Victoria’s highest court has ruled that the Catholic church is vicariously liable for sexual abuse by a paedophile priest because he was a “servant of the diocese” whose role gave him the “power and intimacy” to access and abuse children.
The decision by the Victorian court of appeal on Monday upholds the original landmark ruling, which, for the first time in Australia, found the church is vicariously liable for the abuse of its priests.
The decision is expected to help countless other survivors achieve more significant compensation for the abuse they suffered at the hands of paedophile clergy.
The case involves a then five-year-old boy, known only as DP, who was abused by Father Bryan Coffey at his parent’s home in Port Fairy during pastoral visits in 1971.
The critical issue in the case was whether the diocese and the current Bishop, Paul Bird, could be held liable for Coffey’s actions, despite the assistant priest not being a formal employee of the church.
DP’s lawyers, Ken Cush and Associates, successfully convinced the Victorian supreme court in late 2021 that, despite the lack of formal employment, the diocese was “all powerful in the management of clergy within a diocese” and that activities of an assistant parish priest were under the “direct control” of the priest, who reported to the bishop.
That left the church vicariously liable for Coffey’s abuse, the court found.
The church appealed against the decision. On Monday, however, the court of appeal upheld the previous ruling of vicarious liability.
“Coffey’s livelihood was provided for by the diocese,” the court ruled. “In performing his work, Coffey wore the uniform of the Roman Catholic priest. Father Dillon described how, in undertaking the pastoral aspect of the work, it was usual for the assistant priest to wear the clerical collar. As assistant priest, duly appointed by the bishop, Coffey did the work of the diocese in the parish to which he was appointed, and the diocese did its work by and through him.”
“In a real and relevant sense, Coffey was the servant of the diocese, notwithstanding that he was not, in a strict legal sense, an employee of it.”
The court of appeal also upheld the finding that Coffey’s position of power and intimacy – invested in him by virtue of his role with the church – gave him the ability to access and abuse DP.
“It is quite clear that the role of Coffey, presenting as a priest to the local parishioners, invested him with a substantial degree of power, authority and respect,” the court ruled.
“As such, that role, in itself, engendered a significant degree of respect and trust in him by his parishioners, was well justified in concluding that the position of power and intimacy, invested in Coffey as an assistant priest of the parish, provided him not only with the opportunity to sexually abuse the respondent, but also the occasion for the commission of those wrongful acts.”
DP was previously awarded $230,000. The court of appeal declined a cross-appeal seeking to increase the amount of damages.
Ken Cush & Associates’ special counsel, Sangeeta Sharmin, said the case would help countless other survivors and described the court of appeal’s decision as a “welcome one”.
“The court of appeal has found that the abusing priest was the emanation of the diocese of Ballarat in Port Fairy and that the diocese gave the Priest the opportunity and the occasion to abuse DP in the family home,” she said.
“The court of appeal has confirmed Justice Forrest’s landmark decision that a diocese can be held vicariously liable for the actions of a priest appointed by a bishop. This is once again a historical decision for survivors of child sexual abuse.”
• In Australia, children, young adults, parents and teachers can contact the Kids Helpline on 1800 55 1800, or Bravehearts on 1800 272 831, and adult survivors can contact Blue Knot Foundation on 1300 657 380. In the UK, the NSPCC offers support to children on 0800 1111, and adults concerned about a child on 0808 800 5000. The National Association for People Abused in Childhood (Napac) offers support for adult survivors on 0808 801 0331. In the US, call or text the Childhelp abuse hotline on 800-422-4453. Other sources of help can be found at Child Helplines International