Warning: This article contains details about sexual assault and abuse which may be upsetting for some readers. Reader discretion is advised.
The NSW Supreme Court found there was no breach of duty by the defendant in the absence of sufficient evidence to establish prior knowledge of a risk of abuse of the plaintiff.
In issue
- The NSW Supreme Court determined the plaintiff’s claim in negligence against the defendant, by dismissing it, after the plaintiff abandoned his claim in vicarious liability following the High Court’s decision in Bird v DP (a pseudonym) [2024] HCA 41, where the court held that a ‘relationship of employment is a necessary precursor to a finding of vicarious liability’.
The background
The plaintiff alleged that between 1973 and 1975 he frequently attended the defendant’s church and the presbytery, initially for baptisms and later for confessional classes. These classes occurred in the priests’ private living quarters at the presbytery, typically after school hours when the church was closed. During this time, the plaintiff suffered significant sexual abuse at the hands of Father Dufort.
The decision at trial
The court accepted that the abuse by Father Dufort perpetrated on the plaintiff occurred. The court also accepted that the defendant had a duty to exercise reasonable care for the plaintiff, who was a vulnerable child, whenever he was present at the church for religious instruction.
The plaintiff submitted that Father Coolen, who had responsibility for supervising Father Dufort, should have been aware of the plaintiff’s presence in the priests’ private quarters. The plaintiff's counsel argued that the frequent visits ranging from 20 to 40 times per year could have raised suspicions regarding the appropriateness of the situation.
The court rejected the plaintiff’s submission that on the balance of probabilities Father Coolen knew or ought to have known about the improper relationship between Father Dufort and the plaintiff. It accepted it was entirely possible that Father Coolen left Father Dufort and the plaintiff to their own devices and that he saw nothing unusual or untoward in their interaction. Despite the plaintiff's arguments regarding the unsupervised nature of his visits, and the frequent timing of the abuse (after school hours), the court found no concrete evidence that Father Coolen was aware of the inappropriate conduct.
In those circumstances the court ultimately ruled that the plaintiff failed to establish breach of duty of care or that the risk of harm to him was reasonably foreseeable. The court also considered in this regard that had Father Coolen been aware of any inappropriate behavior, he would have taken action.
Implications for you
This decision underscores the significant challenges that survivors of historical abuse face in overcoming the evidentiary burden in establishing imputed knowledge by a defendant.
