The Victorian Supreme Court of Appeal on 3 April 2023 ruled that a Diocese was liable for the criminal acts of an assistant priest as an ‘apparatus of God’ – leaving little scope to separate the intentional wrongs of a member of clergy from the religious institution. This article explores the factors propelling the evolution of vicarious liability to retrofit intentional torts to non-employees and the implications for religious institutions.
Snapshot
No other case in Australia has held a religious body vicariously liable for the criminal acts of a priest, a non-employee. The decision of Bird v DP [2023] VSCA 66 (Bird) retrofits the principles of vicarious liability to bridge the gap in the law that arguably previously existed to enable religious institutions to deny liability in claims of clergy abuse. This will prove problematic for religious institutions’ supervision of past and present clergy, as liability of religious institutions is now extended to, arguably, all actions of clergy.
What is vicarious liability?
Vicarious liability is where a person who has been wronged can sue a principal of the wrongdoer. The principal “stands in the shoes” of the wrongdoer, and no fault is required to be established on part of the principal being sued.
To establish vicarious liability, two conditions must be satisfied. First, the relationship between the wrongdoer and the principal must be one to which vicarious liability applies; in Australia this has traditionally been limited to one of employer / employee. Second, the conduct in question must be “in the course of employment.”
The Evolution of the Vicarious Liability Doctrine in Australia
Whilst the concept of vicarious liability is simple in principle, its application is problematic in the context of criminal acts, particularly sexual offences.
In 2003, the High Court addressed the uncertainty of imposing vicarious liability for sexual assaults in the case of New South Wales v Lepore & Anor [2003] 212 CLR 511 (Lepore). Lepore involved a Housemaster sexually abusing a student. The employment relationship was not in contention – the issue was whether the school authority could be held vicariously liable for its employee’s sexual assaults upon the student.
In Lepore the High Court held that vicarious liability might be established in circumstances where the sexual assault was ‘in the course of employment.’ Again, though simple in principle – there was no majority as to whether the sexual acts of a teacher were ‘in the course of employment’, which left the boundaries of vicarious liability open for interpretation.
This uncertainty compelled the High Court, whilst adjudicating a separate issue in the case of Prince Alfred College v ADC [2016] HCA 37 (PAC), to provide the “relevant approach” [80], [81] being:
- Consider any special role that the employer has assigned to the employee and the position in which the employee is thereby placed vis-à-vis the victim; and
- in determining whether the apparent performance of such a role may be said to give the “occasion” for the wrongful act, particular features may be taken into account. They include authority, power, trust, control and the ability to achieve intimacy with the victim.
It has since followed that an employer may be vicariously liable for the sexual assaults of the employee where it can be shown that the two limbs of the “relevant approach” are satisfied. Yet its application in the context of criminal wrongs by non-employees has historically remained uncertain.
As a consequence and perhaps due to the culmination of – society’s understanding of the pervasive nature of sexual assault upon children in society; its unearthing by the Royal Commission into Institutional Responses into Child Sexual Abuse and other enquiries; and the growing litigated space to hold wrongdoers to account – that the Courts have faced a reckoning as to the application of vicarious liability in this context with these issues directly addressed in DP v Bird [2021] VSC 850 (DP v Bird).
The growing pressure to retrofit vicarious liability for sexual batteries apply to non-employees
Sexual offences, particularly against children, are clearly not in an organisation’s contemplation or intention when engaging and empowering an agent, employee or member of clergy.
Notwithstanding this, the law has moved to extend liability to apply to sexual assault, such as in Lepore; the effect of doing so has equally challenged the bedrock upon which such principle relies: that the relationship between the wrongdoer and principal is one of employment.
As it currently stands, Bird v DP, at least in the context of clergy, has rendered the employment relationship test in vicarious liability, obsolete.
Bird v DP is particularly monumental for religious institutions as the Court held that the Diocese was vicariously liable for the tortious acts of an assistant priest (Coffey). It was reasoned that Coffey was an “emanation” of the Diocese and was empowered to abuse DP by virtue of his standing as a man of God. Given Coffey’s omnipresent role, the Court found no distinction between his supposed personal actions and those taken in his capacity as an Assistant Priest.
The decision of DP v Bird in the first instance
The decision of Forrest J in DP v Bird on 22 December 2021 concerned allegations of sexual abuse by Father Coffey, an Assistant Priest in a small regional town, comprised mostly of Catholics. DP’s family were committed Catholics and he attended the local Catholic Primary School were Coffey taught him Religious Instruction.
DP said he was abused on two occasions; the first in his private home at his grandmother’s wake, the second again in DP’s family home at Christmas, where Father Coffey was making a visit.
Father Coffey was convicted of abusing other children, but not DP.
The Court held the Catholic Archdiocese Diocese was not negligent, but vicariously liable for Coffey’s acts of abuse on DP.
Forrest J‘s applied the “relevant approach” and the assessment focused on these “fundamental and closely interrelated questions” –
- ‘First, was the relationship between Coffey and the Diocese or Bishop such that it gives rise to vicarious liability on the part of the Diocese for Coffey’s conduct?’ [120]
Forrest J rejected the argument that vicarious liability, as set by PAC, is confined to an employer/employee relationship and that ‘whether or not a priest can be said to be an employee of his or her diocese or bishop turns on the facts of the case, in particular, the manner of the priest’s appointment and the nature or structure of the relevant religious organisation.’
- ‘Second, if there is a relationship that gives rise to vicarious liability, is the Diocese or the Bishop liable for Coffey’s unlawful conduct, it being accepted that the assaults were unlawful and far outside Coffey’s clerical role?’ [123]
Satisfied that the relationship was one of which vicarious liability could apply, Forrest J considered whether the Diocese could be liable for the sexual assaults which were beyond the scope of Coffey’s engagement.
In reviewing the influence of the Catholic Diocese in the Port Fairy community and the pastoral role of Coffey within both the community and DP’s family, Forrest J held the Diocese was vicariously liable for Coffey’s sexual assaults of DP [282].
On appeal
Bishop Bird, as the nominated Defendant of the Diocese, sought leave to appeal the decision of the Supreme Court on two grounds:
- The Court erred in finding vicarious liability when Coffey was not an employee
The Diocese argued that the Court had no authority to depart from existing jurisprudence and the decision was inconsistent with High Court authority. Further the trial judge had conflated the assessment of the second limb with the first, and that the indicia of Coffey’s role as an assistant priest did not equate to an employment relationship.
Their Honours Beach JA, Niall JA and Kaye JJA rejected ground one [131], reasoned that the primary inquiry of vicarious liability has necessarily shifted from the traditional confines of an employment relationship given its “elusive” application. In acknowledging the relationship between Coffey and the Diocese was based upon ecclesiastical hierarchy and is sui generis (a class of its own), the Court of Appeal reasoned that these very features do not preclude a vicarious relationship.
In finding that a vicarious relationship did apply, the Court reasoned that Coffey was a servant and or “emanation” of the Diocese as he was subject to the direct and exclusive control of the Bishop and could not delegate his role as Assistant Priest.
- In the alternative, if the Court found that the relationship between the Diocese and Coffey gave rise to a relationship of vicarious liability, the trial judge came to an erroneous conclusion in finding that the Diocese was liable. The underlying misapprehension related to the assertion that Coffey was under the control of the Bishop and that the visits made to the victim’s home were pastoral duties.
In respect of ground two, the Diocese argued that there was an insufficient basis to support a finding that it provided Coffey the opportunity to abuse DP. It was submitted that the Diocese did not exercise unfettered control over the actions of Coffey in either a general or minute sense in his assistant priest duties. It was argued that Coffey’s interactions with the family when the abuse occurred were in a private and social context, removed from his duties as an Assistant Priest.
The Court of Appeal disagreed [163]. The evidence of Father Dillon was referred in which he described the role of a priest as 24/7 and ‘never really off duty’ in support of a finding by the Court that a priest’s social life was so intertwined with his pastoral function that there was little distinction to that of any personal life. In applying the “relevant approach” the Court found that the position in which Coffey was appointed engendered reverence, authority and power to enable Coffey to be in a situation where he is in the DP household, and to abuse DP, a minor.
The Victorian Supreme Court of Appeal upheld the decision of the Supreme Court in DP v Bird in finding the Catholic Diocese of Ballarat vicariously liable for the criminal intentional torts of its Assistant Priest, Father Coffey.
Implications for Institutions
Bird v DP in our view creates a new basis for the application of vicarious liability to religious institutions. Arguably the case elevates the obligation of religious institutions to a standard of strict liability for the actions of clergy.
Given the inherent and omnipresent nature of the “calling” of a priest or member of clergy, the Victorian Supreme Court of Appeal has moved, no doubt in part due to community concerns about the insidious nature of clergy child abuse to impose upon religious institutions a duty to exercise “control” over its clergy (past and present) twenty four hours a day seven days a week. It thus seems that most actions of clergy are ostensibly within the control of the relevant church or diocese.
This gives rise to the following issues facing religious institutions:
- Must the perception of power, authority and charisma be viewed from the eyes of the victim, or a (section) of society, generally?
- Are all actions by members of clergy an embodiment of the power of the institution?
- Do the same principles necessarily extent to retired or no longer licensed members of clergy? Presumably they must so, given the perception of authority and power is not derived from the paper license but one’s own gravitas as holding out to be a “man of God”.
What is next?
The case is currently before the High Court of Australia and it remains to be seen whether the high Court will endorse the decision of the Court of Appeal.
Clearly, there is a need to hold enabling institutions of structural wrongdoing to account. It has been suggested that as an alternative to vicarious liability, that a non-delegable duty be imposed on religious institutions to apply to child parishioners.[i] It is not immediately clear how the imposition of a non-delegable duty of care will resolve the possible gap in liability as the boundaries of its application may be no clearer than in vicarious liability. For instance:
- in historical cases, it is not often or easily established that a victim was a parishioner;
- not often the case that parishioners and or other minors were under the care and supervision or a Church; and
- abuse often occurs beyond the context of organised and sanctioned Church activities.
In the meantime, plaintiffs will be encouraged to advance their common law cases against institutions given this significant development in vicarious liability. That said, although with greater certain in favour of plaintiffs, its application on a case-by-case basis against religious institutions will still require a close factual analysis.
Claire Stratton
Senior Lawyer
Nevett Ford Lawyers
4 July 2023.
[i] See ‘Vicarious Liability of Bishops for abuse committed by clergy’ blog post dated 30 December 2021 by Neil Foster, available at: https://lawandreligionaustralia.blog/2021/12/30/vicarious-liability-of-bishop-for-abuse-committed-by-clergy/#more-8581 accessed 4 July 2023.