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This week, the High Court of Australia delivered three significant judgments in historical abuse cases. These decisions will have broad implications for both survivors seeking to bring claims for vicarious liability of non-employees and for defendants seeking permanent stays due to the passage of time, loss of evidence, and death of witnesses. Below is a summary of each case.
Bird v DP [2024] HCA 41
Background
In Bird v DP, the Plaintiff, DP, sued the Catholic Diocese of Ballarat for damages arising from alleged sexual abuse by Father Bryan Coffey, a priest with the Diocese, in 1971.
DP argued that the Diocese was either negligent or vicariously liable for Coffey's actions. While the trial judge found that Coffey was not an employee of the Diocese, it concluded that the Diocese's significant control over Coffey’s role was sufficient to establish vicarious liability. The Victorian Court of Appeal upheld this decision.
High Court Appeal
On appeal to the High Court, the Diocese successfully argued that there was no employment relationship between it and Father Coffey, and therefore it could not be held vicariously liable for his actions.
The majority of the Court examined the boundaries of vicarious liability, emphasising that agency and secondary liability could not be used to attribute responsibility for Coffey’s actions to the Diocese. The High Court found that the law of agency did not support the argument that Coffey was a true agent of the Diocese, as his actions were neither authorised nor ratified by the Diocese. Additionally, the Court reaffirmed that vicarious liability in its strict sense requires an employment relationship, which was absent in this case.
The Court also rejected the idea of extending vicarious liability to relationships "akin to employment". The majority found no justification for such an extension, noting that policy considerations or practices in Canada and the UK, which are based on different legal frameworks, were not applicable to the Australian context.
In dissent, Justice Gleeson proposed that the relationship between the Diocese and Coffey was "akin to employment," although he agreed with the majority that the lower courts had erred in linking the alleged assaults to that relationship.
This decision has significant implications for institutional liability in Australia particularly regarding the accountability of institutions for misconduct committed by non-employees.
Willmot v State of Queensland [2024] HCA 42
Background
In Willmot v State of Queensland, the Plaintiff, a former State ward, alleged she had suffered physical and sexual abuse while in foster care and a girls' dormitory between 1957 and 1959. She claimed that the State of Queensland, as her legal guardian, owed her a non-delegable duty of care to protect her from harm and had failed to fulfill this duty, resulting in psychological harm.
The State of Queensland applied for a permanent stay of proceedings, arguing that the significant time lapse since the alleged abuse made a fair trial impossible due to unavailable evidence. The trial judge granted the stay, but the plaintiff appealed to the High Court.
High Court Appeal
The High Court moved away from a blanket stay and instead examined each allegation individually. In relation to the:
- sexual abuse by the plaintiff’s foster parents, the stay was overturned. The Court noted that evidence from another former foster child could corroborate the plaintiff’s claims, and the inability to cross-examine the deceased foster parents did not render the trial unfair.
- physical abuse in the girls' dormitory, the permanent stay was also overturned. The Court found that corroborative evidence from former residents could mitigate the disadvantage caused by the death of the alleged abuser.
- sexual abuse by the plaintiff’s uncle, the stay was overturned, as the uncle was still alive, which reduced the forensic disadvantage for the State.
- sexual abuse by the plaintiff’s great uncle/cousin, the stay was upheld due to the insurmountable evidentiary disadvantage caused by the uncle’s death and the lack of corroborating evidence.
The High Court's decision reaffirmed key principles regarding the granting of stays in abuse cases:
- There is a presumption against granting permanent stays, particularly in abuse cases, given the legislative abolition of limitation periods;
- A stay should only be granted in exceptional circumstances where fairness cannot be achieved through other means;
- Courts must assess specific evidentiary disadvantages, not just general concerns about delay; and
- Judicial techniques, such as cautioning juries about memory limitations, can mitigate fairness concerns.
This judgment highlights the importance of a detailed, case-by-case analysis of each allegation, taking into account the current circumstances and the defendant’s ability to respond.
RC v Salvation Army [2024] HCA 43
Background
In RC v Salvation Army, RC filed a claim in 2018, alleging that he had been sexually abused by Lt. Frank Swift, a Salvation Army officer, at the Nedlands Boys' Home in 1959-1960. RC argued that the Salvation Army was either directly negligent for failing to implement adequate protective systems or vicariously liable for Swift’s actions.
The Salvation Army applied for a permanent stay, arguing that the passage of time had erased crucial evidence and left no witnesses, as key individuals such as Swift, the home’s manager, Major Watson, and Swift’s widow had all passed away. The trial court granted the stay, and RC’s appeal to the Court of Appeal was unsuccessful.
High Court Appeal
On appeal, the High Court unanimously overturned the stay, issuing four separate judgments.
The majority judgment found that the Salvation Army's failure to follow up on leads and potential witnesses did not assist its claim regarding loss of evidence. The High Court also found that the inability to cross-examine deceased individuals did not render a fair trial impossible, as the case relied primarily on denials, which could still be countered with the available evidence.
The High Court emphasised that permanent stays in historical abuse cases should be granted only in exceptional circumstances. The Salvation Army’s awareness of potential issues in its system, highlighted through evidence from its officer Commissioner Tidd about the lack of child abuse policies, played a key role in the Court's decision.
Justices Edelman, Steward, and Gleeson each provided separate judgments, with Justice Edelman, finding that vicarious liability in this case was untenable, while Justice Steward pointed to the Salvation Army's failure to investigate allegations against Swift as early as 1961.
This decision reinforces that stays should not be granted lightly in historical abuse claims, particularly when some material evidence remains available and the defendant has failed to adequately pursue other lines of inquiry.
What are the implications of these decisions for historical abuse claims?
The High Court’s recent judgments will have a significant impact on how historical abuse claims are handled moving forward. Until further legislative reform is introduced, Courts will continue to apply the standard test for vicarious liability and subsequently, claims alleging vicarious liability against an institution for the criminal acts of non-employees will face considerable challenges.
In relation to permanent stays, the decisions in Willmot and RC reinforce that while each case will turn on its own facts, defendants will face significant hurdles in bringing a permanent stay application. Courts are required to assess the specific circumstances of each allegation and the defendant’s ability to respond, rather than relying on prejudice arising from delay or death or unavailability of witnesses or evidence. For defendants, these decisions underscore the need to actively pursue evidence and follow up on potential leads, as failure to do so may prejudice any application for a permanent stay.
For more information, please contact the key persons listed.
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