QC v The Scout Association of Australia New South Wales Branch
[2025] ACTSC 228
•3 June 2025
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | QC v The Scout Association of Australia New South Wales Branch |
Citation: | [2025] ACTSC 228 |
Hearing Date: | 2, 30 May 2025 |
Decision Date: | 3 June 2025 |
Before: | McCallum CJ |
Decision: | (1) The amended statement of claim dated 26 February 2025 is struck out with leave to replead. |
Catchwords: | CIVIL LAW – pleadings – personal injury – application to strike out – historical sexual abuse – whether pleadings disclosed material facts sufficient for cause of action – distinction between particulars and material facts – nature of duty pleaded – risk of harm – foreseeability of harm – whether risk of harm was present or foreseeable at time of alleged abuse |
Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT), s 43 Court Procedures Rules 2006 (ACT), rr 425, 433 |
Cases Cited: | Austen v Tran [2023] ACTCA 44 Bird v DP (a pseudonym) [2024] HCA 41 Bruce v Odhams Press [1936] 1 KB 697 BTM1 v Scout Association of Australia New South Wales Branch [2023] NSWSC 431 CCIG Investments Pty Ltd v Schokman [2023] HCA 21; 278 CLR 165 Garzo v Liverpool / Campbelltown Christian School Limited [2011] NSWSC 292 Garzo v Liverpool / Campbelltown Christian School [2012] NSWCA 151 New South Wales v Lepore [2003] HCA 4; 212 CLR 511 PWJ1 v The State of New South Wales [2020] NSWSC 1235 Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle v AA [2025] NSWCA 7 |
Parties: | QC ( Plaintiff) The Scout Association of Australia New South Wales Branch ( First Defendant) The Scout Association of Australia ACT Branch Incorporated ( Second Defendant) |
Representation: | Counsel D Steiner ( Plaintiff) J Sleight ( First Defendant) A Nourse ( Second Defendant) |
| Solicitors Gerard Malouf & Partners ( Plaintiff) Thompson Cooper ( First Defendant) Wotton Kearney ( Second Defendant) | |
File Number: | SC 361 of 2024 |
McCALLUM CJ:
Introduction
1․The plaintiff in these proceedings seeks damages for personal injuries arising from historical sexual assaults alleged to have been committed against him when he was a boy by an adult member of his local Scout group. The man alleged to have committed the offences is said to have held various roles in that and another Scout group over the period of the alleged abuse, including the positions of Assistant Scout Leader and Scout Leader. Although no defence has yet been filed, the defendants have indicated that they will deny the man held any position of leadership and deny that he belonged to the same Scout group as the plaintiff. For convenience only (acknowledging those foreshadowed denials), I will refer to him as the Scout Leader.
2․The Scout Leader is alleged to have started offending against the plaintiff in 1980, when the plaintiff was just 12. In the summer of that year, the plaintiff attended a week-long hike in NSW organised by his Scout group. He alleges that, during that hike, he was required to share a tent with the Scout Leader and that the Scout Leader sexually assaulted him in the tent on at least two separate occasions. The pleading specifies many further alleged assaults over the following five years. Some of the incidents complained of are alleged to have involved the provision of alcohol and illicit drugs to the plaintiff by the Scout Leader. The plaintiff claims damages for multiple psychological injuries arising from those allegations including post-traumatic stress disorder, alcohol use disorder, depression, substance abuse and numerous suicide attempts.
3․The Scout Leader is not a party to the proceedings. The defendants are the Scout Association of Australia, NSW Branch, which is alleged to have been responsible for the plaintiff’s Scout group up to and including 31 March 1981, and the Scout Association of Australia, ACT Branch, which is alleged to have been responsible for the Scout group after that date. Each of those entities is an incorporated association. I will refer to them as Scouting NSW and Scouting ACT respectively.
Scouting NSW’s application
4․The proceedings were commenced by statement of claim filed 1 November 2024. The plaintiff subsequently filed an amended statement of claim seeking to address issues raised in correspondence by the defendants.
5․Scouting NSW considered that the amended statement of claim did not address the issues raised and, by application filed 13 February 2025, sought to have that pleading struck out and alternatively an order that the plaintiff provide further and better particulars of the claim. Scouting ACT did not bring a separate application but supported the application brought by Scouting NSW. Since the filing of the application, the plaintiff has propounded two versions of a draft second amended statement of claim. I will refer to those as the first draft amendment and the second draft amendment respectively. The application was argued by reference to those drafts on the implicit assumption that the Court would not grant leave to file a pleading that was liable to be struck out.
6․The application invokes r 425(1)(a) of the Court Procedures Rules 2006 (ACT). That rule confers power on the Court to order that a pleading or part of a pleading be struck out on various grounds. Scouting NSW invokes only the first two of those grounds, namely, that the pleading:
(a)discloses no reasonable cause of action or defence appropriate to the nature of the pleading; or
(b)may tend to prejudice, embarrass or delay the fair trial of the proceeding.
7․In the alternative, Scouting NSW submits that the plaintiff should be ordered to provide further and better particulars of the risk of harm and the facts upon which the plaintiff alleges such harm was reasonably foreseeable, including the material facts upon which the plaintiff alleges that the first defendant had either actual or constructive knowledge of the risk of harm.
Causes of action pleaded by the plaintiff
8․In the original pleading and the first draft amendment, the plaintiff alleged that the defendants owed him a non-delegable duty to take reasonable care to protect him from a risk of harm, namely, sexual abuse by adult members of the Scout group including the Scout Leader. The original statement of claim also included an allegation that the defendants were vicariously liable for the acts of the Scout Leader. That allegation was in turn based on alternative allegations that the Scout Leader was employed or engaged by the defendants, that he was acting as their servant or agent and that the defendants and the Scout Leader were part of a joint enterprise in the course of which the sexual assaults occurred.
9․The allegation that the Scout Leader was acting as the agent of the defendants was ill-fated from the outset. Although pleaded under the heading “vicarious liability”, it was not properly characterised as such. Agency is “a primary liability: the acts of another are attributed to the defendant on the basis that they were part of a joint enterprise, or procured, authorised or ratified by the defendant”: CCIG Investments Pty Ltd v Schokman [2023] HCA 21; 278 CLR 165 at [50]. In the original pleading in the present case, it was not alleged that the sexual assaults were committed with the defendants’ authority or ratified by them. Furthermore, it seems unlikely that any such allegation could be maintained. The allegation of joint enterprise was similarly doomed to fail on the allegations pleaded.
10․As to the allegation of vicarious liability based on the contention that the Scout leader was “employed and/or engaged” by the defendants, the pleading did not include any material facts that would sustain a claim based on formal employment. To the extent that it was based on a form of engagement that was something less than formal employment, that aspect of the claim was scotched by the publication just two weeks after the commencement of the proceedings of the decision of the High Court in Bird v DP (a pseudonym) [2024] HCA 41, where it was held that the boundaries of vicarious liability should not be extended beyond a relationship of employment to one that is only “akin to employment”: at [47] (Gageler CJ, Gordon, Edelman, Steward and Beech-Jones JJ; Gleeson J contra at [100]).
11․Absent any allegation of employment of the Scout Leader by the defendants and following the decision in Bird, the only paths to liability available to the plaintiff are breach of a duty to take reasonable care, which I will term “direct negligence”, and breach of a non-delegable duty of care. In saying so, I appreciate that breach of a non-delegable duty is also a form of direct liability but am simply seeking to distinguish between the two kinds of duty. As explained by Leeming JA in Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle v AA [2025] NSWCA 7 at [165] (Bell CJ and Ball JA agreeing at [13] and [253]):
A non-delegable duty amounts to a warranty that the person engaged by the defendant will exercise reasonable care. Sometimes indeed such duties are described as “vicarious”, although that label is unfortunate, as Edelman and Steward JJ observed in CCIG Investments Pty Ltd v Schokman (2023) 278 CLR 165; [2023] HCA 21 at [63]. Such a duty to ensure performance is owed directly by the defendant, and is breached when the person engaged fails to exercise reasonable care. Accordingly, there is nothing “vicarious” about it. But such a duty departs from the basic principles of liability and negligence, “by substituting for the duty to take reasonable care a more stringent duty, a duty to ensure that reasonable care is taken”: Commonwealth v Introvigne (1982) 150 CLR 258 at 271; [1982] HCA 40.
12․After reserving my decision, I identified two issues concerning the duty of care pleaded by the plaintiff that had not been addressed by the parties as to which I considered I should give them an opportunity to be heard.
13․First, while the first draft amendment explicitly pleaded the duty as a non-delegable duty of care, aspects of the pleading suggested that it was intended (instead or as well) to allege direct negligence.
14․Secondly, Scouting NSW had not addressed the hurdle faced by the plaintiff in seeking to allege the existence of a non-delegable duty to protect him from the criminal act of another.
Nature of the duty pleaded
15․The first issue requires some explanation. The plaintiff in Bird (who was referred to as DP) had claimed that the Diocese was directly liable to him in negligence for sexual assaults committed against him by a priest but that claim failed at first instance. The plurality in the High Court explained at [3]:
The Diocese admitted that it owed a duty of care to DP in relation to the conduct of priests appointed to the parish in their dealings with parishioners and their families. The primary judge found that the relevant risk of harm was that Coffey in the course of his pastoral duties might assault a parishioner's child but did not accept that the Diocese knew or ought to have known of that risk prior to 1971 or during 1971. The primary judge held that the second condition of DP's case on negligence – foreseeability of risk – was not met and that the Diocese was therefore not liable for the breach of duty it owed to DP. DP did not appeal that finding.
16․In the High Court, in addition to arguing that the Diocese was vicariously liable for the harm caused by the sexual assaults committed by one of its priests on the basis that the relationship between church and priest was “akin to employment”, DP attempted by notice of contention to make a claim for the first time based on the existence of a non-delegable duty of care. The contention was “that the Diocese, through the Bishop, is liable to DP for breach of a non‑delegable duty owed to DP to protect him from the risk of sexual abuse by its priests, including Coffey, in the course of Coffey's functions and duties as a priest and as a representative, servant or agent of the Diocese”.
17․The High Court dismissed the notice of contention, primarily because the imposition of such a non-delegable duty had not been raised at trial or in the Court of Appeal: at [40]-[43].
18․In the original pleading and the first draft amendment in the present case, the plaintiff explicitly pleaded that the duty of care he alleges was owed to him by the defendants was a non-delegable duty.
19․The duty alleged by the plaintiff was pleaded in terms that were similar to, but did not exactly replicate, the terms of the notice of contention in Bird. Although the difference is subtle, the duty as pleaded did not sit comfortably with the High Court’s discussion of that issue in Bird.
20․The plurality in Bird described a non-delegable duty in the following terms at [36]:
A “non‑delegable” or “personal” duty of care is “a duty ... of a special and 'more stringent' kind”. It is not merely a duty to take care, but a “duty to ensure that reasonable care is taken”; to “ensure that the duty is carried out”; or to “procur[e] the careful performance of work [assigned] to others”. Liability for breach of a non-delegable duty is therefore direct – not vicarious. (citations omitted)
21․The duty pleaded by the plaintiff in the present case was not a duty to protect him from the risk of sexual abuse (as pleaded in the notice of contention in Bird), or to ensure that reasonable care was taken to protect him from that risk (as set out in Bird at [36]), but as a duty “to take reasonable care to protect the plaintiff from a risk of harm, namely, sexual abuse by adult members of the Scout group, Scout Leaders or Assistant Scout Leaders, including the perpetrator, in their conduct towards minor members of the group”.
22․The inclusion of the qualifying words “to take reasonable care” to protect the plaintiff suggested that it may have been intended to allege direct liability in negligence, rather than (or in addition to) breach of a more stringent, non-delegable or “personal” duty to ensure that reasonable care was taken. As stated by Gleeson CJ in New South Wales v Lepore [2003] HCA 4; 212 CLR 511 at [25], a non-delegable duty is “more stringent than a duty to take reasonable care; it is a duty to ensure that reasonable care is taken”.
No personal duty to protect against another’s intentional criminal act
23․The second issue also requires explanation. The decision of the High Court in Lepore has been taken to hold that there can be no non-delegable duty to ensure that a delegate does not commit an intentional criminal act. That was the understanding of Lepore held by the NSW Court of Appeal, after hearing argument to the contrary, in AA at [156]-[168].
24․However, it does not follow that a claim alleging the existence of a duty to ensure that reasonable care was taken to protect the plaintiff from the risk of sexual abuse must necessarily be struck out.
25․In both Bird and AA, judgments at first instance were entered for the plaintiff based on vicarious liability and those judgments were set aside on appeal (in Bird, by the High Court; in AA, by the NSW Court of Appeal applying Bird). In each appeal, the plaintiff filed a notice of contention seeking to uphold the primary judgment on the basis of breach of a non-delegable duty. In each appeal, an impediment to the success of the notice of contention was the fact that the point had not been pleaded at first instance, which meant that the findings of fact needed in order to determine the claim on that alternative basis had not been made by the trial court: see Bird at [40]-[41]; AA at [156].
26․Each appellate decision emphasised the importance of identifying the nature and content of the particular duty and responsibility allegedly owed as a non‑delegable duty. In Bird at [42], the High Court said that the fact that those matters had not been identified or pleaded at trial, or addressed during the course of the trial, was significant because the notice of contention might have required the Court “to reopen and overrule” its decision in Lepore “that a non‑delegable duty cannot arise for an action based upon intentional wrongs by delegates”. In AA at [158]-[160], Leeming JA (with whom Bell CJ agreed on all issues and Ball JA agreed on this issue) considered and rejected an argument that the plaintiff’s reliance in that Court on a non-delegable duty was consistent with what was held in Lepore and not precluded by the High Court’s decision in Bird. His Honour acknowledged that “Lepore may require revisiting in light of more recent cases culminating in Bird”, while explaining in obiter dicta the reasons for his view that “the position established by what has been said in Lepore and Bird is correct in principle”: at [162]-[168].
27․Those observations in both appeals implicitly assume that there will be cases in which it will be appropriate not to exercise the discretion to strike out a pleading even if, on the existing state of the law, it discloses no reasonable cause of action. If the cause of action invoked raises issues of such importance and complexity as might warrant the attention of an appellate court, particularly if it raises the spectre of the High Court being invited to revisit one of its own decisions, a puisne judge might properly stay her hand in such a case rather than accede to a demurrer application. That is a necessary incident of the doctrine of precedent.
Further submissions
28․As neither of the issues I identified after reserving my decision had been addressed when the application was first argued, I invited further submissions from the parties. Sadly, the opportunity to debate whether Lepore “may require revisiting in light of more recent cases culminating in Bird” (Leeming JA in AA at [162]) or the proper understanding of the content of a non-delegable duty (does it make sense to plead a non-delegable duty as a duty to take reasonable care to protect the plaintiff from a risk of harm?) was missed. The plaintiff addressed the issues raised by the Court by simply seeking to delete the words “non-delegable” from the pleading and confining his claim to direct negligence.
29․For the reasons already explained, left to my own devices (and subject to hearing from the parties as to the content of any non-delegable duty), I would not have struck out the pleading solely on the basis that it pleaded a non-delegable duty to ensure the plaintiff was protected from intentional criminal acts. As the law presently stands, that claim faced the hurdle of Lepore. However, the logical corollary of the High Court’s dismissal of the notice of contention in Bird on the ground that a non-delegable duty had not been pleaded at first instance is that a trial court could properly decline to exercise its discretion to strike out a pleading that seemed to raise the issue in circumstances that might test the parameters of Lepore. The High Court evidently considered that, for the point to be tested in that Court, it would be preferable to have findings of fact made at first instance to frame the issue, even if the claim was doomed to fail at first instance.
30․Scouting NSW noted that the relationship between a Scout and a Scouting organisation is not one that has previously been held to give rise to a non-delegable duty. However, as stated by Gleeson CJ in Lepore at [5], “the ambit of duties that are regarded as non-delegable has never been defined”. At [25], his Honour explained that the reason for imposing a non-delegable duty in the case of schools is “the immaturity and inexperience of pupils, and their need for protection”. It is not beyond the realms of possibility that such a duty might be imposed on a Scouting organisation under whose auspices groups of young boys or girls are taken into the forest for a week under the supervision of Scout Leaders in place of their parents.
31․In any event, the plaintiff’s counsel having abandoned that claim, the defendants’ application falls to be determined on the premise that the only claim is direct liability for negligence.
The requirement to plead material facts
32․The plaintiff is required to plead the material facts relied upon to establish negligence: that a duty of care was owed by the defendants, that the duty was breached and that the negligence caused harm to the plaintiff. On the matter of breach, Mr Sleight, who appears for Scouting NSW, noted the importance of having regard to the matters listed in s 43 of the Civil Law (Wrongs) Act 2002 (ACT).
33․Mr Sleight submitted that the amended pleading is liable to be struck out because it pleads the elements of negligence only as conclusions and fails to plead the material facts from which those conclusions might be drawn. He noted the important distinction between material facts and particulars, citing the decision in Bruce v Odhams Press [1936] 1 KB 697 at 712-3 (Scott LJ):
The word “material” means necessary for the purpose of formulating a complete cause of action; and if any one “material” fact is omitted, the statement of claim is bad; it is “demurrable” in the old phraseology, and in the new is liable to be struck out…
34․As Scott LJ noted in the same passage, particulars are not to be used to fill gaps in a demurrable statement of claim. Their purpose is to enable the defendant to know the case he has to meet.
The pleadings
35․Paragraphs 1 to 3 of the second draft amendment identify the parties.
36․At paragraphs 4 to 8 of the pleading, the plaintiff sets out the material facts said to give rise to the existence of a duty of care. He pleads, in short, that he was a member of the Wanniassa Scout Group between 1976 and 1985; that, as a member of that Scout Group, he attended, participated in and subjected himself to regular activities offered, organised and supervised by the Scout Group (the activities are listed); that at all times when he engaged in those activities, he was a minor and was subject to the supervision, authority, direction, discipline and guidance of the Scout Leaders or Assistant Scout Leaders in the place of his parents; that Scouting NSW and Scouting ACT were each exclusively responsible for the care, control, management and operation of his Scout Group for the periods specified and that, from about 1979, the man referred to in the pleading, pre-emptively, as “the perpetrator” was a member of the Garran Scout Group and held various leadership roles within the Garran and Wanniassa Scout Groups in accordance with warrants issued to him by the defendants. It is not alleged that the perpetrator was known at that time to have committed sexual offences against boys or otherwise engaged in inappropriate behaviour.
37․As to the list of Scouting activities, I accept the plaintiff’s submission that he is “not required to particularise in order to establish his cause of action every single time, date, place and attendee at every activity that he attended in the nine years that he was a member of the scout group”.
Risk of harm
38․At paragraph 9 of the pleading, it is (now) alleged that, in the premises, the defendants owed the plaintiff “a duty to take reasonable care to protect the plaintiff from a risk of harm, namely, sexual abuse by adult members of the Scout Group, Scout Leaders or Assistant Scout Leaders, including the perpetrator, in their conduct towards the minor members of the Scout Group”.
39․I did not understand the defendants to contest the existence of a risk of adult members of a Scouting organisation sexually assaulting minor members of the organisation during Scouting activities. If I am wrong and that point was taken, I reject it. Whether or not the risk was known or sufficiently understood in times past, it was a risk that existed. That much is now notorious.
40․Contrary to the defendants’ submissions, and subject to what follows, I do not accept that the fact that what is pleaded is a generic risk posed by any Scoutmaster, as opposed to a particular risk posed by a known sex offender.
Foreseeability
41․The more difficult question is whether the plaintiff has pleaded the material facts required to support the elements specified in s 43 of the Civil Law (Wrongs) Act that the risk was foreseeable (s 43(1)(a)) and not insignificant (s 43(1)(b)).
42․Section 43 provides:
43 Precautions against risk—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 deciding whether a reasonable person would have taken precautions against a risk of harm, the court must consider the following (among other relevant things):
(a)the probability that the harm would happen if precautions 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 creating the risk of harm.
43․Those elements are addressed in paragraphs 10 to 12 of the second draft amendment. Paragraph 10 alleges that the risk of harm from being subjected to sexual abuse by adult members was a foreseeable risk that “was, or ought to have been” known by the defendants. Paragraph 10A alleges that the risk ought to have been known “due to the common knowledge and expertise of others in similar positions” to the defendants, “public notoriety of the risk of harm, publications containing academic and historical exposition of the risk that should be read by people in positions of leadership or management” of the defendants.
44․Paragraph 11 alleges that the risk of harm was “not insignificant, such that a reasonable person in the position” of the defendants “would have taken precautions against that risk, and that if such precautions were not taken, it was probable that the plaintiff or other members of the Scout Group would have been the victims of sexual abuse” by the adult Scout leaders. As I will explain, the last of those allegations appears to reflect a misconception of the effect of s 43(2)(a) of the Civil Law (Wrongs) Act 2002 (ACT).
45․Mr Sleight submitted that the pleading fails to plead material facts sufficient to support the allegation that the risk was a foreseeable risk of which the defendants had either actual or constructive knowledge.
46․A comparison with the decision in Bird is helpful in this context. As already noted, in that case, the Diocese admitted that it owed a duty of care to DP in relation to the conduct of priests appointed to the parish in their dealings with parishioners and their families. The pleadings in the present case provide the facts necessary to enable the defendants to decide whether they would similarly admit that they owed a duty of care to the plaintiff in relation to the conduct of adult Scouts holding warrants to act in positions of leadership in their dealings with boy Scouts.
47․However, that is not the end of the matter. The risk of harm considered in Bird was that a particular priest in the course of his pastoral duties might assault a parishioner’s child. The point on which the plaintiff lost was that it was not proved that the Diocese knew or ought to have known of that risk prior to 1971 or during 1971. The second condition of the case on negligence – foreseeability of risk – was not met and the Diocese was therefore not liable for breach of the duty it owed to DP.
48․Likewise, in AA, the NSW Court of Appeal held that no duty of care was owed, not because there existed no risk of sexual assault of parishioners by priests but because the evidence at the trial did not support the alleged “awareness which Bishops and other senior members of the Church then had about the risks which its priests could pose to children” in 1969. The Chief Justice stated that, in that event, no duty was owed whereas s 43 has been characterised as a matter going to breach, but nothing turns on that for present purposes.
49․The question here is whether the plaintiff has pleaded material facts sufficient to support the allegation that the risk of sexual abuse of boys in the Scouts by adult Scoutmasters was a risk that “was, or ought to have been” known by Scouting NSW in 1980 or by Scouting ACT from March 1981.
50․A similar pleading issue was considered by Garling J in PWJ1 v The State of New South Wales [2020] NSWSC 1235. The plaintiff in that case claimed damages arising from sexual and physical assaults he suffered as a child whilst a resident at various institutions for which the State of NSW was responsible. In considering whether to grant leave to amend the statement of claim to plead what I have termed “direct negligence” (breach of a duty to take reasonable care), his Honour said at [54]:
Here, as is obvious, the plaintiff claims to have suffered personal injury, the direct and immediate cause of which was the deliberate criminality of those who sexually or physically abused him. Because the defendants are not the perpetrators of the criminal conduct, the question arises as to what the facts, matters and circumstances are which become the integers upon which a duty of care is constructed, as between plaintiff and defendant, such that the defendant is liable for that criminal conduct of others.
51․In PWJ1 at [75], Garling J described the kinds of matters that might be pleaded to establish constructive knowledge (echoing similar remarks his Honour had made in Garzo v Liverpool / Campbelltown Christian School Limited [2011] NSWSC 292 at [70]):
In my opinion, the plaintiff must plead (and then prove at trial) that the defendant, at the date of the alleged negligence, knew of the alleged risk of harm, or else, by reference to other facts, matters and circumstances ought to have known it. Those other matters will vary from case to case but may include such things as the prior behaviour of an institution with respect to similar behaviour by the perpetrator or even another perpetrator, common knowledge and experience of others in the similar position of the defendant, an accumulation of complaints being made, public notoriety of a particular risk of harm, publications and academic knowledge which might be expected to be read by people in the defendant’s position and the obviousness or the likelihood of the event happening in the application of common sense.
52․The pleading propounded by the plaintiff in the present case parrots those words without giving them any content. As already noted, the plaintiff alleges that the risk of harm from sexual abuse was or ought to have been known “due to the common knowledge and expertise of others in similar positions” to the defendants, “public notoriety of the risk of harm, publications containing academic and historical exposition of the risk that should be read by people in positions of leadership or management” of the defendants. But what Garling J was saying (with respect, correctly) in PWJ1 was that it is necessary to plead the material facts relied upon to establish those conclusions. That is not to say that the plaintiff is required to plead the evidence he will adduce at trial. However, he is required to plead, for example, facts capable of sustaining the conclusion that the risk of sexual abuse of Scouts by Scoutmasters had gained public notoriety by 1980, such as (if it be the case) that particular allegations had been widely disseminated or that an inquiry had been demanded or held: cf BTM1 v Scout Association of Australia New South Wales Branch [2023] NSWSC 431 at [8].
53․For those reasons, I consider that the plaintiff should be required to replead the element of foreseeability.
No requirement to plead abuse was “probable” if precautions not taken
54․I noted earlier that, in pleading that the risk was not insignificant, and that a reasonable person in the position of the defendants would have taken precautions against that risk, the pleader has added “and that if such precautions were not taken, it was probable that the plaintiff or other members of the Scout Group would have been the victims of sexual abuse”. I said I would explain why that additional allegation appears to reflect a misconception of the effect of s 43(2)(a) of the Civil Law (Wrongs) Act 2002 (ACT).
55․Section 43 is set out in full above. The section provides that a person is not negligent in failing to take precautions against a risk of harm unless three conditions are satisfied. The first two concern the risk. It must be a risk that was foreseeable (that is, one of which the person knew or ought to have known) (s 43(1)(a)) and a risk that was “not insignificant” (s 43(1)(b)).
56․The third condition concerns the precautions. In addition to the requirements of s 43(1)(a) and (b), a person is not negligent in failing to take precautions against a risk of harm unless, in the circumstances, a reasonable person in the person’s position would have taken those precautions: s 43(1)(c).
57․Section 43(2) guides the determination of that third condition of liability. It requires the court, in deciding whether a reasonable person would have taken precautions against a risk of harm, to consider (among other relevant things) “the probability that the harm would happen if precautions were not taken”. As I read the section, contrary to the assumption implicit in the plaintiff’s pleading, that does not mean a plaintiff must prove it was “probable” that the harm would happen if the precaution was not taken. As noted by the Court of Appeal in Austen v Tran [2023] ACTCA 44 at [64], s 43 recalls the principles relating to breach of duty in Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40 at 47-8 (Mason J). The Court explained at [68]:
The Ipp Panel proposed that the “formula laid down in Shirt” be modified by replacing the phrase “not far-fetched or fanciful” with a phrase indicating a risk that carries a higher probability of harm, favouring the phrase “not insignificant”. The result is s 43 of the Civil Law (Wrongs) Act and corresponding provisions which lay down a series of conditions and mandatory considerations for determining whether liability in negligence is established. They are of the first importance in identifying the proper starting point: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; 239 CLR 420 at [11] (French CJ, Gummow, Hayne, Heydon and Crennan JJ). Although s 43 appears in Part 4.2 of the Act titled “Duty of care”, the conditions and mandatory considerations in s 43 are directed to the breach question: Adeels Palace at [13]; see also, Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2022] HCA 11; 273 CLR 454 at [97]-[98] (Gordon, Edelman and Gleeson JJ). In relation to the magnitude of the risk, s 43(1)(b) provides for a threshold that the risk must have been “not insignificant”. Subject to this threshold, the mandatory considerations in s 43(2) are similar to the type of things that would be relevant under the formulation in Shirt, and under the principles referred to by Gummow J in Roads and Traffic Authority (NSW) v Dederer at [18] with which there are clear parallels: see, Cornwall v Jenkins as Trustee for the iSpin Family Trust [2020] ACTCA 2; 15 ACTLR 233 at [27] (Burns and Loukas-Karlsson JJ, and Crowe AJ).
58․Nothing in the language of the section or the circumstances in which it was enacted suggests that the mandatory consideration in s 43(2)(a) was intended to impose a requirement to prove that any particular harm was “probable” if reasonable precautions were not taken. Unless I have overlooked some authority to the contrary, it is not necessary for the plaintiff to plead or prove that allegation.
Reasonable precautions
59․Scouting NSW further submitted that the plaintiff has failed to plead the material facts necessary to support the reasonable precautions he contends a reasonable person in the defendants’ position would have taken.
60․The precautions specified as those a reasonable person in the position of the defendants would have taken in the circumstances (cf s 43(1)(c)) are:
(a)Adhering to the Scouts Organisation Rules (as in force or operation from time to time);
(b)Ensuring that individual minor members of the Scout Group were not groomed for, or subjected to, sexual activity whilst engaged in Scouting activities;
(c)Interviewing and vigorously screening adult members, Scout Leaders and Assistant Scout Leaders of the Scout Group, including the perpetrator, prior to, and during their appointments;
(d)Investigating the background of Scout Leaders and Assistant Scout Leaders of the Scout Group, including the perpetrator during their appointments;
(e)Supervising and monitoring Scout Leaders and Assistant Scout Leaders of the Scout Group, including the perpetrator, during their appointments;
(f)Establishing and implementing policies and protocols to identify the situations and circumstances where immoral acts could occur and to prevent sexual grooming of and sexual activity with minor members of the Scout Group;
(g)Properly investigated and screened the conduct of the perpetrator as Assistant Scout Leader before appointing him as the Scout Leader of the Scout Group;
(h)Immediately terminating the perpetrator’s warrant following his conduct;
(i)Devising, implementing and maintaining a system whereby minor members of the Scout Group were encouraged and facilitated to report to the First Defendant and/or Second Defendant misconduct (including sexual misconduct) by adult members of the Scout Group, Scout Leaders and Assistant Scout Leaders;
(j)Providing training to adult members with respect to how to treat children, how to identify improper conduct, and how to respond to such conduct; and
(k)Undertaking regular risk assessments and/or hazard identification of scouting activities involving minors.
61․Those particulars closely mirror the language of the breaches of duty pleaded in BTM1 at [11], which suggests that the two pleadings were modelled on the same source. It should go without saying that there is no point in replicating the allegations pleaded in another case unless the facts of the case at hand are the same. Borrowing ideas from another pleading should not be undertaken at the expense of giving careful consideration to the facts of the case to be pleaded.
62․It is not clear how careful the process was here. For example, one of the breaches of duty alleged in BTM1 was “failing to terminate the perpetrator’s warrant following his conduct” described earlier in the pleading. In the earlier paragraphs referred to, it was alleged that the person accused of sexually assaulting the plaintiff (again referred to as “the perpetrator”) had engaged in “initiation rituals” that involved pulling boys’ pants down and rubbing toothpaste on their genitals, organised overnight hikes during which he encouraged boys to sleep in his sleeping bag with him and organised overnight hikes during which he sexually assaulted boys). As set out above, the plaintiff in the present case has pleaded an allegation at 11A(h) of the second draft amendment, evidently borrowed from BTM1, that a reasonable person in the position of the defendants would have taken the precaution of “immediately terminating the perpetrator’s warrant following his conduct”. However, unlike in BTM1, there is no allegation in the present case that there was any inappropriate or unlawful conduct by Mr Sheerer other than the assaults complained of by reason of which anyone might have known that his warrant should be terminated. Accordingly, the allegation doesn’t make sense in the present case. It becomes one of failure to lock the stable door after the horse has bolted.
63․A central factual allegation in the present case appears to be that the defendants should not have permitted Scoutmasters to require boys to sleep in their tents and should have had protocols and protections to prevent that from occurring. Mr Steiner, who appears for the plaintiff, noted that, in correspondence responding to a request for further particulars, the plaintiff’s solicitor specifically alleged as a particular that the perpetrator was permitted, allowed or encouraged to share a tent with an unrelated minor during camping or hiking trips organised by the defendants. If that is relied upon as a breach, it should be pleaded as a material fact. I note that Mr Steiner could easily have added that allegation when he provided the second draft amendment following the further oral submissions last Friday. The only amendment made at that time was to delete the word “non-delegable”.
64․The plaintiff sought to address the defects identified in the pleading by reading the affidavit of Olexa Matouk dated 2 May 2025. Annexure B to that affidavit was an extract of information provided by the Scout Association of Australia to the Royal Commission into Institutional Responses to Child Sexual Abuse. Mr Steiner relied on the fact that, between 1908 and 1958, the Scouts, then under the auspices of the British Boy Scouts Association, had a Policy, Organisation and Rules document. Rule 72 of that document stated that, in light of the “dangers which have been found to exist”, Scouting groups must take “every precaution to ensure that no one whose moral character is open in any way to suspicion should be admitted”. It was suggested that this rule formed a basis for inferring that the risk of harm posed by adults to minor members of scouts was known as early as 1938. Further reference was made to the Australian Scouts’ rules promulgated in 1961, which re-iterate the need for Scouting organisations to be vigilant concerning those whose “moral character is open… to suspicion”.
65․If those are matters to be relied upon to establish that the generic risk of sexual abuse of boys by adult Scout leaders was known in 1980, the material facts should be pleaded (the fact that there were rules, their promulgation and so on). The documents in question should be identified by way of particulars. I accept that particulars may be provided by correspondence: r 433(2) of the Court Procedures Rules 2006 (ACT). However, the underlying material facts that demonstrate their relevance must be pleaded.
66․As a final observation, I respectfully endorse the remarks of Garling J in BTM1 v Scout Association of Australia New South Wales Branch at [142] where, having noted the absence of any decided case involving an allegation of liability of a Scouting organisation for sexual abuse of a Scout, his Honour said:
None of these remarks are intended to doubt that an organisation such as the defendant may be found liable for a perpetrator’s conduct such as that alleged in the present case, but careful attention must be paid to the particular facts and circumstances, including whether there is any actual knowledge of a perpetrator’s conduct or tendencies, and what was done to supervise the particular individuals and activities.
67․Similarly, in the appeal from Garling J’s decision in Garzo (which was dismissed), the NSW Court of Appeal said in respect of the NSW equivalent of s 43: “[t]o address the questions and considerations in s 5B, it is necessary to formulate a plaintiff's claim in a way which takes account of the precautions which it is alleged should have been taken and identifies the risk or risks of harm which the plaintiff alleges eventuated and to which those precautions should have been directed”: Garzo v Liverpool / Campbelltown Christian School [2012] NSWCA 151 at [22] (Meagher JA).
Conclusion and orders
68․For the foregoing reasons, I am satisfied that the plaintiff has pleaded the material facts of the elements of the existence of a duty to take reasonable care to protect the plaintiff from a risk of harm, namely, sexual abuse by adult members of the Scouts. It may be accepted, without more, that that risk of harm was not insignificant. However, the plaintiff has not pleaded material facts to support the allegation that the risk was foreseeable. Furthermore, the precautions it is alleged a reasonable person would have taken appear to have been borrowed from another pleading and plainly require revisiting; some are capable of being relied on in the present case; others are not. One alleges a duty “to ensure”, which appears to be a hangover from the now abandoned claim for breach of a non-delegable duty.
69․Accordingly, the amended statement of claim should be struck out with leave to replead. Leave will not be granted to file an amended pleading in the form of the draft second amendment.
70․I make the following order:
(1)The amended statement of claim dated 26 February 2025 is struck out with leave to replead.
| I certify that the preceding seventy [70] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum Associate: Date: |
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