Concerns raised over impact of new High Court decision on historical abuse survivors seeking justice

13 November 2024

In the case of Bird v DP, a survivor known as DP was sexually abused by a priest of the Ballarat Roman Catholic Diocese in the 1970s.

The question before the High Court was whether the diocese could be held vicariously liable for the abuse committed by the priest, despite the priest not being formally employed by the diocese.

In the decision published this morning, a majority of the High Court found that the principles of vicarious liability are confined to employment relationships.

John Rule said the decision would have far-reaching implications for the ability of child abuse survivors to hold institutions to account for abuse that occurred under their watch.

“The church has known about its priests abusing children for centuries and did nothing to stop it,” Mr Rule said.

“Unfortunately, this decision means that in some cases the church will be able to again evade responsibility for the scourge of child abuse in its ranks.

“This decision puts Australia at odds with other common law jurisdictions like the UK and Canada who have developed the principle of vicarious liability to meet the scourge of child abuse.”

Meantime, in two other decisions handed down today, the High Court has upheld the principle that permanent stays should only be used in exceptional circumstances in historical abuse cases.

In the case of RC v The Salvation Army, the full bench found by majority the proceedings should not be stayed.                 

In Willmot v the State of Queensland, the court found that some of the allegations should not be stayed.

These two decisions on stays come after the November 2023 High Court decision in the case of GLJ against the Diocese of Lismore, in which the court said it was not in the interests of justice for the proceeding to be permanently halted through a stay.

“We welcome these landmark High Court decisions, in which the full bench has confirmed that permanent stays should only be used as a last resort in historical abuse cases,” Mr Rule said.

“We know survivors of child sexual abuse take an average of more than 20 years to tell someone about the abuse.

“Victims of child sexual abuse should not be excluded from justice simply because their abuser died before they came forward.”

Following the recommendation of the Royal Commission, all state and territory governments had removed time limits for the bringing of child abuse civil compensation claims.

“What we have seen over recent years is defendants unfairly and excessively using or threatening stays to permanently block the progress of child abuse cases,” Mr Rule said.

“We hope these decisions on permanent stays bring to an end the use of this unfair legal tactic, ensuring survivors can pursue justice over the lifelong trauma of the horrific abuse they experienced as children.”

Media enquires:
Chee Chee Leung, 0412 560 584 or cleung@mauriceblackburn.com.au