The decision is the first in Australia to recognise vicarious liability for institutional child abuse
The Supreme Court of Victoria has rejected the Catholic Church’s attempt to sidestep responsibility in a child sexual abuse case involving a priest.
In a landmark decision handed down on 22 December 2021, Justice Jack Forrest held Paul Bird, the current bishop of Ballarat, responsible for sexual abuse perpetrated by Father Bryan Coffey, an assistant priest at the parish of Port Fairy, St Patrick’s. The victim, referred to as DP, had been sexually abused on two occasions in 1971 during Coffey’s pastoral visits to the then five-year-old’s family home.
The judgment is the first of its kind in Australia to recognise vicarious liability in cases of institutional child abuse, and paves the way for other survivors to bring legal claims.
The crux of the debate between the parties centred around the diocese’s suggestion that it could only be vicariously liable for Coffey’s conduct if he were deemed a formal employee. In the absence of an employment agreement, Forrest relied on other factors to impose vicarious liability, namely:
- the nature of the relationship between the bishop, diocese and Catholic community
- the diocese’s control over Coffey
- Coffey’s pastoral role within the community
- Coffey’s relationship with DP and his family as “one of intimacy and imported trust in the authority of Christ’s representative, personified by Coffey”
Forrest dismissed the diocese’s suggestion that the abuse occurred during “social outings” unconnected to Coffey’s role as an assistant priest, stating that such an argument was “both inconceivable and an affront to common sense.”
“I am also satisfied that Coffey’s role as a priest under the direction of the diocese placed him in a position of power and intimacy vis-à-vis DP that enabled him to take advantage of DP when alone – just as he did with other boys,” Forrest said in the decision. “He misused and took advantage of his position as a confidante and pastor to DP’s family; this enabled him to commit the unlawful assaults upon DP.”
Ken Cush & Associates special counsel Sangeeta Sharmin, who represented DP, hailed the decision as an important ruling for victims of institutional abuse.
“This case marks the first time in Australia that a decision exercises attribution of liability to a diocese/bishop for the acts of the predatory priest or assistant priest that he/she oversees,” Sharmin said in a media release. “It shows that bishops and church leaders can no longer avoid responsibility by using a technical argument that the abuse did not arise from confidence in the clerical collar.”
The court awarded DP $230,000 in general damages, aggravated damages, and medical and like expenses.
