NSW Supreme Court awards $1.3million to survivor of institutional sexual abuse

The NSW Supreme Court finds the Trustees of the De La Salle Brothers directly and vicariously liable in respect to sexual abuse committed by a teacher against a Year 6 student in 1983.

In issue

• Whether the plaintiff had proved the alleged abuse.
• Whether the Trustees of the De La Salle Brothers (defendant) were liable to the plaintiff in negligence and/or vicariously for the perpetrator’s abuse.
• The extent to which the plaintiff’s disabilities were caused by factors other than the alleged abuse.
• The measure of damages payable to the plaintiff.

The background

In 1983, the plaintiff was a Year 6 student at De La Salle College, Revesby Heights (School). His classroom teacher during this period was ES (perpetrator). The plaintiff alleged that he was frequently sexually abused by the perpetrator, beginning in the classroom, and then in the perpetrator’s caravan, the playground, on a weekend, and during school holidays. The plaintiff alleged that the abuse continued into 1984 (Year 7). The perpetrator died in 1985.

While the defendant originally denied the alleged abuse, it resiled from this position at trial, accepting that the plaintiff suffered 'some abuse' by the perpetrator, but disputing the accuracy and reliability of the plaintiff’s narrative. The defendant also denied liability for the alleged abuse. However, it accepted that it owed the plaintiff a duty of care and that it breached that duty by failing to act on prior complaints of child sexual abuse against the perpetrator at the School.

The decision at trial

Alleged abuse

The court accepted that the alleged abuse occurred. While acknowledging the absence of any contemporaneous school or medical records corroborating the allegations, it was guided by the similarities between the plaintiff’s experience and other complainants, including the evidence of 22 persons admitted without objection as tendency evidence.

The court also placed little weight on the absence of any contemporaneous disclosure (being a common experience of child survivors of abuse) and found the psychiatric experts’ acceptance of the plaintiff’s allegations to be a relevant factor.

Finally, while accepting that the plaintiff’s tendency to blame the entirety of his psychological issues on the perpetrator was not consistent with the multi-factorial nature of his issues, it accepted that survivors of abuse may not have the capacity to form objective and dispassionate assessments of their psychological issues.

Liability

Negligence and Vicarious Liability

Having regard to the defendant’s concessions on duty of care and breach, the court found the defendant liable in negligence to the plaintiff.

As to vicarious liability, the defendant conceded that it employed the perpetrator. After considering the salient authorities, including Prince Alfred College Inc v ADC (2016) 258 CLR 134, the court found the defendant to be vicariously liable for the abuse on the basis that:

• The defendant placed the perpetrator in a position of power, trust, authority and control over the plaintiff; and the perpetrator used his position as a school teacher to molest and abuse the plaintiff.
• The defendant’s prior knowledge of the perpetrator’s propensity to engage in such conduct was a 'powerful factor' in determining vicarious liability, because the defendant placed the perpetrator in a position of trust, authority, and control over the plaintiff despite this knowledge.

Causation

The court accepted that the plaintiff’s life trajectory and psychological issues were multi-factorial. While acknowledging that the plaintiff undoubtedly suffered at the hands of the perpetrator, it found that:

• Despite the horrendous abuse, the plaintiff achieved reasonable results in Years 10 and 11 and his premature departure from the School was not caused by the abuse. Rather, it was motivated by his intention to join the Airforce (a goal which became impossible after a subsequent bike accident).
• The plaintiff’s drug-taking was not principally caused by the abuse, although it may have been a contributing factor.
• Despite the abuse, the plaintiff was able to start a family and care for his children. Further, his subsequent marital breakdown significantly affected his psychological state and was not related to the abuse.

Quantum

As the defendant was found vicariously liable for the abuse, damages were assessed at common law rather than under the Civil Liability Act 2002 (NSW). The plaintiff made a claim for around $6million whereas the defendant assessed damages at $150,000. The court ultimately awarded ~$1.330million made up of the following:

• General damages (including interest): $414,000. In assessing this figure, the court took into account the defendant’s original denial of the alleged abuse (which it later withdrew) and the effect this denial had on the plaintiff.
• Past loss of income (including interest): $369,550.70. This figure included a buffer of $150,000 up to 2016 (discounted to reflect the plaintiff’s criminal activities and his decision to raise his children), together with 50% of average weekly earnings between 2017 and 2022 (discounted to reflect his marital breakup and other factors).
• Future loss of earning capacity: $456,243.40. This amount reflected average weekly earnings until the plaintiff’s retirement, minus a 40% discount to account for other factors unrelated to the abuse.
• Loss of superannuation: $70,510.50. Calculated at a fixed rate of 11%.
• Medical expenses: $20,000.

The court also rejected the plaintiff’s claim for exemplary damages (which were only available on the vicarious liability claim) on the basis that such damages could (self-evidently) not achieve their intended purpose of deterring or punishing the perpetrator who was deceased.

Implications for you

The decision highlights the difficulties in defending claims for historical sexual abuse, particularly where the alleged perpetrator is dead. While factual inconsistencies may be useful in discrediting a plaintiff, such inconsistencies may not be fatal if they can be explained by the effluxion of time (as is often the case in institutional abuse cases), and the reality that a survivor’s memory of abuse is unlikely to be perfectly accurate or consistent.

Interestingly, the decision also suggests that an institution’s knowledge of a perpetrator’s propensity to offend may be relevant to vicarious liability if such institution subsequently allows the perpetrator to have contact with a plaintiff. In our view, this seems to be a logical step in the development of the common law.