WJT v Trustees of the Marist Brothers; WXC3 v Trustees of the Marist Brothers; GAC v Trustees of the Marist Brothers (No 4) [2025] NSWSC 1017 (Link to Caselaw).
This was a joint hearing of three matters, as each plaintiff argued that they were sexually and or physically assaulted by the same lay schoolteacher (Hawkins) at a school in the 1990s. The teacher died in 1993.
As explained below, the Diocese sought to argue that the Marist Brothers jointly operated the school.
WJT (‘the first plaintiff’), WXC3 (‘the second plaintiff’) and GAC (‘the third plaintiff’) were formerly students at the school. The first plaintiff alleged that he was sexually abused by Mr Hawkins whilst on canoe camps; the second while on a canoe camp and that there was a physical abuse incident at the school; and the third alleged that he was sexually abused by Mr Hawkins in and around the classroom and school grounds, during and after school hours.
The claim by the first plaintiff was resolved and that of the second plaintiff succeeded. Ultimately the third plaintiff did not persuade the court that he was abused in the way he claimed to be. His claim was therefore dismissed.
Vicarious liability
As the relationship of employment between the school and Mr Hawkins was admitted, the contest turned upon whether the acts perpetrated by Mr Hawkins occurred in the course of his employment. ([300]).
Having appointed Mr Hawkins with the responsibility for canoeing and the canoe club, the second defendant Diocese – whether by conscious decision or neglect – left the running of it, including the activities the canoe club conducted, entirely up to him. ([326]).
Clearly, by appointing him to that role, Mr Hawkins had authority and power and, most importantly, the “ability to achieve intimacy” with the students who attended the canoe club camps. It is for those reasons, in line with the second plaintiff’s submissions, that I accept that the wrongdoing of Mr Hawkins should be regarded as committed in the course of his employment, with the consequence that the second defendant is vicariously liable for that wrongdoing. ([328]).
Cross claim
As explained at [17], the second and third plaintiffs sought damages against the second defendant (the Diocese). They alleged that the second defendant is directly liable for its failure to exercise reasonable care and is vicariously liable for the acts allegedly perpetrated upon them by Mr Hawkins. The second defendant seeks contribution from the first defendant (Marist Brothers) in respect of each of these claims, including the resolved claim brought by the first plaintiff.
The second defendant’s claim for contribution was founded upon two contentions, summarised for introductory purposes as follows.
447 First, the overarching and primary contention is that, whilst the second defendant was the authority that operated the school, the school was “jointly operated and/or administered” with the first defendant, such that the “care, control and management” of it was shared with the first defendant: FA2XC at [24], [28](a) and (b). On this argument, the first defendant owed the second plaintiff a duty of care that was co-extensive with theirs because of the first defendant’s “operational control” of the school and their appointment, relevantly, of Principals during the time of the second plaintiff’s enrolment: FA2XC at [30].
448 Secondly, the additional or alternative contention is that, if the first defendant was not jointly operating the school with it, the acts and omissions of the school Principals could be attributed to the first defendant by application of the principles of agency: FA2XC at [49](b).
At [507] the Court held that “In my view, contrary to what was argued by the second defendant, the evidence does not establish that the Provincial (and, thus, the first defendant) appointed the Principal. Rather, the evidence tends to establish that the Provincial would make a recommendation and consult with the Director of the CEO of the Diocese, who was “responsible” for that appointment. The fact that the Provincial rather than, say, the Director of the CEO, would make the announcement does not materially add to, less still alter, the position.”
The trial judge did not accept the argument of the Diocese that there was a joint operation of the school ([529]).
In relation to child protection policies as an aspect of joint control the court said at [544] – [546]:
The second defendant made multiple submissions about, or in connection with, child abuse matters or policies. These included a submission that the first defendant, at least by the late 1980s, was “confronted with a large number of complaints of child sexual abuse” which led to its making changes within its own structures and improving its child protection strategies by way of response. It also included a submission that the Provincial Council was “practically involved in the operation of its various schools…to ensure this emphasis on child safety carried through”. To this end, the second defendant argued that it was the “expectation of the Provincial Council” that the school Principal would take active steps, for example, “to promote child safety” and, by way of further example, to “implement adequate supervision and be receiving update reports from the Provincial and from the Bishop’s Committee in the area of child protection”. The matters raised in these submissions are, in my view, of limited significance and do not demonstrate, as the second defendant argued, the first defendant having joint control of the school.
There was a complex argument in which the Diocese sought to argue that the Principal was the agent of the Marist Brothers. That argument also failed.
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