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.
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“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.
Speaking after the 2021 decision, Ken Cush & Associates’ special counsel, Sangeeta Sharmin, said the case would help countless other survivors.
“This verdict, along with the courage our client has shown in fighting for the rights of that five-year-old version of himself, will help countless other victims of church abuse in the future,” she said.
“As it should be, because dioceses need to take responsibility for the men they placed in these communities, asked their congregations and donors to trust, and who people looked to for spiritual guidance.”
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