Historical institutional abuse cases address issues around expectations of knowledge and behaviour in 1970s

The Victorian and New South Wales superior Courts have both now had an opportunity to decide institutional abuse cases post the High Court's decision in Bird v DP.

This article explores two such cases: one concerns the level of knowledge and the standard of care required of a boarding school in the 1970s, while the central issue in the other was the level of knowledge of the Head Priest in a small parish.

Clifford v Missionaries of the Sacred Heart [2024] VSC 812

Facts

The Plaintiff attended a boarding school, Monivae College, operated by the Defendant (School).  

The Plaintiff alleged three categories of abuse occurred at the School:

• bullying and sexual abuse at the hands of five other students (Student Abuse);
• sexual abuse constituting digital anal penetration by Brother Frith (Frith Abuse); and
• sexual abuse by Brother Mamo (Mamo Abuse).

The Plaintiff sought damages on the basis of negligence and vicarious liability, arguing, among other things, that:

• The School ought to have known the offenders were likely to commit the abuse;
• The School should have provided greater supervision of staff and students to prevent the abuse;
• The School had a non-delegable duty to the Plaintiff and, therefore, could not outsource its obligations to protect the Plaintiff from abuse to teachers or staff;
• The School had a practice of corporal punishment; and
• The threat of physical punishment intimidated students into not reporting abuse.

Findings

Tendency evidence against Br Frith

The Plaintiff's solicitors, Rightside Legal sought to admit tendency evidence to establish the Frith Abuse.  

Br Frith was criminally tried in the County Court over allegations of sexual abuse by other former students.

Ultimately, Br Frith was acquitted of some charges, while others were dismissed or stayed.  

The Plaintiff sought to argue the number of accusers implied abuse occurred as multiple students from different schools would not falsely accuse Br Frith.  

The Court held that inference was quite impermissible.¹  

The Court also noted some witnesses in the criminal trial of Br Frith had colluded with each other, suggesting further dishonesty.

Frith Abuse

The Court found both the Plaintiff and Br Frith gave credible evidence.  Their evidence was irreconcilable and effectively word against word.  

Therefore, it was not possible to make a decision on whether or not the Frith Abuse occurred.  Accordingly, there was no consideration of negligence in relation to the Frith abuse.

The Plaintiff called two other students to give evidence of their interactions with Br Frith.  This evidence was considered but not accepted, as it was not particularly reliable and would still be 'word against word'.  

Student Abuse

The Court held it was likely the Student Abuse occurred, but there was no breach of duty to the Plaintiff because the Defendant provided adequate supervision of students at the School.  

Specifically:  

• The Plaintiff argued the Defendant ought to have expected the five particular students would commit sexual abuse against the Plaintiff or against another student by virtue of their backgrounds.  The Court rejected this argument, noting no specific evidence was led in support of this proposition; a mere difficult background is not sufficient to establish propensity; and the submission seemed to have racial implications (although these were not elaborated upon).²  
• Some degree of abuse, even including sexual abuse, is foreseeable and not insignificant at a boarding school.³  
• Where a risk is foreseeable and not insignificant, an assessment of negligence requires considering how the Defendant might have mitigated the risk.  Such an assessment must be made in the temporal and cultural context of the events and not with the benefit of hindsight.⁴  The Court specifically noted it is not reasonable to expect modern understanding of institutional abuse to inform the conduct of school supervisors in 1975.
• The Court found supervision of students at the School was adequate because students were supervised for most of the day, and it was unreasonable to expect supervision of all students at all times and at all places.  In fact, constant supervision would have eroded trust and would have been otherwise undesirable and impossible.  Staff were nevertheless available to respond to abuse.⁵ The Court specifically highlighted an incident when the Plaintiff was abused by one of the five students at night and a staff member came to help relatively quickly.
• The School was not negligent in not having specific policies to address sexual abuse because there was a general understanding, both among staff and students, about:
  • what sexual abuse was; and
  • that sexual abuse was a possibility; and
  • that sexual abuse was unacceptable.⁶
• Some abuse (in this case, multiple students attempting anal penetration of the Plaintiff) is so egregious it would not be preventable merely by a threat of expulsion or conduct policies.  Effectively, the Court held there was nothing the Defendant could have done to prevent the Student Abuse and, therefore, the Defendant was not negligent in not preventing said abuse.
• The concept of a 'non-delegable duty' only requires the principal to ensure a certain duty is performed by a third party, not that the principal must personally perform that duty.  Therefore, in light of previous findings the Defendant was not negligent towards the Plaintiff, the Court also held the Defendant did not breach the non-delegable duty of care.⁷   In other words, the steps the Defendant took to not be negligent also fulfilled the Defendant's non-delegable duty:  the Defendant ensured appropriate and practical supervision was in place at the School.  
• The Defendant had no actual knowledge about the Student Abuse until after it occurred and was reported.

Mamo Abuse

The Court found:

• It was likely that the Mamo Abuse occurred.
• However, the Defendant was not negligent towards the Plaintiff with respect to the Mamo Abuse because the Defendant had no apprehension of the risk of child sexual abuse at the time and had no actual knowledge of any abuse committed by Mamo prior to the Mamo Abuse.⁸
• "The question of foreseeability must not be assessed prospectively.  What the defendant knew or ought to have known about the risk of sexual abuse in 1976 or 1977 cannot be judged in the context of the awareness which exists now."⁹
• The Court applied Bird v DP to dispense with the vicarious liability argument.
• Liability for a non-delegable duty does not extend to intentional wrongdoing by the delegate and the Mamo Abuse was an intentional wrongdoing.¹⁰ Therefore, there was no breach of the non-delegable duty with regards to the Mamo Abuse.

Postscript: Knowledge of the abuse

On the same day as the Clifford judgement, Justice Weinstein of the New South Wales Supreme Court handed down reasons in MC v Casa Generalizia Della Societa Dei Missionari D’Africa Detti Padri Bianchi (White Fathers) [2024] NSWSC 1658 (MC v WF).

By way of background, MC attended frequent one-on-one Baptism and Confessional classes with Fr Dufort, a member of the Defendant Order, at a small parish¹¹ between 1973 and 1975.  MC would have been 8-10 years old at the time.

MC alleged, during these classes, Fr Dufort first groomed, then fondled, then sexually abused MC.  The abuse occurred inside the church building and in the adjacent presbytery.¹² MC sought damages in negligence and under vicarious liability.¹³

MC argued:

• The Head Priest had direct and immediate supervision of Fr Dufort, knew of the confessional classes and should have been aware of the abuse.
• The Head Priest should have seen something untoward in frequent one-on-one meetings between MC and Fr Dufort, especially when these meetings occurred in private spaces, even in the 1970s.
• Other priests should have remarked on MC's frequent visits to the presbytery, if only for the intrusion on their privacy, and thus drawn attention to the inappropriateness of the interactions between Fr Dufort and MC.¹⁴

The Court found the abuse occurred, the Defendant owed the Plaintiff a duty of care and the Head Priest was in a supervisory position over Fr Dufort.  

However, the Court held the Head Priest (and, by extension, the Defendant) did not breach that duty as:¹⁵

• There were many legitimate reasons for a priest to have contact with a child, including in private.¹⁶
• "[T]he high standing and respect afforded to priests in the community gave them a significant level of authority, control and power over the behaviour of a child parishioner, which would have been endorsed by parents, teachers and other parishioners."¹⁷
• It was reasonable for the Head Priest to trust in the integrity of Fr Dufort, in the absence of any evidence to the contrary, and leave MC and Fr Dufort "to their own devices" given Fr Dufort appeared to be performing his expected duties.
• The Head Priest was "exceptionally busy" with the extensive responsibilities of his role and because he was one of only two "active" priests in the parish.  His responsibilities would have included home visits, counselling, administrative tasks and devotional practices.  Further, his attention would have been spread to all parishioners of all ages and he would not have been specifically looking out for the Plaintiff.
• In other words, the Court found the Head Priest was too busy performing his duties to see Fr Dufort's behaviour in full context enough to become suspicious of it.  There was insufficient evidence to draw an inference to the contrary.
• Fr Dufort misused his position of trust but without making it obvious he was doing so.  Therefore, there was no breach of duty.
• Fr Dufort was laicized¹⁸ in 1987 and the Order was removed from the Parish that same year.  The Defendant conducted an internal investigation and claimed that there was no documentary evidence of the claimed abuse, but did not fully cooperate with a subpoena for documents.  The Court made an inference the documents would not have assisted the Defendant.  However, the Defendant's actions in 1987 with regards to Fr Dufort are not relevant to, and do not affect liability for, the events in 1973-75.¹⁹

Key takeaways

• Regarding tendency evidence: it is impermissible to argue multiple accusers are unlikely to have fabricated false accusations against one person who was acquitted in a separate criminal trial.
• Burden of proof when word against word: a plaintiff may not succeed on the balance of probabilities in a purely word against word scenario where both the accusation and the denial are credible and there is no credible corroborating evidence one way or the other.  
• Harm is not foreseeable merely from an alleged perpetrator's background (in the absence of evidence), or from racial profiling.
• Both foreseeability of harm and the standard of care must be ascertained with reference to the relevant time and the societal context.
• The standard of supervision at a Boarding School and perhaps at other schools does not require students to be supervised at all times and at all places.  Supervision need only be reasonable and practical.
• A general understanding among students and staff (assuming one can lead evidence of it) can overcome an absence of written policies.
• Liability for a non-delegable duty does not extend to the intentional tort of the delegate.

If you would like more information regarding the significance of these decisions, please contact members of our Insurance team who specialise in matters involving institutional liability.

Authors

Cameron Roberts | Partner | +61 3 9641 8696 | croberts@tglaw.com.au

Nikita Sosnik | Law Clerk

Notes

¹ At [169]-[172].

² For more information please see discussion around [247].  The Court is being deliberately vague here, possibly to protect the identities about the five alleged offenders.

³ At [249]-[251].

⁴ At [215], [251]-[253].  The Court mainly relied on Roman Catholic Church v Hadba [2005] HCA 31; 221 CLR 161.

⁵ At [252]-[254].

⁶ At [255]-[256].  This is very similar to the "an honest businessman does not need a definition of 'unconscionable' stance in Equity/ACL jurisprudence.

⁷ At [270]-[276].

⁸ MC v White Fathers [2024] NSWSC 1658 arrived at a similar conclusion, although it did not follow the same chain of reasoning or authority.  Superficially, in the context of the 1970s, there was nothing suspicious about the mere fact of a priest having private interactions with a child.  There were religious grounds for doing so, and priests were held in high regard both by the church hierarchy and by the public.  The offender abused that high degree of trust, but there was nothing overt to suggest the abuse was taking place and there was no contextual reason to inquire further.  The Head Priest of the relevant parish had his own extensive responsibilities and was "extremely busy", so he was not able to observe the interactions between the Plaintiff and the offender in full context.  Without that full context, there was no reason for the Head Priest to suspect anything amiss.

⁹ At [303].

¹⁰ At [317].

¹¹ There were two other priests at the parish: Fr Coolen, the Head Priest, and an unidentified non-verbal priest with dementia.

¹² Priest housing in the context of the Roman Catholic Church.

¹³ The Plaintiff withdrew the vicarious liability argument following the decision in Bird v DP (a pseudonym) [2024] HCA 41.

¹⁴ This line of argument is unclear.  The Court rejected this reasoning as speculative.

¹⁵ See generally MC v WF [95]-[102].

¹⁶ While the Court did not say this directly, it can be noted that Confession is considered a deeply personal and private activity between the Priest and the parishioner.  Therefore, someone attending private 'confession' is not suspicious in and of itself.  

¹⁷ MC v WF at [101].

¹⁸ That is: removed from the Order.

¹⁹ MC v WF at [78]-[80].

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