By Vincent Barry -
Key decisions
- Bird v DP (a pseudonym) [2024] HCA 41
- BIF23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 44
TORTS
Vicarious liability – where priest committed sexual abuse whilst carrying out pastoral duties as representative of Diocese – whether vicarious liability extends beyond relationships of employment to relationships ‘akin to employment’
In Bird v DP (a pseudonym) [2024] HCA 41 (13 November 2024), the High Court allowed an appeal by the Bishop of Ballarat, who was the nominated defendant in the original proceedings for the Roman Catholic Diocese of Ballarat (‘the Diocese’), against the respondent (‘DP’), who was assaulted and sexually abused by a priest of a church within the Diocese (‘the Priest’) in 1971 when he was five years old. In 2020, DP sued for damages for psychological injuries arising from the abuse and alleged the Diocese was vicariously liable and liable in negligence for failing to exercise reasonable care in its authority, supervision and control of the Priest’s conduct. The Priest assaulted and abused DP twice while visiting DP’s home: once when he volunteered to put DP to bed after a dinner party and once inside a tent when DP showed him the tent which was a Christmas gift.
Original proceedings
The primary judge in the Supreme Court of Victoria and the first appeal judge in the Court of Appeal decided in favour of DP. The primary judge interpreted the Australian case law (Hollis v Vabu Pty Ltd [2001] HCA 44, Sweeney v Boylan Nominees Pty Ltd [2006] HCA 19 and Prince Alfred College Inc v ADC [2016] HCA 37) and some Canadian and United Kingdom case law (Bazley v Curry [1999] 2 SCR 534 and Various Claimants v Catholic Child Welfare Society [2013] 2 AC 1) as not ‘foreclosed’ to expanding vicarious liability to the relationship of a priest with their diocese and rejected the Diocese’s argument that Australian courts have adopted a ‘confined theory’ of vicarious liability where it is strictly confined to relationships of employment (at [7]). To determine if vicarious liability was made out in this case, the primary judge assessed the totality of the Priest’s relationship with the Diocese according to factors outlined at [9].
