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We attended the Hearing yesterday in Canberra in Bird v DP (A Pseudonym) before the full bench of the High Court.  Here is a note of the main issues the Court ventilated with the parties and key takeaways. 

To re-cap the matter involves the appeal from Victorian regarding the abuse of a child by Father Bryan Coffey (Coffey) at the home of DP. At the time, Coffey was the assistant parish priest and taught catholic education at DP’s primary school. DP instituted proceedings against the Diocese of Ballarat (the Diocese) on two bases:

  1. The Diocese was vicariously liable for the assaults committed by Coffey.
  2. The Diocese was directly liable in negligence as a result of the failure by the then Bishop to exercise reasonable care in his authority, supervision and control of the conduct of Coffey.

The Victorian Court of Appeal found that the Diocese had not been negligent, however 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’.

The Diocese appealed to the High Court and the crux of its submissions (which are online) was that the requirement for “employment” entrenched in the doctrine of vicarious liability ought not be abandoned or extended. It submitted that to expand the doctrine to include ‘akin to employment’ would inevitably re-open conclusions previously reached by the High Court in other notable cases (incl Hollis v Vabu) and would ‘completely destabilise’ the doctrine. The Diocese submitted that any reform to the doctrine of vicarious liability is not supported by policy considerations and ought to be undertaken by the legislature rather than the Court.  In reply DP argued that the Diocese exercised control over Coffey in a manner consistent with that of an employer. It was submitted that employment and true agency are not exclusive categories of vicarious liability and to extend the scope of the doctrine would not be prohibited by prior decisions of the Court.

Significant weight was given by the Diocese to the lack of legally enforceable rights and obligations in the relationship between the Diocese and Coffey.  This was because any control held by the Diocese over the priest was due to voluntary subjection only. It was also submitted that the Victorian Court of Appeal had misapplied the principle in Prince Alfred College, arguing that the Diocese’s arrangements did not provide an occasion for the commission of the criminal act in the sense that the relationship which gave rise to the risk of harm was between the priest and the parents of DP.  In reply DP submitted that the Diocese had placed Coffey in a specific role which provided him with authority, power, trust, control and the ability to achieve intimacy with DP. That role carried inherent trust and the Diocese became vicariously liable at the point Coffey abused that trust.

DP had lodged a notice of contention on the direct liability point where the Victorian Court of Appeal found against him.  On that issue DP submitted that the Diocese owed a non-delegable duty to protect him from the risk of sexual abuse by priests in the course of their functions and duties. The risk of sexual assault of vulnerable individuals by clergy was well known and the Diocese breached the duty by taking no steps to prevent a vulnerable child from being alone with a member of the clergy. The Diocese argued in response that any imposition of a non-delegable duty for intentional wrongdoing would overrule the principles in Lepore and would be beyond the scope of the duty’s protective rationale.

The bench appeared to grapple with issues relating to non-delegable duty and the UK case of Woodland v Swimming Teachers Association [2014] AC 537 (which involved an appeal by a 10 year-old child who suffered a serious brain injury during a school swimming lesson).  Woodland is a leading UK Supreme Court case on non-delegable duties of care. In Woodland it was argued that the appellant’s school ought to be held responsible for her injures despite not employing either the swimming teacher or the lifeguard. The case developed a framework whereby a non-delegable duty will be imposed if 5 key features are met:

  1. The plaintiff is especially vulnerable or dependent on the protection of the defendant against the risk of injury.
  2. There is an antecedent relationship between the plaintiff and the defendant, independent of the negligent act or omission:
    1. Which places the claimant in the custody, care or charge of the defendant, and
    2. From which one can impute to the defendant the assumption of a positive duty to protect the claimant from harm.
  3. The claimant has no control over whether the defendant performs its obligations personally or through employees or third parties.
  4. The defendant delegated to a third party a function that was an integral part of the positive duty which it had assumed towards the claimant and the third party is exercising the defendant’s custody, care of and control over the claimant.
  5. The third party has been negligent in the performance of the very function delegated to it and not just in some collateral respect.

There was lengthy discussion between the High Court bench and DP’s Counsel yesterday as to whether a special duty ought to be imposed as the Diocese had ‘undertaken the care, supervision or control’ of the child as to ‘assume a particular responsibility for his safety, in circumstances where the person affected might reasonably expect that due care will be exercised’ as discussed in Kondis v State Transport Authority (1984) 154 CLR 672. DP submitted this aptly described the relationship between the Diocese and DP. The Diocese robustly disagreed, arguing that the Diocese could not have assumed responsibility for the child in circumstances where the offending occurred within DP’s own home.

Questions as to what constitutes a parish were levelled at both parties, with competing arguments advanced. Chief Justice Gageler heavily questioned DP as to the proposed scope and breach of the non-delegable duty and indicated that the scope and breach are both seemingly unclear. Questions from Justice Edelman were directed towards both parties, with a strong focus upon the overlapping notions of vicarious liability and a non-delegable duty and what is, in his view, an issue of categorisation, questioning whether it is indeed the case that an expansion of the doctrine would require a reopening of prior decisions.

Our impression yesterday is that there was some real grappling by the bench of the potential impacts of expanding the vicarious liability doctrine outside the traditional employment relationship.

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