SR v Trustees of the De La Salle Brothers [2023] NSWSC 66
Background
On 10 February 2023, the Supreme Court of New South Waled handed down the judgement of Justice Cavanagh in the matter of SR v Trustees of De La Salle Brothers.
The Plaintiff was successful in his institutional child sex abuse claim against the Trustees of the De la Salle Brothers as a result of the abuse suffered at the hand of Errol Swain, a serial paedophile.
The Plaintiff was awarded damages in the amount of $1,330,304.60
Case Summary
During the period 1983 to 1984, the Plaintiff alleged he was subjected to sexual abuse and serious physical abuse by Errol Swain whilst he was a Year 6 and Year 7 student at the De La Salle College, Revesby Heights.
The sexual and physical abuse by Swain included:
- Being strapped on around 30 occasions for no reason at all;
- Touching, fondling and stroking the Plaintiff’s penis in various ways;
- Forcing the Plaintiff to perform fellatio; and
- Digital and anal penetration.
On 24 March 2021, the Plaintiff brought proceedings in negligence and vicarious liability against the defendant claiming damages for injuries suffered because of the abuse. The Plaintiff specifically alleged that:
1. The Defendant knew or ought to have known that Swain had a sexual interest in young boys. The actual or constructive knowledge came from direct complaints from parents to the principals (Brother Julian and Brother Michael) as to Swain’s conduct toward their children during the time of his employment.
2. Despite having knowledge of Swain’s tendencies, the Defendant placed Swain in a position of power, trust and intimacy vis-à-vis with the Plaintiff in the actual knowledge that he would abuse that power for his own sexual gratification.
3. The Defendant permitted Swain to live in a caravan located on the school premises for several years where the Plaintiff was lured into and sexually abused.
His Honour deemed that there were four main issues that had to be determined in the circumstance of this case:
1. Did the plaintiff suffer abuse at the hands of Mr Swain? Is so, under what circumstances and to what extent?
2. Is the defendant vicariously liable for the conduct of Mr Swain in perpetrating the sexual abuse?
3. To what extent and for what period has the plaintiff suffered psychological symptoms consequent of the abuse?
4. On what basis should damages be assessed?
The Abuse
His Honour accepted that the Plaintiff suffered the abuse as his version of the event was consistent with the evidence of a number of other persons who were similarly abused by Mr Swain. His Honour also accepted that there was sufficient evidence at trial to establish that the Defendant was aware of the propensity of Swain to abuse young boys.
The Court of Appeal Decision
With regard to vicarious liability, His Honour laid out observations of pertinent case law, particularly the relevant principles are set out in the decision of the High Court in Prince Alfred College Inc v ADC, to provide guidance to the circumstances in which the Defendant employer will be vicariously liable for the criminal conduct of its employee.
His Honour concluded the Defendant was vicariously liable for the conduct of Mr Swain and ultimately determined:
1. The defendant placed Mr Swain in a position of power, trust, authority, and control over the plaintiff when he was a young boy in Year 6.
2. Mr Swain used his position of power, trust and control over the plaintiff to require him to attend the caravan, even on the weekend.
3. The position of Mr Swain vis-à-vis the plaintiff provided both the opportunity and the occasion for Mr Swain to abuse the plaintiff. Mr Swain was put in a position by the defendant, such that he could exercise complete authority and control over the plaintiff and used his position of schoolteacher to molest and abuse the Plaintiff.
4. Finally, the defendant was aware of Mr Swain’s propensity toward young boys before the plaintiff commenced Year 6. Not only did the defendant provide the opportunity and occasion for Mr Swain to abuse the plaintiff, but it did so with forewarning of his propensity to engage in such conduct.
This is the first where a school has been found vicariously liable for the criminal conduct of an employee.
Damages
The Plaintiff made a claim for a total loss of approximately $6 million.
General and aggravated damages.
The court awarded general and aggravated damages in the amount of $300,000.00.
Exemplary damages
The court held this was not an appropriate case for exemplary damages to be awarded as against the defendant.
Loss of Income
Despite the Plaintiff brought a successful claim, His Honour was not satisfied that the Plaintiff’s mental health (which affected his earning capacity) is all related to Mr Swains’ abuse, instead is multifactorial. His Honour further determined that part of the Plaintiff’s loss of earning capacity was attributable to other non-compensable factors including his time spent in detention centre and his decision to be the primary caregiver of his children for a period of at least ten years.
In light of the above Justice Cavanagh determined that this should be a “loss of opportunity claim” and assessed the Plaintiff’s loss of earning capacity up to 2016 by way of a buffer in the sum of $150,000.00. His Honour accepted that the Plaintiff was unfit for work from 2016 to the day this judgement and awarded average weekly earnings during this period discounting the total by 50%. The total amount is $334,761.20.
For the purposes of assessing future economic loss, His Honour accepted that the Plaintiff is currently unfit for work, and it is highly unlikely that he will obtain any employment in the future. Notwithstanding this, Justice Cavanagh did not accept that the Plaintiff should received his full loss of earnings for the future due to his mental condition being multifactorial and discounted it by 40%. The amounts are $456,243.40 and $70,510.50 for loss of superannuation.
Interest
Interest was awarded at 2% on past general damages in the amount of $114,000.00.
Medical Expenses
An award of $20,000.00 was made for future medical expenses.
Conclusion
Justice Cavanagh awarded the Plaintiff damages as follows:
1. General and Aggravated Damages – $300,000.00
2. Interest on past general damages – $114,000.00
3. Past loss of income – $334,761,20
4. Interest of past income -34,789.50
5. Future loss of earning capacity – $456,243.40
6. Loss of superannuation – $70,510.50
7. Future medical treatment – $20,000.00
8. Total – $1,330,304.60