Bird v DP: Australia restricts the scope of vicarious liability in abuse claims for ‘akin’ to employees

The High Court of Australia has unanimously overturned the decision of the appellate court to allow an appeal and find that a Roman Catholic Diocese could not be vicariously liable for abuse committed by one of its priests. Ian Carroll, Partner and Head of Abuse Law, and Lauranne Nolan, Associate and safeguarding lead in the Keoghs Specialist Abuse team, consider the decision in Bird v DP [2024] HCA 41 and contrast the decision with the approach taken in England and Wales.

Background

The claimant, DP, pursued a claim against the Roman Catholic Diocese of Ballarat in respect of two sexual assaults perpetrated on him by a priest of the Diocese, Father Bryan Coffey (Coffey). The abuse was alleged to have occurred when the claimant was five years old, in approximately 1971 and when Coffey, now deceased, was an assistant priest in the parish of Port Fairy in the Diocese of Ballarat.

At first instance, the Diocese was found to be vicariously liable for the assaults committed by Coffey. While the judge found that Coffey was not an employee of the Diocese, he concluded that vicarious liability applied by reason of the totality of the relationship between the Diocese and Coffey as well as his role within the Port Fairy Catholic community. The judge assessed DP’s damages in the sum of $230,000.

The Appeal

The Diocese appealed on the following issues relevant to vicarious liability:

1. Whether, under the common law of Australia, absent a relationship of employment between a wrongdoer and a defendant, vicarious liability applies or should be extended to a relationship which is not one of employment, a relationship sometimes described as ‘akin to employment’.
2. If the relationship between Coffey and the Diocese was one which gave rise to a relationship of vicarious liability, whether the Diocese was liable for Coffey’s conduct.

In allowing the appeal, the High Court, therefore, found that as there was no relationship of employment between the Diocese and Coffey, the first instance judge had extended the current law as opposed to applying it and there was no basis or foundation for this. Accordingly, the Diocese could not be vicariously liable for the abuse committed by Coffey.

As the High Court concluded there was no relationship of employment they did not, therefore, proceed to consider the second issue, often referred to as the ‘close connection’ test.

England and Wales

In England and Wales, an organisation can be vicariously liable for assaults of those individuals who are not employees but are deemed to be “akin” to employees. This arises from the Court of Appeal’s decision in JGE v Portsmouth Roman Catholic Diocesan Trustees [2012] EWCA Civ 938 in which it was found that a Roman Catholic priest was akin to an employee of the Bishop of a Roman Catholic Diocese to render it vicariously liable for any abuse committed by one of its priests.

By contrast, the position in Australia is there can be no such liability for the acts of those who are not in an employment relationship but are in a relationship “akin to employment” instead. On this basis, the decision in DP v Bird is now in direct conflict with the decision in JGE, both of which sought to address the exact same question as to whether a Roman Catholic priest is in a relationship of employment with a Bishop/Diocese.

Close connection

While the High Court in Australia did not need to address the close connection test, it is worth noting that one of the judges also commented that she would have found the abuse was not committed by Coffey in the course of or closely connected with his duties as a priest. Gleeson J stated that “the Diocese is not vicariously liable for the sexual assaults that Coffey inflicted upon DP because those torts occurred in circumstances where Coffey opportunistically took advantage of his role to commit them. The torts were therefore not committed in the course of Coffey’s performance of his role as assistant parish priest.”

Again, this is in direct contrast to the position in England and Wales following the Court of Appeal’s decision in MAGA v Trustees of the Birmingham Archdiocese of the Roman Catholic Church [2010] EWCA Civ 256 which found that the special role of the priest meant that in effect they were never ‘off-duty’ and so the abuse was committed so closely connected with his role as a priest that it would be fair and just to hold the Diocese vicariously liable. Indeed, the comments by Gleeson J more closely follow the recent comments of the Supreme Court in England and Wales in BXB v Trustees of the Barry Congregation of Jehovah’s Witnesses [2023] UKSC 15.

Conclusion

This decision in Australia is significant in relation to restricting the scope of vicarious liability for those who are not in a formal relationship of employment. However, it is also significant in terms of the contrast with the position in England and Wales in which a directly opposite approach has previously been taken with regard to the liability of Roman Catholic Dioceses for abuse committed by their priests.

This decision is also potentially reflective of the move by courts in common law jurisdictions since 2020 to restrict the expansion of vicarious liability which had been occurring in the years before. It will, therefore, be interesting to see whether the decisions of JGE and MAGA will be subject to challenge in England and Wales and move towards the approach that has been taken by Australia in Bird.

Authors: Ian Carroll, Partner and Head of Abuse & Lauranne Nolan, Associate and Safeguarding Lead