Cardinal George Pell and Vicarious liability of the Church
*Trigger Warning: This article discusses child sexual assault, suicide, and contains descriptive information about sexual assault. This may be sensitive for some readers. If you are at risk or have been a victim of sexual assault, we suggest that you contact the National Sexual Assault, Family & Domestic Violence Counselling at (1800 737 732 / www.1800respect.org.au) or your local support services.*
The case against Cardinal George Pell (Pell) and the Catholic Church (Church) has become one of the most highly publicised cases involving child sexual abuse in Australia. Following the criminal conviction being quashed, a civil action has been launched by the father of a deceased choirboy who made the allegations against Pell. The father has filed an action in the Supreme Court of Victoria against Pell and the Archdiocese of Melbourne.
In 2018, a jury found that Pell had sexually abused two choirboys in the 1990s while stationed at St. Patrick’s Cathedral, Melbourne. Pell, the former Vatican treasurer, became the most senior Catholic figure ever to be jailed for such crimes.
In 2020, two years after his conviction, the High Court of Australia overturned Pell’s convictions in their judgement. The High Court discussed the idea of “compounding improbabilities” and whether the evidence presented before the Court demanded a result other than conviction. In their decision, the High Court unanimously found that there was a significant possibility that an innocent person had been convicted and that the jury should have entertained a doubt as to Pell’s guilt. Therefore, the Court ordered an acquittal and quashed Pell’s original conviction.
In 2014, one of Pell’s alleged victims died of a drug overdose. The victim’s father has now brought a personal injury action against both Cardinal Pell and the Catholic Archdiocese of Melbourne for “damages of nervous shock” and “mental injuries” after learning of his son’s sexual abuse. The claim also states that the Archdiocese of Melbourne was negligent in their lack of action, which resulted in injuries, damages, and loss.
The victim’s father is claiming that Pell was the direct cause of his “mental injuries” because it is reasonably foreseeable that he would suffer from nervous shock after learning that his son had been allegedly abused. The claim also alleges that the Church breached its duty of care owed to the victim’s father.
The victim’s father is seeking general damages, special damages, and compensation for “past loss of earning capacity and past and future medical and like expenses”.
The Ellis Defence –
Since such cases started to emerge in Australia, the Catholic Church has essentially been protected from civil liability for criminal offences committed by members of the clergy because it is an unincorporated association. A decision made by the New South Wales Court of Appeals in 2007 (Trustees of the Roman Catholic Church v Ellis & Anor  NSWCA 117) clarified that the Church held its assets (i.e., its property portfolio) in a protected trust, meaning that it did not legally exist. Therefore, at common law, an unincorporated association cannot be sued under its own name because it does not exist as a legal entity.
These findings were known as “The Ellis Defence” which has protected the Church from dealing with any civil proceedings for misconduct carried out by a member of the clergy.
Vicarious Liability against the Catholic Church in Australia –
In 2019, Justice Michael McDonald of the Victorian Supreme Court developed new rules with respect to the liability that Churches would face in cases where applicants are claiming vicarious liability. Justice McDonald ordered the Catholic Diocese of Ballarat to face civil proceedings for negligence for sexual abuse against a child by one of their priests, Father George Ridsdale (Ridsdale) – (JCB v Bishop Paul Bird of the Diocese of Ballarat  VSC 348 (“JCB v Bishop”)). Ridsdale committed in several sexual abuse offences on children for over three decades.
In their decision, Justice McDonald, equated the relationship that the Church had with Ridsdale as to one of a dangerous guard (the priest) left to roam the premises of its occupier (the Church). Ergo, despite having knowledge of Ridsdale previous sexual abuse offence, the Church kept him within the Diocese.
The decision made by Justice McDonald against Ridsdale is contrary to the abovementioned Ellis Defence. In Victoria, victims of sexual abuse can now claim damages against unincorporated associations (i.e., the Church) if they can show that there was a breach of duty of care and that breach led to harm. While this may not have been tested in other parts of Australia, it may be used as guidance in similar sexual abuse cases.
Having said that, while the decision in JCP v Bishop does not definitively challenges the Ellis defence, it can be seen as persuasive in similar sexual abuse cases.
New law brought into practice (DP (a pseudonym) v Bishop Paul Bernard Bird  VSC 850 (“DP v Bishop”)) –
In 2021, a case was brought against the Church for damages and aggravated damages. The claim involved Father Bryan Coffey (Coffey) who over the course of decades sexually assaulted several children. One of Coffey’s victims was successful in their claim for damages on the basis that the Church was vicariously liable for enabling the abuser to continuously access children’s homes and continue committing sexual offences.
In determining the liability of the Church, Justice Forrest found that the Church had general control over Coffey’s role and duties within the Diocese and community. The relationship between the Church, Coffey, the victim, and the victim’s family was one of intimacy and imported trust in the “authority of Christ’s representative, personified by Coffey”. Given the intimacy of the relationship between all parties involved, the Court found that the Church was vicariously liable for Coffey’s assault because of the direction they had over him and his role.
The Court accepted the survivor’s account and believed that “on the balance of probabilities” that the abuse did occur. The survivor was awarded $200,000 in general damages, aggravated damages, and medical and like expenses for the Churches vicarious liability in Coffey’s sexual abuse. The most significant finding was that the Catholic Church was found liable for aggravated damages reinforcing the decision in JCB v Bishop.
Significance of the George Pell Civil Case for Vicarious Liability in Australia –
As one of the most senior members of the Church to be tried for sexual assault, Pell has become the face of a systemic issue regarding sexual assault within religious organisations. The Ellis Defence acted as a robust barrier for the Church during Pell’s 2018 criminal trial. This made it extremely difficult for Pell’s alleged victims to claim vicarious liability against the Church. However, cases such as DP v Bishop and JCB v Bishop have paved the way for sexual abuse victims and victim groups to launch vicarious liability cases against the Church.
The cases mentioned above, mark the first time in Australia that a decision exercises attribution of liability to a religious organisation for the acts of the abusive priests that they oversee. It further emphasises the point that the Church and its leaders can no longer avoid responsibility for their employees’ actions.
Given Pell’s high-profile ranking within the Church, the decision yet to be made by the Supreme Court of Victoria has the possibility of setting a significant precedent in Australia determine if the Church can be held vicariously liable in cases of sexual abuse.
Our Services –
Salerno Law has represented a number of personal injury cases involving church-related sexual abuse in Australia. Our involvement in such matters has led to resolutions in favour of the claimants. Should you have any questions, or be subject to personal injury, we would welcome the ability to discuss and advise where necessary.
Authors Gabriel Tirol & Steven Hodgson