By Paul Gregoire and Ugur Nedim
DP was only 5 years old in 1971, when he alleges he was sexually assaulted by a Catholic priest visiting his parents in the southwestern Victorian town of Port Fairy.
Over two visits to the family home in the capacity of an assistant parish priest at the St Patricks local parish church for the Roman Catholic Diocese of Ballarat, Father Bryan Coffey is accused of having groomed and then sexually abused the child.
Proceedings were commenced in respect to this in the Victorian Supreme Court in 2022, claiming the Diocese was vicariously liable for the actions of now deceased Coffey. Justice Terence Forrest found the Diocese was liable in 2021, even though Coffey was not its employee, as in Australia, the clergy, including priests, are considered to be office holders or holders of a religious office.
The Diocese was, therefore, not found directly liable nor negligent, but it was ordered to pay damages to DP to the cost of $230,000.
The Diocese then appealed this decision to a three-justice bench of the Victorian Court of Appeal in early 2023, claiming that as Coffey wasn’t found to be an employee, there was an issue with finding the Diocese vicariously liable for his abusive behaviour, or that even if the Diocese was in a relationship of voracious liability that did not make it actually liable. Yet, the appeal failed.
The High Court then granted the Diocese special leave to appeal, and on appeal, it raised three issues: whether vicarious liability should apply to a nonemployment relationship under common law, whether finding vicarious liability relationship established makes the Diocese liable, and whether DP’s “contention that the Diocese is liable for breach of a non-delegable duty owed” holds.
The position the High Court unanimously came to in November last year was that in Australia, “an employer may be vicariously liable for the acts of its employees, but there is no such liability for the acts of those who are not in an employment relationship but, instead, are, for example, independent contractors or in a relationship ‘akin to employment’”.
Lower court findings
The majority High Court ruling produced by Chief Justice Stephen Gageler and Justices Michelle Gordon, James Edelman, Simon Steward and Robert Beech-Jones found that the primary judge considered that while the Diocese had appointed Coffey as an assistant parish priest, at the time of his 1971 offending, he was not an employee or an independent contractor or a Diocese ‘agent’.
“The relationship between Coffey and the Diocese… was governed by a strict set of normative rules – encapsulated in Canon Law,” their Honours set out on 13 November 2024. “Those rules, although legally unenforceable, permitted the bishop to exercise control over Coffey that was ‘at least as great as, if not greater than, that enjoyed by an employer’”.
And while neither the Diocese and nor the Bishop of Ballarat, as its representative, exerted any direct control over Coffey’s hours of work, his tasks or his manner of carrying them out, as the supervision and direction of these activities was governed by the parish priest, who answered to the bishop, his assignment at St Patricks was ultimately controlled by the Diocese.
Further, Coffey’s work was integrally connected to the Diocese, with his performance of unsupervised pastoral visits to parishioners’ homes, which provided the opportunity and occasion to conduct the abuse. And the primary judge found that the trusted and intimate role bestowed upon DP, did establish vicarious liability in regard to the two sexual assaults Coffey perpetrated against DP.
The Victorian Court of Appeal then found that vicarious liability does extend beyond employment relationships, and it did apply to the relationship between Coffey and the Diocese, because the latter maintained ultimate control, and Coffey’s work was not independent of the Diocese, his being a part of the clergy provided him “charisma and authority” and he was in fact the servant of the Diocese.
Vicarious liability
Vicarious liability is used to describe various types of liability in different areas of law.
Vicarious liability is often used when an individual is acting as an agent for a principal. But this relationship triggers primary liability as the agent is acting on behalf of the principal with their authorisation, and therefore, vicarious liability refers to acts that are directly attributed to the principal.
The term is also used in regard to a non-delegable duty, but liability for a non-delegable duty is direct and not vicarious. These relationships involve responsibility and include those of an employer and an employee and a school and a student. A key example of this is an employer being negligent for the unsafe working conditions of an employee.
DP called on the High Court to affirm the appeals court finding that the Diocese was in breach of its non-delegable duty to protect against the sexual abuse of priests. However, as this was this first time this position had been raised during the various cases, it was found that such a contention could not be cited for the first time when seeking special leave to the highest authority. So, it was dismissed.
“As a general rule, all substantial issues between parties should be settled at trial and new issues should not be raised on appeal,” their Honours said, and added that this rule is not absolute, but it generally pertains when a point has not been raised at pleading or at trial, and neither was it the subject of evidence, and therefore, it would require a fresh consideration of facts.
The third part of law where vicarious liability is correctly used in cases are those that consider secondary liability based on the attribution of the liability, not the attribution of acts, of a wrongdoer to a principal. This is vicarious liability in its propers sense. And in these cases, the principal is found liable for the wrongdoings of another, despite not being directly at fault.
“The common law of Australia, as repeatedly stated by this court, has adhered to the rule that a relationship of employment is a necessary precursor to a finding of vicarious liability,” their Honours noted.
“In that context, a relationship of employment operates within a legal framework, defined by statute and by common law principles which inform the content and construction of a contract of employment.”
Vicarious liability holds in Australia in cases of employment, but not outside of this relationship in the case of third parties. Therefore, if an act of the subject of a complaint is not that of an employee, the principal cannot be found liable. And further the act of the employee must be carried out in the capacity of their employment in order for the employee to be found liable.
So, the issue being considered was whether this should be extended to hold to relationships akin to employment, and the High Court unanimously considered this was not the case. Their Honours further pointed out that the authorities over recent decades have all confirmed this relationship does not extend to “independent contractors” or other similar arrangements.
The addition of the Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (VIC) in Victoria has allowed for liability to be found in cases where child abuse has taken place in institutional situations involving unincorporated nongovernment organisations, however this still requires an employment relationship. So, these laws haven’t altered vicarious liability.
The conclusion of the High Court
“This is not one of those areas of the law where the intersection between the common law and statute permits the court to analogise from statute to adapt or expand the principle of vicarious liability beyond relationships of employment,” their Honours concluded.
Based on these reasons, the High Court quashed the findings of the lower courts, which included the Diocese having been found liable, on 13 November last year.
So, the Diocese owed DP no compensation, as it bore no vicarious liability in relation to Coffey, but the institution did agree to pay his court costs.
High Court Justices Murray Gleeson and Jayne Jagot agreed with the findings and the orders of their five colleagues in the main part of the ruling. However, both their Honours provided their own individual findings to come to this same conclusion.
