Church liability for clergy abuse

neilfoster

April 30

The High Court of Australia recently heard an appeal in a case involving an allegation that a Bishop in the Roman Catholic church can be held vicariously liable for an act of child abuse committed by a member of the clergy. The case is Bird v DP (a pseudonym) and I have previously mentioned the earlier stages of the proceedings here and here.

I have written a note outlining the arguments being made and offering my view on what I think should be the outcome of the appeal, which can be downloaded here. Here is the summary of the note:

In Bird v DP (A Pseudonym) the High Court will address two important questions about the civil liability of institutions for child sexual abuse perpetrated by representatives of the institution. The case involves a claim against the Roman Catholic Bishop of Ballarat as liable for child abuse committed in 1971 by Father Coffey, a priest working for the diocese. The trial judge and the Victorian Court of Appeal have ruled that while Coffey was not an employee, the diocese is nevertheless vicariously liable for the abuse. This involves an extension of the 'stage 1' issue of vicarious liability (the question as to which legal relationships allow attribution ofliability) which is being challenged in the appeal. The High Court has also been asked in a notice of contention to consider whether, if the Court of Appeal was wrong on the vicarious liability issue, liability might alternatively be sheeted home to the diocese under the principle of non-delegable duty (NDD). This would require the High Court to overturn its previous decision in NSW v Lepore on the point that the NDD doctrine cannot be applied to intentional torts. This article argues that the appeal should be allowed, the notice of contention upheld, and Lepore be overruled on this issue.