Physical Abuse – Hartnett v Trustees of the Roman Catholic Church for the Diocese of Wilcannia-Forbes (No 7)
By Walter Zhuang
Background
The plaintiff, Mr Albert Hartnett, claimed damages for personal injury in relation to “serious physical abuse” allegedly inflicted on him by two members of school staff while he was an student at Saint Ignatius Parish School between 1992 and 1994. He commenced proceedings against the school authority and two of the school’s employment authorities.
The relevant questions were whether the plaintiff had satisfied the burden of proof in relation to the alleged abuse, and whether the school authorities were liable for the staff’s actions.
In the absence of sexual abuse, under section 6A of the Limitation Act 1969 (NSW) it is necessary to prove “serious physical abuse” in order to overcome the limitation period.
Judgment
Justice Campbell in the Supreme Court of NSW found that the plaintiff could not prove the “serious physical abuse” as alleged when considering the evidence adduced. By considering the oral evidence of the plaintiff, the two members of school staff and other students of the same cohort, his Honour could only conclude that the extent of the “abuse” amounted to physical punishment as a method of disciplining the children.
The question of what constitutes “serious physical abuse” is not defined in the Limitation Act 1969. The terms should be considered as the ordinary meaning of the word, or with reference to how ordinary people would define it.
Even though the plaintiff’s claim fundamentally failed, Justice Campbell also considered the extent that vicarious liability and a non-delegable duty could be found had the abuse occurred. The first staff member, Sister Green, was not under a contract of service and hence could not be held vicariously liable. The second staff member, Mr Sweeney, was a direct employee and therefore would have made the first defendant vicariously liable. However, Justice Campbell affirmed the principle that the scope of a non-delegable duty of care does not extend to the criminal acts of employed staff members.
Outcome
Due to the failed case on the grounds of evidence, the plaintiff failed against all three defendants. He therefore had to pay costs to all three defendants.
Practical Impact of this Case
This case reconfirms the findings in Bird v DP[1], namely that vicarious liability of an employer can only occur if the offender is in a contractual employment relationship with the employer. It is also necessary to carefully consider in every case the nature of the abuse, the circumstances surrounding the abuse and the likely evidence to be adduced in relation to the abuse.
[1] [2024] HCA 41.
