Bird v DP (A Pseudonym) [2024] HCA 41

Executive overview

• The High Court has refused to extend the boundaries of vicarious liability to relationships outside of employment.
• In overturning the trial judge’s decision, the High Court affirmed that torts of individuals acting in a role ‘akin to employment’ such as independent contractors or volunteers cannot enliven the doctrine of vicarious liability.

Background

The plaintiff (‘DP’) commenced proceedings against the Roman Catholic Diocese of Ballarat (‘the Diocese’) claiming damages in respect of psychological injuries sustained as a consequence of abuse perpetrated against him by Father Bryan Coffey (‘Coffee’).

Despite a finding at first instance that Coffee was not an employee of the Diocese and that no agency relationship existed, the Supreme Court of Victoria ultimately ruled in favour of the plaintiff, holding the Diocese vicariously liable for the priest’s actions.¹ In reaching its decision, the primary judge pointed to the “totality of the relationship”, which granted the Diocese authority over Coffee, and an ability to exercise control over his pastoral functions.

High Court ruling

The plurality refused to ‘divorce’ the threshold test for vicarious liability from an employment relationship, notwithstanding growing international jurisprudence to impose vicarious liability on organisations with respect to torts committed by persons bearing a relationship ‘akin to employment’.

Hence, in accordance with the existing common law of Australia, a strict relationship of employment is a precursor to any finding of vicarious liability.

Other notable takeaways include:

• The doctrine of vicarious liability ‘is a species of strict liability’ which concerns the ‘attribution of liability, not fault’. Accordingly, the majority found that any attempt to infer fault or risk – such as control – was inapposite in such a claim.²
• The unlawful acts of Coffey were not done (and could not have been done) as a ‘true agent’ of the Diocese; they were not done with the Diocese's express, implied or apparent authorisation, and at no time were those acts ratified by them.³
• The expansion of vicarious liability to include ‘relationships akin to employment if it is fair, just, and reasonable’ lies with the province of the legislature – not the Courts.
• The High Court unanimously declined to consider the plaintiff’s further contention that the Diocese owed him a non-delegable duty of care, owing to the plaintiff’s failure to plead the factual basis for the existence of same. Consideration of whether a non-delegable duty of care can arise from intentional wrongdoings by delegates is thereby reserved for a later hearing.

^{1 The primary judge held that the Diocese did not breach its primary duty of care because the risk of harm to DP of the kind suffered was not reasonably foreseeable [see DP [2021] VSC 850 at [307]].}
2 Bird v DP (a pseudonym) [2024] HCA 41 at [29].
^{3 Bird v DP (a pseudonym) [2024] HCA 41 at [35].}

^{The information in this publication is provided for general purposes only. It is not to be relied on as a substitute for legal advice. Crown Law and the Department of Justice and Attorney-General accept no liability for losses caused by reliance on the material in this publication. Formal legal advice should be obtained for particular matters.}