Bird v DP – High Court Rejects “Aking to Employment” for Vicarious Liability
In November 2024, the High Court of Australia handed down its landmark decision in Bird v DP (a pseudonym) [2024] HCA 41. This decision has profound implications for survivors of institutional child sexual abuse seeking compensation from religious institutions.
At its heart, the Court was asked:
Should vicarious liability extend beyond traditional employment to relationships that are merely “akin to employment”?
The answer form the High Court was no.
What Happened in Bird v DP?
In 1971, DP was sexually assaulted as a child on two occasions in his family home by Father Bryan Coffey, who was then the Assistant Parish Priest at St Patrick’s Catholic Church in Port Fairy, Victoria. Coffey visited DP’s home as part of his pastoral care duties, which included teaching religious education to DP at the parish primary school.
About 50 years later, DP sued the Catholic Bishop of Ballarat (Bishop Paul Bird) for compensation in negligence and vicarious liability for the assaults. The Victorian courts found the Diocese vicariously liable, despite the lack of traditional employment relationship between the Diocese and Coffey.
The High Court’s Ruling
The High Court overturned the decision and found that vicarious liability cannot be imposed without a genuine employer-employee, or agency, relationship. The Diocese was not Coffey’s employer, nor was Coffey its agent or contractor.
While Coffey’s role clearly involved trust, pastoral care, and close contact with children, the High Court refused to extend vicarious liability to relationships that are merely “akin to employment”.
Key Quote (at [49]):
“Should the Court… expand the boundaries of vicarious liability beyond a relationship of employment to one that is ‘akin to employment’?... the answer is No”.
Why Wasn’t Coffey and Employee?
The Court examined the nature of a Catholic Priest Appointment:
· Coffey’s appointment was governed by Canon Law and was not a contract of employment; and
· Coffey was subject to some supervision (e.g. appointment location, general duties, accommodation, and clerical clothing).
But the Bishop and the Diocese had no direct control over his daily tasks or hours of work.
Ultimately, the High Court found there was no employment relationship, nor any agency relationship.
What About “Akin to Employment”?
DP argued that the Diocese should still be liable for Coffey’s conduct because his role was “akin to employment”. DP relied on approaches taken by Courts in other jurisdictions such at the United Kingdom and Canada to support this argument.
The High Court rejected the argument, emphasising that:
· Australia law has previously declined to adopt this broader doctrine; and
· Extending vicarious liability beyond employment is a question for the Parliament, not the courts.
The Question of Non-Delegable Duty
DP also argued that the Diocese owned a nondelegable duty of care to prevent the abuse. The High Court declined to make a determination on this point because no such argument had been pleaded in the original case.
However, Justice Jagot noted that non-delegable duties could arise in future cases where institutions had provided care, supervision, or control over vulnerable people – even in circumstances where there is no employment relationship.
Implications of the Decision
The ruling in Bird v DP has significant consequences for historical abuse claims against churches and other institutions, including:
· Churches will be able to avoid liability for priests’ abuse;
· Vicarious liability claims will be harder without proof of employment or agency;
· Plaintiffs will need to shift focus to non-delegable duty and negligence claims.
Statutory reforms will be crucial in overcoming these issues.
What About Other Institutions Besides the Church?
The Bird v DP decision affects all institutions – no just churches. The decision limits vicarious liability only to formal employees of institutions. This means charities, schools, sport clubs, and agencies using volunteers or foster carers could avoid liability for abuse, unless there is an employment relationship. Even the Australian Defence Force can avoid vicarious liability on the basis that soldiers/service men and women are not employees at common law but serve at the prerogative of the Crown. This situation creates a gap in the care that institutions owe to the children in their care.
Political and Legislative Response
In response to the High Court’s decision in Bird v DP, the Victorian Government has announced that it will introduce a bill which will close the gap by making organisations retrospectively liable for child abuse committed by individuals in position of trust, authority, or control over children, even if they are not formal employees. It is anticipated that the Bill will apply broadly to institutions that exercised care or supervision of children and ensure that claims are not excluded on technical employment grounds. The Bill is scheduled to be tabled in December 2025.
Western Australia is also looking at new legislation to respond to the Bird v DP ruling. The WA Attorney General Tony Buti highlighted the need for nationally consistent reforms to ensure survivors are not denied justice.
The Tasmanian Government acknowledges the significance of the Bird v DP decision and its implications for institutional accountability. Although Tasmania is currently in caretaker mode ahead the 2025 election, the issue was discussed at the Standing Council of Attorneys-General in February 2025. While the Tasmanian Attorney General, Guy Bernett was absent, the minutes of the council indicated that the other states and territories committed to working together to consider reforms options.
Also, in light of the Tasmania’s upcoming election in July 2025, all major parties have expressed active interest in introducing bills to reform laws relating to vicarious liability and institutional accountability.
Our Commitment at Angela Sdrinis Legal
Bird and DP is a stark reminder of the ongoing struggle for survivors of institutional child sexual abuse to secure justice. The decision places pressure on Governments to act quickly to ensure that institutions entrusted with children’s care cannot so easily avoid accountability.
At Angela Sdrinis Legal, we are actively involved in advocating for legislative change that better supports victims of child sexual abuse. We are committed to doing everything within our reach to ensure justice for survivors to help create a legal system that truly protects and recognises their rights.
By German Carvajal Munoz, Solicitor, Angela Sdrinis Legal