Litigation

In the context of institutional abuse, no action has been more consequential for survivors than the High Court’s in Bird v DP. Reverting to a more formal understanding of vicarious liability, the court held that the Catholic Church could not be held liable for the child abuse committed by a parish priest in the 1970s. The ruling closed the door on claims that relied on relationships “akin to employment” – a principle long recognised in other common-law jurisdictions, including the UK and Canada.

For survivors, the judgment was a profound setback. Decades after the Royal Commission had exposed the systemic issue of institutional abuse within Australia, 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.

A year later, Victoria is seeking to do just that. A couple of weeks ago, the Victorian Government introduced the Justice Legislation Amendment (Vicarious Liability for Child Abuse) Bill 2025. If passed, the legislation will effectively overturn Bird v DP and therefore broaden the scope for legal redress by ensuring that institutions can be held liable for child abuse committed by individuals who are akin to employees, not just direct employees.

The Bird V DP Decision

The central question for the High Court in Bird v DP was whether the Catholic Diocese of Ballarat could be held vicariously liable for the sexual abuse of a child parishioner committed by a priest during its pastoral duties.

In this civil case against the diocese, it was the technicalities of employment that prevented the finding of vicarious liability. The court found that the abuse occurred and that it occurred during the broader course of the assistant priest’s duties. But while the first judgment and the first appeal both found that the assistant priest represented the diocese akin to an employee, the High Court found that this was insufficient.

Instead, the High Court elucidated a formal understanding of vicarious liability. It held that liability only arises where an employment or quasi-employment relationship exists. Though the relationship between the Diocese and the Priest was close, it did not constitute employment in the strict legal sense. As a result, vicarious liability could not be established.

In effect, the judgment perpetuates the asymmetry of power between institutions and survivors. For institutions, it insulates them from liability in instances where abuse is perpetrated by those who operate outside the technical confines of employment, such as clergy members and volunteers, even when their authority empowers the abuse. For survivors relying on claims of vicarious liability to pursue legal redress, it leaves them without a remedy.

On a broader level, the decision is symptomatic of the law’s rigidity – a rigidity that so often prevents the progressive ideals that effective reform necessitates. Even worse, it abandons the principles of substantive justice and ignores the realities of abuse to preserve the banal technicalities of doctrine.

Victoria Takes a Stance

While the High Court recognised the Royal Commission’s recommendation that survivors have a vehicle to establish institutional liability for wrongs committed against them, it ruled that these recommendations did not pave the way for a broadening of the common law doctrine of vicarious liability.

Instead, the majority ruled that ‘the issue is squarely in the hands of the legislature’ and that ‘reformulation of the law of vicarious liability is properly the province of the legislature.’

This reluctance from the judiciary to expand vicarious liability through the common law creates an imbalance between, for example, a child abused by a teacher in a classroom in a religious school and a child abused in the same school but by the priest in the sacristy instead.

So far, the ACT is the only jurisdiction that has taken action to correct this imbalance, after it passed the Civil (Wrongs)(Organisational Child Abuse Liability) Amendment Act 2025. Now, Victoria seems poised to follow suit.

Victoria’s Justice Legislation Amendment (Vicarious Liability for Child Abuse) Bill 2025 aims to hold institutions accountable for child abuse by amending the Wrong Acts 1958 to extend the definition of vicarious liability to relationships “akin to employment”. It also aims to amend the Limitations of Actions Act 1958, allowing victims whose cases settled after the Bird v DP decision apply to have those settlements set aside for new claims. If passed, the legislation will usher in a new era of litigation – creating additional pathways for survivors to seek redress from organisations that enabled abuse by individuals in positions of trust, like religious leaders or volunteers, not just formal employees.

In this sense, the bill reflects the realities of institutional power. It acknowledges that abusers often exploit power granted through informal hierarchies, symbolic roles, or religious status rather than contracts of service, and codifies the understanding that institutions should bear legal responsibility for the risks they create, regardless of contractual formalities.

The Persistence of Barriers

Even with expanding liability, the pathway to justice for survivors remains arduous, especially considering the evidentiary burdens caused by decades of institutional cover-ups.

In practice, survivors still face the burden of proving not only that abuse occurred, but that the institution knew or ought to have known of the risk — an expectation that often collapses under the weight of time.

The National Redress Scheme, conceived as a compassionate alternative, has done little to alleviate this inequity. Its capped payments — currently limited to $150,000 but averaging around half that — and complex eligibility criteria have been widely criticised as inadequate. Many survivors describe the process as bureaucratic and retraumatising, characterised by inconsistent decision-making and limited recognition of psychological harm.

In many ways, the slow progress of reform is as much a reflection of political calculations as it is the law’s unresponsiveness. Expanding institutional liability carries fiscal and reputational costs, particularly for state agencies, churches, and charities that remain major social service providers. Governments, sensitive to these pressures, often balance moral imperatives against potential backlash from institutions still wielding considerable influence.

In this sense, the move to remove barriers for survivors not only necessitates law reform but a willingness to confront institutional complicity and to relinquish the culture of denial.