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DP v Bird: is vicarious liability

DP v Bird: is vicarious liability “on the move” in historical abuse proceedings?

Published on April 21, 2022 by Charles HarrisonCharles Harrison

This article was first published within LexisNexis’ newsletter Australian Civil Liability, Volume 17 No 1, March 2022.


DP (a pseudonym) v Bird1 is a Victorian Supreme Court decision of J Forrest J (Forrest J) handed down on 21 December 2021.

This decision is of interest for a number of reasons including the overall quantum awarded, the award of aggravated damages, and the failure of the Plaintiff’s case in negligence. This article will focus on its ramifications upon the law of vicarious liability, specifically the availability of such a finding in historical abuse proceedings and what, if any, tension exists between this decision and the earlier 2021 decision of the Victorian Supreme Court in PCB v Geelong College.2

Introduction and background

The Plaintiff (DP) alleges that he was sexually abused by Father Coffey (Coffey), a priest incardinated within the Diocese of Ballarat (the Diocese), on two occasions in 1971. The alleged abuse, on both occasions, occurred at DP’s family home. At the time of the alleged abuse, Coffey was the assistant parish priest to Father O’Dowd at St Patrick’s Port Fairy (located within the Diocese) and a teacher at the associated St Patrick’s primary school (the school). Father Coffey taught at the school during the relevant period.

In its defence, the Diocese admitted that during 1971, the Diocese, through the Bishop appointed priests to parishes within the Diocese including St Patrick’s and that “Father Coffey’s duties as a priest at the church and in the Diocese including the provision of pastoral guidance and support and spiritual guidance to members of the congregation that worshipped at the church”.3 The Diocese denied that it was vicariously liable for Coffey’s actions as a Catholic priest.4

The vicarious liability arguments

Whether the Diocese was vicarious liable for any assault of DP by Coffey was one of the six primary issues to be determined.5 Justice Forrest ultimately accepted that DP was abused on two occasions.6 Consequently, in deciding whether to impose vicarious liability on the Diocese, Forrest J posited that this task raises two “fundamental and closely inter-related questions”:7

1.   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?8

2.   If there is a relationship that gives 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?9

Justice Forrest ultimately answered both questions in the affirmative and, thus, imposed a finding of vicarious liability on the Diocese.

Question 1 — nature of the relationship

DP’s argument

DP asserted that, following authorities from the UK and Canada, as well as the decision of the High Court in Prince Alfred College Inc v ADC,10 the Diocese ought be vicariously liable irrespective of whether Coffey was an employee of the Diocese. Justice Forrest determined that “a finding of vicarious liability is not limited by any lack of formal employment indicia such as written contract” and should be determined by “reference to a number of the factors identified by the High Court in Hollis v Vabu Pty Ltd in terms of the totality of the relationship between the Diocese and Coffey”.11

Diocese argument

The Diocese position was that, unless it can be proven Coffey was an employee of the Diocese at the time of the alleged abuse, then it cannot be vicariously liable for Coffey’s conduct. The Diocese relied on the High Court authority of Sweeney v Boylan Nominees Pty Ltd12 arguing that, as the law in Australia presently stands, considering vicarious liability outside of an employment scenario is prevented.

Justice Forrest raised that “it is clear that there is no presumption in Australian law that a religious cleric is not or cannot be an employee of a religious organisation and Church13 and continued that 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”.14

Justice Forrest analysed the Australian authorities of Sweeney, Hollis,15 Prince Alfred College, Plaintiff A and B v Bird,16 and Roman Catholic Trusts Corp for Diocese of Sale v WCB,17 as well as authorities from Canada and the UK.18 He concluded that “it seems to me to be tolerably clear that the Court in Prince Alfred College did not endorse a confined theory of vicarious liability (restricted solely to an employer/employee relationship) as contended by the Diocese”.19

His Honour also spent time exploring the applicability of Sweeney in the context of this proceeding which involved alleged abuse by Coffey — a parish priest. He noted that Sweeney “stands for the proposition that a principal cannot be liable for the acts or omissions of an independent contractor — no more, no less”.20

Justice Forrest decided that “for present purposes, I will accept that Coffey was not an employee of the Diocese21 but otherwise found in DP’s favour in response to Question 1. His Honour determining that vicarious liability ought not be limited to “preconceived notions of agency or employment” and, in line with Prince Alfred College, “the inquiry ought to be directed to the totality of the relationship so as to enable a determination as to whether the Diocese should be held vicariously liable for Coffey’s actions as an assistant parish priest”.22

Justice Forrest determined that the task, required by Question 1, involved a holistic and broad inquiry into:23

•      the relationship between the Diocese and Coffey;

•      the role of both the parish priest (Father O’Dowd) and Coffey;

•      Coffey’s role within the Port Fairy Catholic community; and

•      Coffey’s relationship with DP and his family.

Conflict with PCB v Geelong College?

A key aspect in Forrest J’s judgment is whether and, if so, the degree to which it conflicts with O’Meara J’s findings in the Victorian Supreme Court decision of PCB v Geelong College handed down on 1 Octo- ber 2021. Importantly, in the writer’s view, DP v Bird was heard between 27 July 2021 and 30 September 2021, concluding prior to O’Meara J’s judgment in PCB v Geelong College.

PCB v Geelong College involved alleged abuse by a lay person, Mr Palframan, who held a volunteer type role at the college. It did not involve alleged conduct by a religious priest or member. Justice O’Meara found that Mr Palframan was “neither an employee nor taken to be ‘akin’ to an employee of the school”.24

Similar arguments, relying on Prince Alfred College for a finding of vicarious liability, were advanced on behalf of the Plaintiff in PCB v Geelong. Ultimately, the determining threshold issue (not satisfied) which cut off any further line of enquiry of this aspect was articulated by O’Meara J at para 309:

The presence of a relationship of employer and employee is a necessary intermediate step or foundation in the reasoning of the High Court in Prince Alfred College. I do not read that reasoning as supporting any proposition to the effect that the intermediate step may be removed, and a vicarious liability for the criminal acts of another imposed, merely by searching for what might in general terms be described as being a “special role” to be discerned by reference to a multifactorial analysis untethered to any distinct, assigned or formal relationship between the parties.

Question 2 — should the Diocese be liable?

Having answered Question 1 in the affirmative, Forrest J then turned his mind to whether the Diocese should be liable for the assaults committed by Coffey upon DP, given they were committed outside the lawful scope of Coffey’s engagement by the Diocese.25

Justice Forrest appropriated the now frequently relied upon “relevant approach” and “relevant test” paragraph of the majority’s judgment in Prince Alfred College.26 Quoting verbatim from Prince Alfred College, he tailored the relevant approach/test as follows:

The appropriate inquiry is whether [Coffey’s] role as [a priest] placed him in a position of power and intimacy vis-à-vis [DP] such that [Coffey’s] apparent performance of his role as [a priest] gave the occasion for the wrongful acts and that because he misused or took advantage of his position, the wrongful acts could be regarded as having been committed in the course of his employment.27

Justice Forrest ultimately found that Coffey was engaged in a “pastoral visit” when committing the alleged abuse28 and that the Diocese was vicariously liable for Coffey’s criminal conduct by reason of:

•      the close nature of the relationship between the Bishop, the Diocese and the Catholic community in Port Fairy (where St Patrick’s was located);

•      the Diocese’s general control over Coffey’s role and duties within St Patrick’s parish;

•      Coffey’s pastoral role in the Port Fairy Catholic community; and

•      the relationship between DP, his family, Coffey and the Diocese, which was one of intimacy and imported trust in the authority of Christ’s representative, personified by Coffey.29

In answering the second question affirmatively, For- rest J concluded:

I am also satisfied that Coffey’s role as a priest under the direction of the Diocese placed him in a position of power and intimacy vis-à-vis DP that enabled him to take advantage of DP when alone — just as he did with other boys. This position significantly increased the risk of harm to DP. He misused and took advantage of his position as a confidante and pastor to DP’s family; this enabled him to commit the unlawful assaults upon DP.30

Thus, the Diocese was held to be vicariously liable for Coffey’s alleged abuse of DP. Justice Forrest did not make a separate finding of negligence against the Diocese.

Key takeaways

Key takeaways for practitioners:

  • It remains to be seen whether Forrest J’s above findings in regard to vicarious liability are to be appealed and, if so, the outcome of this appeal.
  • Each case involving a claim of vicarious liability will depend on its specific facts and circumstances.
  • The specific role/s of the accused perpetrator vis-à-vis the supervising entity and/or individual for the accused (a religious organisation for example) needs to be closely examined, as well as the context in which the alleged abuse occurred.
  • “Watch this space” — there are likely to be further decisions in respect of vicarious liability in historical abuse proceedings in the near Appellate Courts, including the High Court, may wish to revisit the issue of vicarious liability, further to the decision in Prince Alfred College, and/or to clarify the test in Sweeney insofar as it relates to historical abuse claims. Or it may consider that the flexibility provided for in Prince Alfred College will effectively cover the factual circumstances out- lined above, analogous factual circumstances or factual circumstances not yet traversed.

In 2013, Lord Phillips summarised his view, in the UK context, that “the law of vicarious liability is on the move?31. It remains to be seen if, and to what extent, the same will apply in Australia.

For more information on the above, contact Charles Harrison.


  1. DP (a pseudonym) v Bird [2021] VSC 850; BC202114025 (DP v Bird).
  2. PCB v Geelong College [2021] VSC 633; BC202109296.
  3. Paragraphs [5] and [6] of the defence of the Diocese.
  4. Paragraph [43] of the defence of the Diocese. 
  5. DP v Bird, [53].
  6. Ibid, [104] and [115].
  7. Ibid, [119].
  8. Ibid, [120].
  9. Ibid, [123].
  10. Prince Alfred College Inc v ADC (2016) 258 CLR 134; 335 ALR 1; [2016] HCA 37; BC201608462 (Prince Alfred College).
  11. DP v Bird, [121].
  12. Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161; 227 ALR 46; [2006] HCA 19; BC200603256 (Sweeney).
  13. DP v Bird, [128] referring to Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95; 187 ALR 92; [2002] HCA 8;
  14. DP v Bird, [55] referring to Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95; 187 ALR 92; [2002] HCA 8; BC200200663, [31].
  15. Hollis v Vabu Pty Ltd (Bicycle Couriers case) (2001) 207 CLR 21; 181 ALR 263; [2001] HCA 44;
  16. Plaintiff A and B v Bird (2020) 300 IR 235; [2020] NSWSC 1379;
  17. Roman Catholic Trusts Corp for Diocese of Sale v WCB (2020) 62 VR 234; [2020] VSCA 328;
  18. These authorities included Bazley v Curry [1999] 2 SCR 534; Lister v Hesley Hall Ltd [2002] 1 AC 215; BN v Anglican Church [2020] MBQB 2; Maga v Archbishop of Birmingham [2010] 1 WLR 1441; Various Claimants v Catholic Child Welfare Society [2013] 2 AC
  19. DP v Bird, [176]. Ibid, [185].
  20. Ibid, [211].
  21. Ibid, [213].
  22. Ibid, [212].
  23. PCB v Geelong College, [298].
  24. DP v Bird, [215].
  25. Prince Alfred College, [81].
  26. DP v Bird, [221]. Ibid, [273].
  27. Ibid, [278].
  28. Ibid, [280].
  29. Various Claimants v Catholic Child Welfare Society [2013] 2 AC 1, [19].

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