislature”.  For now, this decision provides greater certainty and clarity in this area, particularly for institutional defendants.