On Wednesday, November 13, the High Court unanimously overturned a decision of the Victorian Court of Appeal to find that the Roman Catholic Diocese of Ballarat cannot be found vicariously liable for sexual abuse carried out by one of its priests.

In a blow for victims/survivors, the High Court diverged from the decisions of similar Common Law jurisdictions such as Canada and England, which previously expanded the doctrine of vicarious liability to religious organisations.

The High Court instead sought to curb the potential for future uncertainty and indeterminacy, clarifying that vicarious liability cannot exist in the absence of a clear employer/employee relationship.

The Claim – In Brief

In 1971, the plaintiff (“DP”) alleged that he was sexually assaulted by a diocesan priest on two occasions, during pastoral visits to the family home. The priest was not an employee of the diocese.

At first instance, the diocese was found vicariously liable. Justice Forrest highlighted the Diocese’s role in appointing priests, its authority over priests, and the extended role of a priest as key factors in this decision. Thus, the “totality of the relationship” was essential in a finding of vicarious liability.

The Diocese appealed to the Victorian Court of Appeal, which unanimously dismissed the appeal. The Diocese was granted special leave to appeal to the High Court.

The principal issue raised by the Diocese to the High Court was:

• Whether, in the absence of an employment relationship, the Diocese can be found vicariously liable for the assaults committed by the priest.

The High Court’s decision

The Court sided with the Diocese. In doing so, it highlighted two main concepts:

• The priest was not a true agent of the Diocese, as his actions were not expressly ordered, implied, or authorised by the Diocese. Thus, the law of agency was not applicable.
• A relationship of employment is a necessary precursor to a finding of vicarious liability. The priest’s role was akin to employment, not employment as such.

What does this mean for victims?

This decision, heralded by defendant law firms and institutions as much needed clarity on the restrictions of vicarious liability, gives organisations that rely on volunteers and contractors a potential free pass from liability for the acts committed by non-employees.  However, these institutions and organisations still owe a duty of care to children in their care.  As such, we still encourage all victims/survivors to seek legal advice in relation to their potential claims.

There is no doubt that this decision from the High Court will impact victims/survivors and their journey towards justice, healing and compassion. It takes great courage for survivors to come forward and share their stories, often a great personal expense.

Ryan Carlisle Thomas calls upon the Victorian Parliament to take steps to amend this great injustice, and stands with the Australian Lawyers Alliance in their advocacy for a legislative change to the laws.  We hope that, given the courts acknowledgment of the harshness of this decision, pressure will be on governments around Australia  to update legislative provisions.   Until then, we encourage all victims/survivors to continue to seek legal advice, and force these institutions to account for their actions and inaction. Learn more about our Institutional Abuse services today or get in touch with one of our trauma-informed lawyers to discuss your options.