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Category: Principal judgment

Parties: Tadeusz (Ted) Kawicki (Plaintiff)
Trustees of the Marist Brothers (Defendant)

Representation: Counsel:
Self-represented (Plaintiff)
N Polin SC (Defendant)
Solicitors:
Self-represented (Plaintiff)
Carroll & O’Dea Lawyers (Defendant)

File Number(s): 2021/273103

Publication restriction: Nil

JUDGMENT

1. HIS HONOUR: By his Amended Statement of Claim filed (“ASOC”) on 21 September 2021, the plaintiff, Mr Kawicki, claims damages from the defendant, the Trustee of the Marist Brothers for personal injury resulting from child abuse within the meaning of section 6A of the Limitation Act 1969 (NSW) (“Limitation Act”). To establish his case the plaintiff relies on both sexual abuse (ASOC [6]) and serious physical abuse (ASOC [7]) although the latter term is not used expressly in the ASOC.

2. The plaintiff alleges that both the sexual abuse and the serious physical abuse were perpetrated against him while he was a student at the Marist Brothers College, Maitland between 1960 and 1967 when he was between 10 and 17 years of age. He alleges that the sexual abuse was perpetrated upon him by a teacher at the school using the religious name Brother (“Br”) Florentine. The serious physical abuse was said to have been perpetrated serially by six named teachers at the school, all of whom are identified by their religious names. It is convenient to say at this stage that the evidence before me in the defendant’s case identified each of the named brothers as members of the religious order known as Marist Brothers (“Bros”) of the Schools (see Further Amended Defence (“FAD”) [2a]; Exhibit 3). Other than one (Br Conran) of the six brothers alleged to be a perpetrator of serious physical abuse, all of the named alleged perpetrators are now deceased.

3. While the religious order at common law is an unincorporated association, the trustees of the Marist Brothers is a body corporate under section 4 of the Roman Catholic Church Communities Land Act 1942 (NSW), which has been appointed as the proper defendant for the purpose of Mr Kawicki’s claim under section 6L of the Civil Liability Act 2002 (NSW) (“CLA”) by the religious order.

Legal Categorisation of Alleged Cause of Action

4. The named proper defendant is the only defendant. The plaintiff alleges (ASOC [9]) that the defendant owed a duty of care to students at the school including the plaintiff. It alleges that by the defendant negligence, it breached its duty of care to the plaintiff (ASOC [10]) and that the plaintiff’s injury is caused by that breach (ASOC [17]). The plaintiff also alleges that the defendant is vicariously liable “for the criminal acts” of the named teachers because they and the Marist Bros were in a relationship akin to employment.

5. When the matter was heard by me, the avenue of recovery through vicarious liability had been closed off by the decision of the High Court of Australia in Bird v DP [2024] HCA 41; (2024) 98 ALJR 1349. By that decision, the Justices confirmed that in the common law of Australia an employer may be vicariously liable for the acts of its employees, but there is no such liability for the acts of persons engaged to do work other than under a contract of service with the defendant. A relationship “akin to employment” is not recognised by the common law for the purpose of the law of vicarious liability (cf CLA s 6G).

6. It is convenient to say at this introductory stage that there is no evidence that any of the named teachers allegedly perpetrating child abuse on the plaintiff were employed by the Marist Brothers under a contract of service. On the contrary the evidence demonstrated that each of them was appointed to the school as a teacher in the discharge of his religious ministry: (Exhibit 3). For this reason, the question of vicarious liability need not be further considered in this judgment. Assuming for the moment that each of the teachers was a tortfeasor as alleged in the ASOC, the Marist Brothers were not vicariously liable for their torts.

7. Since the hearing by me, the High Court’s decision in AA v The Trustees for the Roman Catholic Church for the Diocese of Maitland-Newcastle [2026] HCA 2; (2026) 100 ALJR 170 (“AA”) has been handed down. I caused an enquiry to be made by my staff of the parties whether either of them wished to make any further submission in relation to the decision. I took this approach because when the matter was before me, I expressed the view during closing submissions that damages for breach of a non-delegable duty were not available to Mr Kawicki for the intentional wrongful acts of each of the teachers necessarily inherent in the statutory definition of child abuse in section 6A of the Limitation Act because I was bound by the decision of the High Court in New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4 (“Lepore”). Mr Kawicki did not respond, but the solicitors for the defendant wrote a short note including the following:

“In terms of [his] Honour’s enquiry, we respectfully submit that AA is not engaged so far as it relates to non-delegable duties as the pleadings do not allege that the defendant owed or breached a non-delegable duty of care.”

8. While it is accurate to say that the ASOC does not expressly invoke a non-delegable duty, as I have indicated, Mr Kawicki does plead that the relationship between him and the defendant was that of school student and owner and operator of a school. In pleading the duty of care owed, he alleged that the defendant owed a duty of care to children including him. By necessary implication this must be related to school children at the school rather than children at large in the broader community. The Br alleged to have perpetrated the sexual assault was described as “the plaintiff’s class teacher” and the six Bros alleged to have perpetrated serious physical abuse were described as “teachers”. In providing particulars of the content of the alleged duty of care, the plaintiff said (at ASOC [9]):

“….

(b) the defendant and its agents had a duty to the plaintiff to protect him from sexual advances and/or sexual relationships with teachers of the school that may put students at risk of harm;

(c) the defendant and its agents had a duty to the plaintiff to provide adequate reporting systems for allegations of acts of sexual or inappropriate behaviour by teachers at the school towards students of the school;

….” (Emphasis added.)

9. In circumstances where an allegation of breach of non-delegable duty was not available to a plaintiff alleging the perpetration of child abuse against him as a school student in the defendant’s school because of the authority of Lepore, which has been subsequently overruled, I am of the opinion that while it was appropriate for the plaintiff not to plead non-delegable duty when the proceedings were commenced, he should not be shut out from advancing that argument now, given that the common law in Australia has changed. While not perfect, the plaintiff’s pleadings are broad enough to support an argument of breach of non-delegable duty, even if the risk of harm is pleaded with too much specificity. The critical relationship of school authority and student is pleaded which falls into an established category of non-delegable duty formerly foreclosed to the plaintiff only because of the authority of Lepore: T**he Commonwealth v Introv**igne (1982) 150 CLR 258; [1982] HCA 40. I regard it as expedient in the interests of justice that I should treat the matter as being available to the plaintiff as a matter of law. It is obvious that were I to do otherwise, leave would be granted to the plaintiff to raise the matter on a subsequent appeal should he establish the necessary facts to my actual satisfaction. Indeed, a matter not in dispute is that when the incidents of alleged child abuse were perpetrated against him, he was a student at the school operated by the religious order, in respect of whom the defendant is a proper defendant.

10. It is important to bear in mind that a non-delegable duty of care is a creature of the law of negligence and can only exist where the ordinary duty of reasonable care would otherwise exist. However, where a non-delegable duty is imputed to a duty-holder, it displaces the ordinary duty. As Gageler CJ, Jagot and Beech-Jones JJ explained in AA (at [15]; [20]-[21]:

“[15] Non-delegable duties were well-established in the common law of Australia before Lepore. In The Commonwealth v Introvigne Mason J explained that a ‘school authority owes to its pupil a duty to ensure that reasonable care is taken of them whilst they are on the school premises during hours when the school is open for attendance’, being ‘a duty the performance of which cannot be delegated’. The source of the non-delegable duty included that the ‘immaturity and inexperience of the pupils and their propensity for mischief suggest that there should be a special responsibility on a school authority to care for their safety, one that goes beyond a mere vicarious liability for the acts and omissions of its servants’.

[20] Consistently with Introvigne, Kondis and Burnie Port Authority, in Northern Sandblasting Pty Ltd v Harris Brennan CJ explained a ‘non-delegable duty’ of care to be a duty of care which the person on whom it is imposed is unable to discharge by engaging a competent person to perform the function to which the duty relates and which requires instead for its discharge that the person engaged in fact takes reasonable care in the performance of that function. In his Honour’s words, ‘[i]n cases where this special duty is imposed on a person in relation to a particular task, that person is under a duty not only to use reasonable care but to ensure that reasonable care is used by any independent contractor whom [that person] employs to perform that task’. To the same effect, Lord Sumption in Woodland v Swimming Teachers Association, having regard to the reasoning in Introvigne, Kondis and Burnie Port Authority, observed that the ‘expression “non-delegable duty” has become the conventional way of describing those cases in which the ordinary principle is displaced and the duty extends beyond being careful, to procuring the careful performance of work delegated to others’.

[21] That the ‘ordinary principle’ applicable to a common law duty of care is ‘displaced’ in the case of a non-delegable duty by an ‘extend[ed]’ and ‘more stringent’ duty of care explains why statements to the effect that ‘[i]n order that there be a non-delegable duty of care there must first be a duty of care’ and the ‘first step must be to determine whether the [defendant] was under any duty and only then may it be determined whether that duty was delegable’ are not to be applied literally. No two-stage process of analysis is required. Rather, a non-delegable duty to ensure that reasonable care is taken is a ‘special’ kind of common law duty of care in negligence. It is a duty which obliges the duty-holder not merely to take reasonable care to avoid a foreseeable risk of injury to another person but to ensure that reasonable care is taken to avoid a foreseeable risk of injury to that other person by any delegate of the duty-holder, being a person performing for the duty-holder a function to which the duty relates.”

The references are to Kondis v State Transport Authority (1984) 154 CLR 672; [1984] HCA 61; Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; [1994] HCA 13; Woodland v Swimming Teachers Association [2014] AC 537 at 573[5]; and Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313; [1997] HCA 39.

11. As a non-delegable duty is a creature of the law of negligence, the content of the duty is “to ensure reasonable care is taken to protect the plaintiff from reasonably foreseeable risks of harm” (AA at [39]; footnote omitted). The plurality went on to explain at [40]:

“The point is merely that liability for breach of a non-delegable duty does not require it to be found that there were reasonable measures the non-delegable duty-holder could and should have taken to avoid harm occurring.”

Their Honours amplified these matters at [47]:

“Consider, for example, the non-delegable duty owed by a school to a pupil. The non-delegable duty is constrained by the requirements of foreseeability and the standard of reasonable care in the circumstances. The school’s non-delegable duty is not breached merely because a student is injured during school hours and on school grounds. A school will be liable only if it or its delegate has failed to act with reasonable care and that failure has caused the harm. Once it is accepted, as it must be, that a delegate of a school inflicting intentional harm upon a student is an obvious example of a failure by that delegate to exercise reasonable care, then resulting liability of the school for failing to ensure its delegate took reasonable care accords with the requirements of both principle and policy.”

12. These considerations and the matters referrable to breach explained by the plurality (at [143] and [147]) led Kirk JA to observe in St Paul*’*s College Ltd v Allan [2026] NSWCA 22 at [83]:

“These aspects of the reasoning in AA have profound consequences for the potential liability of school authorities with respect to abuse of students by those for whom the authorities are responsible. If a claimant establishes that they were sexually or physically abused by (say) a teacher at a time and place when the claimant was in the care of the school, such as to fall within the scope of the school’s non-delegable duty of care, then the school authority is liable for any compensable harm suffered by the claimant as a result of the abuse.”

13. While the plurality in AA left open the question whether breach of a non-delegable duty of care fell within the definition of negligence in section 5 of the CLA, their Honours were content to explain how, if applicable, the application of the provisions of Part 1A CLA made no difference to the outcome that would have pertained at common law ([141]-[144]). Their Honours made clear that section 5Q would apply, either way, because of the terms of section 5Q(2), being:

(2) This section applies to an action in tort whether or not it is an action in negligence despite anything to the contrary in s 5A.

14. I consider it prudent to proceed on the assumption that the provisions of sections 5B-5D and 5Q apply. So far as these provisions are concerned, as the plurality explained, all depends upon whether the Court is satisfied on the balance of probabilities that the sexual abuse that Mr Kawicki alleges did in fact occur. Their Honours explained (at [143]):

“In such a case section 5B would be satisfied by the fact that the intentional act was done. Section 5C would then apply according to its terms on the basis that the relevant precaution was nothing more than the delegates failure to refrain from doing the act. Section 5D(1)(a) would be applied on the basis that the doing of the intentional act must be a ‘necessary condition of the occurrence of the harm’, whereas the condition in s 5D(1)(b) would ask if it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused, the ‘negligent person’ being the Diocese as the holder of the non-delegable duty that was breached. On the same basis the ‘negligent party’ in s 5D(4) is the Diocese, the consideration being, ‘whether or not and why responsibility for the harm should be imposed upon the negligent party’.”

A Matter of Approach

15. It may be important to record at this stage that Mr Kawicki appeared in person on the hearing before me. He had formerly been legally represented, but for quite some time while the matter was managed by the List Judge, he had conducted the proceedings as a litigant in person. The defendant was at all times represented by very experienced solicitors in the field and Mr Polin of learned Senior Counsel appeared for the defendant at the hearing.

16. Mr Polin quite properly reminded me that given the causes of action sued upon by Mr Kawicki accrued as long as 65 years prior to the trial when Mr Kawicki was aged between 10 and 16, particular care was called for in fact finding bearing in mind the fallibility of human memory which fallibility increases over time. Senior Counsel emphasised the confounding effect of self-interest when litigation arises. He referred to familiar authorities including, but not limited to, Watson v Foxman (1995) 49 NSWLR 351 at 319 (McLelland CJ in Eq) and Longman v the Queen (1989) 168 CLR 79 at 107-108; [1989] HCA 60 (McHugh J); see also Hartnett v Trustees of the Roman Catholic Church for the Diocese of Wilcannia-Forbes [2026] NSWCA 35 at [68]; [120]–[123] (Bell CJ, Kirk and Ball JJA agreeing) (“Hartnett”). It is perhaps sufficient and apposite to refer to Longman where McHugh J observed (107-8):

“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.”

I will bear the cautions expressed in these cases firmly in mind. They represent a body of judicial wisdom drawn from the collective experience of the courts and their understanding of psychology and the human condition thereby obtained. I also accept that child sexual abuse in all its forms is a crime. This includes the sexual touching of which Mr Kawicki complains, which was referred to as indecent assault at the time with which I am concerned. Serious physical abuse properly so called too is likely to be criminal behaviour amounting to assault occasioning actual bodily harm.

17. These considerations require observance of the approach associated with Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 (“Briginshaw”), now reflected in section 140(2) of the Evidence Act 1995 (NSW) (“Evidence Act”). These matters were dealt with by the Chief Justice in Hartnett at [118], where his Honour emphasised that Sir Owen Dixon’s famous dictum in Briginshaw at 361 “… [remains] a tenet of fact-finding methodology the ongoing relevance of which was expressly recognised in the context of institutional abuse cases in GLJ v The Trustees of the Roman Catholic Church of the Diocese of Lismore (2023) 280 CLR 442; [2023] HCA 32 at [60].”

18. In Briginshaw Dixon J said (at 361–362):

“… at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved.

The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding, are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”

19. I also accept that where, as here, the matters complained of by Mr Kawicki are criminal in nature. One needs to bear in mind the presumption of innocence and notwithstanding the consideration that the civil standard of proof applies, “exactness of proof is expected” (Briginshaw at 363).

20. I think one should also bear in mind the considerations of human psychology and the experience of the courts underpinning certain provisions of Part V of the Criminal Procedure Act 1986 (“CPA”) dealing with evidence in sexual offence proceedings. Not all of those provisions are relevant, and strictly, of course, do not apply in civil cases, but some of the directions to be given by a trial judge to juries for the evaluation of the evidence of complainants of sexual offences in criminal proceedings are apposite for a judge taking the Briginshaw approach in a civil sexual abuse case to bear in mind. Section 294 of the CPA is a case in point. If evidence is given or a question is asked of a witness that tends to suggest the absence of complaint or delay in making complaint, the judge is required to direct the jury that the absence of complaint or delay in complaining does not necessarily indicate that the allegation is false; and that there may be good reasons why a victim of a sexual assault may hesitate in making or refrain from making a complaint.

21. Likewise, CPA s 292B requires a direction that there is no typical or normal response to non-consensual sexual activity; people may respond to non-consensual activity in different ways, including by freezing and not doing or saying anything; and the tribunal of fact must avoid making assessments based on pre-conceived ideas about how people respond to non-consensual sexual activity. Finally, CPA s 292D requires a direction that the trauma of sexual assault may affect people differently, meaning that some people may show obvious signs of emotion or distress giving evidence about the matter, but others may not. The presence (or absence) of emotion or distress does not necessarily mean that a person is not telling the truth. From the work of the Royal Commission into Institutional Responses to Child Sexual Abuse, I think it uncontroversial to say that considerations of this type apply even more acutely in the case of witnesses who were children when the sexual abuse was perpetrated.

The Alleged Sexual Abuse

22. By AOSC [6], the plaintiff alleges that the sexual abuse occurred in 1961 and 1962 when the alleged perpetrator was Mr Kawicki’s class teacher and the plaintiff was aged 10 or 11 years. The allegation is that the plaintiff was sexually assaulted on about 5 to 10 occasions. The particulars provided are that the alleged perpetrator, Br Florentine, would ask Mr Kawicki to stay behind after class on the pretext of marking his schoolwork. He would have the plaintiff either sit on his lap or stand between his legs while he marked Mr Kawicki’s work. He would then indecently assault Mr Kawicki by placing his hand on his bottom on top of his clothing and pushing it into Mr Kawicki’s bottom and genitalia from behind. The perpetrator would move his hips around while Mr Kawicki was sitting on his lap. The fondling of Mr Kawicki’s genitalia would occur over and under his clothing.

23. The account in the evidentiary statement of 10 December 2021 is somewhat broader. Mr Kawicki said he started at Marist Brothers college in the primary school in fourth class in 1960. He said he does not recall anything about that year (Evidentiary Statement [16]). His statement is that Br Florentine abused him “over 40 times”. He said Br Florentine never missed an opportunity to fondle him. This abuse occurred at football training, when he passed in the hallway and in the classroom. The more serious incidents occurred on about 5 to 10 occasions around 1962 when Mr Kawicki was around 10 or 11 years old. He said that the more serious abuse happened predominantly when he was in 6th class in 1962 and Br Florentine was his teacher (Evidentiary Statement [29] and [31]).

24. His account continued ([34]-[42])

“34. l recall that Brother Florentine would, under the pretence of addressing my work, tell me to ‘stay behind’ after the class had finished. I recall this happening on several occasions. All the other kids would leave and I would stay behind in the classroom seated at my desk

35. I would be alone in the classroom with Brother Florentine. I recall the lights being off and it starting to get dark outside so it must have been in the winter time because it started to get dark earlier. I recall a feeling of fear. It was scary. I still recall that very deep feeling of foreboding. It is with me to this day.

36. I do not remember exactly what Brother Florentine would say to me but! do recall him showing him my work. At the time I recall doing good work and being one of the smart kids so there was no reason to keep me back after class when the other students were allowed to leave for the day.

37. I recall he made me sit on his lap or standing between his legs and then held be with one hand on my shoulder and the other on my arse. He would push his hand into my arse and genital area from the back. I recall he was busy moving around down there a lot and he would do that every time. I recall feeling scared and frozen. l recall my mind switching off.

38. I cannot recall him penetrating me with his fingers, however l do remember that it was painful when he would fondle me. I also remember feeling very scared, but I did not say anything as the foreboding sense of violence discouraged me from doing so.

39. Brother Florentine would abuse me in the same way as described above on many more occasions. It became a regular occurrence and each time it got scarier as l knew what was coming. I do not recall other boys being kept behind and every time he kept me behind he would fondle me.

40. I recall Brother Florentine also used to cane me and other boys and on many occasions would cane me with my pants down, so I would get caned on our bare bottoms.

41. I recall thinking and possibly sharing with the other kids that Brother Florentine was a “dirty old man”.

42. The sexual abuse stopped when I left at the end of 6th Class and went to secondary school. Secondary school was on the same block of land as the School.”

25. This evidence is much broader than the allegations contained in the ASOC. No objection was taken to me receiving this evidence, as I understand it, because Mr Kawicki was appearing in person. However, objection was taken to other evidence at various times. It may have been perceived to be in the defendant’s interest to allow varied accounts to be placed before the Court.

26. In his oral testimony Mr Kawicki said that he first met Br Florentine when he was in 5th class, although Br Florentine was not his teacher. He said that Br Florentine approached him in the school yard “and [would] just fondle me from the rear,” [T27.16]. This involved grabbing his genitals from the back over his clothing. Br Florentine was also his rugby league coach, and he would “give you a wack” [T27.30] for every missed tackle. The wacks were delivered sometimes by hand sometimes with “whatever come to hand” [T27.45]. Mr Kawicki said Br Florentine “done it to everyone” by that I took him to mean all of the boys in his team [T28.10].

27. Br Florentine was his teacher in 6th class. I asked Mr Kawicki whether anything happened between him and Br Florentine when Mr Kawicki was in his class in 6th class. He replied in the affirmative and said [T35.30]:

“…I can’t tell you in how many instances, but I should imagine it would be somewhere around about the half a dozen mark. ... Anyway, what he did to me, … he’d kept me back under the guise of correcting my homework. Then he had me - clear, nobody there, and this is absolutely terrifying, your Honour, in the semi darkness, no kids, no teachers, no nothing in this stone edifice. It was frightening to say the least. And then he had me on his - on his lap, playing with my genitals, pretending to oversee my homework.

…

Well, he sticked his hand under my arse and just grabbed my … genitals.”

The grabbing was done over the clothing, and Br Florentine squeezed his genitals. Mr Kawicki said it was painful and he just “sat there like a stunned mullet” [T35.50 – 36.1]. He repeated that he was absolutely terrified [T36.10].

28. Mr Kawicki was unable to say how regularly the abuse occurred. His recollection was that this occurred on about six occasions, “It could have been more, it could have been one less”. This is a much lesser incidence than in out of court accounts given by him. The touching went on for five or ten minutes and he repeated that he was like a “stunned mullet”. He did not remember Br Florentine saying anything during each assault. Each assault followed the same pattern. And, although he was the last one to leave school, he was able to get the bus home [T37.16]. Each assault followed the “same modus operandi” [T37.20]. He described his feelings in terms of it permeating his whole body. He did not mention the assaults to anyone [T37.38]. He didn’t mention it to his parents he said, “I just buried that in me, that’s it” [T37.40 – 37.48].

29. In cross-examination Mr Kawicki accepted that the first time he mentioned anything about “the problems [he was having] with Marist Brothers and ongoing medical problems as a result of that was when he saw a solicitor in 2017” [T71.5], 56 or 57 years after the event. He accepted that the first time he had told a psychiatrist about problems he said he had with the Marist Brothers was when his solicitor sent him to Dr Jungfer in August 2017. He was not impressed with her. He denied that he told Dr Jungfer that he found it very difficult to recall the abuse and that his recall was very limited prior to being in High School [T72.50 – 73.2].

30. However, when asked whether he claimed to have a reasonably good memory of everything that happened, he responded saying, “No, no, no, no, no, by no stretch of the imagination, mate”. He said “it’s not 100 per cent. That is clearly evident. And I don’t profess to tell you that what I say is 100 per cent. But the basic facts about the abuse, the physical and sexual abuse, is that they’re permanently ingrained in my brain, in my psyche. As simple as that.”

31. Mr Polin cross-examined Mr Kawicki on the history he had given to Dr Jungfer and whether he said he had a poor memory of matters in primary school [T108.5]. Mr Kawicki had consistently said that he could not remember fourth class, although he remembered having a lay teacher [T108.22]. He agreed that he could not remember fourth class [T108.10]. He said again, “Sixth class is firmly ingrained in my brain. So is fifth class. I don’t know what happened in fourth class … I do remember vividly what happened in fifth and sixth class” [T108.35]. With respect, in what I thought was false logic, Mr Polin put to Mr Kawicki that his earlier evidence had been that the issues with Br Florentine started fairly soon after he started school, and if that was so, it would have been in fourth class. Mr Kawicki said “Yeah. There’s the - what’s the problem there?” [T109.2] which I regarded as a question rather than an answer. Senior counsel pressed his point “So was it in fourth class?” While his answer was discursive and not entirely responsive, Mr Kawicki said he thought the abuse began in fifth class, that he could not remember fourth class. He said: “when it comes to the abuse, there is no, no doubt whatsoever, none, none whatsoever that I’m talking about fifth, sixth from there on. I admit I haven’t got a clue about fourth year, nothing.” [T108.45 – 109.22]

32. Senior counsel’s point was, how could he recall any abuse? If it started very soon after commencing at the school, he would have been in fourth class, a time about which he professes no or little memory.

33. There are other aspects about the cross-examination dealing with more general issues which I will refer to after dealing with the evidence about serious physical abuse.

Serious Physical Abuse

34. I turn now to deal with the case bought by Mr Kawicki in relation to serious physical abuse. The phrase is not defined in s 6A of the Limitation Act*.* However, the Court of Appeal dealt with the matter in Hartnett (at [35]-[46]; Bell CJ; Kirk and Ball JJA agreeing). It is unnecessary for me to set out this passage in full. The main point made is that corporal punishment in a school environment in the 1960s to the extent to which it was reasonable and if a defence of lawful chastisement in the particular circumstances of the case was available at law at the time, will not amount to serious physical abuse (see Hartnett at [39] and the reference to the Second Reading Speech there quoted).

35. The elements of the defence of “lawful correction” or “lawful chastisement” were discussed by Garling J in Gersbach v Gersbach [2018] NSWSC 1685 (at [310]). With reference to authority his Honour said:

“This defence of ‘lawful correction’ provided that parents and those in loco parentis were permitted to physically punish their children, provided that the ‘correction’ or chastisement was reasonable, moderate, administered with a proper instrument, and had a proper relation to the age, physique and mentality of the child” (citations omitted).

(See also Hartnett v Trustees of the Roman Catholic Church for the Diocese of Wilcannia-Forbes (No 7) [2025] NSWSC 128, [17]-[22].)

36. At common law teachers were regarded as in loco parentis to the pupils under their care: Cleary v Booth [1893] 1 QB 465 at 468. The modern common law in Australia has moved away from the fiction that the parental authority to punish is delegated to the school. In Ramsay v Larsen (1964) 111 CLR 16; [1964] HCA 40, Kitto J said (at 29):

“… a schoolmaster’s power of reasonable chastisement exists, at least under a system of compulsory education, not by virtue of a delegation by the parent at all, but by virtue of the nature of the relationship of schoolmaster and pupil and the necessity inherent in that relationship of maintaining order in and about the school.”

(See also McTiernan J (at 25-26); Taylor J (at 37) (Windeyer and Owen JJ agreeing)).

37. As Mr Polin pointed out, corporal punishment in New South Wales non-government schools was not outlawed until 21 December 1996 when by the Education Reform Amendment (School Discipline) Act 1995 (NSW) provisions were introduced requiring non-government schools, as a condition of registration, to have a policy against corporal punishment. As senior counsel observed, corporal punishment was not strictly outlawed, however, doubtless registration was essential to a non-government school’s operation.

38. While there is no expert evidence about this, but by the standards of the 1960’s, it cannot be gainsaid that corporal punishment was permissible in New South Wales schools. Mr Kawicki complains of being punished by use of the cane. The use that instrument to strike a boy on his hand for disobedience of school rules or other misbehaviour was then regarded as “a proper instrument”. Four or six “cuts of the cane” in those days was not regarded as immoderate, subject perhaps to the age, physical development and mentality of the child. There is nothing to suggest that Mr Kawicki was not within the ordinary range for age in each of those respects. That is to say, there is no evidence that he had any special vulnerability. The first evidence of caning was in sixth class, not from Br Florentine, but from Br Romuald. There was no evidence before me that it was unreasonable or immoderate to cane a boy in sixth class for misconduct with as many as four cuts.

39. Although Br Conran is mentioned in the pleadings, the plaintiff’s evidence is that he had no interaction with Br Conran and never received the cane from him [T38.15]. Br Fingal was the headmaster [T42.30]. Br Fingal administered “six of the best” on three or four occasions during Mr Kawicki’s high school years [T43.7 – 43.16].

40. Br Stephen had caned the plaintiff a dozen times or more [T45.41]. It was either four or six cuts of the cane on each occasion [T46.10].

41. Br Ralph may have been a replacement teacher at some stage, but Mr Kawicki did not have much to do with him [T46.50 – 47.5]. He was caned once or twice by him [T47.21]. Occasions of the punishment were in either First, Second or Third Form [T47.40]. On most occasions he received four cuts of the cane [T48.2]. These were administered for a breach of school rules [T48.10].

42. Mr Kawicki was not taught by Br Edward, but he was punished by him on one or two occasions [T49.60]. He was unable to say when in high school the incidents of punishment by Br Edward occurred [T49.19]. On each occasion he received four cuts of the cane.

43. Although the plaintiff said the teachers caned pupils “at a drop of a hat” [T49.21], in cross-examination he said, after some considerable pushback, that he received the cane for “things such as, you didn’t complete your homework, you were late for school, your homework was … late being handed in. You were misbehaving in the playground. You also mentioned missing tackles at football practice” [T76.20 – 76.49]. And on at least one occasion, Br Fingal caned him for “wagging school” when he absented himself during school hours to attend nearby shops” [T43.31 – 43.47].

44. The plaintiff’s evidence about his claim for serious physical abuse was much vaguer than his evidence about the sexual abuse from Br Florentine. I formed the impression that he tended to overstate the atmosphere at school as though it were permeated by a constant fear of physical violence from the Bros, which I find unlikely. Mr Kawicki was man who tended to be bombastic and given to looking for opportunities to make speeches rather than answer questions. It was difficult to keep him focused on giving evidence, as opposed to engaging in debate with the questioner, especially the cross-examiner. Much as I felt he wished to overdramatise this part of his case, I was left the distinct impression that he received the cane each year from sixth class through high school on three or perhaps four occasions. Despite wishing to paint a picture that some of the Bros, whom he complained about in this regard, were “sadists”, when pinned down it came down to the consideration that on each occasion he received the cane, it was for a specific breach of school rules or some other misconduct or breach of discipline.

45. I can accept that the application of the cane under the guise of lawful correction, but in reality, for some other, illegitimate purpose could well amount to serious physical abuse within the meaning of s 6A of the Limitation Act, even in the 1960s*.* But I am not satisfied on the balance of probabilities that Mr Kawicki has come close to establishing such a case to the reasonable satisfaction of a judicial mind or indeed to my actual persuasion. I reject his case so far as it is based upon serious physical abuse. I am satisfied that the defence of lawful correction is made out.

The Subsequent Events

46. It is the plaintiff’s case that the effect of the sexual abuse at the hands of Br Florentine hit him when he attended a school retreat at about the age of 14 years. He felt down because he had to reflect on religion and he felt terrible guilt over “what I had done with Br Florentine. I felt that God knew, and I felt that I was worthless in the eyes of God or a sinner and someone who is dammed”. This belief stayed with him until his early twenties. He said he recalled “feeling a deep sense of despair at the thought that he could not change what had happened to him” (Evidentiary Statement [53] – [54]). Mr Kawicki gave evidence about this retreat ([T51.10]):

“I couldn’t find no joy in anything. I couldn’t find no joy in anything, nothing. The next day - when I say this, it is the black dog, but the black dog at its worst. And in those days, you didn’t go there, you didn’t seek psychological help, you didn’t get medicines. So one would have to assume that I was self-medicated, and that appears to be the case.”

The reference to self-medication, I understand to be a reference to alcohol abuse. He said started drinking at around the age of 13 [T51.37]. He remembered his middle teenage years being a particularly black time.

47. He left school in about 1966 to work at the abattoirs, where he was for about four years. In 1969 he joined the Royal Australian Air Force (“RAAF”) to do an electrical apprenticeship, which he successfully completed. Apparently, there was an incident in about 1975 when marijuana was found in his cupboard in the barracks. He believes it was planted there by somebody else, but rather than “dobbing” anyone in, he left the service.

48. He said that whilst in the RAAF he was drinking very heavily and had numerous problems with alcohol abuse. He relates this to the sexual abuse as a child. He was 25 when he left the RAAF and from the ages of 25 until 58, he drank heavily every day of the week.

49. After leaving the RAAF. he commenced work in the construction industry as an electrician initially in a coal washery in the Hunter Valley. He had various jobs in different places moving around quite a bit working for companies in the elevator industry. He moved to Western Australia at some stage. He said he had trouble and lost jobs because of his drinking, but he remained, it appears, fairly constantly employed at various places throughout Western Australia earning good money until he returned to Sydney in the late 1980’s. He was in full time work in his trade as an electrician until giving up work in about the year 2000 because he could no longer do heavy work in the construction industry. He put his incapacity down to an ankle injury suffered in the RAAF. He could have continued in a supervisory role, but one was not made available to him, which he puts down to his drinking related to child sex abuse.

50. He has reduced his alcohol consumption over recent years from about seven days per week to four days per week. On the days on which he drinks, he still drinks heavily.

51. He has never been married or had children. He has been in a number of relationships over the decades. He finds it hard to commit and the relationship breaks down. Again, he puts his personal issues down to his child sex abuse.

52. He was diagnosed with depression and prescribed medication in around 2010 (in fact 2012). He has never received counselling, nor has he never reported his experiences of abuse to anyone until he consulted a solicitor in 2017.

Cross-Examination on Subsequent Developments

53. Mr Kawicki was cross-examined extensively about proceedings he brought in the former Administrative Appeals Tribunal (“AAT”) to obtain a Department of Veterans Affairs (“DVA”) pension during his incapacity for work from about 2000. The basis of his claim for the pension was the aforementioned ankle injury suffered during his RAAF service. It was put to him that he did not disclose other medical conditions which might affect his capacity to earn including a neurological condition referred to as Blip Syndrome which made it difficult for him to work in tunnels at Sydney airport, where he was last employed, and which may have been related to his alcohol abuse. He was successful in obtaining an increment in his pension “on the strength of [his] DVA injuries”, he said [T93.35]. During the course of the cross-examination, it was put to him that if he had said he couldn’t work because of his depression and the use of alcohol, his claim would fail [T93.16]. I interpolate I am not quite sure why this necessarily follows. However, he seems to have agreed with the proposition, he asked rhetorically: “Do you expect me to shoot myself in the foot …”. “No, it’s not my – It’s not my ankle. It was one I was subjected to at school. I wouldn’t have got nothing”.

54. He denied there had been any deception [T95.29]. He agreed he never raised his depression, anxiety and alcohol for sixty years causing him an incapacity in the AAT [T95.35].

55. He agreed that the effect of his evidence was that he would withhold information, if he thought it was against his interests in obtaining the pension [T100.5]. He agreed but it had been taken out of context [T100.8].

56. He agreed that his medical records did not disclose any complaints whatsoever about suffering any depression or mental illness as a result of the child abuse at school. He agreed that he had never confided in previous romantic partners, friends, family or anyone. He said, “Why would I do that? I’ve tried my best to bury that” [T97.30]. He also agreed that on one occasion when he was sentenced for an offence (the conviction was overturned on appeal) and saw a psychiatrist for the proceedings on sentence, he had not raised that he had suffered from depression or problems with alcohol [T96.33]. Again, he answered, “why would I?” He said, “I went to them for the purpose of him assessing my propensity for criminality and he found none” [T96.43].

57. He agreed that he consulted medical practitioners when he had a need to, but that he had never been sent to a psychologist or a psychiatrist at any point [T97.10]. He agreed that he had not raised depression or any sort of mental illness as a result of what he says happened at the school in the 1960’s [T97.25]. It was in response to that particular question that he said, “I’ve tried my best to bury that”.

58. Although Mr Kawicki explained his absence of complaint by saying “I never discuss my private feelings with anyone” [T111.37], he was cross-examined about seeing a Dr Stephen Carran on 17 July 2012 [T112.9]. Mr Kawicki volunteered, “He’s a good doctor”.

59. Although it was difficult to keep Mr Kawicki on track in his role as a witness, because of his disinclination to answer question directly, he agreed he complained to the doctor about anger at DVA over the handling of his claim. He accepted that he expressed frustration and anger about those matters [T115.5-.18]. He was asked the following question [T113.20]:

“Q. And you then went on to say, as a result of that, this anger and frustration you had with the DVA, you believe you were depressed as a result of it?

A. Well, that certainly contributed to my depression. Why wouldn’t it?

Q. And you discussed with him at that point, that’s when you were first prescribed an antidepressant?

A. Well, that may have been the case. As I said, I said it was 10 years, I don’t know, but I said roughly 10 years.

Q. So what we then have is a medical record, don’t we? You said you didn’t discuss depression with the doctor. You’ve got a particularly difficult issue with the DVA, and it is causing you to be depressed?

A. I think I’ve been hurdled (sic) here.”

Tendency Evidence

60. The plaintiff introduced evidence, which I accepted as tendency evidence relating to the tendency of Br Florentine to have a sexual interest in students under his care and to act upon it. I also admitted a statement from Mr Ferdinand Graff (Exhibit G) dated 13 December 2022. This, however, related to the tendency of Br Romuald to cane students regularly. However, Mr Graff’s description of the method used by Br Romuald, which involved requiring boys to bend over and cane them on their backside does not accord with the evidence given by Mr Kawicki and I am not satisfied that Mr Graff’s evidence advanced the case in relation to serious physical abuse, which I have rejected for the reasons I have already given.

61. Mr Kawicki’s brother, Wes, made a statement about his experience at the school including his experience of Br Florentine on 19 May 2020. The statement was admitted as Exhibit C after I ruled upon objections by Mr Polin. Wes Kawicki says he saw Br Florentine, as I understand what is written, touching students “private parts”. He said, “My own experience of this type of assault is similar to what I saw him doing with other students”. He gave a description very similar to that given by the plaintiff involving the pretext of marking schoolwork and at the same time fondling his genitalia. He also gives evidence about Bros Edward, Ralph and Stephen. However, his description of their assaults on boys in high school take a very different form from the evidence given by the plaintiff. Br Stephen is said to slap and punch boys repeatedly. Br Ralph is said to have bent a boy over who refused to put his hand out for caning and repeatedly thrashed his backside with the cane. Again, these accounts are so at variance with the plaintiff’s account of the physical abuse that he received that they do not provide corroborating circumstantial evidence to his account. Nor do they advance the case beyond his own account, which I accept but I have rejected his claim for the reasons given.

62. Mr Henry Sujecki, in his undated statement (Exhibit V) said that in year 6 at the school, Br Florentine had insisted Mr Sujecki sit on his lap, but he refused. Br Florentine went into a rage and caned him on his buttocks. The statement may provide some evidence of Br Florentine having a sexual interest in his students that he was prepared to act upon, but it is notable that Br Florentine is not a teacher about whom the plaintiff complained in relation to his serious physical abuse claim.

Findings in Relation to Sex Abuse

63. As I have tried to make clear, in many ways, Mr Kawicki was a very difficult witness. It was very difficult to keep him focused on answering questions asked of him, which is of course, the primary role of a witness. He was at times voluble, often bombastic, and seemed to be looking for opportunities to debate the cross-examiner rather than answer his questions.

64. It is also true to say that his out of court statements such his evidentiary statement and handwritten opening dated 1 August 2025, which became Exhibit A made much larger, perhaps more extravagant, claims about the sex abuse he had suffered than his evidence in Court. In Court, the evidence of Br Florentine fondling of the genitalia mainly over his clothing was restricted to five or six occasions. During the cross-examination, given the 65-year period involved in the claim which was necessarily extensive, it was not put to Mr Kawicki that his account was not true. The main line of attack was on the reliability of his account because of the factors I have mentioned under the heading “A M****atter of A****pproach” above. A particular line was to pick up Mr Kawicki’s account that he had no recollection of fourth class to suggest therefore that one could not know whether, if anything happened, it happened in fourth class and therefore he in fact had no recollection. As I have said already, I did not follow the logic of that particular aspect of the cross-examination. In any event, it seems to me that Mr Kawicki was firm that Br Florentine taught him in sixth class, which by reference to Exhibit 2, would have been 1962 and not “very soon” after Mr Kawicki started at the school. Mr Sujecki’s account at least confirms and corroborates that Br Florentine taught sixth class. Although Mr Sujecki felt able to refuse Br Florentine, he at least corroborates both his sexual interest in students under his care and his modus operandi.

65. Mr Kawicki’s brother, Wes, also provides tendency evidence which tends to corroborate the plaintiff’s evidence by way of circumstantial evidence. Given the close family connection, and similarity in the account, absent Mr Sujecki’s evidence, I would have been inclined to give not much weight to Wes Kawicki’s account.

66. Mr Polin did not put to Mr Kawicki that his account was false or even that the abuse simply did not occur. In that regard, I accept the difficult position in which the defendant finds itself when these complaints are made so long after the event and the persons who could provide instructions are now deceased. The only one of the Bros mentioned in the evidence of the plaintiff still alive is Br Conran. But as it transpires, the plaintiff makes no claim against him of sexual abuse or serious physical abuse. There was some debate about whether Br Conran could be called, but it seemed to me there was no evidence he could give that would assist the plaintiff’s case given the sexual abuse by Br Florentine occurred when only he and the plaintiff were present and Br Conran was not said to have been present when any of the caning occurred.

67. So far as the caning is concerned, in any event, I have already made clear that I accept that it consisted of lawful correction or chastisement consistent with the standards prevailing in schools in the 1960’s. There is no suggestion that in Mr Kawicki’s case any of the teachers, whose conduct he complained of had abused their authority to inflict corporal punishment by excessive or otherwise inappropriate caning, including caning for an improper purpose, at least so far as Mr Kawicki himself was concerned.

68. I have borne in mind the caution to be observed in regard to the fallibility of human memory and the need for exact proofs, even on the civil standard of proof when serious allegations, including of criminal conduct, are made. I have also balanced these considerations with modern understanding of the psychology of victims of child sexual abuse. These tend to explain an absence of complaint even when one who has not experienced the abuse might have thought a complaint was called for.

69. I have weighed the effect of Mr Polin’s cross-examination about the consultation with Dr Stephen Carran on 12 July 2012. I have concluded that it does not stand in the way of accepting Mr Kawicki’s account of the sexual abuse. One may well understand that a person who has “buried” as best he can the memory of child sexual abuse might at the same time complain about depression or anxiety from a different source involving less embarrassment and humiliation than child sexual abuse, even if the depression pre-existed the complaint, due to the abuse.

70. Mr Kawicki’s more precise evidence in Court about the limited number of indecent assaults on him by Br Florentine is, in my judgment, reliable, and provides a reasonable basis for my actual persuasion that that child sexual abuse occurred. Moreover, the consideration that despite tendency toward hyperbole he gave an essentially credible account about his experience of corporal punishment at the school bolsters my opinion that he is telling the truth about the child sexual abuse. I find his case in this regard is made out on the balance of probabilities, having regard to the provisions of section 140(2) of the Evidence Act and the principles expounded in Briginshaw*.*

Legal Liability

71. I have already made it quite clear that Br Florentine was appointed to the school as a teacher in the discharge of his religious ministry, rather than under a contract of service with the religious order for whom the defendant stands as the proper defendant (see [5]-[6] above). Accordingly, the Marist Brothers of the Schools are not vicariously liable for Br Florentine’s tort.

72. I have also made it quite clear following AA I propose to approach the matter by reference to the non-delegable duty owed by the school to Mr Kawicki as a student at the school (see [7]-[14] above). I also propose to apply the provisions of CLA Part 1A (see [14] above). I am approaching the question of liability on the basis that the ordinary duty of reasonable care imposed by the law of negligence is displaced by the school’s non-delegable duty (see [10] above).

73. As the plurality explained in AA the requirements imposed by CLA s 5B are satisfied by fact that Br Florentine performed the intentional acts on sexual abuse on Mr Kawicki. The remaining breach question in relation to the response of the reasonable person in the position of the defendant posed by CLA s 5C applies “according to its terms on the basis that the relevant precaution was nothing more than [Br Florentine’s] failure to refrain from doing the act[s]”: AA at [143].

74. The relevant harm in the present case is not only the alleged psychiatric injuries of depression and alcohol abuse, but also the physical assault, distress and humiliation felt by Mr Kawicki. While here there is an issue about causation which I will need to address by reference to the medical evidence, assuming I accept a connection between the abuse and the diagnosed psychiatric conditions, I will be satisfied in terms of CLA s 5D(1)(a) that the doing of the intentional acts by Br Florentine were together a necessary condition of the occurrence of the harm suffered by Mr Kawicki. I can think of no reason why it would not be appropriate for the scope of the school’s liability to extend to the harm so caused. To my mind no question arises under CLA s 5D(4) given that the non-delegable duty owed by a school to a student is an established category of legal liability and there is no policy reason why the liability should not extend to Mr Kawicki’s mental harm, to the extent to which I find it is caused the intentional acts of Br Florentine.

Damages

75. In accordance with the High Court’s judgment in AA and having regard to the terms of CLA s 5Q*,* any entitlement of the plaintiff to damages is to be assessed in accordance with the provisions of Part 2 of the CLA*.* This is because, even though the intentional acts of Br Florentine were sexual assaults, or other sexual misconduct within the meaning of section 3B(1)(a), section 5Q provides:

“(1) The extent of liability in tort of a person (the defendant) for breach of a non-delegable duty to ensure that reasonable care is taken by a person in the carrying out of any work or task delegated or otherwise entrusted to the person by the defendant is to be determined as if the liability were the vicarious liability of the defendant for the negligence of the person in connection with the performance of the work or task.

(2) This section applies to an action in tort whether or not it is an action in negligence, despite anything to the contrary in section 5A.” (Emphasis added).

This specific provision displaces the general provisions of section 3B(1)(a) and accordingly Part 2 applies to the quantification of damages.

76. Obviously, there is a question of the reliability of Mr Kawicki’s account in relation to his symptoms of depression, alcohol abuse and bedwetting over the decades. On his evidence, his symptoms of depression seem to have crystalised on the occasion of the retreat when he was around 14 and have persisted ever since. He characterises his alcohol abuse as self-medication. Bedwetting is somewhat harder to explain, particularly in the case of a person who drinks as much alcohol as Mr Kawicki said he drunk having regard to the stupefying effect of copious amounts of alcohol including as a muscle relaxant.

77. I have decided that the history recorded by Dr Carran is not an inconsistency which has caused me to reject Mr Kawicki’s evidence. As I have said already, I think it explicable on the basis of the particular psychology of the survivors of child sexual abuse.

78. Dr Jungfer whom Mr Kawicki saw on 8 August 2017 dealt with this apparent inconsistency. In particular, in her report of 8 August 2017 (Exhibit H at [2.6]) she notes the history of 19 July 2012 in which Mr Kawicki attributes his symptoms to the treatment that he received at the hands of DVA. She also records that in March 2013 he was continuing to feel distressed and continued to relate his symptoms to the ongoing attitude of DVA. Dr Jungfer records that there is nothing on the file about child abuse.

79. Mr Kawicki also gave Dr Jungfer a history of his “battle” with DVA. The expert expressed her conclusions as follows (at [8.8] Exhibit H):

“[Mr Kawicki] has had difficulties with regards to a major depressive illness which is currently in remission, and he has a co-morbid diagnosis of alcohol abuse. In the area of the psychiatry, the consequence of childhood sexual abuse can be associated with mental health conditions such as depression, post-traumatic stress and alcohol abuse. Therefore, it is reasonable to state that his previous depressive illness and his vulnerability to depression may have arisen as a factor due to his sexual abuse. I note, however, that [Mr Kawicki] only commenced antidepressants eight to ten years ago in association with having challenges with the regards to the Department of Veterans Affairs and it would appear that it has only been from this time that he has had this disorder. It is reasonable to identify that his psychiatric illness could in part have been caused by the reported abuse that [Mr Kawicki] describes. [Mr Kawicki] does not report any other significant traumatic events in his life that may indicate he had a vulnerability or may lead to a vulnerability to psychiatric illness. With regard to alcohol abuse, I understand his father abused alcohol and therefore his alcohol abuse may also have a genetic component to it”.

Dr Jungfer diagnosed major depressive disorder in remission. I understand the remission to be due to the successful treatment with anti-depressant medication which was ongoing. The secondary diagnosis is alcohol dependence/abuse disorder. Dr Jungfer considered that the predominant impairment due to the mental harm suffered by Mr Kawicki was with regards to his ability to form intimate relationships. She observed that Mr Kawicki had very little insight.

80. In her subsequent report of 28 September 2018 (Exhibit J) she made clear that she regarded the onset of the depressive disorder historically occurring at the age of 14 to 15 which is consistent with Mr Kawicki’s evidence before me. However, she noted that treatment did not commence until dealing with DVA which suggested that conflict was a major contributing factor in later life to his mood disorder. She regarded a 50 per cent contribution by genetic factors to the alcohol abuse disorder and the other 50 per cent attributed to the abuse. She stated that research supports that childhood sexual abuse impact on mental health extends into adulthood.

81. She did not regard in Mr Kawicki’s case that the abuse had a substantive impact on his education. She thought it possible that it could have had an effect upon his work capacity. She also confirmed that the remission of the depressive disorder was probably due to his use of medication.

82. Dr Leon Turnbull examined Mr Kawicki on 9 June 2020 and produced a report on 4 July 2020 (Exhibit K). Dr Turnball expressed the opinion that the child sex abuse contributed to the development of a chronic and essentially unremitting mood disorder with post-traumatic features. He said they have also contributed to the onset and maintenance of problematic drinking. The history he received from Mr Kawicki was consistent with Mr Kawicki’s evidence before me in as much as the sexual abuse occurred on at least six occasions and that on each occasion Mr Kawicki felt like “a stunned mullet”. He regarded Unspecified Depressive Disorder as the appropriate diagnosis. Dr Turnbull formed the opinion that problems with alcohol and depressed mood significantly affected Mr Kawicki’s career.

83. Dr Alex Appler, psychiatrist, examined Mr Kawicki on behalf of the defendant. He examined him on 17 April 2019 and provided his first report on 4 June 2019 (Exhibit 5). Mr Kawicki told Dr Appler that the abuse happened in grades five and six, but mostly in grade six. He nominated Br Florentine, but apparently said it occurred two to four dozen times, which I treat as an example of his tendency out of court to exaggerate. Mr Kawicki gave a history of abuse in grade six which was in general terms consistent with his evidence before me in as much as the abuse happened after school when he was alone in the classroom with Br Florentine under the pretext of receiving help with his work. Dr Appler was aware of the history of the complaint to Dr Carran on 19 July 2012 about depression because of his ongoing frustration with DVA.

84. Dr Appler did not regard the alcohol abuse as related to the allegations of sexual or physical abuse at school. It is fair to say that in his first report Dr Appler had difficulty assessing Mr Kawicki because of questions in his mind about his reliability. He said (p 23) “there is no evidence of depression now”. Having regard to the history of frustration with his battle for a DVA pension when the diagnosis of depression was made without there being any record of the alleged abuse, Dr Appler concluded “I consider it unlikely that he has a depressive disorder related to the alleged abuse”.

85. Dr Appler re-examined Mr Kawicki on 26 April 2022 and produced a report dated 27 June 2022 (Exhibit 6). Dr Appler concluded that Mr Kawicki has an alcohol abuse disorder and came to the conclusion that “he probably has an underlying consistent depressive disorder, but this is less clear” (p 10). He noted a history of feeling depressive in his teenage years and being in the “black dog mode”.

86. Dr Appler concluded in the following terms:

“In my previous report, I noted inconsistencies and expressed doubt about the extent to which this abuse could have contributed to Mr Kawicki’s alcoholism and depression. However, Mr Kawicki provided an account of how this abuse caused him to feel depressed and to start drinking. If this account is accepted, then the sexual and physical abuse at the Marist Brothers school was a factor that contributed to his depression and drinking.”

Dr Appler noticed there were several other contributing factors including the cessation of employment in 2000, resulting in more time to drink. He attributed 40 per cent of Mr Kawicki’s condition to the sexual and physical abuse at the Marist Brothers school (p 11). Dr Appler considered that Mr Kawicki may benefit from counselling for a period of two years (p 15).

87. Dr Appler provided a third report dated 30 July 2025. This appears to have been a review of additional documentation without any re-examination of Mr Kawicki. Dr Appler thought that the inconsistencies raised questions about the veracity of Mr Kawicki’s account (p 3). However, he remained of the view that Mr Kawicki had an Alcohol Use Disorder and probable persistent Depressive Disorder. He noted he had reduced his drinking and that the depression was stable on appropriate medication. Causation depended upon whether Mr Kawicki’s history is accepted. He pointed out that viewed objectively, the alleged child sex abuse was at the milder end of the spectrum. He concluded in the following terms (at p 4):

“These considerations affect my assessment of causation when considered objectively, I would regard the alleged abuse to have played a minor role in the development of Mr Kawicki’s psychiatric condition. But if Mr Kawicki’s history is accepted as accurate, then the role of the alleged abuse would be described as significant”.

88. It is obvious that none of the psychiatrists who have examined Mr Kawicki, all of whom received a history of the first complaint of depressive illness being the report to Dr Carran on 9 July 2012, do not regard that circumstance as being inconsistent with child sex abuse being a cause of Mr Kawicki’s mental harm. I emphasise, that when all is said and done, he does suffer a Depressive Disorder and Alcohol Use Disorder. Even Dr Appler who was disinclined to accept the diagnosis of Depressive Disorder when he first examined Mr Kawicki seems to have come around to the position where, in his opinion, he does suffer such a psychiatric condition, and the only question seems to be one of causation. I accept, causation is a significant question.

89. In his final review of all the material, Dr Appler is of the view that the child sex abuse is a causal factor, but a question remains as to what extent. Dr Jungfer’s view is broadly similar. Both agree that in causal terms, the nature of the child sex abuse to which Mr Kawicki says he was subjected may not be as significant as it would have been had the history been one of penetrative sex.

90. To the extent to which Dr Appler’s opinion depends upon whether one accepts Mr Kawicki for the reasons I have already given, I have accepted the reliability of his account about the sexual abuse inflicted upon him by Br Florentine. I have also accepted that the absence of complaint, for the reasons I have given, do not lead me to conclude that his account is false.

91. I accept that there are other causal factors including the protracted battle with DVA to secure what Mr Kawicki regarded as his full entitlements on a DVA pension. It seems to me, that added level of stress served to unmask the previous depressive condition and at the same time contributed to the severity of the symptoms at that time, which probably lasted until the matter was resolved in his favour. So far as the Alcohol Abuse Disorder is concerned, I accept that that is partly genetic and also due to other factors in his life.

92. I accept that his psychiatric condition has caused him mental distress and interfered with his ability to form relationships, which itself has caused anguish of a type that falls into the category of pain and suffering. There has been a loss of enjoyment of life and of amenity.

93. In assessing damages for non-economic loss, it seems to me appropriate, to adopt the approach set out by Ipp JA (Mason P agreeing; Basten JA, not deciding) in Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; (2005) 3 DDCR 1 at [103] (“Seltsam v Ghaleb”). This essentially involves an application of the principles established by Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20. I also bear in mind the restraint called for in assessment of damages in cases with such a long history as discussed by Cavanagh J in SR v Trustees De La Salle Bros [2023] NSWSC 66 (at [170]-[171]):

“Assessing damages for historical sexual abuse presents as a difficult task because much of the evidence which might ordinarily be presented in a claim for personal injuries in respect of loss and damage subsequent to the tortious conduct of the defendant is no longer available. ...

It is thus important to observe that the assessment of loss in these types of claims is very much a matter of impression, based on the available evidence, and having regard to what must be the ordinary incidents of life, some good and some bad, which might befall a person ... Assessment of damages is not merely a mathematical exercise. ...”

94. Given the decades over which Mr Kawicki suffered these ongoing problems, and particularly his depressive disorder, forming an estimate of the hypothetical question about whether his difficulties with DVA would have resulted in the onset of depression in any event is an almost impossible task. Absent the child sex abuse, doing the best I can, there was likely to have been a low probability that the long fight to gain his entitlements would have resulted in a psychiatrically diagnosable depressive condition. It seems to me that on the evidence he was fully primed for that outcome by the consequences of his child sex abuse. Given the long decades over which Mr Kawicki has been afflicted by the consequences of child sex abuse, on one view of things, a large proportion of a most extreme case, for the purpose of section 16 of the CLA approaching 45 per cent or 50 per cent of a most extreme case might be an appropriate assessment. But bearing in mind the other factors identified by the experts, particularly in relation to the question of alcohol abuse disorder, I would reduce this in accordance with Seltsam v Ghaleb to 30 per cent of a most extreme case. This equates with 23 per cent of the maximum available for a most extreme case under section 16 of the CLA or currently $185,000.

95. There is no evidence in relation to out-of-pocket expenses, although the medication Mr Kawicki is receiving must be at some expense. There is no evidence it is covered by his DVA pension. Under the Pharmaceutical Benefits Scheme there would be some gap payable. I am prepared to allow an amount of $1,000 by way of a cushion. There is no suggestion anywhere that Mr Kawicki has seen a psychiatrist or is likely to see one at his age given he seems to have adjusted to his condition and is receiving benefit from the medication prescribed by his GP. The suggestions that he may benefit from psychological counselling have not been taken up over the years and I think it extremely unlikely that Mr Kawicki is likely to change his mind about that. Accordingly, the figure I will allow for medical expenses is $1,000.

96. I turn the question of the diminution of earning capacity. I acknowledge that there is support in the expert psychiatric evidence that his mental condition could have affected his capacity to work. It is also Mr Kawicki’s evidence that his alcohol abuse affected his ability to work so that he often lost jobs because of it. I must say, from the potted histories given by Mr Kawicki he seems to have been in full time employment in his trade as an electrician up until about 2000. Those jobs seemed to have been well-paid, some much better than others. When he finally finished work in 2000, he did so for reasons unrelated to the consequences of his child sex abuse. On one view, it was the long-term effects of the ankle injury he suffered during his service with RAAF. On another, his Blip Syndrome interfered with the work he was required to do as an electrician at Sydney Airport. While the Blip Syndrome may have had something to do with his alcohol abuse, there is no expert neurological evidence before me linking them or explaining the relevant causal pathway. I am not satisfied on the balance of probabilities that Blip Syndrome is a foreseeable consequence of the child sex abuse.

97. While damages are payable for an injured person’s diminution of earning capacity, rather than economic loss, this is only to the extent to which the diminution of earning capacity is or may be productive of financial loss: Graham v Baker (1961) 106 CLR 340; [1961] HCA 48. I am not satisfied that Mr Kawicki suffered any actual financial loss as a consequence of his child sex abuse during the years he was in the workforce up until he finally left work in 2000. Nor I am satisfied, on the balance of probabilities, that he has established that his incapacity during the period up until normal retirement age and the resulting financial loss was caused or materially contributed to by the mental harm resulting from the child sexual abuse. In my judgment, on the limited evidence available to me, his unfitness for work during that period is due to his other injuries for which the defendant is not legally liable.

98. The total damages payable therefore are in the sum of $186,000. While Mr Kawicki was self-represented at the hearing and for some time prior thereto, he was legally represented at different times while these proceedings were pending. For that reason, I propose to make an order for legal costs to the extent to which he may be otherwise entitled to them.

99. For these reasons my orders are:

100. Judgment for the plaintiff against the defendant in the sum of $186,000;

101. The defendant to pay the plaintiff’s costs.

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