In Bird v DP (a pseudonym)  VSCA 66 (3 April), the respondent had claimed damages for psychological injuries which, he alleged, he had sustained as a result of assaults committed by a Roman Catholic priest, Father Bryan Coffey at the home of his parents in Port Fairy, Victoria, in 1971. He sued the Diocese of Ballarat through the current Bishop, Paul Bird, who was the nominated defendant for the purpose of the proceeding pursuant to s 7 of the Legal Identity of Defendants (Organisational Child Abuse) Act 2018, an Act of the Parliament of Victoria .
DP maintained that the Diocese was vicariously liable for the assaults committed by Coffey and that it was directly liable in negligence as a result of the failure by the then Bishop of Ballarat to exercise reasonable care in his authority, supervision and control of the conduct of Coffey . The Court at first instance held that the Diocese was vicariously liable for the assaults but was not directly liable to DP in negligence. DP was awarded $230,000 in damages  – about £123,000.
The Diocese appealed the judgment on three grounds:
- In circumstances where Coffey was found not to be an employee of the Diocese, the trial judge had erred in finding that the applicant was vicariously liable for his conduct.
- Further or alternatively to Ground 1, the trial judge had erred in holding that the Diocese could be vicariously liable for the conduct of another.
- Alternative to Grounds 2 and 3, and assuming that the relationship between the Diocese and Coffey gave rise to a relationship of vicarious liability (which was denied), the trial judge had erred in concluding that that relationship was such as to found a conclusion that the Diocese was so liable .
The Victoria Court of Appeal dismissed the appeal, but it granted the Diocese leave to appeal on those grounds . It also dismissed DP’s cross-appeal but granted him leave to appeal the award of damages .
Neil Foster (to whom my thanks for bringing the judgment to public attention, and who is far better qualified to comment on it than I am) has posted a long critique of the judgement, here: Liability of a bishop for abuse by clergy – on appeal. He is not convinced.