Hartnett v Trustees of the Roman Catholic Church for the Diocese of Wilcannia-Forbes (No 7)

[2025] NSWSC 128

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Hartnett v Trustees of the Roman Catholic Church for the Diocese of Wilcannia-Forbes (No 7) [2025] NSWSC 128

Hearing dates:

5-9, 12-16, 19-20, 22-23 February 2024, 10 December 2024

Date of orders:

28 February 2025

Decision date:

28 February 2025

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

1. Judgment for the first defendant against the plaintiff.

2. The plaintiff to pay the first defendant’s costs.

3. Judgment for the second defendant against the plaintiff.

4. The plaintiff to pay the second defendant’s costs.

5. Judgment for the third defendant against the plaintiff.

6. The plaintiff to pay the third defendant’s costs.

Catchwords:

CIVIL LAW – Tort – intentional torts – child abuse – allegations of historic serious physical abuse

LIMITATION OF ACTIONS – Personal injury – child abuse – whether serious physical abuse has been proven

NEGLIGENCE – Vicarious liability – Employer and employee – whether employed under a contract of service

NEGLIGENCE – Duty of care – Non-delegable duty – Scope of duty owed by a school authority – foreseeability of harm

NEGLIGENCE – Damages – Personal injury damages – aggravated and exemplary damages

EVIDENCE – Weight of evidence – lay witnesses’ evidence

Legislation Cited:

Civil Liability Act 2002 (NSW) Pt 1B, Div 4, Pt 2

Crimes Act 1900 (NSW) s 61A

Education Act 1990 (NSW) ss 35, 47

Education Reform Amendment (School Discipline) Act 1995 (NSW)

Evidence Act 1995 (NSW) s 140

Limitation Act 1969 (NSW) ss 6A, 14, 18A, 52, 63, 68A, Pt 3, Div 3

Cases Cited:

Bird v DP (a pseudonym) (2023) 69 VR 408; [2023] VSCA 66

Bird v DP (2024) 98 ALJR 1349; [2024] HCA 41;

Blatch v Archer (1774) 1 COWP 63; (1774) 98 ER 969

Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34

Bugmy v The Queen (2012) 249 CLR 571; [2013] HCA 37

Cleary v Booth [1893] 1 QB 465

Commonwealth v Introvigne (1982) 150 CLR 258; [1982] HCA 40

Commonwealth v Verwayen (1990) 170 CLR 394; [1990] HCA 39

Commonwealth of Australia v Winston [2024] NSWCA 277

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22;

Gersbach v Gersbach [2018] NSWSC 1685

Gestmin SGPSS.A. v Credit Suisse (UK) Limited [2013] EWHC 3560

Geyer v Redeland Pty Limited [2013] NSWCA 338

GLJ v Trustees of the Roman Catholic Church of the Diocese of Lismore (2023) 414 ALR 635; [2023] HCA 32

Gray v Motor Accident Commission (1998) 196 CLR 1; [1998] HCA 70

Hartnett v Trustees of the Roman Catholic Church for the Diocese of Wilcannia-Forbes (No 3) [2024] NSWSC 126

Hartnett v Trustees of the Roman Catholic Church for the Diocese of Wilcannia-Forbes (No 6) [2024] NSWSC 1609

Herron v McGregory (1986) 6 NSWLR 246

Holloway v McFeeters (1956) 94 CLR 470; [1956] HCA 25

Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8;

Longman v The Queen (1989) 168 CLR 79

Luxton v Vines (1952) 85 CLR 352; [1952] HCA 19

Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20

Mansell v Griffin [1908] 1 KB 160

Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118; [1968] HCA 62

Prince Alfred College Inc v ADC (2016) 258 CLR 134; [2016] HCA 37

Ramsay v Larson (1964) 111 CLR 16

Ryan v Fildes [1938] 3 All ER 517

Seltsam Pty Ltd v Gahleb [2005] NSWCA 208; (2005) 3 DDCR 1

State of NSW v Lepore (2003) 212 CLR 511; [2003] HCA 4

Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 185

Williams v Milotin (1957) 97 CLR 465

Category:

Principal judgment

Parties:

Albert John Hartnett (Plaintiff)
Trustees of the Roman Catholic Church for the Diocese of Wilcannia-Forbes (First Defendant)
Trustees of the Marist Brothers (Second Defendant)
Mercy Support Limited (Third Defendant)

Representation:

Counsel:
E Romaniuk SC with J Masur (Plaintiff)
M Robinson (First Defendant)
M Slattery (Solicitor) (Second Defendant)
D Lloyd SC with D Stretton (Third Defendant)

Solicitors:
North Star Law (Plaintiff)
Dentons Australia (First Defendant)
Carroll & O’Dea Lawyers (Second Defendant)
Mills Oakley (Third Defendant)

File Number(s):

2022/288425

Publication restriction:

Nil.

JUDGMENT

1. By third further amended statement of claim originally filed in court on 19 February 2024 (“3 FASOC”) pursuant to leave granted on 12 February 2024 the plaintiff, Mr Albert Hartnett, claims damages for personal injury suffered as a result of “serious physical abuse” allegedly inflicted on him by two members of school-staff, namely Sister Marietta Green and Mr Alex ‘Sweeney’ Dixon, while he was an infants’ school student at Saint Ignatius Parish School, Bourke (“St Ignatius”) between 1992 and 1994. The plaintiff seeks compensatory, including aggravated, damages and exemplary damages. (3 FASOC was later filed in the registry on 21 February 2024.)

2. The proceedings are brought against three defendants in their capacity as appointed proper defendants under Pt 1B, Div 4 Civil Liability Act 2002 (NSW) (“CLA”). The first defendant, the Trustees of the Roman Catholic Church for the Diocese of Wilcannia-Forbes (“Trustees”) was the school authority for St Ignatius at the relevant time. The second defendant, the Trustees of the Marist Brothers (“Marist Brothers”) appointed certain of its members to work at St Ignatius, including as school principal, under a management agreement with the Trustees. The third defendant, Mercy Support Limited (“Mercy Support”) is the successor organisation to the former unincorporated association referred to as the Congregation of the Sisters of Mercy of Wilcannia-Forbes, an order of nuns which supplied certain of its members, including Sister Green, to teach at St Ignatius.

3. I granted leave for the relevant amendments effected by 3 FASOC, over the objection of the Trustees, in my decision of 12 February 2024: Hartnett v Trustees of the Roman Catholic Church for the Diocese of Wilcannia-Forbes (No 3) [2024] NSWSC 126 (“Hartnett (No 3)”). The plaintiff’s case against each defendant may be broadly summarised by what follows. As against the Trustees, the case is framed in alternatives:

1. negligence consisting of a direct breach of the duty of care owed to the plaintiff expressed in various ways but principally by failing to exercise reasonable care to obviate the risk of physical and psychological injury by failing to institute and maintain a safe and appropriate system for disciplining children in the infants’ school;

2. breach of the non-delegable duty of care to ensure that reasonable care is taken owed by a school authority to pupils under its care: The Commonwealth v Introvigne (1982) 150 CLR 258; [1982] HCA 40. In this regard, the relevant fault is that of the principal from time to time provided by the Marist Brothers failing to institute and maintain the safe system of discipline referred to at (a). In substance, the case is a failure to supervise and exercise appropriate control over the conduct of Sister Green and Sweeney in the discipline they exercised over the infants’ children involving the infliction of physical punishment said to amount to serious physical abuse;

3. vicarious liability for what would have been the liability of Sister Green in inflicting the serious physical abuse had she been sued separately. This aspect of the case arose out of my ruling in Hartnett(No 3) by reference to the subsisting relationship between the Trustees and Sister Green “akin to employment” based upon the decision of the Victorian Court of Appeal in Bird v DP (a pseudonym) (2023) 69 VR 408; [2023] VSCA 66. I interpolate that, as is widely known, this decision has since been overruled by the High Court of Australia. This posited basis of the Trustees’ liability is no longer available: Hartnett v Trustees of the Roman Catholic Church for the Diocese of Wilcannia-Forbes (No 6) [2024] NSWSC 1609; Bird v DP [2024] HCA 41; (2024) 98 ALJR 1349 (“Bird v DP”);

4. vicarious liability for what would have been the liability of Sweeney for inflicting serious physical abuse on the plaintiff. Bird v DP does not apply as the Trustees admit that Sweeney was employed by them under a contract of service.

4. The claim against the Marist Brothers is also formulated in 3 FASOC in negligence by failing to exercise reasonable care to avoid the foreseeable, but not insignificant, risk of the plaintiff suffering harm by physical abuse in their management of the school under an agreement with the Trustees, including by failing to institute and maintain a safe system for disciplining children in the infants’ school. The Marist Brothers are said to owe a similar non-delegable duty as that owed by the Trustees. The claim against the Marist Brothers is also framed in vicarious liability for the negligence of the principal from time to time during the period of the abuse as well as for what would have been the liability of Sister Green and Sweeney.

5. The claim against Mercy Support is couched in almost identical terms to the claim against the Marist Brothers, extending to breach of a non-delegable duty to see that reasonable care was taken and vicarious liability for what would have been the liability of Sister Green had she been sued directly.

6. Given that the common law in Australia does not recognise a duality of vicarious liability, the claims against each of the defendants framed as vicarious liability for Sister Green’s putative liability must be understood as having been brought, as I have said, in the alternative.

7. The defendants deny liability. They each submit that the plaintiff has not established that the alleged abuse occurred and contend that even if the alleged abuse did occur, vicarious liability for Sister Green is not established; there were adequate systems in place for supervision; and the plaintiff has not established that the defendants’ purported ‘systems failure’ was a necessary condition of the alleged harm. It is also put that the conduct of Sister Green, if proved, is deliberate rather than negligent and beyond the scope of a non-delegable duty: State of NSW v Lepore (2003) 212 CLR 511; [2003] HCA 4 (“Lepore”). Moreover, the defendants submit that even accepting the plaintiff’s account at its highest, his allegations do not amount to “serious physical abuse” so as to enliven s 6A Limitation Act 1969 (NSW). They also plead that no liability arises in any event under the “defence” of lawful chastisement.

8. As explained in my judgment, Hartnett (No 3) (at [19] – [22]), each defendant has entered into a sharing agreement with the others in respect of the liability of any of them for the purpose of these proceedings (Exhibit VD-1). In light of this, no defendant had brought and maintained a cross-claim seeking contractual indemnity or statutory contribution or indemnity against another. With one exception, Mr Lloyd SC, who appeared with Mr Stretton for the Third Defendant, effectively conducted the defence on behalf of each and all defendants. The single exception relates to the claim for aggravated and exemplary damages brought against the Trustees for whom Mr Robinson of counsel appeared. Mr Robinson had carriage of that aspect of the Trustee’s defence.

Summation

Limitation Act

9. The plaintiff’s cause of action arose during the period from 1992 to 1994 while he was a pupil in the infants’ school. The Limitation Act, as applicable to the case at hand, imposed a primary limitation period of three years for a cause of action for personal injury founded on “negligence, nuisance and breach of duty” (s 18A), and an ultimate bar of 30 years (s 51). Bearing in mind the nature of the plaintiff’s claim, and the invocation of the doctrine of vicarious liability, it is relevant to bring to mind that for causes of action founded on torts not covered by s 18A, the limitation period is one of six years (s 14(1)(b)). And as the plaintiff was a minor when his putative cause of action is said to have arisen, he was then a person under a disability for the purpose of s 52 and the running of the limitation period was suspended until he attained his majority at the age of eighteen. As the plaintiff was born on 18 September 1986, he turned eighteen on 18 September 2004. The limitation period fixed by s 18A expired on 18 September 2007; and that fixed by s 14, on 18 September 2010. The plaintiff has not sought an extension of either limitation period under Pt 3, Div 3 Limitation Act (T1026.34).

10. Generally speaking, and subject to ss 63 and 68A, the expiration of an applicable limitation period fixed by the Limitation Act is said to bar the remedy and not the right. And the question of statutory bar does not arise as an issue unless and until it is pleaded in bar by the defendant upon which party the legal onus of making good the defence lies: Commonwealth v Verwayen (1990) 170 CLR 394; [1990] HCA 39 at 405 (per Mason CJ); Commonwealth of Australia v Winston [2024] NSWCA 277 at [43] (per Leeming JA). In the present matter each defendant has pleaded the statutory bar (see First Defendant’s Defence to 3FASOC (“1DD”) at [20]; Second Defendant’s Defence to 3FASOC (“2DD”) at [4]; Third Defendant’s Defence to 3 FASOC (“3DD”) at [5] and [5A].

11. Applying these principles, the plaintiff’s claim is maintainable if, and only if, I am satisfied that no limitation period applies by dint of s 6A Limitation Act. Section 6A relevantly provides:

“6A No limitation period for child abuse actions

(1) An action for damages that relates to the death of or personal injury to a person resulting from an act or omission that constitutes child abuse of the person may be brought at any time and is not subject to any limitation period under this Act despite any other provisions of this Act.

(2) In this section, child abuse means any of the following perpetrated against a person when the person is under 18 years of age ---

(a) sexual abuse,

(b) serious physical abuse,

(c) any other abuse (connected abuse) perpetrated in connection with sexual abuse or serious physical abuse of the person (whether or not the connected abuse was perpetrated by the person who perpetrated the sexual abuse or serious physical abuse).

(3) To remove doubt, connected abuse is child abuse only if both the connected abuse and the sexual abuse or serious physical abuse in connection with which it is perpetrated are perpetrated when the person is under 18 years of age.

(4) This section applies regardless of whether the claim for damages is brought in tort, in contract, under statute or otherwise.

[…]”

As I have said, only “serious physical abuse” is in question here.

Decision

12. For the reasons that follow, I have concluded that the plaintiff has not proved on the balance of probabilities he suffered serious physical abuse as alleged. As will become apparent, I accept that the plaintiff was subjected to a degree of physical punishment by Sister Green and Mr Dixon by way of discipline. However as I explain later, I am not satisfied on the evidence before me on the balance of probabilities that such punishment constituted “child abuse” in the sense of serious physical abuse within the meaning of s 6A(2) Limitation Act. As the plaintiff’s cause of action arose between 1992 and 1994, these proceedings are not maintainable under either ss 14 or 18A. As there has been no application for an extension of the limitation period, the plaintiff’s cause of action is extinguished by dint of s 63 (see [9] above).

13. It goes without saying that proof of serious physical abuse is essential to the plaintiff’s success in the matter, notwithstanding the various ways in which the legal cause of action is sought to be formulated. Otherwise, the plaintiff’s claim is statute barred as I have sought to demonstrate. In this regard it matters not whether: the case is characterised as one of trespass to the person giving rise to vicarious liability in the event employment under a contract of service by one or other of the defendants is established, as in the case against Sweeney; negligence consisting of the breach of a duty to take reasonable care; or negligence consisting of breach of a non-delegable duty to ensure that reasonable care is taken. Absent proof of serious physical abuse, all must fail for the same reason.

14. “Serious physical abuse” as it appears in s 6A Limitation Act is not a defined expression. The phrase is not one having a specific technical meaning, nor does it constitute a term of art. The expression is to be understood as having the meaning that ordinary people would understand it to convey. Like all undefined expressions used in a statute, the words are to be understood as having their ordinary meaning in their statutory context and having regard to the purpose of the statute in which they appear. Having regard to the factual conclusion I have reached, it is unnecessary and inappropriate for me to survey the metes and bounds of the expression’s legal meaning. Doubtless the meaning sought to be conveyed by the expression in its ordinary meaning is capable of covering a wide range of misconduct; but misconduct it must be. This much is made clear by the use of the participle “perpetrated” in the chapeau to s 6A(2). The verb “to perpetrate” is almost always used in connection with the execution, commission or performance of a crime, deception or other wrongful conduct. In this statutory context, I am inclined to think the expression, when one has regard to its constituent parts, is concerned with egregious misconduct perpetrated against a child.

15. To ascertain its meaning, the expression must be considered as a whole, but the co-location of “serious” and “abuse” bespeak a high degree of misconduct. Moreover, by the use of the word “physical”, the misconduct must consist of the infliction of injury to the person of the child concerned, other than of a sexual nature, without lawful justification. The juxtapositioning of “sexual abuse” and “serious physical abuse” in the definition strongly suggests one does not include the other although ordinary speech might admit of a significant overlap. Not every assault or battery properly so called would suffice. It must be “serious” signifying an intensity well beyond what is minor or trivial. The requisite intensity can be supplied by either the severity in terms of injurious potential of a blow struck or by the period of time over which there has been ongoing physical abuse of the child. Abuse may cut both ways. It may consist of abuse of lawful authority over the child; or abuse of the child directly in the sense of ill treatment of the child by injurious misconduct towards the person of the child. As with all factual inquiries, questions of degree are doubtless involved.

16. The purpose of the provision is to lift or remove the statutory bar otherwise applicable to an action for damages for death or personal injury, that is to say, civil liability. For this reason, it is not necessary to consider whether misconduct said to constitute the serious physical abuse in a given case constitutes a crime, although experience suggests that it very frequently will. As Garling J pointed out in this context in Gersbach v Gersbach [2018] NSWSC 1685 (“Gersbach”) (at [312]) by reference to Gray v Motor Accident Commission (1998) 196 CLR 1; [1998] HCA 70 (at [16]), in turn referring to Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 (at [149]), the “roots of tort and crime” are “greatly intermingled”.

17. In Gersbach, Garling J pointed out that at common law, a defence of “lawful correction” was available to parents and those in loco parentis charged with criminal assault against a child in their care. His Honour expressed himself in the following terms (at [310]):

“It may be noted that in the relevant time period, the use of reasonable physical force for disciplinary purposes was, under the common law, a defence to any charge of criminal assault. This defence of “lawful correction” provided that parents and those in loco parentis were permitted to physically punish their children, provided that the “correction” or chastisement was reasonable, moderate, administered with a proper instrument, and had a proper relation to the age, physique and mentality of the child: see Police (SA) v G, DM[2016] SASC 39; (2016) 258 A Crim R 75 ; Cleary v Booth[1893] 1 QB 465 ; R v Terry [1955] VLR 114 ; R v Mackie [1973] Crim LR 54 ; R v Griffin (1869) 11 Cox CC 402 .

18. Garling J also pointed out that since 5 December 2001, s 61A Crimes Act 1900 (NSW) provides a defence to a parent or person in loco parentis to a charge arising out of the application of physical force to a child, that the force was provided for the purpose of the punishment of the child “but only if – (b) the application of that physical force was reasonable having regard to the age, health, maturity or other characteristics of the child, the nature of the alleged misbehaviour or other circumstances” (s 61AA(1)(b)). Other qualifications are specified, but as the provision was not in force at the time relevant to these proceedings, it is unnecessary to deal further with the provision.

19. At common law, teachers were regarded as in loco parentis to the pupils under their care. In Cleary v Booth [1893] 1 QB 465, a case referred to by Garling J in Gersbach, the question was whether the headmaster of the school could rely upon the defence of reasonable correction for caning a boy for misconduct occurring off the school campus while on his journey to school. Lawrence and Collins JJ agreed that the defence was available. Collins J said (at 468):

“It is clear law that a father has the right to inflict reasonable personal chastisement on his son. It is equally the law, and it is in accordance with very ancient practice, that he may delegate this right to the schoolmaster. Such a right has always commended itself to the common sense of mankind. It is clear that the relation of master and pupil carries with it the right of reasonable corporal chastisement. As a matter of common sense, how far is this power delegated by the parent to the schoolmaster? … It cannot be that such a duty or power ceases the moment that the pupil leaves school for home; … [I] am glad to be able to say that the principle shows that the authority delegated to the schoolmaster is not limited to the four walls of the school. It is always a question of fact whether the act done was outside the delegated authority.”

20. The decision of Mansell v Griffin [1908] 1 KB 160 demonstrates that at common law, the authority to inflict corporal punishment to correct misbehaviour extended not only to the headmaster, or principal, but also to the teacher for the time being responsible for each class, even if internal arrangements within the school reserved that authority to the headmaster. Phillamore J (with whom Walton J agreed) said (at 167-168):

“… On what does the authority of the teacher rest? My brother and I considered this matter carefully, and I will read a sentence which he has been good enough to compose: ‘the ordinary authority extends not to the headteacher only, but to the responsible teachers who have charge of classes’. In other words, if I may add anything to what he has written, the teacher of a class has the ordinary means of preserving discipline and as between the parent of the child and the teacher it is enough for the teacher to be able to say: ‘the punishment which I administered was moderate; it was not dictated by any bad motive, and it was such as is usual in the school and such as the parent of the child might expect that the child would receive if it did wrong’”.

Walton J, the “brother” referred to, went on to add to the “sentence” (at 169):

“The defendant was the responsible mistress of the class in which the plaintiff was; she was responsible for the teaching and discipline of that class. It seems to me that the authority to administer moderate and reasonable corporal punishment, which any parent who sends a child to school is presumed to give to the authorities of the school, extends to the mistress occupying the position which the defendant occupied in this school at the time when the punishment in question was inflicted”.

21. Ryan v Fildes [1938] 3 All ER 517 (“Ryan v Fildes”) affirms Mansell v Griffin and provides an illustration of the application of unreasonable force. The boy in question, in concert with others, was misbehaving after a recess and causing disruption among his classmates. Tucker J expressed the view that the teacher “was under a duty to preserve discipline and to secure [the pupils’] attention to their work” (at 519). His Lordship also held that the pupil “deserved some punishment and correction” (at 519). In the event the teacher struck the boy on the left side of his head with the open palm of her hand. She delivered one blow only in that manner, but the force was apparently sufficient to rupture the boy’s left ear drum resulting in a considerable degree of deafness in his ear which may have been permanent. Tucker J expressed the applicable principle of law in the following terms (at 521):

“By the law of England, when a parent sends his child to school, he delegates to teachers at the school the power to inflict reasonable and moderate corporal punishment when required, in the same way as he, as a parent, would have power to inflict moderate and reasonable punishment in a proper case, and that he delegates to the teacher the taking of such steps as are necessary to maintain discipline with regard to the child committed to the teacher’s care. I think that is the general position with regard to parents and schoolteachers.

Accordingly, when a parent sends his child to school, I think that the performance of reasonable and moderate punishment is, prima facie, part of the teacher’s duties which he may be called upon to perform from time to time, and I think that, prima facie, when a schoolteacher inflicts corporal punishment, he is doing something as a schoolteacher. He is not going outside his position or duties as schoolteacher, but he is acting within the scope of his employment as a teacher, and if he inflicts greater corporal punishment than the facts require, or if he inflicts corporal punishment in circumstances where it is not permissible, then he renders his master’s liable for the consequences of his act, just in the same way as any other servant, such as a bus driver, who, if he drives his bus at a prohibited speed, or in a manner which he is forbidden to do, is none the less acting within the scope of his employment as a bus driver, and thereby renders his employers liable.

It is perhaps useful to observe that on the facts Tucker J was satisfied that the blow administered by the teacher was of moderate force only. It appears to have been the severity of the resulting injury which took the matter beyond the bounds of the “defence”. I should also observe that Ryan v Fildes was referred to with approval by Gleeson CJ in Lepore, his Honour observing, “chastisement of a pupil is within the course of a teacher’s employment” (at [12]).

22. The common law in Australia has moved away from the idea that the schoolteacher’s duty of care and associated authority to chastise derives from a delegation of the parental obligation and authority to him or her. As McHugh J explained in Lepore (albeit in dissent) (at [139]):

“ … The duty of the school authority does not depend on an implied delegation of authority from the parents of the pupil. In the case of a state authority, the duty arises from exercising governmental power and setting up a system of compulsory education. In the case of a private school authority, it arises from the contractual arrangement between the school and the pupil's parents or guardian. In each case, the duty arises because the school authority has control of the pupil whose immaturity is likely to lead to harm to the pupil unless the authority exercises reasonable care in supervising him or her and because the authority has assumed responsibility for the child's protection.”

His Honour referred to Ramsay v Larson (1964) 111 CLR 16 at pp 25-26 by McTiernan J; and p 37 by Taylor J (with whom Windeyer and Owen JJ agreed). The judgment of Kitto J (p. 27-29) was to the same effect. Kitto J said (at p. 29):

“… a school master’s power of reasonable chastisement exists, at least under a system of compulsory education, not by virtue of a delegation by the parent at all, but by virtue of the nature of the relationship of school master and pupil and the necessity inherent in that relationship of maintaining order in and about the school”.

23. Although I have questioned whether to establish serious physical abuse, the plaintiff is required to prove criminal misconduct on the part of Sister Green, and/or Sweeney, it does seem to follow from these cases, including Lepore, that absent the legal justification, or defence, of “lawful chastisement”, the teacher will have committed an assault and be criminally responsible accordingly. It also seems to me, having considered the argument of counsel to which I make reference below, that the scope of the non-delegable duty of care owed by a school authority to a pupil under its care does not extend to the consequences of the criminal acts of others including the criminal acts of a teacher employed by it under a contract of service: Lepore: Gleeson CJ at [34] and [37] – [38]; Gummow and Hayne JJ at [256], [264] – [266] and [270]; Kirby J at [294] – [296]; contra McHugh J, Gaudron J at [123] – [126]; McHugh J at [136].

24. I have stated my decision at this early stage of this judgment having regard to the High Court of Australia’s decision in Prince Alfred College Inc v ADC (2016) 258 CLR 134; [2016] HCA 37 (“Prince Alfred College”) where the plurality (French CJ, Kiefel, Bell, Keane and Nettle JJ) said that the question of the application of a statute of limitation is “necessarily antecedent to the determination of any issue in the proceedings relating to liability” (at [112]). As I have concluded that the plaintiff’s cause of action is extinguished, the natural course would be to dismiss the proceedings as having been commenced out of time. This is particularly so given the plurality’s criticisms in Prince Alfred College of the trial judge’s decision to determine other issues including liability and damages (on a contingent basis) subsequent to her Honour’s disposal of the limitation issue: see Prince Alfred College at [9], [85], [112] and [118].

The need to make Contingent findings

25. I invited counsel to file brief submissions as to whether, if I were not satisfied the plaintiff had proved serious physical abuse and his claim was thus statute-barred, I should nevertheless proceed to determine other issues on a contingent basis (T1026.45-50). This invitation was taken up only by the third defendant who advocates for the latter approach on the basis that “Prince Alfred College does not stand as authority to the contrary of the Court following the usual course of determining all issues contingently” (Third Defendant’s Note on Contingent Determination of Issues (“3DN”), [2]). The third defendant places reliance on paras [9] and [113] of Prince Alfred College which are in the following terms:

“[9] The Court generally encourages primary judges to deal with all issues, even if one is dispositive, so that any appeal may be final. However, in this case, it was inappropriate for the primary judge to determine the question of liability due to her Honour’s finding that an extension of time should not be granted.

…

[113] … It is a matter of long-standing practice in most trial courts that, where possible, all issues be the subject of adjudication. The practice is based upon the desirability of avoiding the need for a new trial in the event that an appeal on one issue is successful. However, as has been observed, it is no more than a rule of convenience. It is not something which should invariably be done without consideration of the appropriateness of that course of action in the circumstances of the case.”

26. The third defendant contends that the circumstance identified in Prince Alfred College, namely, impoverishment of evidence to such a degree that the defendant could not have a fair trial which made it “inappropriate” for the trial judge to contingently determine liability is absent in the present case for these reasons. First, the defendants do not allege they are unable to receive a fair trial; secondly, all issues can be determined on the evidence admitted at trial; thirdly, all parties were legally represented; and fourthly, the alleged perpetrators are alive and gave evidence (3DN, [4]). The third defendant further argues that the plaintiff’s claim being statute-barred simply means that the proceedings are not “duly constituted” and does not oblige nor prohibit this Court from determining issues of liability and damages (3DN, [5]).

27. I accept the third defendant’s submissions. Given the absence of the circumstance identified in Prince Alfred College, I do not consider any party would suffer prejudice were I to determine all issues on a necessarily contingent basis. In my view, this approach adheres to the observations of the plurality referred to above (at [25]), while also promoting the general principle of finality of litigation. I will accordingly set out the findings I would have made as to liability and damages below. Before doing so, I will explain why I am not persuaded the plaintiff has established that he was subjected to serious physical abuse.

The parties’ cases

Plaintiff’s case

28. As I have said, the plaintiff was born in 1986. At the age of six, he commenced at St Ignatius where he was enrolled in the Infant Aboriginal class in the period between 1992 (kindergarten) and 1994 (Year 2). These classes were taught by Sister Green. The Infant Aboriginal classes were “opt-in” programs specifically designed for Aboriginal children with the objective of addressing Indigenous educational disadvantage through culturally sensitive teaching (Third Defendant’s Closing Submissions (“3DCS”), [38]).

29. In his evidentiary statement of 9 May 2022 (“PS”), the plaintiff says that he did not enjoy school because it was “ruined” for him the moment he met Sister Green (Court Book (“CB”), p 161; PS [11]). He attributes his unhappiness at school to the “cruel” Sister Green who “hit, punished and tortured” him on a daily basis, particularised as follows in 3 FASOC (at [5]):

“(a) Verbal abuse, including calling him a ‘little bastard’;

(b) Physical abuse including:

i. hitting him along his back, bottom, legs and hands with a long wooden ruler.

ii. on one occasion, Sister Green struck the Plaintiff across the back with a ruler with such force that it broke.

iii. on occasions, Sister Green grabbed the Plaintiff by the ears, twisted his ears and dragged him.

iv. on occasions, Sister Green made the Plaintiff stand outside under the sun in high temperatures for a prolonged period of time.

v. taking the plaintiff into a separate room, pulling down his pants unintentionally catching his penis on one occasion, and smacking his naked bottom with a long ruler.”

I note the “ruler” referred to at 3 FASOC (at least in 5(b)(i), (ii) and (iv) above) was a metre-long wooden blackboard ruler which had been given the name, “Montgomery” or “Monty” which belonged to Sister Green (CB, p 398); First Witness Statement of Sister Green (“GS 1”), [25]). The plaintiff alleges that Sister Green used this ruler “most of the days” to hit him on the hands, back and bottom, and recalls a particular instance where Sister Green hit him across the back so hard that the ruler broke (CB, p 161; PS [15]; T108.5-38).

30. The plaintiff says that Sister Green’s abuse was particularly hard on him because he was psychologically vulnerable as, at that point in time, he was still struggling from having witnessed the murder of his aunt one or two years previously (CB, p 161; PS [6], [12]); from having lost a cousin as a result of drowning; and from the deaths of close friends in a motor accident (T69.49-70.6). When he looked for support from Sister Green, she effectively “turned her back” on him by accusing him of telling lies (CB, p 161; PS [13]). It is also the plaintiff’s case that Sister Green’s abuse has had a lifelong negative impact on him, in that: he never learned to read or write because Sister Green’s regular abuse made learning impossible (CB, p 163; PS [29]-[30]); his childhood was marred by embarrassment and anger due to his illiteracy, resulting in him being sent to a Youth Justice Centre at the age of thirteen (CB, p 163; PS [32]); his mental health deteriorated (CB, p 163; PS [33]); he started drinking alcohol at the age of fifteen to cope with Sister Green’s abuse, which at the age of eighteen developed into a prohibited drug addiction (CB, p 163; PS [34], [36]); and he struggled with maintaining relationships because Sister Green ruined his ability to trust and be honest with others (CB, p 163; PS [38]).

31. As to the abuse allegedly perpetrated by Sweeney who was employed as a teacher’s aide (also referred to as Aboriginal Liaison Officer) at St Ignatius, the plaintiff alleges that Mr Dixon physically assaulted him, particularised in the following terms (3 FASOC, [5A]):

“a. On multiple occasions, [Mr Dixon] hit the Plaintiff, twisted his ears and kicked him in the bottom.”

32. The context for this, is that, in response to Sister Green’s treatment of him, the plaintiff, in the company of other boys, became a very frequent truant. It was part of Sweeney’s job to track the boys down and bring them back to school. Sweeney seemed to have a sense of where the truants might be. When he caught up with them, it is the plaintiff’s case that he handled them roughly in the manner alleged.

33. I observe that the plaintiff’s evidentiary statement contains no evidence against Sweeney. In cross-examination, the plaintiff explained this omission on the basis that he “did not think [his solicitors] wanted to know about [Sweeney]” at the time of preparing his statement (T137.34-35). Notwithstanding, he maintained in his oral evidence that he – only in the context of Sweeney retrieving the plaintiff while he was truanting (T81.20-30; T138.26-30) – was subjected to Sweeney’s physical discipline (T90.29-34):

“Q. What would the man identified as Sweeney do by way of coming to look for you and take you back to school?

A. Well, [Sweeney] comes in a car and look for us and when he sees us he gets out and he come over and he’d karate chop me and boot me in the ass and screw my ears and then he’d take me to school and then I’d get in trouble off Sister [Green].”

Defendants’ case

34. The defendants concede that Sweeney used a “soft tap or smack” on the students, including the plaintiff, to discipline students (3DCS, [149(i)]). They also accept that Sister Green – save for one incident in 1989 involving another student – used “light smacking” as a method of discipline with students (but apparently not the plaintiff) until about 1995 (3DCS, [149(b)]; T10.40-45). Her recollection is that the plaintiff was well-behaved and did not require chastisement or correction by physical punishment. What the defendants deny, however, is the proposition that the alleged abuse took place in the manner asserted by the plaintiff as referred to at [28] to [33] above.

35. The defendants’ position was that the plaintiff’s claim ought to be rejected at the factual level in the sense that he has failed to make good the material facts upon which he relies. In short, the defendants contend that the plaintiff’s case rests solely on unreliable childhood memories (3DCS, [148(b)]). They point out that the plaintiff himself and many of his witnesses were aged from five to eight years old when these events took place some 30 years ago. In arguing that the evidence of the plaintiff and his witnesses should be rejected, the defendants place reliance on the frailty of human memory and emphasise the fact that the plaintiff and his witnesses are now attempting to recall events for the first time (3DCS, [148(a)]). The defendants also refer to the absence of any contemporaneous record of the alleged abuse, whether it be the plaintiff’s school records, child welfare records, medical or counselling records, or a relevant history of this alleged abuse being recounted in evidence tendered for sentencing purposes later in life (3DCS, [95]). In fact, the defendants argue that there is no record of any allegation of the alleged abuse before the plaintiff consulted his lawyers for the purpose of commencing these proceedings in 2022.

34. Instead, the defendants urge the Court to make a number of positive findings, inter alia, that at the relevant times St Ignatius did not accept or encourage corporal punishment (3DCS, [149(a)]); Sister Green ceased all forms of corporal punishment by the end of 1995, including the “light smacking” referred to at [34] above (3DCS, [149(e)]); Sister Green at no stage hit the students with a ruler, pointer or other implement (3DCS, [149(g)]); and Sweeney did not karate chop or kick the plaintiff, nor did he forcefully twist his ears (3DCS, [149(j)].

Issue joined

37. The plaintiff joined issue essentially by relying upon the significant body of lay evidence of his classmates, other former students of Sister Green, and parents at the school to argue that he had discharged the onus of proving serious physical abuse.

Evidence

Principles relating to proof

38. A total of 30 lay witnesses comprising seventeen plaintiff’s witnesses and thirteen defendants’ witnesses gave evidence during the hearing. The plaintiff’s witnesses consisted of his classmates at St Ignatius, Sister Green’s former students, and a parent of one of Sister Green’s former students. These witnesses were called to establish the alleged tendency of Sister Green to strike students with a ruler, and of Sweeney to engage in serious physical abuse of children.

39. On the other side of the record, the defendants’ witnesses consisted of former teaching staff at St Ignatius during the relevant period, including the principals and teacher’s aides who worked with Sister Green in the same classroom, and a former student of Sister Green. These witnesses were called to contradict the factual case advanced by the plaintiff. What follows at [48] below is my summary of the salient features of each witness, extracted from their respective written and oral evidence.

40. At the outset, I remind myself that a finding on the balance of probabilities involves a finding of more probable than not; and whether or not I am so satisfied will depend upon a consideration of the whole of the evidence, at least to the extent that I accept it as reliable (Geyer v Redeland Pty Limited [2013] NSWCA 338 at [54] per Beazley P, Ward and Emmett JJA agreeing).

41. While trite, it is worth bringing this fundamental principle to the forefront given the conspicuous dichotomy between the respective parties’ evidence. That is to say, and with great respect, my overall impression of each respective cohort of the witnesses – save for a few exceptions – is that they were so entrenched in their respective “camps” that, very often, when propositions were put in cross-examination that were apparently incompatible with, or detrimental, to their own case theories, they were quick to reject them even when, in my view, appropriate concessions were warranted.

42. By way of example only, some of the teacher’s aides denied Sister Green ever used Montgomery to hit the students’ desks to get their attention (T617.5; T703.5-10; T752.15-30; T921.5-15). One witness went further by denying that Sister Green even had a ruler named Montgomery (T617.35-50). Such evidence is not reliable when one considers Sister Green’s very own evidence that she had in fact owned two rulers including Montgomery (T587.10-13), and she conceded using Montgomery to “whack the desk of [a] child [who] was doing the wrong thing” (T588.3). Similarly, some accounts given by the plaintiff’s witnesses were inconsistent with that of the plaintiff. One witness stated that there were other adults around when Sister Green hit the students with a ruler (T168.4-5), contrary to the plaintiff’s evidence that “[Sister Green] never done it in front of another teacher” (T106.3). Given the passage of around 30 years, the proofs proffered by the plaintiff and the defendants are in a somewhat weathered and degraded state, if I may employ that metaphor. The plaintiff himself conceded that his memory is “not good” (T106.16-23).

43. This does not, however, mean that I am precluded from drawing an inference from “the circumstances that sufficiently appear by evidence or admission” (Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1) to decide the case. In Luxton v Vines (1952) 85 CLR 352; [1952] HCA 19, the plurality (Dixon, Fullagar and Kitto JJ) approving the High Court’s then unreported decision in Bradshaw said (at 358):

“… where direct proof is not available, it is enough if the circumstances appearing in in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture. But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise.”

(citations omitted)

44. Similarly, the plurality (Williams, Webb and Taylor JJ) in Holloway v McFeeters (1956) 94 CLR 470; [1956] HCA 25 endorsed Bradshaw and said (at 480):

“It is clear that it is a mistake to think that because an event is unseen its cause cannot be reasonably inferred. Inferences from actual facts that are proved are just as much part of the evidence as those facts themselves. In a civil cause ‘you need only circumstances raising a more probable inference in favour of what is alleged… where direct proof is not available it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference… All that is necessary is that according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendant’s negligence. By more probable is meant no more than that upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood’.”

(citations omitted)

45. These authorities of course are concerned with the permissible drawing of inferences in civil cases where there is, at best, limited direct evidence. In the case at hand there is ample testimony purporting to be direct evidence of the facts in issue but much of its reliability is questionable. It may be more apposite to refer to Dixon CJ’s observations in Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8, where his Honour said (albeit in dissent) (at 304):

“But in any event, we are not concerned with a choice among rival conjectures. In an action of negligence for death or personal injuries the plaintiff must fail unless he offers evidence supporting some positive inference implying negligence and it must be an inference which arises as an affirmative conclusion from the circumstances proved in evidence and one which they establish to the reasonable satisfaction of a judicial mind.”

The case is concerned with permissible judicial inferential reasoning and focuses on the need for there to be evidence supporting the drawing of an affirmative conclusion to the reasonable satisfaction of a judicial mind; that is, a state of actual persuasion to the applicable legal standard of proof.

46. Given my analysis of the requirements of proof of a case of child abuse consisting of serious physical abuse, s 140(2) Evidence Act 1995 (NSW) is engaged because the case necessarily involves either criminal misconduct or disreputable conduct on the part of a teaching professional toward a student under his or her care. It is well recognised that s 140(2), inter alia, picks up the common law principle formulated in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34. In that case, Dixon J (as the Chief Justice then was) described the application of the civil onus of proof to matters involving serious allegations of the type with which I am concerned in the following terms (pp 361 – 362):

“The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; this has led to attempts to define exactly the certainty required by law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except on criminal cases to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the Tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences from a particular finding our considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency.”

47. I have had regard to the above authorities and considered what inferences may be drawn from the whole of the evidence that I found reliable before reaching my factual conclusions. In doing so, I have disregarded certain parts of evidence which in my judgment were unreliable for the reasons referred to at [41] above.

Plaintiff’s evidence

48. Mr Hartnett adopted his written statement (T18.40) and gave oral evidence over the course of two days. Based on my observations of him, Mr Hartnett did his best to tell the truth to the best of his recollection. It was not my impression that he gave consciously false evidence. Although I also formed the impression the long effluxion of time since these events, his comparatively tender years then and the effects of traumatic incidents in his life adversely affected the reliability of his evidence. Further, at times he struggled to comprehend the questions put to him or give coherent answers, perhaps attributable – adopting the words used in the Plaintiff’s Closing Submissions (“PCS”) and without intending any disrespect – to his “restricted intelligence” (PCS, [20]) or the effect of his medication (T84.15-40).

49. I have already summarised the plaintiff’s factual case at [28]-[33] above, and do not propose to repeat them here. In my view, it is sufficient to record that the substance of his oral evidence generally conformed to his written statement, although there were a considerable number of inconsistencies as I will set them out at [51]-[56] below. The plaintiff otherwise maintained his allegations against Sweeney (see [33] above) and Sister Green (T104.25-32):

“Q. What was the physical abuse that you’re talking about from Sister [Green] to you?

A. She, she used to hit me with a ruler. She used to screw my ears. She took me to the back room; she pulled my pants down and smacked me on my bottom. She used to make me stand outside and not eat for hours, and –”

50. These things occurred at least once a day, sometimes twice a day (T104.39-50).

51. Mr Hartnett’s evidence is not without its problems. The defendants contend that his evidence ought to be rejected due to a significant number of deficiencies said to undermine the reliability of both his written and oral evidence.

52. First, the defendants take issue with the veracity of the plaintiff’s written statement and the circumstances preceding its preparation. In particular, the defendants point out that while the statement indicates “[the plaintiff] cannot read or write” (CB, p 164; PS [45]), his statement is devoid of any attestation that someone had read its contents to him before he signed it. Uncertainty as to the degree of the plaintiff’s input into preparing his statement was amplified in his oral evidence, where he initially indicated he had read the statement without any help (T17.26-32), but later clarified that he had only read “some parts of it” (T38.45-48) relying instead on his partner’s assistance for the parts he did not fully understand (T39.10-14). To complicate things further, he later resiled from this position and gave a series of inconsistent answers that he “didn’t read it at all” (T112.7); that he did not ask anyone to explain the words contained in his statement (T112.9-10); and finally, that “no one [ran] it over” with him before he signed it (T112.35-40). By reference to these matters, the defendants submit that the Court could have no confidence as to the accuracy of Mr Hartnett’s statement (3DCS, [52(a)]).

53. Secondly, the defendants submit that the plaintiff’s withdrawal of the sexual abuse allegation further impugns the veracity of his account. The original iteration of the statement of claim contained an averment of sexual abuse against Sister Green, which pleaded in express terms that Sister Green took the plaintiff into a separate room and not only pulled his pants down to smack his naked bottom, but also pulled his penis. I infer this allegation originated with the plaintiff’s interview with the consultant psychiatrist, Dr Sharon Reutens, of 5 November 2022. The plaintiff told the expert that Sister Green touched him “on the privates” on two occasions, including an instance which she fondled his genitals and made him touch her breasts while calling him a “naughty boy” (CB p 457). He reported to Dr Reutens “the memory keeps coming back, the way she touched me, I can’t get it out of my head” (CB p 461). Somewhat surprisingly then, this allegation was promptly withdrawn on the first day of the hearing (T7.15-25). When asked about this withdrawal in cross-examination, the plaintiff stated that he never told Dr Reutens that Sister Green had fondled his genitals (T53.16-35). Instead, he maintained that the expert had misunderstood his account that Sister Green had accidentally caught his penis while pulling his pants down, and that he had accidentally touched her breasts when he had his hands out (T54.39-44). He made it abundantly clear that “[he] didn’t actually say [he] was sexually abused” (T54.49). The defendants argue that the plaintiff’s change of position cannot simply be explained by way of a misunderstanding because of the high unlikelihood of his legal representatives and Dr Reutens recording and pleading an allegation of criminal conduct without clear instructions to that effect (3DCS, [52(p)]. I will return to the overall veracity of the plaintiff’s evidence later in these reasons.

54. Thirdly, the defendants contend the plaintiff’s evidence as to the genesis of these proceedings is implausible. In cross-examination, Mr Hartnett denied any knowledge that he would be entitled to compensation in the event his claim was successful (T141.27-29; T141.31-34). Rather, he explained that he commenced the proceedings because he “wanted to get it out what Sister [Green] had done to us” (T141.38-40). When asked about the circumstances leading up to his initial contact with his lawyers, Mr Hartnett stated that he was “just sitting at home one day and [he] thought that [he] would go see a lawyer” (T142.47), but later clarified that it was his aunt who informed him that people were “going to court about Sister [Green]” and gave him the lawyers’ number (T143.8-21). I accept the defendants’ contention. In my judgment, it is inherently implausible that any plaintiff involved in a large Supreme Court case for more than two years (where no doubt considerable expense has been incurred and effort would have been expended by the legal representatives) was unaware of his potential entitlement to damages. Mr Hartnett’s account of the genesis of these proceedings is also unsatisfactory. Had it indeed been his intention merely to “get…out” what Sister Green had done, this litigation would have been unnecessary, although I accept an award of damages may also bring vindication. In any event, Mr Hartnett’s stated purpose for bringing these proceedings is inconsistent with the absence of any record of the alleged abuse prior to 2022 (see [35] above).

55. Fourthly, the defendants submit that the best explanation for the absence of any record relating to the alleged abuse – most notably in the plaintiff’s statements to psychologists in custody – is simply that there was no abuse as distinct from lawful chastisement, as I understand the argument (3DCS, [52(s)]). In the period between 2001 and 2019, the plaintiff participated in several interviews with parole officers, psychologists and psychiatrists in relation to his involvement in the criminal justice and custodial system for various offences. In oral evidence, he agreed that he had at the time understood that giving an accurate statement of the “bad things” that had happened in his life was relevant to mitigation of sentences to be passed (T64.35-45; T74.5-8). And indeed, the plaintiff mentioned at least one (or a combination) of the “bad things” (see [30] above) in at least six interviews, including the murder of his aunt, drowning of his cousin, and the death of close friends in a motor vehicle accident (T67.43-68.43; T69.50-70.15; T70.32; T71.21-72.14; T72.30; T73.10). But he did not complain of physical abuse at school once. The plaintiff’s explanation for the omission was that he “didn’t think they’d need to know about school” (T74.9-10). I am not persuaded by the plaintiff’s evidence in this respect. His explanation for the omission is inconsistent with his earlier oral evidence that one of the experts had asked him about the things that had happened to him when he was little (T72.48-50). The complete absence of any reference to the alleged abuse in contemporaneous records despite his claim of the profound and lifelong impact it has had on him casts significant doubt on the reliability of his account (see [30] above). Indeed, he claimed in evidence that the effect of the physical abuse at St Ignatius was even greater than the effect of other traumatic events he had suffered (T135.40-49):

“Q: One of the traumatic things, really bad things that happened to you was what happened to your aunt, true?

A: Yes.

Q: And the drowning?

A: Not really, no.

Q. The death of your close friends in the car accident?

A: It, it, it affected me, but I got – I really got over it. Sister Marietta affected me more than – more than what that did.”

56. Fifthly, the defendants argue that the fundamental facts underpinning the plaintiff’s case are not supported by a consideration of the plaintiff’s changing living arrangements when he was allegedly exposed to the abuse on the one hand, and the teaching arrangements at St Ignatius, on the other.

Attendance at St Ignatius and frequency of the alleged abuse

57. In his written statement, the plaintiff states that he commenced at St Ignatius in 1992 at the age of six and continued there until he was twelve years old (i.e. 1997) (CB, p 161; PS [7]). That much was confirmed during the early phase of the plaintiff’s cross examination when he agreed that he “did all [his] primary schooling at St Ignatius” (T41.20-29). However, it later emerged that as a result of him and his mother moving around frequently, he ceased attending St Ignatius halfway through Year 3 (i.e. mid-1995), attending instead multiple other schools in NSW in Macksville (T45.35), Whalan (T46.3-5), Wilberforce (T46.34-38), Windsor (T46.41) and Richmond (T46.49-T47.6). When asked to explain how he got this detail wrong, the plaintiff stated “I have [a bad memory]. I don’t remember everything.” (T48.36-39). To this end, the defendants submit that the plaintiff’s pleaded duration of the alleged abuse (i.e. 1992 to 1997, 3 FASOC at [5]) could not be true, having particular regard to the plaintiff’s evidence that Sister Green’s abuse occurred only “through Year 1 and 2” (T50.15-18). The plaintiff’s concessions are said to place the alleged abuse in 1993 and 1994. It is common ground that Sister Green was the infants’ teacher of the stream for Indigenous children.

57. The defendants further contend that the alleged frequency of the abuse occurring “on a daily basis” or “every other day” as stated in the plaintiff’s statement (CB pp 161-162; PS [11], [15], [17]) is also implausible. In this respect, the defendants refer to the plaintiff’s oral evidence that he truanted Sister Green’s class “most of the time” (T71.13-19) or “two, three days a week” (T90.18-24). They also refer to the plaintiff’s inconsistent answers that Sister Green hit him “nearly every day” (T104.39-40) or “most of the days” (T108.5-8). As to the latter, I interpolate the plaintiff during cross-examination expressed some confusion as to why he was being asked whether Sister Green punished him every day. This is the context which preceded the plaintiff’s answer that no one had read the statement to him before he signed it (see [52] above) (T112.30-40):

“HIS HONOUR: Are you confused… and you said you’re confused. What are you confused about?

A: I’m confused only – that, that I’m telling that it happened most of the days and he keep saying it happened every day.

HIS HONOUR: What he’s saying is – Mr Lloyd is saying – is that in the statement that has been tendered as your evidence, it says that it happened every day. You’re now telling us quite clearly it was most days, not every day. So what he is asking you now is, well, why didn’t you change your statement to make sure it was accurate? That’s what he is asking.

A: Well, your Honour, no one run it over to me. No one, like, read it all to me.”

Lack of intervention and lack of disclosure

59. As alluded to at [42] above, it is the plaintiff’s case that Sister Green never hit him in front of any other members of the teaching staff. The defendants argue that this evidence also is implausible given the constant presence of teachers’ aides in Sister Green’s class, all of whom denied the alleged abuse. In this regard, the defendants point out that it is inconceivable that none of the teacher’s aides noticed Sister Green’s alleged abuse, bearing in mind the plaintiff’s oral evidence that he and other children would cry when they were hit by Sister Green (T106.45-107.30). The defendants submit that it is illogical to suggest that the teacher’s aides would have allowed Sister Green to carry on abusing her students without reporting it to anyone. I interpolate, I suppose it may be said that if other adults did not see the abuse, it may have been inflicted in private.

60. The plaintiff also says in his written statement that he told his grandmother, who had noticed the red marks on his body, that “Sister [Green] had been beating me” (CB p 162; PS [19]). The plaintiff’s grandmother subsequently visited Sister Green to confront her (CB p 162; PS [19]-[20]; T119.25-32). The plaintiff goes on to say that subsequent to his grandmother’s visit, the abuse not only continued but “got worse” (CB p 162; PS [21]) as Sister Green began to hit him “twice as much” (T120.27-121.4). In cross-examination, the plaintiff said that this was the one time that he had disclosed the alleged abuse to his grandmother (T118.19-20), and that he “never disclosed any of the details of [the] abuse to anyone other than [his] wife due to embarrassment” (CB p 164; PS [41]). This was, of course, much later in life. The defendants argue that the increase in the frequency of the abuse is unconvincing as it would have meant a higher chance of being detected by the teacher’s aides (3DCS, [52(k)]). They further contend that the plaintiff’s ‘embarrassment’ over the abuse is equally implausible as a reason for non-disclosure because, insofar as the alleged abuse took place in front of the class, there was nothing to be discreet about (3DCS, [52(j)]). As I have said, the plaintiff denied the abuse took place in public.

Miscellaneous factual inconsistencies

61. I now turn to the remaining facts disputed by the defendants. The defendants argue that the facts underlying the averments pleaded in 3 FASOC (see [29] above) – namely, the plaintiff being struck with a ruler with such force that it broke; being made to stand under the sun in high temperatures for a prolonged period; being called a “little bastard”; and having his ears twisted by Sister Green – are not corroborated by any reliable evidence, and thus ought to be rejected.

Sister Green’s evidence

62. Sister Green filed two witness statements dated 5 September 2023 and 18 January 2024 (“GS 2”). She also gave oral evidence via AVL, where she adopted her written statements subject to minor amendments (T572.9-14). Based on my observations, Sister Green presented as an honest person. Despite her advanced age of 88 years, if I may put it that way, her ability to recall events was sound, and she was able to pinpoint the dates of her teaching appointments by reference to the notes she had written down in her bible (CB p 407; GS [2]-[3]). She was sincere in her evidence, and appropriately made concessions regarding the events she could not recall.

63. Sister Green was born in 1935. She entered the Sisters of Mercy in 1955 and commenced teaching as a postulant and a novice at Parkes in 1956 (CB p 395; GS 1 [2]-[4]). After teaching at several schools in NSW and South Australia, she began teaching at St Ignatius in 1976, where she remained until her retirement in 2005 (CB p 395; GS 1 [5]). In 1995, she was awarded the Medal of the Order of Australia for her services to education, including to Aboriginal children (CB p 400; GS 1 [38]).

64. Sister Green denied all allegations of physical abuse made by the plaintiff (T596.50-597.1-20). She did, however, accept that she used some form of physical discipline while at St Ignatius (see [34] above), and gave a frank description of the disciplinary methods she used, which involved (CB p 398; GS 1 [25]-[26]):

1. “rousing” on the students by telling them off;

2. maintaining a “pest list” where misbehaving students listed would lose the benefit of privileges (such as toys and play time);

3. drawing a chalk circle in the playground where misbehaving students would be made to stand or sit for some minutes; and

4. giving a “whack” on the bottom (on top of clothes) with her hand to stop children from engaging in physical fights.

all of which were reserved for particularly “serious misbehaviour such as fighting, punching or pinching each other” (CB p 398; GS 1 [26]).

65. In oral evidence, Sister Green distinguished a “whack” from a “smack” in the following terms (T569.30-36):

“Q: Any other form of hitting with your hand, did that happen in your memory?

A: Yes. It’s what I call a whack, flicked.

Q: … What do you mean by a whack? I think you said also a flick?

A: Yeah, well I meant a whack. If there were two children fighting then I’d, I’d whack on the bottom like that to separate them.

Q: How hard would that kind of whack be?

A: Very light. More or less to say ‘Get on your way’.”

And again (T578.1-10; T578.32-35):

“Q: To you, there is a distinction between what you describe as a whack and what you describe as a smack.

A: Yes, a smack is good, hard whack, and a little whack is that.

[…]

Q: The type of smack which in your expression is a good, hard whack.

A: Yes.

Q: It would be intended that the student would feel the force of that smack?

A: I would think so, yes.”

66. Sister Green stated that there was only one instance where she “smacked” a student in her entire teaching career. This involved a St Ignatius pupil by the name of Margaret Dixon (T568.50-569.19), who had run away from Sister Green’s class three times to the nurses’ office (T579.50). Ms Dixon gave evidence before me. Sister Green also accepted that she sometimes used a ruler to hit the students’ desks to gain their attention (see [42] above). However, she denied ever using a ruler or other implement to hit children during the entirety of her career (T569.50).

67. I interpolate, if I had any criticism, it was Sister Green’s – perhaps natural and understandable – tendency to put her best foot forward in explaining her approach to disciplining her students. To this extent, it is my view that she understated somewhat the force with which she applied when “whacking” the children on the bottom. I accept this was not borne of a desire to mislead the Court. However, I was nevertheless left with an impression that more of a “smack” than a “whack” was involved, even though Sister Green preferred the latter expression.

68. Sister Green’s evidence is not without difficulty. The plaintiff points out the malleability (my expression) of Sister Green’s own definition of “serious misbehaviour”. That is, while Sister Green’s written statement indicates that the disciplinary measures referred to at [64] above were reserved for “serious misbehaviour” entailing “fighting, punching or pinching”, she conceded in cross-examination that Ms Margaret Dixon’s precipitating behaviour of running away from her class did not meet her own definition of “serious misbehaviour” (Plaintiff’s Closing Submissions (“PCS”), [38]; T595.31-34; T595.41-46). This was reinforced when Sister Green was cross-examined about being counselled by Brother Hollamby when he was principal over smacking Janine Monaghan, she again changed her definition to include “pushing” to the list of “serious misbehaviour” warranting physical discipline (PCS, [38]; T639.9-11).

Mr Alex Dixon’s evidence (Sweeney)

69. Sweeney was an Aboriginal Liaison Officer (also interchangeably referred to as a teacher’s aide) at St Ignatius in the period between 1980 and 2003 (CB p 356, Statement of Alex Dixon (“AD”) [8]). Part of his role was to round up absent children and bring them to school. He also conducted visits to suspended children at their home. He filed one statement dated 10 July 2023 (Exhibit CB 49, 355 ff) and gave oral evidence. In my view, and with respect, Mr Dixon was one of the witnesses entrenched in the defendants’ “camp” referred to at [41] above. I have evaluated Sweeney’s evidence with some caution.

70. Sweeney said that during his time at the school there was no corporal punishment (T657.20) but he never witnessed “fighting” amongst the infant pupils (T659.31). If there was fighting amongst the older students, he would be asked to “sort them out” (T660.1). The principal may request that the pupil be taken home to his or her parents to be disciplined at home (T660.35). Although he believed the parents might inflict corporal discipline (T660.50). It transpired that he never witnessed this (T673.46). He could only recall this happening on four occasions over the long years he served at the school (T661.22). The plaintiff may have been one of those students (T667.32). But I regarded this evidence as vague and uncertain and certainly not based upon a recollection I considered reliable.

71. Sweeney's role at the school required him to rotate through different classes on a set roster. He never witnessed a teacher physically hitting a pupil (T665.2-T666 .19). He spent 30 minutes to one hour in Sister Green's classroom every morning (T667.5), but never saw her hitting anyone. Nor does he recall children being required to stand in the chalk circle sometimes referred to as the “poison circle” (T666.25).

72. He denied the various specific allegations made against him by the plaintiff and others. In particular, he denied karate chopping children (T667.21 – 22); “kicking” anyone “in the arse” (T671.36 – 37); screwing or twisting anyone’s ear and dragging them along (T671 .40; T671.42 – 44). This denial extended specifically to the plaintiff. He denied distracting the attention of pupils to facilitate knocking their heads together (T671.49 – 672.18). This form of physical discipline was said to have been applied in the playground but none of the defendant’s other lay witnesses were asked whether they observed such a thing (T658.28 – 34).

73. He did admit to smacking the plaintiff on his upper right thigh over his clothing (T674.21). He described it as a “tap” (T668.42 - 32). He also admitted a conviction for a domestic violence incident in November 1993 (T685.28 – 34). Although he could not recall the details, it was not a matter requiring his incarceration (T685.45).

Other lay witnesses

74. As I have already indicated, a large number of witnesses were called on either side of the record. In broad terms, the plaintiff called a number of witnesses who were said to be eye-witnesses to the discipline applied to the plaintiff. Other witnesses fell into the category of tendency evidence giving evidence of an asserted tendency on the part of Sister Green to physically discipline her pupils harshly. On the defendants’ side, a number of teacher’s aides and fellow teachers were called to give evidence that, notwithstanding the opportunity they had to observe Sister Green in the classroom environment, they did not see her discipline children by the application of physical force with an implement or otherwise. Witnesses who did not know the plaintiff personally were called more or less to contradict the plaintiff's tendency witnesses. The defendant also called the principals of the school during the plaintiff's infants’ years, including Brother John O'Brien and Brother Daniel Hollamby. Sister Eileen Quade, who was principal before the plaintiff’s time, was also called.

Mr Charles Edwards

75. Mr Edwards was a contemporary of the plaintiff at school. He commenced in 1991 in kindergarten and remained there until Year 6. I should interpolate all infants’ classes in the Indigenous pupils’ stream were integrated and Sister Green was the teacher who conducted each class with the assistance of teacher’s aides.

76. Mr Edwards gave evidence about the ruler, Montgomery. In his witness statement dated 16 November 2023 (Exhibit CB 13.176 ff) he gave evidence that Sister Green used a large ruler to hit him in on the back of his legs, his hands and forearm. He said Sister Green (and the principal Brother Hollamby) screwed his ears. Sister Green made him stand in the sun in the chalk or “poison” circle as a punishment and he saw other boys being treated in the same way. He said that Sweeney hit him with a karate chop on the side of his neck.

77. In cross-examination, he named seven other pupils, including the plaintiff, as having been disciplined in the same manner (T208.35 – 40). Mr Edwards estimated that he witnessed the plaintiff being hit on as many as a dozen occasions (T209.28).

78. Mr Edwards claimed to have a “really good memory” (T224.32–45) extending to the allegation that Brother Hollamby twisted his ear and dragging him into the principal's office on numerous occasions (T213.8 – 214.11). This allegation was not put to Brother Hollamby when he gave evidence. Mr Edwards said Sister Green used Montgomery to hit students in the presence of teacher’s aides (T2007.18; T2010.16). In particular, he mentioned Ms Phyllis Cubby.

Mr Lesley Leonard

79. Mr Leonard's evidence in chief was contained in his statement of 23 November 2023 (CB 20.198 ff). He was a contemporary of the plaintiff and attended the school between 1992 and 1996. He said that Sister Green was very strict and administered physical punishment which he received many times. He referred to a wooden ruler named “Esmeralda”. His evidence was that he was hit many times with the ruler across the knuckles, the palms of his hands, his buttocks and legs. He said Sister Green twisted his ear and dragged him across the room and, from time to time, he was made to stand with his back to the class with his nose touching the door. He said the hitting of pupils was very frequent.

80. In cross-examination, Mr Leonard remembered other members of staff being in the classroom (T447.25; T448.2). The teacher’s aide or assistant teacher Ms Cubby was present some of the time and other members of staff, including the principal, would come and go. He did say however that Sister Green was normally by herself (T448.25). His evidence was he was hit “many times”, perhaps “nearly every day”. Someone was hit every day (T448.16) Mr Leonard said no other adults were present in the classroom when Sister Green hit the pupils (T450.20).

81. He said that Brother Daniel Hollamby administered physical discipline by smacking or using a cane (T453.10 – T453.30). Again, this was not put to Brother Hollamby. As I will detail below Brother Hollamby as principal maintained a “no corporal punishment” policy which he enforced by counselling teachers if it was brought to his attention that they were administering physical punishment.

Ms Margaret Leonard

82. Ms Leonard was a pupil at St Ignatius between 1991 and 1996. Her evidence in chief was contained in her statement of 23 November 2023 (CB 23.211 ff). Ms Leonard said Sister Green was very strict and disciplined the pupils by means of physical punishment. She referred to a long ruler named Esmeralda. Sister Green used Esmeralda to hit Ms Leonard many times across her back, knuckles and bottom. She was dragged across the classroom by her ponytail and required to stand in the sun in the chalk circle. She recalls being hit by a male Aboriginal worker whose name she did not recall.

83. In cross-examination, Ms Leonard accepted that other members of staff, including Ms Mannix and Ms Cubby were often in the classroom (T423.10 – 15). Other members of staff would come in from time to time. Initially Ms Leonard claimed that no other members of staff were present when Sister Green hit pupils, but she later accepted that Ms Mannix might have been present (T427.46 – T428.10).

84. Ms Leonard said the discipline with the ruler, Esmeralda, occurred “almost every day” (T429 .15) to one or other of the students. She claimed she had been caned frequently by Brother Daniel Hollamby (T432.35) and that Sweeney hit her a “few times very hard on the bottom” (T423.40). Given his evidence and the favourable impression he made on me, I cannot accept her evidence of Brother Hollamby is an accurate recollection.

Pagan Leigh Burford

85. Ms Burford's witness statement is dated 17 November 2023 (CB 25.219 ff). Ms Burford attended St Ignatius from kindergarten to Year 5 and was in the same class as the plaintiff. She referred to a long ruler used by Sister Green but said a green and white striped cane was the implement named Montgomery. She was frequently struck on the hand with Montgomery by Sister Green. She said that Sister Green hit her on the left hand to make her write with her right hand rather than her left. She said that Sister Green had threatened to skin her alive.

86. Ms Burford regarded Sister Green as strict and scary. She said Sister Green was always hitting pupils, screwing their ears and threatening them.

87. She said some children “copped it particularly badly” from Sister Green ([25]). She said that Sister Green broke her one metre ruler over the back of a boy named Patrick Whiteman on one occasion.

88. As a punishment, Ms Burford was required by Sister Green to stand inside the chalk circle. She said sometimes Sister Green made her draw the circle herself. Sister Green screwed her ears often.

89. She said that the teacher’s aide, Ms Pat Mannix, would take her and her sister to Ms Mannix's house during the holidays which she and her sister loved. She said she complained to Ms Mannix about Sister Green’s treatment and Miss Mannix said the discipline was for the pupils’ “own good”.

90. Ms Burford gave evidence that she left St Ignatius in Year 5 after an incident where Sweeney approached her and another pupil to break up a fight they were having over a cricket ball. She said that Sweeney grabbed her by her hair, threw her through the air and she landed very hard on the surface of the oval. She refused to return to St Ignatius. She said Ms Mannix attended her home in an attempt to persuade her to return to school, but she refused, which brought her relationship with Ms Mannix to an end.

91. In cross examination, Ms Burford claimed to have seen Sister Green disciplining most children “by hitting them with a ruler” (T341.18 – 342.12). At least one pupil was hit every day and Sister Green appeared to be trying to hit them as hard as she could (T342.36). She alleged Sister Green’s tendency to hit students was well-known and other teachers used sending a pupil to Sister Green like a threat (T356.20), “I’ll send you to Sister Green”.

Conclusion

210. It appears to be common ground that corporal punishment of students was a permissible means of discipline of students in non-government schools until the enactment of s 47(h) of the Education Act 1990 by the Education Reform Amendment (School Discipline) Act 1995 (NSW) which commenced on 21 December 1996. Section 35(2A) Education Act prohibits corporal punishment in government schools. By s 3, corporal punishment is defined as meaning “the application of physical force in order to punish or correct the student”. Physical force may be applied to prevent personal injury or damage to or destruction of property. In my opinion, the definition of corporal punishment which commenced on 21 December 1996 does not alter the common law in relation to a teacher’s authority to punish as it applied in the early 1990s when the plaintiff was an infants’ pupil at St Ignatius. I remind myself that at common law the relation of school-teacher and pupil carried with it the right of reasonable corporal chastisement: see Cleary v Booth (at [19] above). In Mansell v Griffin (see [20] above), the formulation was in terms of “authority to administer moderate and reasonable corporal punishment”. The punishment had to be administered for a lawful purpose and not “by any bad motive”.

211. It is also clear from the evidence of each of the principals of St Ignatius from whom I heard, Sister Quade, Brother O’Brien and Brother Hollamby, that there was a policy against the use of corporal punishment. Although the current statute speaks in terms of “physical force”, as I have said, I have not been favoured with any expert evidence as to the standards applicable in non-government schools at the relevant time. In this regard, I am prepared, as I have said, to adopt Brother Hollamby’s definition of the deliberate infliction of pain. As Ryan v Fildes (at p 523) makes clear, the adoption of such a policy does not derogate from the teacher’s lawful authority of chastisement.

212. Dealing first with Sister Green, I am not of the view that an open palm smack to the bottom of a child over his or her clothing involves the deliberate infliction of pain. Brother Hollamby regarded the example as borderline, but I acknowledge he thought it prudent to counsel Sister Green about the Janine Monaghan incident and Sister Green was self-reproachful about her treatment of Margaret Dixon. The grown-up Ms Dixon herself could not recall the incident. I infer from Sister Green’s reaction to her own conduct that she was as strict with herself as she was with the children and was self-reproachful for what may have been, for her, a loss of control. In any event, that is not the case she is meeting currently.

213. But the question is not whether smacking a child in the way I have described is corporal punishment, the question is whether it constitutes serious physical abuse. I have set out my understanding of the meaning of the statutory expression “serious physical abuse” above at [14] – [22]. It should be borne in mind that other than the evidence of the plaintiff that he was taken into the adjoining room and spanked hard on his naked bottom on one occasion, which I am not satisfied occurred, there is no evidence that Sister Green smacked him in the manner I have found she utilised from time to time to discipline children in her infants’ class. I have rejected his case that he was frequently struck with Montgomery, or another implement as not having been established on the balance of probabilities. He has failed to establish a case that he was subjected to serious physical abuse at the hands of Sister Green.

214. It should be borne in mind that Sister Green regarded the plaintiff as a well-behaved boy. It is implicit from what she said that he was not in need of correction when a pupil in her class. It may be thought strange, given what I have said about the erosion of memory over time that she could recall a single student. However, experienced and long serving teachers often have a good recall of many of the students they have taught over many years or decades. It is quite apparent from the testimony of many of the witnesses who were adults on staff at the school at the time with which I am concerned that they had a clear recollection of many of the former students who gave evidence before me.

215. Were I to assume that, from time to time, Sister Green found it necessary to administer to the plaintiff the type of smack I have found she administered to other pupils under her care, I would regard it as no more than lawful chastisement, being both moderate and reasonable and for a proper purpose. This being so, I repeat, I am not satisfied that the plaintiff has established severe physical abuse at the hands of Sister Green.

216. So far as his claims against each defendant are concerned based on Sister Green’s conduct, however legally categorised, they are statute barred by force of the Limitation Act (see [9]) above). To the extent to which the cause of action is based upon the tort of negligence, it expired on 18 September 2007. Any claim based on trespass to the person expired on 18 September 2010.

217. I turn then to the plaintiff’s claim involving the conduct of Sweeney. As I have said, I am not satisfied that he has proved that Sweeney struck him in any way except for the smack that Sweeney admitted he once delivered to the plaintiff’s upper right thigh over his clothing, not being an allegation the plaintiff makes. I have accepted that upon apprehending truanting boys, logic may suggest a degree of rough handling. A teacher’s aide sent out to retrieve truanting boys may be expected to use reasonable force to bring them back to school. In any event, at common law, authority to use moderate and reasonable force to chastise pupils falls upon members of the teaching staff and not only the principal. Even if this approach is incorrect, the plaintiff has not proved misconduct by Sweeney that in any way amounts to serious physical abuse. His claim so far as it relies upon Sweeney’s misconduct must also fail by virtue of the provisions of the Limitation Act 1969.

218. In due course I will enter judgment for each defendant with costs.

Contingent findings

219. As I have said, I will make contingent findings in relation to other issues that were ventilated before me. As there is a high degree of artificiality in this exercise in the particular circumstances of this case, I propose to deal with each matter succinctly.

Vicarious liability

220. So far as Sister Green is concerned, there is absolutely no evidence that she was employed under a contract of service by any of the defendants. There was nothing about the circumstance of a member of an order of nuns working as a teacher at a Catholic School that suggests by implication or inference any contract of service. By dint of the decision of the High Court of Australia in Bird v the DPP, this means inevitably that none of the defendants would have been vicariously liable for any deliberate act of Sister Green beyond what could be categorised as lawful chastisement, notwithstanding the consideration had she been an employee, the administration of punishment would have been prima facie within the course of her employment: Lepore at [12] (see [22] above).

221. The plaintiff maintains that the third defendant, standing in the place of the order of nuns of which Sister Green is a member would have been vicariously liable for her tort had it been established. In this regard, I was invited to draw a Blatch v Archer inference that “the discharge of [the evidential onus] must be viewed through the power in which the plaintiff has capacity to adduce evidence on that topic relevant to the power of the third defendant to contradict it” (Supplementary Submissions 12 December 2024 [9]). While Blatch v Archer (1774) 1 Cowp 63; (1774) 98 ER 969 concerns a form of permissible inferential reasoning, it does not permit gaps in the evidence to be filled. There must be some evidence capable of supporting an inference that Sister Green was the third defendant’s employee working under a contract of service. Here there was none, and the inference is not available.

222. Sweeney is in a different situation as he was a direct employee of the first defendant. Had I been persuaded that he had inflicted serious physical abuse upon the plaintiff, that case would have been maintainable under s 6A Limitation Act and his conduct, albeit misconduct, would probably have been in the course of his employment and, accordingly, the first defendant would have been liable for the consequences.

Liability for non-delegable duty

223. In my judgment, only the first defendant owed a non-delegable duty to the plaintiff. While the second defendant, under an agreement provided its Brothers to run the school, it did not thereby become a non-government school authority in my judgment. The fact that the third defendant made the Sisters who were its members available to teach falls into the same category. It did not thereby assume a non-delegable duty owed to the plaintiff and his claim would have failed against the second and third defendants on that ground.

224. As I have pointed out, for any claim on behalf of the plaintiff to be maintainable at all it had to be based upon him establishing severe physical abuse at the hands of Sister Green and/or Sweeney. Only such a claim is subject to s 6A Limitation Act. As I pointed out at (at [23] above), Lepore stands firmly in the way of the plaintiff’s success in this regard. The scope of the non-delegable duty of care owed by a school authority to a pupil under its care does not extend to the consequences of the criminal acts of others including the criminal acts of a teacher employed by it under a contract of service.

225. I appreciate that Gaudron and McHugh JJ dissented. McHugh J in particular pointed out that the same case may be framed either in trespass to the person or negligence. However, the answer to this proposition is in my judgment given by Gummow and Hayne JJ (at [270]):

“As Williams v Milotin [(1957) 97 CLR 465 at 470] makes plain, negligently inflicted injury to the person can, in at least some circumstances, be pleaded as trespass to the person, but the intentional infliction of harm cannot be pleaded as negligence. The appellants allege intentional trespasses to the person, not negligence. The appellants’ claims founded on an allegation of a non-delegable duty to ensure that care was taken of them are, therefore, bound to fail.”

226. There may have been a maintainable case against the first defendant based upon breach of its non-delegable duty if it had been proved that one or other of the principals had acquired actual or constructive knowledge of the type of systematic serious physical abuse which, in the plaintiff’s evidence was being perpetrated in Sister Green’s classroom, to which all other members of staff working there were turning a blind eye. Had such a case been proved, the principal would have been bound to act to put a stop to such grievous misconduct, and a failure to do so would have been sheeted home to the first defendant as the school authority as a breach of its duty to ensure that reasonable care was taken. But there is simply no evidence supporting such a case. Indeed the evidence was to the contrary as my analysis of the evidence of each of Sister Quade, Brother O’Brien and Brother Hollamby demonstrates. Indeed Brother Hollamby, when the Janine Monaghan incident came to his attention did act upon the knowledge he thereby acquired and counselled Sister Green. There was no reason to suppose and certainly no evidence to prove that Sister Green would not have heeded the admonishment or counselling of the principal.

227. I have used the expression “reign of terror”. I repeat that I do not mean to be facetious. But that seems to be what the whole body of the plaintiff’s evidence taken together amounts to. I regard it as simply implausible that such a regime was in place and that the other teachers who worked in Sister Green’s classroom, and those who came and went from it on a daily basis, would not have been aware of it nor taken steps to complain about it as a means of putting a stop to it.

228. There is no evidence of negligence on the part of the first and second defendants. There is no evidence that the infliction of serious physical abuse in Sister Green’s classroom was reasonably foreseeable.

Contingent findings on quantum

229. As I have attempted to make clear, the governing fact which determines the outcome of this case is whether the plaintiff has established that he was subjected to serious physical abuse perpetrated by Sister Green and Sweeney. Had he been successful in that regard there could be little doubt that any liability in any of the defendants for that serious physical abuse is a civil liability in respect of an intentional act that is done with intent to cause injury or death within the meaning of s 3B(1)(a) CLA, and the damages payable for the consequences of the defendant’s tort are not governed by the provisions of Pt 2 of that Act, but are at large to be assessed by reference to common law principles. The provisions of Part 1B CLA making special provision for the civil liability of organisations in child abuse cases do not otherwise modify the damages payable.

230. Given that the serious physical abuse issue formed the whole basis of the plaintiff’s claim, notwithstanding aspects of its pleading and presentation focusing upon negligence, it seems pointless to separately assess the damages in accordance with Pt 2 of the Act. It seems to me, notwithstanding the general obligation of a trial judge to express views about all matters in dispute lest there is an appeal and to avoid the misfortune of a re-trial, there is a high degree of artificiality in approaching the present case in that manner.

Factual background

231. The plaintiff was born in 1986. He was aged between six and eight years at the time of the alleged abuse and is now 38 years of age. He is separated from his partner, has never worked and is in receipt of the Disability Support Pension. According to the history recorded by Dr Rosalie Wilcox (Exhibit CB 63.477 ff), his eligibility for the pension related to diagnoses of pulmonary hypertension and cardiomyopathy.

232. As I indicated earlier in these reasons the applicant was born and raised in the far west of New South Wales, mainly in Bourke, but he lived elsewhere from time to time while growing up. He appears to have suffered profound deprivation during his formative years and was exposed to very significant psychological stressors and trauma. Apparently, he first came into contact with the juvenile justice system at the age of eleven and, regrettably, has since been caught up in that system and the criminal justice system as an adult. His schooling was very disrupted, and he is functionally illiterate.

General damages

233. As I have said, at common law, general damages are at large and are to be calculated in accordance with the compensatory principle. That is to say the damages are to put the plaintiff in the position he would have been in had the tort not been committed so far as money can.

234. I have been provided with a number of comparable awards by the plaintiff’s counsel (Written Submissions A.3, [162] – [164]). As I am assessing common law damages, I consider I am bound to disregard that material having regard to the principles established by Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118; [1968] HCA 62. The provisions of s 17A CLA do not apply to this case: s 17A(3); s 3B(1) CLA.

235. Although emphasis has been placed upon the psychological or psychiatric consequences of the alleged serious physical abuse, I bear in mind that had the plaintiff’s case been made good, each of the assaults upon which he relies itself would have sounded in damages even if the physical injury inflicted was transient, given the purpose of vindication of the personal integrity of the plaintiff relevant to the assessment of damages for trespass to the person.

236. There are real complexities in terms of the assessment of the alleged psychiatric injury. Both Dr Reutens and Dr Wilcox are of the opinion that there are a number of comorbidities affecting the plaintiff’s mental health. In Dr Reutens’ view they are (Exhibit CB 62.474): Post-Traumatic Stress Disorder (in partial remission); Schizophrenia; Stimulant Use Disorder (in current remission) and Cannabis Use Disorder. In her oral testimony, Dr Reutens seemed to accept that the plaintiff also suffered from an Antisocial Personality Disorder (APD) (T. 992.1–19).

237. In Dr Wilcox’s opinion (Exhibit CB 63.489), the plaintiff met the diagnostic criteria for PTSD; Schizophrenia; Polysubstance Use Disorder; probable Developmental Disability; Personality Disorder with antisocial and borderline characteristics.

238. Both experts agreed that the PTSD pre-existed the period of the alleged serious physical abuse. In all probability, it related to witnessing the murder of his aunt at a young age and had been perpetuated by other significant childhood stressors such as the drowning of his cousin and the fatal car accident involving his close friends. The real difference between them related to the causal contribution, if any, of the alleged serious physical abuse to the PTSD. It is quite clear that the comorbidities to which I have referred have arisen independently of the alleged serious physical abuse, although Dr Wilcox expressed the opinion that the PTSD may have contributed to the Substance Use Disorder.

239. Both experts received a history from the plaintiff of sexual abuse, as I explained, those allegations were withdrawn at the commencement of the hearing and disavowed by the plaintiff. He regarded the histories as recorded by each of the experts as due to a misunderstanding. The experts were confident that the plaintiff had proffered that history: Dr Reutens at (T. 963.46); Dr Wilcox at (T. 966.17; T. 967.39).

240. The withdrawal of the allegations of sexual abuse reduces the causal potency of the alleged child abuse at school and the extent of any exacerbation (T. 972.50–973.4). Dr Wilcox preferred the language of “exacerbation” and questioned whether the serious physical abuse would have an ongoing effect upon the pre-existing PTSD (Exhibit CB 64.504). Dr Reutens questioned the meaning of the expression “materially contribute”, but expressed the view that the alleged serious physical abuse would have contributed to the plaintiff’s PTSD (also at Exhibit CB 64.504).

241. The experts agreed that the PTSD is not “divisible” and ongoing abuse can have a compounding effect (T. 986.38). Both agreed that the alleged physical abuse, “in the scheme of things”, would have made a “minor contribution” by way of exacerbation to the plaintiff’s PTSD (T. 990.30–991.9).

242. There is no claim for economic loss. If I am wrong about that, the opinion of the experts, although expressed differently, recorded at Exhibit 64 p. 509 is to the same effect, that it is the other very significant issues affecting the plaintiff which make him unemployable rather than the PTSD. Dr Reutens, whose opinion is slightly more favourable to the plaintiff than that of Dr Wilcox said the PTSD “plays a minor role in [the plaintiff’s] capacity for employment because the symptoms are in partial resolution”.

243. The plaintiff does not appear to have received treatment for his PTSD in the past but is receiving appropriate antipsychotic treatment for his Schizophrenia. Dr Wilcox did not regard future treatment as likely, and Dr Reutens suggested ten sessions of treatment with a suitably trained psychologist at the recommended fee of $300 per session.

Assessment

244. I accept the evidence of the experts. In the end, as I understand it, both moved to the common position that the alleged physical abuse made a minor contribution only to the PTSD. In answer to a question of mine, Dr Reutens proffered a percentage contribution of ten percent to fifteen percent, acknowledging that was very artificial. I thought in the end she was more comfortable with a “minor contribution” (T. 991.10). Dr Wilcox agreed. For the purposes of assessment, I will eschew percentages.

244. There is a real question about whether a minor contribution is a material contribution sounding in damages. However, I accept the evidence that there may be an accumulation of stressors having an ongoing effect proffered by Dr Reutens. As I have said, my impression from the concurrent evidence was that each expert had moved to the same position. Obviously, the principles discussed in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20, as explained in Seltsam Pty Ltd v Gahleb [2005] NSWCA 208; (2005) 3 DDCR 1 (at [101] – [103] by Ipp JA) are called into play. I do not propose to take some arithmetical approach to the assessment, rather a broad judgment is called for. Given the myriad health problems that the plaintiff unfortunately labours under, it is difficult to focus upon the PTSD alone which, in any event, seems to be in at least partial remission currently, let alone make due allowance for the consideration that, in all probability, it would have inured at some degree of significance regardless of the alleged serious physical abuse.

245. Given the plaintiff remains a comparatively young man and the long period over which he has been subject to, on my contingent findings, enhanced PTSD because of the albeit minor contribution of the alleged serious physical abuse, and considering that it is likely to continue into the future in probably an attenuated form, I would have assessed general damages referrable to the putative tort of the defendants in the sum of $135,000. Of this, I would have apportioned 50 percent to the past and allowed pre-trial interest at the rate of two percent per annum (this is probably generous during the pandemic years) for a period rounded to 30 years. In accordance with this approach, pre-trial interest would have totalled $40,500. I would have allowed $5,000 for future out of pocket expenses, bearing in mind Dr Reutens’ opinion and making allowance for other contingencies. Total damages would have been assessed in the sum of $180,500.

Aggravated and exemplary damages

247. The plaintiff makes a claim for aggravated and exemplary damages. Somewhat unusually, the claim relates to an aspect of the conduct of the first defendant’s solicitors in their management of the case. In a nutshell, when pressed to state the legitimate forensic purpose for the issue of a subpoena for production to the plaintiff’s solicitors seeking advertising material published by them in Bourke, an employed solicitor under the direction of the partner with the carriage of the matter asserted the documents were necessary to establish that the plaintiff’s account and the account of his tendency witnesses are false, and that they are likely to have colluded with one another to offer false evidence to achieve some benefit. Frankly, these matters could not have risen above mere suspicion.

248. Notwithstanding the consideration that the solicitors produced the documents sought, I must say I accept even for mere suspicion, the ground was shaky and perhaps the stated legitimate forensic purpose was ill-conceived, ill-advised and somewhat intemperate. However, Mr Robinson of counsel who appeared for the first defendant did not raise the matter nor did he seek to cross-examine any witness to suggest there had been any collusion. Mr Lloyd SC who, as I have said, had main carriage of the defence of all of the defendants pursuant to their agreement, disavowed any reliance upon such an argument. Perhaps that should have been the end of it. However, by paragraph 57A and following of 3 FASOC, the plaintiff advanced a claim for aggravated damages on the basis of those assertions and by paragraph 57G and following, a claim for exemplary damages. These entitlements were disputed by the pleadings in paragraphs 18A of the first defendant’s Second Further Amended Defence.

249. It is quite clear that the claims are based on no other ground, and doubtless a great deal of heat was generated between the solicitors over the first defendant’s solicitors voicing their suspicions as founding a legitimate forensic purpose for the subpoena. It is unnecessary for me to say so, but I doubt it was any such thing.

250. However, no form of fraud was ever pleaded or, more importantly, run. No witness was cross-examined to suggest any collusion or other conspiracy. Each of the lay witnesses were sorely tested on the accuracy and reliability of their recall and a robust defence was mounted along the lines of, “this alleged serious physical abuse just did not happen”. With great respect to learned senior and junior counsel for the plaintiff, I fail to see how the ground has been laid for either aggravated or exemplary damages based upon the generation and sending of a single email on 25 September 2023, however regrettable the incident might have been. As Mr Robinson points out in his written submissions, there is no evidence that the plaintiff had the email read to him or if it had come to his attention, the effect it had upon him. Bearing in mind that aggravated damages are compensatory, there is no evidence of any additional or enhanced loss caused by the email of 25 September 2023, and I would have rejected the claim for aggravated damages.

251. Likewise, I would have rejected the claim for exemplary damages. There is simply nothing in the conduct of the first defendant’s solicitors that amounted to anything like contumelious disregard for the plaintiff’s rights or any criminal conduct by any stretch of any professional’s imagination.

252. I repeat, the whole episode is regrettable, but no foundation for exemplary damages has been established by the evidence before me.

Orders

253. My orders are:

1. Judgment for the first defendant against the plaintiff.

2. The plaintiff to pay the first defendant’s costs.

3. Judgment for the second defendant against the plaintiff.

4. The plaintiff to pay the second defendant’s costs.

5. Judgment for the third defendant against the plaintiff.

6. The plaintiff to pay the third defendant’s costs.

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Amendments

06 March 2025 - Amendments:

Case authority Uren v John Fairfax & Sons Pty Ltd citation amended in the judgment cover page.

Case authority reference or pinpoint errors corrected at Paragraphs: [3], [3](c), [7], [16]-[17], [20]-[21], [24].

Typographical errors corrected at Paragraphs: [4], [8], [10], [50], [60], [75], [76], [80], [89], [93], [104], [107], [108], [114], [121], [128]-[129], [131], [134], [136], [140], [150], [152], [155], [188], [191], [198], [200], [211], [217], [220], [228]-[230], [237], [245].

Cross-reference errors corrected at Paragraphs: [49], [59], [61], [66], [206], [210], [220], [224].

Court book reference errors corrected at Paragraphs: [57], [60], [69], [76], [79], [82], [92], [93], [96], [109], [113], [118], [128], [131], [136], [140], [143], [144], [147]-[148], [152], [155], [161], [167], [170], [174], [179], [195], [231], [236]-[237], [240].

Decision last updated: 06 March 2025