NSWNSWSC

Hartnett v Trustees of the Roman Catholic Church for the Diocese of Wilcannia-Forbes

[2025] NSWSC 128

Supreme Court of NSW|2024-02-23|Before: Campbell J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2024-02-23

Before

Campbell J

Catchwords

[2023] VSCA 66 Bird v DP (2024) 98 ALJR 1349
[2024] HCA 41
Blatch v Archer (1774) 1 COWP 63
(1774) 98 ER 969 Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 Briginshaw v Briginshaw (1938) 60 CLR 336

Source

Original judgment source is linked above.

Catchwords

[2023] VSCA 66 Bird v DP (2024) 98 ALJR 1349[2024] HCA 41Blatch v Archer (1774) 1 COWP 63(1774) 98 ER 969 Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 Briginshaw v Briginshaw (1938) 60 CLR 336[1938] HCA 34 Bugmy v The Queen (2012) 249 CLR 571[2013] HCA 37 Cleary v Booth [1893] 1 QB 465 Commonwealth v Introvigne (1982) 150 CLR 258[1982] HCA 40 Commonwealth v Verwayen (1990) 170 CLR 394[1990] HCA 39 Commonwealth of Australia v Winston [2024] NSWCA 277 Fox v Percy (2003) 214 CLR 118[2003] HCA 22[2023] HCA 32 Gray v Motor Accident Commission (1998) 196 CLR 1[1956] HCA 25 Jones v Dunkel (1959) 101 CLR 298[1959] HCA 8Longman v The Queen (1989) 168 CLR 79 Luxton v Vines (1952) 85 CLR 352[1952] HCA 19 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638[1990] HCA 20 Mansell v Griffin [1908] 1 KB 160 Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118[1968] HCA 62 Prince Alfred College Inc v ADC (2016) 258 CLR 134

Judgment (62 paragraphs)

[1]

utton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20 Mansell v Griffin [1908] 1 KB 160 Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118; [1968] HCA 62 Prince Alfred College Inc v ADC (2016) 258 CLR 134; [2016] HCA 37 Ramsay v Larson (1964) 111 CLR 16 Ryan v Fildes [1938] 3 All ER 517 Seltsam Pty Ltd v Gahleb [2005] NSWCA 208; (2005) 3 DDCR 1 State of NSW v Lepore (2003) 212 CLR 511; [2003] HCA 4 Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 185 Williams v Milotin (1957) 97 CLR 465 Category: Principal judgment Parties: Albert John Hartnett (Plaintiff) Trustees of the Roman Catholic Church for the Diocese of Wilcannia-Forbes (First Defendant) Trustees of the Marist Brothers (Second Defendant) Mercy Support Limited (Third Defendant) Representation: Counsel: E Romaniuk SC with J Masur (Plaintiff) M Robinson (First Defendant) M Slattery (Solicitor) (Second Defendant) D Lloyd SC with D Stretton (Third Defendant)

[2]

Solicitors: North Star Law (Plaintiff) Dentons Australia (First Defendant) Carroll & O'Dea Lawyers (Second Defendant) Mills Oakley (Third Defendant) File Number(s): 2022/288425 Publication restriction: Nil.

[3]

JUDGMENT

By third further amended statement of claim originally filed in court on 19 February 2024 ("3 FASOC") pursuant to leave granted on 12 February 2024 the plaintiff, Mr Albert Hartnett, claims damages for personal injury suffered as a result of "serious physical abuse" allegedly inflicted on him by two members of school-staff, namely Sister Marietta Green and Mr Alex 'Sweeney' Dixon, while he was an infants' school student at Saint Ignatius Parish School, Bourke ("St Ignatius") between 1992 and 1994. The plaintiff seeks compensatory, including aggravated, damages and exemplary damages. (3 FASOC was later filed in the registry on 21 February 2024.)
The proceedings are brought against three defendants in their capacity as appointed proper defendants under Pt 1B, Div 4 Civil Liability Act 2002 (NSW) ("CLA"). The first defendant, the Trustees of the Roman Catholic Church for the Diocese of Wilcannia-Forbes ("Trustees") was the school authority for St Ignatius at the relevant time. The second defendant, the Trustees of the Marist Brothers ("Marist Brothers") appointed certain of its members to work at St Ignatius, including as school principal, under a management agreement with the Trustees. The third defendant, Mercy Support Limited ("Mercy Support") is the successor organisation to the former unincorporated association referred to as the Congregation of the Sisters of Mercy of Wilcannia-Forbes, an order of nuns which supplied certain of its members, including Sister Green, to teach at St Ignatius.
I granted leave for the relevant amendments effected by 3 FASOC, over the objection of the Trustees, in my decision of 12 February 2024: Hartnett v Trustees of the Roman Catholic Church for the Diocese of Wilcannia-Forbes (No 3) [2024] NSWSC 126 ("Hartnett (No 3)"). The plaintiff's case against each defendant may be broadly summarised by what follows. As against the Trustees, the case is framed in alternatives: 1. negligence consisting of a direct breach of the duty of care owed to the plaintiff expressed in various ways but principally by failing to exercise reasonable care to obviate the risk of physical and psychological injury by failing to institute and maintain a safe and appropriate system for disciplining children in the infants' school; 2. breach of the non-delegable duty of care to ensure that reasonable care is taken owed by a school authority to pupils under its care: The Commonwealth v Introvigne (1982) 150 CLR 258; [1982] HCA 40. In this regard, the relevant fault is that of the principal from time to time provided by the Marist Brothers failing to institute and maintain the safe system of discipline referred to at (a). In substance, the case is a failure to supervise and exercise appropriate control over the conduct of Sister Green and Sweeney in the discipline they exercised over the infants' children involving the infliction of physical punishment said to amount to serious physical abuse; 3. vicarious liability for what would have been the liability of Sister Green in inflicting the serious physical abuse had she been sued separately. This aspect of the case arose out of my ruling in Hartnett (No 3) by reference to the subsisting relationship between the Trustees and Sister Green "akin to employment" based upon the decision of the Victorian Court of Appeal in Bird v DP (a pseudonym) (2023) 69 VR 408; [2023] VSCA 66. I interpolate that, as is widely known, this decision has since been overruled by the High Court of Australia. This posited basis of the Trustees' liability is no longer available: Hartnett v Trustees of the Roman Catholic Church for the Diocese of Wilcannia-Forbes (No 6) [2024] NSWSC 1609; Bird v DP [2024] HCA 41; (2024) 98 ALJR 1349 ("Bird v DP"); 4. vicarious liability for what would have been the liability of Sweeney for inflicting serious physical abuse on the plaintiff. Bird v DP does not apply as the Trustees admit that Sweeney was employed by them under a contract of service.

[4]

Limitation Act

The plaintiff's cause of action arose during the period from 1992 to 1994 while he was a pupil in the infants' school. The Limitation Act, as applicable to the case at hand, imposed a primary limitation period of three years for a cause of action for personal injury founded on "negligence, nuisance and breach of duty" (s 18A), and an ultimate bar of 30 years (s 51). Bearing in mind the nature of the plaintiff's claim, and the invocation of the doctrine of vicarious liability, it is relevant to bring to mind that for causes of action founded on torts not covered by s 18A, the limitation period is one of six years (s 14(1)(b)). And as the plaintiff was a minor when his putative cause of action is said to have arisen, he was then a person under a disability for the purpose of s 52 and the running of the limitation period was suspended until he attained his majority at the age of eighteen. As the plaintiff was born on 18 September 1986, he turned eighteen on 18 September 2004. The limitation period fixed by s 18A expired on 18 September 2007; and that fixed by s 14, on 18 September 2010. The plaintiff has not sought an extension of either limitation period under Pt 3, Div 3 Limitation Act (T1026.34).
Generally speaking, and subject to ss 63 and 68A, the expiration of an applicable limitation period fixed by the Limitation Act is said to bar the remedy and not the right. And the question of statutory bar does not arise as an issue unless and until it is pleaded in bar by the defendant upon which party the legal onus of making good the defence lies: Commonwealth v Verwayen (1990) 170 CLR 394; [1990] HCA 39 at 405 (per Mason CJ); Commonwealth of Australia v Winston [2024] NSWCA 277 at [43] (per Leeming JA). In the present matter each defendant has pleaded the statutory bar (see First Defendant's Defence to 3FASOC ("1DD") at [20]; Second Defendant's Defence to 3FASOC ("2DD") at [4]; Third Defendant's Defence to 3 FASOC ("3DD") at [5] and [5A].
Applying these principles, the plaintiff's claim is maintainable if, and only if, I am satisfied that no limitation period applies by dint of s 6A Limitation Act. Section 6A relevantly provides: "6A No limitation period for child abuse actions (1) An action for damages that relates to the death of or personal injury to a person resulting from an act or omission that constitutes child abuse of the person may be brought at any time and is not subject to any limitation period under this Act despite any other provisions of this Act. (2) In this section, child abuse means any of the following perpetrated against a person when the person is under 18 years of age --- (a) sexual abuse, (b) serious physical abuse, (c) any other abuse (connected abuse) perpetrated in connection with sexual abuse or serious physical abuse of the person (whether or not the connected abuse was perpetrated by the person who perpetrated the sexual abuse or serious physical abuse). (3) To remove doubt, connected abuse is child abuse only if both the connected abuse and the sexual abuse or serious physical abuse in connection with which it is perpetrated are perpetrated when the person is under 18 years of age. (4) This section applies regardless of whether the claim for damages is brought in tort, in contract, under statute or otherwise. […]" As I have said, only "serious physical abuse" is in question here.

[5]

Decision

For the reasons that follow, I have concluded that the plaintiff has not proved on the balance of probabilities he suffered serious physical abuse as alleged. As will become apparent, I accept that the plaintiff was subjected to a degree of physical punishment by Sister Green and Mr Dixon by way of discipline. However as I explain later, I am not satisfied on the evidence before me on the balance of probabilities that such punishment constituted "child abuse" in the sense of serious physical abuse within the meaning of s 6A(2) Limitation Act. As the plaintiff's cause of action arose between 1992 and 1994, these proceedings are not maintainable under either ss 14 or 18A. As there has been no application for an extension of the limitation period, the plaintiff's cause of action is extinguished by dint of s 63 (see [9] above).
It goes without saying that proof of serious physical abuse is essential to the plaintiff's success in the matter, notwithstanding the various ways in which the legal cause of action is sought to be formulated. Otherwise, the plaintiff's claim is statute barred as I have sought to demonstrate. In this regard it matters not whether: the case is characterised as one of trespass to the person giving rise to vicarious liability in the event employment under a contract of service by one or other of the defendants is established, as in the case against Sweeney; negligence consisting of the breach of a duty to take reasonable care; or negligence consisting of breach of a non-delegable duty to ensure that reasonable care is taken. Absent proof of serious physical abuse, all must fail for the same reason.
"Serious physical abuse" as it appears in s 6A Limitation Act is not a defined expression. The phrase is not one having a specific technical meaning, nor does it constitute a term of art. The expression is to be understood as having the meaning that ordinary people would understand it to convey. Like all undefined expressions used in a statute, the words are to be understood as having their ordinary meaning in their statutory context and having regard to the purpose of the statute in which they appear. Having regard to the factual conclusion I have reached, it is unnecessary and inappropriate for me to survey the metes and bounds of the expression's legal meaning. Doubtless the meaning sought to be conveyed by the expression in its ordinary meaning is capable of covering a wide range of misconduct; but misconduct it must be. This much is made clear by the use of the participle "perpetrated" in the chapeau to s 6A(2). The verb "to perpetrate" is almost always used in connection with the execution, commission or performance of a crime, deception or other wrongful conduct. In this statutory context, I am inclined to think the expression, when one has regard to its constituent parts, is concerned with egregious misconduct perpetrated against a child.

[6]

The need to make Contingent findings

I invited counsel to file brief submissions as to whether, if I were not satisfied the plaintiff had proved serious physical abuse and his claim was thus statute-barred, I should nevertheless proceed to determine other issues on a contingent basis (T1026.45-50). This invitation was taken up only by the third defendant who advocates for the latter approach on the basis that "Prince Alfred College does not stand as authority to the contrary of the Court following the usual course of determining all issues contingently" (Third Defendant's Note on Contingent Determination of Issues ("3DN"), [2]). The third defendant places reliance on paras [9] and [113] of Prince Alfred College which are in the following terms: "[9] The Court generally encourages primary judges to deal with all issues, even if one is dispositive, so that any appeal may be final. However, in this case, it was inappropriate for the primary judge to determine the question of liability due to her Honour's finding that an extension of time should not be granted. … [113] … It is a matter of long-standing practice in most trial courts that, where possible, all issues be the subject of adjudication. The practice is based upon the desirability of avoiding the need for a new trial in the event that an appeal on one issue is successful. However, as has been observed, it is no more than a rule of convenience. It is not something which should invariably be done without consideration of the appropriateness of that course of action in the circumstances of the case."
The third defendant contends that the circumstance identified in Prince Alfred College, namely, impoverishment of evidence to such a degree that the defendant could not have a fair trial which made it "inappropriate" for the trial judge to contingently determine liability is absent in the present case for these reasons. First, the defendants do not allege they are unable to receive a fair trial; secondly, all issues can be determined on the evidence admitted at trial; thirdly, all parties were legally represented; and fourthly, the alleged perpetrators are alive and gave evidence (3DN, [4]). The third defendant further argues that the plaintiff's claim being statute-barred simply means that the proceedings are not "duly constituted" and does not oblige nor prohibit this Court from determining issues of liability and damages (3DN, [5]).

[7]

Plaintiff's case

As I have said, the plaintiff was born in 1986. At the age of six, he commenced at St Ignatius where he was enrolled in the Infant Aboriginal class in the period between 1992 (kindergarten) and 1994 (Year 2). These classes were taught by Sister Green. The Infant Aboriginal classes were "opt-in" programs specifically designed for Aboriginal children with the objective of addressing Indigenous educational disadvantage through culturally sensitive teaching (Third Defendant's Closing Submissions ("3DCS"), [38]).
In his evidentiary statement of 9 May 2022 ("PS"), the plaintiff says that he did not enjoy school because it was "ruined" for him the moment he met Sister Green (Court Book ("CB"), p 161; PS [11]). He attributes his unhappiness at school to the "cruel" Sister Green who "hit, punished and tortured" him on a daily basis, particularised as follows in 3 FASOC (at [5]): "(a) Verbal abuse, including calling him a 'little bastard'; (b) Physical abuse including: i. hitting him along his back, bottom, legs and hands with a long wooden ruler. ii. on one occasion, Sister Green struck the Plaintiff across the back with a ruler with such force that it broke. iii. on occasions, Sister Green grabbed the Plaintiff by the ears, twisted his ears and dragged him. iv. on occasions, Sister Green made the Plaintiff stand outside under the sun in high temperatures for a prolonged period of time. v. taking the plaintiff into a separate room, pulling down his pants unintentionally catching his penis on one occasion, and smacking his naked bottom with a long ruler." I note the "ruler" referred to at 3 FASOC (at least in 5(b)(i), (ii) and (iv) above) was a metre-long wooden blackboard ruler which had been given the name, "Montgomery" or "Monty" which belonged to Sister Green (CB, p 398); First Witness Statement of Sister Green ("GS 1"), [25]). The plaintiff alleges that Sister Green used this ruler "most of the days" to hit him on the hands, back and bottom, and recalls a particular instance where Sister Green hit him across the back so hard that the ruler broke (CB, p 161; PS [15]; T108.5-38).
The plaintiff says that Sister Green's abuse was particularly hard on him because he was psychologically vulnerable as, at that point in time, he was still struggling from having witnessed the murder of his aunt one or two years previously (CB, p 161; PS [6], [12]); from having lost a cousin as a result of drowning; and from the deaths of close friends in a motor accident (T69.49-70.6). When he looked for support from Sister Green, she effectively "turned her back" on him by accusing him of telling lies (CB, p 161; PS [13]). It is also the plaintiff's case that Sister Green's abuse has had a lifelong negative impact on him, in that: he never learned to read or write because Sister Green's regular abuse made learning impossible (CB, p 163; PS [29]-[30]); his childhood was marred by embarrassment and anger due to his illiteracy, resulting in him being sent to a Youth Justice Centre at the age of thirteen (CB, p 163; PS [32]); his mental health deteriorated (CB, p 163; PS [33]); he started drinking alcohol at the age of fifteen to cope with Sister Green's abuse, which at the age of eighteen developed into a prohibited drug addiction (CB, p 163; PS [34], [36]); and he struggled with maintaining relationships because Sister Green ruined his ability to trust and be honest with others (CB, p 163; PS [38]).

[8]

Defendants' case

The defendants concede that Sweeney used a "soft tap or smack" on the students, including the plaintiff, to discipline students (3DCS, [149(i)]). They also accept that Sister Green - save for one incident in 1989 involving another student - used "light smacking" as a method of discipline with students (but apparently not the plaintiff) until about 1995 (3DCS, [149(b)]; T10.40-45). Her recollection is that the plaintiff was well-behaved and did not require chastisement or correction by physical punishment. What the defendants deny, however, is the proposition that the alleged abuse took place in the manner asserted by the plaintiff as referred to at [28] to [33] above.
The defendants' position was that the plaintiff's claim ought to be rejected at the factual level in the sense that he has failed to make good the material facts upon which he relies. In short, the defendants contend that the plaintiff's case rests solely on unreliable childhood memories (3DCS, [148(b)]). They point out that the plaintiff himself and many of his witnesses were aged from five to eight years old when these events took place some 30 years ago. In arguing that the evidence of the plaintiff and his witnesses should be rejected, the defendants place reliance on the frailty of human memory and emphasise the fact that the plaintiff and his witnesses are now attempting to recall events for the first time (3DCS, [148(a)]). The defendants also refer to the absence of any contemporaneous record of the alleged abuse, whether it be the plaintiff's school records, child welfare records, medical or counselling records, or a relevant history of this alleged abuse being recounted in evidence tendered for sentencing purposes later in life (3DCS, [95]). In fact, the defendants argue that there is no record of any allegation of the alleged abuse before the plaintiff consulted his lawyers for the purpose of commencing these proceedings in 2022.
Instead, the defendants urge the Court to make a number of positive findings, inter alia, that at the relevant times St Ignatius did not accept or encourage corporal punishment (3DCS, [149(a)]); Sister Green ceased all forms of corporal punishment by the end of 1995, including the "light smacking" referred to at [34] above (3DCS, [149(e)]); Sister Green at no stage hit the students with a ruler, pointer or other implement (3DCS, [149(g)]); and Sweeney did not karate chop or kick the plaintiff, nor did he forcefully twist his ears (3DCS, [149(j)].

[9]

Issue joined

The plaintiff joined issue essentially by relying upon the significant body of lay evidence of his classmates, other former students of Sister Green, and parents at the school to argue that he had discharged the onus of proving serious physical abuse.

[10]

Principles relating to proof

A total of 30 lay witnesses comprising seventeen plaintiff's witnesses and thirteen defendants' witnesses gave evidence during the hearing. The plaintiff's witnesses consisted of his classmates at St Ignatius, Sister Green's former students, and a parent of one of Sister Green's former students. These witnesses were called to establish the alleged tendency of Sister Green to strike students with a ruler, and of Sweeney to engage in serious physical abuse of children.
On the other side of the record, the defendants' witnesses consisted of former teaching staff at St Ignatius during the relevant period, including the principals and teacher's aides who worked with Sister Green in the same classroom, and a former student of Sister Green. These witnesses were called to contradict the factual case advanced by the plaintiff. What follows at [48] below is my summary of the salient features of each witness, extracted from their respective written and oral evidence.
At the outset, I remind myself that a finding on the balance of probabilities involves a finding of more probable than not; and whether or not I am so satisfied will depend upon a consideration of the whole of the evidence, at least to the extent that I accept it as reliable (Geyer v Redeland Pty Limited [2013] NSWCA 338 at [54] per Beazley P, Ward and Emmett JJA agreeing).
While trite, it is worth bringing this fundamental principle to the forefront given the conspicuous dichotomy between the respective parties' evidence. That is to say, and with great respect, my overall impression of each respective cohort of the witnesses - save for a few exceptions - is that they were so entrenched in their respective "camps" that, very often, when propositions were put in cross-examination that were apparently incompatible with, or detrimental, to their own case theories, they were quick to reject them even when, in my view, appropriate concessions were warranted.
By way of example only, some of the teacher's aides denied Sister Green ever used Montgomery to hit the students' desks to get their attention (T617.5; T703.5-10; T752.15-30; T921.5-15). One witness went further by denying that Sister Green even had a ruler named Montgomery (T617.35-50). Such evidence is not reliable when one considers Sister Green's very own evidence that she had in fact owned two rulers including Montgomery (T587.10-13), and she conceded using Montgomery to "whack the desk of [a] child [who] was doing the wrong thing" (T588.3). Similarly, some accounts given by the plaintiff's witnesses were inconsistent with that of the plaintiff. One witness stated that there were other adults around when Sister Green hit the students with a ruler (T168.4-5), contrary to the plaintiff's evidence that "[Sister Green] never done it in front of another teacher" (T106.3). Given the passage of around 30 years, the proofs proffered by the plaintiff and the defendants are in a somewhat weathered and degraded state, if I may employ that metaphor. The plaintiff himself conceded that his memory is "not good" (T106.16-23).

[11]

Plaintiff's evidence

Mr Hartnett adopted his written statement (T18.40) and gave oral evidence over the course of two days. Based on my observations of him, Mr Hartnett did his best to tell the truth to the best of his recollection. It was not my impression that he gave consciously false evidence. Although I also formed the impression the long effluxion of time since these events, his comparatively tender years then and the effects of traumatic incidents in his life adversely affected the reliability of his evidence. Further, at times he struggled to comprehend the questions put to him or give coherent answers, perhaps attributable - adopting the words used in the Plaintiff's Closing Submissions ("PCS") and without intending any disrespect - to his "restricted intelligence" (PCS, [20]) or the effect of his medication (T84.15-40).
I have already summarised the plaintiff's factual case at [28]-[33] above, and do not propose to repeat them here. In my view, it is sufficient to record that the substance of his oral evidence generally conformed to his written statement, although there were a considerable number of inconsistencies as I will set them out at [51]-[56] below. The plaintiff otherwise maintained his allegations against Sweeney (see [33] above) and Sister Green (T104.25-32): "Q. What was the physical abuse that you're talking about from Sister [Green] to you? A. She, she used to hit me with a ruler. She used to screw my ears. She took me to the back room; she pulled my pants down and smacked me on my bottom. She used to make me stand outside and not eat for hours, and -"
These things occurred at least once a day, sometimes twice a day (T104.39-50).
Mr Hartnett's evidence is not without its problems. The defendants contend that his evidence ought to be rejected due to a significant number of deficiencies said to undermine the reliability of both his written and oral evidence.
First, the defendants take issue with the veracity of the plaintiff's written statement and the circumstances preceding its preparation. In particular, the defendants point out that while the statement indicates "[the plaintiff] cannot read or write" (CB, p 164; PS [45]), his statement is devoid of any attestation that someone had read its contents to him before he signed it. Uncertainty as to the degree of the plaintiff's input into preparing his statement was amplified in his oral evidence, where he initially indicated he had read the statement without any help (T17.26-32), but later clarified that he had only read "some parts of it" (T38.45-48) relying instead on his partner's assistance for the parts he did not fully understand (T39.10-14). To complicate things further, he later resiled from this position and gave a series of inconsistent answers that he "didn't read it at all" (T112.7); that he did not ask anyone to explain the words contained in his statement (T112.9-10); and finally, that "no one [ran] it over" with him before he signed it (T112.35-40). By reference to these matters, the defendants submit that the Court could have no confidence as to the accuracy of Mr Hartnett's statement (3DCS, [52(a)]).

[12]

Attendance at St Ignatius and frequency of the alleged abuse

In his written statement, the plaintiff states that he commenced at St Ignatius in 1992 at the age of six and continued there until he was twelve years old (i.e. 1997) (CB, p 161; PS [7]). That much was confirmed during the early phase of the plaintiff's cross examination when he agreed that he "did all [his] primary schooling at St Ignatius" (T41.20-29). However, it later emerged that as a result of him and his mother moving around frequently, he ceased attending St Ignatius halfway through Year 3 (i.e. mid-1995), attending instead multiple other schools in NSW in Macksville (T45.35), Whalan (T46.3-5), Wilberforce (T46.34-38), Windsor (T46.41) and Richmond (T46.49-T47.6). When asked to explain how he got this detail wrong, the plaintiff stated "I have [a bad memory]. I don't remember everything." (T48.36-39). To this end, the defendants submit that the plaintiff's pleaded duration of the alleged abuse (i.e. 1992 to 1997, 3 FASOC at [5]) could not be true, having particular regard to the plaintiff's evidence that Sister Green's abuse occurred only "through Year 1 and 2" (T50.15-18). The plaintiff's concessions are said to place the alleged abuse in 1993 and 1994. It is common ground that Sister Green was the infants' teacher of the stream for Indigenous children.
The defendants further contend that the alleged frequency of the abuse occurring "on a daily basis" or "every other day" as stated in the plaintiff's statement (CB pp 161-162; PS [11], [15], [17]) is also implausible. In this respect, the defendants refer to the plaintiff's oral evidence that he truanted Sister Green's class "most of the time" (T71.13-19) or "two, three days a week" (T90.18-24). They also refer to the plaintiff's inconsistent answers that Sister Green hit him "nearly every day" (T104.39-40) or "most of the days" (T108.5-8). As to the latter, I interpolate the plaintiff during cross-examination expressed some confusion as to why he was being asked whether Sister Green punished him every day. This is the context which preceded the plaintiff's answer that no one had read the statement to him before he signed it (see [52] above) (T112.30-40): "HIS HONOUR: Are you confused… and you said you're confused. What are you confused about? A: I'm confused only - that, that I'm telling that it happened most of the days and he keep saying it happened every day. HIS HONOUR: What he's saying is - Mr Lloyd is saying - is that in the statement that has been tendered as your evidence, it says that it happened every day. You're now telling us quite clearly it was most days, not every day. So what he is asking you now is, well, why didn't you change your statement to make sure it was accurate? That's what he is asking. A: Well, your Honour, no one run it over to me. No one, like, read it all to me."

[13]

Lack of intervention and lack of disclosure

As alluded to at [42] above, it is the plaintiff's case that Sister Green never hit him in front of any other members of the teaching staff. The defendants argue that this evidence also is implausible given the constant presence of teachers' aides in Sister Green's class, all of whom denied the alleged abuse. In this regard, the defendants point out that it is inconceivable that none of the teacher's aides noticed Sister Green's alleged abuse, bearing in mind the plaintiff's oral evidence that he and other children would cry when they were hit by Sister Green (T106.45-107.30). The defendants submit that it is illogical to suggest that the teacher's aides would have allowed Sister Green to carry on abusing her students without reporting it to anyone. I interpolate, I suppose it may be said that if other adults did not see the abuse, it may have been inflicted in private.
The plaintiff also says in his written statement that he told his grandmother, who had noticed the red marks on his body, that "Sister [Green] had been beating me" (CB p 162; PS [19]). The plaintiff's grandmother subsequently visited Sister Green to confront her (CB p 162; PS [19]-[20]; T119.25-32). The plaintiff goes on to say that subsequent to his grandmother's visit, the abuse not only continued but "got worse" (CB p 162; PS [21]) as Sister Green began to hit him "twice as much" (T120.27-121.4). In cross-examination, the plaintiff said that this was the one time that he had disclosed the alleged abuse to his grandmother (T118.19-20), and that he "never disclosed any of the details of [the] abuse to anyone other than [his] wife due to embarrassment" (CB p 164; PS [41]). This was, of course, much later in life. The defendants argue that the increase in the frequency of the abuse is unconvincing as it would have meant a higher chance of being detected by the teacher's aides (3DCS, [52(k)]). They further contend that the plaintiff's 'embarrassment' over the abuse is equally implausible as a reason for non-disclosure because, insofar as the alleged abuse took place in front of the class, there was nothing to be discreet about (3DCS, [52(j)]). As I have said, the plaintiff denied the abuse took place in public.

[14]

Miscellaneous factual inconsistencies

I now turn to the remaining facts disputed by the defendants. The defendants argue that the facts underlying the averments pleaded in 3 FASOC (see [29] above) - namely, the plaintiff being struck with a ruler with such force that it broke; being made to stand under the sun in high temperatures for a prolonged period; being called a "little bastard"; and having his ears twisted by Sister Green - are not corroborated by any reliable evidence, and thus ought to be rejected.

[15]

Sister Green's evidence

Sister Green filed two witness statements dated 5 September 2023 and 18 January 2024 ("GS 2"). She also gave oral evidence via AVL, where she adopted her written statements subject to minor amendments (T572.9-14). Based on my observations, Sister Green presented as an honest person. Despite her advanced age of 88 years, if I may put it that way, her ability to recall events was sound, and she was able to pinpoint the dates of her teaching appointments by reference to the notes she had written down in her bible (CB p 407; GS [2]-[3]). She was sincere in her evidence, and appropriately made concessions regarding the events she could not recall.
Sister Green was born in 1935. She entered the Sisters of Mercy in 1955 and commenced teaching as a postulant and a novice at Parkes in 1956 (CB p 395; GS 1 [2]-[4]). After teaching at several schools in NSW and South Australia, she began teaching at St Ignatius in 1976, where she remained until her retirement in 2005 (CB p 395; GS 1 [5]). In 1995, she was awarded the Medal of the Order of Australia for her services to education, including to Aboriginal children (CB p 400; GS 1 [38]).
Sister Green denied all allegations of physical abuse made by the plaintiff (T596.50-597.1-20). She did, however, accept that she used some form of physical discipline while at St Ignatius (see [34] above), and gave a frank description of the disciplinary methods she used, which involved (CB p 398; GS 1 [25]-[26]): 1. "rousing" on the students by telling them off; 2. maintaining a "pest list" where misbehaving students listed would lose the benefit of privileges (such as toys and play time); 3. drawing a chalk circle in the playground where misbehaving students would be made to stand or sit for some minutes; and 4. giving a "whack" on the bottom (on top of clothes) with her hand to stop children from engaging in physical fights. all of which were reserved for particularly "serious misbehaviour such as fighting, punching or pinching each other" (CB p 398; GS 1 [26]).
In oral evidence, Sister Green distinguished a "whack" from a "smack" in the following terms (T569.30-36): "Q: Any other form of hitting with your hand, did that happen in your memory? A: Yes. It's what I call a whack, flicked. Q: … What do you mean by a whack? I think you said also a flick? A: Yeah, well I meant a whack. If there were two children fighting then I'd, I'd whack on the bottom like that to separate them. Q: How hard would that kind of whack be? A: Very light. More or less to say 'Get on your way'." And again (T578.1-10; T578.32-35): "Q: To you, there is a distinction between what you describe as a whack and what you describe as a smack. A: Yes, a smack is good, hard whack, and a little whack is that. […] Q: The type of smack which in your expression is a good, hard whack. A: Yes. Q: It would be intended that the student would feel the force of that smack? A: I would think so, yes."

[16]

Mr Alex Dixon's evidence (Sweeney)

Sweeney was an Aboriginal Liaison Officer (also interchangeably referred to as a teacher's aide) at St Ignatius in the period between 1980 and 2003 (CB p 356, Statement of Alex Dixon ("AD") [8]). Part of his role was to round up absent children and bring them to school. He also conducted visits to suspended children at their home. He filed one statement dated 10 July 2023 (Exhibit CB 49, 355 ff) and gave oral evidence. In my view, and with respect, Mr Dixon was one of the witnesses entrenched in the defendants' "camp" referred to at [41] above. I have evaluated Sweeney's evidence with some caution.
Sweeney said that during his time at the school there was no corporal punishment (T657.20) but he never witnessed "fighting" amongst the infant pupils (T659.31). If there was fighting amongst the older students, he would be asked to "sort them out" (T660.1). The principal may request that the pupil be taken home to his or her parents to be disciplined at home (T660.35). Although he believed the parents might inflict corporal discipline (T660.50). It transpired that he never witnessed this (T673.46). He could only recall this happening on four occasions over the long years he served at the school (T661.22). The plaintiff may have been one of those students (T667.32). But I regarded this evidence as vague and uncertain and certainly not based upon a recollection I considered reliable.
Sweeney's role at the school required him to rotate through different classes on a set roster. He never witnessed a teacher physically hitting a pupil (T665.2-T666 .19). He spent 30 minutes to one hour in Sister Green's classroom every morning (T667.5), but never saw her hitting anyone. Nor does he recall children being required to stand in the chalk circle sometimes referred to as the "poison circle" (T666.25).
He denied the various specific allegations made against him by the plaintiff and others. In particular, he denied karate chopping children (T667.21 - 22); "kicking" anyone "in the arse" (T671.36 - 37); screwing or twisting anyone's ear and dragging them along (T671 .40; T671.42 - 44). This denial extended specifically to the plaintiff. He denied distracting the attention of pupils to facilitate knocking their heads together (T671.49 - 672.18). This form of physical discipline was said to have been applied in the playground but none of the defendant's other lay witnesses were asked whether they observed such a thing (T658.28 - 34).

[17]

Other lay witnesses

As I have already indicated, a large number of witnesses were called on either side of the record. In broad terms, the plaintiff called a number of witnesses who were said to be eye-witnesses to the discipline applied to the plaintiff. Other witnesses fell into the category of tendency evidence giving evidence of an asserted tendency on the part of Sister Green to physically discipline her pupils harshly. On the defendants' side, a number of teacher's aides and fellow teachers were called to give evidence that, notwithstanding the opportunity they had to observe Sister Green in the classroom environment, they did not see her discipline children by the application of physical force with an implement or otherwise. Witnesses who did not know the plaintiff personally were called more or less to contradict the plaintiff's tendency witnesses. The defendant also called the principals of the school during the plaintiff's infants' years, including Brother John O'Brien and Brother Daniel Hollamby. Sister Eileen Quade, who was principal before the plaintiff's time, was also called.

[18]

Mr Charles Edwards

Mr Edwards was a contemporary of the plaintiff at school. He commenced in 1991 in kindergarten and remained there until Year 6. I should interpolate all infants' classes in the Indigenous pupils' stream were integrated and Sister Green was the teacher who conducted each class with the assistance of teacher's aides.
Mr Edwards gave evidence about the ruler, Montgomery. In his witness statement dated 16 November 2023 (Exhibit CB 13.176 ff) he gave evidence that Sister Green used a large ruler to hit him in on the back of his legs, his hands and forearm. He said Sister Green (and the principal Brother Hollamby) screwed his ears. Sister Green made him stand in the sun in the chalk or "poison" circle as a punishment and he saw other boys being treated in the same way. He said that Sweeney hit him with a karate chop on the side of his neck.
In cross-examination, he named seven other pupils, including the plaintiff, as having been disciplined in the same manner (T208.35 - 40). Mr Edwards estimated that he witnessed the plaintiff being hit on as many as a dozen occasions (T209.28).
Mr Edwards claimed to have a "really good memory" (T224.32-45) extending to the allegation that Brother Hollamby twisted his ear and dragging him into the principal's office on numerous occasions (T213.8 - 214.11). This allegation was not put to Brother Hollamby when he gave evidence. Mr Edwards said Sister Green used Montgomery to hit students in the presence of teacher's aides (T2007.18; T2010.16). In particular, he mentioned Ms Phyllis Cubby.

[19]

Mr Lesley Leonard

Mr Leonard's evidence in chief was contained in his statement of 23 November 2023 (CB 20.198 ff). He was a contemporary of the plaintiff and attended the school between 1992 and 1996. He said that Sister Green was very strict and administered physical punishment which he received many times. He referred to a wooden ruler named "Esmeralda". His evidence was that he was hit many times with the ruler across the knuckles, the palms of his hands, his buttocks and legs. He said Sister Green twisted his ear and dragged him across the room and, from time to time, he was made to stand with his back to the class with his nose touching the door. He said the hitting of pupils was very frequent.
In cross-examination, Mr Leonard remembered other members of staff being in the classroom (T447.25; T448.2). The teacher's aide or assistant teacher Ms Cubby was present some of the time and other members of staff, including the principal, would come and go. He did say however that Sister Green was normally by herself (T448.25). His evidence was he was hit "many times", perhaps "nearly every day". Someone was hit every day (T448.16) Mr Leonard said no other adults were present in the classroom when Sister Green hit the pupils (T450.20).
He said that Brother Daniel Hollamby administered physical discipline by smacking or using a cane (T453.10 - T453.30). Again, this was not put to Brother Hollamby. As I will detail below Brother Hollamby as principal maintained a "no corporal punishment" policy which he enforced by counselling teachers if it was brought to his attention that they were administering physical punishment.

[20]

Ms Margaret Leonard

Ms Leonard was a pupil at St Ignatius between 1991 and 1996. Her evidence in chief was contained in her statement of 23 November 2023 (CB 23.211 ff). Ms Leonard said Sister Green was very strict and disciplined the pupils by means of physical punishment. She referred to a long ruler named Esmeralda. Sister Green used Esmeralda to hit Ms Leonard many times across her back, knuckles and bottom. She was dragged across the classroom by her ponytail and required to stand in the sun in the chalk circle. She recalls being hit by a male Aboriginal worker whose name she did not recall.
In cross-examination, Ms Leonard accepted that other members of staff, including Ms Mannix and Ms Cubby were often in the classroom (T423.10 - 15). Other members of staff would come in from time to time. Initially Ms Leonard claimed that no other members of staff were present when Sister Green hit pupils, but she later accepted that Ms Mannix might have been present (T427.46 - T428.10).
Ms Leonard said the discipline with the ruler, Esmeralda, occurred "almost every day" (T429 .15) to one or other of the students. She claimed she had been caned frequently by Brother Daniel Hollamby (T432.35) and that Sweeney hit her a "few times very hard on the bottom" (T423.40). Given his evidence and the favourable impression he made on me, I cannot accept her evidence of Brother Hollamby is an accurate recollection.

[21]

Pagan Leigh Burford

Ms Burford's witness statement is dated 17 November 2023 (CB 25.219 ff). Ms Burford attended St Ignatius from kindergarten to Year 5 and was in the same class as the plaintiff. She referred to a long ruler used by Sister Green but said a green and white striped cane was the implement named Montgomery. She was frequently struck on the hand with Montgomery by Sister Green. She said that Sister Green hit her on the left hand to make her write with her right hand rather than her left. She said that Sister Green had threatened to skin her alive.
Ms Burford regarded Sister Green as strict and scary. She said Sister Green was always hitting pupils, screwing their ears and threatening them.
She said some children "copped it particularly badly" from Sister Green ([25]). She said that Sister Green broke her one metre ruler over the back of a boy named Patrick Whiteman on one occasion.
As a punishment, Ms Burford was required by Sister Green to stand inside the chalk circle. She said sometimes Sister Green made her draw the circle herself. Sister Green screwed her ears often.
She said that the teacher's aide, Ms Pat Mannix, would take her and her sister to Ms Mannix's house during the holidays which she and her sister loved. She said she complained to Ms Mannix about Sister Green's treatment and Miss Mannix said the discipline was for the pupils' "own good".
Ms Burford gave evidence that she left St Ignatius in Year 5 after an incident where Sweeney approached her and another pupil to break up a fight they were having over a cricket ball. She said that Sweeney grabbed her by her hair, threw her through the air and she landed very hard on the surface of the oval. She refused to return to St Ignatius. She said Ms Mannix attended her home in an attempt to persuade her to return to school, but she refused, which brought her relationship with Ms Mannix to an end.
In cross examination, Ms Burford claimed to have seen Sister Green disciplining most children "by hitting them with a ruler" (T341.18 - 342.12). At least one pupil was hit every day and Sister Green appeared to be trying to hit them as hard as she could (T342.36). She alleged Sister Green's tendency to hit students was well-known and other teachers used sending a pupil to Sister Green like a threat (T356.20), "I'll send you to Sister Green".

[22]

Mr Martin Haimes

Mr Martin Haimes was taught by Sister Green in the mid-1970s at St Scholastica's College, Mount Barker, South Australia. His witness statement is dated 21 November 2023 (CB 24.216 ff). His recollection was that he had Sister Green as a substitute teacher in the absence of his usual infants' teacher, Sister Claire (T323.30). However, the school photograph (Exhibit CB 78; T322.25) seems to clearly depict Sister Green as his class teacher. Under cross-examination, he maintained that Sister Claire was his usual infants' teacher and denied that she taught him in Years 3 and 4 (T326.25 - T326.40). I am of the view that he is likely to be mistaken in that detail.
His evidence was that Sister Green had a large wooden stick that she threatened pupils with. He was struck on the fingers with the stick and saw Sister Green hit others.
It was important to record that Mr Haimes has no connection whatsoever with Bourke or St Ignatius School.

[23]

Ms Rachel Dixon

Ms Dixon's statement is dated 15 November 2023 (CB 26.227 ff). She commenced at St Ignatius in about 1978 and Sister Green was her infants' teacher (T496.5-25). She also has what seems to be a false memory that Sister Green taught her in Years 3, 4, 5 and 6, if only for maths. I understand that it is common ground that Sister Green was a career-long infants' teacher. Certainly, she was fully engaged at St Ignatius during the period in question with the Indigenous stream infants' classes and it seems unlikely that she would have had time or opportunity to teach other classes, even for a single subject.
Rachel Dixon commenced her schooling late because of an accident involving severe burns. During her infants' years, she had tender and sensitive scarring because of this. Her evidence is that Sister Green on at least one occasion put her across her knee and struck her forcibly on her clothed bottom with her open palm causing significant pain. She said there were many times that Sister Green caned her and also struck her across the palm of her hand with the ruler. She was required to stand in the chalk circle on occasions.
She recalls being disciplined by Sweeney by him, striking her.
In the oral testimony, Ms Dixon corrected her statement to say that Sister Green never caned her but only ever used the ruler (T493.46).
In cross-examination, Ms Dixon accepted that she spent more time in Newcastle than Bourke in Years 1 and 2 (T496.45-497.50). In Years 3, 4 and 6, she was mostly in Warren (T498.20). She admitted that she did not have a clear memory of much of her years in the infant school but does remember Sister Green (T516.10). She had adhered to her evidence that she was hit with a one metre long ruler (T518.20). She insisted that she was required to stand in the poison circle for the whole of recess or lunch as the case may be. She adhered to her evidence that Sister Green would kick or slap her in the back during assemblies or at Mass when other teachers were present (T521.40) and no other teacher intervened.

[24]

Ms Catrina Dixon

Catrina Dixon's statement is dated 30 June 2023 (Exhibit CB 12.169 ff). She commenced in the infants' school at St Ignatius in about 1977. She recalled being in Sister Green's kindergarten class (T409.45). She also recalled a ruler named Montgomery of about one metre in length, and said that Sister Green would hit her with the ruler on the back of the legs and on her bottom (T410.20 - T411.5).
She claimed that Sister Green did not let students go to the toilet. On one such occasion, Ms Dixon recalls wetting the chair. She alleged that Sister Green dragged her and locked her in the toilet for a period. It was evident that Ms Dixon had a very unhappy time at school.
In cross-examination, Ms Dixon denied that a claim for damages had been launched on her behalf (T407.45). This of course was a surprising statement. She said she was not hit every day with Montgomery but was smacked on her bottom every day (T410.25). Montgomery was only used when she was in trouble. Smacking was with an open hand over clothing. The hitting was not light (T410.48) and marks and bruises were sometimes left (T411.29). She accepted that there were other adults in Sister Green's classroom at all times (T411.35). She maintained that one or other of the pupils in the class were hit every day (T412.45).

[25]

Ms Marcia Dixon

Marcia Dixon's statement is dated 15 November 2023 (Exhibit CB 21.202 ff). Ms Dixon commenced at the school in about 1983 (T372.4 - T372.40). She was a pupil from kindergarten to Year 6. She described Sister Green as very strict, and she disciplined students through the use of physical punishment. There were two rulers named Montgomery and Esmeralda, respectively. Marcia Dixon was hit in the back on numerous occasions for trivial matters such as not sitting up straight. She said Sister Green frequently hit her and other pupils on their back, shoulders, arms and hands with Montgomery. The blows were sufficient to leave bruises and other marks. She was subject to the chalk circle punishment. Ms Dixon witnessed Sister Green washing other pupils' mouths out with soap if they used bad language. In cross-examination, Marcia Dixon confirmed that at least one other adult was always in the classroom where Sister Green taught (T375.12). She claimed that she was hit on different parts of the body as hard as Sister Green could with Montgomery about three times per day (T377). In a contradictory way, she said that the hitting "never happened" when the teacher's aides were in the classroom (T378.14). She said that as many as three or four students a day were hit in the way she described (T378.30-T379.5).
Marcia Dixon said that on some occasions she was left with bruises after being struck with Montgomery (T378.30 - T379.5).
She was also punished by being made to stand in the chalk circle for as long as 35 minutes at a time on several occasions (T381.10). Even after she moved into the primary school, she was sent by her primary teacher to see Sister Green for punishment (T382.40 - T383.10). She also said she was hit in the playground by Sister Green with a ruler (T386.30). She said, "no one ever got a soft hit off Sister [Green]".
In paragraph 3 of her statement, Ms Dixon stated that she had brought a claim about the abuse she suffered at St Ignatius. Ms Dixon was, at best, vague and, at worst, evasive about that when cross-examined in relation to it. Given that she had answered other questions in a fairly direct manner, it was a little difficult to follow what difficulty she was apparently experiencing with the questions about that topic. I tried to clarify things for her, but it did not seem to help (T395.21 - 45).
When Ms Dixon was, on her account, sent to Sister Green for punishment whilst in primary school, she asserted that Sister Green would send any teacher's aides in her classroom "on errands" before disciplining Marcia Dixon. This proposition was not taken up with Sister Green. Moreover, there is a question about whether Sister Green was in fact her teacher in the infants' school (T396.39 - 397.35). Moreover, a photograph of the St Ignatius Parish School 1983 kindergarten class was tendered (Exhibit 1). It depicted Mr R Granston as the teacher. A further photograph of the St Ignatius, 1989 Years 5 to 6 classes was shown (T398.30) (Exhibit 2) depicting Marcia Dixon in the "mixed" class taught by Brother Paul Bailey. The witness alleged that it was, my expression, a composite photograph with children rounded up for the purpose.

[26]

Other lay witnesses

Learned counsel for the plaintiff referred to the evidence of other lay witnesses called only in passing (PCS [32] - [33]). These witnesses were Ms Sylvia Fernando (CB 32.267 ff; T159 - 190), Ms Janine Monaghan (CB 15.183 ff and CB 16.187 ff; T283 - 312), and Ms Alicia Monaghan (CB 11.165 ff; T249 - 281). Of these witnesses, plaintiff's counsel contented themselves with submitting that they each gave evidence of "the serious physical abuse they suffered at the hands of Sister Green in the years after the plaintiff". Somewhat greater reliance was placed upon the evidence of Ms Karla Cubby (CB 18.193 ff; T501 - T513). Ms Cubby gave evidence of being struck with the ruler on her hands and upper thigh and having to stand in the poison or chalk circle with her hands on her head for extended periods. She gave evidence of psychological trauma. Reference was also made to the evidence of Mr Ryan Faulkner (exhibit A; T232.40 - 236.45). Mr Faulkner had attended the school from 1985. He was not one of Sister Green's pupils. He gave evidence about Sister Green screwing his ears while she was on playground duty of which he complained to his mother, Sue Sharpe. Ms Sharpe, in Exhibit CB 34.275 ff; T238 - 239, gave corroborative evidence of this complaint. She said she confronted Sister Green with her concerns but did not detail the latter's response.
While it may be said that the plaintiff "soft pedalled" the evidence of these witnesses, the defendants made significant criticisms of the reliability of the testimony of each of them, and it is appropriate to deal with their evidence somewhat more fully.

[27]

Ms Karla Cubby

In her witness statement, Ms Cubby said she was a pupil in Sister Green's class from 1994 to 1996. In the latter years, she said Sister Green hit her on her hands and thigh with rulers and hit other children as well. She stated, "the violence…occurred frequently" and "if it wasn't me copping it, it was other students, so it felt like a constant thing" ([19]). She asserted that the teacher's aides were present but did not intervene.
In cross-examination, Ms Cubby accepted that her witness statement was the first written record of her claims about Sister Green's misconduct, and it was prepared for the purpose of her own claim for compensation (T512.11-35). She conceded she did not see other students being hit (T506.36 - 40), but maintained, "if it wasn't me, it was another child".
Ms Cubby also gave evidence that she was transferred to another school by her mother when she complained of the abuse in Year 1 (Exhibit CB 18.195 [21]; T510.46-511.7). However, the transfer did not in fact occur until either Year 3 or 4 (T531.8-11) when she was not in Sister Green's class which, the defendants submit, calls the reliability of her account into question.

[28]

Ms Sylvia Fernando

While Ms Fernando gave evidence of Sister Green hitting students with Montgomery or screwing their ears when they did the wrong thing (Exhibit CB 32 [11]; T169.16 - 30), she accepted it was difficult to recall events from so long ago (T160.23 - 33). She also had difficulty remembering other details including the role of the other teachers and teacher's aides.
She clarified that the blows with the ruler meant no more than "tapping" the pupils and "it was not very hard" (T173.17 - 40). While she had to sit in the chalk circle, this was for no more than ten minutes (T186.23 - 25).
She gave evidence that Sweeney twisted or screwed pupils' ears but, in her experience, it never hurt and she thought of it as a joke (T190.6 - 34).
She maintained that at least one child would be hit on the knuckles everyday with Montgomery causing them to cry loudly and in the presence of adult staff members who did nothing to intervene.

[29]

Ms Janine Monaghan

Ms Janine Monaghan was in Sister Green's class for Years 1 and 2 in 1993 and 1994. She initially gave evidence of Sister Green only hitting students in the absence of other teachers (T306.40-307.20). Initially she complained that Sister Green continued to discipline her by striking her after she left the infants' class (CB 15.184 [19]), but in cross-examination she said that Sister Green "never hit me again" (T298.33 - 45). She was unable to explain why she signed her statement when paragraph 19 was wrong (T300.7 - 14).
While she had claimed that she had been struck on the forearms, hands and back and legs by Sister Green, she later accepted that there was no striking on the back and legs (T300.49-301.49). She was unable to explain the inconsistency and eventually said so.
Interestingly, she did not give evidence about the occasion she was smacked leading to her guardian complaining to Brother Hollamby. I assume she had forgotten that incident.

[30]

Ms Alicia Monaghan

Alicia Monaghan was probably in Sister Green's class from 1994 to 1996 (Exhibit 13, - class photos). She claimed to have been struck by Sister Green but "not often" (T261.25), however her account escalated somewhat. Her evidence was that Sister Green hit the pupils under her care "every day" with a ruler (T267.21, 267.28-31). There was much screaming out in pain (T265.6-28) and Ms Phyllis Cubby and Ms Joanne Edwards, who were present when the blows were struck, would take the children outside to comfort them. Sometimes they would take those children to the principal's office. These matters were not put to the defendant's witnesses in cross-examination. They may have supported an inference that Brother O'Brien and Brother Hollamby were on constructive notice of the infants' school pupils being physically abused by Sister Green.
Ms Monaghan has brought her own claim for compensation (Exhibit 10) and has discussed and exchanged memories with her sister Janine Monaghan prior to making her statement (T276.41-43).

[31]

Mr Terence Hines

The evidence of Mr Hines does not seem to be relied upon in any respect by the plaintiff, but his evidence was referred to by counsel for the defendants and they submit that he was an unsatisfactory witness in very many respects. His body language exhibited a strong disinclination to be in court giving evidence (T467.30 - 468; 468.40 - 469.25).
Although Mr Hines seemed to say that Sister Green struck him on the knuckles with a ruler on three occasions for talking instead of working, this was later amplified to, "she is hitting me in a lot of places… she hit us [on] all parts of our body really… she's hit me with a cane" (T467.15 - 20). The other staff members in the room did not help, rather "they joined in" (T478.30 - 50).
He said that Sweeney was also violent and hit him (T481.37). He would distract Mr Hines and his cousin by telling them to look up at the birds and then "he kicked us both in the arse with one kick" with sufficient force to make them fall over. When questioned about the history he gave whilst in custody in 2008 to a Justice Health psychologist of the physical and emotional abuse he'd suffered as a child, he said nothing of what happened at St Ignatius (T485.15 - 30).
It is difficult to accept Mr Hines evidence as an accurate account.

[32]

Ms Margaret Dixon

It will be recalled that Sister Green gave evidence of smacking as opposed to whacking one child only. That child was Margaret Dixon who was called in the plaintiff's case in reply. Her statement of 14 February 2024 was submitted as Exhibit B. She did not recall the specific incident ([8]) but commented that it was "the sort of thing Sister [Green] did to me a lot" (at [24]). She described being smacked by the delivery of hard whacks by hand to her bottom. She described the frequency as "a couple, a lot of times" (T937.46). The defendants highlighted the vagueness of that response. In re-examination, Ms Dixon confirmed that Sister Green smacked her more than once.

[33]

Ms Patricia Mannix

I have already referred to part of Ms Mannix's evidence above. Ms Mannix's evidence was principally given in her first statement dated 11 July 2023 (Exhibit CB 50.362 ff). Ms Mannix has a long connection with primary education. She was born in 1942, and after leaving school in the late 1950s, attended Teachers' College from which she graduated with a conditional certificate, as she put it. This was not a full certificate as apparently her spelling was not up to the required standard. She worked at St Ignatius for various periods between 1989 and 1997. In about 1994, she was employed at the Bourke Public School and at that time received a full Teachers Certificate. She returned to St Ignatius and worked as a teacher thereafter.
During her initial employment at the school, she was working as a teacher's aide and she worked with Sister Green from 1991 to 1993. Other members of staff assisting Sister Green were Phyllis Cubby and Joanne Edwards. She said the children fought amongst themselves from time to time. She described Sister Green's methods of maintaining discipline in the classes as including the establishment of a pest list upon which children were to endorse their demerits with an 'x', which resulted in the withdrawal of privileges, and merits or credits were denoted by a gold star. Sister Green would discipline a misbehaving child with a slap by hand to the bottom. Later Ms Mannix described it as tapping a child on the bottom (T699.8-11). Ms Mannix demonstrated the nature of the slap in re-examination. It was a slap with an open palm involving a short back lift and not much of a follow through (T709.10-15). The children were also required to sit in the chalk circle on the playground. She said this was required for "two minutes" (T703.27-28), which I took not literally but to indicate only a short time as opposed to the extended period described by some of the plaintiff's witnesses. She denied the children were hit with the ruler named Montgomery. While she was cross-examined, it was suggested her opportunity to witness these matters may have been limited by her attention to her own duties, and her response to that suggestion was, "but I was in the same classroom with her" (T77.48).
She did not recall any specific incident relating to Janine Monaghan (T706.2), nor was she aware of the incident involving Margaret Dixon (T706.24). She could not recall Sister Green smacking children any more than about five times (T699.29). The smack was not aggressive (T700.2).

[34]

Ms Lauretta Wheeler

Ms Wheeler worked as a teacher's aide to Sister Green at St Ignatius from 1994 to 1996. According to her statement of 8 July 2023, which was admitted as Exhibit CB 47.342 ff, she had been a pupil at St Ignatius herself from 1968 to 1973, which was before Sister Green's time. In those days, a wrap across the knuckles with a ruler was a common form of physical discipline.
Obviously, Ms Wheeler's employment at the school was after the plaintiff had left the infants' class but she was surprised when she heard of the plaintiff's allegations because she had never known or suspected Sister Green of abusing anyone. It was contrary to Ms Wheeler's assessment of Sister Green's character. Had she witnessed Sister Green physically abusing the children she would have reported it to the principal.
She said that she had seen Sweeney separating fighting boys and holding them apart while he took them to the principal's office (T612.11; T613.40).
She said Sister Green was strict in the firm but fair mould (T614.33). She said that Sister Green used to tap the blackboard with a "pointer stick" to draw the pupil's attention (T615.30). She had never seen Sister Green smacking a student in the classroom (T618.5). She cannot recall the "pest list" or the "poison circle" (T622.30 - 43). Sister Green would rouse on inattentive, disruptive or misbehaving pupils (T623.5). She did not remember Margaret Dixon.
She was not present in the classroom continuously as she absented herself a couple of times a day on various errands.

[35]

Ms Phyllis Cubby

Miss Cubby's witness statement of 11 July 2023 was admitted as Exhibit CB 52.372 ff. She was born in 1947 and is of Indigenous heritage. She worked as a teacher's aide at St Ignatius assisting Sister Green in the infants' class from 1987 to 2001. She regarded Sister Green was a kind and caring person.
She did not work in the main classroom continuously during the day. Part of her role was to take smaller groups of students into the smaller room adjoining the main classroom for specific lessons. The door was normally closed so it was quieter. The whole group met up from time to time during the day for group activities ([8]; T758.17-27). It was her evidence that Sister Green did not hit any child during the fourteen years that Ms Cubby worked with her. She had not received any complaints about Sister Green from students or their parents.
The defendants accept that the accuracy of Ms Cubby's recall is affected by her deep and abiding admiration for Sister Green. To that extent, her evidence was inconsistent with that of Sister Green herself inasmuch as she never saw Sister Green smack a child even lightly (T751.11-23); she never saw Sister Green pick up Montgomery or ask where it was (T757.31 - 36) and she never saw Sister Green hit Montgomery on the blackboard or a desk to attract the attention of an unruly student.
Bearing these things in mind, Ms Cubby's denial that Sister Green ever hit a child with a ruler or other implement has to be taken in context. She certainly had no recollection of Sister Green separating a child from the rest of the class for any purpose ([27]). She plausibly reasoned "[Sister Green] had a class full of kids to teach". This evidence was not challenged. Ms Cubby did not recall the incident with Margaret Dixon (T51.40), and she did not recall the incident with Janine Monaghan (T 53.20).

[36]

Ms Joanne "Pinny" Edwards

Ms Edwards was employed at St Ignatius from 1989 to 2005 as a teacher's aide very frequently working with Sister Green. Her evidence in chief is contained in her witness statement of 3 October 2023 (Exhibit CB 60.448 ff). Ms Edwards was of Indigenous heritage. Like Ms Cubby, Ms Edwards was an admirer of Sister Green and was impressed by her advocacy on behalf or her Aboriginal pupils and her kindness towards them.
Ms Edwards believed that corporal punishment was not permitted at St Ignatius. Her evidence was that Sister Green was able to control the class by "[using] her mouth" (T920.48 - 921.6); that is to say, by directing the children to behave. She recalls Montgomery, but said it was never used to strike any child. She did not see Sister Green use any form of physical discipline on the pupils. She had never seen Sister Green, in the latter's expression, "whack" a pupil (T920.08).
She had never seen Sweeney physically disciplining children at St Ignatius ([15]). I did not regard Ms Edwards as being other than well motivated by a genuine desire to tell the truth. It has been 30 years since she last worked with Sister Green at St Ignatius and time erodes memory. However, it was apparent that her evidence was inconsistent with Sister Green's own evidence.

[37]

Mr Adam Foley

Mr Foley taught at St Ignatius from 1994 to 1997, and his witness statement of 12 July 2023 was admitted as Exhibit CB 54.382 ff. In 1994, Mr Foley was teaching literacy to groups of Sister Green's students. He would assist the infant students for about one hour each day. He would usually be in the classroom for about ten to fifteen minutes and the balance of time was spent immediately outside the classroom on the veranda where, naturally, he was focused on his role working with his students (T828.25). It was his understanding that corporal punishment was not permitted at the school (T827.36) and he never witnessed it (T828.9). This may have been due to his limited interaction with other teachers during class time. While working on the veranda, he heard a ruler, or a pointer being tapped on the desk or blackboard to attract the attention of students (T828.38). He never experienced any pupil being reluctant to return to Sister Green's class after working with him. He was unaware of the incidents involving either Margaret Dixon or Janine Monaghan (T828.48).

[38]

Mr Max Boney

Mr Boney was a student in Sister Green's infant Aboriginal class in 1996 and 1997 (Exhibit 13). His statement of 11 May 2023 was admitted as Exhibit CB 53.378 ff. The statement may be erroneous as to his recollection of the years he attended school, but nothing turns on that. He obviously had fond memories of Sister Green, and in cross-examination, it became apparent that his memory was inconsistent with Sister Green's own evidence. Under cross-examination, he could not recall pupils being disruptive requiring Sister Green to take control of the class and discipline students; or Sister Green even rousing on pupils (T630.1-632.16). In his statement ([15]), he denied ever having seen Sister Green engage in physical discipline of the pupils.
He regarded Sister Green as caring of the children and said that she treated the pupils "like her own children".
Sweeney is Mr Boney's blood relative, and he never saw him improperly treat any student. Mr Boney had been in custody with the plaintiff at one stage, but no mention was made to him of the allegations now raised.

[39]

Brother Robert Hayes

Brother Hayes is a Marist Brother who taught at St Ignatius. His witness statements dated 31 October 2023 and 17 January 2024 are Exhibits CB 41.311 ff and CB 44.324 ff respectively. From 1991 to 1994, Brother Hayes taught remedial reading to students in Sister Green's class for a couple of hours each Friday afternoon. He also had a parent liaison role requiring him to visit the parents of Aboriginal students at their homes from time to time.
In his liaison role, he had what he described as "very natural and very truthful conversations with the parents" (T.807.43-808.4). He would ask parents whether their child was enjoying the school, including Sister Green's class, and asked them about any of their worries or concerns (T.812.48-813.3). No concern with respect to Sister Green was raised with him. From his interaction with the parents, he believed he would have heard complaints if the children were being treated harshly or routinely hit (Exhibit CB 41.314 [40]).
Parents did raise concerns with him about how their children were progressing and would discuss problems the children were having at school or with other pupils (T. 813.38 - 814.11).
While he was focused on the task of assisting pupils with their reading while he was in Sister Green's class, he never saw Sister Green strike a child with a ruler. He regarded Sister Green as an excellent teacher who had great control. She was friendly but firm with the students. Sometimes she would strike the ruler on the desk to attract the pupils' attention, but she never used it to hit anyone. Brother Hayes was aware that corporal punishment was contrary to policy at St Ignatius.
He had a high regard for Sweeney and described him as "a fair and lovely man"; he was strict but caring. Brother Hayes never witnessed Sweeney hitting a student.

[40]

Ms Lisa Green

Ms Green's witness statement of 8 July 2023 was admitted as Exhibit CB 48.349 ff. Ms Green's connection with St Ignatius commenced in 1976 when she was in Sister Green's infants' class for Years 1 and 2. She said there was no physical discipline at that time (T.889.35-37). She returned to St Ignatius as a teacher in 1993. She would take students from other classes including Sister Green's class to support them in literacy. Like Mr Foley, she worked with the pupils on the veranda outside of the door of Sister Green's classroom. In 1996, Ms Green's kindergarten class adjoined Sister Green's class. The classrooms were separated by a temporary wall with a doorway. It was not very soundproof (Exhibit CB 48.351; [14(a)]) and she would hear and see Sister Green from time to time during the day. She never witnessed any abuse of any child. She regularly saw Sister Green at assemblies, Mass or other liturgies. She never witnessed Sister Green being cruel, hitting or abusing pupils.
In cross-examination, Ms Green denied that Sister Green whacked a large ruler on desks or blackboards to attract attention, nor did she see Sister Green even lightly smack the students (T.890.2; T.890.46). She was unaware of the poison or chalk circle punishments (T. 891.14).
She was unaware of the incidents involving Margaret Dixon or Janine Monaghan and was unfamiliar with the name Montgomery (T. 897.11).

[41]

Ms Annette Welch

Ms Welch was a teacher at St Ignatius between 1980 and 1988. Her statement of 30 October 2023 was admitted as Exhibit CB 35.279 ff. She was otherwise involved with the school as a parent, as her four children attended St Ignatius. She served on the school board between 1991 and 1998.
She regarded Sister Green as an inspirational teacher and acknowledged their personal friendship.
She taught the infants' classes in 1980, 1981 and 1982. The students were taught in one room which could be divided by partitions. She said that she and Sister Green used physical discipline in the classroom by way of a light smack to a pupil's bottom with a bare, open hand. From her observation, Sister Green never disciplined students in a way that she regarded as unreasonable, excessive or harmful to the children. She was compassionate and concerned if a pupil had been injured outside of school.
She saw Sister Green use the chalk or poison circles as a form of discipline, but the child was always supervised (T. 847.1- 4).
When pressed in cross-examination, she said she did not have an actual recollection of Sister Green smacking children as a form of discipline but gave evidence to the effect it was a form of discipline commonly employed at that time (T. 846.13-23).
Specifically, she does not recall Sister Green using Montgomery to hit a child. Threats about Montgomery were light-hearted. From time to time, Sister Green would hit Montgomery against a desk to attract the attention of pupils in a noisy classroom. Ms Welch did the same thing.

[42]

Ms Jennifer Ward

Ms Ward taught at St Ignatius between 1974 and 2000. Her witness statement of 30 October 2023 is Exhibit CB 36.285 ff. She taught alongside Sister Green in the infants' school from 1980 to 1986. Her son was in Sister Green's class.
She was aware that Sister Green used Montgomery to hit a desk to attract the attention of pupils in a noisy classroom.
To Ms Ward's observation, Sister Green was strict, and it was her teaching style to give simple and short instructions that were effective. There was little flexibility for the children to do things other than that required by Sister Green. Ms Ward believes that Sister Green was proud of her students and was strict because she was trying to get the best out of them.
Ms Ward never saw Sister Green hitting a student either with her hand or otherwise, but she did not tolerate disruptive behaviour or hostility. She was aware of the chalk circle, or poison circle as it had sometimes been put, but did not regard it as unreasonable.
She remembered the plaintiff but does not remember him as a particularly troublesome student. In cross-examination, Ms Ward agreed that her ability to observe Sister Green's class was limited due to the concertina walls providing partition (T. 852.29).
She was unaware of the incidents involving Janine Monaghan or Margaret Dixon (T. 845.15).

[43]

Ms Judith Ryan

Ms Ryan was the principal of St Patrick's Catholic Primary School, Trundell when she gave evidence before me. Her evidence in chief was contained in her witness statement of 27 September 2023 (Exhibit CB 59.444 ff). She worked as a relief teacher at St Ignatius from March to October 1993, during which period she taught the primary school Aboriginal class.
In Ms Ryan's experience, it was often difficult teaching at St Ignatius due to behavioural issues and "unruly behaviour" ([6]). She denied that corporal punishment was an accepted form of discipline at St Ignatius (T. 927.45-47). From her discussions with and her observations of Sister Green, she formed the view that Sister Green's teaching style was "firm" (Exhibit CB 59 [12]), but she had never seen her abuse any child (T. 929.10-13). She had never seen Sister Green "whack" any student (T. 929.10-13).
During her time at St Ignatius, she never witnessed Sweeney disciplining children in a physical way.

[44]

Sister Eileen Quade

Sister Quade taught at St Ignatius in 1974 and was principal from 1980 to 1983 and again from 1985 to 1987. Her evidence in chief is contained in her witness statement of 25 September 2023 (Exhibit CB 58.436 ff).
She taught alongside Sister Green in an open-plan classroom unit in the 1970s. Corporal punishment was not utilised at the school, but it was possible that a student may have been smacked by a teacher with an open hand. Sister Quade did not regard it as a common occurrence. She was the person who initially employed Sweeney and regarded him as an excellent role model for the students and within the Bourke community (CB 44[4], [10], [11], T.817.17-22). She "never, ever witnessed" Sweeney give a student a clip over the ear or physically abuse the children.
Sweeney's role included taking children home to be disciplined if necessary (T. 717.44). Even when she was principal, she spent a good deal of her time attending classes for brief visits or to observe children's work if she received an invitation from the teacher to attend (T. 718.24-25). She would often drop in without notice (T. 718.36-44). The purpose of her visits was to assess the "general climate in the room and the level of … calm, order, whether [the] children are at task and more of that" (T. 719.11-17). She agreed that hitting a child with any implement, screwing their ears, or making children stand in the sun for extended periods would be unacceptable (T. 723.31-724.35).
When she was principal, the school did not have a written policy or procedure regarding physical discipline of students (T. 730.22). She had witnessed Sister Green whack children with an open hand on the bottom over their clothing (T. 732.48), that was a permitted form of discipline (T. 735.30). Smacking a child would be unacceptable (T. 733.15). I took her to mean hard spanking.

[45]

Brother John O'Brien

Brother O'Brien is a Marist Brother, and he was the principal of St Ignatius for five years from 1988 to 1992. His evidence in chief is contained in his witness statement of 13 October 2023 (Exhibit CB 42.315 ff). He had no memory of corporal punishment being used at the school and it was not considered a popular method of discipline. The preferred method of discipline was isolation treatment. However, he has no memory of pupils being ordered to sit in the playground. He never himself grabbed, twisted or screwed any pupil by the ears. Brother O'Brien had no memory of Sister Green hitting children with a ruler.
To his observations, Sister Green was strict and kept tight control of her class but looked after her students and was committed to their welfare.
There was no document setting out the protocols regarding physical discipline (T. 798.43 - 798.50). In "extreme cases" students were brought to the principal where the principal would administer discipline (T. 799.19). He often dropped into classrooms, including Sister Green's classroom, for various purposes, but he was largely reliant upon staff feedback for information about what was happening at the school (T. 799.40). It was not uncommon for a student to approach him to make a complaint (T. 800.2-15).
He does not recall Sister Green discussing the incident involving Margaret Dixon with him (T. 801.21). He said that Sweeney's role did not involve physically disciplining students (T. 802.18).
He said that the first defendant paid stipends to the Marist Brothers for the Brothers who were engaged in work at St Ignatius. The Marist Brothers paid the Brothers their usual stipends. The school administration did not pay the Brothers (T. 802.45 - 803.18). He was unaware of the arrangements with the Sisters.

[46]

Brother Daniel Hollamby

Brother Hollamby was the principal of St Ignatius from 1993 until 1998. His evidence in chief is contained in his witness statement dated 31 October 2023 (Exhibit CB 43.319 ff). He accepted that his visits to classrooms was limited given his other duties, and as such the visits would have taken up no more than twenty percent of his time across the whole of the school (T. 775.5). Visits were often at the invitation of teachers, otherwise he would avoid dropping in lest he caused unnecessary interruptions or distractions (T. 776.40).
Notwithstanding his limited opportunity to make direct observations, he did not see or hear of Sister Green hitting children with a ruler or otherwise physically abuse them. He did not receive any complaints about her except for the incident involving Janine Monaghan. That complaint related to Sister Green smacking the child on her bottom with an open hand which resulted in the student's grandmother complaining. Sister Green does not recall this incident. Janine Monaghan was an infant pupil in the Aboriginal stream from 1992 to 1995 and the complaint would have been in one of those years (T. 781.4 - .38). He had cause to counsel Sister Green about the matter. He said that Janine Monaghan was a cheeky and disobedient child, and her misbehaviour must have been "reasonably extreme" to illicit a smack from Sister Green.
Brother Hollamby's definition, or understanding, of corporal punishment was punishment which is deliberately inflicted to cause pain (T. 786.47 - 787.16). A smack would be "borderline", but he had occasion to counsel three or four teachers against smacking during his time as principal. He certainly accepted that banging heads together, kicking students in the bottom and striking them with a ruler would be against his policy prohibiting corporal punishment.
Brother Hollamby regularly visited Sister Green's class on her invitation and would often attend after morning tea (T. 776.15). He was not aware of any inappropriate discipline by Sister Green during those periods.
He was aware of Sister Green hitting rulers on desks to attract pupils' attention in a noisy classroom (T. 784.5). He had no concern with this.
He was not aware of Sweeney disciplining the children in an inappropriate way. It was part of Sweeney's function to conduct visits to children's homes on occasions. He was aware of Sweeney's criminal matter, but not the detail (T. 789.35). He does not recall Margaret Dixon (T. 789.16).

[47]

Reasons for decision that serious physical abuse has not been proved

In addition to the principles to which I have referred concerning proof in civil cases above at [38], I wish to bring to mind some wise observations of learned jurists concerning the effect of passing time on memory. In Herron v McGregory (1986) 6 NSWLR 246 (at [245]), McHugh JA (as his Honour then was) observed: "… memories fade. Relevant evidence becomes lost. Even when written records are kept, long delay will frequently create prejudice which can never be proved affirmatively".
And as McHugh J, in Longman v The Queen (1989) 168 CLR 79 (at [107] - [108]) said: "The fallibility of human recollection and the effect of imagination, emotion, prejudice and suggestion on the capacity to "remember" is well documented. The longer the period between an "event" and its recall, the greater the margin for error. Interference with a person's ability "to remember" may also arise from talking or reading about or experiencing other events of a similar nature or from the person's own thinking or recalling … Experience derived from forensic contests, experimental psychology and autobiography demonstrate only too clearly how utterly false the recollections of honest witnesses can be."
In Gestmin SGPSS.A. v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm) Leggatt J said (at [16]): "While everyone knows that memory is fallible, I do not believe that the legal system has sufficiently absorbed the lessons of a century of psychological research into the nature of memory and the unreliability of eyewitness testimony. One of the most important lessons of such research is that in everyday life we are not aware of the extent to which our own and other people's memories are unreliable and believe our memories to be more faithful than they are. Two common (and related) errors are to suppose: (1) that the stronger and more vivid is our feeling or experience of recollection, the more likely the recollection is to be accurate; and (2) that the more confident another person is in their recollection, the more likely their recollection is to be accurate. Underlying both these errors is a faulty model of memory as a mental record which is fixed at the time of experience of an event and then fades (more or less slowly) over time. In fact, psychological research has demonstrated that memories are fluid and malleable, being constantly rewritten whenever they are retrieved. This is true even of so-called "flashbulb" memories, that is memories of experiencing or learning of a particularly shocking or traumatic event. (The very description "flashbulb" memory is in fact misleading, reflecting as it does the misconception that memory operates like a camera or other device that makes a fixed record of an experience.) External information can intrude into a witness's memory, as can his or her own thoughts and beliefs, and both can cause dramatic changes in recollection. Events can come to be recalled as memories which did not happen at all or which happened to someone else (referred to in the literature as a failure of source memory)."

[48]

Conclusion

It appears to be common ground that corporal punishment of students was a permissible means of discipline of students in non-government schools until the enactment of s 47(h) of the Education Act 1990 by the Education Reform Amendment (School Discipline) Act 1995 (NSW) which commenced on 21 December 1996. Section 35(2A) Education Act prohibits corporal punishment in government schools. By s 3, corporal punishment is defined as meaning "the application of physical force in order to punish or correct the student". Physical force may be applied to prevent personal injury or damage to or destruction of property. In my opinion, the definition of corporal punishment which commenced on 21 December 1996 does not alter the common law in relation to a teacher's authority to punish as it applied in the early 1990s when the plaintiff was an infants' pupil at St Ignatius. I remind myself that at common law the relation of school-teacher and pupil carried with it the right of reasonable corporal chastisement: see Cleary v Booth (at [19] above). In Mansell v Griffin (see [20] above), the formulation was in terms of "authority to administer moderate and reasonable corporal punishment". The punishment had to be administered for a lawful purpose and not "by any bad motive".
It is also clear from the evidence of each of the principals of St Ignatius from whom I heard, Sister Quade, Brother O'Brien and Brother Hollamby, that there was a policy against the use of corporal punishment. Although the current statute speaks in terms of "physical force", as I have said, I have not been favoured with any expert evidence as to the standards applicable in non-government schools at the relevant time. In this regard, I am prepared, as I have said, to adopt Brother Hollamby's definition of the deliberate infliction of pain. As Ryan v Fildes (at p 523) makes clear, the adoption of such a policy does not derogate from the teacher's lawful authority of chastisement.
Dealing first with Sister Green, I am not of the view that an open palm smack to the bottom of a child over his or her clothing involves the deliberate infliction of pain. Brother Hollamby regarded the example as borderline, but I acknowledge he thought it prudent to counsel Sister Green about the Janine Monaghan incident and Sister Green was self-reproachful about her treatment of Margaret Dixon. The grown-up Ms Dixon herself could not recall the incident. I infer from Sister Green's reaction to her own conduct that she was as strict with herself as she was with the children and was self-reproachful for what may have been, for her, a loss of control. In any event, that is not the case she is meeting currently.

[49]

Contingent findings

As I have said, I will make contingent findings in relation to other issues that were ventilated before me. As there is a high degree of artificiality in this exercise in the particular circumstances of this case, I propose to deal with each matter succinctly.

[50]

Vicarious liability

So far as Sister Green is concerned, there is absolutely no evidence that she was employed under a contract of service by any of the defendants. There was nothing about the circumstance of a member of an order of nuns working as a teacher at a Catholic School that suggests by implication or inference any contract of service. By dint of the decision of the High Court of Australia in Bird v the DPP, this means inevitably that none of the defendants would have been vicariously liable for any deliberate act of Sister Green beyond what could be categorised as lawful chastisement, notwithstanding the consideration had she been an employee, the administration of punishment would have been prima facie within the course of her employment: Lepore at [12] (see [22] above).
The plaintiff maintains that the third defendant, standing in the place of the order of nuns of which Sister Green is a member would have been vicariously liable for her tort had it been established. In this regard, I was invited to draw a Blatch v Archer inference that "the discharge of [the evidential onus] must be viewed through the power in which the plaintiff has capacity to adduce evidence on that topic relevant to the power of the third defendant to contradict it" (Supplementary Submissions 12 December 2024 [9]). While Blatch v Archer (1774) 1 Cowp 63; (1774) 98 ER 969 concerns a form of permissible inferential reasoning, it does not permit gaps in the evidence to be filled. There must be some evidence capable of supporting an inference that Sister Green was the third defendant's employee working under a contract of service. Here there was none, and the inference is not available.
Sweeney is in a different situation as he was a direct employee of the first defendant. Had I been persuaded that he had inflicted serious physical abuse upon the plaintiff, that case would have been maintainable under s 6A Limitation Act and his conduct, albeit misconduct, would probably have been in the course of his employment and, accordingly, the first defendant would have been liable for the consequences.

[51]

Liability for non-delegable duty

In my judgment, only the first defendant owed a non-delegable duty to the plaintiff. While the second defendant, under an agreement provided its Brothers to run the school, it did not thereby become a non-government school authority in my judgment. The fact that the third defendant made the Sisters who were its members available to teach falls into the same category. It did not thereby assume a non-delegable duty owed to the plaintiff and his claim would have failed against the second and third defendants on that ground.
As I have pointed out, for any claim on behalf of the plaintiff to be maintainable at all it had to be based upon him establishing severe physical abuse at the hands of Sister Green and/or Sweeney. Only such a claim is subject to s 6A Limitation Act. As I pointed out at (at [23] above), Lepore stands firmly in the way of the plaintiff's success in this regard. The scope of the non-delegable duty of care owed by a school authority to a pupil under its care does not extend to the consequences of the criminal acts of others including the criminal acts of a teacher employed by it under a contract of service.
I appreciate that Gaudron and McHugh JJ dissented. McHugh J in particular pointed out that the same case may be framed either in trespass to the person or negligence. However, the answer to this proposition is in my judgment given by Gummow and Hayne JJ (at [270]): "As Williams v Milotin [(1957) 97 CLR 465 at 470] makes plain, negligently inflicted injury to the person can, in at least some circumstances, be pleaded as trespass to the person, but the intentional infliction of harm cannot be pleaded as negligence. The appellants allege intentional trespasses to the person, not negligence. The appellants' claims founded on an allegation of a non-delegable duty to ensure that care was taken of them are, therefore, bound to fail."
There may have been a maintainable case against the first defendant based upon breach of its non-delegable duty if it had been proved that one or other of the principals had acquired actual or constructive knowledge of the type of systematic serious physical abuse which, in the plaintiff's evidence was being perpetrated in Sister Green's classroom, to which all other members of staff working there were turning a blind eye. Had such a case been proved, the principal would have been bound to act to put a stop to such grievous misconduct, and a failure to do so would have been sheeted home to the first defendant as the school authority as a breach of its duty to ensure that reasonable care was taken. But there is simply no evidence supporting such a case. Indeed the evidence was to the contrary as my analysis of the evidence of each of Sister Quade, Brother O'Brien and Brother Hollamby demonstrates. Indeed Brother Hollamby, when the Janine Monaghan incident came to his attention did act upon the knowledge he thereby acquired and counselled Sister Green. There was no reason to suppose and certainly no evidence to prove that Sister Green would not have heeded the admonishment or counselling of the principal.

[52]

Contingent findings on quantum

As I have attempted to make clear, the governing fact which determines the outcome of this case is whether the plaintiff has established that he was subjected to serious physical abuse perpetrated by Sister Green and Sweeney. Had he been successful in that regard there could be little doubt that any liability in any of the defendants for that serious physical abuse is a civil liability in respect of an intentional act that is done with intent to cause injury or death within the meaning of s 3B(1)(a) CLA, and the damages payable for the consequences of the defendant's tort are not governed by the provisions of Pt 2 of that Act, but are at large to be assessed by reference to common law principles. The provisions of Part 1B CLA making special provision for the civil liability of organisations in child abuse cases do not otherwise modify the damages payable.
Given that the serious physical abuse issue formed the whole basis of the plaintiff's claim, notwithstanding aspects of its pleading and presentation focusing upon negligence, it seems pointless to separately assess the damages in accordance with Pt 2 of the Act. It seems to me, notwithstanding the general obligation of a trial judge to express views about all matters in dispute lest there is an appeal and to avoid the misfortune of a re-trial, there is a high degree of artificiality in approaching the present case in that manner.

[53]

Factual background

The plaintiff was born in 1986. He was aged between six and eight years at the time of the alleged abuse and is now 38 years of age. He is separated from his partner, has never worked and is in receipt of the Disability Support Pension. According to the history recorded by Dr Rosalie Wilcox (Exhibit CB 63.477 ff), his eligibility for the pension related to diagnoses of pulmonary hypertension and cardiomyopathy.
As I indicated earlier in these reasons the applicant was born and raised in the far west of New South Wales, mainly in Bourke, but he lived elsewhere from time to time while growing up. He appears to have suffered profound deprivation during his formative years and was exposed to very significant psychological stressors and trauma. Apparently, he first came into contact with the juvenile justice system at the age of eleven and, regrettably, has since been caught up in that system and the criminal justice system as an adult. His schooling was very disrupted, and he is functionally illiterate.

[54]

General damages

As I have said, at common law, general damages are at large and are to be calculated in accordance with the compensatory principle. That is to say the damages are to put the plaintiff in the position he would have been in had the tort not been committed so far as money can.
I have been provided with a number of comparable awards by the plaintiff's counsel (Written Submissions A.3, [162] - [164]). As I am assessing common law damages, I consider I am bound to disregard that material having regard to the principles established by Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118; [1968] HCA 62. The provisions of s 17A CLA do not apply to this case: s 17A(3); s 3B(1) CLA.
Although emphasis has been placed upon the psychological or psychiatric consequences of the alleged serious physical abuse, I bear in mind that had the plaintiff's case been made good, each of the assaults upon which he relies itself would have sounded in damages even if the physical injury inflicted was transient, given the purpose of vindication of the personal integrity of the plaintiff relevant to the assessment of damages for trespass to the person.
There are real complexities in terms of the assessment of the alleged psychiatric injury. Both Dr Reutens and Dr Wilcox are of the opinion that there are a number of comorbidities affecting the plaintiff's mental health. In Dr Reutens' view they are (Exhibit CB 62.474): Post-Traumatic Stress Disorder (in partial remission); Schizophrenia; Stimulant Use Disorder (in current remission) and Cannabis Use Disorder. In her oral testimony, Dr Reutens seemed to accept that the plaintiff also suffered from an Antisocial Personality Disorder (APD) (T. 992.1-19).
In Dr Wilcox's opinion (Exhibit CB 63.489), the plaintiff met the diagnostic criteria for PTSD; Schizophrenia; Polysubstance Use Disorder; probable Developmental Disability; Personality Disorder with antisocial and borderline characteristics.
Both experts agreed that the PTSD pre-existed the period of the alleged serious physical abuse. In all probability, it related to witnessing the murder of his aunt at a young age and had been perpetuated by other significant childhood stressors such as the drowning of his cousin and the fatal car accident involving his close friends. The real difference between them related to the causal contribution, if any, of the alleged serious physical abuse to the PTSD. It is quite clear that the comorbidities to which I have referred have arisen independently of the alleged serious physical abuse, although Dr Wilcox expressed the opinion that the PTSD may have contributed to the Substance Use Disorder.

[55]

Assessment

I accept the evidence of the experts. In the end, as I understand it, both moved to the common position that the alleged physical abuse made a minor contribution only to the PTSD. In answer to a question of mine, Dr Reutens proffered a percentage contribution of ten percent to fifteen percent, acknowledging that was very artificial. I thought in the end she was more comfortable with a "minor contribution" (T. 991.10). Dr Wilcox agreed. For the purposes of assessment, I will eschew percentages.
There is a real question about whether a minor contribution is a material contribution sounding in damages. However, I accept the evidence that there may be an accumulation of stressors having an ongoing effect proffered by Dr Reutens. As I have said, my impression from the concurrent evidence was that each expert had moved to the same position. Obviously, the principles discussed in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20, as explained in Seltsam Pty Ltd v Gahleb [2005] NSWCA 208; (2005) 3 DDCR 1 (at [101] - [103] by Ipp JA) are called into play. I do not propose to take some arithmetical approach to the assessment, rather a broad judgment is called for. Given the myriad health problems that the plaintiff unfortunately labours under, it is difficult to focus upon the PTSD alone which, in any event, seems to be in at least partial remission currently, let alone make due allowance for the consideration that, in all probability, it would have inured at some degree of significance regardless of the alleged serious physical abuse.
Given the plaintiff remains a comparatively young man and the long period over which he has been subject to, on my contingent findings, enhanced PTSD because of the albeit minor contribution of the alleged serious physical abuse, and considering that it is likely to continue into the future in probably an attenuated form, I would have assessed general damages referrable to the putative tort of the defendants in the sum of $135,000. Of this, I would have apportioned 50 percent to the past and allowed pre-trial interest at the rate of two percent per annum (this is probably generous during the pandemic years) for a period rounded to 30 years. In accordance with this approach, pre-trial interest would have totalled $40,500. I would have allowed $5,000 for future out of pocket expenses, bearing in mind Dr Reutens' opinion and making allowance for other contingencies. Total damages would have been assessed in the sum of $180,500.

[56]

Aggravated and exemplary damages

The plaintiff makes a claim for aggravated and exemplary damages. Somewhat unusually, the claim relates to an aspect of the conduct of the first defendant's solicitors in their management of the case. In a nutshell, when pressed to state the legitimate forensic purpose for the issue of a subpoena for production to the plaintiff's solicitors seeking advertising material published by them in Bourke, an employed solicitor under the direction of the partner with the carriage of the matter asserted the documents were necessary to establish that the plaintiff's account and the account of his tendency witnesses are false, and that they are likely to have colluded with one another to offer false evidence to achieve some benefit. Frankly, these matters could not have risen above mere suspicion.
Notwithstanding the consideration that the solicitors produced the documents sought, I must say I accept even for mere suspicion, the ground was shaky and perhaps the stated legitimate forensic purpose was ill-conceived, ill-advised and somewhat intemperate. However, Mr Robinson of counsel who appeared for the first defendant did not raise the matter nor did he seek to cross-examine any witness to suggest there had been any collusion. Mr Lloyd SC who, as I have said, had main carriage of the defence of all of the defendants pursuant to their agreement, disavowed any reliance upon such an argument. Perhaps that should have been the end of it. However, by paragraph 57A and following of 3 FASOC, the plaintiff advanced a claim for aggravated damages on the basis of those assertions and by paragraph 57G and following, a claim for exemplary damages. These entitlements were disputed by the pleadings in paragraphs 18A of the first defendant's Second Further Amended Defence.
It is quite clear that the claims are based on no other ground, and doubtless a great deal of heat was generated between the solicitors over the first defendant's solicitors voicing their suspicions as founding a legitimate forensic purpose for the subpoena. It is unnecessary for me to say so, but I doubt it was any such thing.
However, no form of fraud was ever pleaded or, more importantly, run. No witness was cross-examined to suggest any collusion or other conspiracy. Each of the lay witnesses were sorely tested on the accuracy and reliability of their recall and a robust defence was mounted along the lines of, "this alleged serious physical abuse just did not happen". With great respect to learned senior and junior counsel for the plaintiff, I fail to see how the ground has been laid for either aggravated or exemplary damages based upon the generation and sending of a single email on 25 September 2023, however regrettable the incident might have been. As Mr Robinson points out in his written submissions, there is no evidence that the plaintiff had the email read to him or if it had come to his attention, the effect it had upon him. Bearing in mind that aggravated damages are compensatory, there is no evidence of any additional or enhanced loss caused by the email of 25 September 2023, and I would have rejected the claim for aggravated damages.

[57]

Orders

My orders are: 1. Judgment for the first defendant against the plaintiff. 2. The plaintiff to pay the first defendant's costs. 3. Judgment for the second defendant against the plaintiff. 4. The plaintiff to pay the second defendant's costs. 5. Judgment for the third defendant against the plaintiff. 6. The plaintiff to pay the third defendant's costs.

[58]

Case authority Uren v John Fairfax & Sons Pty Ltd citation amended in the judgment cover page.

[59]

Case authority reference or pinpoint errors corrected at Paragraphs: [3], 3, [7], [16]-[17], [20]-[21], [24].

[60]

Typographical errors corrected at Paragraphs: [4], [8], [10], [50], [60], [75], [76], [80], [89], [93], [104], [107], [108], [114], [121], [128]-[129], [131], [134], [136], [140], [150], [152], [155], [188], [191], [198], [200], [211], [217], [220], [228]-[230], [237], [245].

[61]

Cross-reference errors corrected at Paragraphs: [49], [59], [61], [66], [206], [210], [220], [224].

[62]

Court book reference errors corrected at Paragraphs: [57], [60], [69], [76], [79], [82], [92], [93], [96], [109], [113], [118], [128], [131], [136], [140], [143], [144], [147]-[148], [152], [155], [161], [167], [170], [174], [179], [195], [231], [236]-[237], [240]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 March 2025

Hartnett v Trustees of the Roman Catholic Church for the Diocese of Wilcannia-Forbes

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