BTM1 v Scout Association of Australia New South Wales Branch

The plaintiff, BTM1, sought damages for sexual abuse that occurred between 1979 and 1982, when he was a minor, at the hands of the defendant, Scout Association of Australia New South Wales Branch. The abuse was admitted by the defendant, but the proceedings were stayed by the court. BTM1 claimed direct liability against the institution as well as vicarious liability. The court was required to decide whether the defendant could be held directly liable for the abuse and whether the institution could be held vicariously liable for the actions of its employee.

The court found that there was no available evidence regarding the defendant’s knowledge of any particular risk posed by the perpetrator, and there was no available evidence which would enable a response to allegations of breach of duty. The court also found that there was no evidence of the particular role assigned to the perpetrator, which would be necessary to hold the institution vicariously liable. The court held that the absence of such evidence meant that it would not be possible to hold a fair trial, and therefore ordered a permanent stay of the proceedings.

The court found that the availability of the perpetrator, who had pleaded guilty and been sentenced for related offences, did not enable a fair trial. The court noted that the perpetrator had an interest in shifting moral blame for his conduct, and therefore could not be considered an independent witness. The court held that it would not be possible to hold a fair trial in the absence of an independent witness.

The court ordered a permanent stay of the proceedings, and made no order as to costs.