*Disclaimer: This article contains details about sexual assault/abuse which may be upsetting for some readers. Reader discretion is advised.

On 13 November 2024, The High Court of Australia handed down a landmark judgment in Bird v DP (a pseudonym) [2024] HCA 41 (Bird v DP). 

In the majority judgment of Gageler CJ, Gordon, Edelman, Steward and Beech-Jones JJ (Majority Judgment), the High Court found that on the question of whether vicarious liability ought to be extended to apply to relationships which are "akin to employment", "the answer is no". [47] 

Accordingly, as there was no relationship of employment between the Diocese and its priest in the case, Father Bryan Coffey (Coffey), the Diocese's appeal was allowed (with costs).

The High Court also refused to consider DP's argument that the Diocese owed him a non-delegable duty of care.

In March 2020, DP initiated proceedings in the Supreme Court of Victoria against the Catholic Diocese of Ballarat. DP claimed damages for psychological injuries he sustained as a result of alleged sexual abuse by an Priest of the Diocese, Father Byran Coffey (Coffey). DP claimed that the Diocese was both liable in negligence, or alternatively vicariously liable, for the alleged sexual abuse by Coffey. 

DP alleged that on two occasions in 1971, Coffey assaulted him in his family home. The first assault took place at what the primary judge deemed to be likely 'a social gathering at the family home attended by Coffey'. The second assault took place when Coffey was visiting DP's family home. The primary judge found that both assaults occurred.

The primary judge found that Coffey was not an employee of the Diocese, but nonetheless considered that the law required a 'holistic and broad enquiry into the circumstances surrounding the relationship between the Diocese and Coffey', Coffey's role within the Diocese, and by extension, to DP and his family. 

It was found that the Diocese had ultimate control over the parameters of Coffey's appointment and that 'it was the will of the Diocese that Coffey received and maintained the assignment for the entire period', including his roles and responsibilities assigned in the course of, and during the period in which the assaults took place. 

Whilst neither the Bishop nor the Diocese exercised actual control over Coffey's work, it was found that the Diocese had 'the right to exercise control over certain aspects of a priests' work'.

The primary judge accordingly held the Diocese vicariously liable for the assaults, in circumstances where DP's claim that the Diocese was directly liable to him in negligence had failed. 

The Diocese appealed the judgment at first instance. In April 2023, the Victorian Court of Appeal handed down its judgment, dismissing the Diocese's appeal. The Court of Appeal unanimously upheld the primary judge's conclusion that the Diocese was vicariously liable for the two assaults committed by Coffey, rejecting the Diocese's submission that vicarious liability was confined to a relationship of employment. 

The Diocese applied for and was granted leave to appeal to the High Court, with the appeal heard before the full bench of the High Court on 14 March 2024.

The appeal was "the first time [the High Court] has been asked to consider whether, absent a relationship of employment between a wrongdoer and a defendant, a diocese or a bishop may be held vicariously liable for the unlawful actions of a priest who sexually abuses a child".

In allowing the appeal and setting aside the Court of Appeal's orders, the High Court confirmed that, in the absence of a relationship of employment between the Diocese and Coffey, the Diocese could not be held vicariously liable for the assaults. 

The High Court maintained its refusal to follow the approach taken in overseas jurisdictions, particularly in the United Kingdom and in Canada, where vicarious liability has been expanded in recent years. The High Court noted the uncertainty created in those jurisdictions by the imposition of vicarious lability outside of strict employment relationships.  

"The redrawing of the boundaries in Canada and the United Kingdom of the relationships between a tortfeasor and one who may be liable for the conduct of the tortfeasor under the rubric of "vicarious liability" has previously been rejected by this Court on a number of occasions at a level of principle. Moreover, subsequent history has also shown that the expansion adopted by those countries has not been without difficulty. " [50]

The High Court stated that the approaches adopted in the United Kingdom and in Canada "do not reflect the current state of the law in Australia". 

The High Court further stated that it is for the legislatures to expand vicarious liability.

In a separate judgment, Justice Gleeson dissented from the majority, concluding at [176] that the "relationship between Coffey and the Diocese is fairly described as 'akin to employment' by reason of its characteristics that are relevant to the justifications for the imposition of strict liability, and because Coffey cannot be classified as an independent contractor". However, Justice Gleeson held that the primary judge and the Court of Appeal erred in finding that the assaults were committed by Coffey in the course of his relationship with the Diocese.

This decision will have major ramifications in the Institutional Liability space in Australia, including on the ability of claimants to recover damages against institutions where no relationship of employment exists between the institution and the alleged offender.