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Lawyers for abuse survivors ‘disappointed’ with High Court decision
In the wake of the High Court’s decision in Bird v DP, lawyers for survivors of institutional child sexual abuse have expressed disappointment and concern over what this will mean for their clients.
Naomi Neilson
In a decision handed down late last week, the High Court of Australia overturned a Supreme Court of Victoria finding that the Catholic Church was vicariously liable for Father Bryan Coffey’s abuse of a victim known only as DP, who was five at the time of the assaults.
While it acknowledged how “harsh” the decision may seem, especially in cases of “predatory” and devastating abuse, the bench said 25 years of precedent around employment vicarious liability forced their hand.
Special counsel Cameron Tout from Longton Compensation Lawyers said the firm represents “multiple clients” abused by priests who had been, “for all intents and purposes … working for the Catholic Church” but who may not satisfy the legal definition of an employee.
Tout said the High Court decision could allow the church to avoid liability and see victims miss out on compensation.
“The Victorian government should introduce legislation as a matter of urgency to address the disappointing decision.
“The law of vicarious liability has evolved in other common law jurisdictions to capture harmful wrongdoing in these circumstances, yet Australia is going backwards,” Tout said.
The national president of the Australian Lawyers Alliance (ALA), Michelle James, said the decision “represents a significant and unexpected setback” for survivors of child sexual abuse and their hopes to hold religious and other organisations “accountable for historical abuses”.
With the current legislation, James explained there is a “distinct two-tiered system of justice” that has impacted victims by non-employees, depending on whether their assault occurred before or after 2018.
Having ignored a submission by ALA to reform Australia’s legal framework around employment vicarious liability, a royal commission proposed to instead enact a statutory form of vicarious liability and non-delegable duty to address inequities, but only for victims of abuse that occurred after 2018.
“We are very concerned that as a result of this ruling, it is likely that other organisations where child sexual abuse has occurred will similarly avoid vicarious liability for abuse committed by non-employed members, such as clergy, scout leaders and sports coaches.
“We are disappointed to see that the Catholic Church in Australia once again escapes liability due to legal technicalities … and concerned this will have broader implications for other survivors,” James said.
Naomi Neilson
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
You can email Naomi at:
