On 15 April 2025 the NSW Court of Appeal handed down this much awaited decision which will have a significant impact on the way in which Australian Courts determine the liability of institutions for historical sexual abuse claims for damages.
The decision gives much needed guidance in respect of the high evidentiary onus of plaintiffs, the content and scope of any duty owed, and the dangers of applying impermissible hindsight reasoning and modern awareness/standards of child protection to historical settings.
Background
AA commenced Supreme Court of New South Wales proceedings against The Trustees of the Roman Catholic Church for the Diocese of Maitland Newcastle, alleging direct liability in negligence and vicarious liability for alleged sexual abuse in 1969 by an incardinated Priest, and seeking damages.
The Priest gave scripture classes at a State High School attended by the plaintiff, whom subsequently attended the Presbytery on a number of occasions in the company of other 14 year old teenage boys (of which he only named “Alan”). The plaintiff alleged the Priest supplied he and the other boys with alcohol and cigarettes. The plaintiff alleged he was sexually abused on a number of occasions at the Presbytery in a room adjacent to the loungeroom, when his friend Alan was sent to the shops. He claimed he could not recall Alan’s full name and had not seen him in many years.
After various investigations, Alan was nevertheless identified by the defendant’s investigations. He was a very credible witness and gave compelling evidence contradicting the plaintiff in a number of key respects, including that he ever left the plaintiff alone with the Priest, that he could have been sexually abused in a an adjacent room without Alan being aware, and that he knew the plaintiff well, had stayed in contact with him over the years and even seen him a number of times in the last 2 years.
The damages evidence established the plaintiff had a very significant medical history, had sustained multiple workplace and motor vehicle injuries and made claims for compensation, and had ceased work in 2005 to care for his terminally ill wife.
Supreme Court Judgment
The trial Judge concluded AA was sexually abused, that the Diocese owed and breached a duty of care, and that it was vicariously liable for the sexual assaults. The trial Judge did not accept the extent of damages claimed by the plaintiff.
The trial Judge generally preferred the plaintiff’s evidence over Alan’s. Although she preferred the evidence of Alan in respect of recent interactions between he and the plaintiff, she said it did not follow that must lead to the rejection of AA’s evidence about the assaults. Her Honour found the abuse took place in a room adjacent to the lounge room, where Alan (and at times other boys) were socialising.
In finding the Diocese directly liable in negligence, the trial Judge found that although there was no widespread knowledge in the community in 1969 of the existence of the risk of child sexual abuse, she nevertheless found the existence of such risk was known to Bishops and other senior members of “the Church”. The trial Judge therefore reasoned this generalised knowledge, made the risk of harm foreseeable.
The trial Judge further found that the Diocese took no precautions in 1969 to reveal the existence of the risk of harm to the community, prevent it materialising, or put in place systems to deal with the risk. The Court found that a reasonable person in the Diocese’s position would have taken precautions, which included advising parishioners about the risks that Priests could pose to children and forbidding children to be allowed in the Presbytery.
The trial Judge also found the Diocese vicariously liable, however the High Court has since handed down the Bird v DP decision, which overrules that part of the Judgment.
Court of Appeal
The Diocese Appealed on the basis that the trial Judge erred in finding that AA was sexually abused, the findings of fact were inherently unlikely and/or glaringly improbable given the unchallenged evidence of Alan, and erred in the finding of the existence of a duty of care, the content and scope of that duty, breach and causation.
A Notice of Contention was filed on behalf of AA seeking a finding that the duty owed by the Diocese was non-delegable and that the lower Court erred in finding it did not have knowledge, or ought to have had knowledge, of the alleged offender representing a risk of harm.
The Court of Appeal comprising Bell CJ, Leeming JA and Ball JA unanimously overturned the lower Court’s Judgment, finding:
- The lower Court erred in assessing the clear inconsistencies in the plaintiff’s evidence (which on some key issues was demonstrably unreliable) of being assaulted, and the strong contradiction of that evidence by the competing witness Alan (by majority);
- The removal of the limitation period for historical child sexual abuse claims does not create a special regime for the evaluation of evidence in those cases (unanimous);
- No duty of care was owed to the plaintiff in 1969. The lower Court’s reliance of evidence of alleged knowledge of the general risk of harm by Bishops and senior members of the Diocese was not supported by the evidence. Alleged knowledge held by any particular Priest (without more) is not taken to be knowledge of the Diocese as a whole. In particular, the alleged recipients of knowledge of the risk of harm, fell well short of establishing knowledge of the Diocese. Further, the statutory imposition of a prospective duty of care in the Civil Liability Act 2002 is a powerful consideration against the retrospective reformulation of a novel duty of care upon the Diocese (unanimous);
- Rejecting the plaintiff’s Notice of Contention, a defendant cannot be liable for breach of a non delegable duty based upon an intentional tort by the delegate. Any such duty would be incoherent with statute and would need High Court determination (unanimous).
Implications
This is an extremely important decision for any institution responding to claims for damages arising out of alleged historical child sexual abuse, and will have far reaching implications.
A strong NSW Court of Appeal bench has confirmed the high Briginshaw standard of proof for such a plaintiff to establish the primary facts. Further, its decision that the evidence did not support the Diocese owing a duty of care in this historical setting, rightly emphasises that alleged knowledge must be held at an appropriate level, and hindsight reasoning and applying modern standards of child protection, have no role to play in consideration of the existence of duty and breach.
Contact the authors directly if you have any questions about the decision: Matthew Gerathy, Partner and Abigail Tisbury, Special Counsel
