Select Page

Vicarious Liability and Expert Evidence

by | Feb 10, 2022 | Not for Profit & Social Enterprise

Case update – DP v Bird [2021] VSC 850 (22 December 2021)

Just before Christmas, the Supreme Court of Victoria handed down a landmark decision concerning vicarious liability.

In Australia the doctrine of vicarious liability applies where an employer is liable for the wrongful acts of its employees.

In the United Kingdom and Canada court decisions have extended the application of the doctrine beyond the employer – employee relationship to relationships where a person is in a position of trust without necessarily being an employee.

This decision is the first of its kind as it found that the Catholic Diocese of Ballarat was vicariously liable for the assaults of its (non-employee) licensed Priest committed on the Plaintiff. Churches in Australia have routinely maintained that their clergy are not their employees but rather people following a vocation or calling from God and by extension have used this to distance themselves for liability for the tortious conduct of their clergy.

The judge found that that the Priest, being under the direction of the Diocese, placed him in a position of power and intimacy with DP that enabled him to take advantage of DP when alone. This position significantly increased the risk of harm to DP. The Priest took advantage of his position as a confidant and pastor to DP’s family enabling him to assault DP and this rendered the Diocese liable for his assaults.

However, the Court found that the Diocese was not directly liable in negligence – mainly as the Plaintiff failed to prove that the Diocese knew or ought to have known of the foreseeable risk that the Priest posed to the Plaintiff.

On another point, the judgment was critical of the Plaintiff’s solicitors in the briefing they gave their expert medico-legal witness, which omitted records and notes from two treating practitioners from over a twenty year period. This left the Court having to make its own assessment of what was the injury, when it occurred and what loss it caused rather than rely on what the expert witnesses had in their reports and said in oral evidence.

The Plaintiff’s ‘ambitious’ (as the judge called it) economic loss claim based on a forensic accountant’s report ultimately failed for the simple reason that the Court found, in the absence of reliable expert evidence, that the effects of injury arising from the Priest’s unlawful assaults did not commence until after the Plaintiff had ceased to have a work capacity for other unrelated reasons.

This reinforces the importance of expert witnesses being provided with all relevant material so that their opinions on which courts rely are accurate and reliable.

For more information, please contact Claire Stratton on +613 9614 7111 or at cstratton@nevettford.com.au.