Bird v. DP (A Pseudonym)

Lower Court Judgment

03/04/2023 Supreme Court of Victoria (Court of Appeal) (Beach, Niall & Kaye JJA)

[2023] VSCA 66

Catchwords

Torts – Personal Injury – Sexual assault – Vicarious liability – Where trial concerned allegations of sexual assaults against respondent by Catholic Priest in 1971, when respondent was five years of age – Where respondent sued Diocese of Ballarat through current Bishop, who was nominated defendant – Where respondent’s negligence case failed, but appellant, representing Diocese, found to be vicariously liable for Priest’s sexual assaults – Whether Court of Appeal erred in holding that appellant could be vicariously liable for tortfeasor’s wrong where express finding that tortfeasor not in employment relationship with appellant and was no finding that tortious conduct occurred as part of any agency relationship between tortfeasor and appellant – Where in circumstances Court finds relationship between appellant and tortfeasor gives rise to relationship of vicarious liability, whether Court of Appeal erred in concluding, based on general and non-specific evidence accepted, that conduct of tortfeasor was conduct for which appellant ought be liable as having provided both opportunity and occasion for its occurrence.