Skarbek v The Society of Jesus in Victoria
[2017] VSC 545
•13 September 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST
S CI 2015 06439
| JANUSZ SKARBEK | Plaintiff |
| v | |
| THE SOCIETY OF JESUS IN VICTORIA (ACN 004 238 948) & ORS | Defendants |
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JUDGE: | JUDICIAL REGISTRAR CLAYTON |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 28 August 2017 |
DATE OF JUDGMENT: | 13 September 2017 |
CASE MAY BE CITED AS: | Skarbek v The Society of Jesus in Victoria & Ors |
MEDIUM NEUTRAL CITATION: | [2017] VSC 545 |
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PRACTICE AND PROCEDURE – Application to amend pleadings – institutional abuse – whether pleadings sufficiently particularised – allegations of actual or constructive knowledge of abuse – allegations of foreseeability of risk of harm – case management – Civil Procedure Act (2010) (Vic) s 7 – Application granted in part.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Boas | Shiff & Company Lawyers |
| For the Defendant | Mr C Winneke QC | Tony Hargreaves & Partners |
JUDICIAL REGISTRAR CLAYTON:
The Plaintiff have leave to file an Amended Statement of Claim in substantially the form exhibited to the Affidavit of David Jackson of 23 June 2017 at exhibit DIJ-35, with the following amendments:
(a) at paragraph 17b, particulars v and vii, the words ‘or directed to’ be removed;
(b) at paragraph 45H the words from the second sentence starting ‘A6 saw Sneddon…’ to the end of the paragraph be struck out;
(c) at paragraph 45J the words ‘at least’ be struck out; and
(d) at paragraph 49A, particulars v, vi, vii and viii be struck out.
Background
The background to this matter is set out in the decision of Daly AsJ in Skarbek v The Society of Jesus in Victoria and ors.[1]
[1][2016] VSC 622.
This matter was before me on an application brought by Summons filed on 24 July 2017 by the Plaintiff, Mr Skarbek, for leave to amend his Statement of Claim.
Leave had previously been granted by Daly AsJ in her Honour’s ruling of 21 April 2017[2] (“the ruling”) to allow Mr Skarbek to amend his pleadings, subject to certain requirements.
[2]Skarbek v The Society of Jesus in Victoria and Ors Ruling (No 3).
Those requirements can be summarised as follows:[3]
[3]Ibid [25], [30]-[31].
(a) matters that are properly particulars must not be pleaded as material facts;
(b) Mr Skarbek must plead with greater clarity what precisely the defendants knew or ought to have known about various incidents alleged to have occurred; must provide an explanation of how and why the defendants knew or should have known of these incidents; and must explain how any such knowledge is linked to the foreseeability of risk of harm to Mr Skarbek;
(c) Mr Skarbek must be more precise as to whether teachers directed or sent students to Fr Byrne’s ‘private office’ or to his ‘private quarters’.
Daly As J determined that:
‘subject to some structural changes to aid the clarity of the pleading, the plaintiff should be permitted to amend his statement of claim to bring in the additional allegations detailed in the proposed amended statement of claim. The ‘case theory’ sought to be advanced by the plaintiff is tolerably clear: it is to the effect that the alleged assaults upon him by Fr Byrne and Mr Casey were not isolated incidents, but rather were one of a number of incidents of physical and/or sexual abuse perpetrated upon students by staff at Burke Hall during the relevant period, which were either not detected or were ignored by persons in a position of authority at the school. The conduct of persons in authority in ignoring or denying allegations which were made was said to have contributed to an environment where persons such as Fr Byrne, Mr Casey, and others could act with impunity. As such, and this is where further clarity is needed, the defendants (including its alleged agent, Fr Keaney) knew or ought to have known of the risk of harm to, among others, the plaintiff.’[4]
[4]Ibid [22].
Mr Skarbek submitted a Proposed Amended Statement of Claim (“PASOC”)[5] which he purports complies with Daly AsJ’s ruling.
[5]Affidavit of David Ian Anthony Jackson affirmed 23 June 2017, Exhibit DIJ-35.
The defendants say that the PASOC does not comply with the ruling and that leave should, accordingly, not be granted.
The PASOC
The defendants oppose many of the proposed amendments in the PASOC.
Their main concern is that Mr Skarbek has failed to set out the basis upon which the defendants either knew or ought to have known of incidents of sexual and physical abuse perpetrated upon students other than Mr Skarbek, or by staff other than those alleged to have abused Mr Skarbek (“other incidents”). The defendants say that Mr Skarbek has failed to set out how such knowledge resulted in a breach of the duty owed by the defendants to him. Counsel for the defendants submitted that ‘we are entitled to insist on a pleading which is not just clear enough, but sufficient to put the defendants on notice and the Court, of how it is and why the defendants should’ve known of these incidents.’
Allegations of actual or constructive knowledge of abuse
Mr Skarbek says that the defendants had actual knowledge of some abuse because it had either been complained about to, witnessed or perpetrated by Fr Keaney, an agent of the defendants. Mr Skarbek says that they ought to have known of other abuse because Fr Byrne abused multiple students at Burke Hall, other students recall Fr Byrne being violent and intimidating and a ‘reasonable and diligent person responsible for the administration of a school such as Burke Hall ought in such circumstances as pleaded to have known of the occurrence of such abuse.’[6].
[6]Refer to PASOC [49A(ix)].
The defendants complain that pleading that ‘a reasonable and diligent school administrator ought to have known of the occurrence of the abuse’ does not provide the necessary explanation sought by Daly AsJ as to how it is said that the defendants knew or should have known of these incidents.
The function of a pleading is, as set out by Dixon J in Wheelahan & Anor v City of Casey[7] ‘to alert the other party to the case they need to meet…and further to define the precise issues for determination so that the court may conduct a fair trial’. The pleading must satisfy the ‘cardinal rule’ that it ‘must state all the material facts to establish a reasonable cause of action’.[8]
[7][2013] VSC 316 [25].
[8]Ibid.
The PASOC sets out two specific incidents in which people are alleged to have complained to Fr Keaney, the headmaster of the school and alleged agent of the defendants, about abuse of persons other than Mr Skarbek.[9]
[9]Refer to PASOC [49A] and particulars therein.
Mr Skarbek alleges that on one further occasion his parents complained to Fr Keaney about Mr Skarbek being struck, including with a strap, by Mr Casey.[10]
[10]Ibid [23].
In addition to these three allegations of specific complaints being made to Fr Keaney, Mr Skarbek alleges that Fr Keaney publicly hit a student over the head with a cricket bat, and forced students to remain in a chapel where gas heaters were turned on but not ignited until a student ‘owned up’ to turning the heaters on. Fr Keaney then physically assaulted that student.[11]
[11]Ibid [45F].
Other than these occasions of what could be termed ‘direct knowledge’ of Fr Keaney about abuse occurring at the school, including abuse perpetrated by Fr Keaney, Mr Skarbek cites a number of occasions when incidents occurred in public such that they were witnessed by other students or other staff members.
For example, Mr Skarbek alleges that in 1972 Fr Byrne assaulted a student so severely that the student required urgent medical attention,[12] and that on at least 2 occasions between 1967 and 1971 staff members at Burke Hall witnessed Fr Byrne enter the classroom and verbally abuse students.[13]
[12]Ibid [45D(vi)].
[13]Ibid [49C].
Mr Skarbek also alleges that there were numerous occasions when he and other students were sent to Fr Byrne for physical punishment. Physical punishment included being beaten on all parts of the body and head with items including a strap. Staff who sent students to Fr Byrne for punishment knew, it is alleged, that such punishment included physical punishment.
Mr Skarbek sets out allegations of sexual and physical abuse made by other students against various staff members but does not suggest that this abuse was public or was actually known to the defendants or Fr Keaney at the time.
Mr Skarbek cites other students’ opinions of the school at the time as being ‘a violent brutal, disempowering place’, a ‘war zone’ and as having a ‘real culture of violent punishment’.[14]
[14]Ibid [49A(v)-(vii)].
Mr Skarbek pleads that:
A reasonable and diligent person responsible for the administration of a school such as Burke Hall ought, in such circumstances as pleaded to have known of the occurrence of such abuse. Such a person owes a duty of care to the students at the school which requires, among other things, the person to have in place measures to detect such abuse.[15]
[15]Ibid [49A(ix)].
Mr Skarbek submits that these allegations will either borne out by the evidence, or will not be made out, but that either way it is a matter for trial.
I consider that there are sufficient particulars of both actual knowledge of abuse and of abuse that was public such that a reasonable and diligent school might be expected to notice, that the pleading meets the requirements of Daly AsJ’s ruling as to how it is said that the defendants knew or ought to have known of the other incidents.
The claim against the defendants is not just that they knew or ought to have known of other incidents, but also that they failed to monitor and supervise staff, failed to investigate promptly and fully any allegation of misconduct and ignored or deterred complaints about abuse[16].
[16]Refer to PASOC [51] and the particulars therein.
The other incidents are relevant to Mr Skarbek’s allegation that the defendants were negligent because they did not promptly and fully investigate the allegations of misconduct they did know about.
His case is that they ought to have known about the abuse and would have known about the abuse if they had not ignored or deterred students from making complaints, or if they had fully and promptly investigated the allegations that were made.
It is a matter for trial as to whether Mr Skarbek is able to succeed in his allegations that abuse of other students by both Fr Byrne and other staff members was or should have been known by the defendants and that therefore they should have known of the risk of harm to him.
Breach of Duty
Daly AsJ required that the PASOC set out how the actual or constructive knowledge of the defendants about other incidents could be linked to the foreseeability of the risk of harm to Mr Skarbek.[17]
[17]Ruling [30].
Mr Skarbek pleads that the defendants owed him a duty to provide and maintain a safe and secure environment and that this duty included, amongst other things; ensuring that people working at Burke Hall were fit and proper for their duties, monitoring and supervising staff, and investigating promptly and fully any allegations of misconduct.
Mr Skarbek says that the defendants failed to provide such an environment by, amongst other things; appointing and retaining abusers such as Fr Byrne and Mr Casey even after becoming aware of allegations of abuse, failing to investigate allegations against abusers, and ignoring or deterring complaints of abuse.
It seems to me tolerably clear that the case Mr Skarbek makes is that if the defendants knew or should have known of abuse occurring, and did not take the steps that a reasonable school would have taken in response to that knowledge, then the defendants exposed students, including Mr Skarbek, to a foreseeable risk of harm.
The pleading of the actual or constructive knowledge is sufficient and therefore the pleading in relation to the foreseeability of risk of harm is also sufficient.
Byrne’s Rooms
Daly AsJ’s ruling also required that Mr Skarbek clarify whether teachers sent students to Byrne’s ‘private office’ or his ‘private rooms’.[18]
[18]Ruling [31].
The proposed amended Statement of Claim before Daly AsJ alleged that students would be taken or directed to Fr Byrne’s ‘private office or personal quarters’. The defendants complained that there was a difference between staff sending students to Fr Byrne in his private office, and staff sending students to Fr Byrne in his private rooms or personal quarters. Daly AsJ agreed that Mr Skarbek needed to clarify where exactly staff sent or directed students.
Mr Skarbek has now changed the way he pleads his case in this regard. Rather than distinguishing between Fr Byrne’s private office and private quarters or rooms, he defines ‘Byrne’s Rooms’ as the quarters in a building, Surbiton, in which Byrne had both an office and private rooms in which he lived. Mr Skarbek alleges that staff sent students to be disciplined in Byrne’s Rooms and knew or ought to have known that such students were at risk of being taken into the Byrne’s private quarters. He no longer alleges that staff directed students to Fr Byrne’s private quarters.
The allegation that staff knew or ought to have known that students were taken into Fr Byrne’s private quarters appears to rest on the fact that students were, in fact, taken into Fr Byrne’s private quarters. There is nothing in the particulars to indicate why staff or the defendants ought to have known that sending a student to Byrne’s Rooms would or might involve Fr Byrne taking that student into his private rooms.
It is put that staff were indifferent to whether discipline was administered in the personal quarters or the office.
It appears that the allegation Mr Skarbek is really making is that a school should not send a student to see a staff member who has private rooms next to his public office because the location of the public office next to private rooms poses a particular risk that students will be taken into the private rooms where abuse might occur. Such an allegation is founded on an assumption that there is greater risk to a student in being with a teacher such as Fr Byrne in private rooms as opposed to an office.
Counsel for the defendants submitted the case of Withyman[19] is relevant in that the New South Wales Court of Appeal found that staff at a school are not presumed to have known about a risk of sexual activity by another staff member.
[19]Withyman (by his tutor Glenda Ruth Withyman) v State of New South Wales and Blackburn; Blackburn v Withyman (by his tutor Glenda Ruth Withyman) [2013] NSWCA 10.
I do not consider that Withyman stands for the proposition that, because the State was found to be neither vicariously liable for, nor negligent in relation to the sexual activity of a staff member, vicarious liability and negligence of the defendants for sexual abuse committed by employee staff could not be made out in this case and therefore ought not be pleaded.
The facts of Withyman are very different from the facts in this case. In that case a female teacher was found to have engaged in a consensual sexual relationship with an eighteen year old student who had a learning disability. The Court held that:
If the State were to be found liable it was necessary to establish that the facts before, and evidence to, those at the school were such as to make it reasonably foreseeable that there was a risk that the teacher/student relationship between Ms Blackburn and Mr Withyman may become consensually sexual.[20]
[20]Ibid [122].
The Court went on, finding that:
The growth and movement of emotions, infatuation and desire can be unpredictable, swift and unforeseen. Such is the human condition. There is no basis, however, for the State to be criticized for failing to perceive the developing confluence of these emotions in Ms Blackburn. It was not reasonably foreseeable. The State was not negligent.[21]
[21]Ibid [131].
In relation to the vicarious liability of the State the Court held that:
The children at the school were or may have been more emotionally vulnerable than ordinary school students may be accepted. But the enterprise of teaching and guiding the young, even using gentle and forgiving familiarity does not create a new ambit of risk of sexual activity. Sexual activity is as divorced and far from the gentle caring teacher’s role as it is from the stern, detached disciplinarian’s. The connection and nexus was not such as to justify the imposition on the State for Ms Blackburn’s, apparently out of character, sexual misconduct. The school did not create or enhance the risk of such by her duties.[22]
[22]Ibid [143].
The conclusions of the New South Wales Court of Appeal in relation to both the negligence and vicarious liability of the State turn very much on the evidence in that case and do not, in my view, stand for a wider proposition that staff in schools generally cannot be presumed to know or suspect that sexual misconduct could occur.
One could certainly imagine circumstances in which staff or employers could be found by a court to have a presumptive knowledge of the risk of sexual or physical abuse by a colleague. As Gleeson CJ said in New South Wales v Lepore:[23]
A school authority may have been negligent in employing a particular person, or in failing to make adequate arrangements for supervision of staff, or in failing to respond appropriately to complaints of previous misconduct, or in some other respect that can be identified as a cause of the harm to the pupil The relationship between school authority and pupil is one of the exceptional relationships which give rise to a duty in one party to take reasonable care to protect the other from the wrongful behavior of third parties even if such behaviour is criminal. Breach of that duty, and consequent harm, will result in liability for damages for negligence.’[24]
[23][2003] HCA 4; 212 CLR 511.
[24]Ibid [2].
As for vicarious liability, Gleeson CJ went on to note that:
It cannot be said that the risk of sexual abuse ought to be regarded as an incident of the conduct of most schools, or that the ordinary responsibilities of teachers are such that sexual assaults on pupils would normally be regarded as conduct (albeit serious misconduct) within the scope of employment. However, there are some circumstances in which teachers, or persons associated with school children, have responsibilities of a kind that involve an undertaking of personal protection, and a relationship of such power and intimacy, that sexual abuse may properly be regarded as sufficiently connected with their duties to give rise to vicarious liability in their employers.[25]
[25]Ibid [67].
Whether or not any particular school or authority is negligent or vicariously liable for the acts perpetrated by staff will turn on the circumstances in which the abuse occurred.
As far as I can tell from the pleading, none of the allegations of the defendants’ actual knowledge of abuse relate to abuse that is said to have occurred in Byrne’s private rooms. It is not put that Fr Byrne only abused students in his private quarters. Mr Skarbek alleges that he was abused in multiple locations within the school, including the gymnasium and the tennis court.
Counsel for Mr Skarbek advised the Court that he could not say that students allege that staff members directed them specifically to Byrne’s private rooms. Rather it is Mr Skarbek’s case that students were told in a more general sense to go to see Fr Byrne, or go to Fr Byrne’s building or residence, and that students understood that this was a direction to go to Surbiton. Counsel submitted that, from the student’s perspective ‘they were being told to go see Byrne and they went and saw Byrne and that what Byrne did with them was then a matter entirely for Byrne’.
Mr Skarbek no longer alleges that staff sent or directed students to Fr Byrne’s private quarters.
Mr Skarbek is entitled to allege that the defendants knew or ought to have known that there was a risk that when a student went to ‘Byrne’s Rooms’, he would be taken to the personal quarters area of Byrne’s Rooms. Whether this allegation is made out is a matter for evidence at trial.
Mr Skarbek will also need to prove that, if the defendants did know or ought to have known that students would be taken to the personal quarters area of Byrne’s Rooms, they would be at risk of abuse in those rooms. Once again, whether this can be made out is a matter for evidence at trial.
However I am not satisfied that Mr Skarbek can allege that the defendants should have known that there was a risk that ‘when a student was taken to Byrne’s Rooms he would be taken to or directed to (emphasis added) the personal quarters of Byrne’s Rooms’.[26] It seems to me that by including the words ‘or directed to’ Mr Skarbek is alleging that the defendants knew that there was a risk that staff members would specifically direct students to go to Byrne’s private quarters, which allegation Mr Skarbek’s Counsel submits is not consistent with the evidence. The words ‘or directed to’ should thus be removed from particulars v and vii of paragraph 17b of the PASOC.
[26]Refer to PASOC [17b(v)].
Multiple Occasions
The defendants object to Mr Skarbek using the phrase ‘on multiple occasions’ at paragraph 45D. The defendants oppose the ‘rolling together’ of alleged sexual and physical abuse as the term is misleading.
The particulars at paragraph 45D set out in detail the allegations of abuse. There are six particulars of allegations of abuse. Particulars i, ii and iii involve both physical and sexual abuse, particulars iv, v and vi involve physical abuse only. Having regard to the particulars I do not consider that paragraph 45D is misleading nor that the use of ‘multiple occasions’ in inappropriate.
The defendants object to paragraph 45F on the basis that it alleges abuse by Fr Keaney between 1968 and 1973 and Mr Skarbek left the school in 1972 so that Fr Keaney’s behavior in 1973 is irrelevant.
Counsel for Mr Skarbek submits that Fr Keaney’s behavior in 1973 is relevant as it goes to his character generally, and therefore the knowledge of the defendants about abuse at the school, including abuse perpetrated by Fr Keaney. Whether evidence about Fr Keaney’s behavior in 1973 is admissible is a matter for trial but I do not preclude Mr Skarbek from pleading it and do not strike out this pleading.
The defendants object to particular iv of paragraph 45H on the basis that it is vague and unclear. I agree. There is no detail about when or to whom these incidents occurred - apart from ‘other students’- nor what is meant by ‘physically, sexually and psychologically abused’. The sentences ‘A6 saw Sneddon make other students do the same thing. A6 also saw and heard other students being physically, sexually and psychologically abused by Sneddon during class time’ should be struck out.
The defendants object to the use of the phrase ‘at least two occasions’ at paragraph 45J when only two occasions are cited. Counsel for Mr Skarbek submits that more allegations may arise as additional evidence is gathered. As only two occasions are known and particularised, the words ‘at least’ should be struck out.
The defendants object to particulars v, vi, vii and viii to paragraph 49A as they contain students’ descriptions about the school environment decades after alleged incidents which can have no relevance to any knowledge of abuse on the part of the defendants at the time. I agree that these particulars do no work in this pleading, and merely provide a sample of opinions of former students without specifying any allegations of abuse. These particulars should be struck out. Subsequent amendments to paragraphs 49B and 49C need to be made so that these particulars are not relied on.
The defendants object to paragraph 58 on the basis that Mr Skarbek has not provided adequate particulars of these serious allegations to enable the defendants to plead. Daly AsJ has already dealt with the defendants’ concerns about these allegations in her ruling and, notwithstanding her concerns about the viability of those claims, allowed them to stand. The defendants can seek further and better particulars of that paragraph if required. I do not propose to strike out the pleading.
Her Honour noted that those concerns could be best dealt with by active case management. To ensure that the overarching purposes of the Civil Procedure Act (2010) (Vic) are met and that there is just, efficient, timely and cost effective resolution of the real issues in dispute,[27] this matter will be referred to a judge in the trial division for active case management.
[27]Civil Procedure Act (2010) (Vic) s 7.
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