SR v Trustees of the De La Salle Brothers [2023] NSWSC 66

In the matter of SR (a pseudonym) v Trustees of the De La Salle Brothers [2023] NSWSC 66, the plaintiff commenced court proceedings in negligence and vicarious liability against the Trustees of the De La Salle Brothers (“the De La Salle Brothers”). The plaintiff sought damages for his injuries and losses as a result of alleged sexual abuse suffered by the plaintiff whilst he was a student at De La Salle Revesby by a teacher, Mr Erol Swain (now deceased) in 1983/1984 when the plaintiff was in around Grade 6.   

The plaintiff alleged that the De La Salle Brothers were aware of the tendency for the perpetrator to abuse students, particularly on the basis that two parents had complained about the perpetrator’s conduct before the plaintiff was abused. The 1967 school principal, Brother Julian, was informed that the perpetrator was interfering with students. In response, Brother Julian conducted investigations into the allegation and determined that it was safer to keep the perpetrator at De La Salle Revesby because the school knew of the problem and, therefore, could ‘keep watch’ of the perpetrator.  

The defendant made a limited admission of breach and did not admit to the abuse on the basis that the perpetrator was deceased.  

Both medical experts in this matter agreed that the medical diagnoses were attributable to the abuse at De La Salle Revesby by Mr Swain.  

Negligence & Vicarious Liability

At [123], the Court accepted that the plaintiff suffered the abuse as alleged. 

On vicarious liability, the Court referred to the decision of Prince Alfred College Incorporated v ADC [2016] HCA 37, and to first instance decisions in New South Wales and Victoria, before determining that the defendant was vicariously liable for the conduct of the perpetrator. Notably, the Court provided at [164]: 

  1. The defendant placed Mr Swan in a position of power, trust, authority, and control over the plaintiff when he was a young boy. 
  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 visa-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.  
  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.  

Damages

The plaintiff claimed damages in an amount nearing $6,000,000, requiring him to prove that but for the abuse he would have completed his schooling, not turned to drugs and not engaged in criminal conduct. At [208], the Court held that the plaintiff could not recover damages for losses said to be consequent of his criminal conduct. 

The Court ultimately awarded damages in the amount of $1,145,514.50, with the breakdown as follows:  

  • general damages and aggravated damages in the amount of $300,000; 
  • interest on general damages in the amount of $114,000; 
  • past loss of income in the amount of $184,761;  
  • future loss of earning capacity (loss of opportunity) in the amount of $456,243; and  
  • loss of superannuation in the amount of $70,510.50; and  
  • future medical treatment in the amount of $20,000.  

Of note, the Court did not award exemplary damages and provided at [248] that to do so would not be a punishment or deterrence of the perpetrator. 

We are specialist abuse lawyers and can help you receive acknowledgement, meaningful apology and financial resolution from those institutions and systems of power that failed to protect you from harm. If you would like advice in relation to a childhood or adult sexual, physical and/or psychological/emotional abuse claim in any jurisdiction in Australia, please reach out to the author, Emily Wright, at Littles Lawyers today. 

Further Abuse Law information and case law updates written by our Emily Wright can be found on our website.  

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