Bird v DP (a pseudonym) [2023] VSCA 66 (on AUSTLII)
This matter is the appellate consideration of a decision by J Forrest J, Supreme Court of Victoria. The appeal was considered by Beach, Niall & Kaye JJA, who in a single judgment dismissed the appeal and dismissed a cross appeal on damages. The primary appeal issue was whether the principle of vicarious liability may apply to a relationship between a Diocese and an assistant priest and if so whether the abuse was sufficiently connected with the role and functions of the assistant priest so as to be the occasion for the abuse. The cross appeal focused on whether the trial judge erred in concluding that the respondent did not suffer psychiatric symptoms until his memory reawakened after he read a notice seeking victims of abuse and the resulting approach to damages.
Appeal – Vicarious liability
It was common ground on this appeal that, at the relevant time, Coffey (the priest) was neither an employee of the Diocese, nor was he an independent contractor engaged by it.
After detailed examination of caselaw the court said ([113] – [114]):
As we have mentioned, and as the discussion of the foregoing decisions reveals, the quintessential instance of a case involving vicarious liability is that which is grounded in the relationship between an employer and employee. In a commercial context, the relevant distinction ordinarily is between, on the one hand, an employment relationship, and on the other hand, the relationship of the principal with an independent contractor.
However, the decision of the High Court in Colonial Mutual Life, and in particular the judgment of Dixon J, makes it clear that, in an appropriate case, a relationship may give rise to vicarious liability on the part of a principal, notwithstanding the tortfeasor was not an employee of the principal. In such a case, vicarious liability is imposed on the principal for the actions of the tortfeasor, on the basis that the work performed by the tortfeasor and the business of the principal were so interconnected that the tortfeasor represented the business of and/or the principal, and, by doing so, conducted the business of the principal.
Having regard to the facts in this matter the court then held at [125]:
The relationship between Father Coffey and the Diocese through the person of the Bishop was governed by a strict set of normative rules that each of them had subscribed to, and which enabled Coffey to embody the Diocese in his pastoral role. Those rules of Canon law also permitted the Bishop to exercise control over Coffey that was at least as great as, if not greater than, that enjoyed by an employer. The formal structures that were in place allowed the Bishop to exercise control over, and to limit the area of independent action on the part of, the priest. The Bishop had the means to do so by providing instruction, supervision, transfer, limitation on authority, and ultimately by seeking sanctions, including expulsion, from church authority. In return the priest was clothed with the authority of the church.
And at [129]- [130]:
As the judge inferred, Coffey’s livelihood was provided for by the Diocese. In performing his work, Coffey wore the uniform of the Roman Catholic priest. Father Dillon described how, in undertaking the pastoral aspect of the work, it was usual for the assistant priest to wear the clerical collar. As assistant priest, duly appointed by the Bishop, Coffey did the work of the Diocese in the parish to which he was appointed, and the Diocese did its work by and through him. In a real and relevant sense, Coffey was the servant of the Diocese, notwithstanding that he was not, in a strict legal sense, an employee of it. In terms of the principles discussed by the High Court in Colonial Mutual Life, Hollis and Sweeney, by virtue of his role as an assistant priest appointed by the Diocese, Coffey was an emanation of the Diocese.
In those circumstances, in our view, the judge was correct to conclude that the relationship between Coffey, as assistant priest, and the Diocese, was one which, in an appropriate case, would render the Diocese vicariously liable for any tort committed by Coffey in his role as an assistant priest within the Diocese.
Ground 1 of the appeal therefore failed. Ground 2 was not pressed. The question raised by Ground 3 of the appeal was whether the judge erred in concluding that the vicarious liability of the Diocese for the conduct of Coffey extended to and encompassed the two indecent assaults committed by Coffey against the respondent. By reference to the Prince Afred College decision of the High Court, the court held ([148]):
Applying those principles to the evidence in the present case, we consider that the judge was well justified in concluding that the position of power and intimacy, invested in Coffey as an assistant priest of the parish, provided him not only with the opportunity to sexually abuse the respondent, but also the occasion for the commission of those wrongful acts.
Cross appeal – symptoms of injury / trespass issues
As noted above, the cross appeal focused on whether the trial judge erred in concluding that the respondent did not suffer psychiatric symptoms until his memory reawakened after he read a notice seeking victims of abuse. However the court noted at [241] that:
…contrary to the submission advanced on behalf of the respondent, the judge did not conclude that the assaults committed by Coffey did not have any relevant effect on the respondent’s psychiatric state. Based on the opinion of Dr Jager, that the assaults had predisposed the respondent to anxiety, the judge concluded that the assaults did have some causative effect, albeit that the symptomatic sequelae of that effect had remained dormant until the respondent’s memories of the assaults had been reactivated by the December 2018 notice. As we have already discussed, and for the reasons we have given, we are satisfied that there was a substantial basis for the judge to form that conclusion.
There remained for discussion the fact that claim the respondent’s claim for damages was based on the tort of trespass to the person, which is actionable per se. The court held at [243]:
The judge’s award of $200,000 damages to compensate the respondent for his pain and suffering and loss of enjoyment of life did not expressly include a specific allowance for the nature and circumstances of the assaults. However, the award of $20,000 of aggravated damages was directed to the circumstances of the indecent assaults, and to the respondent’s suffering at the time of them, albeit that the judge focussed on the breach of trust by Coffey in perpetrating of both assaults, and the furtive and clandestine manner in which they were committed. Taking into account the amount of damages awarded to the respondent as general damages and aggravating damages, we are satisfied that they did subsume a sufficient measure of compensation for the immediate injury occasioned to the respondent’s person and feelings by the indecent assaults.
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