Vicarious liability for clerical abuse in Australia 

In DP (a pseudonym) v Bird [2021] VSC 850, handed down on 22 December, a judge of the Victorian Supreme Court ruled that the Roman Catholic Bishop of the Diocese of Ballarat could be sued as vicariously liable for sexual abuse committed by an assistant parish priest, one Coffey, against the plaintiff DP in 1971, when he was 5, even though the judge was “not convinced that Coffey can be treated as an employee of the Diocese given the absence of any formal employment contract or arrangement” [211].

It appears to be the first occasion in Australia on which a diocese has been found vicariously liable under common law principles for clerical abuse, and Neil Foster has a long and critical post on the case on his Law and Religion Australia blog: Vicarious Liability of Bishop for abuse committed by clergy.

Non-story of the week (continued)

On 14 November 2021, we reported on a story in the Church Times under the headline DAC blocks solar-panels plan for church roof in West Holloway, an issue on which the vicar had written Churches are keen to reach net zero but there are needless barriers in the way. In this article, the blame for blocking the petition was placed upon the Victorian Society. A follow-up article has been published in the Church Times which includes a measured response from the Victorian Society’s senior conservation adviser, James Hughes, who clarifies respective roles of National Amenity Societies, DACs and the consistory court. verb sap. 

“Boxing Day” Quizzes

On 26 December 2021, we posted our Boxing Day Quiz 2021 followed by the Answers on 1 January. However, since Boxing Day fell on a Sunday this year, the substitute day for the associated Bank Holiday was not until 28 December. Confusingly, since in 2022 Christmas Day will be on a Sunday, the substitute day Bank Holiday will be Tuesday 27 December, after Boxing Day on 26 December. Perhaps we should return to our former heading of End of Year Quiz?

Elsewhere on the internet, the Royal School of Church Music had its own RSCM Christmas Quiz 2021 (scroll down) plus the Answers and for Gordon Exall of Civil Litigation Brief, the review of opening lines of judgments has become an annual event. This year’s review, in addition to Thomas v The Education Workforce Council [2021] EWHC 2774 (Admin) classified as “Rude words doth not a teacher make” [which readers may wish to check for themselves], is “Lawyers sometimes make matters unnecessarily complicated” from Refresco Beverages U.S, Inc. v Califormulations LLC (MD Ga 2021) is:

“Lawyers sometimes make matters unnecessarily complicated. The Complaint in this action exceeds 600 paragraphs and 90 pages. The briefing on the pending motions to dismiss, which required the analysis of no evidence and should have been restricted to the four corners of the complaint, consumed over 200 pages. Yet the theory of the case that will necessarily be whittled down to its essentials if and when it is presented to a lay jury is relatively simple.”

“Standing orders” in Northern Ireland and Scotland

On the issue of legislative complexity, a recent example was provided in the final addition to our December summary of legislation and guidance – Health Protection (Coronavirus, Restrictions) Regulations (Northern Ireland) 2021 (Amendment No. 21) Regulations (Northern Ireland) 2021 SR 2021/350. This introduced inter alia a new requirement to be seated in hospitality premises, which stated:

6. After Regulation 1(3)(d) insert— “(e) a person is to be treated as seated if they are temporarily standing for the purposes of entering or exiting the premises, accessing a table, making a payment, accessing a buffet or carvery or accessing and using a toilet, baby changing or breast feeding facilities or a smoking area.”

Against these prescriptive requirements, the equivalent Health Protection (Coronavirus) (Requirements) (Scotland) Amendment (No. 6) Regulations 2021, SSI 2021/496 states:

Requirement for seated food and drink consumption

4B.—(1) A person who is responsible for carrying on a relevant business may sell food or drink (including non-alcoholic drink) for consumption on the premises only if— (a) where reasonably practicable, the food or drink is ordered by, and served to, a customer who is seated on the premises, and (b) the customer remains seated whilst consuming the food and drink on the premises.

The acceptability of “green cremation”

The Guardian has reported that the body of Archbishop Desmond Tutu will undergo aquamation, “an increasingly popular and environmentally friendly alternative to traditional cremation methods, using water instead of fire”. The article explains that “with aquamation, or ‘alkaline hydrolysis’, the body of the deceased is immersed for three to four hours in a mixture of water and a strong alkali, such as potassium hydroxide, in a pressurised metal cylinder and heated to around 150C.”

Our 2017 post Alternative cremation option ‘on hold’ reported the earlier refusal by Severn Trent Water to grant a trade effluent permit to Sandwell Council who wished to operate an alkaline hydrolysis plant (“resomation”) for the disposal of human remains. As we noted, whilst there are no legislative provisions restricting the treatment of human remains using new processes such as these, there is a substantial tranche of environmental legislation which imposes controls on how such processes may be operated in relation to discharges to any of the three environmental media.

Whilst Defra is presently considering the responses to the recently-closed Consultation on proposed amendments to the Environmental Permitting (England and Wales) Regulations 2016, these apply to groundwater activities and some related surface water discharges, not trade effluent, which is subject to different legislative controls. On 24 March 2020, Resomation Ltd reported “following a successful study, the UK’s first ‘wastewater consent to discharge’ has been granted for the water cremation process, the environmentally friendly alternative to flame cremation or burial. Yorkshire Water has granted the consent”. 

And a Happy New Year to all – it could hardly be worse than 2021 (could it?)