Secondary victims - historical abuse claims

14 September 2022
Warning: This article contains details about sexual abuse which may be upsetting for some readers. Reader discretion is advised.

The Victorian Supreme Court has allowed a secondary victim of historical abuse to bring proceedings for damages.

In Issue

  • The primary issue for the Court was whether the Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (Act) has operative effect to the plaintiff’s claim against the Catholic Archdiocese of Melbourne for nervous shock (as a secondary victim) arising from the alleged sexual abuse of his son by George Pell.
  • If the Act has operative effect, then the Catholic Archdiocese of Melbourne would incur any legal liability from the plaintiff’s claim on behalf of the unincorporated, non-government organisation.
  • The Catholic Archdiocese of Melbourne argued that the application of the Act is confined to claims by plaintiffs who have been subjected to child abuse, as primary victims. That is, as the plaintiff’s claim is founded on or arises from the alleged child abuse of his son, the Act has no application in respect of the plaintiff’s secondary claim.

The background

The plaintiff’s son was allegedly abused by George Pell, the second defendant, in 1996. As a result, the plaintiff’s son commenced using illicit drugs at the age of 14 and used drugs until his death from a heroin overdose in 2014, caused by the psychological impact of the alleged abuse. The plaintiff was informed his son had allegedly been abused by a member of the SANO Task Force in July 2015. After learning about the alleged abuse of his son, the plaintiff suffered nervous shock for which he made a claim at common law pursuant to Part IX of the Wrongs Act 1958 (VIC).

In applying a proper construction and analysis of section 4(2) of the Act, His Honour found that a claim by the plaintiff for damages for nervous shock consequent upon being told that his son had been sexually abused is plainly a claim arising from child abuse. The second reading speech was considered, and it was found that the reference to ‘survivors’ suggests there is no confinement to primary victims of institutional child abuse.

In terms of section 7 of the Act, His Honour commented that the words ‘founded on or arising from child abuse’ are used repeatedly throughout the Act. His Honour found that the repeated use of these words pointed strongly to the conclusion that the application of the Act to non-government organisations is not confined to claims by primary victims of child abuse. His Honour found that to conclude otherwise renders the words ‘arising from child abuse’ otiose.

The decision at trial

His Honour found as follows:

  1. On a proper construction, section 4(2) of the Act applies to the plaintiff’s claim made against the Catholic Archdiocese of Melbourne.
  2. On a proper construction of section 7 of the Act, the Catholic Archdiocese of Melbourne incurs any legal liability arising from the plaintiff’s claim made against it.

Implications for you

The decision provides judicial interpretation that the Act may apply to secondary victims of abuse in certain claims made against non-government organisations.

Updated 4 September 2023: On 25 August 2023, the Victorian Supreme Court of Appeal refused leave to appeal this decision.

Updated 16 February 2024: On 8 February 2024, the High Court of Australia refused an application for special leave to appeal.

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