One year on and the fallout from overturning Bird v DP

When the High Court overturned Bird v DP exactly one year ago, it did more than redefine vicarious liability. The decision also led to further distress and retraumatisation of many survivors of historical institutional abuse.

In that case, the Court found the Catholic Diocese of Ballarat could not be held vicariously liable for the actions of a priest (Bird) who sexually abused a child, because the priest was not technically an employee. To many lawyers, that was difficult to accept, particularly those who had represented their clients over years of fighting for redress. To victims of abuse, it was  incomprehensible, because in their minds, the perpetrator was only in contact with them through the institution’s authority. To draw a legal line between the priest and the Church feels, to many, like a cruel technicality, one that has shattered their prospects of redress or recognition.

Because this was a High Court ruling, the precedent now applies nationally. In the year following this decision, some states have taken steps to enact legislation to correct this, with only the ACT enacting legislation. Victoria has made similar steps and WA has begun to enact change in the last few days. 

While policymakers debate the limits of vicarious liability, survivors experience such decisions in far more visceral terms. To them it is another case of a powerful institution determining their fate, without any input or consideration of their predicament. 

For many survivors, abuse itself was an act of power and control, where they were rendered powerless and helpless. These emotions become hard wired into their consciousness, playing out in social situations and with the terror of nightmares and flashbacks. These same emotions are unconsciously leashed at times like this, as they again feel powerless to a legal decision. 

We speak often of institutional betrayal, but its psychological toll remains underestimated. Seeking redress involves retelling one’s story to strangers often when close friends and family were aware of the existence of abuse decades ago. The compensation and redress process is further delayed, often for years, while waiting for crucial ward or Department files that provide factual accounts of times, dates and people. Each setback, appeal or overturned judgment compounds the trauma, and keeps old wounds open that victims have tried to keep bolted shut in order to exist.

From a psychiatric perspective, this raises the fundamental question of what has led to the injury? Is it the impact of the original abuse, or the stress of disclosing the details. Is it the fear of not being believed, or the denial from the institution denying accountability?

To a psychiatrist these factors all blur into one. The abuse and the need for justice are intertwined. Traumatic memories that have never been processed and actively avoided surface and wreak havoc at any opportunity. Every setback in the legal process can reactivate the original injury because it mirrors the same imbalance of power and lack of control. One fundamental feature is clear however, survivors would not be retraumatised by the system if the abuse had never occurred.

The Bird v DP ruling is more than a legal turning point; it is a public mental-health issue. Survivors of institutional abuse already carry the heavy burden of conditions such as PTSD and depression. They live with chronic feelings of guilt and shame which they inappropriately experience despite being the victim.They struggle with suicidal thoughts and despair at a future betrayed by their experiences with adults who were tasked to care for them. 

If other jurisdictions follow ACT’s lead it will be a welcome correction, but there must be consideration and redress offered for the consequence of ongoing delays to seeking justice. Every time survivors are told to wait for Parliament, or that their abuser’s employer “wasn’t technically responsible”, we reinforce a pattern of institutional disregard. And we know that for most survivors, closure is not about money, rather acknowledgement and a knowledge that the institution that failed them finally stands accountable.

Until that happens, every delay, every overturned judgment, every retraumatising retelling remains part of the same story. One that began with abuse, and continues in the silence of systems still learning to acknowledge the person behind the claim.