Trigger Warning: This case note contains references to subject matter and material that may be traumatising and/or upsetting for survivors of sexual assault, as well as their families. Reader discretion is advised.
SR, the plaintiff, filed a lawsuit against the De La Salle Revesby school (“the defendant”) in March 2021. The plaintiff alleged that he had been sexually abused multiple times by a teacher and groundskeeper at the defendant’s school, Mr Eron Swain. The alleged sexual abuse took place in 1983/1984 while the plaintiff was in Year 6 at the school. As a result of the abuse, the plaintiff suffered complex PTSD and depressive disorder, chronic anxiety, and enduring post-traumatic personality change. While Mr Swain had passed away by the time the plaintiff commenced legal proceedings, his presence wasn’t required in order for there to be a fair trial.
But why?
The plaintiff alleged that the defendant school had prior notice of Mr Swain’s tendency to abuse children. He alleged that two parents had complained about Mr Swain’s criminal conduct before the plaintiff was abused. The plaintiff further alleged that the principal in 1975, Brother Julian, had also been informed that Mr Swain was interfering with children. Brother Julian subsequently investigated, but ultimately decided that it would be safer for Mr Swain to stay at the school as they knew and could monitor him. In light of the above, the plaintiff argued that the defendant was vicariously liable for Mr Swain’s sexual abuse of him.*
*Vicarious liability is legal principal whereby one legal entity (e.g. the defendant’s school) is held responsible for the acts and/or omissions of another (e.g. Mr Swain).
Even if Mr Swain had been alive at the time the plaintiff commenced court proceedings, it is highly likely that the defendant school would still have been joined as a defendant. While it would have been more straightforward had Mr Swain been alive – given he was directly liable for the intentional wrongful acts perpetrated against the plaintiff – it is uncommon for individuals to have enough money and/or assets to satisfy a court’s judgment. In other words, even if a judgment was entered in favour of the plaintiff, Mr Swain would not have had the means to pay the judgment sum.
Survivors pursuing compensation will often join an institution/organisation as a defendant in legal proceedings if they can establish that the institution/organisation was arguably vicariously liable for the intentional, wrongful acts of a person entrusted with the care of vulnerable persons. This is often a necessary step, not only to hold that institution/organisation to account for its role in allowing the abuse, but also because such institutions/organisations usually have the means to pay the relevant award of damages or settlement sum..
One of the primary issues considered by Justice Cavanaugh in this case was whether the plaintiff had suffered abuse perpetrated by Mr Swain. Her Honour considered that the plaintiff had in fact suffered the abuse that he had described, and additionally noted: “…
The evidence is overwhelming to the effect that Mr Swain was abusing boys in the primary school in the 1980s, and well before”.
As it was accepted that the abuse had occurred, on the balance of probabilities, the next issue was whether the defendant could be held vicariously liable for this subject abuse. Justice Cavanaugh decided that the defendant was vicariously liable due to the following:
- The defendant had placed Mr Swain in this position of teacher and groundskeeper, which enabled him to hold power, trust and control over the plaintiff as a young student;
- Mr Swain then used this position to make the plaintiff attend secluded places with him. Without the position, the plaintiff may not have attended;
- This position and Mr Swain’s invitations provided the opportunity and the occasion for Mr Swain to then abuse the plaintiff; and
- The defendant had prior notice and was aware that Mr Swain had been interfering with young boys before the plaintiff was abused by him – and therefore knew that Mr Swain may use his position to continue to abuse children.
One of the final issues was how damages should be assessed – namely, how much should the plaintiff receive in compensation from the defendant for the sexual abuse he suffered as a child? It was determined that he would receive a total of $1,145,515.10 for general and aggravated damages, past and future economic loss, and treatment expenses.
Although no amount of money can truly compensate for the devastating impact of child sexual abuse, we consider that the plaintiff, SR (a pseudonym) should be very proud that he has held the defendant to account and been awarded significant compensation.
This outcome demonstrates that institutions which fail to protect the children in their care will be held accountable and liable for their inaction. We expect that many more survivors of child sexual abuse will obtain the compensation they are owed.
If you or anyone you know has been affected by institutional child sexual abuse, we encourage you to explore your potential entitlement to compensation and welcome you to contact us for an obligation-free initial consultation.
