By Sonya Parsons, Partner, Hudson Digby, Associate and Alice Ireland, Law Graduate

Summary of the decision

The Victorian Court of Appeal in Victoria upheld the Supreme Court’s findings that:

• the relationship between a diocese, through its Bishop, and an Assistant Parish Priest, can give rise to vicarious liability;
• the role of the perpetrator as an Assistant Parish Priest gave him the opportunity and the occasion to sexually assault a member of the parish (having regard to the test in Prince Alfred College v ADC [2016] HCA 37); and
• while the Plaintiff was able to establish the facts of the abuse by the Assistant Parish Priest, the evidence in contemporaneous medical records and statements made by the Plaintiff was such that the Court was not satisfied that the Plaintiff’s psychiatric symptoms prior to December 2018 (when his memory of the sexual assaults were ‘reawakened’), were caused by the sexual assaults.

Key Takeaways

A short summary of the takeaways are:

• a diocese can be vicariously liable for a Parish Priest, notwithstanding that the relationship did not amount to one of employment after applying the ‘multifactorial approach’ in Hollis v Vabu [2001] HCA 8. The liability arises as the Parish Priest is conducting the business of the diocese, such as to be an emanation of the diocese;
• the Court of Appeal did not extend the doctrine of vicarious liability beyond the relationship between a diocese and a Priest or Assistant Priest. The Court instead noted that the relationship is sui generis, founded in the context of the hierarchical system of a diocese of the Roman Catholic Church. It follows that any similar findings in respect of other kinds of relationships will require a careful examination of the facts, supported by either lay evidence of the scope of the duties of the role, or expert evidence, similar to that considered in the first instance decision;
• Courts will carefully consider evidence of the timing of the onset of a Plaintiff’s symptoms, and their disclosure of the abuse. In particular, while it is commonly accepted that victims of child abuse often delay in disclosing that abuse, or be reticent to provide details, records of treating practitioners, or statements given in other, earlier, claims by a Plaintiff, which identify other causes of the Plaintiff’s psychological condition(s) and which do not refer to the abuse, may raise serious questions as to whether the symptoms experienced by the Plaintiff at that time related to the alleged abuse; and
• expert psychiatrists should be briefed with all relevant records so they can form an accurate assessment of the onset of a Plaintiff’s conditions.

Supreme Court decision- a recap

In 2020, the Plaintiff (DP) commenced proceedings in the Supreme Court of Victoria against the Catholic Diocese of Ballarat (Diocese) through the current Bishop, Bishop Paul Bird (Bishop Bird), claiming damages for psychological injuries he sustained as a result of the assaults by an assistant priest, Father Coffey (Coffey). DP claimed that the Diocese was vicariously liable for the assaults committed by Coffey and also that the Diocese was directly liable in negligence as a result of the failure by the then Bishop of the Diocese to exercise reasonable care in his authority, supervision and control of the conduct of Coffey.

The trial judge concluded that Coffey had committed the assaults which DP had alleged. Significantly, and notwithstanding the proposition that the doctrine of vicarious liability will, in the usual course, be confined to the employment relationship, the trial judge found that Coffey was not an employee, but that nonetheless that the Diocese was vicariously liable for those assaults. In doing so, the trial judge accepted expert evidence from the Plaintiff regarding the relationship between a parish priest and assistant priest, and the Diocese and Bishop, and regarding the role of an assistant priest. The latter also enabled the trial judge to conclude that the role had provided Coffey with the opportunity and the occasion to commit the assaults.

Adding to the significance of the finding on vicarious liability, the judge also found the Diocese had not been negligent as there was insufficient evidence to support a conclusion that the Diocese or the Bishop knew, or should have known, of the risk of harm posed to the Plaintiff.

The trial judge assessed damages in the amount of $230,000. In particular, DP did not establish a causal link between the alleged abuse and any psychological symptoms prior to December 2018. This conclusion arose on the face of the records of DP’s treating practitioners, and statements given in prior proceedings relating to workers’ compensation claims, which not only omitted reference to the abuse, but also contradicted his claim, insofar as they identified that DP’s psychological conditions related solely to other circumstances. In the circumstances, DP was also not entitled to economic loss, as ‘the die was cast well prior to 2019’ and the abuse had not affected DP’s working capacity, or his decision to cease working.

The Appeal Decision

The appeal concerned three key issues from the Supreme Court decision, specifically:

• whether the trial judge was correct that the relationship between the Diocese and Coffey was one which might give rise to a relationship of vicarious liability;
• whether the trial judge was correct in determining that the relationship was such as to found a conclusion that the Diocese is liable for the two assaults committed by Coffey; and
• on cross-appeal was the assessment of the trial judge of the respondent’s total damages in the amount of $230,000, including whether the trial judge was correct in concluding that on the Plaintiff had not established a causal link between the alleged abuse, and his psychological symptoms prior to December 2018 (Cross-appeal).

In respect of the issue of vicarious liability, the Court of Appeal considered the following:

• that a number of factors in the multifactorial approach from Hollis v Vabu [2001] HCA 8 were not applicable and Coffey could not be considered an employee of the Diocese. However, Hollis v Vabu remains important as it demonstrates the relevance and significance of the circumstances that a tortfeasor’s role was so closely tied with the enterprise of the entity that the tortfeasor was presented to the public as carrying out the work of, and representing, the entity. In that regard, Hollis v Vabu cites the Canadian decision of Bazley v Curry [1999] 2 SCR 534 with approval, insofar as an employer may be held vicariously liable where the employer’s enterprise created the risk and where the employee’s conduct was closely tied to the risk which the employer’s enterprise placed in the community; and
• the decision of the High Court in Colonial Mutual Life Assurance Society Limited v The Producers and Citizens Co-Operative Assurance Company of Australia Limited [1931] HCA 53, and in particular the judgment of Dixon J, makes it clear that vicarious liability may be imposed on a principal based on the actions of a tortfeasor, on the basis that the work performed by the tortfeasor and the business of the principal were so interconnected that the tortfeasor represented to business of the principal, and in so doing, conducted the business of the principal.

Having regard to those authorities, the Court of Appeal found that:

• those rules of Canon Law and the formal structures that were in place allowed the Bishop to exercise control over Coffey;
• Coffey’s role, and the work he performed in undertaking that role, was necessarily and integrally interconnected with the fundamental work and function of the Diocese; and
• in discharging his duties in that role, Coffey was not acting independently of the Diocese, but as a representative of it,

and as such, Coffey was an emanation of the Diocese, such as to result in the Diocese being vicariously liable for his conduct.

Applying the test in Prince Alfred College v ADC (2016) 258 CLR 134, the Court of Appeal was satisfied that that Coffey’s role as assistant parish priest gave him both the opportunity and the occasion to conduct the abuse. In particular:

• Coffey’s role, presenting as an assistant parish priest to the local parishioners, engendered a significant degree of respect and trust in him by his parishioners, enabling him to achieve real intimacy with the respondent’s family, and with the respondent in particular;
• the pastoral function performed by Coffey, and his involvement in the marital issues of DP’s parents, which included his visiting them at home were very much a part and parcel of his role as a priest, as described in expert evidence; and
• the social life of a priest is very much interwoven with his pastoral duties. The expert evidence also identified that a priest’s social life enables a priest to get to know his parishioners in the privacy of their own homes, which in turn enables the priest to better perform his pastoral duties in the parish. At paragraph [157], the Court of Appeal specifically referred to the expert witness identifying that as a priest ‘you’re never really off duty’.

Cross-appeal

The Court of Appeal also upheld the trial judge’s findings as to damages. In particular, the Court of Appeal accepted that the Trial Judge had not erred in not accepting that there was a causal connection between the abuse, and the psychological issues suffered by DP prior to 2018, including that:

• the Court was quite critical of the approach taken to briefing the Plaintiff’s expert with limited materials, and held that the trial judge was entitled not to rely on the evidence of the Plaintiff’s chosen medicolegal expert, including because:
  • the expert had not been briefed with material from the Plaintiff’s treating practitioners from prior to 2018;
  • that material identified the events which caused the Plaintiff’s psychiatric conditions, but did not refer to the abuse; and
  • accordingly, it was open for the trial judge to conclude that the medicolegal expert did not have anything like the picture of the Plaintiff in his life which emerged in the course of the trial;
• the Court considered that the deficiencies were not cured by the subsequent briefing of the expert with that information for the preparation of a second report, noting that ‘the judge was entitled to be less persuaded by an opinion adhered to after the provision of an incomplete history, than one formed initially upon the basis of a full and complete history’;
• the Plaintiff had previously given statements which contradicted his account of the abuse and his lifelong symptoms. This was not to suggest that the Plaintiff was attempting to be deceptive regarding his account of the abuse, but the Court of Appeal did not disagree with the trial judge’s view that the Plaintiff:
  • focussed on a particular episode in his life which he perceived at a particular time to be the cause of his problems (and which appeared to change over time); and
  • had a tendency to blame others for what he saw as life’s tragedies or misfortunes.
• the trial judge had formed, during cross-examination, ‘considerable reservations to the point of substantive doubt’ as to the reliability of DP’s evidence on the effect of Coffey’s assaults on him;
• the trial judge’s conclusion was fortified by a Jones v Dunkel inference available as a result of the failure to call evidence from his treating psychologist, or anyone who would have known him when he was younger; and
• there was a substantial basis for the trial judge to form the conclusion that assaults did have a causative effect, but that the symptomatic sequelae of that effect had remained dormant.