DP v Bird  VSC 850. (Online publication pending.)
In reasons for judgment published on 22 December 2021, the Supreme Court of Victoria addressed a claim by DP who asserted that he was assaulted by an assistant parish priest at his parent’s home when aged 5 years (in 1971).
The trial judge found that DP was assaulted as alleged and held that the Diocese was vicariously liable for the assaults, though not directly negligent. In addressing damages, it is noteworthy that the trial judge did not award damages for past or future loss of earning capacity.
Remarks as to the expert witness code of conduct are also of interest.
At  the trial judge noted the lack of a binding decision in Australia on the issue of whether a Diocese, or Bishop, is vicariously liable for the actions (lawful or unlawful) of a priest appointed by a Bishop. However there is no presumption in Australian law that a cleric cannot be an employee of a religious organisation or church ().
A finding of employment will turn on the facts (), referring to the decision of the High Court in Hollis v Vabu Pty Limited. However the Diocese or Bishop did not exercise the kind of control over the Assistant Priest’s work that Vabu did in relation to its couriers.
The trial judge (having considered various local and overseas authorities) held at  that it was tolerably clear that the High Court in the Prince Alfred College matter did not endorse a confined theory of vicarious liability restricted solely to an employer employee relationship. The Court found that Coffey could not be treated as an employee ().
The Diocese had the right to exercise control over certain aspects of a priest’s work (). Part of the work was to visit parishioners’ homes and to interact with families and children (). The Court held that the practice of attending homes even for social functions was part of pastoral work ().
There was no evidence to suggest that the Assistant Priest had any relationship with the claimant’s family prior to his appointment to the Parish ().
The trial judge was satisfied that the role as assistant parish priest placed the perpetrator in a position of trust and authority vis a vis the claimant and his family (). Vicarious liability was therefore found ().
Loss of earning capacity
Given the Court’s factual finding that the claimant’s symptoms dated from December 2018, there was no scope for any award of damages for past loss of earnings (). By that time the claimant had been in receipt of a pension for more than 20 years.
In respect of future losses, the die was cast well prior to 2019 in relation to the claimant’s participation in the workforce, from which he had effectively retired when he went bankrupt. There was no cogent evidence to support an award for future loss of earning capacity ( – ).
Aggravated & exemplary damages
An award of aggravated damages was made given the vicarious liability finding, for the breach of trust by the perpetrator (). The trial judge did not award exemplary damages, commenting that the events occurred 50 years ago and little or nothing could be achieved by punishment of the Diocese and the current Bishop ().
Expert witness code of conduct
The trial judge noted that that the claimant’s lawyers did not provide, to the psychiatrist who interviewed him, any material in relation to his past life or past medical treatment (save for a statement he made well after he consulted his lawyers). In this context the Court commented () that in hindsight perhaps the psychiatrist should have sought further information (or stated that the report produced was not a concluded opinion) having regard to the obligations imposed by the expert witness code of conduct.