Clifford v Missionaries of the Sacred Heart

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

INSTITUTIONAL LIABILITY LIST

S ECI 2022 03995

ELLIOT CLIFFORD (a pseudonym)	Plaintiff
v
THE CORPORATION OF THE SOCIETY OF THE MISSIONARIES OF THE SACRED HEART	Defendant

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JUDGE:	Tsalamandris J
WHERE HELD:	Melbourne
DATE OF HEARING:	27-30 August, 2-6, 9-12 September, 15 November 2024 (written submissions filed on 6 and 21 November 2024 by the plaintiff and 30 October 2024, 11 and 26 November 2024 by the defendant)
DATE OF JUDGMENT:	20 December 2024
CASE MAY BE CITED AS:	Clifford v Missionaries of the Sacred Heart
MEDIUM NEUTRAL CITATION:	[2024] VSC 812

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INSTITUTIONAL LIABILITY – Personal injury – Abuse of student at boarding school in mid-1970s – Allegations of physical and sexual abuse by other students – Student abuse established – No negligence and no breach of non-delegable duty in respect of student abuse – Allegations of abuse by two brothers of the Catholic order at the school – One brother gave evidence and denied the abuse – Tendency evidence – Gravity of allegation – No actual persuasion that abuse occurred – Other brother was unavailable to give evidence and had been previously convicted of offences admitted as tendency evidence – Alleged abuse established – Identification of the risk of harm – No prior knowledge of abuse established – No evidence as to general awareness of risk of sexual abuse at relevant time – No vicarious liability as brother was not employee of defendant – No breach of non-delegable duty in respect of brother abuse – Section 61 Wrongs Act did not apply – Proceeding dismissed.

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APPEARANCES:

Counsel

Solicitors

For the Plaintiff

Ms F McLeod SC and

Ms N Crowe

Rightside Legal

For the Defendant

Ms R Annesley KC,

Mr J Plunkett and
Ms A Beech

Colin Biggers & Paisley

TABLE OF CONTENTS

1... Introduction.................................................................................................................................. 1

Preliminary..................................................................................................................................... 1
Issues to be determined................................................................................................................ 4
Trial of the proceeding................................................................................................................. 4
Burden and standard of proof..................................................................................................... 5

2... Relevant background.................................................................................................................. 6

The plaintiff’s life before the abuse............................................................................................ 6
The College..................................................................................................................................... 7
The plaintiff’s injury and its effects.......................................................................................... 17

3... Factual determinations.............................................................................................................. 21

The student abuse....................................................................................................................... 21
The plaintiff’s evidence..................................................................................................... 22
Other oral evidence........................................................................................................... 25
Contemporaneous documentary evidence.................................................................... 26
Findings and conclusion................................................................................................... 27

The Frith abuse............................................................................................................................ 28
The plaintiff’s evidence..................................................................................................... 28
Tendency evidence............................................................................................................ 29
Br Frith’s evidence............................................................................................................. 32
Findings and conclusion................................................................................................... 33

The Mamo abuse......................................................................................................................... 37
The plaintiff’s evidence..................................................................................................... 37
Tendency evidence............................................................................................................ 39
Defendant’s evidence........................................................................................................ 43
Interview with Mr Mamo................................................................................................. 44
Findings and conclusion................................................................................................... 45

4... Liability determinations........................................................................................................... 46

Negligence - relevant principles............................................................................................... 46
Whether the defendant is liable for the student abuse?........................................................ 49
Negligence.......................................................................................................................... 49
Parties’ submissions............................................................................................. 49
Analysis................................................................................................................. 53

Non-delegable duty........................................................................................................... 61
Plaintiff’s submissions......................................................................................... 61
Analysis................................................................................................................. 62

Whether the College is liable for the Mamo abuse................................................................ 65
Negligence.......................................................................................................................... 65
Parties’ submissions............................................................................................. 65
Analysis................................................................................................................. 67

Vicarious liability............................................................................................................... 71
Non-delegable duty........................................................................................................... 73

5... Conclusion................................................................................................................................... 75

HER HONOUR:

1. Introduction
Preliminary

Mr Elliot Clifford,[1] the plaintiff, aged 61 years, claims damages against the Corporation of the Society of the Missionaries of the Sacred Heart, the defendant,[2] for injuries he alleges he suffered whilst a boarding student at Monivae College in Hamilton, between 1975 and 1977. The defendant was the Catholic order which operated the College, which comprised a school and boarding house.
[1]A pseudonym.
[2]The defendant is a non-government organisation as defined by the Legal Identity of Defendants (Organisational Child Abuse) Act 2018.

The plaintiff alleges three instances of abuse:

(i) Bullying and sexual abuse committed against him by five students, over a period of time in 1975 (the student abuse). This initially involved sexualised bullying, which the plaintiff said commenced within 2-3 weeks of him starting Form 1 at the College. The plaintiff alleges that one evening in the gymnasium, these five students forced him to the ground and took turns to ‘dry hump’ him (the gym incident). The plaintiff alleges that the erect penis of at least one of the five students partially penetrated his anus. The plaintiff also alleges that soon after the gym incident, he was assaulted by one of the five students when he was sleeping in his bed in the boarding house.

(ii) Abuse committed against him by Br John Frith (Br Frith), a brother of the defendant’s order, in 1975 or 1976. The plaintiff said that he had attended upon Br Frith in the College infirmary and complained of a sore throat. The plaintiff alleges that in the process of Br Frith examining him, Br Frith placed one of his hands down the back of the plaintiff’s pants and, without warning, pushed his finger into the plaintiff’s anus (the Frith abuse).

(iii) Abuse committed against him by Mr Edward Mamo (Mr Mamo), in the College laundry in 1976 or 1977. At the time, Mr Mamo was a brother of the defendant’s order.[3] The plaintiff alleges that as a punishment for having been caught smoking cigarettes, Mr Mamo instructed him to drop his pants and underpants, and bend over a chest, following which Mr Mamo proceeded to strap the plaintiff’s bare buttocks twice, using hard strokes with a pause of 3 to 5 seconds between each (the Mamo abuse).

[3]Mr Mamo has subsequently been dismissed from the order and I therefore refer to him as Mr Mamo in this judgment.

The plaintiff claims he has endured a lifetime of psychiatric harm as a consequence of the abuse. He seeks damages from the defendant for his pain and suffering, medical expenses, and past and future economic loss.

The plaintiff alleges that the defendant is directly liable in negligence for the student abuse. The plaintiff alleges that the defendant knew or ought to have known of sexualised bullying behaviour by the five students, and the risk of those students committing acts of violence, including sexual violence against other students, including the plaintiff. The plaintiff alleges that the defendant failed to take appropriate action to protect him from the student abuse. In addition, the plaintiff alleges that the defendant breached its non-delegable duty to him in respect of the student abuse.

The plaintiff alleges that the defendant is directly liable in negligence for the Frith abuse and the Mamo abuse. The plaintiff alleges that the defendant knew or ought to have known that Br Frith and Mr Mamo each had a propensity to behave dangerously and inappropriately, as both had abused other minors at the College, prior to and during the period when he was a student there. The plaintiff alleges the defendant breached its duty by not guarding against such abuse, and for allowing a culture of violence in the College which discouraged students from reporting abuse through fear of physical punishment.

The plaintiff also alleges that the defendant is vicariously liable for the Frith abuse and the Mamo abuse, on the basis that Br Frith and Mr Mamo were employees of the defendant, and their employment provided the occasion and opportunity for the alleged wrongful acts to be committed.[4]
[4]Subsequent to my hearing of the parties’ oral closing submissions on 15 November 2024, the plaintiff made additional written submissions as to why the defendant was liable for the Frith abuse and the Mamo abuse pursuant to section 61 of the Wrongs Act 1958. I deal with such submissions at paragraphs [312]-[320] below.

The defendant admits 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.

The defendant does not admit the Mamo abuse or the student abuse, and denies the Frith abuse.

If the Court is satisfied to the requisite standard that the alleged abuse occurred, the defendant denies that it breached its duty of care, or its non-delegable duty. The defendant denies that there was a culture of violence at the College, and that students were discouraged from reporting abuse. The defendant also denies that it knew or ought to have known:

(a) that the plaintiff was vulnerable to violence, including sexual violence, at the hands of other students, including the five students;

(b) of Br Frith’s alleged propensity to behave dangerously and inappropriately with minors; and

(c) of Mr Mamo’s alleged propensity to behave dangerously and inappropriately with minors, including assaulting students by strapping them on their bare buttocks as a form of punishment.

In respect of the plaintiff’s vicarious liability claim, the defendant denies that Br Frith and Mr Mamo were employees, and relied upon the recent High Court decision in Bird v DP (a pseudonym),[5] which held that under the common law, vicarious liability did not extend to the conduct of a person who is not an employee.
[5][2024] HCA 41 (‘DP’).

This judgment is divided into five parts: introduction; relevant background; factual determinations in respect of the three incidents of alleged abuse; liability determinations; and conclusion.

Issues to be determined

I am required to determine the following issues which are in dispute between the parties:

(a) Whether the student abuse occurred, and if so, whether the College is liable for the student abuse;

(b) Whether the Frith abuse occurred, and if so, whether the College is liable for the Frith abuse;

(c) Whether the Mamo abuse occurred, and if so, whether the College is liable for the Mamo abuse;

(d) If applicable, what damages the plaintiff should be awarded for his:

(i) pain and suffering;

(ii) past and future medical expenses; and

(iii) past and future economic loss.

Trial of the proceeding

The trial proceeded over 14 days, with 15 witnesses called to give oral evidence. This included the plaintiff and Br Frith. Mr Mamo and the five students did not give evidence. Numerous documents were also tendered.

During the trial, I made numerous rulings on the admissibility of evidence. This included a ruling that the plaintiff be permitted to adduce tendency evidence in respect of Br Frith and Mr Mamo.[6] I limited this evidence to:
[6]Oral reasons given in the course of the trial.

(a) sentencing remarks from County Court judges following guilty pleas for numerous charges that Mr Mamo strapped students on the bare buttocks, and on occasion, fondled some of the students genitals;

(b) a partially redacted document which recorded representations made by Mr Mamo following an interview on 14 January 2004; and

(c) oral evidence from Mr Gary Pearce and Mr Shane Ross, both of whom alleged they had been abused by both Br Frith and Mr Mamo whilst they were students at the College.

In a separate ruling, I did not allow the defendant to adduce tendency evidence from six former students who had been under the care of Br Frith, at the College and another school in New South Wales.[7]
[7]Clifford v Missionaries of the Sacred Heart (Ruling) [2024] VSC 701.

Burden and standard of proof

The burden of proof rests with the plaintiff in respect of the alleged instances of abuse, whether the defendant is liable for any of those instances, and if so, what damages arise from any such liability.

The standard of proof is in accordance with s 140 of the Evidence Act 2008 (Vic) which provides:

140     Civil Proceedings – standard of proof
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account—
(a)       the nature of the cause of action or defence; and
(b)       the nature of the subject-matter of the proceeding; and
(c)       the gravity of the matters alleged.

These are mandatory considerations. In addition, other considerations may be relevant to the Court’s determination as to whether it is satisfied to the requisite standard. These include the legal maxim that all evidence is to be weighed according to the proof that it was in the power of one side to have produced, and the other to have contradicted.[8]
[8]Blatch v Archer (1774) 1 Cowp 63, 65; 98 ER 969, 970.

Of particular relevance to my determination of the abuse allegations in this proceeding, I note the following observations of the majority of the High Court in GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore:[9]

Section 140(2)(c) of the Evidence Act reflects the position of the common law that the gravity of the fact sought to be proved is relevant to “the degree of persuasion of the mind according to the balance of probabilities”. By this approach, the common law, in accepting but one standard of proof in civil cases (the balance of probabilities), ensures that “the degree of satisfaction for which the civil standard of proof calls may vary according to the gravity of the fact to be proved”.[10]

[9](2023) 97 ALJR 857.

[10]Ibid 874-5 [57] (citations omitted), with reference to Rejfek v McElroy (1965) 112 CLR 517, 521, itself citing Briginshaw v Briginshaw (1938) 60 CLR 336 (‘Briginshaw’).

Where, in a civil proceeding, a question arises as to whether a crime has been committed, consideration of the allegation needs to be approached with ‘much care and caution’.[11] Whilst the standard of proof is the same as upon other civil issues, ‘weight is given to the presumption of innocence and exactness of proof is expected’.[12]
[11]Briginshaw (n 10) 347 (Latham CJ).
[12]Ibid 363 (Dixon J).

Given the gravity of the conduct in the three alleged incidents of abuse, I am satisfied that my determination of the those allegations attracts the principles outlined above, and is to be in accordance with s 140 of the Evidence Act.

2. Relevant background
The plaintiff’s life before the abuse

The plaintiff was born and raised in north western Victoria. He is the youngest of four children. The plaintiff has two brothers, Peter and Paul, and a sister, Leann.

The plaintiff’s father was an accountant in Hamilton. During his early years, the plaintiff’s mother stayed home to care for the children, although she later went on to obtain her Bachelor of Arts.

The plaintiff’s parents were Catholic, and all four of their children attended the local parish primary school, and then Catholic boarding schools for secondary education. The plaintiff’s brother, Paul, was two years ahead of him at the College.

The plaintiff said he had been an excellent student and at one point was top of his class in primary school. The plaintiff said that in either Form 1 or Form 2, he was granted a scholarship to the College, which meant that his tuition was free for the remainder of his time there.

The plaintiff described a very happy childhood, with no traumatic events. His sister Leann, gave oral evidence confirming the above.

The plaintiff said that when he first started at the College he was happy and excited, but that within a few weeks things changed for him.

The College

The College began as a secondary boys Catholic school, with a boarding house attached. By the time the plaintiff commenced in 1975, students from a local secondary girls Catholic school began to attend classes at the College. By 1977, the College was co-educational at all year levels, and there were also female boarders.

In 1975, the College had approximately 270 boarders.

In the boarding house, the students slept in dormitories, based upon year levels – the junior years (being Forms 1 and 2), and then middle and senior years. In 1975 there were approximately 50 students in the junior dormitory, which was one single room. This included the plaintiff and the five students.

The students ate three meals a day at the boarding house. Before school, the students would dress in the locker rooms. After school there was an extra-curriculum program, including sports and cadets. After sports, the students would shower. There was then a designated period for study time, and the students would thereafter attend the chapel, generally before dinner. Then, after dinner, if not studying, the students had recreation time in their common room, before ‘lights out’.

From 1969 until 1977 (save for a six month period from May to October 1975 when he was on sabbatical), Fr Malcolm Fyfe was the rector and head of the College.

Fr Fyfe, aged 89 years, gave evidence at the trial, over the course of one day. Given his age and the years that had passed since his time at the College, Fr Fyfe had a very good memory and I considered him to be an impressive witness. Fr Fyfe said that as rector, his aim was to have a pleasant environment for students at the College, and to provide them with ‘a home away from home.’

In 1975 there were both religious and lay staff at the College.[13] The lay staff included females. Some of the religious and lay staff resided at the boarding house.
[13]I use the term staff member, whilst noting the defendant denied that it employed the religious staff, including the brothers of the defendant’s order.

The College had a program which involved indigenous students from missions operated by the defendant in the Northern Territory attending the College on Commonwealth scholarships. There were 6-8 such students at the College at any given time. This program included the five students who the plaintiff alleges abused him.

Fr Fyfe said that the students from these missions sometimes faced challenges settling into College life, which was in part due to cultural and linguistic difficulties. Fr Fyfe said that staff at the College were aware of the backgrounds of these students, and did what they could to help them settle in. Fr Fyfe also said that for this reason, the College staff may have excused minor misdemeanours by these students.

The College had discipline masters for the different year levels, as well as an overall senior discipline master. Fr Fyfe said that the role of the discipline master was to replace the role of a parent. The discipline master was responsible for the students when they were not under the charge of another staff member (eg, when in class, during study periods, or while playing sport). In cross-examination, the plaintiff was asked if the discipline master was someone he could go to when he was upset, and responded that he did not feel they were approachable.

There were also three study masters who were responsible for the academic progress and development of the students. There was one study master per two year levels, being divided between the junior, middle and senior years.

The students were generally streamed in their classes based upon their academic abilities. The College also had a special services centre, for students requiring extra assistance in English and maths. This centre was open during school hours, and also for a period of evening study from 5pm to 6:30pm. In 1975, fifty students from Forms 1 to 4 participated in the services offered by this centre. This included the five students. Mrs Kinnane was responsible for the special services centre at the relevant time.

The College prepared school reports for students. The reports of the plaintiff and the five students were tendered. Fr Fyfe said that the aim of school reports was to be curative, and that there was a tendency by staff not to refer to misdemeanours or ‘even some significant things’ in the school reports, so as to not damage the student’s future prospects of success.

The laundry was located at the far south east end of the College’s basement. Also in the basement was a gym, the showers and locker rooms.

From mid-1971, the infirmary was located in the far east wing of the College’s basement. As best I could understand the evidence given in respect of its layout, there were two entrances to the infirmary – an internal entrance from a hallway which lead into the waiting room, and another outside entrance from the courtyard. In the infirmary, there was a waiting room, an office, an area with beds, and at least one bathroom.

Br Frith, aged 84, gave evidence in the trial. Br Frith arrived at the College in 1972. Prior to that, Br Frith had been a house master at Downlands, one of the defendant’s other colleges in Toowoomba, Queensland. Whilst at Downlands, Br Frith said that he was asked to help with the sick bay. Br Frith said that he was thereafter trained by nurses, read some books, and also gained some experience attending the local hospital at times. Br Frith said this training occurred over a five year period, and was in general terms, similar to what a parent would do when caring for a sick child.

Br Frith was in charge of the College’s infirmary from 1973 until 1984. Br Frith said that he worked closely with a local medical clinic, and would speak to the doctors there about how to manage students’ ailments, and that those doctors would send scripts to the chemist for medications. There was also a hospital nearby which students would attend if needed.

Br Frith said that from 1979, he was also responsible for the junior dormitory. Br Frith said that this required him to be responsible for the discipline of those students. Br Frith said he rarely used the strap to discipline students and he considered showing his disappointment in students was generally enough. He said that he referred to his strap as ‘Fred’, and would say to the students that if they misbehaved he would need to get Fred out. Br Frith also said he sometimes had the students do jobs as a punishment, such as washing a car, weeding the garden, or emptying bins.

Br Frith said he was not paid for his work at the College. Instead, the defendant provided him with food and accommodation, and that if he needed money for personal expenses, he would request this from the defendant’s bursar.

Br Frith said that whilst at the College, he was not given any advice or instruction about sexual abuse, including how to deal with a child reporting a complaint.

Fr Fyfe said that Mr Mamo had a number of peripheral responsibilities within the College, including laundry duties, caretaking of the grounds, assisting in the kitchen, collecting the mail, driving the school bus, and coaching the hockey team. Fr Fyfe described Mr Mamo’s roles at the College as ‘necessary but not terribly significant.’

Fr Fyfe said that he could not recall if, in 1975, the laundry services for the boarding house were being outsourced or not. Fr Fyfe believed Mr Mamo was required to be available for the boarders to collect their clean laundry on a particular day of the week. Fr Fyfe said that there was no reason for other staff to attend the laundry and he accepted that Mr Mamo had the opportunity to be alone with students there.

Fr Fyfe said that in the early 1970s professional development was offered to staff members at the College. However, Fr Fyfe accepted that there was no formal training in how to manage sexual abuse, and that staff were not informed that this was impermissible conduct. Fr Fyfe said that he and the staff were expected to use their common sense and ingenuity to manage and respond to complaints of child sexual abuse. Fr Fyfe said there was no requirement that sexual abuse be reported.

Fr Fyfe also said that he did not address the students on child sexual abuse.

Fr Fyfe said that he could recall three instances of ‘misbehaviour at a sexual activity level’ at the College. One occurred in approximately 1963 and involved two students. Fr Fyfe, who at the time was a discipline master, said he reported this to the then rector of the College. Then in 1971 or 1972, he said that it was brought to his attention that a senior student was interfering at night with some other students. Fr Fyfe said that he expelled the offending student. The third instance involved Mr Mamo.[14]
[14]Fr Fyfe’s evidence relevant to this is detailed at paragraph [201] below.

Fr Fyfe said that only discipline masters or teachers within their classes were permitted to administer corporal punishment to students. Fr Fyfe said there were frequent meetings of discipline masters to discuss the discipline being given to students, including the use of corporal punishment. Fr Fyfe said the maximum number of straps permitted was six, and that the strap was primarily given to the hand. Fr Fyfe said it was never permissible to strap a student on the bare buttocks.

Fr Fyfe said that he could not recall telling the brothers that they were not to administer corporal punishment to students, but he believed this was ‘accepted’ by brothers within the College.

The plaintiff said that in Form 1, he was not strapped, however he was in later years. The plaintiff said that the boys kept a tally on the underside of their desks as to the number of times they had been strapped. The plaintiff said that in the first semester of Form 4 (1978), he was strapped 23 times.

The plaintiff called several former students who gave evidence as to their experience of discipline and punishment at the College. Mr Shane Mahar and Mr Michael Schack gave evidence as to punishments which they received and observed whilst they were students of the College, prior to 1975. Such evidence is irrelevant to my assessment as to the functioning of the College at the period relevant to the plaintiff’s claims of abuse.

Mr Brian Guy attended the College as a day student from 1973 until 1977. Mr Guy gave evidence as to punishments he received in Forms 1 and 2. As this was prior to the plaintiff’s attendance at the College, such evidence is irrelevant to this proceeding. Mr Guy then said that ‘the world was different’ in 1975, because his classes became co-educational, so strapping of students no longer occurred in the classroom. Mr Guy said that he did not report being strapped to anyone. At one stage of his evidence, Mr Guy said he did not do so as he was afraid he would get in more trouble, but he later said it did not enter his mind to report it.

Mr Patrick Neeson attended the College for the same years as the plaintiff, and was also a boarder. Mr Neeson said that corporal punishment was quite frequent, and that it was mainly ‘belting’ on the hand with a leather strap, and occasionally a cane across the backside. Mr Neeson said that in his early years at the College, he saw this occur at least a couple of times a week.

Mr Ross attended the College for Forms 3 to 5, commencing for a small part of 1977, through to 1979. Mr Ross said that on one occasion a teacher struck him on the back of his leg with a cue stick, and on another occasion a teacher hit him on his face with a ruler. Mr Ross also said that one of the brothers, Fr John O’Bryan had a cut up piece of fan belt hanging around his neck, and that he would strike students behind the ear if they were ‘talking or something.’ Mr Ross said he was strapped ‘up to once a month or so.’

Mr Pearce attended the College, as a boarder, between 1977 to 1978, when he was in Forms 1 and 2. Mr Pearce said that although there were no girl boarders then, there were girls in their classes. Mr Pearce said that if a student was to be punished during the school day, the student would be taken to the principal or vice principal’s office. After school, in study time, when the girls had gone home, Mr Pearce said a particular teacher would strike the boys with a cane in front of their friends if they were caught talking.

These specific incidents of punishment were put to Fr Fyfe and his response to them was sought. In short, Fr Fyfe accepted that if these incidents occurred as alleged, they were inappropriate. However Fr Fyfe said that those instances of a staff member exceeding the bounds of what was appropriate did not indicate the overall climate of the College in the mid 1970s.

Fr Fyfe said that students came to speak to him ‘about all sorts of things’. Fr Fyfe said that he aimed not to be a remote administrator, so was often out and about in the College grounds.

Fr Fyfe said that if a student had an issue with their discipline master, they could seek pastoral care from others. Fr Fyfe could recall at least one occasion when a student reported to him that he had received too much corporal punishment. Fr Fyfe said that after this he spoke to the discipline master, Fr O’Bryan, and he brought the student and Fr O’Bryan together to discuss this, so that they had a mutual understanding of the situation.

Fr Fyfe accepted that bullying, horseplay, tomfoolery, and nastiness occurred amongst students. However Fr Fyfe said that he could not recall such behaviour being a feature of the College, nor a matter which was of concern to him in his role as rector.

Fr Fyfe accepted it was important a school would take steps to protect boys who were being bullied, and that if there was a group of boys ‘bashing’ or sexually assaulting other boys, this would indicate a break down in discipline. Fr Fyfe also accepted in cross-examination that a vigilant house master should have prevented such conduct.

Fr Fyfe accepted that it was important students knew they could complain about bullying. When asked in cross-examination if the College identified for students the specific staff members they could trust to report the behaviour of other students to, Fr Fyfe said that it did not. Instead, Fr Fyfe said it was left to the students’ ingenuity as to who they decided to complain to.

Br Frith said that in each of the schools he has been placed at by the defendant’s order, he was aware of students bullying others, especially little and young boys. Br Frith accepted that a vigilant house master needed to ‘keep an eye’ on maladjusted children, as there was a chance they could be bullied or bully others.

Br Frith said that if a student complained about another student, the house master had a job to address it. Br Frith said that this could involve a warning or discipline of the offending student. However Br Frith said that he had never known a student to be expelled for bullying. He commented that if that was to be done ‘[y]ou’d have to expel half ... the school’.

Mr Schack gave evidence that he was a student at the College between 1962 and 1967. Mr Schack stated that in 1967, when he was in Form 6, he was sexually abused at the College by Br Gordon Morgan, who at the time was in charge of the infirmary. Mr Schack said that during a cadet camp, he suffered an injury to his ribs and was taken to the infirmary for treatment, where he remained for two or three nights. In the course of treating him, Mr Schack said that Br Morgan asked him to undress and lay down, and brought out a heat lamp and Vaseline. Br Morgan applied heat to Mr Schack’s genitals with the lamp, and instructed Mr Schack to massage his own genitals with the Vaseline. Mr Schack said that although there had been no injury to his genitals, he followed Br Morgan’s instructions, and as he did so, Mr Schack got an erection. Mr Schack said that Br Morgan left the room after a while, and that during this time, the heat and rubbing caused him to ejaculate. When Br Morgan re-entered the room, he ran a bath for Mr Schack. Whilst Mr Schack was bathing, he said that Br Morgan hugged him and rubbed his cheek against Mr Schack’s own.

Mr Schack said that he told some other boys at the College about the incident between him and Br Morgan in a general, non-specific way. Some time later, Mr Schack said that Fr Anthony Prentice, the rector of the College, called for Mr Schack to meet with him. At the meeting, Fr Prentice said to Mr Schack that some boys had come to him with ‘some concerns about Br Morgan’ and had mentioned Mr Schack’s name. He asked if Mr Schack had anything to tell him about it. Mr Schack said that he told Fr Prentice that Br Morgan had used the heat lamp and asked him to apply Vaseline to his genitals. Mr Schack did not tell Fr Prentice about him having subsequently ejaculated, or that Br Morgan hugged him whilst he was in the bath. On receiving this information, Mr Schack said that Fr Prentice responded by saying said he hadn’t heard of that sort of treatment, and ‘perhaps, having had some injury in the region it may have been necessary to test out whether things are working.’ Mr Schack stated that he did not believe that this was a possible reason for Br Morgan’s actions, but he did not express this view to Fr Prentice.

Mr Mahar, another former student of the College gave evidence as to treatment he received from Br Morgan, in the infirmary in 1964. Mr Mahar said that on one occasion, Br Morgan grabbed his penis and felt under his scrotum, and told Mr Mahar he was checking to see if his testicles had dropped. Mr Mahar said that Br Morgan directed him to return the following day. Mr Mahar did so, and said that Br Morgan, again, felt his penis and scrotum. About three months later, Mr Mahar was taken to the infirmary after he had been knocked out playing football. Mr Mahar said that when he came to, Br Morgan was masturbating him, with Br Morgan’s mouth close to Mr Mahar’s penis. Mr Mahar said that he asked Br Morgan what he was doing, and Br Morgan responded that he was testing if his testicles had dropped. Mr Mahar said that he did not report these incidents to any staff members at the College as he feared he would be punished, as there were a lot of strappings being given at the College at the time.

In the 1976 College annual, Fr Roy O’Neill, senior discipline master, wrote, under a heading titled ‘Discipline’ that ‘theories of discipline within the school have been subject to debate in recent years’, and noted:

One thing that has emerged from this is that the ‘reign of terror’ seems to be on the decline, no longer does the errant student, in fear and trembling, begin the long march to the discipline master's room to receive his just deserts for his infringement of a code of rules and regulations that would need the practical skill of a Q.C. to administer with impartiality.

Fr O’Neill also commented that students knew the frontiers of permissible behaviour at the College, and that in general the College had been satisfied with the standards of conduct of the students that year.

The plaintiff was taken to this article during cross-examination. The plaintiff disagreed with the sentiment expressed in the article that the ‘reign of terror’ seemed to be on the decline by 1976, and said that this was present throughout all of his time at the College. Fr Fyfe was also taken to the article during his cross-examination, and denied that there was a ‘reign of terror’ at the College or that this was the opinion of Fr O’Neill at the time he wrote the article. Fr Fyfe considered Fr O’Neill to have used this turn of phrase ‘with tongue in cheek’.

In 1994, Fr Paul Jennings conducted an investigation into sexual and physical abuse at the College in the 1960s and 1970s. As part of his investigation, Fr Jennings spoke to several members of staff, and more than 20 former students. In his report dated 18 February 1994, Fr Jennings noted that he had spoken to one student who told him of being sexually abused in the infirmary in the 1960s. Fr Jennings also found abusive behaviour by Mr Mamo and commented that:

Almost everyone I talked with commented on [the College’s] reputation for tough discipline and activities that could be termed physical abuse. Most ex-students thought this was a bigger thing than any sexual abuse. There was a lot of injustice in discipline by overworked and under-trained MSC.

In a letter from Fr Jennings to the superiors of the defendant’s order, dated 11 March 1994, Fr Jennings stated that after lengthy investigations, he had concluded that there was substance to the allegations of abuse by Br Morgan in the 1960s.

The plaintiff’s injury and its effects

The evidence and my findings as to the three incidents of alleged abuse are detailed below. So as to understand the basis for the plaintiff’s proceeding, I will now briefly summarise the impact which the plaintiff’s claims these incidents have had upon his life.

The plaintiff said that although the student abuse was ‘not a snap thing’, everything started to change for him after it. In the plaintiff’s term 1, Form 2 school report, he was described as having potential for leadership, but was said to have the ‘habit of just doing what is required of him and that is all.’ The plaintiff claimed that his subsequent school reports indicated a decline in most of his subjects in Forms 4 and 5. The plaintiff said he became rebellious, and started abusing alcohol. The plaintiff was suspended for this, and also for running away from the boarding house on a weekend. The plaintiff said that he was not expelled, and believes this was because his marks at that time were above average.

The plaintiff said that whilst at the College, he only participated in activities if they were compulsory, as he had become increasingly withdrawn. However, the plaintiff also gave evidence that he played football, basketball and cricket at school, and in Form 6 was secretary to the St Vincent de Paul society, which did community-based charity work.

In 1980, when the plaintiff was in Form 6, his term 1 school report referred to him as having ‘good conduct’. The plaintiff said that this was a consequence of him having ‘completely withdrawn’ and his friends had left the College.

The plaintiff said that in about Form 5 or 6, he became interested in studying law. However the plaintiff was unsure whether he ever applied to study law, either at the completion of high school, or at any stage during, or after university. The plaintiff said that he had a ‘feeling’ that his marks were not good enough for law. Instead the plaintiff undertook an Arts degree at Melbourne University and majored in sociology. The plaintiff said that his attendance at university was sporadic although he generally attended tutorials as they were compulsory with a roll call taken.

In his first year at university, the plaintiff shared a house with former students of the College. The following year, he moved in with Ms Sylvia Stuart, a friend whom he met at university. The plaintiff said he felt uncomfortable in social situations and did not like being around people too much. However, the plaintiff said that despite this he would socialise with his housemates, and he co-hosted a couple of house parties each year.

The plaintiff said his marks from his Arts degree were good enough for him to undertake Honours. However instead of that, he decided to travel up the east coast of Australia, and did some basic jobs, such as working as a builder’s labourer, taxi driver and waiter. The plaintiff said he always felt the need to keep moving and to escape things, and that for a period of time he lived and worked in Sydney. The plaintiff said he did menial work until the late 1980s or early 1990s, at which time he commenced a Masters degree in philosophy at Melbourne University. The plaintiff said he obtained a scholarship to do his Masters based upon the marks he received in the final year of his Arts degree. However, the plaintiff said that as he wrote a paper which his lecturer advised him was not on topic, he decided to withdraw from the course. The plaintiff said his lecturer passed his paper on to a colleague at Deakin University who subsequently offered the plaintiff an opportunity to undertake a PhD on the topic. The plaintiff said that he did not take up that offer because of anger, restlessness and contrariness. The plaintiff said he now regrets this decision.

After withdrawing from his Masters, the plaintiff said he again did menial work for a number of years, including cleaning a nightclub, gardening and labouring. The plaintiff said that in these jobs he did not have to relate to people, as he could work on his own. During that period the plaintiff said he felt ‘terrible … just very dissatisfied and, like, ashamed of what I was doing and what I had become.’

In 1996, the plaintiff undertook a one-month course at RMIT in teaching English as a foreign language. After completing the course, the plaintiff moved to Taiwan. The plaintiff said he went to ‘escape the depressing situation I was in’.

The plaintiff worked in a kindergarten in Taipei for approximately two years. Thereafter, the plaintiff established his own school, where he employed one of his co-workers from the kindergarten, Ms Jasmine Wu. The plaintiff said he ran this business for about 10 years, by which time he had approximately 100 students. By that time the plaintiff said he was deeply unhappy, and could no longer stand the intensity of Taipei. The plaintiff then sold his teaching business, and briefly returned to Australia.

In approximately 2009, the plaintiff said he worked on the Gold Coast for a few weeks teaching English. However, he decided to move back to Taiwan, where he settled in a rural town called Dulan. There the plaintiff purchased a property with his partner at the time, Gina. The plaintiff subsequently set up a business making driftwood furniture, which he sold at a monthly market in Taipei. Whilst in Dulan, the plaintiff became involved with a protest group of about 20 people who were opposed to the development of a resort. As part of this group, from time to time, the plaintiff attended pickets on the beach, and a protest camp set up outside the resort. The plaintiff also went on a 300 kilometre protest march from Dulan to Taipei. The plaintiff said he socialised with members of this group, as well as members of Dulan’s artistic community.

Whilst in Taiwan, the plaintiff developed an interest in chasing typhoons. The plaintiff said he would get in his car and drive to where the typhoon was expected to hit. The plaintiff described this as being ‘like a death wish’. The plaintiff filmed and edited videos of the typhoons he observed, which he posted on the internet. Two of these videos were tendered in the proceeding.

The plaintiff said he had thought of ways to kill himself before he went to Taiwan but had made no suicide attempts. The plaintiff gave evidence that on one occasion whilst in Taiwan, he went to an abandoned house on the edge of a cliff which was in the path of a typhoon. The plaintiff said he sat in the house drinking whisky and willed the typhoon to take him. The plaintiff said that he didn’t want his mother to feel that he had killed himself, and had reasoned at the time that this was a way to end things. The plaintiff said that on another occasion in Taiwan, he planned to gas himself in his car and went as far as buying a hose and some tape, but ultimately did not go through with it.

In 2018, the plaintiff said he returned to Australia to deal with the impact of the abuse. He said that he had read articles on the internet about the National Redress Scheme and Mr Mamo’s criminal charges.

The plaintiff said he sold the land he owned in Taiwan and subsequently purchased a dairy shed on a secluded rural block in Nimbin, New South Wales. The plaintiff currently resides at this property. He lives off the dividends he is paid from stock and shares which he owns, plus income he derives from selling eggs from his chickens, and from the agistment of his some of his land.

The plaintiff said that over time, he has had some intimate relationships, but that none have lasted. The plaintiff said his relationships have always been off and on, and that he gets to a point where he needs to withdraw, as he cannot handle the closeness. The plaintiff said he would have liked to have had children.

The plaintiff said that he is currently in a long distance relationship with a woman, who lives in Taiwan. The plaintiff said she sometimes visits him for one or two months at a time. The plaintiff said that when his girlfriend is not here, he is like a ‘hermit’.

The plaintiff said that his memories of the College, and the abuse, are always with him. The plaintiff said that he is depressed, and ‘full of self-hatred and shame’. The plaintiff said he is not able to experience joy in his life.

In respect of the plaintiff’s claim for psychiatric injury and its effects upon him, the defendant submitted that the plaintiff frequently exaggerated the impact which the abuse had upon him. For example, in relation to the plaintiff’s claim that he had a death wish in respect of his typhoon chasing, it was submitted that the tendered videos demonstrated that the plaintiff obtained enjoyment from this activity and in one video, he described the experience as ‘exhilarating’. The defendant relied upon the opinion of consultant psychiatrist Dr Ghazala Watt[15] who, after viewing the tendered videos, was of the opinion that they demonstrated the plaintiff was functioning relatively well in terms of his mental health. Dr Watt was also of the opinion the behaviour of the plaintiff in the videos, demonstrated him to be an individual seeking more of an adrenaline rush, than chasing suicidality.
[15]Dr Watt was engaged by the defendant’s solicitors.

The defendant also challenged the plaintiff’s evidence that he lives like a ‘hermit’ and that he has been ‘increasingly isolated’ since leaving the College. The defendant submitted that although the plaintiff wanted to portray himself in this way, the evidence established that whilst at the College, he played on numerous sports teams, and after finishing school, the plaintiff played football for the local Stawell team. In relation to his life in Dulan, documents tendered by the defendant from the plaintiff’s Flickr online account, demonstrated that the plaintiff was involved in and socialised with the local artistic community. This material also demonstrated how active the plaintiff had been in the protest movement, and that he had filmed and then subsequently produced videos of numerous protest activities, in addition to the videos he made of typhoons.

3. Factual determinations

Having detailed the background relevant to the plaintiff’s proceeding, I will now detail the specific evidence relevant to the alleged incidents of abuse, and make factual determinations in respect of each.

The student abuse

The plaintiff alleges the student abuse was committed against him by five students who were identified in the proceeding as Student 1, Student 2, Student 3, Student 4 and Student 5.[16] Like the plaintiff, these five students commenced at the College in Form 1 in 1975.
[16]Pursuant to orders dated 27 August and 20 December 2024.

The plaintiff’s evidence

The plaintiff said that the five students were one to three years older than him, and bigger than him. The plaintiff said that Student 4 was the ringleader, Student 2 and Student 3 were bullies, Student 1 joined in with the others, and Student 5 was more verbally aggressive. The plaintiff said that the five students hung around with each other, and they would bully other students.

The plaintiff said that he was bullied by the five students in Form 1. This commenced within 2-3 weeks of the school year, and thereafter occurred every day. The plaintiff said the bullying involved the five students saying ‘we put the hole in you’, and gesturing with a finger on one hand, going through a hole shape made with the index finger and thumb on the other hand. The plaintiff said that he understood the expression and hand gesture to refer to anal sex.

The plaintiff said that sometimes one of the five students put him in a headlock, and then another would come from behind and dry hump him. The plaintiff said that at other times, one of the five students would grab his towel off him after taking a shower, or try and grab his penis.

The plaintiff said that his locker was near where the five students had their lockers. The plaintiff said that each day, the students would need to change into their uniforms, shower after sport, and then later change into pyjamas. The plaintiff said that there were a lot of opportunities for the five students to bully him in this way, and he saw them do it to some other students too, including Mr Neeson.

The plaintiff said that he did not report the behaviour of the five students, as he said that there was a culture of no dobbing at the College.

In Dr Watt’s medico-legal report dated 31 May 2023, she noted that in her examination of the plaintiff, he told her that he had not raised his concerns regarding these five students with anyone, as the ‘culture was against dobbing’. Further, Dr Watt reported that the plaintiff said he did not tell the brothers at the College of the sexualised bullying as it was ‘embarrassing’ and ‘confusing’, and questioned himself if it was ‘normal.’

The plaintiff said that one evening, ‘some months’ into Form 1, he was on his own, walking along the basement corridor, near the gym area. It was after dinner and he was in his pyjamas, with a dressing gown on. The plaintiff said that he walked around the corner and saw the five students together. The plaintiff said that he knew straight away that it ‘was not good news,’ and tried to walk past the five students. In cross-examination, the plaintiff said that he thought there was a prospect of the students putting him in a headlock.

The plaintiff said that that the five students grabbed him, took hold of his arms and legs, and pushed him to the ground. The plaintiff said his legs were pushed apart and his dressing grown was pulled up. The plaintiff said that Student 4 got on top of him, and partially pushed his erect penis into the plaintiff’s anus, penetrating him through his pyjama pants.

Subsequent to this, the plaintiff said that some of the other students ‘took a turn’. He could not be precise as how many of the students did this but said it ‘was three or maybe four’. The plaintiff said:

...only two really pushed their penises onto me. One of them was more just like air-hump, I think.... I could feel their penis pushing into my anus. But as I said, it was not like full in but the pyjama pants were thin and ... I felt it.

The plaintiff gave evidence that he struggled and tried hard to get away but was unable to do so because he was being held down. The plaintiff gave evidence that the five students were laughing during this incident. The plaintiff said it was hard for him to say how long this incident went for, but thought that it could have been some minutes.

The plaintiff said that he then felt something explode in his head, and he felt a sense of shock. The plaintiff said that he eventually got away, and went to his locker, where he ate some fruit cake that his mother had made for him. The plaintiff said that whilst he ate the cake, he had no sense of taste. The plaintiff said that it was like a ‘mechanical movement’, he felt he was outside his body, that it was ‘not real’ and ‘something had broken.’

The plaintiff said his instinct was to suppress the gym incident, as he did not know how to tell anyone about it, and did not have the words to explain it. The plaintiff described feeling shocked and disturbed during the gym incident. He also said that he had a fleeting erection during the encounter, which has since been a source of great shame for him.

The plaintiff gave evidence that sometime after the gym incident, he was walking out of class and Student 5 approached him holding his fists up like a boxer and saying ‘come on … have a go’ and ‘we put a hole in you’. The plaintiff said that as he believed that Student 5 was daring him to fight, the plaintiff lashed out and hit Student 5 in the head. Later that night, while he was in bed asleep, the plaintiff said he was ‘bashed’ in the face by Student 3. The plaintiff said he woke up screaming and Br Mulverhill came to the dormitory and took the plaintiff and Student 3 downstairs to the locker room. The plaintiff said that Student 3 was scolded by Br Mulverhill and both students were made to shake hands and return to bed.

The plaintiff said that his assault by Student 3 was ‘big talk’ around the College and everyone knew it happened, including his brother Paul. The plaintiff said it caused him to suffer a black and swollen eye. As the plaintiff was due to return home whilst his eye was still in this condition, at Paul’s suggestion, the plaintiff told their parents he got hit in the eye with a tennis ball. The plaintiff said this was consistent with the no dobbing culture at the College.

In cross-examination, the plaintiff was shown class photographs of the five students. The plaintiff conceded that three of the boys were about his size, one was slightly smaller than him, and one was ‘quite significantly taller and stronger’.

Other oral evidence

Mr Neeson, gave evidence that in 1975, during his first year in the boarding house, he experienced violence, which he said was perpetrated against him by Student 1, Student 2 and Student 4. Mr Neeson gave evidence that these three students would work as a team to randomly punch him and other students, and that such conduct would occur on a frequent basis, multiple times a week, throughout the year. Mr Neeson said that this generally occurred if students were isolated in the locker room. Mr Neeson said there was a sexualised element to the three students’ behaviour, and he recalled that they would say 'I'll put a hole in you' while gesturing with finger movements. Mr Neeson said he took this to suggest anal sex. Mr Neeson said that on some occasions, typically in the locker room, the students would pin him to a corner, where they would dry hump him and grab his penis, or make him grab their penis under a threat of violence. Mr Neeson said that on one occasion, he fought off an attack from Student 4, who burst into a toilet cubicle that Mr Neeson was in.

Mr Neeson said that he was aware that he could tell a teacher about such incidents, but that he had not ‘dobbed’ on these students to anyone at the College, out of fear of retribution. Instead, Mr Neeson said he told his older brother, who he understood subsequently spoke to these three students. Mr Neeson said the attacks stopped for two or three weeks, but then resumed.

Fr Fyfe said he had no recollection of the five students, and that as rector of the College in 1975, he had no knowledge of the physical and verbal bullying which the plaintiff and Mr Neeson described in their evidence. Fr Fyfe said that was ‘all news to me’ and ‘horrific at that’.

Leann gave evidence that, in April 2019, the plaintiff told her that he had been held down and sexually assaulted by a number of students at the College.

Ms Stuart said that about two months prior to her giving evidence, the plaintiff had told her he had been sexually assaulted at the College by some other students.

The plaintiff additionally reported the student abuse to his treating psychologist, Dr James Alexander, in late 2023.

Contemporaneous documentary evidence

The enrolment cards and school reports of the five students were tendered in the proceeding. Two of the students were 14 years old at the start of the 1975 school year, two were 13 years old, and one was 12 years old. Relevant to the student abuse, these reports noted the following.

Student 1’s term 1, Form 1 report described him as well-behaved and not troublesome when on his own, but that he was easily misled by his friends. Academically, Student 1 was described as finding the classroom situation very difficult but responded well to the small groups run by Mrs Kinnane. Student 1’s semester 2, Form 1 report card noted complaints from other boys about his tendency to bully others, but stated that he had come a long way since he first arrived at the College.

Student 2’s term 1, Form 1 report described him as having a language difficulty which affected his study but noted that he was making some progress under Mrs Kinnane’s care. The report noted that for a long time, Student 2 was uncooperative and defiant, but that his behaviour had settled down. Student 2’s semester 2, Form 1 report described him as showing a seriousness in attitude towards his studies, although he had not been able to make friends with other students. The report commented on a noticeable improvement in his conduct.

Student 3’s term 1, Form 1 report described him as progressing well in his studies. He was described as a happy-go-lucky boy who was well liked by all, but had a dishonest streak. In his semester 2, Form 1 report, Student 3’s academic performance was described as satisfactory in most subjects. It was expected that he would continue to improve with Mrs Kinnane’s help. His dishonest streak was again noted but he otherwise had a good record.

Student 4’s term 1, Form 1 report described him as progressing well with Mrs Kinnane’s work and achieving a satisfactory standard of work in some subjects. He was noted as having calmed down considerably, as for a long time he was defiant, aggressive and disruptive. In his semester 2, Form 1 report, Student 4 was described as continuing to do well in some subjects, although his overall effort lacked consistency. He was noted as being unhappy at the College all year and to have resisted efforts to help him settle down. His behaviour was described as heedless and uncooperative with an occasional aggressive streak.

Student 5’s term 1, Form 1 report described him as a pleasant boy who had great difficulty in reading, which affected his results, although it was noted that he was making some progress with Mrs Kinnane’s assistance. Student 5 was described as being liked by everyone. In his semester 2, Form 1 report, Student 5 was described as making good progress with Mrs Kinnane’s help and benefitting from closer guidance and personalised attention. Student 5 was also noted as being well behaved and well accepted because of his cheerful and friendly disposition.

Findings and conclusion

The plaintiff’s account of the student abuse, was credible and compelling. The plaintiff was visibly distressed when recounting the gym incident.

The plaintiff’s counsel urged me to find the gym incident was a ‘gang rape’, whilst the defendant dismissed the use of this term and described it as the ‘gym incident’, consistent with what was pleaded in the plaintiff’s further amended statement of claim.

I note that the term ‘gang rape’ was not pleaded, and was not a term used by the plaintiff himself in his oral evidence. The term was first used by Dr Alexander in his evidence on day five of the trial. Dr Alexander stated that he understood the plaintiff’s pants were removed during the gym incident, and that it involved each of the five students anally raping the plaintiff. In this context, I do not consider it necessary or appropriate that the alternative terminology suggested by the plaintiff’s counsel, be adopted for the purposes of this judgment.

Having considered the whole of the evidence, I am satisfied to the requisite standard that the student abuse occurred, in the manner described by the plaintiff in his evidence.

The plaintiff said the gym incident occurred ‘some months’ into Form 1. Applying the ordinary meaning of the expression ‘some’, I find that the gym incident occurred in the first half of 1975.

The Frith abuse
The plaintiff’s evidence

The plaintiff gave evidence that sometime after the student abuse, in either Form 1 or Form 2, he attended the College infirmary one evening with a sore throat. There he was seen by Br Frith, in the infirmary office.

The plaintiff said that Br Frith examined his chest with a stethoscope. The plaintiff said Br Frith moved behind him, reached down into the plaintiff’s underpants, and then inserted his finger into the plaintiff’s anus. The plaintiff gave evidence that Br Frith said something to the effect that ‘if you feel pain, it means that you’re sick’ or ‘if you feel pain it means that you’re not sick’. The plaintiff could not recall which one of the two statements Br Frith had said to him. The plaintiff said he was shocked and confused about what had occurred, and that he then left the infirmary.

The plaintiff said that he did not report the Frith abuse at the time. His evidence was that this was partially due to there being a lot of homophobia at the College, and not wanting people to think he had been complicit in the incident. The plaintiff also said that he felt he could not report the Frith abuse to any teachers because ‘he was a teacher, so … you feel like they’re ... not on your side’.

The plaintiff said that approximately one year later, he ‘mentioned’ the Frith abuse to a friend of his at the College, Mr Kim Walker. The plaintiff described this conversation as ‘kids talk about Brother Mamo and Brother Frith…as generally… “suss”, and … we talked about it in those terms’. Later in his evidence, the plaintiff said he was not sure if he told Kim Walker exactly what happened or just said ‘something weird happened’.

The plaintiff recalled that at the College, Br Frith wore a white doctor’s coat and ‘always wore a stethoscope’.

The plaintiff has not reported the Frith abuse to police, nor has he sought to have Br Frith charged in respect of his allegations of abuse.[17]
[17]I note that Br Frith was criminally charged with offences relating to alleged abuse of students at the College. The particulars of these charges are discussed at paragraph [171] below.

Tendency evidence

Mr Ross gave evidence that Br Frith was the ‘nurse’ during the time that he was a day student at the College from 1977 to 1979. Mr Ross said that if he wanted to get out of school, he would sometimes attend upon Br Frith in the infirmary and claim that he had a headache. Br Frith would then excuse him from attending class. On approximately three of these occasions, Mr Ross said that Br Frith took him into the infirmary office, fondled his penis and testicles through the outside of his trousers, and asked him to cough. Mr Ross said that he never reported these interactions with Br Frith to anyone as he was embarrassed.

Mr Ross was cross-examined about a report that he had made to police in 2015 concerning abuse perpetrated against him at the College by Mr Mamo. This report did not include any allegations of abuse by Br Frith. Mr Ross agreed that he did not report his allegations of abuse by Br Frith to the police at that time, and stated that he had no intention of doing so.

Mr Ross acknowledged he had commenced a claim for compensation against the defendant for abuse he alleges was committed against him whilst a student at the College. Mr Ross agreed that when he first instructed solicitors and sought advice about making a claim against the defendant, he only spoke to them about Mr Mamo, and did not mention Br Frith. Mr Ross also accepted that when his solicitors first notified the defendant of his potential claim, they only did so in relation to allegations of abuse involving Mr Mamo. Mr Ross said that it was only when his solicitors asked if anyone else acted inappropriately towards him that he told them about Br Frith.

Mr Pearce gave evidence that sometime in 1978 when he was in Form 2, he became very unwell with glandular fever. Mr Pearce said that he had been outside, with some friends near the trampolines, and had fallen asleep. When he woke, Mr Pearce said there was no one around him and he was too weak to move. Mr Pearce said that he called out for help, and some students went and got Br Frith, who then assisted Mr Pearce to walk to the infirmary. Mr Pearce said he stayed in the infirmary for the greater part of a month.

Mr Pearce said that during his stay at the infirmary, Br Frith would assist him in bathing each day. Mr Pearce said Br Frith ran the bath for him, and then helped him to get in. On the first occasion, Mr Pearce said that Br Frith noted that he was uncircumcised and asked Mr Pearce if his father had taught him how to clean himself. Br Frith then asked if he wanted assistance. Mr Pearce said he did not really understand what Br Frith was asking him, and that he felt ‘really dizzy and weak’ at the time. Mr Pearce said without waiting for a response, Br Frith put his hands straight onto Mr Pearce’s penis ‘like a claw’. Mr Pearce said his foreskin was forced back and ‘it got faster and faster and faster and faster, and painful at the same time’. Mr Pearce said this lasted for no more than three minutes.

Mr Pearce said that Br Frith’s demeanour transformed during this time: ‘his eyes went an unusual black colour,’ froth appeared around the corners of his mouth, and his tongue went in and out of his mouth ‘like to a lizard’. It was put to Mr Pearce that this description was a result of his ‘feverish imagination’ by reason of his glandular fever. This suggestion was denied by Mr Pearce.

Mr Pearce said he had a bath every day that he was in the infirmary, and that each time the same thing would occur where Br Frith would rub Mr Pearce’s penis under the auspices of assisting him to clean it. Mr Pearce said that Br Frith was ‘fine during other times’, and ‘took extremely good care’ of him.

Mr Pearce said that Br Frith would only ever bathe him when no other students were around and the ‘coast was clear’.

Mr Pearce did not report what had occurred with Br Frith to anyone at the school, nor to any of his friends or family members.

Mr Pearce made a statement to police in November 2014, concerning his alleged abuse at the College by Mr Mamo. In cross-examination, Mr Pearce agreed that this statement made no reference to any abuse by Br Frith. Mr Pearce said that at the time of making the statement in relation to Mr Mamo, he was asked by the police investigator whether he had been abused by any other perpetrators at the College, at which point he disclosed his abuse by Br Frith. Mr Peace stated he provided a separate statement to the police regarding his allegations of abuse by Br Frith. Mr Pearce’s statement regarding Br Frith was completed in November 2015, for use in Br Frith’s criminal trial.

In cross-examination, Mr Pearce described Br Frith’s actions in the bath as masturbating him. Mr Pearce accepted that he did not describe Br Frith’s actions as masturbation in his police statement nor at the committal hearing in relation to Br Frith. Mr Pearce accepted that he first used the term masturbation in respect of Br Frith, during Br Frith’s criminal trial in March 2023.

Mr Pearce said that he had attended the sentencing hearing for Mr Mamo and spoke to some of the other men who had been abused by Mr Mamo. Mr Pearce said that he spoke to those men ‘[i]n parts’ about what happened with him and Mr Mamo. Mr Pearce also accepted that he had spoken to other students about their allegations concerning Br Frith, and that he had a conversation with one of those men about obtaining compensation. However Mr Pearce denied that he had colluded with this former student to make up allegations against Br Frith in order to be able to obtain compensation.

Mr Pearce said that Br Frith was the only brother who wore a white shirt. In cross-examination Mr Pearce was taken to photographs of religious staff contained in the 1977 College annual, who were seen in white shirts. Mr Pearce said that this may have just been for the photos, and maintained that their normal choice of attire was a black shirt with a white collar.

Br Frith’s evidence

Br Frith said that he had never sexually assaulted a child in his care.

Br Frith denied having ever sexually assaulted the plaintiff, Mr Ross, or Mr Pearce.

Br Frith said that he could not recall the plaintiff. Br Frith denied having had a stethoscope. Br Frith denied putting his finger into a child’s anus as part of an examination, and was unequivocal in his repeated denials of the plaintiff’s allegations against him.

In response to Mr Ross’ allegations, Br Frith could not recall Mr Ross, and denied having ever grabbed Mr Ross’ penis or testicles over his trousers and telling him to cough. Br Frith described this allegation as ‘disgusting’.

In response to Mr Pearce’s allegations, Br Frith denied having taken hold of Mr Pearce’s penis and moving his foreskin back and forth whilst assisting him to bathe in the infirmary. Br Frith denied that this had ever occurred, either on a single occasion or on a daily basis for a month thereafter. Br Frith described these allegations as ‘completely false’ and ‘outrageous’.

Br Frith gave evidence that most children who were unwell usually stayed in the infirmary for two or three days, and up to a week if they were ‘quite ill’. Br Frith could not recall a student staying in the infirmary for as long as a month, as Mr Pearce claimed.

Br Frith recalled giving talks to students about hygiene, and telling uncircumcised boys about the risk of infection if they did not clean their foreskin. Br Frith said that he would show them pictures in a medical book about ‘how things worked’. Br Frith said that if a student attended with a complaint about their genitals, he would examine them. Br Frith said this may have occurred in circumstances where a boy had undescended testes, or in the context of a sporting injury. Br Frith said that he was the only person these students could go to about such complaints, and as a nurse, he would be required to check such things. Br Frith stated that he would never conduct an examination of this nature if a child presented with a sore throat, cold or headache.

Br Frith said that he assisted students in the bath if they needed assistance. Br Frith said that if he did so, no one else would be present as the student deserved their own privacy.

Br Frith also said that if a student needed to be taken to hospital, he would ensure they showered or bathed beforehand. Br Frith said that if a student was grubby after a football match, the nurses would say: ‘For Heaven’s sake, when you bring them up here give them give them a wash first’.

Br Frith denied that he had a sexual interest in boys, and that he had acted on this interest in the guise of examining boys who attended the infirmary.

Br Frith said that whilst at the College, he wore dark trousers and a white shirt. Br Frith said that he never had a doctor’s coat.

Findings and conclusion

The plaintiff and Br Frith both gave credible evidence. Neither was more compelling than the other. The plaintiff gave a clear account of what he said occurred. His inability to recall the exact words that Br Frith said at the time, is plausible. Even if I accept the defendant’s submissions that the plaintiff had a propensity to exaggerate his claimed consequences of the abuse,[18] this does not sufficiently detract from my overall assessment as to the plaintiff’s account of the Frith abuse being credible.
[18]See paragraphs [95]-[96] above.

The only reservation I have in respect of the plaintiff’s account is his evidence that Br Frith always wore a stethoscope, which the plaintiff said he used at the commencement of the examination. Br Frith denied having a stethoscope, and he was not challenged on that.

I draw no inference from the plaintiff’s decision not to report his allegations of Br Frith’s abuse to police. I also draw no inference from the plaintiff’s delay in making a formal complaint about Br Frith. It is well accepted that delay in making a complaint is not necessarily inconsistent with the credibility of the complainant’s account.[19]
[19]DP (a pseudonym) v Bird [2021] VSC 850, [81]. Subsequently cited by O’Meara J in Double v The Salvation Army (Victoria) Property Trust [2023] VSC 452, [77].

I note that whilst Leann and Ms Stuart gave evidence as to the student abuse, neither gave evidence as to the plaintiff reporting the Frith abuse to them. I also draw no inference from this.

Mr Walker was not called to give evidence. As a person whom the plaintiff claimed he had mentioned the Frith abuse to, within approximately one year of the incident occurring, Mr Walker could have been expected to provide a contemporaneous account of what the plaintiff told him at that time. Even if such an account lacked any substantive detail, and was merely evidence of the plaintiff telling Mr Walker that something ‘suss’ or ‘weird’ had occurred with Br Frith, the proximity in time of such a report to the alleged abuse would be such that it had the potential to be probative, of whether or not the Frith abuse occurred. The plaintiff did not adduce any evidence to explain why Mr Walker was not called to give evidence. Whilst I am not permitted to speculate as to what Mr Walker would have said, I can and do infer from this that if Mr Walker had been called, his evidence would not have assisted the plaintiff.[20]
[20]Jones v Dunkel (1959) 101 CLR 298, 320-1 (Windeyer J).

Br Frith vehemently denied the Frith abuse. Just as I considered the plaintiff to be credible in his account of the Frith abuse, I considered Br Frith to be genuinely incensed at the allegations made against him, and credible in his denial of what the plaintiff alleged.

It is difficult to reconcile the two competing accounts. Save for my reservation regarding the use of the stethoscope, it is effectively word against word, with both accounts appearing credible.

In closing submissions, the plaintiff referred to Br Frith’s personal circumstances, and in particular Br Frith’s evidence that he had suffered a breakdown, as well as anxiety and panic attacks whilst at the College. It was put that this offered an explanation for his behaviour. Br Frith said that this occurred because he worked long hours, and was on call continuously, including weekends. Save to note there was no evidence as to whether the breakdown, as described by Br Frith, was proximate to the time of the alleged Frith abuse, I am not persuaded that Br Frith’s mental health issues, and other circumstances, make it more likely that the Frith abuse occurred.

In the plaintiff’s closing submissions, reference was made to Br Frith’s acknowledgment in cross-examination that some students from the College and another school had made complaints about him. There was no evidence as to the identity of the complainants.[21] It is impermissible for me to speculate as to what these complaints may have been about.
[21]On 3 September 2024, I ruled as inadmissible a document which had been discovered by the defendant which recorded a list of complaints made against Br Frith. The document contained no detail as to the particulars of the complaints, nor the names of the complainants.

Br Frith acknowledged that he was aware Mr Pearce and another student at the College had both brought civil claims against the defendant alleging that he had sexually abused them, and that they had been paid compensation by the defendant.[22] However, without evidence before me as to this other student’s allegations, and without it forming part of the tendency evidence, I have had no regard to this evidence in determining whether or not the Frith abuse occurred.
[22]My conclusions in relation to Mr Pearce’s evidence are at paragraph [178] below.

The plaintiff also sought to rely upon Br Frith’s acknowledgement that he had faced 23 charges of unlawful sexual contact with a child, in relation to seven complainants. I note that, in relation to these charges, two complainants had identified Br Frith as having strapped them in the laundry, which was accepted as a case of mistaken identity. Three other complainants were found to have colluded in their evidence. Ultimately the trial judge directed the jury to acquit Br Frith in relation to 10 of the 23 charges. The jury delivered not guilty verdicts in relation to nine of the remaining charges, and were hung in respect of three, which were re-tried. At the re-trial, a jury acquitted Br Frith of one charge, and the remaining two were permanently stayed.

[52](2007) 230 CLR 22 (‘Montgomery’).

[53]Ibid 29 [9]. See also Pafburn Pty Ltd v The Owners – Strata Plan 84674 [2024] HCA 49.

In DP, the majority of the Court affirmed the non-delegable duty as a duty to ‘ensure that the duty is carried out’[54] or to ‘procur[e] the careful performance of work [assigned] to others.’[55]
[54]DP (n 5), [36], citing Lepore (n 46), 565 [144].
[55]Ibid, citing Woodland v Swimming Teachers Association [2014] AC 537, 573 [5].

As these decisions demonstrate, liability for breach of a non-delegable duty arises when the person to whom a task or function has been delegated, fails to take reasonable care. The defendant delegated its responsibility of caring for the plaintiff to Fr Fyfe, and the staff members at the College. In doing so, the defendant was still obliged to ensure that reasonable care was taken by those delegates.

For the reasons given in respect of the plaintiff’s negligence claim, I am not satisfied that Fr Fyfe, in the performance of his role as rector of the College, failed to take reasonable care to protect the plaintiff against sexual assault by other boarders. The plaintiff submitted that Fr Fyfe should have ensured ‘vigilance and proper systems’. However the plaintiff did not adduce evidence as to what this involved at a reasonable and practical level, nor how it would have prevented the student abuse.

The same can be said in respect of other staff members to whom care of the plaintiff was delegated whilst he was a boarder, that being his discipline master, teachers and brothers at the College. The evidence does not support a finding that any act or omission of these staff members was a cause of the student abuse. The further amended statement of claim contains particulars as to Br Mulverhill’s response to the physical assault of the plaintiff by Student 3, alleging that Br Mulverhill ‘simply rebuked’ the offending student. Whether this constituted an act or omission by Br Mulverhill, it occurred after the last incident of the student abuse, and therefore cannot be causative of it. The further amended statement of claim does not otherwise contain allegations of acts or omissions by any other of the defendant’s delegates, which are said to constitute a failure to exercise reasonable care relevant to the student abuse.

For those reasons, the plaintiff has failed to satisfy me that the defendant breached its non-delegable duty in respect of the student abuse.

In view of the above, the plaintiff’s claim that the defendant is liable for the student abuse must be dismissed.

Whether the College is liable for the Mamo abuse
Negligence
Parties’ submissions

The plaintiff alleged that there was a not insignificant risk that Mr Mamo would abuse students, including the plaintiff. The plaintiff submitted that the defendant breached its duty of care to him, as it took no steps to prevent this abuse occurring.

The plaintiff’s particulars of the defendant’s alleged breaches included its failure to develop and employ an effective system of supervision and monitoring of brothers, including Mr Mamo, who were engaged in the care of minors. Further, the plaintiff pleaded that the defendant failed to place any restrictions or conditions on Mr Mamo’s contact with minors.

In closing submissions, the plaintiff relied upon the evidence of Mr Mahar and Mr Schack, and submitted that the defendant did not take steps to guard against further sexual abuse of students by staff at the College despite knowing that this had previously occurred. The plaintiff also submitted that the defendant failed to introduce policies or educate staff about sexual abuse. In addition the plaintiff alleged that the defendant failed to tell students to report sexual abuse, or to assure students that their complaints would be taken seriously and acted upon. Finally, the plaintiff submitted that the defendant allowed a culture of severe violence at the College, which discouraged students from reporting abuse due to their fear of physical punishment.

The plaintiff sought to rely upon two letters sent to Mr Schack by representatives of the defendant (the Schack apology letters). The first letter, dated 22 February 1994, from the defendant’s then provincial, Fr Brian Gallagher, contained an apology to Mr Schack for the ‘sexual and other abuse’ he suffered at the College. The second letter, dated 5 September 2022, from the defendant’s then provincial, Fr Chris McPhee, offered a further apology in respect of the harm and trauma Br Morgan caused Mr Schack. In this letter, Fr McPhee stated:

It was our responsibility to prove you with a safe, supporting learning environment and we failed to do this.

The plaintiff submitted the Schack apology letters were evidence of admissions by the defendant pursuant to s 87 of the Evidence Act. It was submitted that the provincials were authorised to make the admissions on behalf of the defendant, and that the admissions were capable of rationally affecting the assessment of the probability of facts that tended to establish liability against the defendant.[56]
[56]Citing O’Connor v Comensoli [2022] VSC 313, [112] (‘O’Connor’).

The plaintiff also relied upon Fr Fyfe’s acceptance of a proposition put to him in cross-examination, that if he had known that there had previously been sexual abuse of students at the College by a brother, he would have ‘taken steps, generally, to protect any further abuse of children by anyone at the [College]’. The plaintiff submitted that this concession by Fr Fyfe evidenced its failure to take reasonable steps in response to the College’s history of sexual abuse.

The defendant denied it was liable for the Mamo abuse. In doing so, it denied that it either knew or ought to have known of the risk that Mr Mamo would abuse the plaintiff. The defendant submitted that the plaintiff had failed to establish the defendant knew of students at the College having been sexually abused by other brothers prior to the Mamo abuse. In respect of Mr Mamo, there was no evidence the defendant had knowledge of Mr Mamo’s abuse of students, prior to Fr Fyfe being informed of this in approximately September or October 1977. Further, the defendant submitted that it could not reasonably be expected to have known of Mr Mamo’s abuse of students at the College, including the plaintiff, as Mr Mamo was not authorised to punish students. The defendant relied upon Fr Fyfe’s evidence that only the rector, teachers within their classes, and discipline masters were authorised to punish students. When questioned as to whether students being called over the PA to attend the laundry ought to have led to Mr Mamo’s conduct being detected, the defendant submitted that this could be reconciled with evidence that students were required to attend the laundry to collect their own items.

In the event I was satisfied that the risk to the plaintiff of sexual abuse by Mr Mamo was reasonably foreseeable, then the defendant submitted it had not breached its duty, as its supervision and monitoring of Mr Mamo was reasonable. As noted previously, the defendant denied that there was a culture of severe violence at the College which discouraged the reporting of abuse. The defendant contested the plaintiff’s submission that students did not report abuse to staff because none were approachable. The defendant highlighted Mr Pearce’s evidence that he had taken up the opportunity to attend upon the rector for punishment, rather than receive the strap from Mr Mamo. It was put that this evidence was inconsistent with a claim that students were too scared to speak up for themselves in respect of Mr Mamo. In the defendant’s submission, that a group of students had ultimately reported Mr Mamo to Br Frith was further evidence of students feeling able to report incidents of abuse to College staff.

In relation to the Schack apology letters, the defendant submitted that these were apologies which did not constitute admissions of liability, pursuant to s 14J of the Wrongs Act. Further, Br Morgan’s abuse of Mr Schack had been at a different time to the Mamo abuse, and that the contents of the Schack apology letters was too general to be of any probative value as to whether the defendant was liable for the Mamo abuse.

Analysis

The parties did not agree as to the relevant risk against which the defendant allegedly failed to exercise reasonable care in relation to the Mamo abuse. The plaintiff submitted that it was the risk of abuse to the plaintiff by staff members. The defendant submitted that it was risk of sexual abuse to the plaintiff by Mr Mamo.

The indecent nature of the Mamo abuse involved strapping the plaintiff’s bare buttocks, and the plaintiff’s perception of this was that it was a sexual act by Mr Mamo. The identification of the risk, whilst not needing to take into account the specific circumstances of the abuse, ought to reflect the general nature of the harm suffered, so as to determine what reasonable response was required to it. Therefore in determining whether the defendant was negligent for the Mamo abuse, I am satisfied that the relevant risk was sexual abuse to the plaintiff, by staff of the College, including Mr Mamo.

The plaintiff has failed to satisfy me that the defendant had actual knowledge of sexual abuse by other brothers at the College prior to the Mamo abuse. Whilst I am satisfied that Mr Schack informed Fr Prentice about the initial treatment Br Morgan provided him in the infirmary, Mr Schack did not tell Fr Prentice that he subsequently ejaculated, or that Br Morgan hugged him in the bath. Fr Prentice is deceased. Whilst Fr Prentice’s questioning of Mr Schack conveyed a degree of suspicion regarding Br Morgan’s interactions with students, the nature of the student concerns which brought about Fr Prentice’s enquiry, are unknown. On the evidence before me, I am not satisfied that Fr Prentice knew or ought to have known that Br Morgan had sexually abused Mr Schack, or any other students.

Fr Fyfe said that whilst rector, he was never informed by Fr Prentice that Br Morgan had sexually abused a student. I accept Fr Fyfe’s evidence on this.

Mr Mahar’s evidence was that he had been sexually abused by Br Morgan. However, this abuse was not reported to the defendant at the time.

There is also no evidence that the defendant knew that Mr Mamo had sexually abuses students at the College prior to the brothers reporting this to Fr Fyfe. Fr Fyfe said this occurred in September or October 1977 and he sent Mr Mamo away from the College on the same day, but that he understood Mr Mamo was permitted to return to the College sometime after he ceased as rector. In the Mamo hearsay document, it refers to Mr Mamo being at the College from 1971 to 1978. However, some of the admitted charges in the tendency evidence refer to abuse of students at the College in 1980, and possibly as late as 1981. Br Frith believed that students at the College told him what Mr Mamo was doing to them in 1980.

The periods of time in which Mr Mamo was at the College are unclear. Irrespective, on any of the plausible timelines, any reports regarding Mr Mamo’s conduct were received by the defendant after the Mamo abuse. The plaintiff has failed to satisfy me that the defendant knew that Mr Mamo had been sexually abusing students at the College, prior to the Mamo abuse. What the defendant discovered about Mr Mamo in 1994 (and beyond) is irrelevant to my assessment of what the defendant knew at the relevant time.

Given I am not satisfied that the defendant had actual knowledge of brothers, including Mr Mamo, previously sexually abusing students, I must next consider whether the defendant ought to have known this was a foreseeable and not insignificant risk.

Turning first to whether the defendant ought to have foreseen a risk that Mr Mamo would sexually abuse the plaintiff, I am not satisfied that the failure of students to report Mr Mamo’s conduct to the defendant at an earlier time was a consequence of there being a culture of severe violence at the College. As I have noted previously, I do not accept this to be a fair categorisation of life at the College at the relevant time. Even if the students feared harsh discipline from some staff members, there were other religious and lay staff of both genders, whom the students could otherwise report to.

In determining whether the defendant ought to have reasonably foreseen the risk of Mr Mamo sexually abusing the plaintiff, I have also considered the evidence as to how the students would come to be punished by Mr Mamo. The students would generally be taken to the laundry at the time they were caught by Mr Mamo, or would be told by Mr Mamo to attend at a particular time. There was no evidence that any staff witnessed Mr Mamo taking students to the laundry, such as to raise any suspicions regarding his conduct. However, I accept that on occasion, students would be called by Mr Mamo on the PA to attend the laundry. Notwithstanding that Fr Fyfe and Br Frith could not recall this happening, I accept the evidence of the plaintiff and Mr Pearce that they heard this sometimes. The plaintiff could recall hearing this when in the locker room, and Mr Pearce could recall an occasion when he heard this in the study hall.

However, I am not satisfied that students being called to the laundry over the PA system was an occurrence which ought to have put the defendant on notice of the not insignificant risk that students would be sexually abused there by Mr Mamo. There was a legitimate reason for students to attend the laundry, being to collect their cleaned items. Mr Pearce’s evidence as to what the student reported after being called to the laundry from the study hall is consistent with this. Mr Pearce’s evidence that the student said there had been a problem with their laundry.

As noted above, I am satisfied the identification of the risk of harm to the plaintiff was broader than just Mr Mamo, and included a class of persons to whom Mr Mamo belonged, namely brothers at the College. For the reasons to follow, the plaintiff has also failed to satisfy me that the defendant ought to have known there was a not insignificant risk that a brother would sexually abuse the plaintiff.

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.

Fr Fyfe said that as rector of the College, he was not aware of the risk of child sexual abuse, and that it was not a ‘burning issue’. Fr Fyfe said:

I might've been naïve in this, not - not being aware of it. I mean, it - it's such a different world today from what it was then.

Fr Fyfe said that unlike now, in the late 1960s, allegations of child sexual abuse in other dioceses in Australia were not talked about.

Fr Fyfe’s statement that if he had known a brother had previously abused a student at the College, he would have taken steps to protect against any further abuse of children, was important evidence. It is a positive assertion he did not know of prior abuse. It is also an acknowledgement by Fr Fyfe that he would have taken steps if he had knowledge of the risk created by this. As he did not know of any prior abuse, there was no foreseeable risk which he could reasonably have been expected to have taken precautionary steps in response to.

Br Frith gave evidence that in the 1970s he was not aware that a male working in a boys boarding school as a nurse, was of itself, a risk factor. Br Frith said that he did not become aware that being left alone with boys in an infirmary was a dangerous situation until the accusations came out almost 30 to 40 years later.

As observed at [215], 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.

Pursuant to s 48(1) of the Wrongs Act, a defendant is not negligent in failing to take precautions against a risk of harm, unless that risk was foreseeable, and not insignificant. For the reasons given, the plaintiff has failed to satisfy me that the risk of sexual abuse by a brother at the College, was foreseeable by the defendant prior to the Mamo abuse. I therefore dismiss the plaintiff’s claim that the defendant’s negligence was a cause of the Mamo abuse.

In so deciding, I have given no weight to the Schack apology letters. The apology to Mr Schack in 1994, for events which occurred in 1967, does not constitute an admission of liability in respect of the plaintiff’s proceeding. Further, the acceptance by the defendant in 2022, that it had failed to provide a safe, supportive learning environment to Mr Schack, is not probative of whether the defendant, in the context of what was reasonably expected of it in 1976-1977, ought to have foreseen the risk of sexual abuse of its students.

Vicarious liability

On 13 November 2024, after evidence in this proceeding had closed but prior to final oral submissions, the High Court handed down judgment in DP. In that judgment, the majority of the Court held that the common law boundaries of vicarious liability should not be expanded beyond a relationship of employment to one that is ‘akin to employment.’[57] Put simply, in the absence of an employment relationship, a defendant cannot be vicariously liable for the acts of another.
[57]DP (n 5), [47] (Gageler CJ, Gordon, Edelman, Steward and Beech-Jones JJ, Jagot J agreeing at [240]-[251]).

At final oral submissions, the plaintiff was asked whether he would withdraw his claim relating to vicarious liability in light of the High Court’s decision. The plaintiff did not do so, as it was submitted that Mr Mamo was effectively an employee of the defendant.[58]
[58]The same submission was made in respect of Br Frith, however it has been unnecessary for me to consider this in respect of Br Frith, give my conclusion as to the occurrence of the Frith abuse.

In advancing this submission, plaintiff’s counsel acknowledged the decision of Keogh J in O’Connor v Comensoli.[59] In that judgment, his Honour found that the Archbishop of the Catholic Archdiocese of Melbourne was vicariously liable for sexual abuse perpetrated by a priest in the Archdiocese. In his analysis, his Honour found that priests were in a relationship with the Archdiocese which was akin to, but not, employment.[60] In relation to the existence of an employment relationship, his Honour stated:

An intention to create a legally binding relationship is a necessary condition to a finding of employment. In the absence of there being a contract of employment, O’Connor cannot establish that Father Connellan and Gannon were employed by the Archdiocese simply by pointing to features of the arrangements between those parties that would otherwise be consistent with an employment relationship.[61]

[59]O’Connor (n 56). I note that his Honour’s decision was subject to appeal, but not in relation to the issue of vicarious liability. This finding on vicarious liability was determined prior to DP (n 5).

[60]Ibid [309], [355].

[61]Ibid [305].

The plaintiff submitted that the circumstances in O’Connor were distinguishable from the present proceeding, and that Mr Mamo could be categorised as an employee of the defendant by reason of his placement at the College with a range of duties, his description as staff in the College annuals, and his relationship with the College being subject to direction of the rector. On this basis, it was submitted that it was still open for the defendant to be held vicariously liable for the Mamo abuse.

There is no basis for me to find that Mr Mamo was an employee of the defendant. I do not consider Mr Mamo’s name being listed as staff in the College annuals as indicative of an intention by the defendant to create an employment relationship with him. The evidence does not support a conclusion that the relationship between Mr Mamo and the defendant involved an intention that the rights, duties and obligations associated with this relationship would be legally enforceable and subject to adjudication of the courts.

I see no reason to depart from the reasoning in O’Connor that, in the absence of a contract of employment, the plaintiff cannot establish that Mr Mamo was employed by the defendant. I therefore dismiss the plaintiff’s claim that the defendant is vicariously liable for the Mamo abuse.

Non-delegable duty

In the further submissions advanced following the close of oral submissions, noted at paragraph [264] above, the plaintiff also submitted that the Court should find the defendant liable for the Mamo abuse as if it were vicariously liable, pursuant to s 61 of the Wrongs Act.[62]
[62]These written submissions were not signed by the plaintiff’s counsel.

Section 61 of the Wrongs Act states:

61 Liability based on non-delegable duty
(1)The extent of liability in tort of a person (the defendant) for breach of a non-delegable duty to ensure that reasonable care is taken by a person in the carrying out of any work or task delegated or otherwise entrusted to the person by the defendant is to be determined as if the defendant were vicariously liable for the negligence of the person in connection with the performance of the work or task.
(2)This section applies to a claim for damages in tort whether or not it is a claim for damages resulting from negligence, despite anything to the contrary in section 44.

The plaintiff submitted that s 61 ‘applies the non-delegable duty to [the Mamo abuse]’. On this basis, it was put that the defendant was to be treated as vicariously liable for the Mamo abuse, as Mr Mamo was its delegate, and noting there was no barrier at common law for a defendant to be held vicariously liable for an intentional assault.

In reply, the defendant submitted that the plaintiff’s proposed interpretation of s 61 was untenable, as it would effectively render the decision of DP nugatory. The defendant additionally submitted that a plain reading of s 61 demonstrated a threshold requirement of negligence on behalf of another, in connection with the performance of the work or task. The defendant submitted that here, in the absence of negligence on behalf of its delegate, and as the Mamo abuse did not occur in performance of any delegated work or task, s 61 did not apply.

Section 61 is contained within Part X of the Wrongs Act, which was inserted by s 3 of the Wrongs and Other Acts (Law of Negligence) Act 2003, the final of three tranches of legislative response by the Victorian State government to the Final Report of the 2002 Review of the Law of Negligence,[63] commonly referred to as the Ipp Report.[64] Section 61 has not yet received ‘significant judicial consideration’ in Victoria.[65] In New South Wales, an equivalent provision, s 5Q of the Civil Liability Act 2002 (NSW), was considered by the Court of Appeal in the matter of Galea v Bagtrans & Ors.[66] In that case, the plaintiff suffered an injury from a defective truck seat. The plaintiff was employed by a labour hire agency, and was hired out to work for the second defendant as a truck driver. On appeal, the Court held both defendants liable for the plaintiff’s injury, with a finding that the plaintiff’s employer breached its non-delegable duty. Hodgson JA (with Allsop P and Macfarlan JA agreeing) explained the application of s 5Q in the following way:

Where an employer entrusts another with the task of providing the employee with the place and/or system of work, and/or with plant and equipment, the employer will generally be vicariously liable for failure by that other person to exercise reasonable care in those matters.[67]

[63]Review of the Law of Negligence, Final Report, Commonwealth of Australia, September 2002 (‘Ipp Report’).

[64]Victoria, Parliamentary Debates, Legislative Assembly, 30 October 2003, 1421 (John Brumby, Treasurer).

[65]Lombardo v Dermatology and Cosmetic Surgery Services Pty Ltd [2023] VSC 463, [38].

[66][2010] NSWCA 350.

[67]Ibid [65].

There was no dispute between the parties in this proceeding that the defendant owed the plaintiff a non-delegable duty of care. As I have previously noted, and the plaintiff previously accepted, under the common law, liability for breach of a non-delegable duty does not extend to intentional wrongdoing by delegates.[68] As the Mamo 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.
[68]See discussion of Lepore (n 46) at paragraphs [268]-[269] above.

In respect of the Mamo abuse, for the reasons given above, I have made no finding of negligence against the defendant or any of its delegates, most relevantly, Fr Fyfe. The further amended statement of claim contains particulars as to what Fr Fyfe did when he was made aware of Mr Mamo’s abusive conduct in September or October 1977, which included sending Mr Mamo away ‘forthwith’. As I have concluded above, I am satisfied that the Mamo abuse occurred prior to this time. The pleading does not otherwise contain allegations of any acts or omissions by Fr Fyfe, nor any other defendant delegates, which are said to constitute a failure to exercise reasonable care relevant to the Mamo abuse.

On the evidence before me, I am not satisfied that the defendant breached its non-delegable duty in respect of the Mamo abuse. Accordingly, the presumption of vicarious liability under s 61 does not arise, and it is not necessary for me to consider the operation of this section further.

I therefore reject the plaintiff’s submissions that, pursuant to s 61, the defendant be held liable for breach of its non-delegable duty in relation to the Mamo abuse.

5. Conclusion

For the reasons given the plaintiff’s proceeding must be dismissed.

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[2024] VSC 812

20 December 2024