Warning: This article contains details about abuse which may be upsetting for some readers. Reader discretion is advised.
The plaintiff brought a claim against three defendants in respect of alleged physical abuse suffered whilst he was a student at a New South Wales school between 1992 and 1994. A critical issue addressed by the court was whether the alleged physical abuse constituted 'serious physical abuse' for the purposes of the Limitation Act 1969 (NSW).
The background
The plaintiff brought a claim in the New South Wales Supreme Court alleging that, between 1992 and 1994, he was subjected to 'serious physical abuse' by two staff members of a school (being a nun and teacher’s aide). The plaintiff specifically alleged that he was physically punished by the two staff members under the guise of discipline.
The Trustees of the Roman Catholic Church for the Diocese of Wilcannia-Forbes (the Trustees) was the school authority for the subject school at the relevant time. The Trustees of the Marist Brothers (Marist Brothers) appointed certain members to work at the school, including the school principal, under a management agreement with the Trustees. Mercy Support Limited (Mercy Support) is the successor organisation to a former unincorporated association for an order of nuns which also provided members, including the alleged nun offender, to teach at the school.
The claim advanced by the plaintiff against the three defendants was based on negligence, breach of non-delegable duty of care and vicarious liability.
In issue
The case involved consideration of the following issues:
- whether the plaintiff discharged his burden of proof in establishing the occurrence of his alleged abuse,
- whether the alleged physical punishment constituted 'serious physical abuse' pursuant to section 6A of the Limitation Act 1969 (NSW), thereby allowing the plaintiff to overcome the general limitation period for personal injury actions,
- whether the school authority’s non-delegable duty of care extended to the criminal acts of their employees, making them vicariously liable for the alleged abuse, and
- whether the school authority breached its non-delegable duty of care.
The decision at trial
The court ultimately dismissed the plaintiff’s claim for two main reasons:
- failure by the plaintiff to establish 'serious physical abuse', and
- lack of vicarious liability.
'Serious physical abuse'
The court accepted that the plaintiff was subjected to certain physical discipline. The court was not however satisfied, on the balance of probabilities, that this discipline amounted to 'serious physical abuse' as required under section 6A(2) of the Limitation Act 1969 to override the statutory limitation period.
In that context, and in evaluating the plaintiff’s credibility, the court noted several concerns about his evidence including that:
- firstly, there was conflicting evidence as to whether the plaintiff had read and/or understood the scope of his written statement which was tendered to the court. His responses in cross-examination in particular caused the court to have doubt about the comprehension of its contents,
- secondly, the plaintiff withdrew his allegations of sexual abuse on the first day of the hearing, which further undermined the consistency and reliability of his testimony,
- thirdly, the plaintiff’s explanation for initiating his proceeding was implausible. For instance in cross-examination the plaintiff denied knowing that he would be entitled to compensation should his claim succeed at trial, despite the litigation having been on foot for more than two years,
- fourthly, there was no record of any contemporaneous disclosure of abuse despite well documented accounts of other unrelated traumatic events in the plaintiff’s life. This absence of disclosure, particularly in psychological and custodial records, also cast doubt on the veracity of the plaintiff’s allegations,
- fifthly, the plaintiff’s case was undermined by inconsistencies between his claims and the available evidence, including contradictions in his school attendance, living arrangements and the teaching structure at the school, and
- sixthly, the defendants relied upon the lay witness evidence of numerous witnesses, including from both alleged offenders and former staff, which contradicted the plaintiff’s allegations. This evidence was sufficient to prevent the plaintiff from establishing, on the balance of probabilities, that he was subjected to serious physical abuse.
In determining whether the alleged conduct met the statutory definition of 'serious physical abuse' the court also considered the evidence of several lay witnesses, who provided accounts of the general disciplinary environment at the school. While these witnesses, including former students and staff, confirmed that physical punishment was used as a disciplinary method, they did not establish that the plaintiff was subjected to excessive or unlawful punishment. Their testimony contextualised the school’s environment, but did not support a finding that the plaintiff suffered harm beyond what could be considered minor or trivial.
It was in that context that the court observed that the term 'serious physical abuse' was not statutorily defined, but should be understood in its ordinary meaning, and went on to state that:
The court further recognised that at common law the defence of 'lawful correction' applied to parents and those in loco parentis (such as teachers), provided that physical discipline was reasonable, moderate, and proportionate to the child’s age and behaviour. Given the lack of evidence proving that the physical discipline on the plaintiff exceeded this standard, the court ruled that the plaintiff failed to establish criminal misconduct. In the absence of such proof, the court held that the discipline administered did not meet the threshold of 'serious physical abuse' under section 6A of the Limitation Act.
Vicarious liability
On the issue of vicarious liability, the court considered when an institution can be held vicariously liable for the actions of its employees, particularly following the decision in Bird v DP (a pseudonym) 98 ALJR 1349.
It was in with that in mind that the court ultimately ruled that:
- the alleged nun offender was not an employee of any of the defendants. Whilst her relationship with the Trustees was 'akin to employment', this was not sufficient to give rise to vicarious liability. Accordingly, the plaintiff’s claims for vicarious liability in this regard failed, and
- whilst the alleged teacher’s aide offender was an employee of the Trustees, the nature of the physical discipline he administered did not amount to 'serious physical abuse' for the purposes of the Limitation Act. Accordingly, the plaintiff’s claims for vicarious liability in this regard also failed. The court noted however that had the teacher aide’s alleged conduct amounted to 'serious physical abuse', then the Trustees would have been liable for the consequences as the abuse occurred within the scope of the teacher aide’s employment.
Non-delegable duty of care
The court also discussed the non-delegable duty of care owed by educational institutions, recognising that:
- schools have a responsibility to take reasonable steps to protect students from harm, which cannot be avoided by delegating responsibilities to individual teachers or staff, however
- this duty does not automatically extend to protecting students from criminal acts of teachers or staff unless the institution was aware, or ought to have been aware, of a foreseeable risk of harm.
In this instance the court ruled that only the Trustees, as the school authority, owed a non-delegable duty of care to the plaintiff.
The court however found no evidence that the school had knowledge of the alleged abuse and considered instead that the actions of each of the alleged offenders were within the normal bounds of their respective roles. It therefore followed that the plaintiff’s claim in negligence also failed.
Implications for you
This decision highlights the need for plaintiffs to adduce clear and convincing evidence to establish that the alleged physical conduct constitutes 'serious physical abuse' for the purposes of the Limitations Act. In institutional matters, particularly when the alleged events occurred decades earlier, challenges in establishing witness credibility and reliable evidence are significant.
The decision also underscores that limitation periods remain a potentially significant barrier for plaintiffs in institutional abuse claims. In turn, defendants of institutional abuse claims should properly consider – and plead if appropriate – a statutory limitation defence for claims brought by plaintiffs which include allegations of physical abuse.
