Personal Injury

In the context of institutional abuse, no decision has been more consequential for survivors than that of the High Court in Bird v DP (2024). Reverting to a more traditional understanding of vicarious liability, the court held that the Roman Catholic Diocese of Ballarat was not liable for child sexual abuse committed by a parish priest in the 1970s, because the priest was not an official employee of the Diocese. The ruling closed the door on claims that relied on relationships “akin to employment”—a principle long recognised in comparable common-law jurisdictions such as the UK and Canada.

For survivors, the judgment was a profound setback. Decades after the Royal Commission had exposed systemic institutional abuse, the High Court appeared to narrow rather than expand access to justice. Legislatures were told that if the law of vicarious liability was to change, it was for the Parliament, not the courts, to do so.

Ostensibly, the Australian Capital Territory has answered that call. Late last week, it became the first jurisdiction to legislate over the top of Bird v DP – re-establishing institutional responsibility for abuse committed by persons in positions of authority, even if they were not formally employed. The law applies retrospectively, reopening the path to justice for survivors who had settled or withdrawn claims in the wake of Bird.

The Bird v DP Decision

The facts in Bird v DP were all too familiar for survivors of institutional abuse. In 1971, a priest – Father Bryan Coffey – sexually abused a child parishioner while performing pastoral duties within the Diocese of Ballarat. The Survivor, DP, sued the Diocese for damages.

The High Court unanimously dismissed the claim. It reaffirmed that vicarious liability under Australian common law requires a relationship of employment or equivalent agency. Although the priest was under ecclesiastical authority, he was not paid, supervised, or controlled in the sense recognised by employment law. The Court rejected arguments that the relationship was “akin to employment”, emphasising that it was for the legislature to expand vicarious liability beyond the standard employment model, not courts.

In effect, the judgment creates a significant gap. It insulates institutions from liability in circumstances where abuse is perpetrated by those who operate outside the technical confines of employment, such as clergy members and volunteers, even when the abuse is empowered by their authority. And survivors who had relied on the doctrine of ‘akin to employment’ – successfully argued in Canada’s Bazley v Curry and the UK’s Various Claimants v Catholic Child Welfare Society – were left without remedy in Australia.

The ACT’s Response

The passage of the Civil Law (Wrongs) Act 2002 (ACT) directly addresses this problem in Australia’s capital.

The Act provides that an institution may be vicariously liable for the actions of a person who performs functions on behalf or in connection with the institution and holds a position of authority, trust, or responsibility over a child, regardless of whether the person is technically an employee or agent.

In effect, the Act codifies a relationship “akin to employment”, ensuring that institutions can still be liable when those acting under their authority abuse children.

One of the most striking features of the new law is its retrospective reach. Victim-survivors who settled or discontinued proceedings after Bird v DP can apply to set aside those settlements or judgments. This measure recognises that many survivors accepted unfavourable outcomes under the misapprehension that their claims were legally barred.

Attorney-General Shane Rattenbury described the law as “restoring fairness and consistency” for survivors. The ACT Government’s Explanatory Statement acknowledges that Bird created an “unintended justice”, prompting urgent legislative correction. Survivor advocates hailed the move as “nation-leading” and called for all jurisdictions to follow suit.

The National Picture

The ACT’s move has already spurred momentum for reform elsewhere. The Victorian government has pledged to introduce similar retrospective legislation. Meanwhile, NSW has evinced its intention to review the issue, following parliamentary inquiries last month.

Without uniform reform, Australia risks a fragmented system, where survivors in one jurisdiction have rights that survivors in other jurisdictions lack. Legal commentators have urged the Council of Attorneys-General to coordinate a harmonised national approach, consistent with the spirit of the Royal Commission’s recommendations.

Internationally, the ACT’s model realigns Australia with jurisdictions that have embraced the “akin to employment” standard, acknowledging the reality that institutional control – not contractual formality – is what enables abuse.

If you or someone you know has been impacted by child abuse, our law firm specialises in institutional abuse compensation claims. We provide fully trauma-informed support and confidential guidance to help survivors seek justice and healing. Please reach out to us with confidence—we are here to support you every step of the way.