Victorian Catholic diocese found vicariously liable for child sexual abuse in landmark ruling

The Guardian [London, England]

January 4, 2022

By Christopher Knaus

Church’s argument that it was not responsible for the abuse was rejected and described as ‘affront to common sense’

The Catholic church’s failed attempt to argue it was not responsible for a priest’s abuse of a five-year-old, because it took place during after-hours “social” visits, has been slammed as “ruthless” by the survivor and an “affront to common sense” by a judge.

Last month the Victorian supreme court handed down a judgment finding the current diocese of Ballarat was vicariously liable for the abuse of the boy, who cannot be named, by Father Bryan Coffey in Port Fairy in the early 1970s.

The survivor’s lawyers, Ken Cush & Associates, say the ruling is a landmark win that will help countless others.

Coffey abused the boy during pastoral care visits to his home on two occasions in 1971.

The critical issue in the case was whether Coffey, an assistant parish priest, could be considered a formal employee of the diocese at the time, thereby making it vicariously liable for his actions.

The church argued that Coffey was not a formal employee and so it could not be held liable for his actions.

It also said Coffey’s home visits were “social outings” not connected to his work for the church.

The judge in the case, Justice Jack Forrest, described the suggestion as “sheer nonsense”.

“It is, in my view, both inconceivable and an affront to common sense to suggest (as the Diocese put it) that these visits to parishioners’ houses and [the survivor’s] home were unconnected with Coffey’s pastoral role within the Church and merely social outings separate to his role as an assistant priest,” he said.

The court found the abuse occurred and that the diocese was vicariously liable for Coffey’s actions.

Forrest found Coffey was not a formal employee of the church, given the absence of any formal employment contract or arrangement, and the lack of immediate control or supervision by the diocese of his work.

But he found the diocese was still vicariously liable for the abuse due to the close nature of the relationship between the bishop, the diocese and the Catholic community in Port Fairy; the diocese’s general control over Coffey’s role and duties; and the fact that Coffey had a pastoral role in the town, which included home visits.

The court found the relationship between the survivor, his family, Coffey, and the diocese was one of “intimacy and imported trust in the authority of Christ’s representative, personified by Coffey”.

“I am also satisfied that Coffey’s role as a priest under the direction of the Diocese placed him in a position of power and intimacy vis-à-vis [the survivor] that enabled him to take advantage of [the survivor] when alone – just as he did with other boys,” he said.

Forrest found that the survivor had failed to prove negligence on the part of the diocese, given there was no evidence it had any actual knowledge of Coffey’s misconduct or any evidence that would lead to an inference that the diocese should have known of Coffey’s proclivities.

The court awarded the survivor $230,000.

In an interview with Guardian Australia, the survivor said the church’s approach to the case had caused him significant distress.

“They weren’t giving anything away,” he said. “They wanted to drag me through it, and they dragged me through it.”

He had been cross-examined for three days and forced to relive painful memories, including the sudden death of both of his parents in a car crash in 1985, in a way he thought was irrelevant to the case.

The argument that the home visits were not connected to Coffey’s work as a priest, the survivor said, was “ruthless”.

“That really upset me, because you know, I was always brought up that a priest is a priest, 24 hours a day,” he said. “We always had priests and nuns visit the house, and the nuns were never out of their habits when they came to the house. The priest was never out of his clerical tie when he visited the house.

“They just tried to argue their way out of it.”

A Ken Cush & Associates special counsel, Sangeeta Sharmin, said the ruling, for the first time, provided a binding authority that allowed a diocese to be held vicariously liable for the abuse conducted by its priests.

“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.

“The argument will no longer be able to be used as a shield by Catholic institutions, and our efforts in striving to give abuse victims a voice has finally culminated in this landmark decision.”

The church and the office of the current Bishop for Ballarat, Paul Bird, were contacted for a response.

It is unclear whether the church will appeal.

 In Australia, children, young adults, parents and teachers can contact the Kids Helpline on 1800 55 1800, or Bravehearts on 1800 272 831, and adult survivors can contact Blue Knot Foundation on 1300 657 380. In the UK, the NSPCC offers support to children on 0800 1111, and adults concerned about a child on 0808 800 5000. The National Association for People Abused in Childhood (Napac) offers support for adult survivors on 0808 801 0331. In the US, call or text the Childhelp abuse hotline on 800-422-4453. Other sources of help can be found at Child Helplines International