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Case Study: Grant v Bird [2021] VSC 380

See also Case Study Update:  DP (a pseudonym) v Bird

Trigger warning: This blog contains explicit references to subject matter and material that may be traumatising or upsetting for survivors of institutional child sexual abuse and their families. Reader discretion is advised.

The recent decision in Grant v Bird (Supreme Court of Victoria) is an important reminder that – despite the retrospective abolishment of limitation periods for child sexual abuse claims – compensation claims arising from institutional child sexual abuse (as well as other historical abuse) must nevertheless be commenced as soon as possible.

In this case, the defendant was successful in arguing for a permanent stay of the court proceedings, on the basis that a fair trial would never be possible. In other words, the Court determined that it will not hear the matter, and this potential avenue for compensation is permanently closed to the plaintiff (an alleged survivor of child sexual abuse).

Some of the major factors influencing the Court’s decision include that:

  1. the alleged abuse took place 40 years ago; and
  2. the alleged perpetrator and key witnesses died in the meantime.

Background & Decision

  • The plaintiff, Mr D Grant, claimed that he was sexually abused as a young boy (when aged 8 or 9 years) by Catholic priest, Father Daniel O’Brien, in the religious housing at St Michael’s Catholic Church, Wycheproof (Ballarat Diocese), one Sunday after mass.
  • the alleged offending took place in around 1980-1981. However, it was not reported at that time.
  • The plaintiff first reported the alleged abuse in around 2003, but court proceedings were not commenced until October 2019.

*We note here that, due to the prohibitive limitation period in force in 2003, the plaintiff was likely statute-barred at that time from bringing his claim against the Catholic Diocese.

  • The defendant successfully argued that – because Father O’Brien died in 1985 and critical witnesses had also passed away – the Diocese had no way of knowing how the alleged culprit, or any witnesses, would have responded to this claim.
  • Ultimately, the Court granted the defendant’s application for a permanent stay on the following grounds [at paragraph 59]:
  1. I conclude, having regard to the effect on the quality of justice and the reliability of memory of the lapse of time since the alleged abuse occurred, the death of Father O’Brien before he was confronted by the allegation of abuse, the death of the only potential witness Mr Powell, the vagueness of the date on which the abuse is alleged to have occurred and the absence of evidence of surrounding circumstances against which the allegation can be tested, that it is manifestly and unjustifiably unfair to require the defendant to meet the case brought against him by the plaintiff.

In view of decisions like that in Grant v Bird, our recommendation to survivors and their families is always to seek legal advice at the earliest opportunity.

If you would like to speak to a solicitor for advice regarding institutional child sexual abuse, please contact our office on (02) 4050 0330 for an obligation-free consultation, or book an appointment online.

If reading this blog has upset you, or caused you emotional distress, and you would like some support and counselling, we encourage you to reach out to one of the leading support services listed below.

Beyondblue https://www.beyondblue.org.au/ 1300 224 636

MensLine Australia https://mensline.org.au/  1300 789 978

Lifeline https://www.lifeline.org.au/ 13 11 14

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