Personal Injury

The curtain of secrecy, the protection of the Catholic Church’s private interests, the cover-ups of the not-infrequent cases of child sexual abuse committed by priests, and the unwillingness to reduce, eliminate or compensate for the effects on survivors of institutional child sexual abuse have been a constant feature of the Catholic Church in the past dozen years.

In its investigation, the Royal Commission on Institutional Responses to Child Sexual Abuse found that thousands of children have been survivors of child sexual abuse in the Catholic Church. It demonstrates a global problem and has led to the prosecutions of Catholic priests worldwide for crimes committed.

But should priests alone be liable for child sexual abuse committed within the walls of the Catholic Church?

The Ellis Defence

The Catholic Church had long been protected from lawsuits against it by survivors of child sexual abuse because it is structurally an unincorporated association.

It was called “The Ellis Defense”:

• John Ellis, a senior altar boy at Christ the King Catholic Church parish in Bass Hill, was a survivor of sexual abuse committed against him by Father Duggan;
• Father Duggan died in 2004 before the charges against him were filed;
• In 2006, John Ellis tried to file a lawsuit against Cardinal Pell and the Roman Catholic Church for the Archdiocese of Sydney trustees for breach of fiduciary duty.
• In 2007, the New South Wales Court of Appeal ruled in favour of the church. The court found that the trustees should not be liable for the conduct of the clergy because there was no legal person to sue for wrongdoing committed by a clergy member other than themselves.

From this decision emerged the concept of the Ellis Defense, which for a long time allowed the church to remain untouchable and not be liable for institutional child sexual abuse committed by priests.

Legal Identity of Defendants (Organisational Child Abuse) Act 2018

However, the situation has recently changed.

The court’s decision in the Ellis case was a prerequisite to the passage of the Legal Identity of Defendants (Organizational Child Abuse) Act of 2018.

The Act’s primary purpose is to allow child abuse plaintiffs to sue an organizational defendant against unincorporated nongovernmental organizations that use trusts to carry out their activities.

The provisions of the Act can be summed up in the transformation of an unincorporated association into a fictitious incorporated entity. The purpose of such a legal fiction is to appoint an appropriate defendant and to impose on the legal entity the same obligations that would have applied if the legal entity had been incorporated at the time of the abuse.

How have these changes in the law been reflected in judicial practice?

Background: Father Bryan Coffey

Brian Coffey was born in Ballarat, Victoria, Australia, in 1934. In 1960 he became a priest of the vast Diocese of Ballarat. Coffey’s main parishes were:

• Horsham, Coroit, and Terang (1960s);
• Port Fairy (late 1960s and early 1970s);
• Owen (1970s);
• Charlton (late 1970s and early 1980s);
• Colac (late 1980s); and
• Sea Lake, Gordon, and Stowell (1990s).

In Ballarat County Court in February 1999, a jury found Father Brian Coffey guilty of 12 episodes of indecent assault on eight boys and one episode on one girl, ages 6 to 11, while serving in Ballarat, Port Fairy, and Owyen from 1960 to 1975.

Moreover, he was also found guilty of falsely imprisoning one boy in a bedroom.

The judge gave Brian Coffey a three-year jail sentence.

Father Brian Coffey died in 2013.

However, this did not prevent one of the survivors of Father Coffey’s abuse from successfully suing the Catholic Church, seeking damages because the church allowed the paedophile to access children in the church and their own homes and to abuse them sexually.

DP v Bird case

An individual known as DP sued the diocese through Bishop Paul Bird. The basis for the lawsuit was the claim that the diocese was vicariously liable for Father Coffey’s actions. In addition, DP argued that the diocese was negligently responsible because it failed to exercise reasonable care in its authority, supervision, and control over Coffey’s conduct.

DP insisted on two instances of sexual abuse by Coffey’s father in 1971 at the DP family home, in his bedroom, when DP was five years old.

The Supreme Court of Victoria valued DP’s pain and suffering at $200,000. In addition, there was an award of $10,000 for medical expenses and compensatory damages of $20,000.

The case is significant in terms of the conclusion that the diocese is liable regardless of whether Coffey was an employee. The finding of vicarious liability is not limited to the absence of formal employment instructions, such as a written contract.

Bird v DP case

The church was dissatisfied with the court’s conclusion about vicarious liability for Coffey’s actions, who was not an employee and appealed the decision.

On April 3, 2023, the Supreme Court of Victoria upheld the right of a survivor of child sexual abuse to hold the church accountable and seek compensation for the abuse committed by a paedophile priest.

Father Coffey’s role in the diocese gave him access to children and opportunities for child abuse.

The court considered the diocese’s power and level of control over the clergy and upheld the finding that the diocese was vicariously responsible.

The court also deemed the amount of compensation previously awarded to be fair and appropriate to compensate for DP’s personal injury and feelings due to the indecent assaults.

The decisions in DP v Bird and Bird v DP open up new avenues for survivors of institutional child sexual abuse who have not yet been able to receive the compensation they deserve. It is a truly historic decision.

If you or someone you know would like to talk to one of our historical sexual abuse specialists, for free and in confidence, about your legal options, please feel free to either complete the form below with the best way and the best time to contact you, or you can call us on 02 9283 5599.