Availability of perpetrator held to be symbol of prejudice, rather than cure

A permanent stay of proceedings was granted in a historic sexual abuse claim, where the perpetrator was alive and had pleaded guilty for related offences.

In issue

• The Court was required to consider whether the defendant was prejudiced in its ability to respond to the allegations made in respect of both direct liability and vicarious liability.

The background

The plaintiff was involved in a Scout group as a child, of which the defendant was the incorporated association responsible for its management and operation. Between 1979 and 1982, the plaintiff was sexually abused by a person (the perpetrator), who during that period was an Assistant Scout Leader and then a Scout Leader.

In June 2020, the perpetrator pleaded guilty to the alleged abuse. The plaintiff commenced proceedings against the defendant in August 2020. He alleged the defendant was directly liable for breaching its duty of care owed to him where there was a foreseeable risk of which it knew or ought to have known. He also alleged vicariously liability.

The defendant sought a permanent stay of proceedings.

The decision at trial

The court considered the evidence available to the parties and the defendant’s ability to meet the case against it in direct and vicarious liability in light of that evidence.

The defendant had obtained written statements from potential witnesses involved with the Scout group at the time. The witnesses could give only general evidence regarding its ordinary practice of interviewing and investigating the background of applicants for warrants as part of becoming Scout Leaders at the time. Witness recollection was, however, varied and conflicting, and no witness could give evidence as to the perpetrator personally. Further, a key witness passed away in 1981. The relevance of that key witness was that the perpetrator reported to him at the time, and further that the plaintiff’s liability arguments relied on allegations as to conduct by that witness at that time, so as to demonstrate the defendant’s knowledge of the risk of harm alleged.

The Court ultimately considered the defendant was unable to meet a case against it in direct liability, given that:

1. No reliable evidence was available to determine what system, if any, the defendant had in place to supervise and monitor leaders;
2. No reliable evidence was available to determine what policies and protocols were in place to identify situations and circumstances where unlawful acts could occur and prevent the same;
3. No reliable evidence was available to determine whether and how the defendant interviewed, investigated the background of, supervised and monitored the perpetrator specifically;
4. No reliable evidence was available to determine whether and how the defendant investigated the conduct of the perpetrator before he was appointed a scout leader;
5. Critical witnesses, being the District Commissioners at the time, were unavailable to give evidence;
6. A particularly key witness was deceased;
7. No other witnesses were available to give independent and relevant evidence about the above matters.

As to vicarious liability, the Court held the defendant was similarly unable to meaningfully respond to that claim, as there was nothing known about the particular role of the perpetrator, and the material available did not make mention of the activities he was undertaking when he perpetrated the abuse, including whether they were authorised by the defendant.

The plaintiff also relied on statements from witnesses involved with Scouts, as well as other victims of the perpetrator. The evidence provided by those witnesses did not contain any suggestion of complaints being made to any parent or superior member of the Scouts. To the extent that those statements were relied on as tendency evidence, the Court held that this would only magnify the defendant’s prejudice, as the defendant would then be required to investigate those claims as well, which the court considered to be very difficult, if not impossible.

Noting that the perpetrator was in this case alive, and had pleaded guilty to the abuse, the Court was required to consider whether this remedied any alleged prejudice. The court held that 'the interests of the perpetrator and the defendant are entirely divergent… the perpetrator would benefit, at the very least in a psychological way, from a finding in these proceedings that the defendant breached its duty of care to the plaintiff. That is because... the perpetrator will perceive such a finding as shifting at least in part, his moral blameworthiness.' As such, the court found he was not an independent witness and any evidence he gave which was adverse to the defendant created 'a specific prejudice if there is no ability to contradict him.'

Implications for you

This decision makes clear that the availability of witnesses, including the perpetrator, does not automatically remedy any matters of prejudice. The evidence those witnesses can produce, and the relevance of that evidence to the actual allegations needing to be met by the defendant, will ultimately determine whether a defendant faces prejudice.