High Court decision in Bird v DP – implications for survivors of child sexual abuse
6 minute read
A November 2024 High Court decision raises concerns for survivors of childhood abuse in the Catholic Church and other religious institutions. The decision may mean churches and religious institutions could avoid legal accountability for historical Catholic sex abuse cases and other institutional child sexual abuse cases.
Why the High Court’s decision in Bird v DP matters
The High Court’s decision in Bishop Paul Bernard Bird v DP (a pseudonym) [2024] HCA 41 (Bird v DP) matters because it effectively releases the Catholic church from responsibility for priests’ actions (including historical Catholic abuse of children), where there isn’t a contract of employment.
The High Court found that where there isn’t a relationship of employment, vicarious liability doesn’t extend to relationships that are ‘akin to employment,’ such as when priests are appointed under canon law.
What is vicarious liability?
‘Vicarious liability’ is a legal term relevant to employment situations. Employers can be vicariously liable for their employees’ unlawful behaviour in the workplace or otherwise connected to their employment.
To minimise their vicarious liability, employers must show they’ve taken ‘all reasonable steps’ to prevent employee behaviour that can negatively impact others, such as workplace harassment, discrimination, or for the Catholic church, child sexual abuse by priests.
Are Catholic priests employed by the Catholic church?
The High Court found that because the late Father Bryan Coffey didn’t have an employment relationship with the Catholic church, it was not vicariously liable for his alleged child sexual abuse of DP.
The High Court’s Catholic church case involved:
Father Coffey who at the relevant time (1971) was assistant parish priest at St Patrick’s in Port Fairy, Victoria, which was and is part of the Catholic Diocese of Ballarat (Port Fairy is now part of South West Coast parish)
DP, is a pseudonym for the adult survivor of Father Coffey’s alleged child sexual abuse
The current Bishop of the Diocese of Ballarat, Bishop Paul Bernard Bird (Father Coffey died in 2013)
In Bird v DP, the High Court found that Father Coffey was not:
Employed by the Diocese of Ballarat
Engaged by the Diocese as an independent contractor
An agent of the Diocese
What is a Catholic priest’s legal employment status in Australia?
In Bird v DP, the High Court found that:
Father Coffey’s appointment as assistant parish priest was governed by a strict set of (legally unenforceable) rules, encapsulated in canon law
Father Coffey was subject to the supervision and direction of the parish priest, who reported to the Bishop
The Bishop and Diocese didn’t exert any direct control over Father Coffey’s:
Hours of work
Daily tasks
Manner of carrying out his daily tasks
The Bishop and Diocese had control over the parameters of Father Coffey’s appointment, including:
Duration and location of his appointment
General duties
Responsibility of supervision
Livelihood and accommodation
Required clothing (such as clerical garb and vestments)
This relationship – where a priest is appointed by a Bishop - may be considered ‘akin to employment,’ but the High Court found that vicarious liability doesn’t extend to such a relationship. The Catholic church was therefore not responsible for Father Coffey’s alleged child sexual abuse of DP.
What happened in Bird v DP
The High Court’s November 2024 decision in Bird v DP was the third legal case involving DP and Bishop Bird. It followed a 2021 Supreme Court of Victoria decision and then an appeal to the Victorian Court of appeal:
2021 decision on DP v Bird [2021] VSC 850 by the Victorian Supreme Court
2023 decision on Bird v DP [2023] VSCA 66 by the Victorian Court of Appeal
The Supreme Court in their 2021 decision, found that Father Coffey assaulted DP as he alleged. The High Court wasn’t asked to review Father Coffey’s child sexual abuse of DP. Relevant to survivors of abuse in the Catholic church, the High Court appeal involved only legal questions about employment and vicarious liability:
Where there isn’t an employment relationship, does vicarious liability extend to relationships ‘akin to employment’?
If the relationship between the Ballarat Diocese and Father Coffey gave rise to a relationship of vicarious liability, was the Diocese liable for Father Coffey’s conduct (including his child sexual abuse of DP)?
What were the facts of Bird v DP
The facts of Bird v DP include:
DP was born in February 1966. He lived with his family in Port Fairy, Victoria
DP’s family worshipped at St Patrick’s Catholic Church in Port Fairy, within the Diocese of Ballarat
From 1971, DP attended St Patrick’s parish primary school
Between 1966 and 1971 Father Coffey was the assistant parish priest at St Patrick’s Catholic Church. As part of his role, he taught religious education at St Patrick’s parish primary school (including to DP, when he started school in 1971)
DP’s family’s strong Catholic faith meant that they saw Father Coffey as being in a position of trust and authority. As part of his pastoral care and support commitments, Father Coffey regularly visited DP’s family home
On two occasions in DP’s family home in 1971 Coffey assaulted and sexually abused DP (who was 5 years old at the time)
Around 50 years later, DP commenced proceedings against the current Bishop of the Diocese of Ballarat in the Supreme Court of Victoria, seeking compensation for psychological injury
Shine Lawyers’ abuse law team can help
As we shared in our GLJ High Court resource, Australia’s Royal Commission into Institutional Responses to Child Sexual Abuse found that on average, it takes survivors almost 24 years to tell someone of their child sexual abuse.
Shine Lawyers will not allow the High Court judgment of Bird v DP to stop Catholic sexual abuse survivors from seeking justice. Shine Lawyers can look at other ways to help survivors abused by priests and clergy to seek justice. Perpetrators of child sexual abuse within the church are not off the hook because of the Bird v DP judgment.
We urge survivors of child sexual abuse not to be discouraged by the judgment and contact us so that we can investigate alternative available mechanisms of liability to seek justice. For example, if your Catholic abuse occurred while you were a Catholic school student, there may be a claim against the school for breaching its duty of care to you.
If you or your loved one suffered childhood abuse in the Catholic church (or in another church or institution), your trusted abuse lawyers will help determine who your abuse case for compensation is against. This is particularly relevant if the perpetrator of your abuse in the Catholic church has died.
Financial compensation won’t erase the memory of your child sexual abuse, but it can help with expenses you incur because of the abuse.
Get in touch with our abuse law team for an obligation-free, confidential consultation.
If you need to seek support for issues this article may have raised, you could contact:
You or your loved one may also find support in our abuse law conversation guide.
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