*TW: Historical Child Sexual Abuse

In a significant win for survivors of historical child sexual abuse, a Catholic Diocese has been held vicariously liable for the criminal conduct of a priest engaged in pastoral duties.

In an Australian first, the Victorian Supreme Court on 22 December 2021 found the Diocese of Ballarat to be vicariously liable for the criminal conduct of Father Bryan Coffey (Coffey).

DP alleged that in 1971, when he was a minor, he was sexually assaulted by Coffey at his parent’s home in Port Fairy in Victoria on a number of occasions. At the time of the sexual assaults, he was aged 5 and 6.

In 1966, Coffey was appointed by the then Bishop of Ballarat as an assistant priest. He was engaged in this role at the time of the sexual assaults.

DP sued the Diocese of Ballarat through the current Bishop, Bishop Paul Bird, and argued that following a number of decisions in the United Kingdom, Canada and our High Court’s reasoning in Prince Alfred College [1], the Diocese ought to be held vicariously liable regardless of whether or not Coffey was an employee of the Diocese.

In Australia, priests are not considered to be employees of a Diocese[2].

The Diocese, in its response, argued that unless it could be demonstrated that a priest is an employee of the Diocese, then it cannot be held vicariously liable. Further, even if there was a relationship that gave rise to vicarious liability, it could not be held vicariously liable noting that Coffey’s conduct was unlawful and outside his role as a priest.

The Court did not accept the submission that the existence of an employment relationship was the only basis upon which vicarious liability could be imposed upon the Diocese in relation to the actions of Coffey. Whilst accepting that Coffey was not an employee, the Court held that a holistic and broad inquiry was required which encompassed many factors.   The following factors were identified for consideration, namely:

  1. The relationship between Coffey and the Diocese.
  2. Coffey’s relationship as an assistant parish priest in the Catholic community at Port Fairy.
  3. The control exercised by the Diocese or the Bishop over Coffey in his role as an assistant parish priest.
  4. The centrality of Coffey’s work to that of the Diocese and the Church’s mission in Port Fairy.
  5. The opportunity the Diocese provided to Coffey to abuse his power or authority.
  6. Coffey’s relationship to DP and with his family: both generally and that the time of the assaults.
  7. The vulnerability of potential victims to the wrongful exercise of Coffey’s authority.
  8. The circumstances in which Coffey carried out the assaults of DP[3].

In its analysis on vicarious liability, the Court relied on the following factors in establishing that the Diocese was vicariously liable, these were:

  1. The close nature of the relationship between the Bishop, the Diocese and the Catholic Community at Port Fairy.
  2. The Diocese’s general control over Coffey’s role and duties within St Patrick’s parish.
  3. Coffey’s pastoral role in the Port Fairy Catholic community; and
  4. 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.

The Court was 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[4].

Why is this decision significant for survivors of historical child sexual abuse?

Respondents to historical child sexual abuse claims that involve clergy members will almost in every case argue that they (they being the Diocese/Archdiocese) cannot be held vicariously liable for the unlawful conduct of a parish priest for the two following reasons:

  1. Priests are not employees; and
  2. The alleged conduct is unlawful and outside the ambit of their role as a priest / clergy member.

In many ways, this judgment counters those submissions. It considers vicarious liability in a similar light to as it is in various other jurisdictions such as Canada and the United Kingdom. It is unclear as to whether this judgment is on appeal however, if it is not successfully appealed, then it will be the new benchmark upon which claims against clergy members will be analysed and measured.

His Honour, Forrest J, in his reasoning[5], referred to and adopted what Lord Phillips said in Christian Brothers[6]:

“The Law of Vicarious liability is on the move[7]

The law of vicarious liability is certainly on the move, it’s a move in the right direction for survivors of historical child sexual abuse. This judgment will allow survivors to argue that a Diocese can be and should be held vicariously liable noting the various factors as considered by the Court in this case.

How can we help?

Maliganis Edwards Johnson continues to act for survivors of historical child sexual abuse. If you would like to talk to us about your circumstances, you can chat to us, one-on-one, in our office, at your home, online or in an environment where you feel most comfortable. You can also start the process by phoning us on behalf of a family member.

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[1] Prince Alfred College Inc v ADC (2016) 258 CLR 134

[2] See Trustees of the Roman Catholic Church for the Diocese of Sydney and Pell v John Ellis [2007] NSWCA 117

[3] DP (A Pseudonym) v Bishop Paul Bernard Bird [2021] VSC 850, [224]

[4] Ibid [278] – [282]

[5] Ibid [206]

[6] Christian Brothers [2013] 2 AC 1

[7] Ibid, [19]

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