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The High Court’s Landmark Decision Regarding Vicarious Liability in Bird v DP

The High Court of Australia handed down a landmark decision this month in the case of Bird v DP (a pseudonym) [2024] HCA 41, which will significantly impact the liability of institutions and organisations who engage volunteers and independent contractors in relation to claims of historical abuse.


The Case


The case dealt with the abuse inflicted by a Priest who was appointed by the Roman Catholic Diocese of Ballarat, in 1971 in Port Fairy, Victoria. The Plaintiff, DP, was sexually abused by the Priest during pastoral visits to DP’s family home on two separate occasions. While it was found that the Diocese had significant authority over the Priest and his work, and the Priest’s role was “integrally interconnected with the fundamental work and function of the diocese”, he was not employed by the Diocese when he abused DP.


The main issue dealt with by the High Court was whether the Diocese could be found to be vicariously liable for the abuse of the Priest, or in other words – could the liability of the Priest be attributed to the Diocese despite the absence of a relationship of employment?


The Court’s Decision


The Court unanimously sided with the Diocese, finding that they were not liable for the Priest’s actions. The Majority decided that a relationship of employment is a necessary element of vicarious liability, and that this will not extend to relationships “akin to employment”. In doing so they diverged from a number of other Common Law jurisdictions such as Canada and England.


The Majority also held that for the Diocese to be liable for the Priest’s actions as a ‘true agent’ of the religious institution, the acts committed must have been expressly or implicitly authorised by the Diocese, which was not satisfied in this case.


Implications of this Decision for Historical Abuse Claims


The Court’s decision is significant as it affects the capacity for survivors of abuse to attribute liability to the institutions and organisations that their abusers were engaged under, when that engagement does not satisfy a relationship of employment. This could allow these institutions to defend claims for the significant harm which occurred under their watch.


The decision, however, does not impact the direct liability of these institutions for the harm occurred as a result of historical abuse. When an institution or organisation owes a duty of care to individuals in their care, it may be found to be negligent in failing to prevent harm from occurring, and therefore liable for the harm caused. This type of liability exists even if the harm is inflicted by someone who is not employed by, or a ‘true agent’ of the institution/organisation.


We recommend that survivors of abuse take the important step to seek legal advice, now more than ever, and we stress the importance of being informed about your legal options in relation to an historical abuse claim. Whilst this decision is a disappointing setback from the High Court, we will continue to advocate for our clients in seeking justice for the abuse they have suffered and will take the important step of supporting the case for necessary regulatory reform.


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