Church Faces Vicarious Liability for Priest's Criminal Acts

DATE PUBLISHED: June 2, 2023

key takeaways

In DP v Bird (a pseudonym) [2023] VSCA 66, the Victorian Court of Appeal found a Church vicariously liable for the criminal actions of a priest.
The Court found that despite the absence of an employee/employer relationship, the Church was still liable for the priest’s actions because the priest was an “emanation” of the Church and the Church gave the priest the “opportunity” and “occasion” to commit the criminal acts.
Other Australian Courts could rely on this decision to find organisations that engage volunteers or other persons who are not employees vicariously liable for the criminal acts of those persons, if the person who has committed the criminal acts is an “emanation” (or represents or is the “face” of) the organisation.

DP alleged that he was assaulted by a priest on two occasions in 1971.

DP alleged that both assaults occurred at his family home in the context of social gatherings.

In 1999, the priest was charged and convicted in relation to several unrelated sexual offences against children.

Trial

At trial, Forrest J found that the then priest had abused DP as alleged.

At trial, Forrest J found that the Church was not directly liable in negligence for the acts of the priest, as there was insufficient evidence to establish that the Church should have known of the potential misconduct of the priest or that it was foreseeable that in 1971 the priest might assault young boys such as DP.

At trial, Forrest J found the Church vicariously liable for the acts of the priest, despite finding that there was no employer/employee relationship between the Church and the priest.

When assessing the damages, Forrest J found that DP’s psychiatric conditions caused by the abuse by the priest did not commence until DP read an advertisement seeking information about potential victims of the priest in December 2018.

At trial, Forrest J found that although DP had suffered psychiatric conditions for over 20 years, there was no evidence to substantiate any relationship between the assaults by the priest and DP’s conditions prior to DP reading the advertisement.

Appeal

The Church appealed the original decision on the following grounds:

1
In circumstances where the priest was found not to be an employee of the Church, the trial judge erred in finding that the Church was vicariously liable for his conduct.
2
Alternatively, assuming that the relationship between the Church and the priest gave rise to a relationship of vicarious liability, the trial judge erred in concluding that that relationship was such as to find a conclusion that the Church was so liable.

DP cross-appealed the original decision on the grounds that the trial judge erred in concluding that DP did not suffer compensable loss until he read the advertisement in late 2018.

On appeal, the Court held that a finding that the priest and the Church were not involved in an employee/employer relationship did not preclude a finding of vicarious liability for the acts of the priest because he was an “emanation” of the Church.

In finding that the priest was an emanation of the Church, the Court of Appeal highlighted the following:

1
The Church, through the Bishop, had the right to exercise control over the way in which the priest performed his role that was as great, if not greater than, that enjoyed by an employer. This is, despite a finding that the Church exercised relatively little supervision and control over the priest’s work on a day-to-day basis.
2
The priest was ‘very much a representative’ of the Church and his work was ‘necessarily and integrally interconnected with the fundamental work and function of the Church.’
3
The priest did not have the capacity or right to undertake any other vocation.
4
The priest could not delegate his role to others.

On appeal, the Court also found that the priest’s role provided him with not only the “opportunity” to commit the abuse, but also the “occasion” to do so.

In making the above conclusion, the Court found:

1
The priest’s role invested him with a substantial degree of power, authority, respect and trust with the parishioners. This allowed the priest to achieve a substantial degree of intimacy with parishioners and their families.
2
The pastoral work involved in the role as a priest ‘necessarily involved and required the priest to develop personal acquaintances, and indeed friendships, with his parishioners.’
3
It was a central part of a priest’s duties to visit the homes of parishioners and become involved in their personal issues.
4
The priest gained the trust of DP’s family during his visits to their home as part of his duties as a priest, in which he would counsel DP’s parents in regards to their matrimonial issues. It was due to this trust that DP’s parents allowed the priest to interact with DP without supervision.
5
The fact that the abuse occurred on social occasions would not, of itself, preclude a finding of vicarious liability.

In respect of DP’s cross-appeal, the Court of Appeal found that the trial judge had not erred in finding that DP only suffered psychological conditions due to the abuse by the priest after reading the December 2018 advertisement.

The Court of Appeal highlighted in its reasoning the following facts relied on by the trial judge:

1
The expert psychologist relied upon by DP was not provided with records from DP’s treating psychologists prior to providing her expert report.
2
The records from DP’s treating psychologists showed that DP had previously attributed his psychological conditions to other factors.
3
DP did not call his treating psychologists as witnesses at the trial. Nor did he call siblings or friends that had known him since he was young and would have been able to give evidence as to the effect the assault by the priest had on DP throughout his life.

conclusion

The decision of the Court of Appeal demonstrates that Australian Courts are taking an expansive approach to the question of imposing vicarious liability on organisations.

This decision is of particular importance to organisations that engage volunteers or persons in capacities other than as formal employees.

The Courts will look at the nature of the relationship between the organisation and the person (volunteer, contractor etc.) and, particularly, whether the person was an “emanation” or “represented” the organisation when considering vicarious liability.

If the Court finds that the relationship between the person and the organisation is one in which vicarious liability should arise, the Court will then consider whether the organisation gave the person the “opportunity” and “occasion” to commit the criminal acts.

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