Vicarious liability in the context of historic abuse claims - High Court - DP v Bird

We confirm that the appeal of Bird v DP (A Pseudonym) [2023] VSCA 66 continues to proceed through the High Court with the appellant (the Diocese) having filed its submissions (attached).

The claim involves the appeal from a decision of the Victorian Court of Appeal regarding the abuse of a child by an assistant parish priest. The Victorian Court of Appeal agreed that while the priest was not an employee of the Diocese (who was itself found not to be negligent) that it was still vicariously liable for the priest’s historic acts of criminal abuse.

The High Court appears to have been waiting for a proper vehicle to re-consider the issue of vicarious liability and granted leave in a special leave application (20 October 2023) spanning only 6 minutes. Leave was granted against a background where there has been a general expansion of the approach to vicarious liability in the context of historic abuse particularly in the UK and Canada.

The Diocese in its submissions identified three issues for consideration by the High Court including:

1. whether, as a matter of the common law of Australia, the doctrine of vicarious liability applies – or should be extended – to a relationship which is neither one of employment nor “true agency”
2. whether the “relevant approach” explained in Prince Alfred College requires the precise identification of the position in which a defendant put the tortfeasor vis-à-vis a plaintiff and how that position led to the tort which eventuated, and
3. whether the appellant (the Diocese) owed the respondent (DP) a non-delegable duty of care to protect him from the risk of sexual abuse by its priests, in the course of their functions and duties as a priest.

It was submitted by the Diocese that the High Court should not depart from its prior decisions regarding vicarious liability and that there must continue to be a relationship of employment. To depart from prior decisions was said to potentially result in uncertainty and would be an expansion of the current approach.

We note that the potential reach of the Courts decision may well extend beyond the organisations frequently the subject of historic abuse claims (religious bodies (priests/assistant priests), government (i.e. foster parents) and non-profit organisations (volunteers)) but to all non-employee relationships including to that of principal and subcontractor.

The High Court has set a date for the hearing of 14 March 2024 and we will notify you of how we the oral submissions and hearing develops. We would not anticipate a decision being delivered until mid-2024.

Sparke Helmore will continue to maintain its overview of the appeal and this frequently altering area of law and will provide further updates as they occur.