Bird v DP (a pseudonym) [2024] HCA 41

Bird v DP (a pseudonym) [2024] HCA 41

Vicarious liability at common law in Australia requires a relationship of employment between the tortfeasor and the defendant. Coffey was not an employee or agent of the Diocese in the relevant legal sense. It is not open to extend vicarious liability to relationships 'akin to employment.' The notice of contention seeking to rely on a non-delegable duty could not be considered on appeal as it was neither pleaded nor addressed in the courts below. Accordingly, the Diocese (sued via Bishop Bird) is not liable for Coffey's torts, and the proceedings should be dismissed.

Parties
Appellant: Bishop Paul Bernard Bird; Respondent: DP (a pseudonym)
Jurisdiction
Australia
Judgment Date
13 November 2024
Procedural Posture
Appeal / High Court of Australia—appeal From the Supreme Court of Victoria (court of Appeal)
Outcome
Appeal allowed.
Legal Topics
Intentional Torts, Vicarious Liability, Non Delegable Duty, Negligence, Liability of Religious Organisations, Sexual Abuse, Organisational Child Abuse, Employee or Agent Relationships
Torts Procedural Law Intentional Torts Vicarious Liability Non Delegable Duty Negligence Liability of Religious Organisations Sexual Abuse +2 more

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Parties

Bishop Paul Bernard Bird

Appellant

DP (a pseudonym)

Respondent

Procedural Posture

Appeal / High Court of Australia—appeal From the Supreme Court of Victoria (court of Appeal)

Legal Issues

  1. 1 Whether vicarious liability in Australia may be imposed absent an employment relationship; specifically whether a diocese can be vicariously liable for sexual abuse perpetrated by a priest who was not an employee
  2. 2 Whether the relationship between the Diocese and the priest, Coffey, was one of agency or akin to employment at law for vicarious liability purposes
  3. 3 Whether notice of contention as to non-delegable duty could be entertained for the first time on appeal

Ratio Decidendi

Vicarious liability at common law in Australia requires a relationship of employment between the tortfeasor and the defendant. Coffey was not an employee or agent of the Diocese in the relevant legal sense. It is not open to extend vicarious liability to relationships 'akin to employment.' The notice of contention seeking to rely on a non-delegable duty could not be considered on appeal as it was neither pleaded nor addressed in the courts below. Accordingly, the Diocese (sued via Bishop Bird) is not liable for Coffey's torts, and the proceedings should be dismissed.

Court Disposition

Appeal allowed.

Orders

  • Orders 2 and 5 of the Court of Appeal of the Supreme Court of Victoria made on 3 April 2023 set aside.
  • In their place, order that the appeal (to Court of Appeal) be allowed with costs.