Liability of a Bishop for Sexual Abuse Committed by Clergy: Bird v DP (A Pseudonym)
14 Pages Posted: 30 Apr 2024
Date Written: April 28, 2024
Abstract
In Bird v DP (A Pseudonym) the High Court of Australia 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 of liability) 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.
Keywords: Vicarious Liability, Non-delegable duty, Clergy child abuse, Bird v DP
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