MC v Casa Generalizia Della Societa Dei Missionari D'Africa Detti Padri Bianchi (White Fathers)

[2024] NSWSC 1658

Supreme Court

New South Wales

Medium Neutral Citation:

MC v Casa Generalizia Della Societa Dei Missionari D’Africa Detti Padri Bianchi (White Fathers) [2024] NSWSC 1658

Hearing dates:

24 April, 19 December 2024

Date of orders:

20 December 2024

Decision date:

20 December 2024

Jurisdiction:

Common Law

Before:

Weinstein J

Decision:

See [129]

Catchwords:

NEGLIGENCE – duty of care – whether breach of duty of care – historical child sexual abuse – where defendant did not appear – where plaintiff sexually abused by assistant priest in 1970s – where sexual abuse occurred inside church and in private rooms of presbytery – whether risk of harm foreseeable – whether other priests knew or ought to have known

Legislation Cited:

Civil Liability Act 2002 (NSW), ss 5B, 5C, 6D, 6E, 6K, 16, 21

Criminal Procedure Act 1986 (NSW) s 294

Evidence Act 1995 (NSW), ss 60, 140

Uniform Civil Procedure Rules 2005 (NSW), r 29.7

Cases Cited:

Bird v DP (a pseudonym) [2024] HCA 41

SR v Trustees of the De La Salle Brothers [2023] NSWSC 66

SRA of New South Wales v Wiegold (1991) NSWLR 500

Category:

Principal judgment

Parties:

MC (Plaintiff)
Casa Generalizia Della Societa Dei Missionari D’Africa Detti Padri Bianchi (White Fathers)

Representation:

Counsel:
Z Carrigan (Plaintiff)

Solicitors:
Shine Lawyers (Plaintiff)

File Number(s):

2022/198736

Publication restriction:

Non-publication order in respect of the identity of the plaintiff or any information that may tend to identify him.

JUDGMENT

Introduction      

1. The plaintiff, MC, filed a Statement of Claim on 7 July 2022 claiming damages against Casa Generalizia Della Societa Dei Missionari D’Africa Detta Padri Bianchi (“the White Fathers”). He alleges that they are liable for damages, in either negligence or by way of vicarious liability, for the sexual assaults he suffered sustained at the hands of Father Camil Dufort (“Fr Dufort”) in 1973 to 1975 at St Mary’s Church in Erskineville in New South Wales.

2. The matter was marked part-heard pending the High Court’s judgment in Bird v DP (a pseudonym) [2024] HCA 41 (“Bird”). Further submissions were recently heard, and the plaintiff’s claim in vicarious liability was abandoned.

3. The matter falls to be determined pursuant to the provisions of the Civil Liability Act 2002 (NSW) (“CLA”).

4. For the reasons that follow, I am not satisfied that the White Fathers breached a duty of care owed to the plaintiff.

The Defendant did not appear

5. The defendant filed a Notice of Appearance on 3 February 2023. It was represented by solicitors and counsel at that time.

6. An Amended Statement of Claim was filed on 27 July 2023. A Defence to the Amended Statement of Claim was filed on 11 August 2023. A Notice of Intention of Ceasing to Act was filed by the defendant’s solicitors on 3 November 2023. A Notice of Ceasing to Act was filed on 10 November 2023.

7. On 14 December 2023, Garling J made orders, inter alia, granting leave to the plaintiff to file and serve a Further Amended Statement of Claim, that the defendant be served at two email addresses, that the defendant file and serve a Defence to the Further Amended Statement of Claim by 29 January 2024 and that the defendant comply with a subpoena to produce the personal and laicization files of Fr Dufort by 29 January 2024.

8. On 16 February 2024, Garling J directed the plaintiff to serve an expert report by 1 April 2024 and directed that the service of that report be made by registered post to the defendant at Via Aurelia, 269, 000165 in Rome, Italy. The matter was fixed for a final hearing on 24 April 2024.

9. Affidavits of James Hickman sworn on 12 April 2024 and 22 April 2024, which were read in the proceedings, demonstrate that the defendant was notified of the date of the hearing and that all documents (including the evidence) were served on the defendant as directed by Garling J. On the day of the hearing, the matter was called outside the court, but there was no appearance on behalf of the defendant. I was satisfied that the defendant chose to be absent and not to defend the hearing, and so the matter proceeded without a contradictor: see r 29.7 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”).

10. In the circumstances, the plaintiff had to prove his case on the balance of probabilities (taking into account the gravity of the allegations, to which see s 140(2)(c) of the Evidence Act 1995 (NSW) (“Evidence Act”)).

The Pleadings

11. The plaintiff pleaded a case in negligence and in vicarious liability. The latter was recently abandoned.

12. MC alleges that the defendant owed him a duty of care to protect him from foreseeable harm including “the not insignificant risk that he would be sexually abused by those whom the defendant placed in a position of holy authority and influence over children”.

13. The plaintiff alleges the following particulars of breach of duty:-

“The defendant, by its servants and agents failed:

(a) To ensure that those persons charged with the care and supervision of the plaintiff were fit and proper persons to undertake and oversee such care, supervision and treatment of children;

(b) To have in place appropriate safeguards to protect the parishioners from predatory behaviour of its priests;

(c) To ensure that those persons charged with the care and supervision of the plaintiff did not have unfettered and unsupervised access to the plaintiff;

(d) To ensure that the plaintiff remained safe and free from abuse whilst attending the parish and adjoining priest residence;

(e) To provide a mechanism by which fellow priests can report suspicious and/or concerning behaviour of their brother priests;

(f) To provide a mechanism by which abuse of children may be safely reported;

(g) To ensure adequate supervision of the activities that took place within the parish of both priests and parishioners; and

(h) To ensure that the plaintiff remained safe and free from abuse while under the supervision of priests working at the parish.”

14. I do not repeat the pleadings with respect to vicarious liability.

15. In a Defence filed on 11 August 2023, the defendant admits that at all material times it was known as “Casa Generalizia della Societa dei Missionari D’Africa detti Padri Bianchi” and/or The Order of the White Fathers and is properly sued pursuant to s 6K(1) of the CLA.

16. I observe that s 6K(1) of the CLA provides that child abuse proceedings may be commenced against an unincorporated organisation in the name of the organisation or in a name reasonably sufficient to identify the organisation, as if the organisation had legal personality. There is therefore no dispute that the White Fathers is the proper defendant in these proceedings.

17. In its Defence, the White Fathers do not admit or deny all the other paragraphs of the Statement of Claim, so the plaintiff is put to proof on all matters concerning his claim.

Exhibits, Affidavits and Witness Statements

18. The following were exhibited in the proceedings:-

1. The plaintiff’s Updated Evidentiary Statement dated 28 March 2024;

2. Statement of Susan Jefferies dated 2 April 2024;

3. Two reports of Dr Malcolm Foxcroft, both dated 9 December 2019;

4. Supplementary report of Dr Foxcroft dated 15 September 2023;

5. Report of Fr Kevin Dillon AM dated 27 March 2024;

6. A copy of the Certificate of Title for lots 32, 33 and 40 in deposited plan 3546;

7. Letter from Fr Murphy to Cardinal Gilroy dated 1 March 1969;

8. Letter from the Archbishop of Sydney to Fr Murphy dated 6 March 1969;

9. Letter from Fr Murphy to Cardinal Gilroy dated 15 May 1969;

10. Letter from the Archbishop of Sydney to Fr Murphy dated 20 May 1969;

11. Letter from the Archbishop of Sydney to Fr Murphy dated 4 June 1969;

12. Letter from Fr Coolen to Cardinal Gilroy dated 7 June 1969;

13. Letter from Cardinal Gilroy to Fr Coolen dated 20 June 1969;

14. Letter from Fr Donnelly to the Archbishop of Sydney dated 16 July 1969;

15. Letter from the Archbishop of Sydney to Fr Donnelly dated 8 August 1969;

16. Letter from the Archbishop of Sydney to Fr Kuppens dated 24 April 1985;

17. Letter from the Archbishop of Sydney to Fr Kuppens dated 22 January 1985;

18. Letter from Fr Kuppens to the Archbishop of Sydney dated 17 April 1985;

19. Letter from the defendant to the Archbishop of Sydney dated 2 May 1986;

20. Letter from the defendant to Fr Stones dated 24 August 1987;

21. Letter from the Archbishop of Sydney to Fr Stones dated 13 November 1987;

22. Attestation of the defendant dated 20 May 2021;

23. Extracts from the Australian Bureau of Statistics (“ABS”) average weekly wages 1976-1983 report;

24. Extracts from the ABS average weekly wages from 1993 report;

25. ABS average weekly earnings report of May 2003;

26. ABS average weekly earnings report of November 2013; and

27. ABS average weekly earnings report of November 2023.

19. The following affidavits were read:-

1. An affidavit of James Hickman sworn on 12 April 2024;

2. An affidavit of James Hickman sworn on 22 April 2024; and

3. An affidavit of Brianna Wooller sworn on 23 April 2024.

20. The plaintiff’s Updated Evidentiary Statement was adopted by him in the witness box.

21. The Statement of Susan Jeffries, retired nurse, was adopted by her in the witness box.

Evidence

The plaintiff

22. The plaintiff was born in 1965 in Sydney. His father worked for Patrick Stevedores as a wharf labourer on the docks. The plaintiff’s father retired when he was in his early 50s and died in 1998 in his late 50s. The plaintiff's parents separated when he was about 2.5 years old and he remained with his father. His father's uncle, HH, was also living in the house. HH was born in 1931 and also worked for Patrick Stevedores as a wharf labourer on the docks. The plaintiff's father married and moved to Wollongong when the plaintiff was about six years old, and HH became his foster father. When his parents separated, the plaintiff’s sisters and brother remained with his mother. After his parents’ separation, the plaintiff did not see his mother again until 1985 and he has had no contact with her since December 1991. He has recently tried locating her but has been unsuccessful.

23. The plaintiff is the eldest child in a sibship of two. His sister LC was born in 1957. He believes that LC works in the banking industry as a teller or bank manager. He understands that his mother and sister were living in Western Australia in 1985. At about that time, he was ill in hospital and his sister came to NSW to visit him. He kept in contact with her for a few years, but he has not spoken with her since 1991, because of his criminal offending.

24. The plaintiff has two half siblings. His older half-brother WW, born in about 1961, works at or owns a print business. His younger half-sister, KK, born in about 1970, worked in a stockbroking firm. The plaintiff believes that he is the black sheep of his family and the only one with a criminal background. He currently lives in Queensland with his partner, who he has known for about 20 years.

25. From about three years of age, the plaintiff spent time with various family members when HH and his father were working. His father did shift work and had problems with alcohol and violence. When he was about six years of age, HH took over the primary care of the plaintiff. HH is now 92 years of age. As a child, the plaintiff was involved with sports because HH coached the local kids’ rugby league team. He enjoyed playing tennis, football and rugby league and he made some of the representative teams. He had many friends.

26. From about the age of six, the plaintiff spent most of his childhood in Southern Sydney and attended Alexandria Public School, Cleveland Street Boys High School and then Granville Boys High School. He had a good childhood until the time of the abuse (to which see below), and by the time he turned 12 years of age, he was very much affected by it. The plaintiff believes that the abuse led him to misbehave and underperform, and he left school in Year 10 when he was 15 years of age. All of the plaintiff’s siblings and half siblings completed high school. As a child, the plaintiff dreamed of being a scientist or an astronomer. The plaintiff believes that but for the abuse, he would have maintained his employment working fulltime as a wharf labourer. Both HH and the plaintiff's father were hard working, and had a good work ethic.

27. In or about 1973, the plaintiff started attending baptism classes, which were given by a person who he knew as Fr Dufort. The head mistress of Alexandria Public School, Mrs Abdullah, was a devout Catholic and was keen for the plaintiff to be baptised. She agreed to be the plaintiff's godmother. Mr Emerson, the plaintiff’s physical education teacher, agreed to become his godfather. HH thought that the plaintiff should be baptised. Mrs Abdullah put the plaintiff in touch with Fr Dufort. The plaintiff then met with him for baptism classes which he attended, first fortnightly and then weekly, at St Mary's Church in Erskineville Sydney. Whilst attending baptism classes Fr Dufort would be affectionate towards the plaintiff, touching his back, rubbing his arms and legs, and telling him “you'll be okay”. The plaintiff was baptised on 8 November 1973.

28. After his baptism lessons were completed, Fr Dufort invited the plaintiff to attend confessional classes. He attended those classes with Fr Dufort every one to two weeks over approximately two years. Fr Dufort appeared to be caring and took an interest in the plaintiff. The plaintiff was never confirmed, despite attending many confessional classes, as he was only eight years old when he was baptised, and Fr Dufort left St Mary’s Church when he was about ten years old in 1975 (the usual age of confirmation being twelve years old).

29. Over time, what started out as a hand on the shoulder or a hug escalated to sexual assault. The plaintiff was in awe of Fr Dufort. He was a respected priest and was being friendly to him. He trusted him because he was a priest. He had “all the robes on”, and conducted services like the taking of communion. He believed Fr Dufort to be a “holy man”.

30. The sexual assaults perpetrated upon the plaintiff by Fr Dufort included:-

1. kissing him on the lips;

2. forcing the plaintiff to touch his genitals;

3. touching the plaintiff’s genitals;

4. performing oral sex on the plaintiff;

5. forcing the plaintiff to perform oral sex on him;

6. ejaculating in the plaintiff’s mouth;

7. ejaculating in the plaintiff's anus; and

8. anally penetrating the plaintiff.

(“the abuse”)

31. The abuse took place regularly, generally in the afternoon after school, one to two times each week. The abuse always occurred when the plaintiff and Fr Dufort were alone. Fr Dufort would bribe the plaintiff with money and would threaten to send him to a boys’ home if he told anyone about their secret. Fr Dufort would threaten that he would tell welfare and social services that the plaintiff was living with HH, who was not legally approved to be living alone with the plaintiff, and he would tell the plaintiff that he would be removed and taken to a foster home.

32. The abuse occurred within the church on approximately 10 occasions. The abuse inside the church occurred at the back of the church in the pews where it was very dark and within the closet or dressing room where the priests’ robes were hung. The abuse in the church occurred in the afternoon between 4.00pm to 6.00pm. The church would be shut, and it was dark inside.

33. The abuse was also perpetrated in the presbytery attached to the church at least once a week. Fr Dufort would take the plaintiff to the presbytery, and they would enter through the back entrance rather than the front door. There were two side doors of the presbytery, which were accessed through a walkway between the church and the presbytery. The first side door was larger and prettier than the second and led almost immediately to a staircase which went upstairs to what the plaintiff believed was the nicer area of the presbytery. The plaintiff did not go up there. The second side door opened to a small kitchenette located to the left and a solid wall to the right. There was a very elderly priest who would always be in a day bed next to the kitchenette. The plaintiff believes that this person was a retired priest who had dementia and would have been about 80 years old at the time of the abuse.

34. The abuse which occurred in the presbytery took place in two bedrooms, one of which was Fr Dufort’s bedroom and the other which was a spare room. The bedroom that the plaintiff believes to be Fr Dufort’s was located on the upper floor of the presbytery. There was one bed in the room. The spare room was located part way up the stairs and had two single beds in it. This room was always very dark and the majority of the abuse occurred in this room. Sometimes the abuse would start in Fr Dufort’s bedroom and then they would go to the darker room which was halfway up the stairs and where further acts would occur.

35. When MC attended the presbytery with Fr Dufort, he would say hello to the elderly priest as he walked past. If he attended the presbytery by himself, he would ask the elderly priest if Fr Dufort was there and he would usually respond by shaking his head or by pointing upstairs. Sometimes there would be one or two other priests in the presbytery, but the plaintiff does not know if they lived there or if they were visiting. He cannot recall any further details about them.

36. Fr Dufort would sometimes make the plaintiff wait downstairs before going up to his bedroom. Other priests would occasionally ask the plaintiff if he wanted a drink of water while he waited. Other priests saw the plaintiff with Fr Dufort. They would say hello as they passed on the stairs or in the hall. Fr Dufort would sometimes give the plaintiff wine before he abused him, which he insisted the plaintiff drink. Following the abuse, the plaintiff would exit the presbytery through the back side door. There was a gate located at the back of the property on which the church and presbytery were located. It led to a back street. The gate was always locked from the outside, but could be opened from the inside. MC left the presbytery several times through this gate.

37. The abuse continued unabated until about 1975 when Fr Dufort left the parish when the plaintiff was approximately 10 years of age. The plaintiff wanted to tell HH what was happening, but he believed that if HH found out he would harm Fr Dufort and he did not want to lose HH or get him into trouble.

38. In about late December 1976, the plaintiff was visiting his aunt RR at holiday cabins which she ran at Kingscliff. He told her that a priest had been touching him. She was shocked. He asked her not to tell anyone. In about 1977 or 1978, MC told another aunt, CC, little bits about the abuse. She ran a girls’ home in Parramatta and the plaintiff believed that he could confide in her. She was very angry when the plaintiff told her. She said she was going to tell the plaintiff's father and HH, but he begged her not to. He also told Leigh, a drug counsellor on the Gold Coast, and Sue Jeffries, a drug counsellor in custody about the abuse.

39. After the plaintiff left school, HH got him a job on the docks. He worked there on and off for a couple of years. He says that the money was excellent, but he struggled to attend work due to drug use which he says was instigated by the abuse and his memories of it. The plaintiff says that things went downhill after he was abused. Prior to the abuse, he had not been in any trouble with the police. Afterward, he turned to drugs and petty crime to pay for illicit substances. In 1980 he was sent to Minda Boys’ Home for a couple of days after he was caught stealing. The next time he got in trouble with police was the following year when he was caught attempting to sell stolen goods. He has attempted rehabilitation on several occasions, but without success. As the plaintiff got older, his criminal behaviour escalated. He has spent approximately 25 years in custody. He has been incarcerated at various correctional centres throughout Queensland and NSW since turning 18 years of age. The most recent incarceration was at Woodford Correctional Centre for offences relating to stealing, which he says that he committed to support his drug habit. The longest sentence he has served is 5.5 years, which was for armed robbery in about 1989. The longest consecutive period of time he has spent out of incarceration is 4.5 years, since his most recent release in approximately May 2020. His current parole ended in May 2024. The plaintiff says that the abuse has taken away his chance to fulfil his aspirations and that he never set out to live a life in custody.

31. Following the abuse, the plaintiff was confused about his sexuality. He says that he was hypersexual and looking for love in the wrong places, trying to fill a void. He struggles to trust others. He has had multiple partners and girlfriends. He has had multiple sexual partners but has considerable difficulty with intimacy and expressing feelings. He dislikes sexual contact as it brings back memories of the abuse. He has problems with establishing relationships.

32. The plaintiff was in a relationship with KK throughout 1995 to 1998. They were married in 1996. She is the mother to his daughter who was born in 1997. The plaintiff has a relationship with his daughter who has a son aged two. He was in an “on and off” relationship with MM for approximately 15 years.

33. The plaintiff's current partner, LL, knows that he has been the victim of abuse but she does not know the full details. He has no real friendship network.

34. The plaintiff commenced using heroin at about 13 years of age to try and block out the memories of the abuse. He initially got the heroin from a girlfriend’s mother's boyfriend. By the age of 16, the plaintiff was using illicit substances a few times every day, often spending up to $1,000 a day on his habit. In the early 2000s he was able to cease using illicit substances for a period of approximately 18 months whilst he was in custody. Upon release he commenced using again. When the plaintiff was approximately 40 years old, he started taking pure methamphetamine. The plaintiff believes that he has used illicit substances to suppress his emotions, thoughts and memories of the abuse. He believes that his drug use has severely impacted his chances of having a normal stable life and he realises now that he will never have it.

35. The plaintiff left his work as a wharf labourer after one year because of his spiralling drug addiction. By this stage, he was taking heroin to try and block out the impacts of the abuse. The plaintiff has struggled to gain any meaningful employment since this time and he has received Centrelink benefits during the times that he was not incarcerated. Since January 2021, he has been paid a Newstart Disability Pension.

36. The plaintiff recognises that he has ongoing problems. He has sought treatment from Bravehearts in the past for Post-Traumatic Stress Disorder (“PTSD”) symptoms. The treatment continued from approximately 2015 to 2021 until his counsellor, Rebecca Sutton, left Bravehearts. The plaintiff has been admitted to Robina Hospital on occasion for mental health reasons. Since the abuse, the plaintiff has experienced permanent and often daily reminders of what was done to him. He experiences symptoms of anxiety and depression. He struggles with the embarrassment associated with the abuse and that the abuse was perpetrated by a male. He wonders what he could have done to stop it or prevent it. For a very long time he blamed himself for the abuse and blocked out his feelings by using drugs. The plaintiff still feels shame. He believes that he was groomed by Fr Dufort to feel comfortable and safe with him, and he remembers feeling safe and secure with him. He recalls that Fr Dufort made him feel special. He would single out the plaintiff for praise and would give him money out of the poor box.

37. The plaintiff has poor self-esteem and he is disappointed with how his life has turned out. He still has difficulty with his self-identity and his sexual identity. He is currently prescribed Efexor for his depression. He is hypervigilant. He has poor concentration which leads him to have trouble with reading and writing. He struggles with episodes of angry outbursts, irritability and angry mood swings. He is on the Suboxone programme and has not used heroin for six years. The plaintiff has poor sleep patterns, and he continues to ruminate and have intrusive thoughts about the abuse. He has nightmares and flashbacks. The plaintiff believes that he is easily triggered, especially by churches and news articles relating to sexual abuse. It is not uncommon for the plaintiff to wake up gasping and with anxiety.

38. I accept the plaintiff’s evidence as to the occurrence of the sexual assaults. I have no hesitation in doing so. I accept that there was considerable delay in this matter coming to trial, but the plaintiff’s evidence was that he complained to his aunts and to counsellors beginning in the mid-1970s. Ms Jeffries’ evidence confirms that he complained to her in the 1990s (to which see below). It is well-known that the absence of complaint is not determinative of the truth of the complaints: see the warning given to juries in s 294 of the Criminal Procedure Act 1986 (NSW). The plaintiff’s evidence is entirely consistent with the history he gave to Dr Foxcroft in 2019. To the extent that there are any documents corroborating his claim, I observe that the Catholic Directory documents, as to the location of St Mary’s Church and Fr Dufort’s presence there as an assistant priest, align with the plaintiff’s memory.

Susan Jeffries

48. Ms Jeffries met the plaintiff in the 1990s when she was working as a nurse in the custodial environment. She assisted him with drug and alcohol treatment whilst in custody and she spent a lot of time with him. During her role assisting with drug and alcohol treatment, she would ask inmates why they were in the place they were and why they were using heroin. She recalls the plaintiff telling her that he had been sexually abused as a child by a Catholic priest. She cannot now recall the disclosure of any other details about the abuse.

Dr Foxcroft

49. Dr Malcolm Foxcroft, psychiatrist, examined the plaintiff on two occasions for medico-legal purposes. He reported on 9 December 2019 (x 2) and 15 September 2023 after those examinations.

50. In his first report, Dr Foxcroft notes that he was provided with the plaintiff’s criminal history, prison health records and counselling records. The plaintiff complained about a history of sexual assault which occurred at the hands of a priest, Fr Dufort, at St Mary's Church in Erskineville when he was approximately eight years of age in 1973 and which continued for several years. His report to Dr Foxcroft of the abuse, and the circumstances of how he met Fr Dufort is consistent with his evidence that I have summarised above.

51. The plaintiff told Dr Foxcroft that at the confessional classes, Fr Dufort first started to kiss the plaintiff and then caress him. Matters escalated thereafter. The plaintiff said that he would go to St Mary's once a week for the classes and Fr Dufort would have him touch his penis. Fr Dufort put his hand on the plaintiff’s penis several times and then put his hand on Fr Dufort’s penis. This progressed to fondling and then to oral sex, initially with Fr Dufort performing it on the plaintiff and then the plaintiff being fellated by Fr Dufort. The plaintiff was threatened that if he told anyone he would be sent to a boys’ home. Fr Dufort continued to give MC money. The plaintiff took the money because he was very poor. Eventually the abuse escalated to penetration, which occurred a few months later when Fr Dufort would anally rape the plaintiff. The plaintiff was anally penetrated on many occasions. He was not yet 10 years of age.

52. The plaintiff told Dr Foxcroft that he “succumbed to temptation” and would go back to confessional classes. He said the abuse lasted from about age 8 through to age 10 and then it stopped when Fr Dufort was transferred. He told his aunt RR about it.

53. The plaintiff reported being confused about his sexuality and also being hypersexual. He constantly blamed himself for what had occurred. He began to act out sexually and was having sex by age 13. At about 14 years of age, he started using heroin. He left school at the end of Year 10 and his father got him a job on the docks. He worked there for about a year but he was using drugs and eventually was unable to continue because the drugs were taking control of him. He was constantly thinking about what Fr Dufort had done to him. He had difficulty with intimacy. By age 16 he was using drugs every day. He commenced committing crime to pay for drugs and got into trouble for the first time in about 1981. He said that he started to go to jail regularly for stealing to fund his drug habit.

54. The plaintiff said that he thinks about the effects of the abuse all the time. He thinks about what Fr Dufort has done and cannot stop thinking about it. It intrudes when he is thinking, and he has had nightmares and dreams about it. At the time of the report, the plaintiff was serving part of a six-year sentence for breaching a suspended sentence.

55. In Dr Foxcroft’s opinion, the plaintiff appears to be a reliable historian in relation to the description of the events and the assaults which occurred, given his description of the events, his emotional responses and the history of his disclosure to drug counsellors. In his opinion, MC fulfils all the criteria for PTSD.

56. The plaintiff reported that he had been attending Bravehearts counselling since 2016 and at the time was seeing Rebecca Sutton every two weeks by phone whilst in gaol. He had also seen her outside of custody. He was prescribed Efexor for depression.

57. In Dr Foxcroft’s view, the plaintiff has developed a clinically significant PTSD, a secondary Major Depressive Disorder and a Secondary Polysubstance Use Disorder following the abuse. Prior to the abuse he had experienced some emotional deprivation and minor exposure to violence at the hands of his alcoholic father, but he had a positive and permanent support person in the form of his great uncle HH. Dr Foxcroft says that the plaintiff was groomed by the priest and threatened with being sent to orphanages, which created a cycle of fear and cooperation with his abuser. He was subjected to severe psychosocial stressors by way of oral and anal rape and fondling over a prolonged period of time. The grooming included paying the plaintiff with small amounts of money which increased his guilt and his sense of responsibility for the assaults.

58. Dr Foxcroft observed that the plaintiff has had difficulties with his sexual identity and has had periods of significant promiscuity throughout his adult life. He became rapidly addicted and dependent on illicit substances and began a criminal career to fund his drug habit which led to repeated cycles of incarceration, institutionalisation and ongoing difficulties with respect to recidivism and repeated offending. The plaintiff has experienced serious physical complications of his drug dependence and is physically disabled due to endocarditis and cardiomyopathy.

59. In Dr Foxcroft’s view, were it not for the sexual abuse it is highly unlikely that the plaintiff would have developed symptoms of PTSD and drug dependence. He is unlikely to have been exposed to and vulnerable to the use of illicit substances, particularly heroin, and is likely to have continued to work on the wharves as his great uncle and father had done. The positive role model in the form of his great uncle was severely disrupted and weakened by the influence of Fr Dufort. Dr Foxcroft is of the view that the sole cause for the plaintiff’s current psychiatric impairment are the sexual assaults committed by Fr Dufort in St Mary's Church when the plaintiff was aged 8 to 10.

60. In Dr Foxcroft’s opinion, the plaintiff’s prognosis is poor as he has had chronic symptoms for more than 50 years, and they are likely therefore to persist. The symptoms likely commenced at the time of the sexual assaults, and he has likely had a significant depressive disorder from that time. In his view the onset of the PTSD and depression is at about age 10, and the polysubstance use disorder at about age 14.

61. Dr Foxcroft observes that child sexual abuse victims are generally highly reluctant to disclose the abuse, as they believe that they had some role in perpetuating and causing the abuse which reduces the opportunities for disclosure. In this case, the plaintiff did in fact disclose the abuse to two of his aunts.

62. In Dr Foxcroft’s opinion the plaintiff requires extensive treatment, including long-term psychotherapy. This should take the form of fortnightly counselling from a clinical psychologist or a specialist psychiatrist. The cost would be approximately $240 per session. The plaintiff should be placed on the Suboxone programme for about 5 years, the cost of which would be approximately $7,000 per year. He should continue using the antidepressant medication Efexor for about 5 years, the cost of which would be approximately $40 per month.

63. As to the plaintiff’s capacity for employment, in Dr Foxcroft’s opinion the plaintiff’s experiences at a very vulnerable period of his development disrupted his capacity to engage in remunerative activities. He has been effectively unemployed during his lifetime, and he has difficulty with trust and concentration. It will never be safe for him to operate machinery. He has been, and will continue to be, totally incapacitated for work until the retirement age of 67.

64. In his most recent report, Dr Foxcroft expressed a view that the plaintiff continues to exhibit symptoms of PTSD, secondary depression and secondary Substance Use Disorder (with significant improvement since his discharge from prison in May 2020). He says that his opinions remained unaltered, save that the plaintiff has undergone a significant improvement in motivation and stability as a consequence of being on the Suboxone Opioid Replacement Program. He also reported having had some supportive counselling. Dr Foxcroft observes that his opinion in relation to the causation of the plaintiff’s psychiatric conditions remains unaltered. He believes that the plaintiff remains totally incapacitated for all forms of work.

Father Kevin Dillon AM

65. Fr Kevin Dillion AM reported on 27 March 2024. He is an ordained Catholic priest with 55 years of parish engagement, and experience in both pastoral work and administration within the Catholic Church, primarily within the Archdiocese of Melbourne. He has extensive familiarity with the Catholic Church’s Code of Canon Law which was a central component of the eight years of formation, training and education that he received as a student for the priesthood. In Fr Dillon’s opinion, the circumstances of the plaintiff’s case are more appropriately linked to the pastoral practice and customs of the Catholic priesthood and common parish practise, rather than the specifics of Canon law, in which he has considerable expertise. He says that his 55 unbroken years of pastoral work in Catholic Church ministry, almost all of it in a parish setting, has afforded him substantial hands-on knowledge and awareness of Catholic Church practices and customs in Australia which are central to the current case and the relationship between the plaintiff and Fr Dufort. Fr Dillon is still active in parish ministry and assists each weekend and often on weekdays in various parishes.

66. From Fr Dillon’s reading of the documents provided to him from the Archdiocese of Sydney, the White Fathers, and the Australian Catholic Directories (all of which were exhibited in these proceedings), it is clear that at the relevant time the parish of St Mary’s Erskineville was under the pastoral, spiritual and administrative direction of the White Fathers. The White Fathers were appointed to the parish by Cardinal Gilroy, Archbishop of Sydney subsequent to their request in 1969 to Cardinal Gilroy that they be given responsibility to care for an appropriate parish within the Sydney Archdiocese. The official Catholic Directories for Australia for 1973 clearly indicate that the parish priest of St Mary’s Erskineville was a priest who was a member of the White Fathers, Fr Coolen WF. The 1973 Catholic Directory notes that Fr Dufort was on appointment (as assistant priest) to the parish during that year. Fr Coolen WF would have been the direct and immediate superior of Fr Dufort when he was appointed to St Mary's parish. This was the practice in all Catholic parishes in Australia at that time.

67. The duties of the parish priest in the parish of Erskineville (as in all parishes), would have been to provide for the spiritual and pastoral needs of parishioners. This included mass and reception of the sacraments, devotional practises, home visitation, counselling and the administration of the parish, including the construction and maintenance of parish buildings. The parish priest would also be responsible for the supervision of any assistant priest appointed to the parish and would assign to him appropriate duties and responsibilities. If the parish priest believed it to be appropriate, he would provide advice to the assistant priest as to how these duties should be carried out, including correction, if and when this was deemed necessary.

68. Fr Coolen, as parish priest, would have lived in the parish presbytery, very proximate to the parish church. The records contained in the Catholic Directory indicate that the White Fathers appointed to the Erskineville parish lived together in the one presbytery, as was, and continues to be, the normal practice for priests serving in a parish. This is especially applicable for priests belonging to a religious order, where community living is an integral part of how religious life is practised. The Catholic Directory for 1973 notes Fr Dufort as being appointed to the parish. The attestation document from the Missionary Society of Africa (White Fathers) dated 20 May 2021 confirms that Fr Dufort was a member of the White Fathers. The listing of Fr Dufort under the heading of St Mary’s Erskineville indicates that he was a priest attached to the parish for pastoral and spiritual duties as an assistant priest.

69. Fr Dillon says that Fr Dufort would have conducted mass in the parish on a regular basis and provided the sacraments and pastoral care to parishioners. He would have been associated with, and engaged with children in the parish primary school and in government schools within the parish in a variety of ways, as was common at that time. His duties and responsibilities would have included providing religious instruction for, and having engagement with, the children of the parish and social, sporting and recreational activities.

70. The preparation of the plaintiff for the sacraments of baptism and confession may have emanated from a request directly to the parish priest or to Fr Dufort himself from the plaintiff’s family or from the plaintiff himself, or from the parish priest who may have deputised Fr Dufort to undertake this preparation on his behalf. He believes that it would not be uncommon for someone other than family, especially a trusted person like a school principal, school teacher or sports coach to suggest that a formal initiation into a faith community with baptism, might be desirable and advantageous for a child. However, whilst the initiative might sometimes come from outside the family, becoming a member of the Catholic Church through baptism would always have required the consent of at least one parent, and would rarely, if ever, be undertaken if a parent of a primary or secondary school student withheld consent. In this instance, Fr Coolen, as the parish priest, would have had the immediate and direct responsibility of supervising Fr Dufort with respect to the plaintiff’s preparation for baptism and confession.

71. Given that the preparation for baptism would have most likely occurred with the plaintiff alone and not undertaken in a class or group, the plaintiff's preparation for baptism would most likely have been one-on-one, and may well have occurred in private. The total trust of priests by parishioners at the time was such that the kind of supervision expected and demanded today in such circumstances was not in place, and such supervision would not have been seen in any way necessary.

65. In Fr Dillon’s opinion, taking a primary school aged child into a priest's private quarters in the 1970s may have aroused suspicion, or at least a concern that this might be inadvisable, if not improper behaviour. General awareness of sexual abuse by priests and religious figures was almost unknown in the early 1970s, and revelations only became public in Australia in the late 1970s. Even then, media reports and formal police charges were responded to by parishioners and other clergy with a sense of disbelief. Even so, in presbyteries and religious houses, the private living quarters of the priests, especially if situated upstairs, would have been seen by others, including other priests living in or visiting the presbytery, as out of bounds for anyone other than those whose rooms were situated in that part of the house. Any intrusion into the presbytery’s private area, especially by a minor, would have been unwelcome by other priests had they been aware of it. Like most people, priests, whilst living in common, would expect a level of privacy. As the superior of the house, the parish priest, were he aware that this was happening, would most likely have advised against it, or forbidden it.

66. In 1973, priests were highly regarded by the wider community and in particular by the Catholic community. They were trusted totally and implicitly, and it was common for priests to engage directly with children in all manner of activities, for example taking them to sporting events, going on holidays and camps, giving personal advice and counselling. Whilst many of these activities were conducted in company with their families, it was not uncommon for a priest to have a one-on-one connection with a child for certain purposes, such as the preparation of a child for the reception of a sacrament. The high standing and respect afforded to priests at that time also gave them a significant level of authority, control and power over the behaviour of a child parishioner.

67. Given that preparation for the reception of sacraments was ultimately the responsibility of the parish priest, it would have been normal and appropriate for the parish priest from time to time to inquire with either the candidate child or their parents, or from the instructing adult as to how the preparation was proceeding. That said, in Fr Dillon’s opinion if the parish priest had confidence in the ability and integrity of his assistant priest, he may well have trusted the assistant priest to undertake that task properly and effectively, without him needing to engage in what might be referred to today as micromanagement.

68. Fr Dillon says that it is likely that the presbytery would have been occupied at times by the priests who lived there. However, he says that there may have been many occasions when priests were absent from the presbytery on duties around the parish or on holidays and when parish staff or volunteers were also absent.

Certificate of Title dated 10 December 1945

76. A historical Certificate of Title tendered by the plaintiff establishes that the Trustees of the Roman Catholic Church for the Archdiocese of Sydney purchased the parcel of land on which St Mary’s Church, Erskineville was situated.

Affidavit of Brianna Wooller

77. Ms Wooller’s affidavit annexes excerpts from the Australian Catholic Directory which establish that:-

1. In 1971 there were two priests at St Mary’s Church: Rev Andrew Murphy WF and Rev Anthony Coolen;

2. In 1971, Fr Dufort was not on the list of clergy;

3. In 1972, there were two priests at St Mary’s Church: Rev Andrew Murphy WF and Rev Anthony Coolen;

4. In 1972, Fr Dufort was not on the list of clergy;

5. In 1973, there were three priests at St Mary’s Church: Rev Anthony Coolen WF, Rev Andrew Dokkers and Rev Camil Dufort;

6. In 1973, Fr Dufort was listed as a clergy member at Erskineville;

7. In 1974, there were three priests at St Mary’s Church: Rev Anthony Coolen WF, Rev Andrew Dokkers and Rev Camil Dufort; and

8. In 1973, the White Fathers’ address was at St Mary’s Presbytery at Erskineville, that it was founded in Australia in 1969 and that the Superior was Rev Anthony Coolen WF.

Correspondence between the defendant and the Archbishop of Sydney

78. A number of letters between members of the defendant and the Archbishop of Sydney were tendered in the proceedings. These letters demonstrate, inter alia, that:-

1. In March 1969, the White Fathers sought a “small house” (ie a parish) in Sydney to provide a base for their work in Sydney. It was proposed that Fr Andrew Murphy WF and Fr Anthony Coolen be appointed priests;

2. On or about 4 June 1969, the Archbishop of Sydney, Cardinal Gilroy, gave the care of the parish of Erskineville to the White Fathers, and appointed Fr Murphy as the Administrator of the parish of Erskineville with Fr Coolen as his assistant from 18 June 1969;

3. On 20 June 1969, the White Fathers were authorised by Cardinal Gilroy to operate bank accounts in the names of St Mary’s Catholic Church, Erskineville, Sydney Catholic Schools Building Fund, Erskineville and Holy Name Society, Erskineville;

4. In May 1986, Fr V Missiaen WF wrote to Archbishop Clancy requesting that the White Fathers be relieved of the pastoral charge of the Parish of Erskineville; and

5. In 1987, the White Fathers ceased their operations in Australia.

Attestation from the defendant dated 20 May 2021

79. The plaintiff tendered a document received from the defendant, styled as an “Attestation”. That document indicates that Fr André-L Simonart has investigated the matter and conducted an internal investigation. He confirms that Fr Dufort was laicized on 8 May 1987. Fr Simonart accessed Fr Dufort’s personal and laicization files, and concluded that he found no mention of evidence of the allegations by MC against Fr Dufort.

80. The Attestation confirms that Fr Dufort was a member of the White Fathers until 1987. As the documents referred to Fr Simonart were not produced in answer to a subpoena to produce, I draw an inference that they would not have assisted the defendant’s case.

Negligence

81. At the outset, I wish to record that I believe that the plaintiff was abused by Fr Dufort as he has alleged. He has suffered greatly over the course of his lifetime and has shown considerable courage coming forward. I must, however, apply the law in determining his claim.

82. The provisions of the CLA apply.

83. Section 5B of the CLA provides:-

5B   General principles

(1)  A person is not negligent in failing to take precautions against a risk of harm unless—

(a)  the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and

(b)  the risk was not insignificant, and

(c)  in the circumstances, a reasonable person in the person’s position would have taken those precautions.

(2)  In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things)—

(a)  the probability that the harm would occur if care were not taken,

(b)  the likely seriousness of the harm,

(c)  the burden of taking precautions to avoid the risk of harm,

(d)  the social utility of the activity that creates the risk of harm.

84. The plaintiff identifies the risk of harm as the risk of the plaintiff being sexually abused by those whom the defendant put in a position of (holy) authority and influence. For the purposes of this judgment, I accept that formulation as being correctly stated.

85. Section 5C of the CLA provides:-

5C   Other principles

In proceedings relating to liability for negligence—

(a)  the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and

(b)  the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and

(c)  the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.

86. Division 2 of Pt 1B of the CLA, headed “Duty of organisations to prevent child abuse”, and which applies to the instant proceedings, provides:-

6D   Organisations that are responsible for a child

In this Division—

(a)  an organisation is responsible for a child if it (including any part of it) exercises care, supervision or authority over the child (or purports to do so or is obliged by law to do so), and

(b)  if an organisation (including any part of it) delegates the exercise of care, supervision or authority over a child to another organisation (in whole or in part), each organisation is responsible for the child.

6E   Individuals who are associated with organisations

(1)  In this Division, an individual associated with an organisation without limitation includes an individual who is an office holder, officer, employee, owner, volunteer or contractor of the organisation and also includes the following—

(a)  if the organisation is a religious organisation—a religious leader (such as a priest or a minister) or member of the personnel of the organisation,

(b)  if the organisation or part of the organisation is a designated agency within the meaning of the Children’s Guardian Act 2019—an individual authorised by the designated agency (under that Act) as an authorised carer,

(c)  an individual, or an individual belonging to a class of individuals, prescribed by the regulations.

(2)  An individual is not associated with an organisation solely because the organisation wholly or partly funds or regulates another organisation.

(3)  An individual associated with an organisation to which the exercise of care, supervision or authority over a child has been delegated, in whole or in part, is also taken to be an individual associated with the organisation from which the exercise of care, supervision or authority was delegated.

87. Dealing first with ss 6D and 6E, in my opinion, they add nothing to the present case, as I accept that the defendant had a duty to exercise reasonable care for the plaintiff, who was at all relevant times in the position of a vulnerable child whenever he was present at the church for the purpose of taking religious instruction from Fr Dufort.

88. The real question in this case is whether or not the plaintiff can point to a breach of duty, taking into account the evidence in this case; ie was the risk of harm foreseeable in the sense that the defendant knew or ought to have known of it: s 5C(1)(a).

89. The plaintiff made the following submissions.

90. It was submitted that the evidence established that from about 1973 the plaintiff met with Fr Dufort for the purposes of attending baptism classes. The frequency increased from fortnightly to weekly. After the plaintiff’s baptism on 8 November 1973, he commenced confessional classes every 1 to 2 weeks for about 2 years. The abuse started out as grooming, but at an unspecified time escalated to sexual abuse, which included oral sex and anal penetration. On occasion Fr Dufort would give the plaintiff wine before he abused him. The abuse occurred in the afternoons once or twice a week. The abuse occurred in the church itself on approximately 10 occasions with the balance occurring in the presbytery about once a week. The plaintiff would enter the presbytery through a “second side door” which opened onto a kitchenette. There was a very elderly priest who would be in a day bed next to the kitchenette. The plaintiff believes that this elderly priest was retired and suffered from dementia. The elderly priest did not verbally communicate with the plaintiff but would shake his head or point upstairs. The abuse occurred in two bedrooms up some stairs in the presbytery. Sometimes the abuse would commence in Fr Dufort’s private bedroom and finish in a spare bedroom. The majority of the abuse occurred in the spare bedroom.

91. Sometimes there were one or two other priests in the presbytery in addition to Fr Dufort, but the plaintiff does not know if they lived there or were visiting. He cannot recall further details about them. Sometimes the plaintiff waited for Fr Dufort downstairs on a staircase. Occasionally a priest would ask the plaintiff if he wanted a drink of water while he waited. Other priests would say hello when the plaintiff passed them in the company of Fr Dufort on the stairs or in the hall. The plaintiff submits, and I accept, that the evidence discloses that three priests were resident in the presbytery in 1973, 1974 and 1975. Fr Dufort left sometime in 1975 when the abuse stopped.

92. The plaintiff submits that the report of Fr Dillon establishes that Fr Anthony Coolen WF would have had the immediate and direct responsibility of supervising Fr Dufort, that the practice of taking a primary school aged student into the priests’ private quarters could have aroused suspicion, even in the early 1970s, or at least a concern that this might be inadvisable if not improper behaviour (had they been aware of it). He submits that the private living quarters of the priests (especially if situated upstairs) would have been seen by others (in particular priests living in the presbytery) as out-of-bounds and unwelcome, had Fr Anthony Coolen WF been aware of the practice, that he would have either advised against it or firmly forbidden it and that it is likely that the presbytery would have been occupied at times by other people.

93. The plaintiff acknowledges the letter from the defendant that nothing in Fr Dufort’s personal files mentions any allegations made by the plaintiff.

94. The plaintiff submits that it is clear that he attended the church and presbytery frequently between 1973 to 1975, which I accept. He says that whilst it is difficult to estimate the number of his attendances prior to his baptism, it would be reasonable to find that he attended on 10 occasions prior to 8 November 1973, which I also accept. In the two year period that followed, the plaintiff estimates that he attended confessional classes between 20 to 40 times per year, or between 40 to 80 times over the two year period. Leaving to one side that it is not known when Fr Dufort left the church in 1975, I accept that the plaintiff attended confessional classes on about 50 occasions, or perhaps more. The plaintiff submits and I accept that those occasions occurred largely and perhaps exclusively in the priests’ living quarters in the presbytery.

95. In the plaintiff’s submission, on the balance of probabilities, given the frequency of his attendances in the presbytery, Fr Anthony Coolen WF witnessed the plaintiff to be present there on multiple occasions. I am not prepared to draw this inference without more evidence (on the balance of probabilities) given Fr Coolen’s significant other responsibilities (outlined in Fr Dillon’s report). I accept, as set out in Fr Dillon’s report, that Fr Coolen would have been aware of the confessional classes, that it was common for priests to engage with children in all manner of activities, that it was not uncommon for a priest to have a one-on-one connection with a child for certain purposes, including the preparation of a child for the reception of a sacrament and that Fr Coolen may well have had confidence in the ability and integrity of Fr Dufort such that he trusted Fr Dufort to undertake the confessional task without Fr Coolen needing to engage in what might today be called “micromanaging”. In other words, it is entirely possible that Fr Coolen left Fr Dufort and the plaintiff to their own devices and that he saw nothing unusual or untoward in their interaction.

96. The plaintiff further submits that it is likely that other priests would have reported the plaintiff’s presence within the presbytery to Fr Coolen, even if only to report the occurrences as an intrusion on their privacy. I reject this submission, as it is purely speculative. It also ignores the evidence that at all material times three priests appear to have been living in the presbytery: Fr Dufort, Fr Coolen and the priest with dementia (likely Fr Andrew Dekkers).

97. The plaintiff submits that on the balance of probabilities, Fr Coolen knew or ought to have known that the plaintiff was spending a considerable amount of time in the private bedrooms, alone and unsupervised with Fr Dufort based on, inter alia, the frequency of the abuse, the time the abuse occurred (being after school) and the nature of the abuse itself. Indeed, it was submitted that because Fr Coolen lived in the presbytery, he must have known about the improper relationship between Fr Dufort and the plaintiff. I reject these submissions.

98. On the evidence, there were only two active priests at the parish: Fr Coolen and Fr Dufort. The third had dementia, and on the plaintiff’s evidence was non-verbal. Fr Dillon describes Fr Coolen’s responsibilities as parish priest as including, the provision of all activities in the parish including overseeing the preparation of parishioners for the reception of the sacraments such as baptism, confession, holy communion and confirmation. He was responsible for the overall spiritual well-being of all of his parishioners of all ages. His duties included saying mass and sacraments, devotional practices, home visitation, counselling and the administration of the parish including the construction and maintenance of the parish buildings. He was likely exceptionally busy with those tasks. That being the case, I am unable to draw an inference that Fr Coolen knew or ought to have known that the plaintiff was spending a considerable amount of time in the private bedrooms, alone and unsupervised, with Fr Dufort.

99. The plaintiff places reliance on the findings of the Royal Commission into Institutional Responses of Child Sexual Abuse (which was not in evidence). For the purpose of these proceedings, I will accept that many of its findings are now matters of common knowledge. The plaintiff observes that a great many of the survivors who gave evidence were abused in Catholic institutions and that largest proportion of the incidents occurred in the 1970s.

100. Nothing in the evidence before me points to a breach of a duty of care owed to the plaintiff. It simply cannot be said that the evidence demonstrates that the risk of harm to the plaintiff was reasonably foreseeable. There is nothing to suggest that the Fr Coolen knew or ought to have known that Fr Dufort was sexually assaulting the plaintiff or that he was interacting with him in an inappropriate manner.

101. Further, as the report of Fr Dillon candidly notes, if Fr Coolen – as the superior of the house – was aware that anything untoward was occurring, he would have done something about it. As Fr Dillon observes, in the 1970s, the high standing and respect afforded to priests in the community gave them a significant level of authority, control and power over the behaviour of a child parishioner which would have been endorsed by parents, teachers and other parishioners.

102. In this case, Fr Dufort abused his authority, trust and control over the plaintiff. Of that I have no doubt. Notwithstanding that finding, I cannot find, on the evidence adduced in this case, that the risk of harm was foreseeable such that s 5B(1)(a) is satisfied. The claim in negligence therefore fails.

Vicarious liability

103. The plaintiff made extensive submissions on vicarious liability, which have now been (appropriately) abandoned in light of Bird.

Damages

104. Against the possibility that I am wrong, I will briefly assess damages pursuant to the CLA. I observe that exemplary and aggravated damages are excluded from personal injury damages in negligence: s 21 of the CLA.

Actuarials

105. I adopt the plaintiff’s actuarial data. The plaintiff was born on 23 September 1965 and is currently 59 years of age. Approximately 51 years have passed since the abuse. Assuming a normal retirement age of 67, the plaintiff has approximately 8 years of his working life ahead of him, which yields a multiplier of 345.6 on the 5% tables. His life expectancy on the medium life tables is approximately 26 years, which yields a multiplier of 768.7 on the 5% tables.

Non-economic loss

106. I accept that the plaintiff was assaulted as he has alleged, on so many occasions that it is impossible to know with any precision. I accept that he has suffered from PTSD since he was as adolescent, which was solely caused by the abuse. I do not repeat the evidence of the plaintiff and Dr Foxcroft set out above. To the extent that Dr Foxcroft’s reports record the history provided to him by the plaintiff, the hearsay rule does not apply to that evidence: s 60(1) of the Evidence Act, and it was admissible for its truth purpose. The plaintiff has lived with significant psychiatric illnesses for fifty years, and he will live with them for the rest of his life.

107. The plaintiff’s ongoing difficulties with his self-identity, sexual identity and self-esteem have all been caused by the abuse at a tender and vulnerable age. I accept that he continues to live with shame and embarrassment. He continues to have nightmares and flashbacks about the abuse. It never leaves him. The actions of Fr Dufort have haunted the plaintiff since he was a boy. Those actions have ruined any chance the plaintiff had at living a normal life. There is every reason to think that he will be haunted by Fr Dufort’s actions for the rest of his life.

108. In my opinion, a significant award of non-economic loss is appropriate.

109. For the purpose of s 16 of the CLA, I allow 66% of a most extreme case, or $502,500.

Past out-of-pocket expenses

110. Whilst there was evidence about the plaintiff receiving treatment, there was no evidence about the cost to the plaintiff of any counselling or medication. No receipts were tendered. Neither was a Notice of Charge to Medicare. In the circumstances, I allow nothing under this head of damage.

Future out-pocket expenses

111. In Dr Foxcroft’s first report, he makes a prescription for the plaintiff’s future treatment costs which is, in my opinion, entirely reasonable. I am satisfied that the plaintiff would avail himself of these treatments.

112. I allow the following:-

1. Fortnightly counselling for the treatment of PTSD, early childhood abuse and substance use disorder at the cost of $240 per session for 2 years: $240 x 26 = $6240/52 = $120 per week x 99.4 (5% multiplier for 2 years) = $11,928.

2. Suboxone programme for 5 years at the cost of $7000 per year: $7000/52 = $134.62 per week x 231.5 (5% multiplier for 5 years) = $31,165.

3. Efexor anti-depressant medication at the cost of $40 per months for 5 years: $40 x 12 = $480/52 = $9.23 x 231.5 (5% multiplier for 5 years) = $2317.

113. I allow $45,230 under this head of damage.

Past economic loss

114. The plaintiff claims that his capacity to work in the past has been totally destroyed by the abuse he suffered at the hands of Fr Dufort. He claims, and I accept, that the abuse caused him to develop PTSD and depression, which in turn caused him to take drugs to numb the effects of the abuse. He led a life of crime, by his account (which I accept) to fund his drug addiction. I observe that the plaintiff’s father was gainfully employed throughout his lifetime as a labourer on the docks, and that each of his siblings finished high school and has been gainfully employed. The plaintiff secured a position on the docks as a labourer and appeared to be set to follow his father’s career.

115. I am satisfied that but for the abuse, the plaintiff would have exhibited the same good work ethic of his father and siblings, that he would not have turned to drug abuse and that he would not have experienced episodic incarceration. In my opinion, the abuse has entirely destroyed his capacity to earn. In coming to this conclusion, I accept that it is very difficult to assess the plaintiff’s likely employment trajectory, but for the abuse. Such is the insidious nature of the sexual abuse of children. However, in my opinion, taking into account the plaintiff’s family’s favourable employment history, but for the abuse the plaintiff was likely to have found himself in gainful employment throughout his lifetime.

116. The plaintiff tendered documents from the Australian Bureau of Statistics demonstrating that in 1983 the average weekly earnings for a junior male working as a labourer was $190 net. In 1993, the average weekly earnings for all adult males was approximately $390 net. In 2003 the average weekly earnings for all employees was $725 net. In 2013, the average weekly earnings for all employees was approximately $1115 net. The current average weekly earnings for all employees is approximately $1431 net.

117. Notwithstanding the comments above, the plaintiff accepts that he cannot be compensated for past economic loss during the periods he was incarcerated for criminal offending, citing SR v Trustees of the De La Salle Brothers [2023] NSWSC 66. I note that this not invariably the case: see SRA of New South Wales v Wiegold (1991) NSWLR 500 at 517 per Samuels JA.

118. The plaintiff makes a claim for a loss for the 16 years he has not been in custody since his 16^th birthday. Of those, 4.5 years (239 weeks from May 2020), the evidence discloses that the plaintiff has been totally incapacitated for work. The plaintiff submits that it would be appropriate to award a buffer with respect to the periods he was free in the community prior to May 2020 (596 weeks) in the amount of $150,000, which equates to an average loss of approximately $250.00 net per week. I observe that this is well below the average rate of weekly earnings for all employees in Australia between September 1983 and May 2020.

119. For the period between May 2020 to date, the plaintiff claims a loss of $500 net per week, which represents 50% discount on average weekly earnings for that period: $500 x 239 = $119,500.

120. I am satisfied, in the absence of the defendant, that this “broad brush” approach advocated by the plaintiff is merited.

121. I calculate the plaintiff’s past economic loss as follows: $150,000 + $119,500 = $269,500.

Past Loss of Superannuation

122. I allow $269,500 x .11 = $29,645.

Future economic loss

123. I accept Dr Foxcroft’s opinion that the plaintiff will never work again. He is presently 59 years of age and he is not trained for any work. He is currently receiving the Disability Support pension. His psychiatric illnesses will negatively impact upon his capacity to earn in the future, such that, in my view, he will be forever incapacitated for all forms of work. I accept that his future incapacity for work has been caused by the abuse he suffered at the hands of Fr Dufort.

124. I am satisfied that net average weekly earnings of all Australian employees is the appropriate basis for calculating the plaintiff’s future economic loss, and that the plaintiff should be allowed that sum on a weekly basis until he reaches the age of 67 years.

125. I allow $1,120 net per week (as claimed) x 345.6 (5% multiplier for 8 years) = $387,072 (less 40% vicissitudes, adverse over favourable) = $232,243.

Future Superannuation

126. I allow superannuation at 11% as claimed: $232,243 x .11 = $25,546.

Total

127. I would have allowed damages as set out in the following table:-

Non-economic loss                  $502,500

Past out-of-pocket expenses:            $0

Future out-of-pocket expenses:            $45,230

Past economic loss:                  $269,500

Past superannuation:               $29,645

Future economic loss:               $232,243

Future superannuation:               $25,546

TOTAL:  $1,104,664

128. As the defendant took no active part in the proceedings, it should not have its costs.

Orders:

129. I make the following orders:-

1. Verdict and judgment for the defendant;

2. The exhibits are to be returned;

3. I make no order as to costs, to the intent that each party pay his and its own costs of the proceedings;

4. If any other costs order is cavilled for, the plaintiff’s solicitors are to contact my Associate within 7 days.

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Decision last updated: 20 December 2024