Warning: This article contains details about sexual assault which may be upsetting for some readers. Reader discretion is advised.
A religious order operating a boarding school in the 1970s avoided liability for historical abuse.
In issue
- Whether vicarious liability applied given the recent High Court decision in Bird v DP
- Whether the defendant had requisite knowledge to establish reasonable foreseeability
- Whether tendency evidence regarding Br Firth should be admitted (separately determined)
The background
Whilst a boarding student at Monivae College (College), operated by the Missionaries of the Sacred Heart (Defendant), C (Plaintiff) was allegedly abused on three instances between 1975 and 1977 (collectively, 'the Alleged Abuse').
The alleged incidents pertained to:
- sexual abuse and bullying by five students over a period of time in 1975,
- sexual abuse by Br Frith in 1975 or 1976,
- sexual abuse by Br Mamo in 1975 or 1976.
As a result of the alleged abuse, the Plaintiff suffered psychological injury. He commenced proceedings in the Supreme Court of Victoria against the Defendant, seeking damages including for pain and suffering, medical expenses and past and future economic loss.
The arguments
The Plaintiff alleged that the Defendant was liable in negligence for the Alleged Abuse. Further, he alleged that the Defendant was vicariously liable for the alleged abuse by Brs Frith and Mamo on the basis that they were employees of the Defendant. The Plaintiff sought to establish that: there was a culture of violence at the College, students at the College were discouraged from reporting abuse, and the Plaintiff was vulnerable to this violence (including sexual violence) at the hands of other students at the College. He also sought to establish Brs Frith and Mamo’s propensity to behave dangerously and inappropriately with minors.
The Defendant did not admit the alleged abuse by Br Mamo and denied the alleged abuse by Br Frith. The Defendant admitted that it owed the Plaintiff a non-delegable duty to take reasonable care to avoid foreseeable risk of injury to his psychological and emotional health. In the event that the court was satisfied that the abuse did occur by Brs Mamo and Frith, the Defendant denied that it breached its duty of care or non-delegable duty of care. As regards vicarious liability, the Defendant denied that both Brs Mamo and Frith were employees, relying upon the recent decision of Bird v DP.
The decision at trial
Her Honour Justice Tsalamandris dismissed the Plaintiff’s claim. Her Honour:
- found that the alleged abuse by the students and Br Mamo occurred, but that the alleged abuse by Br Frith did not (on the balance of probabilities) occur,
- accepted that the Defendant did not have actual knowledge of any sexualised bullying pertaining to the five alleged offending students prior to the incident involving the Plaintiff. However, Her Honour accepted that the Defendant knew that there was a risk of sexual abuse by students at the College in a general sense although it was noted that the ‘probability of it materialising..[was] relatively low’ on the evidence of the Defendant’s witness, Fr Fyfe (the rector of the College),
- held that, in the absence of the Plaintiff tendering any expert evidence as to any policies existing in schools in the 1970s concerning abuse of the kind alleged, the court could not be satisfied that the Defendant had breached its duty by not having policies to prevent or detect bullying or sexual assault between students in 1975. Her Honour noted that she did not accept that ‘any student education or school policies informing students on the impermissibility of such an act (including a consequence of expulsion), would have deterred what was a flagrant wrongdoing by the five students’,
- held that, in relation to the Defendant’s non-delegable duty, Her Honour did not accept that Fr Fyfe failed to take reasonable care to protect the Plaintiff against sexual assault by other students. The evidence also did not support a finding that any act or omission of staff members was a cause of the occurrence of student abuse,
- was satisfied that there was a relevant risk of sexual abuse to the Plaintiff by staff at the College, including Br Mamo. However, the Defendant had no actual knowledge of sexual abuse of students by other brothers prior to the subject Br Mamo abuse,
- (pointedly) observed that the Plaintiff did not adduce any ‘expert or lay evidence as to there being a general awareness in society of the risk of child sexual abuse by educational or religious institutions in 1976 or 1977’. It was again highlighted that knowledge ‘cannot be judged in the context of the awareness which exists now’,
- found that Br Mamo was not an employee of the Defendant. In the absence of any employment contract, Her Honour declined to depart from the reasoning of O’Connor. The judgment of DP v Bird was handed down prior to final oral submissions, and was also examined, and followed, by her Honour, and
- found that since she did not find that the Defendant breached its non-delegable duty, it followed that the presumption of vicarious liability under s61 did not apply. In this regard, Her Honour reasoned, ‘as [Br] Mamo[‘s] abuse was an intentional tort committed against the [Plaintiff], his conduct as a delegate of the [Defendant] does not give rise to a finding that the [Defendant] breached its non-delegable duty to the [Plaintiff].’
In a separate ruling, Her Honour did not allow tendency evidence pertaining to Br Frith which occurred at a different college in NSW. Tendency evidence that was admitted into evidence, was limited to:
- sentencing remarks from county court judges following guilty pleas for numerous charges that Br Mamo strapped students on the bare buttocks, and on occasion, fondled some of the students' genitals,
- a partially redacted document which recorded representations made by Mr Mamo following an interview on 14 January 2004, and
- oral evidence from two witnesses, both of whom alleged they had been abused by both Br Frith and Br Mamo whilst they were students at the College.
Implications for you
The decision of Justice Tsalamandris emphasises the importance of viewing foreseeability and acts or omissions against risk, not through a ‘prism of hindsight’ with the benefit of a 21st century lens and our ‘contemporary legal regulatory framework for preventing, detecting and responding to instances of child sexual abuse’, but rather in view of what would be reasonable and practical at the time and in the setting of the alleged abuse. For example, constant supervision of students at every corner of the boarding school at all times would not have been tenable, as ‘a standard of reasonable care is required, not perfection’.
This case also reinforces the decision of DP v Bird in that vicarious liability does not extend to non-employment relationships.