The onus in historical abuse claims

The New South Wales Court of Appeal confirms the high evidentiary onus on plaintiffs in historical abuse claims and the dangers in applying generalised knowledge, obtained in hindsight and through modern reasoning, to determine liability of institutions.

In issue

• The NSW Court of Appeal conducted a review of the primary judge’s findings that the plaintiff suffered sexual abuse in the circumstances alleged, and that the Diocese breached any duty of care it owed to him.
• This decision illustrates the high evidentiary onus borne by plaintiffs in historical abuse claims, and the issues in applying generalised knowledge obtained in hindsight and through modern awareness, to determine liability of institutions.

The background

The decision at trial

The facts of this case can be found in our previous case note: Vicarious liability in the absence of employment – shifting standards in historical institutional matters | Barry Nilsson.

In summary, the plaintiff (AA) alleged that, in 1969, whilst he was a student at Wallsend High School, he was physically and sexually abused by a parish priest, Father P. He asserted that the abuse occurred in Fr P’s residence at Wingham Presbytery where he lived alone. He claimed damages from the Diocese for the injuries he sustained as a result of the alleged abuse.

At first instance, the trial judge:

1. acknowledged that while there were inconsistences in the plaintiff’s evidence, those inconsistencies were outweighed by the plaintiff’s vivid recollection of the abuse, and the weight of the evidence. That is, the trial judge accepted that the alleged abuse occurred,
2. determined that the Diocese owed the plaintiff a duty of care as 'the awareness which Bishops and other senior members of the Church then had about the risks which its priest could pose to children' was generalised knowledge and made the risk of harm foreseeable,
3. concluded that the Diocese breached the duty of care it owed to the plaintiff as it took no steps to identify priests who actually posed a risk, or to deal with the risk of priests abusing a child, and concluded that a reasonable person in the Diocese’s position would have taken ‘relatively simple steps’ within its power to reduce those risks,
4. also determined that the Diocese was vicariously liable for Fr P’s actions.

The Court of Appeal’s decision

The Diocese appealed the first instance decision. It challenged the findings of fact, that the abuse occurred as alleged, and the conclusions that Diocese owed the plaintiff a duty of care which it had breached.

By way of notice of contention, the plaintiff conceded that in light of the recent decision of Bird v DP [2024] HCA 41, the vicarious liability finding could not stand. Instead, he sought to uphold the judgment on the basis that the Diocese had breached the non-delegable duty it owed to him.

The Court of Appeal unanimously overturned the decision at first instance. It determined that:

1. The primary judge did not adequately address the clear inconsistencies in the plaintiff’s account. By majority, the Court of Appeal found that the plaintiff’s account was 'demonstrably unreliable' and commented that the trial judge failed to give weight to the inconsistencies in the plaintiff’s account and the contradictory evidence of the competing witness ‘A’ who denied witnessing any abuse and contended he and the plaintiff arrived and left the Presbytery together on each visit.
2. The reasoning behind the primary judge’s conclusion that there was a duty of care, which was breached, was premised, in part, on the factually incorrect finding that Fr P was a parish priest and lived alone in the presbytery and therefore had absolute discretion to control who else entered the presbytery. However, the Court of Appeal, in contrast, accepted that Fr P was an assistant priest, and he therefore would have been supervised by a parish priest and shared accommodation with the parish priest.
3. The Diocese did not owe a duty of care to the plaintiff in 1969. The Court of Appeal commented that the formulation and proof of a duty of care requires, amongst other things, the defendant’s position, powers, control and state of knowledge as at the time of the alleged breach(es) of duty, including the foreseeability of relevant risks. The primary judge’s reliance on generalised knowledge was not supported by evidence. The Court of Appeal commented that 'great care must be taken in individual cases to exclude generalised views which may have been formed outside the evidence in the case about particular institutions and their degree of knowledge of serious misconduct.'
4. On the issue of foreseeability, the Court of Appeal found that the alleged recipients of any knowledge of risk did not extend to establishing knowledge of the Diocese. The Court found that the Diocese did not owe a duty of care to the plaintiff because the Diocese itself did not have knowledge.
5. The plaintiff’s submission that the Diocese owed a non-delegable duty to prevent Fr P’s intentional criminal acts was found to be precluded by authority binding the Court who upheld Gleeson CJ’s reasoning in State of New South Wales v Lepore (2003) 212 CLR 511, that a defendant cannot be liable for breach of a non-delegable duty based on an intentional wrong by a delegate.

Implications for you

This case is an important reminder of the high evidentiary onus on plaintiffs when establishing historical child sexual abuse claims. In particular, this decision gives guidance on the risks of applying generalised knowledge to these claims to determine liability and emphasises that the alleged knowledge must be held at the appropriate level and cannot be applied in hindsight or by modern standards to establish the existence of a duty of care.