Plaintiff v Defendant

(i) Bullying and sexual abuse committed against him by five students, over a period of time in 1975 (the student abuse). This initially involved sexualised bullying, which the plaintiff said commenced within 2-3 weeks of him starting Form 1 at the College. The plaintiff alleges that one evening in the gymnasium, these five students forced him to the ground and took turns to 'dry hump' him (the gym incident). The plaintiff alleges that the erect penis of at least one of the five students partially penetrated his anus. The plaintiff also alleges that soon after the gym incident, he was assaulted by one of the five students when he was sleeping in his bed in the boarding house.

(ii) Abuse committed against him by Br John Frith (Br Frith), a brother of the defendant's order, in 1975 or 1976. The plaintiff said that he had attended upon Br Frith in the College infirmary and complained of a sore throat. The plaintiff alleges that in the process of Br Frith examining him, Br Frith placed one of his hands down the back of the plaintiff's pants and, without warning, pushed his finger into the plaintiff's anus (the Frith abuse).

(iii) Abuse committed against him by Mr Edward Mamo (Mr Mamo), in the College laundry in 1976 or 1977. At the time, Mr Mamo was a brother of the defendant's order.[3] The plaintiff alleges that as a punishment for having been caught smoking cigarettes, Mr Mamo instructed him to drop his pants and underpants, and bend over a chest, following which Mr Mamo proceeded to strap the plaintiff's bare buttocks twice, using hard strokes with a pause of 3 to 5 seconds between each (the Mamo abuse).

3 The plaintiff claims he has endured a lifetime of psychiatric harm as a consequence of the abuse. He seeks damages from the defendant for his pain and suffering, medical expenses, and past and future economic loss.

4 The plaintiff alleges that the defendant is directly liable in negligence for the student abuse. The plaintiff alleges that the defendant knew or ought to have known of sexualised bullying behaviour by the five students, and the risk of those students committing acts of violence, including sexual violence against other students, including the plaintiff. The plaintiff alleges that the defendant failed to take appropriate action to protect him from the student abuse. In addition, the plaintiff alleges that the defendant breached its non-delegable duty to him in respect of the student abuse.

5 The plaintiff alleges that the defendant is directly liable in negligence for the Frith abuse and the Mamo abuse. The plaintiff alleges that the defendant knew or ought to have known that Br Frith and Mr Mamo each had a propensity to behave dangerously and inappropriately, as both had abused other minors at the College, prior to and during the period when he was a student there. The plaintiff alleges the defendant breached its duty by not guarding against such abuse, and for allowing a culture of violence in the College which discouraged students from reporting abuse through fear of physical punishment.

6 The plaintiff also alleges that the defendant is vicariously liable for the Frith abuse and the Mamo abuse, on the basis that Br Frith and Mr Mamo were employees of the defendant, and their employment provided the occasion and opportunity for the alleged wrongful acts to be committed.[4]

7 The defendant admits that it owed the plaintiff a non-delegable duty to take reasonable care to avoid foreseeable risk of injury to his psychological and emotional health.

8 The defendant does not admit the Mamo abuse or the student abuse, and denies the Frith abuse.

9 If the Court is satisfied to the requisite standard that the alleged abuse occurred, the defendant denies that it breached its duty of care, or its non-delegable duty. The defendant denies that there was a culture of violence at the College, and that students were discouraged from reporting abuse. The defendant also denies that it knew or ought to have known:

(a) that the plaintiff was vulnerable to violence, including sexual violence, at the hands of other students, including the five students;

(b) of Br Frith's alleged propensity to behave dangerously and inappropriately with minors; and

(c) of Mr Mamo's alleged propensity to behave dangerously and inappropriately with minors, including assaulting students by strapping them on their bare buttocks as a form of punishment.

10 In respect of the plaintiff's vicarious liability claim, the defendant denies that Br Frith and Mr Mamo were employees, and relied upon the recent High Court decision in Bird v DP (a pseudonym),[5] which held that under the common law, vicarious liability did not extend to the conduct of a person who is not an employee.

11 This judgment is divided into five parts: introduction; relevant background; factual determinations in respect of the three incidents of alleged abuse; liability determinations; and conclusion.

12 I am required to determine the following issues which are in dispute between the parties:

(a) Whether the student abuse occurred, and if so, whether the College is liable for the student abuse;

(b) Whether the Frith abuse occurred, and if so, whether the College is liable for the Frith abuse;

(c) Whether the Mamo abuse occurred, and if so, whether the College is liable for the Mamo abuse;

(d) If applicable, what damages the plaintiff should be awarded for his:

(i) pain and suffering;

(ii) past and future medical expenses; and

(iii) past and future economic loss.

13 The trial proceeded over 14 days, with 15 witnesses called to give oral evidence. This included the plaintiff and Br Frith. Mr Mamo and the five students did not give evidence. Numerous documents were also tendered.

14 During the trial, I made numerous rulings on the admissibility of evidence. This included a ruling that the plaintiff be permitted to adduce tendency evidence in respect of Br Frith and Mr Mamo.[6] I limited this evidence to:

(a) sentencing remarks from County Court judges following guilty pleas for numerous charges that Mr Mamo strapped students on the bare buttocks, and on occasion, fondled some of the students genitals;

(b) a partially redacted document which recorded representations made by Mr Mamo following an interview on 14 January 2004; and

(c) oral evidence from Mr Gary Pearce and Mr Shane Ross, both of whom alleged they had been abused by both Br Frith and Mr Mamo whilst they were students at the College.

15 In a separate ruling, I did not allow the defendant to adduce tendency evidence from six former students who had been under the care of Br Frith, at the College and another school in New South Wales.[7]

16 The burden of proof rests with the plaintiff in respect of the alleged instances of abuse, whether the defendant is liable for any of those instances, and if so, what damages arise from any such liability.

17 The standard of proof is in accordance with s 140 of the Evidence Act 2008 (Vic) which provides:

(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account -

(a) the nature of the cause of action or defence; and

(b) the nature of the subject-matter of the proceeding; and

(c) the gravity of the matters alleged.

18 These are mandatory considerations. In addition, other considerations may be relevant to the Court's determination as to whether it is satisfied to the requisite standard. These include the legal maxim that all evidence is to be weighed according to the proof that it was in the power of one side to have produced, and the other to have contradicted.[8]

19 Of particular relevance to my determination of the abuse allegations in this proceeding, I note the following observations of the majority of the High Court in GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore:[9]

Section 140(2)(c) of the Evidence Act reflects the position of the common law that the gravity of the fact sought to be proved is relevant to "the degree of persuasion of the mind according to the balance of probabilities". By this approach, the common law, in accepting but one standard of proof in civil cases (the balance of probabilities), ensures that "the degree of satisfaction for which the civil standard of proof calls may vary according to the gravity of the fact to be proved".[10]

20 Where, in a civil proceeding, a question arises as to whether a crime has been committed, consideration of the allegation needs to be approached with 'much care and caution'.[11] Whilst the standard of proof is the same as upon other civil issues, 'weight is given to the presumption of innocence and exactness of proof is expected'.[12]

21 Given the gravity of the conduct in the three alleged incidents of abuse, I am satisfied that my determination of the those allegations attracts the principles outlined above, and is to be in accordance with s 140 of the Evidence Act.

22 The plaintiff was born and raised in north western Victoria. He is the youngest of four children. The plaintiff has two brothers, Peter and Paul, and a sister, Leann.

23 The plaintiff's father was an accountant in Hamilton. During his early years, the plaintiff's mother stayed home to care for the children, although she later went on to obtain her Bachelor of Arts.

24 The plaintiff's parents were Catholic, and all four of their children attended the local parish primary school, and then Catholic boarding schools for secondary education. The plaintiff's brother, Paul, was two years ahead of him at the College.

25 The plaintiff said he had been an excellent student and at one point was top of his class in primary school. The plaintiff said that in either Form 1 or Form 2, he was granted a scholarship to the College, which meant that his tuition was free for the remainder of his time there.

26 The plaintiff described a very happy childhood, with no traumatic events. His sister Leann, gave oral evidence confirming the above.

27 The plaintiff said that when he first started at the College he was happy and excited, but that within a few weeks things changed for him.

28 The College began as a secondary boys Catholic school, with a boarding house attached. By the time the plaintiff commenced in 1975, students from a local secondary girls Catholic school began to attend classes at the College. By 1977, the College was co-educational at all year levels, and there were also female boarders.

29 In 1975, the College had approximately 270 boarders.

30 In the boarding house, the students slept in dormitories, based upon year levels - the junior years (being Forms 1 and 2), and then middle and senior years. In 1975 there were approximately 50 students in the junior dormitory, which was one single room. This included the plaintiff and the five students.

31 The students ate three meals a day at the boarding house. Before school, the students would dress in the locker rooms. After school there was an extra-curriculum program, including sports and cadets. After sports, the students would shower. There was then a designated period for study time, and the students would thereafter attend the chapel, generally before dinner. Then, after dinner, if not studying, the students had recreation time in their common room, before 'lights out'.

32 From 1969 until 1977 (save for a six month period from May to October 1975 when he was on sabbatical), Fr Malcolm Fyfe was the rector and head of the College.

33 Fr Fyfe, aged 89 years, gave evidence at the trial, over the course of one day. Given his age and the years that had passed since his time at the College, Fr Fyfe had a very good memory and I considered him to be an impressive witness. Fr Fyfe said that as rector, his aim was to have a pleasant environment for students at the College, and to provide them with 'a home away from home.'

34 In 1975 there were both religious and lay staff at the College.[13] The lay staff included females. Some of the religious and lay staff resided at the boarding house.

35 The College had a program which involved indigenous students from missions operated by the defendant in the Northern Territory attending the College on Commonwealth scholarships. There were 6-8 such students at the College at any given time. This program included the five students who the plaintiff alleges abused him.

36 Fr Fyfe said that the students from these missions sometimes faced challenges settling into College life, which was in part due to cultural and linguistic difficulties. Fr Fyfe said that staff at the College were aware of the backgrounds of these students, and did what they could to help them settle in. Fr Fyfe also said that for this reason, the College staff may have excused minor misdemeanours by these students.

37 The College had discipline masters for the different year levels, as well as an overall senior discipline master. Fr Fyfe said that the role of the discipline master was to replace the role of a parent. The discipline master was responsible for the students when they were not under the charge of another staff member (eg, when in class, during study periods, or while playing sport). In cross-examination, the plaintiff was asked if the discipline master was someone he could go to when he was upset, and responded that he did not feel they were approachable.

38 There were also three study masters who were responsible for the academic progress and development of the students. There was one study master per two year levels, being divided between the junior, middle and senior years.

39 The students were generally streamed in their classes based upon their academic abilities. The College also had a special services centre, for students requiring extra assistance in English and maths. This centre was open during school hours, and also for a period of evening study from 5pm to 6:30pm. In 1975, fifty students from Forms 1 to 4 participated in the services offered by this centre. This included the five students. Mrs Kinnane was responsible for the special services centre at the relevant time.

40 The College prepared school reports for students. The reports of the plaintiff and the five students were tendered. Fr Fyfe said that the aim of school reports was to be curative, and that there was a tendency by staff not to refer to misdemeanours or 'even some significant things' in the school reports, so as to not damage the student's future prospects of success.

41 The laundry was located at the far south east end of the College's basement. Also in the basement was a gym, the showers and locker rooms.

42 From mid-1971, the infirmary was located in the far east wing of the College's basement. As best I could understand the evidence given in respect of its layout, there were two entrances to the infirmary - an internal entrance from a hallway which lead into the waiting room, and another outside entrance from the courtyard. In the infirmary, there was a waiting room, an office, an area with beds, and at least one bathroom.

43 Br Frith, aged 84, gave evidence in the trial. Br Frith arrived at the College in 1972. Prior to that, Br Frith had been a house master at Downlands, one of the defendant's other colleges in Toowoomba, Queensland. Whilst at Downlands, Br Frith said that he was asked to help with the sick bay. Br Frith said that he was thereafter trained by nurses, read some books, and also gained some experience attending the local hospital at times. Br Frith said this training occurred over a five year period, and was in general terms, similar to what a parent would do when caring for a sick child.

44 Br Frith was in charge of the College's infirmary from 1973 until 1984. Br Frith said that he worked closely with a local medical clinic, and would speak to the doctors there about how to manage students' ailments, and that those doctors would send scripts to the chemist for medications. There was also a hospital nearby which students would attend if needed.

45 Br Frith said that from 1979, he was also responsible for the junior dormitory. Br Frith said that this required him to be responsible for the discipline of those students. Br Frith said he rarely used the strap to discipline students and he considered showing his disappointment in students was generally enough. He said that he referred to his strap as 'Fred', and would say to the students that if they misbehaved he would need to get Fred out. Br Frith also said he sometimes had the students do jobs as a punishment, such as washing a car, weeding the garden, or emptying bins.

46 Br Frith said he was not paid for his work at the College. Instead, the defendant provided him with food and accommodation, and that if he needed money for personal expenses, he would request this from the defendant's bursar.

47 Br Frith said that whilst at the College, he was not given any advice or instruction about sexual abuse, including how to deal with a child reporting a complaint.

48 Fr Fyfe said that Mr Mamo had a number of peripheral responsibilities within the College, including laundry duties, caretaking of the grounds, assisting in the kitchen, collecting the mail, driving the school bus, and coaching the hockey team. Fr Fyfe described Mr Mamo's roles at the College as 'necessary but not terribly significant.'

49 Fr Fyfe said that he could not recall if, in 1975, the laundry services for the boarding house were being outsourced or not. Fr Fyfe believed Mr Mamo was required to be available for the boarders to collect their clean laundry on a particular day of the week. Fr Fyfe said that there was no reason for other staff to attend the laundry and he accepted that Mr Mamo had the opportunity to be alone with students there.

50 Fr Fyfe said that in the early 1970s professional development was offered to staff members at the College. However, Fr Fyfe accepted that there was no formal training in how to manage sexual abuse, and that staff were not informed that this was impermissible conduct. Fr Fyfe said that he and the staff were expected to use their common sense and ingenuity to manage and respond to complaints of child sexual abuse. Fr Fyfe said there was no requirement that sexual abuse be reported.

51 Fr Fyfe also said that he did not address the students on child sexual abuse.

52 Fr Fyfe said that he could recall three instances of 'misbehaviour at a sexual activity level' at the College. One occurred in approximately 1963 and involved two students. Fr Fyfe, who at the time was a discipline master, said he reported this to the then rector of the College. Then in 1971 or 1972, he said that it was brought to his attention that a senior student was interfering at night with some other students. Fr Fyfe said that he expelled the offending student. The third instance involved Mr Mamo.[14]

53 Fr Fyfe said that only discipline masters or teachers within their classes were permitted to administer corporal punishment to students. Fr Fyfe said there were frequent meetings of discipline masters to discuss the discipline being given to students, including the use of corporal punishment. Fr Fyfe said the maximum number of straps permitted was six, and that the strap was primarily given to the hand. Fr Fyfe said it was never permissible to strap a student on the bare buttocks.

54 Fr Fyfe said that he could not recall telling the brothers that they were not to administer corporal punishment to students, but he believed this was 'accepted' by brothers within the College.

55 The plaintiff said that in Form 1, he was not strapped, however he was in later years. The plaintiff said that the boys kept a tally on the underside of their desks as to the number of times they had been strapped. The plaintiff said that in the first semester of Form 4 (1978), he was strapped 23 times.

56 The plaintiff called several former students who gave evidence as to their experience of discipline and punishment at the College. Mr Shane Mahar and Mr Michael Schack gave evidence as to punishments which they received and observed whilst they were students of the College, prior to 1975. Such evidence is irrelevant to my assessment as to the functioning of the College at the period relevant to the plaintiff's claims of abuse.

57 Mr Brian Guy attended the College as a day student from 1973 until 1977. Mr Guy gave evidence as to punishments he received in Forms 1 and 2. As this was prior to the plaintiff's attendance at the College, such evidence is irrelevant to this proceeding. Mr Guy then said that 'the world was different' in 1975, because his classes became co-educational, so strapping of students no longer occurred in the classroom. Mr Guy said that he did not report being strapped to anyone. At one stage of his evidence, Mr Guy said he did not do so as he was afraid he would get in more trouble, but he later said it did not enter his mind to report it.

58 Mr Patrick Neeson attended the College for the same years as the plaintiff, and was also a boarder. Mr Neeson said that corporal punishment was quite frequent, and that it was mainly 'belting' on the hand with a leather strap, and occasionally a cane across the backside. Mr Neeson said that in his early years at the College, he saw this occur at least a couple of times a week.

59 Mr Ross attended the College for Forms 3 to 5, commencing for a small part of 1977, through to 1979. Mr Ross said that on one occasion a teacher struck him on the back of his leg with a cue stick, and on another occasion a teacher hit him on his face with a ruler. Mr Ross also said that one of the brothers, Fr John O'Bryan had a cut up piece of fan belt hanging around his neck, and that he would strike students behind the ear if they were 'talking or something.' Mr Ross said he was strapped 'up to once a month or so.'

60 Mr Pearce attended the College, as a boarder, between 1977 to 1978, when he was in Forms 1 and 2. Mr Pearce said that although there were no girl boarders then, there were girls in their classes. Mr Pearce said that if a student was to be punished during the school day, the student would be taken to the principal or vice principal's office. After school, in study time, when the girls had gone home, Mr Pearce said a particular teacher would strike the boys with a cane in front of their friends if they were caught talking.

61 These specific incidents of punishment were put to Fr Fyfe and his response to them was sought. In short, Fr Fyfe accepted that if these incidents occurred as alleged, they were inappropriate. However Fr Fyfe said that those instances of a staff member exceeding the bounds of what was appropriate did not indicate the overall climate of the College in the mid 1970s.

62 Fr Fyfe said that students came to speak to him 'about all sorts of things'. Fr Fyfe said that he aimed not to be a remote administrator, so was often out and about in the College grounds.

63 Fr Fyfe said that if a student had an issue with their discipline master, they could seek pastoral care from others. Fr Fyfe could recall at least one occasion when a student reported to him that he had received too much corporal punishment. Fr Fyfe said that after this he spoke to the discipline master, Fr O'Bryan, and he brought the student and Fr O'Bryan together to discuss this, so that they had a mutual understanding of the situation.

64 Fr Fyfe accepted that bullying, horseplay, tomfoolery, and nastiness occurred amongst students. However Fr Fyfe said that he could not recall such behaviour being a feature of the College, nor a matter which was of concern to him in his role as rector.

65 Fr Fyfe accepted it was important a school would take steps to protect boys who were being bullied, and that if there was a group of boys 'bashing' or sexually assaulting other boys, this would indicate a break down in discipline. Fr Fyfe also accepted in cross-examination that a vigilant house master should have prevented such conduct.

66 Fr Fyfe accepted that it was important students knew they could complain about bullying. When asked in cross-examination if the College identified for students the specific staff members they could trust to report the behaviour of other students to, Fr Fyfe said that it did not. Instead, Fr Fyfe said it was left to the students' ingenuity as to who they decided to complain to.

67 Br Frith said that in each of the schools he has been placed at by the defendant's order, he was aware of students bullying others, especially little and young boys. Br Frith accepted that a vigilant house master needed to 'keep an eye' on maladjusted children, as there was a chance they could be bullied or bully others.

68 Br Frith said that if a student complained about another student, the house master had a job to address it. Br Frith said that this could involve a warning or discipline of the offending student. However Br Frith said that he had never known a student to be expelled for bullying. He commented that if that was to be done '[y]ou'd have to expel half ... the school'.

69 Mr Schack gave evidence that he was a student at the College between 1962 and 1967. Mr Schack stated that in 1967, when he was in Form 6, he was sexually abused at the College by Br Gordon Morgan, who at the time was in charge of the infirmary. Mr Schack said that during a cadet camp, he suffered an injury to his ribs and was taken to the infirmary for treatment, where he remained for two or three nights. In the course of treating him, Mr Schack said that Br Morgan asked him to undress and lay down, and brought out a heat lamp and Vaseline. Br Morgan applied heat to Mr Schack's genitals with the lamp, and instructed Mr Schack to massage his own genitals with the Vaseline. Mr Schack said that although there had been no injury to his genitals, he followed Br Morgan's instructions, and as he did so, Mr Schack got an erection. Mr Schack said that Br Morgan left the room after a while, and that during this time, the heat and rubbing caused him to ejaculate. When Br Morgan re-entered the room, he ran a bath for Mr Schack. Whilst Mr Schack was bathing, he said that Br Morgan hugged him and rubbed his cheek against Mr Schack's own.

70 Mr Schack said that he told some other boys at the College about the incident between him and Br Morgan in a general, non-specific way. Some time later, Mr Schack said that Fr Anthony Prentice, the rector of the College, called for Mr Schack to meet with him. At the meeting, Fr Prentice said to Mr Schack that some boys had come to him with 'some concerns about Br Morgan' and had mentioned Mr Schack's name. He asked if Mr Schack had anything to tell him about it. Mr Schack said that he told Fr Prentice that Br Morgan had used the heat lamp and asked him to apply Vaseline to his genitals. Mr Schack did not tell Fr Prentice about him having subsequently ejaculated, or that Br Morgan hugged him whilst he was in the bath. On receiving this information, Mr Schack said that Fr Prentice responded by saying said he hadn't heard of that sort of treatment, and 'perhaps, having had some injury in the region it may have been necessary to test out whether things are working.' Mr Schack stated that he did not believe that this was a possible reason for Br Morgan's actions, but he did not express this view to Fr Prentice.

71 Mr Mahar, another former student of the College gave evidence as to treatment he received from Br Morgan, in the infirmary in 1964. Mr Mahar said that on one occasion, Br Morgan grabbed his penis and felt under his scrotum, and told Mr Mahar he was checking to see if his testicles had dropped. Mr Mahar said that Br Morgan directed him to return the following day. Mr Mahar did so, and said that Br Morgan, again, felt his penis and scrotum. About three months later, Mr Mahar was taken to the infirmary after he had been knocked out playing football. Mr Mahar said that when he came to, Br Morgan was masturbating him, with Br Morgan's mouth close to Mr Mahar's penis. Mr Mahar said that he asked Br Morgan what he was doing, and Br Morgan responded that he was testing if his testicles had dropped. Mr Mahar said that he did not report these incidents to any staff members at the College as he feared he would be punished, as there were a lot of strappings being given at the College at the time.

72 In the 1976 College annual, Fr Roy O'Neill, senior discipline master, wrote, under a heading titled 'Discipline' that 'theories of discipline within the school have been subject to debate in recent years', and noted:

One thing that has emerged from this is that the 'reign of terror' seems to be on the decline, no longer does the errant student, in fear and trembling, begin the long march to the discipline master's room to receive his just deserts for his infringement of a code of rules and regulations that would need the practical skill of a Q.C. to administer with impartiality.

73 Fr O'Neill also commented that students knew the frontiers of permissible behaviour at the College, and that in general the College had been satisfied with the standards of conduct of the students that year.

74 The plaintiff was taken to this article during cross-examination. The plaintiff disagreed with the sentiment expressed in the article that the 'reign of terror' seemed to be on the decline by 1976, and said that this was present throughout all of his time at the College. Fr Fyfe was also taken to the article during his cross-examination, and denied that there was a 'reign of terror' at the College or that this was the opinion of Fr O'Neill at the time he wrote the article. Fr Fyfe considered Fr O'Neill to have used this turn of phrase 'with tongue in cheek'.

75 In 1994, Fr Paul Jennings conducted an investigation into sexual and physical abuse at the College in the 1960s and 1970s. As part of his investigation, Fr Jennings spoke to several members of staff, and more than 20 former students. In his report dated 18 February 1994, Fr Jennings noted that he had spoken to one student who told him of being sexually abused in the infirmary in the 1960s. Fr Jennings also found abusive behaviour by Mr Mamo and commented that:

Almost everyone I talked with commented on [the College's] reputation for tough discipline and activities that could be termed physical abuse. Most ex-students thought this was a bigger thing than any sexual abuse. There was a lot of injustice in discipline by overworked and under-trained MSC.

76 In a letter from Fr Jennings to the superiors of the defendant's order, dated 11 March 1994, Fr Jennings stated that after lengthy investigations, he had concluded that there was substance to the allegations of abuse by Br Morgan in the 1960s.

77 The evidence and my findings as to the three incidents of alleged abuse are detailed below. So as to understand the basis for the plaintiff's proceeding, I will now briefly summarise the impact which the plaintiff's claims these incidents have had upon his life.

78 The plaintiff said that although the student abuse was 'not a snap thing', everything started to change for him after it. In the plaintiff's term 1, Form 2 school report, he was described as having potential for leadership, but was said to have the 'habit of just doing what is required of him and that is all.' The plaintiff claimed that his subsequent school reports indicated a decline in most of his subjects in Forms 4 and 5. The plaintiff said he became rebellious, and started abusing alcohol. The plaintiff was suspended for this, and also for running away from the boarding house on a weekend. The plaintiff said that he was not expelled, and believes this was because his marks at that time were above average.

79 The plaintiff said that whilst at the College, he only participated in activities if they were compulsory, as he had become increasingly withdrawn. However, the plaintiff also gave evidence that he played football, basketball and cricket at school, and in Form 6 was secretary to the St Vincent de Paul society, which did community-based charity work.

80 In 1980, when the plaintiff was in Form 6, his term 1 school report referred to him as having 'good conduct'. The plaintiff said that this was a consequence of him having 'completely withdrawn' and his friends had left the College.

81 The plaintiff said that in about Form 5 or 6, he became interested in studying law. However the plaintiff was unsure whether he ever applied to study law, either at the completion of high school, or at any stage during, or after university. The plaintiff said that he had a 'feeling' that his marks were not good enough for law. Instead the plaintiff undertook an Arts degree at Melbourne University and majored in sociology. The plaintiff said that his attendance at university was sporadic although he generally attended tutorials as they were compulsory with a roll call taken.

82 In his first year at university, the plaintiff shared a house with former students of the College. The following year, he moved in with Ms Sylvia Stuart, a friend whom he met at university. The plaintiff said he felt uncomfortable in social situations and did not like being around people too much. However, the plaintiff said that despite this he would socialise with his housemates, and he co-hosted a couple of house parties each year.

83 The plaintiff said his marks from his Arts degree were good enough for him to undertake Honours. However instead of that, he decided to travel up the east coast of Australia, and did some basic jobs, such as working as a builder's labourer, taxi driver and waiter. The plaintiff said he always felt the need to keep moving and to escape things, and that for a period of time he lived and worked in Sydney. The plaintiff said he did menial work until the late 1980s or early 1990s, at which time he commenced a Masters degree in philosophy at Melbourne University. The plaintiff said he obtained a scholarship to do his Masters based upon the marks he received in the final year of his Arts degree. However, the plaintiff said that as he wrote a paper which his lecturer advised him was not on topic, he decided to withdraw from the course. The plaintiff said his lecturer passed his paper on to a colleague at Deakin University who subsequently offered the plaintiff an opportunity to undertake a PhD on the topic. The plaintiff said that he did not take up that offer because of anger, restlessness and contrariness. The plaintiff said he now regrets this decision.

84 After withdrawing from his Masters, the plaintiff said he again did menial work for a number of years, including cleaning a nightclub, gardening and labouring. The plaintiff said that in these jobs he did not have to relate to people, as he could work on his own. During that period the plaintiff said he felt 'terrible ... just very dissatisfied and, like, ashamed of what I was doing and what I had become.'

85 In 1996, the plaintiff undertook a one-month course at RMIT in teaching English as a foreign language. After completing the course, the plaintiff moved to Taiwan. The plaintiff said he went to 'escape the depressing situation I was in'.

86 The plaintiff worked in a kindergarten in Taipei for approximately two years. Thereafter, the plaintiff established his own school, where he employed one of his co-workers from the kindergarten, Ms Jasmine Wu. The plaintiff said he ran this business for about 10 years, by which time he had approximately 100 students. By that time the plaintiff said he was deeply unhappy, and could no longer stand the intensity of Taipei. The plaintiff then sold his teaching business, and briefly returned to Australia.

87 In approximately 2009, the plaintiff said he worked on the Gold Coast for a few weeks teaching English. However, he decided to move back to Taiwan, where he settled in a rural town called Dulan. There the plaintiff purchased a property with his partner at the time, Gina. The plaintiff subsequently set up a business making driftwood furniture, which he sold at a monthly market in Taipei. Whilst in Dulan, the plaintiff became involved with a protest group of about 20 people who were opposed to the development of a resort. As part of this group, from time to time, the plaintiff attended pickets on the beach, and a protest camp set up outside the resort. The plaintiff also went on a 300 kilometre protest march from Dulan to Taipei. The plaintiff said he socialised with members of this group, as well as members of Dulan's artistic community.

88 Whilst in Taiwan, the plaintiff developed an interest in chasing typhoons. The plaintiff said he would get in his car and drive to where the typhoon was expected to hit. The plaintiff described this as being 'like a death wish'. The plaintiff filmed and edited videos of the typhoons he observed, which he posted on the internet. Two of these videos were tendered in the proceeding.

89 The plaintiff said he had thought of ways to kill himself before he went to Taiwan but had made no suicide attempts. The plaintiff gave evidence that on one occasion whilst in Taiwan, he went to an abandoned house on the edge of a cliff which was in the path of a typhoon. The plaintiff said he sat in the house drinking whisky and willed the typhoon to take him. The plaintiff said that he didn't want his mother to feel that he had killed himself, and had reasoned at the time that this was a way to end things. The plaintiff said that on another occasion in Taiwan, he planned to gas himself in his car and went as far as buying a hose and some tape, but ultimately did not go through with it.

90 In 2018, the plaintiff said he returned to Australia to deal with the impact of the abuse. He said that he had read articles on the internet about the National Redress Scheme and Mr Mamo's criminal charges.

91 The plaintiff said he sold the land he owned in Taiwan and subsequently purchased a dairy shed on a secluded rural block in Nimbin, New South Wales. The plaintiff currently resides at this property. He lives off the dividends he is paid from stock and shares which he owns, plus income he derives from selling eggs from his chickens, and from the agistment of his some of his land.

92 The plaintiff said that over time, he has had some intimate relationships, but that none have lasted. The plaintiff said his relationships have always been off and on, and that he gets to a point where he needs to withdraw, as he cannot handle the closeness. The plaintiff said he would have liked to have had children.

93 The plaintiff said that he is currently in a long distance relationship with a woman, who lives in Taiwan. The plaintiff said she sometimes visits him for one or two months at a time. The plaintiff said that when his girlfriend is not here, he is like a 'hermit'.

94 The plaintiff said that his memories of the College, and the abuse, are always with him. The plaintiff said that he is depressed, and 'full of self-hatred and shame'. The plaintiff said he is not able to experience joy in his life.

95 In respect of the plaintiff's claim for psychiatric injury and its effects upon him, the defendant submitted that the plaintiff frequently exaggerated the impact which the abuse had upon him. For example, in relation to the plaintiff's claim that he had a death wish in respect of his typhoon chasing, it was submitted that the tendered videos demonstrated that the plaintiff obtained enjoyment from this activity and in one video, he described the experience as 'exhilarating'. The defendant relied upon the opinion of consultant psychiatrist Dr Ghazala Watt[15] who, after viewing the tendered videos, was of the opinion that they demonstrated the plaintiff was functioning relatively well in terms of his mental health. Dr Watt was also of the opinion the behaviour of the plaintiff in the videos, demonstrated him to be an individual seeking more of an adrenaline rush, than chasing suicidality.

96 The defendant also challenged the plaintiff's evidence that he lives like a 'hermit' and that he has been 'increasingly isolated' since leaving the College. The defendant submitted that although the plaintiff wanted to portray himself in this way, the evidence established that whilst at the College, he played on numerous sports teams, and after finishing school, the plaintiff played football for the local Stawell team. In relation to his life in Dulan, documents tendered by the defendant from the plaintiff's Flickr online account, demonstrated that the plaintiff was involved in and socialised with the local artistic community. This material also demonstrated how active the plaintiff had been in the protest movement, and that he had filmed and then subsequently produced videos of numerous protest activities, in addition to the videos he made of typhoons.

97 Having detailed the background relevant to the plaintiff's proceeding, I will now detail the specific evidence relevant to the alleged incidents of abuse, and make factual determinations in respect of each.

98 The plaintiff alleges the student abuse was committed against him by five students who were identified in the proceeding as Student 1, Student 2, Student 3, Student 4 and Student 5.[16] Like the plaintiff, these five students commenced at the College in Form 1 in 1975.

99 The plaintiff said that the five students were one to three years older than him, and bigger than him. The plaintiff said that Student 4 was the ringleader, Student 2 and Student 3 were bullies, Student 1 joined in with the others, and Student 5 was more verbally aggressive. The plaintiff said that the five students hung around with each other, and they would bully other students.

100 The plaintiff said that he was bullied by the five students in Form 1. This commenced within 2-3 weeks of the school year, and thereafter occurred every day. The plaintiff said the bullying involved the five students saying 'we put the hole in you', and gesturing with a finger on one hand, going through a hole shape made with the index finger and thumb on the other hand. The plaintiff said that he understood the expression and hand gesture to refer to anal sex.

101 The plaintiff said that sometimes one of the five students put him in a headlock, and then another would come from behind and dry hump him. The plaintiff said that at other times, one of the five students would grab his towel off him after taking a shower, or try and grab his penis.

102 The plaintiff said that his locker was near where the five students had their lockers. The plaintiff said that each day, the students would need to change into their uniforms, shower after sport, and then later change into pyjamas. The plaintiff said that there were a lot of opportunities for the five students to bully him in this way, and he saw them do it to some other students too, including Mr Neeson.

103 The plaintiff said that he did not report the behaviour of the five students, as he said that there was a culture of no dobbing at the College.

104 In Dr Watt's medico-legal report dated 31 May 2023, she noted that in her examination of the plaintiff, he told her that he had not raised his concerns regarding these five students with anyone, as the 'culture was against dobbing'. Further, Dr Watt reported that the plaintiff said he did not tell the brothers at the College of the sexualised bullying as it was 'embarrassing' and 'confusing', and questioned himself if it was 'normal.'

105 The plaintiff said that one evening, 'some months' into Form 1, he was on his own, walking along the basement corridor, near the gym area. It was after dinner and he was in his pyjamas, with a dressing gown on. The plaintiff said that he walked around the corner and saw the five students together. The plaintiff said that he knew straight away that it 'was not good news,' and tried to walk past the five students. In cross-examination, the plaintiff said that he thought there was a prospect of the students putting him in a headlock.

106 The plaintiff said that that the five students grabbed him, took hold of his arms and legs, and pushed him to the ground. The plaintiff said his legs were pushed apart and his dressing grown was pulled up. The plaintiff said that Student 4 got on top of him, and partially pushed his erect penis into the plaintiff's anus, penetrating him through his pyjama pants.

107 Subsequent to this, the plaintiff said that some of the other students 'took a turn'. He could not be precise as how many of the students did this but said it 'was three or maybe four'. The plaintiff said:

...only two really pushed their penises onto me. One of them was more just like air-hump, I think.... I could feel their penis pushing into my anus. But as I said, it was not like full in but the pyjama pants were thin and ... I felt it.

108 The plaintiff gave evidence that he struggled and tried hard to get away but was unable to do so because he was being held down. The plaintiff gave evidence that the five students were laughing during this incident. The plaintiff said it was hard for him to say how long this incident went for, but thought that it could have been some minutes.

109 The plaintiff said that he then felt something explode in his head, and he felt a sense of shock. The plaintiff said that he eventually got away, and went to his locker, where he ate some fruit cake that his mother had made for him. The plaintiff said that whilst he ate the cake, he had no sense of taste. The plaintiff said that it was like a 'mechanical movement', he felt he was outside his body, that it was 'not real' and 'something had broken.'

110 The plaintiff said his instinct was to suppress the gym incident, as he did not know how to tell anyone about it, and did not have the words to explain it. The plaintiff described feeling shocked and disturbed during the gym incident. He also said that he had a fleeting erection during the encounter, which has since been a source of great shame for him.

111 The plaintiff gave evidence that sometime after the gym incident, he was walking out of class and Student 5 approached him holding his fists up like a boxer and saying 'come on ... have a go' and 'we put a hole in you'. The plaintiff said that as he believed that Student 5 was daring him to fight, the plaintiff lashed out and hit Student 5 in the head. Later that night, while he was in bed asleep, the plaintiff said he was 'bashed' in the face by Student 3. The plaintiff said he woke up screaming and Br Mulverhill came to the dormitory and took the plaintiff and Student 3 downstairs to the locker room. The plaintiff said that Student 3 was scolded by Br Mulverhill and both students were made to shake hands and return to bed.

112 The plaintiff said that his assault by Student 3 was 'big talk' around the College and everyone knew it happened, including his brother Paul. The plaintiff said it caused him to suffer a black and swollen eye. As the plaintiff was due to return home whilst his eye was still in this condition, at Paul's suggestion, the plaintiff told their parents he got hit in the eye with a tennis ball. The plaintiff said this was consistent with the no dobbing culture at the College.

113 In cross-examination, the plaintiff was shown class photographs of the five students. The plaintiff conceded that three of the boys were about his size, one was slightly smaller than him, and one was 'quite significantly taller and stronger'.

114 Mr Neeson, gave evidence that in 1975, during his first year in the boarding house, he experienced violence, which he said was perpetrated against him by Student 1, Student 2 and Student 4. Mr Neeson gave evidence that these three students would work as a team to randomly punch him and other students, and that such conduct would occur on a frequent basis, multiple times a week, throughout the year. Mr Neeson said that this generally occurred if students were isolated in the locker room. Mr Neeson said there was a sexualised element to the three students' behaviour, and he recalled that they would say 'I'll put a hole in you' while gesturing with finger movements. Mr Neeson said he took this to suggest anal sex. Mr Neeson said that on some occasions, typically in the locker room, the students would pin him to a corner, where they would dry hump him and grab his penis, or make him grab their penis under a threat of violence. Mr Neeson said that on one occasion, he fought off an attack from Student 4, who burst into a toilet cubicle that Mr Neeson was in.

115 Mr Neeson said that he was aware that he could tell a teacher about such incidents, but that he had not 'dobbed' on these students to anyone at the College, out of fear of retribution. Instead, Mr Neeson said he told his older brother, who he understood subsequently spoke to these three students. Mr Neeson said the attacks stopped for two or three weeks, but then resumed.

116 Fr Fyfe said he had no recollection of the five students, and that as rector of the College in 1975, he had no knowledge of the physical and verbal bullying which the plaintiff and Mr Neeson described in their evidence. Fr Fyfe said that was 'all news to me' and 'horrific at that'.

117 Leann gave evidence that, in April 2019, the plaintiff told her that he had been held down and sexually assaulted by a number of students at the College.

118 Ms Stuart said that about two months prior to her giving evidence, the plaintiff had told her he had been sexually assaulted at the College by some other students.

119 The plaintiff additionally reported the student abuse to his treating psychologist, Dr James Alexander, in late 2023.

120 The enrolment cards and school reports of the five students were tendered in the proceeding. Two of the students were 14 years old at the start of the 1975 school year, two were 13 years old, and one was 12 years old. Relevant to the student abuse, these reports noted the following.

121 Student 1's term 1, Form 1 report described him as well-behaved and not troublesome when on his own, but that he was easily misled by his friends. Academically, Student 1 was described as finding the classroom situation very difficult but responded well to the small groups run by Mrs Kinnane. Student 1's semester 2, Form 1 report card noted complaints from other boys about his tendency to bully others, but stated that he had come a long way since he first arrived at the College.

122 Student 2's term 1, Form 1 report described him as having a language difficulty which affected his study but noted that he was making some progress under Mrs Kinnane's care. The report noted that for a long time, Student 2 was uncooperative and defiant, but that his behaviour had settled down. Student 2's semester 2, Form 1 report described him as showing a seriousness in attitude towards his studies, although he had not been able to make friends with other students. The report commented on a noticeable improvement in his conduct.

123 Student 3's term 1, Form 1 report described him as progressing well in his studies. He was described as a happy-go-lucky boy who was well liked by all, but had a dishonest streak. In his semester 2, Form 1 report, Student 3's academic performance was described as satisfactory in most subjects. It was expected that he would continue to improve with Mrs Kinnane's help. His dishonest streak was again noted but he otherwise had a good record.

124 Student 4's term 1, Form 1 report described him as progressing well with Mrs Kinnane's work and achieving a satisfactory standard of work in some subjects. He was noted as having calmed down considerably, as for a long time he was defiant, aggressive and disruptive. In his semester 2, Form 1 report, Student 4 was described as continuing to do well in some subjects, although his overall effort lacked consistency. He was noted as being unhappy at the College all year and to have resisted efforts to help him settle down. His behaviour was described as heedless and uncooperative with an occasional aggressive streak.

125 Student 5's term 1, Form 1 report described him as a pleasant boy who had great difficulty in reading, which affected his results, although it was noted that he was making some progress with Mrs Kinnane's assistance. Student 5 was described as being liked by everyone. In his semester 2, Form 1 report, Student 5 was described as making good progress with Mrs Kinnane's help and benefitting from closer guidance and personalised attention. Student 5 was also noted as being well behaved and well accepted because of his cheerful and friendly disposition.

126 The plaintiff's account of the student abuse, was credible and compelling. The plaintiff was visibly distressed when recounting the gym incident.

127 The plaintiff's counsel urged me to find the gym incident was a 'gang rape', whilst the defendant dismissed the use of this term and described it as the 'gym incident', consistent with what was pleaded in the plaintiff's further amended statement of claim.

128 I note that the term 'gang rape' was not pleaded, and was not a term used by the plaintiff himself in his oral evidence. The term was first used by Dr Alexander in his evidence on day five of the trial. Dr Alexander stated that he understood the plaintiff's pants were removed during the gym incident, and that it involved each of the five students anally raping the plaintiff. In this context, I do not consider it necessary or appropriate that the alternative terminology suggested by the plaintiff's counsel, be adopted for the purposes of this judgment.

129 Having considered the whole of the evidence, I am satisfied to the requisite standard that the student abuse occurred, in the manner described by the plaintiff in his evidence.

130 The plaintiff said the gym incident occurred 'some months' into Form 1. Applying the ordinary meaning of the expression 'some', I find that the gym incident occurred in the first half of 1975.

131 The plaintiff gave evidence that sometime after the student abuse, in either Form 1 or Form 2, he attended the College infirmary one evening with a sore throat. There he was seen by Br Frith, in the infirmary office.

132 The plaintiff said that Br Frith examined his chest with a stethoscope. The plaintiff said Br Frith moved behind him, reached down into the plaintiff's underpants, and then inserted his finger into the plaintiff's anus. The plaintiff gave evidence that Br Frith said something to the effect that 'if you feel pain, it means that you're sick' or 'if you feel pain it means that you're not sick'. The plaintiff could not recall which one of the two statements Br Frith had said to him. The plaintiff said he was shocked and confused about what had occurred, and that he then left the infirmary.

133 The plaintiff said that he did not report the Frith abuse at the time. His evidence was that this was partially due to there being a lot of homophobia at the College, and not wanting people to think he had been complicit in the incident. The plaintiff also said that he felt he could not report the Frith abuse to any teachers because 'he was a teacher, so ... you feel like they're ... not on your side'.

134 The plaintiff said that approximately one year later, he 'mentioned' the Frith abuse to a friend of his at the College, Mr Kim Walker. The plaintiff described this conversation as 'kids talk about Brother Mamo and Brother Frith...as generally... "suss", and ... we talked about it in those terms'. Later in his evidence, the plaintiff said he was not sure if he told Kim Walker exactly what happened or just said 'something weird happened'.

135 The plaintiff recalled that at the College, Br Frith wore a white doctor's coat and 'always wore a stethoscope'.

136 The plaintiff has not reported the Frith abuse to police, nor has he sought to have Br Frith charged in respect of his allegations of abuse.[17]

137 Mr Ross gave evidence that Br Frith was the 'nurse' during the time that he was a day student at the College from 1977 to 1979. Mr Ross said that if he wanted to get out of school, he would sometimes attend upon Br Frith in the infirmary and claim that he had a headache. Br Frith would then excuse him from attending class. On approximately three of these occasions, Mr Ross said that Br Frith took him into the infirmary office, fondled his penis and testicles through the outside of his trousers, and asked him to cough. Mr Ross said that he never reported these interactions with Br Frith to anyone as he was embarrassed.

138 Mr Ross was cross-examined about a report that he had made to police in 2015 concerning abuse perpetrated against him at the College by Mr Mamo. This report did not include any allegations of abuse by Br Frith. Mr Ross agreed that he did not report his allegations of abuse by Br Frith to the police at that time, and stated that he had no intention of doing so.

139 Mr Ross acknowledged he had commenced a claim for compensation against the defendant for abuse he alleges was committed against him whilst a student at the College. Mr Ross agreed that when he first instructed solicitors and sought advice about making a claim against the defendant, he only spoke to them about Mr Mamo, and did not mention Br Frith. Mr Ross also accepted that when his solicitors first notified the defendant of his potential claim, they only did so in relation to allegations of abuse involving Mr Mamo. Mr Ross said that it was only when his solicitors asked if anyone else acted inappropriately towards him that he told them about Br Frith.

140 Mr Pearce gave evidence that sometime in 1978 when he was in Form 2, he became very unwell with glandular fever. Mr Pearce said that he had been outside, with some friends near the trampolines, and had fallen asleep. When he woke, Mr Pearce said there was no one around him and he was too weak to move. Mr Pearce said that he called out for help, and some students went and got Br Frith, who then assisted Mr Pearce to walk to the infirmary. Mr Pearce said he stayed in the infirmary for the greater part of a month.

141 Mr Pearce said that during his stay at the infirmary, Br Frith would assist him in bathing each day. Mr Pearce said Br Frith ran the bath for him, and then helped him to get in. On the first occasion, Mr Pearce said that Br Frith noted that he was uncircumcised and asked Mr Pearce if his father had taught him how to clean himself. Br Frith then asked if he wanted assistance. Mr Pearce said he did not really understand what Br Frith was asking him, and that he felt 'really dizzy and weak' at the time. Mr Pearce said without waiting for a response, Br Frith put his hands straight onto Mr Pearce's penis 'like a claw'. Mr Pearce said his foreskin was forced back and 'it got faster and faster and faster and faster, and painful at the same time'. Mr Pearce said this lasted for no more than three minutes.

142 Mr Pearce said that Br Frith's demeanour transformed during this time: 'his eyes went an unusual black colour,' froth appeared around the corners of his mouth, and his tongue went in and out of his mouth 'like to a lizard'. It was put to Mr Pearce that this description was a result of his 'feverish imagination' by reason of his glandular fever. This suggestion was denied by Mr Pearce.

143 Mr Pearce said he had a bath every day that he was in the infirmary, and that each time the same thing would occur where Br Frith would rub Mr Pearce's penis under the auspices of assisting him to clean it. Mr Pearce said that Br Frith was 'fine during other times', and 'took extremely good care' of him.

144 Mr Pearce said that Br Frith would only ever bathe him when no other students were around and the 'coast was clear'.

145 Mr Pearce did not report what had occurred with Br Frith to anyone at the school, nor to any of his friends or family members.

146 Mr Pearce made a statement to police in November 2014, concerning his alleged abuse at the College by Mr Mamo. In cross-examination, Mr Pearce agreed that this statement made no reference to any abuse by Br Frith. Mr Pearce said that at the time of making the statement in relation to Mr Mamo, he was asked by the police investigator whether he had been abused by any other perpetrators at the College, at which point he disclosed his abuse by Br Frith. Mr Peace stated he provided a separate statement to the police regarding his allegations of abuse by Br Frith. Mr Pearce's statement regarding Br Frith was completed in November 2015, for use in Br Frith's criminal trial.

147 In cross-examination, Mr Pearce described Br Frith's actions in the bath as masturbating him. Mr Pearce accepted that he did not describe Br Frith's actions as masturbation in his police statement nor at the committal hearing in relation to Br Frith. Mr Pearce accepted that he first used the term masturbation in respect of Br Frith, during Br Frith's criminal trial in March 2023.

148 Mr Pearce said that he had attended the sentencing hearing for Mr Mamo and spoke to some of the other men who had been abused by Mr Mamo. Mr Pearce said that he spoke to those men '[i]n parts' about what happened with him and Mr Mamo. Mr Pearce also accepted that he had spoken to other students about their allegations concerning Br Frith, and that he had a conversation with one of those men about obtaining compensation. However Mr Pearce denied that he had colluded with this former student to make up allegations against Br Frith in order to be able to obtain compensation.

149 Mr Pearce said that Br Frith was the only brother who wore a white shirt. In cross-examination Mr Pearce was taken to photographs of religious staff contained in the 1977 College annual, who were seen in white shirts. Mr Pearce said that this may have just been for the photos, and maintained that their normal choice of attire was a black shirt with a white collar.

150 Br Frith said that he had never sexually assaulted a child in his care.

151 Br Frith denied having ever sexually assaulted the plaintiff, Mr Ross, or Mr Pearce.

152 Br Frith said that he could not recall the plaintiff. Br Frith denied having had a stethoscope. Br Frith denied putting his finger into a child's anus as part of an examination, and was unequivocal in his repeated denials of the plaintiff's allegations against him.

153 In response to Mr Ross' allegations, Br Frith could not recall Mr Ross, and denied having ever grabbed Mr Ross' penis or testicles over his trousers and telling him to cough. Br Frith described this allegation as 'disgusting'.

154 In response to Mr Pearce's allegations, Br Frith denied having taken hold of Mr Pearce's penis and moving his foreskin back and forth whilst assisting him to bathe in the infirmary. Br Frith denied that this had ever occurred, either on a single occasion or on a daily basis for a month thereafter. Br Frith described these allegations as 'completely false' and 'outrageous'.

155 Br Frith gave evidence that most children who were unwell usually stayed in the infirmary for two or three days, and up to a week if they were 'quite ill'. Br Frith could not recall a student staying in the infirmary for as long as a month, as Mr Pearce claimed.

156 Br Frith recalled giving talks to students about hygiene, and telling uncircumcised boys about the risk of infection if they did not clean their foreskin. Br Frith said that he would show them pictures in a medical book about 'how things worked'. Br Frith said that if a student attended with a complaint about their genitals, he would examine them. Br Frith said this may have occurred in circumstances where a boy had undescended testes, or in the context of a sporting injury. Br Frith said that he was the only person these students could go to about such complaints, and as a nurse, he would be required to check such things. Br Frith stated that he would never conduct an examination of this nature if a child presented with a sore throat, cold or headache.

157 Br Frith said that he assisted students in the bath if they needed assistance. Br Frith said that if he did so, no one else would be present as the student deserved their own privacy.

158 Br Frith also said that if a student needed to be taken to hospital, he would ensure they showered or bathed beforehand. Br Frith said that if a student was grubby after a football match, the nurses would say: 'For Heaven's sake, when you bring them up here give them give them a wash first'.

159 Br Frith denied that he had a sexual interest in boys, and that he had acted on this interest in the guise of examining boys who attended the infirmary.

160 Br Frith said that whilst at the College, he wore dark trousers and a white shirt. Br Frith said that he never had a doctor's coat.

161 The plaintiff and Br Frith both gave credible evidence. Neither was more compelling than the other. The plaintiff gave a clear account of what he said occurred. His inability to recall the exact words that Br Frith said at the time, is plausible. Even if I accept the defendant's submissions that the plaintiff had a propensity to exaggerate his claimed consequences of the abuse,[18] this does not sufficiently detract from my overall assessment as to the plaintiff's account of the Frith abuse being credible.

162 The only reservation I have in respect of the plaintiff's account is his evidence that Br Frith always wore a stethoscope, which the plaintiff said he used at the commencement of the examination. Br Frith denied having a stethoscope, and he was not challenged on that.

163 I draw no inference from the plaintiff's decision not to report his allegations of Br Frith's abuse to police. I also draw no inference from the plaintiff's delay in making a formal complaint about Br Frith. It is well accepted that delay in making a complaint is not necessarily inconsistent with the credibility of the complainant's account.[19]

164 I note that whilst Leann and Ms Stuart gave evidence as to the student abuse, neither gave evidence as to the plaintiff reporting the Frith abuse to them. I also draw no inference from this.

165 Mr Walker was not called to give evidence. As a person whom the plaintiff claimed he had mentioned the Frith abuse to, within approximately one year of the incident occurring, Mr Walker could have been expected to provide a contemporaneous account of what the plaintiff told him at that time. Even if such an account lacked any substantive detail, and was merely evidence of the plaintiff telling Mr Walker that something 'suss' or 'weird' had occurred with Br Frith, the proximity in time of such a report to the alleged abuse would be such that it had the potential to be probative, of whether or not the Frith abuse occurred. The plaintiff did not adduce any evidence to explain why Mr Walker was not called to give evidence. Whilst I am not permitted to speculate as to what Mr Walker would have said, I can and do infer from this that if Mr Walker had been called, his evidence would not have assisted the plaintiff.[20]

166 Br Frith vehemently denied the Frith abuse. Just as I considered the plaintiff to be credible in his account of the Frith abuse, I considered Br Frith to be genuinely incensed at the allegations made against him, and credible in his denial of what the plaintiff alleged.

167 It is difficult to reconcile the two competing accounts. Save for my reservation regarding the use of the stethoscope, it is effectively word against word, with both accounts appearing credible.

168 In closing submissions, the plaintiff referred to Br Frith's personal circumstances, and in particular Br Frith's evidence that he had suffered a breakdown, as well as anxiety and panic attacks whilst at the College. It was put that this offered an explanation for his behaviour. Br Frith said that this occurred because he worked long hours, and was on call continuously, including weekends. Save to note there was no evidence as to whether the breakdown, as described by Br Frith, was proximate to the time of the alleged Frith abuse, I am not persuaded that Br Frith's mental health issues, and other circumstances, make it more likely that the Frith abuse occurred.

169 In the plaintiff's closing submissions, reference was made to Br Frith's acknowledgment in cross-examination that some students from the College and another school had made complaints about him. There was no evidence as to the identity of the complainants.[21] It is impermissible for me to speculate as to what these complaints may have been about.

170 Br Frith acknowledged that he was aware Mr Pearce and another student at the College had both brought civil claims against the defendant alleging that he had sexually abused them, and that they had been paid compensation by the defendant.[22] However, without evidence before me as to this other student's allegations, and without it forming part of the tendency evidence, I have had no regard to this evidence in determining whether or not the Frith abuse occurred.

171 The plaintiff also sought to rely upon Br Frith's acknowledgement that he had faced 23 charges of unlawful sexual contact with a child, in relation to seven complainants. I note that, in relation to these charges, two complainants had identified Br Frith as having strapped them in the laundry, which was accepted as a case of mistaken identity. Three other complainants were found to have colluded in their evidence. Ultimately the trial judge directed the jury to acquit Br Frith in relation to 10 of the 23 charges. The jury delivered not guilty verdicts in relation to nine of the remaining charges, and were hung in respect of three, which were re-tried. At the re-trial, a jury acquitted Br Frith of one charge, and the remaining two were permanently stayed.

172 The plaintiff submitted that there was no plausible explanation as to why multiple former students, across at least 15 years, and in different states and at different schools, would all falsely accuse Br Frith of sexual abuse. Once again, this is an attempt to use evidence which I refused to admit as tendency evidence in an impermissible fashion and I have had no regard to this evidence in determining whether or not the Frith abuse occurred.

173 The plaintiff submitted that parts of Br Frith's evidence adversely reflected on his own credit. For example, it was put that it was unlikely that nurses would have complained about boys being taken to the hospital without being washed first. I note that Br Frith was not challenged on this aspect of his evidence.

174 It was contended that Br Frith's evidence that he named his strap 'Fred' demonstrated dubious judgement. I do not follow, nor do I accept this contention. It was also said that Br Frith's willingness to treat most medical conditions, and to only call for medical help when the boys were unconscious, or in a lot of pain, reflected on his credit. This included Br Frith's admission that he would examine a student's genitals if they suffered a sporting injury to that area. I am not persuaded that Br Frith's confidence in caring for children in the infirmary, and examining a body part complained of, makes it more likely that he placed his finger in the plaintiff's anus following a complaint of a sore throat.

175 The only tendency evidence I permitted to be admitted in respect of the Frith abuse was from Mr Ross and Mr Pearce. In Clancy v Plaintiffs A, B,C and D; Bird v Plaintiffs A, B, C and D,[23] the New South Wales Court of Appeal outlined the use to be made of tendency evidence adduced in a civil trial:

Although, for the purposes of admissibility and determination as to whether the tendency evidence relied upon is of significant probative value within the meaning of s 97 of the Evidence Act, it is to be assumed that the evidence will be accepted as correct, that does not mean that, for the purposes of its ultimate use by the trier of fact, the evidence or aspects of the evidence adduced as tendency evidence must be accepted. Acceptance of the tendency evidence relied upon by the Plaintiffs needed to have regard to Briginshaw principles because of the nature of what was being claimed in that evidence. If the evidence should not have been accepted taking into account Briginshaw, then it could not be used to support the tendency asserted either by itself or in conjunction with other evidence.[24]

176 In closing oral submissions, the plaintiff's counsel accepted that the principles in Clancy were applicable to my assessment of the evidence of Mr Ross and Mr Pearce.

177 Mr Ross gave credible evidence of being abused by Br Frith. However, I also considered Br Frith's denial of this to be credible. Given the gravity of Mr Ross' allegations, on the evidence before me, I am not satisfied to the requisite standard that Br Frith sexually abused Mr Ross.

178 I reach the same conclusion in relation to Mr Pearce's allegations. Submissions were made by the defendant as to Mr Pearce's unreliability as a witness. However, in light of Br Frith's denial which I found to be credible, I do not consider it necessary to engage with these submissions. On the evidence before me, I am not satisfied to the requisite standard that Br Frith sexually abused Mr Pearce.

179 Taking all of those matters into account, and given the gravity of what is alleged by the plaintiff, on the evidence before me, I am not actually persuaded that the Frith abuse occurred.

180 For those reasons, I dismiss the plaintiff's claim in relation to the Frith abuse.

181 The plaintiff gave evidence that on one occasion in either Form 2 or Form 3, he was smoking with other students behind the College oval when they were 'caught' by Mr Mamo. The plaintiff said that Mr Mamo gave the students a choice as to their punishment - they could either receive an official strike against their record or opt to 'get the strap' off him, which would not be recorded. The plaintiff said that students who received two strikes on their record were suspended, which was embarrassing for their family. For that reason, each of the students chose the strap.

182 The plaintiff said that Mr Mamo did not strap the students immediately, but instead arranged for them to attend upon him in the laundry at a later time. The plaintiff believed that he attended the laundry on the same night, and on his own.

183 The plaintiff said that when he arrived at the laundry, he went into a small room, where Mr Mamo told him that he could receive six straps with his pants on, or two on his naked buttocks. The plaintiff elected for two straps on his naked buttocks, as he thought 'two sound[ed] better than six'.

184 The plaintiff gave evidence that he took his pants and underpants off and was asked by Mr Mamo to bend over a box. Mr Mamo then strapped the plaintiff once, and paused for 'maybe three to five seconds' before he strapped the plaintiff again. The plaintiff described the hits as hard and said that they left a mark. The plaintiff said that once he had received his punishment, he pulled up his pants and left the room.

185 The plaintiff did not turn around to look at Mr Mamo while he was being strapped. However, the plaintiff said based upon rumours from other students, he believed that Mr Mamo was either masturbating during the pause between the administration of the first and second straps, or that Mr Mamo had placed the mental image in a 'spank bank.'[25] The plaintiff described feeling terrible and very vulnerable, and said that he felt 'afraid and even some sort of shame' as 'everything's exposed'.

186 The plaintiff did not report the Mamo abuse to anyone at the College. He said that this was because there were a lot of 'beatings' at the College, and he felt he would not be believed, and possibly receive further punishment if he reported it.

187 The plaintiff could not recall whether Mr Mamo had called him to the laundry over the College's public announcement system (the PA), or had told him the time he was to attend the laundry when he was caught smoking. The plaintiff said he heard Mr Mamo call students over the PA to report to the laundry area 'quite a bit'. The plaintiff said that when he heard these announcements in the locker room, 'all the kids would go, "Ooh, you're going off to get the cuts" ...'.[26]

188 Mr Mamo pleaded guilty in 2013 and 2015 to a number of charges laid against him in two separate criminal proceedings concerning his sexual abuse of students at the College between 1973 and 1981. The sentencing remarks from both proceedings were admitted as tendency evidence,[27] and record the following instances of abuse:

(a) Ten separate charges concerning ten students. These charges each involved Mr Mamo having directed students to the laundry room for punishment. When in the laundry, Mr Mamo directed the students to lower their shorts and underpants and bend over a tea chest. Mr Mamo then strapped the students across their bare buttocks.

(b) An incident which occurred between February and December 1979 where Mr Mamo put his hands down the pants of a student, and fondled his penis and testicles.

(c) An incident which occurred between February and December 1980 where Mr Mamo approached a student from behind, pinned him in a chair and started massaging his chest in a seductive manner.

(d) An incident which occurred between February and December 1980 where Mr Mamo caught a student smoking and ordered him to the laundry for punishment. Mr Mamo ordered the student to remove his pants and bend over a tea chest. Mr Mamo then fondled and poked the student's buttocks and anus with the strap, before hitting him with the strap.

(e) An incident which also occurred between February and December 1980 where Mr Mamo ordered a student to the laundry room for punishment. Mr Mamo ordered the student to take down his pants and lean over a tea chest. Mr Mamo then fondled the student's penis and made the student stand against the wall with his hands in the air. Mr Mamo proceeded to fondle the student's penis using both hands.

(f) Two incidents involving a student referred to as JK. Mr Mamo came into the locker room and saw JK doing up his fly and asked him to attend the laundry. Mr Mamo then questioned JK as to whether he and the other boys had been mutually masturbating. Mr Mamo grabbed JK's penis and testicles and held them firmly for around 20 to 30 seconds. On another occasion, while on school camp, Mr Mamo insisted that he see JK's penis, and grabbed his penis and testicles, again holding them for around 20 to 30 seconds.

(g) Multiple incidents involving a student referred to as PE, a boarder at the College. When PE was caught smoking by Mr Mamo, he was given two options: to either attend the laundry to be punished by Mr Mamo, or be sent to the rector for punishment. PE elected to go to the laundry and was told by Mr Mamo to drop his pants and underwear and not look around. Mr Mamo then strapped PE either two or three times on the bare buttocks. A similar incident with PE occurred again around April 1977, however on that occasion, Mr Mamo also prodded PE's testicles with a cane. On another occasion in 1977, PE was taken to the laundry by Mr Mamo where he was again struck on the bare buttocks. On this occasion, PE turned around and saw that Mr Mamo had his hand down his own pants.

(h) An incident involving a student referred to as SR. Mr Mamo caught SR smoking and took him to the laundry to be strapped on the bare buttocks six times. When SR was pulling up his pants, a packet of cigarettes fell out of his pocket. Mr Mamo told SR that if he pulled his pants down again and had six more straps, he could have his cigarettes back, which he did.

(i) An incident involving a student referred to as LD. Mr Mamo wrestled LD to the ground and grabbed his testicles. On another occasion, Mr Mamo took LD to the laundry and told him to bend over the box. LD stood there with his buttocks exposed but was later told by Mr Mamo to get up and walk out without looking back.

(j) An incident involving a student referred to as PS, who was caught smoking by Mr Mamo. PS was given the option of three straps on the bare buttocks or six straps over the trousers. PS chose three straps and was told to lean over an object. Mr Mamo ran his finger over PS's bare buttocks and asked him where he wanted to be strapped. The remarks note that this was not the only occasion PS was strapped by Mr Mamo in this way.

189 The plaintiff also relied upon tendency evidence concerning the Mamo abuse from Mr Ross and Mr Pearce.

190 Mr Ross gave evidence that, while at the College, he only had dealings with Mr Mamo when he was caught smoking. Mr Ross gave evidence that when this occurred, Mr Mamo would take him down to a room in the basement where the linen was stored and tell him to pull down his pants and underpants. Mr Ross said that Mr Mamo would then strap his bare buttocks six times. Mr Ross gave evidence that he was strapped by Mr Mamo on around ten separate occasions while he was in Forms 4 and 5, and that Mr Mamo would fondle himself and had an erection whilst strapping him. On one occasion, Mr Ross said that Mr Mamo also touched Mr Ross' bare buttocks and testicles.

191 Mr Ross said that he never told anyone about what had occurred with Mr Mamo until he reported it to the police in 2015.

192 Mr Pearce gave evidence of having been punished by Mr Mamo on four separate occasions in 1977, when he was in Form 1 at the College. Mr Pearce said that on each occasion he would be ordered to the laundry and Mr Mamo would provide him with an option: he could either go to the rector to be dealt a punishment, or 'cop the punishment there and then' from Mr Mamo directly.

193 Mr Pearce gave evidence that his first encounter with Mr Mamo occurred one evening after dinner. Mr Pearce was with a group of students who were smoking, when they were caught by Mr Mamo. Mr Pearce said although he himself was not smoking, Mr Mamo instructed him and one other student to accompany him back to the laundry. The other student was instructed to pull down his pants and underwear, and was strapped from behind by Mr Mamo. Mr Mamo then instructed Mr Pearce to do the same, and strapped him six times.

194 Mr Pearce said on the second occasion, when Mr Mamo gave him a choice of punishment, he elected to be punished by the rector, as he recalled how much pain he had endured on the previous occasion. Mr Pearce said that Mr Mamo did not grant this request, and instead turned off the lights, closed the door and left Mr Pearce in the linen room for 'probably an hour'. Upon Mr Mamo's return, Mr Pearce was again given the option of the strap or going to the rector, and elected to receive the strap. Mr Mamo made him remove his pants and underwear and strapped him six times. Mr Pearce said that, between each strap, Mr Mamo would 'touch your behind and in between your legs', and that he ordered Mr Pearce not to turn around.

195 Mr Pearce said that on the third occasion, he turned around and saw Mr Mamo standing directly behind him, a little bit more than 3 metres away, with his back flush against some shelves.

196 Mr Pearce said that on the fourth occasion, Mr Pearce chose to go to the rector for punishment instead of being strapped by Mr Mamo. Mr Pearce said that Mr Mamo accompanied him to the rector's residence and remained outside the door while Mr Pearce spoke with the rector. Mr Pearce said that the rector punished him by making him pick up rubbish on a Saturday morning, instead of playing cricket. Mr Pearce said that while he was completing his punishment, Mr Mamo followed him around and taunted him saying 'you should've just taken the six in the basement and you would've been playing cricket'.

197 Mr Pearce did not tell the rector about Mr Mamo's behaviour or the nature of the punishment he had previously received. Mr Pearce said that he did not think that he would be believed, and that he was 'a bit ashamed and felt weak'.

198 Mr Pearce said that in 1977, Mr Mamo was very keen to start a hockey tournament with other schools. Mr Pearce used this to leverage a deal with Mr Mamo where Mr Mamo would refrain from punishing Mr Pearce, if Mr Pearce played hockey and brought his friends along to participate. Mr Pearce said that abuse by Mr Mamo stopped as a direct result of this arrangement.

199 Mr Pearce said that from time to time, but not often, students would be summonsed to Mr Mamo via the PA. Mr Pearce said that he could recall a time when a student was called over the PA to attend Mr Mamo whilst the students were all in the study rooms. Mr Pearce said that:

...the immediate response obviously inside the study room with everyone knowing that - that - Mamo's MO was to be concerned for that child. I remember that. And, ah, I think we later asked him, 'What was - what happened? What was going on'. And he said it was all - a matter - an - an issue with the laundry because Mamo was - used to do all the laundry. You'd have, like, um - ah, chutes where you'd throw your clothes down, and then they'd all be collated and then washed. And you had name tags on it, and he'd fold them all up and he'd put them in these, like, bags. And there was a problem, he said, with - and that was a believable response.

200 Fr Fyfe and Br Frith both gave evidence which is also relevant to my determination of whether the Mamo abuse occurred.

201 Fr Fyfe said that in approximately September or October 1977, a group of three or four staff members (including Fr O'Bryan and Br Frith) reported to him that Mr Mamo had strapped students on the bare buttocks in the basement. Fr Fyfe said he sent Mr Mamo away from the College on the same afternoon this was reported to him. Fr Fyfe said that at some stage after he left the College, he understood that Mr Mamo was subsequently permitted to return to the College.

202 Br Frith gave evidence that, in around 1980, he was informed by some junior boarders at the College that Mr Mamo was making students attend the laundry to be strapped on the bare buttocks as a punishment for being caught smoking. When he was made aware of this, Br Frith said he was 'really annoyed about it' and was of the view that it was 'not on'.

203 Br Frith used a tape recorder to record students telling him of their experiences with Mr Mamo and then went to Fr O'Bryan, the senior discipline master, to raise his concerns. Despite being told by Fr O'Bryan, 'It's alright. I'm dealing with things like that. Don't worry about it,' Br Frith was unsatisfied with the handling of the students' complaints and so went 'over their heads' and sent the tapes of the complainants' evidence to Father Edmunson at the head house in Sydney.

204 When asked in cross-examination, Br Frith said that he could not recall Mr Mamo summoning boys to the laundry over the PA. Fr Fyfe also said could not recall hearing Mr Mamo making any announcements on the PA.

205 During the course of the trial, I admitted into evidence parts of a document titled 'Professional Standards Resource Group, Victoria Assessor's Record Sheet', which contained representations of Mr Mamo made in an interview on 14 January 2004 (the Mamo hearsay document).[28] The document was authored by assessors Terry Mulgrew and John Brennan, and concerned allegations Mr Mamo had abused students at the College in 1977.

206 The Mamo hearsay document noted the following representations made by Mr Mamo during this interview:

(a) he had been a staff member of the College for eight years from 1971 until 1978;

(b) when he caught students smoking, he gave them the option of being sent to the rector or dropping their pants to receive a strap on the bare buttocks;

(c) he was not given any training on how to dispense discipline, and this was a punishment he had thought up himself;

(d) this was his standard practice, and he never received any backlash; and

(e) he did not know if anyone knew about his practice of punishing children in this manner, but he thought someone would have known.

207 The plaintiff's account of the Mamo abuse was credible.

208 I am satisfied that the documentary tendency evidence (based upon admitted conduct), together with the oral evidence of Mr Ross and Mr Pearce, clearly establishes that Mr Mamo had the following tendencies, as asserted by the plaintiff:

(a) a particular state of mind, namely a sexual interest in children and a willingness to act on that interest;

(b) a tendency to act in a particular way, namely, to touch children in a sexual manner and to sexually abuse children; and

(c) a particular state of mind, namely, a willingness to use his role as brother of the defendant's order, to exploit the vulnerability of children and the trust they had in him because of that role, and a willingness to act on the opportunities that vulnerability and trust created to sexually abuse children.

209 I consider the tendencies established through such evidence, (even if limited to the tendency evidence in paragraph [188(a)] above) has significant probative value, and increases the likelihood of the Mamo abuse having occurred.

210 Having considered the whole of the evidence relevant to this incident, the plaintiff has satisfied me to the requisite standard that the Mamo abuse occurred.

211 The plaintiff alleges that the defendant is directly liable in negligence for the student abuse and the Mamo abuse, on the basis that, through its acts and/or omissions, it failed to take reasonable care for the plaintiff.

212 Whether the defendant is negligent involves a determination of whether a reasonable person in the position of the defendant knew or ought to have known of the reasonably foreseeable risk of injury to the plaintiff, or a class of persons, including the plaintiff.[29]

213 Section 48 of the Wrongs Act 1958 (Vic) provides as follows:

(1) A person is not negligent in failing to take precautions against a risk of harm unless -

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and

(b) the risk was not insignificant; and

(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.

(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) -

(a) the probability that the harm would occur if care were not taken;

(b) the likely seriousness of the harm;

(c) the burden of taking precautions to avoid the risk of harm;

(d) the social utility of the activity that creates the risk of harm.

(3) For the purposes of subsection (1)(b) -

(a) insignificant risks include, but are not limited to, risks that are far-fetched or fanciful; and

(b) risks that are not insignificant are all risks other than insignificant risks and include, but are not limited to, significant risks.

214 In Erickson v Bagley,[30] the Court of Appeal held that, in undertaking the required analysis pursuant to s 48:

... the first step in the analysis requires the appropriate identification of the risk against which it is alleged that a particular defendant failed to exercise reasonable care. Commonly, the proper identification of the risk can be difficult, if not problematic. Necessarily, the risk must be defined taking into account the particular harm that materialised, and the circumstances in which that harm occurred. However, the risk, referred to in s 48, is not to be confined to the precise set of circumstances in which the plaintiff was injured. It is well established that, in order that a defendant be held to be negligent, it is not necessary that that defendant should have reasonably foreseen that the particular circumstances, in which the plaintiff was injured, might occur. Rather, what must be reasonably foreseeable is the nature of the particular harm that ensued, or, more relevantly, the nature of the circumstances in which that harm was incurred.[31]

For the purpose of each of the sub-paragraphs of s 48(1), the Court must consider the question of the foreseeability of the risk, its probability, and the reasonableness of precautions to protect against it, from the viewpoint of the defendant in the circumstances that were known, or ought to have been known, to the defendant. Such an analysis must be prospective, and not retrospective.[32]

216 The Court additionally observed that the content of the standard of care, should be resolved by an exercise of common sense, taking into account the judge (or jury's) 'worldly experience'.[33]

217 In Roman Catholic Church Trustees for the Diocese of Canberra and Goulburn v Hadba,[34] the High Court considered an appeal concerning a child who was injured at school when she was pulled off a flying fox in the school playground during recess. Two teachers were rostered on duty in the part of the playground in which the flying fox had been erected. However, it was necessary for the teacher supervising the flying fox to turn away from time to time to survey other parts of the playground area, which had occurred at the time the plaintiff was injured.

218 In its majority judgment, the Court held the defendant had not been negligent, as the plaintiff had failed to establish that there was a system of supervision, alternative to that used by the school at the time of the accident, which was free of the risk complained of, and available in a practical sense.[35] With regard to the plaintiff's suggestion that a reasonable system of supervision would have included constant monitoring of the flying fox, the Court stated:

... The number of staff required, the financial and other costs of providing them and the narrowly specialised responsibility required of them are going well beyond the bounds of reasonableness.

Nor is it reasonable to have a system in which children are observed during particular activities for every single moment of time - it is damaging to teacher-pupil relationships by removing even the slightest element of trust; it is likely to retard the development of responsibility in children, and it is likely to call for a great increase in the number of supervising teachers and in the costs of providing them.[36]

219 The Court endorsed the dissenting opinion expressed in the Court of Appeal judgment that the imposition of such a system would be:

... a requirement of unrealistic and impractical perfection. It is born of hindsight. It offends the standard of reasonableness. It amounts to the imposition of the responsibility of an insurer ...[37]

220 As observed in Hadba and numerous other High Court decisions,[38] the reasonableness of a party's response to a foreseeable risk of injury must not be judged retrospectively with a view as to what would have avoided the injury. Contemporary standards as to what might now be considered a reasonable response to a risk, are irrelevant to an assessment of reasonableness concerning events which occurred in the mid 1970s. The relevant question I must answer is what was reasonable at the relevant time, based upon what the defendant knew or ought to have known.

221 In the event that breach of duty is established, it is necessary for the plaintiff to satisfy the Court that there is a causal connection between the defendant's breach and the plaintiff's claimed injuries. That is, the negligent act or omission must have caused or materially contributed to those injuries.

222 In Wodonga Regional Health Service v Hopgood,[39] Maxwell P explained that, when a plaintiff alleges a negligent omission by a defendant:

[T]he causal link between the breach of duty and the claimed damage can only be established by means of a counterfactual hypothesis. That is, the plaintiff must propound an alternative state of facts, premised upon the defendant's having exercised reasonable care and, specifically, upon there having been no such omission.[40]

223 In Hadba, the majority observed that even if there had been constant supervision of the flying fox, it would be most unlikely that a teacher, watching the equipment uninterrupted, would have been able to prevent the plaintiff's fall.[41]

Whether the defendant is liable for the student abuse?

224 The plaintiff submitted that the defendant knew there was a not insignificant risk he would be abused by other students at the College. The plaintiff relied upon Fr Fyfe's evidence that he was aware of the risk of bullying amongst students, as well as two incidents of sexual misbehaviour between students prior to the plaintiff's enrolment.

225 The plaintiff submitted that the defendant knew of the risk the five students posed to other students, given the poor behaviour identified in the five students' school reports. In the alternative, the plaintiff submitted that the defendant ought to have known of the risk which the five students posed, given the treatment which they had subjected other students to, including him and Mr Neeson. The plaintiff submitted that the five students' behaviour not being detected by College staff evidenced a lax system of supervision, and that it would have been aware of the risk the five students posed if adequate measures had been in place. The plaintiff also alleged that the defendant ought to have known there was a not insignificant risk that the five students would abuse other students at the College, as it was aware of the serious disadvantage the five students faced due to their backgrounds.

226 The plaintiff alleged that the defendant breached its duty to take reasonable care to minimise the risk of him being abused by the five students. The plaintiff alleged that the defendant:

(a) had no policies to prevent or detect bullying and sexual abuse between students, despite knowing that this had previously occurred (and was sufficiently grave to have warranted expulsion) and was at risk of occurring again;

(b) failed to train staff regarding the risk of sexual abuse between students, and the need to guard against it and report it if observed;

(c) failed to inform students that sexual abuse was unacceptable and should be reported, and that it would be met with expulsion;

(d) allowed a culture of severe violence at the College which discouraged students from reporting their abuse;

(e) knew that the five students faced serious disadvantage, including behavioural and educational challenges, and were at risk of bullying other students, including the plaintiff. Despite such knowledge, the defendant placed the five students in the boarding house with younger and smaller boys, including the plaintiff;

(f) knew that the five students were behaving poorly and aggressively towards other students, but took no steps to protect boys in the boarding house including the plaintiff; and

(g) failed to detect and prevent the widespread sexual abuse, sexual bullying, and violence by the five students.

227 The plaintiff relied upon Fr Fyfe's concession that he was not aware of students being given information about sexual abuse. In addition, he relied upon Fr Fyfe's admission there was no mandatory obligation for staff to report suspicions of child sexual abuse, and that staff were not given guidance in systems of managing complaints of child sexual abuse. Reference was also made to Fr Fyfe's evidence that staff were expected to use their ingenuity as to how to manage such abuse, and that a vigilant house master should have prevented sexual assaults between students. The plaintiff submitted that Fr Fyfe's evidence supported his claim that the defendant failed to take reasonable steps to minimise the risk of sexual abuse between students.

228 In support of the plaintiff's allegation that there was a culture of severe violence in the College which discouraged students from reporting their abuse, the plaintiff relied upon the reference to the 'reign of terror' in the 1976 College annual, together with his own evidence, and that of Mr Mahar, Mr Schack, Mr Guy, Mr Neeson, Mr Ross, and Mr Pearce. The plaintiff claimed that the violent actions by teachers in administering corporal punishment created an environment in which students did not feel confident to report bullying or abuse. As a consequence of this, the plaintiff submitted that the five students were able to run 'riot unsupervised' and continue their sexualised bullying without detection, which ultimately led to the gym incident.

229 The plaintiff relied upon the contemporaneous school reports of the five students to support his claim that the defendant knew these students faced serious disadvantage, and that they were behaving poorly and aggressively towards others. It was also emphasised that Fr Fyfe conceded that school reports did not fully detail all of a student's misdemeanours, in support of the proposition that the observed behaviour of the students was worse than that recorded in their reports. Further, the plaintiff relied upon Fr Fyfe's acknowledgement that indigenous students often faced difficulties settling in to College life, which in his submission demonstrated that the five students required additional supervision to guard against the risk that they might bully, or be bullied by, others.

230 The plaintiff also sought to rely on an article entitled 'Contemporary Boarding Schools' written by Fr Paul Brooks, a member of the defendants' order, published in the 1976 Education Journal for the defendant's schools, Perspective. In the article, Fr Brooks wrote: 'A problem ... is fagging, using the juniors as personal servants ... I readily admit that it could occur; but watchful care should prevent such problems'. The plaintiff submitted this article evidenced the defendant's awareness of the risk of bullying in boarding houses at the time of the student abuse.

231 The defendant denied that it was liable in negligence for the student abuse.

232 The defendant characterised the risk of harm which it was to have taken precautions against under s 48 of the Wrongs Act, as the risk of sexual abuse to the plaintiff by the five students. The defendant denied that this risk was foreseeable. Whilst the defendant acknowledged that one of the five students' school reports referred to that student having a tendency to bully others, it submitted that this was insufficient to give rise to a foreseeable risk that the five students would sexually assault a fellow student.

233 If, contrary to its submissions, I identified the relevant risk as being the risk of sexual abuse by students at the College (rather than just the five students), the defendant submitted that the plaintiff had failed to identify what reasonable steps ought to have been taken in response to this risk. No evidence was adduced by the plaintiff as to the types of policies which he asserted should have been in place at the College to detect and prevent bullying and sexual abuse perpetrated by students against one another. In response to the submission that the defendant's placement of the five students in the boarding house with the plaintiff constituted a breach of its duty, it was put that the plaintiff had offered no alternative as to where the five students should have been housed.

234 In respect of the plaintiff's allegations as to the serious disadvantage faced by the five students, the defendant relied upon the evidence of Fr Fyfe, which was to the effect that students from the Northern Territories were only placed at the College after being assessed as having the capacity for attending a boarding school. In addition, there was evidence that such students were given assistance to help them settle in, including academic assistance in the special services centre.

235 In response to the plaintiff's allegation that there was a culture of severe violence at the College, the defendant acknowledged that corporal punishment was administered within the College, but denied that it was excessive, and said that by 1975, it was on the decline. However, in the event I did find there was excessive use of corporal punishment at the College, the defendant submitted it was unclear how this was causative of the student abuse.

236 In order to determine whether the defendant breached its duty of care to the plaintiff in respect of the student abuse, it is first necessary to identify the relevant risk of injury against which the defendant was alleged to have failed to take adequate steps to protect the plaintiff. The parties did not agree on the relevant risk. The plaintiff submitted it was the risk of abuse to the plaintiff by other students, whilst the defendant submitted it was the risk of sexual abuse to the plaintiff by the five students.

237 In characterising the risk, it is permissible to take into account the harm that occurred, and the circumstances in which it occurred, whilst not confining the risk to the specific circumstances which eventuated.[42] The student abuse included allegations of sexualised bullying, and the gym incident, which the plaintiff's counsel repeatedly referred to as a gang rape. The plaintiff's claim for damages was predominantly focused on these allegations, with little reference to the consequences of the physical assault against him by Student 3. In determining whether the defendant was negligent for the student abuse, I am satisfied that the relevant risk, was one of sexual abuse to the plaintiff, by boarders of the College, including the five students.

238 There is no evidence before me that the defendant had actual knowledge of any sexualised bullying perpetrated by the five students prior to the gym incident. There is no evidence that such abuse was observed by a staff member at the College. Prior to the plaintiff being struck by Student 3, there is no evidence of any staff member being made aware of a student suffering a physical injury at the hands of the five students. Mr Neeson's evidence was that, whilst he was subjected to sexualised bullying from three of the five students, this was not observed by anyone else.

239 Fr Fyfe said that he was not made aware of any concern with the behaviour of the five students before he commenced his sabbatical in May 1975. He was not aware of the type of behaviour which was alleged by the plaintiff and Mr Neeson. I considered Fr Fyfe a credible and reliable witness, and accept his evidence of this.

240 None of the former College students gave evidence that they had reported bullying, including sexualised bullying, by the five students to College staff. The plaintiff submitted that this was due to a culture of severe violence at the College, which discouraged him and others from reporting such conduct. I do not accept this submission. Much of the evidence which the plaintiff relied upon in support of his claim of a violent culture, related to the treatment of students at the College prior to 1975. The evidence of Mr Guy and Mr Pearce was consistent with there being less punishment in classrooms from 1975, as girls were present during school hours. As was legally permitted at the time, discipline of students included the administration of corporal punishment. The evidence was that a student would be given a maximum of six 'cuts'.

241 The reference in the 1976 College annual to the 'reign of terror' being on the decline, is an observation by one the defendant's religious staff members, as to how, by then, things had changed in respect of discipline at the College, with students no longer in 'fear and trembling'. I am not satisfied that this change occurred only in 1976. The evidence of Mr Guy supports a finding by me that in respect of discipline, it was a different world at the College in 1975. I further note that Fr Fyfe considered the reference to a 'reign of terror' had been made 'with tongue in cheek'. For those reasons, I am not satisfied the reference in the 1976 College annual, together with the other evidence pertaining to discipline at the College, supports a finding by me that there was a culture of severe violence which discouraged reporting of misconduct.

242 On the evidence before me, I am satisfied that in 1975, students at the College were aware that if they misbehaved, they could expect to be punished for it, and that this was likely to be in the form of strapping. Even accepting that at times this discipline was perceived by the students to be for trivial things (such as talking in study time), I am not satisfied that the nature and extent of discipline was such that students feared reporting abuse to all staff members at the College.

243 I am satisfied that reluctance amongst students to report misbehaviour by other students to staff members was not due to a culture of violence, but rather a culture of 'no dobbing' at the College. The plaintiff's evidence on this was clear, and it accords with common experience, which is that 'dobbing' by secondary students on their peers to teachers, is generally frowned upon within the cohort. This is in part due to concerns of reputational damage of being known as a 'dobber', and a not unreasonable fear of reprisal being administered by the offending student or their peers, in the absence of teachers.

244 In the event I was to find the defendant did not have actual knowledge of the five students' sexualised bullying behaviour, the plaintiff urged me to find it ought to have had this knowledge, were it not for its lax supervision of the students. I do not accept this submission either. Whilst the staff supervised students at school and during study time, constant supervision was not a standard which the defendant could reasonably have been expected to implement, especially not when the students were in the showers and change areas. Nor was constant supervision practicable in all corners of the boarding house when students had free time - whether they were moving about between the end of study time, dinner, and/or changing into pyjamas, through until when 'lights out' was called.

245 The plaintiff asserted that the five students 'ran riot unsupervised'. I do not accept this as a fair description of the state of things in the boarding house prior to the gym incident. As I have already observed, I am satisfied the five students' sexualised bullying and assaults on students (prior to the plaintiff being assaulted by Student 3) were perpetrated in the absence of staff members, and without their knowledge.

246 As the gym incident occurred in the first half of the school year, only the term 1, Form 1 reports of the five students are relevant to my assessment of whether the defendant knew or ought to have known these students posed a risk of sexual abuse to the plaintiff. I do not consider these reports indicated anything sufficiently concerning so as to give rise to a foreseeable risk of sexual abuse by these students. Specifically, I do not accept that the academic difficulties these students were having gave rise to such a risk, nor the reference to some of those students being dishonest, disruptive, and/or aggressive. Further, I note the reference to Student 1 having a tendency to bully others was in the semester 2, Form 1 report and therefore after the student abuse had occurred.

247 The plaintiff's reliance on Fr Fyfe's concession that not all concerning behaviour was noted in school reports, goes nowhere in the absence of evidence that staff actually knew that one or more of the five students was bullying others in a sexualised way.

248 I reject the plaintiff's submission that by virtue of the five students' backgrounds, the defendant ought to have known there was a risk that they would sexually abuse the plaintiff. No evidence was led as to the specifics of any of the five students' backgrounds prior to their attending the College. There appeared to be a significant racial undertone to this submission and I consider it to be without foundation.

249 Although I am not satisfied the defendant knew or ought to have known the five students posed a specific risk of sexual abuse to the plaintiff, I am satisfied that the defendant knew there was a risk of sexual abuse between students at the College more generally. In 1975, the College accommodated 270 pre-pubescent and pubescent male students in the boarding house. The students were of varying ages, and various sizes. The students showered and dressed together. They slept in large dormitories, separated by year levels. High school boys are known to sometimes engage in tomfoolery and skylarking, and at times, may be physically aggressive to each other. Fr Fyfe gave evidence that he was aware of bullying amongst students, as well as two prior instances of sexual misbehaviour by students.

250 I am satisfied that the boarding house provided students with an opportunity to engage in misconduct, including sexual abuse of other students, in the absence of College staff. When considered in conjunction with Fr Fyfe's evidence, I am satisfied there was a foreseeable and not insignificant risk that the plaintiff would be sexually abused by one or more of the boarders at the College, which included the five students.

251 The question which then follows, is what precautions a reasonable person in the defendant's position would have taken against such a risk. This involves consideration of the magnitude of the risk and degree of probability of it occurring, along with the expense, difficulty and inconvenience of taking preventative action, and any other conflicting responsibilities the defendant may have had. The reasonableness of the response to the risk must take into account the specific circumstances of the College at the time of the student abuse, including what the defendant knew or ought to have known in respect of the five students. The assessment must be made as at the time of the abuse, and not with the prism of hindsight.[43] What might be considered a reasonable response now, in the context of our contemporary legal regulatory framework for preventing, detecting, and responding to instances of child sexual abuse, is not the standard upon which the defendant's alleged acts or omissions are to be judged.

252 As indicated above, I am not satisfied that the defendant knew or ought to have known that the five students posed a specific foreseeable risk to the plaintiff. Instead I am satisfied that the way of life in the boarding house, by its nature, brought with it a not insignificant risk of abuse, including sexual abuse, amongst boarders which the defendant was aware of. Notwithstanding that this was a not insignificant risk, I consider the probability of it materialising to have been relatively low, noting Fr Fyfe's evidence that he only knew of two prior incidents of sexual misbehaviour between students.

253 Fr Fyfe's evidence that a 'vigilant' house master should have prevented a group of boys 'bashing' and sexual assaulting other boys, was a concession made with the benefit of hindsight in the context of this proceeding, and by a person who I accept was motivated to provide a home away from home, for the students at the College. This evidence is not a basis for me to find that the defendant breached its duty of care to the plaintiff as a result of insufficient vigilance. A standard of reasonable care is required, not perfection.

254 I am satisfied that students were supervised throughout the course of the school day, and at other times in the boarding house, but not all of the time. The students were given leisure time, and were permitted to move around the boarding house, and shower and change, without always being under the supervision of staff. The attendance by Br Mulverhill soon after the plaintiff was assaulted by Student 3, was an example of the close proximity and availability of staff to the boarders, even when students were sleeping. It was not reasonable however, to expect the defendant to have ensured constant supervision of students at all times, and in all corners of the boarding house.

255 The plaintiff alleged that the defendant breached its duty by having no policies to prevent or detect bullying or sexual assault between students. The plaintiff did not tender an expert report as to whether any such policies existed in schools in 1975, nor what the contents of such policies would reasonably have been expected to be in place in a boarding school in 1975.

256 The plaintiff alleged that the defendant breached its duty by not telling staff that sexual abuse between students had to be guarded against. In addition, he alleged that the defendant was negligent for not telling students that sexual abuse was unacceptable. I am not satisfied that this was a reasonable expectation of a defendant operating a school in 1975. Even in the absence of express education on this, I am satisfied that at the relevant time, both staff and students knew sexual abuse was unacceptable. The students of the College were well-aware that they would be punished if they misbehaved. I am not satisfied that in 1975 the defendant breached its duty to the plaintiff by not expressly advising staff to watch out for sexual abuse between students, or failing to inform students that they would be expelled for this conduct.

257 The plaintiff also alleged that the defendant was negligent for not telling staff and students to report sexual abuse between students. As is clear from Fr Fyfe's evidence, there had been prior reporting of sexual misbehaviour between students. I am satisfied that students were aware that they could report student misbehaviour to their discipline master. The defendant's operation of the College must not be judged retrospectively. I am satisfied that in 1975, it was not reasonable to expect the defendant, in response to the foreseeable risk, to have provided specific instruction to staff and students about the importance and need for reporting sexual abuse.

258 As I have already stated, I am not satisfied that the defendant knew (or that it ought reasonably to have known) of conduct by the five students which would have justified their suspension prior to the occurrence of the gym incident. I am also not satisfied that the size or age difference of the five students was such that it was unreasonable for the defendant to have housed them in the same dormitory as the plaintiff. Firstly, the plaintiff acknowledged in cross-examination that only one of the five students was physically larger than him. Secondly, there is no evidence to support the plaintiff's claim it was unreasonable for the defendant to have children of varying ages sleeping in the same dormitory, noting that the students were already separated between junior, middle and senior years.

259 As noted above, the plaintiff relied on an article regarding 'contemporary' boarding schools, which advocated for the 'watchful care' of students. This article was published in the College annual the year after the student abuse. The article did not discuss, from a practical perspective, what 'watchful care' involved, and how it was to be resourced. Nor did the article state that 'watchful care' was not already something which was practised at schools operated by the defendant, including the College. Without additional information, this article on its own, does not sufficiently persuade me the defendant breached its duty of care to protect the plaintiff from the risk of sexual assault by other boarders.

260 In closing submissions, the plaintiff referred me to the recent New South Wales Supreme Court decision of T2 (by his tutor T1) v State of New South Wales.[44] There, the State was held liable for injuries suffered by T2, a student who had been physically assaulted by a group of students shortly after the end of classes. One of the offending students was known to be a physical aggressor, and had recently returned to the school following a lengthy suspension. T2 was known to be a vulnerable student. In holding the State liable, Harrison AsJ was satisfied that the school had failed to undertake a comprehensive risk assessment prior to the offending student being permitted to return to school from suspension. Further, it was held that the school should have arranged two teachers to be on duty at the bus stop for 15 minutes after school each day.

261 T2 is of no assistance to the plaintiff. Unlike this proceeding, the State in T2 had actual knowledge of the offending student's behaviour, and had previously suspended him. As is apparent from my findings above, prior to the gym incident the defendant did not have sufficient knowledge of the five students' behaviour to give rise to a specific risk that they would sexually abuse the plaintiff. The assault which was the subject of the proceeding in T2 occurred in 2017, at a time when the State had policies as to how to manage violent students, including risk assessments for their safe return to school following suspension. Here, as previously noted at paragraph [255] above, there is no evidence that policies or risk assessments existed within schools in 1975.

262 For these reasons, I am not satisfied that the defendant failed to take reasonable precautions in response to the foreseeable risk of the plaintiff being sexually abused by other boarders at the College, including the five students. This finding is in respect of the sexualised bullying and the gym incident. Although the plaintiff did not advance separate submissions in respect of the physical assault against him by Student 3, the same reasoning applies as to why I am not satisfied the defendant failed to take reasonable precautions to prevent this.

263 However, if I am wrong in finding there was no breach of duty by the defendant, the plaintiff has also failed to satisfy me that any such breach was a cause of the student abuse. Save for the five students having been expelled before the gym incident, or the defendant ensuring constant supervision of students in all corners of the boarding house at all times, I am not satisfied that the gym incident was preventable. It was a violent act, committed by five students with wilful disregard for the plaintiff's wellbeing. I am not satisfied that any student education or school policies informing students on the impermissibility of such an act (including a consequence of expulsion), would have deterred what was a flagrant wrongdoing by the five students.

264 After the close of evidence, and following written, and oral, closing submissions, the plaintiff provided additional written submissions as to why he contended the defendant had breached its non-delegable duty in respect of the student abuse.[45] It was submitted that the defendant delegated the task of protecting the plaintiff to Fr Fyfe and his staff. The plaintiff submitted that the defendant, despite knowing that students had been sexually abused at the College in the past, did nothing to prevent sexual abuse and violence in the boarding house. It was put that in order to meet the delegated task, Fr Fyfe should have ensured vigilance and proper systems, but did not.

265 The plaintiff contended that the High Court's determination in New South Wales v Lepore,[46] that liability for breach of a non-delegable duty does not extend to an intentional assault, only applies to delegates. The plaintiff submitted that, as the students were not delegates of the defendant, this restriction did not apply. It was contended that the defendant should be held liable for a breach of its non-delegable duty as it had failed to ensure that reasonable care was taken to protect the plaintiff from injury, including intentional assaults by the five students.

266 The non-delegable duty, which the defendant admitted it owed the plaintiff, is a duty to ensure that reasonable care is taken.[47] Relevantly here, the non-delegable duty arises out of the nature of the relationship between 'school and pupil'.[48]

267 In The Commonwealth v Introvigne,[49] Mason J observed with regard to the non-delegable duty owed by school authorities:

...the duty is not discharged by merely appointing competent teaching staff and leaving it to the staff to take appropriate steps for the care of the children. It is a duty to ensure that reasonable steps are taken for the safety of the children, a duty the performance of which cannot be delegated.[50]

268 In Lepore, the High Court considered the circumstances in which a school authority may be liable for damage caused by the sexual abuse of a student by a teacher. The Court delivered six separate judgments. The majority held that whilst a school authority owes a non-delegable duty of care to pupils, this did not extend to intentional criminal conduct against a pupil by a teacher employed by the authority. Differing views were expressed as to the circumstances in which a school authority may be vicariously liable for the sexual abuse of a pupil by a teacher employed by the authority.

269 In respect of the non-delegable duty, Gleeson CJ explained that this is not absolute. His Honour stated:

The proposition that, because a school authority's duty of care to a pupil is non-delegable, the authority is liable for any injury, accidental or intentional, inflicted at school upon a pupil by a teacher, is too broad, and the responsibility with which it fixes school authorities is too demanding.[51]

270 In Leichhardt Municipal Council v Montgomery,[52] Gleeson CJ explained the difference between the duty of care and a non-delegable duty in the following way:

In practice, the difference between a duty to take reasonable care and a duty to ensure that reasonable care is taken matters where it is not an act or omission of the defendant, or of someone for whose fault the defendant is vicariously responsible, that has caused harm to the plaintiff, but the act or omission of some third party, for whose fault the defendant would not ordinarily be vicariously responsible. If a negligent act or omission is that of a defendant, or a person for whose fault the defendant is vicariously responsible (such as an employee), no problem arises. Again, if the nature of a defendant's responsibility is such that it can be discharged lawfully or properly only by the defendant personally, an attempted delegation would be irrelevant. Some responsibilities are non-delegable in the sense that it is of their essence that they be performed by a particular person, perhaps because of trust or confidence reposed in that person. In some cases, a duty to take care involves a duty to act personally. That kind of non-delegability should not be confused with a case where the engagement of a third party to perform a certain function is consistent with the exercise of reasonable care by a defendant, but the defendant's legal duty is not merely to exercise reasonable care but also (if a third party is engaged) to ensure that reasonable care is taken. In such a case, the third party's failure to take care will result in breach of the defendant's duty. The legal consequence is that the circumstance that the third party is an independent contractor does not enable the defendant to avoid liability. It is because of its practical effect of outflanking the general rule that a defendant is not vicariously responsible for the fault of an independent contractor that the identification of this special responsibility or duty is important.[53]

271 In DP, the majority of the Court affirmed the non-delegable duty as a duty to 'ensure that the duty is carried out'[54] or to 'procur[e] the careful performance of work [assigned] to others.'[55]

272 As these decisions demonstrate, liability for breach of a non-delegable duty arises when the person to whom a task or function has been delegated, fails to take reasonable care. The defendant delegated its responsibility of caring for the plaintiff to Fr Fyfe, and the staff members at the College. In doing so, the defendant was still obliged to ensure that reasonable care was taken by those delegates.

273 For the reasons given in respect of the plaintiff's negligence claim, I am not satisfied that Fr Fyfe, in the performance of his role as rector of the College, failed to take reasonable care to protect the plaintiff against sexual assault by other boarders. The plaintiff submitted that Fr Fyfe should have ensured 'vigilance and proper systems'. However the plaintiff did not adduce evidence as to what this involved at a reasonable and practical level, nor how it would have prevented the student abuse.

274 The same can be said in respect of other staff members to whom care of the plaintiff was delegated whilst he was a boarder, that being his discipline master, teachers and brothers at the College. The evidence does not support a finding that any act or omission of these staff members was a cause of the student abuse. The further amended statement of claim contains particulars as to Br Mulverhill's response to the physical assault of the plaintiff by Student 3, alleging that Br Mulverhill 'simply rebuked' the offending student. Whether this constituted an act or omission by Br Mulverhill, it occurred after the last incident of the student abuse, and therefore cannot be causative of it. The further amended statement of claim does not otherwise contain allegations of acts or omissions by any other of the defendant's delegates, which are said to constitute a failure to exercise reasonable care relevant to the student abuse.

275 For those reasons, the plaintiff has failed to satisfy me that the defendant breached its non-delegable duty in respect of the student abuse.

276 In view of the above, the plaintiff's claim that the defendant is liable for the student abuse must be dismissed.

Whether the College is liable for the Mamo abuse

277 The plaintiff alleged that there was a not insignificant risk that Mr Mamo would abuse students, including the plaintiff. The plaintiff submitted that the defendant breached its duty of care to him, as it took no steps to prevent this abuse occurring.

278 The plaintiff's particulars of the defendant's alleged breaches included its failure to develop and employ an effective system of supervision and monitoring of brothers, including Mr Mamo, who were engaged in the care of minors. Further, the plaintiff pleaded that the defendant failed to place any restrictions or conditions on Mr Mamo's contact with minors.

279 In closing submissions, the plaintiff relied upon the evidence of Mr Mahar and Mr Schack, and submitted that the defendant did not take steps to guard against further sexual abuse of students by staff at the College despite knowing that this had previously occurred. The plaintiff also submitted that the defendant failed to introduce policies or educate staff about sexual abuse. In addition the plaintiff alleged that the defendant failed to tell students to report sexual abuse, or to assure students that their complaints would be taken seriously and acted upon. Finally, the plaintiff submitted that the defendant allowed a culture of severe violence at the College, which discouraged students from reporting abuse due to their fear of physical punishment.

280 The plaintiff sought to rely upon two letters sent to Mr Schack by representatives of the defendant (the Schack apology letters). The first letter, dated 22 February 1994, from the defendant's then provincial, Fr Brian Gallagher, contained an apology to Mr Schack for the 'sexual and other abuse' he suffered at the College. The second letter, dated 5 September 2022, from the defendant's then provincial, Fr Chris McPhee, offered a further apology in respect of the harm and trauma Br Morgan caused Mr Schack. In this letter, Fr McPhee stated:

It was our responsibility to prove you with a safe, supporting learning environment and we failed to do this.

281 The plaintiff submitted the Schack apology letters were evidence of admissions by the defendant pursuant to s 87 of the Evidence Act. It was submitted that the provincials were authorised to make the admissions on behalf of the defendant, and that the admissions were capable of rationally affecting the assessment of the probability of facts that tended to establish liability against the defendant.[56]

282 The plaintiff also relied upon Fr Fyfe's acceptance of a proposition put to him in cross-examination, that if he had known that there had previously been sexual abuse of students at the College by a brother, he would have 'taken steps, generally, to protect any further abuse of children by anyone at the [College]'. The plaintiff submitted that this concession by Fr Fyfe evidenced its failure to take reasonable steps in response to the College's history of sexual abuse.

283 The defendant denied it was liable for the Mamo abuse. In doing so, it denied that it either knew or ought to have known of the risk that Mr Mamo would abuse the plaintiff. The defendant submitted that the plaintiff had failed to establish the defendant knew of students at the College having been sexually abused by other brothers prior to the Mamo abuse. In respect of Mr Mamo, there was no evidence the defendant had knowledge of Mr Mamo's abuse of students, prior to Fr Fyfe being informed of this in approximately September or October 1977. Further, the defendant submitted that it could not reasonably be expected to have known of Mr Mamo's abuse of students at the College, including the plaintiff, as Mr Mamo was not authorised to punish students. The defendant relied upon Fr Fyfe's evidence that only the rector, teachers within their classes, and discipline masters were authorised to punish students. When questioned as to whether students being called over the PA to attend the laundry ought to have led to Mr Mamo's conduct being detected, the defendant submitted that this could be reconciled with evidence that students were required to attend the laundry to collect their own items.

284 In the event I was satisfied that the risk to the plaintiff of sexual abuse by Mr Mamo was reasonably foreseeable, then the defendant submitted it had not breached its duty, as its supervision and monitoring of Mr Mamo was reasonable. As noted previously, the defendant denied that there was a culture of severe violence at the College which discouraged the reporting of abuse. The defendant contested the plaintiff's submission that students did not report abuse to staff because none were approachable. The defendant highlighted Mr Pearce's evidence that he had taken up the opportunity to attend upon the rector for punishment, rather than receive the strap from Mr Mamo. It was put that this evidence was inconsistent with a claim that students were too scared to speak up for themselves in respect of Mr Mamo. In the defendant's submission, that a group of students had ultimately reported Mr Mamo to Br Frith was further evidence of students feeling able to report incidents of abuse to College staff.

285 In relation to the Schack apology letters, the defendant submitted that these were apologies which did not constitute admissions of liability, pursuant to s 14J of the Wrongs Act. Further, Br Morgan's abuse of Mr Schack had been at a different time to the Mamo abuse, and that the contents of the Schack apology letters was too general to be of any probative value as to whether the defendant was liable for the Mamo abuse.

286 The parties did not agree as to the relevant risk against which the defendant allegedly failed to exercise reasonable care in relation to the Mamo abuse. The plaintiff submitted that it was the risk of abuse to the plaintiff by staff members. The defendant submitted that it was risk of sexual abuse to the plaintiff by Mr Mamo.

287 The indecent nature of the Mamo abuse involved strapping the plaintiff's bare buttocks, and the plaintiff's perception of this was that it was a sexual act by Mr Mamo. The identification of the risk, whilst not needing to take into account the specific circumstances of the abuse, ought to reflect the general nature of the harm suffered, so as to determine what reasonable response was required to it. Therefore in determining whether the defendant was negligent for the Mamo abuse, I am satisfied that the relevant risk was sexual abuse to the plaintiff, by staff of the College, including Mr Mamo.

288 The plaintiff has failed to satisfy me that the defendant had actual knowledge of sexual abuse by other brothers at the College prior to the Mamo abuse. Whilst I am satisfied that Mr Schack informed Fr Prentice about the initial treatment Br Morgan provided him in the infirmary, Mr Schack did not tell Fr Prentice that he subsequently ejaculated, or that Br Morgan hugged him in the bath. Fr Prentice is deceased. Whilst Fr Prentice's questioning of Mr Schack conveyed a degree of suspicion regarding Br Morgan's interactions with students, the nature of the student concerns which brought about Fr Prentice's enquiry, are unknown. On the evidence before me, I am not satisfied that Fr Prentice knew or ought to have known that Br Morgan had sexually abused Mr Schack, or any other students.

289 Fr Fyfe said that whilst rector, he was never informed by Fr Prentice that Br Morgan had sexually abused a student. I accept Fr Fyfe's evidence on this.

290 Mr Mahar's evidence was that he had been sexually abused by Br Morgan. However, this abuse was not reported to the defendant at the time.

291 There is also no evidence that the defendant knew that Mr Mamo had sexually abuses students at the College prior to the brothers reporting this to Fr Fyfe. Fr Fyfe said this occurred in September or October 1977 and he sent Mr Mamo away from the College on the same day, but that he understood Mr Mamo was permitted to return to the College sometime after he ceased as rector. In the Mamo hearsay document, it refers to Mr Mamo being at the College from 1971 to 1978. However, some of the admitted charges in the tendency evidence refer to abuse of students at the College in 1980, and possibly as late as 1981. Br Frith believed that students at the College told him what Mr Mamo was doing to them in 1980.

292 The periods of time in which Mr Mamo was at the College are unclear. Irrespective, on any of the plausible timelines, any reports regarding Mr Mamo's conduct were received by the defendant after the Mamo abuse. The plaintiff has failed to satisfy me that the defendant knew that Mr Mamo had been sexually abusing students at the College, prior to the Mamo abuse. What the defendant discovered about Mr Mamo in 1994 (and beyond) is irrelevant to my assessment of what the defendant knew at the relevant time.

293 Given I am not satisfied that the defendant had actual knowledge of brothers, including Mr Mamo, previously sexually abusing students, I must next consider whether the defendant ought to have known this was a foreseeable and not insignificant risk.

294 Turning first to whether the defendant ought to have foreseen a risk that Mr Mamo would sexually abuse the plaintiff, I am not satisfied that the failure of students to report Mr Mamo's conduct to the defendant at an earlier time was a consequence of there being a culture of severe violence at the College. As I have noted previously, I do not accept this to be a fair categorisation of life at the College at the relevant time. Even if the students feared harsh discipline from some staff members, there were other religious and lay staff of both genders, whom the students could otherwise report to.

295 In determining whether the defendant ought to have reasonably foreseen the risk of Mr Mamo sexually abusing the plaintiff, I have also considered the evidence as to how the students would come to be punished by Mr Mamo. The students would generally be taken to the laundry at the time they were caught by Mr Mamo, or would be told by Mr Mamo to attend at a particular time. There was no evidence that any staff witnessed Mr Mamo taking students to the laundry, such as to raise any suspicions regarding his conduct. However, I accept that on occasion, students would be called by Mr Mamo on the PA to attend the laundry. Notwithstanding that Fr Fyfe and Br Frith could not recall this happening, I accept the evidence of the plaintiff and Mr Pearce that they heard this sometimes. The plaintiff could recall hearing this when in the locker room, and Mr Pearce could recall an occasion when he heard this in the study hall.

296 However, I am not satisfied that students being called to the laundry over the PA system was an occurrence which ought to have put the defendant on notice of the not insignificant risk that students would be sexually abused there by Mr Mamo. There was a legitimate reason for students to attend the laundry, being to collect their cleaned items. Mr Pearce's evidence as to what the student reported after being called to the laundry from the study hall is consistent with this. Mr Pearce's evidence that the student said there had been a problem with their laundry.

297 As noted above, I am satisfied the identification of the risk of harm to the plaintiff was broader than just Mr Mamo, and included a class of persons to whom Mr Mamo belonged, namely brothers at the College. For the reasons to follow, the plaintiff has also failed to satisfy me that the defendant ought to have known there was a not insignificant risk that a brother would sexually abuse the plaintiff.

298 The plaintiff did not adduce any expert or lay evidence as to there being a general awareness in society of the risk of child sexual abuse by educational or religious institutions in 1976 or 1977.

299 Fr Fyfe said that as rector of the College, he was not aware of the risk of child sexual abuse, and that it was not a 'burning issue'. Fr Fyfe said:

I might've been naïve in this, not - not being aware of it. I mean, it - it's such a different world today from what it was then.

300 Fr Fyfe said that unlike now, in the late 1960s, allegations of child sexual abuse in other dioceses in Australia were not talked about.

301 Fr Fyfe's statement that if he had known a brother had previously abused a student at the College, he would have taken steps to protect against any further abuse of children, was important evidence. It is a positive assertion he did not know of prior abuse. It is also an acknowledgement by Fr Fyfe that he would have taken steps if he had knowledge of the risk created by this. As he did not know of any prior abuse, there was no foreseeable risk which he could reasonably have been expected to have taken precautionary steps in response to.

302 Br Frith gave evidence that in the 1970s he was not aware that a male working in a boys boarding school as a nurse, was of itself, a risk factor. Br Frith said that he did not become aware that being left alone with boys in an infirmary was a dangerous situation until the accusations came out almost 30 to 40 years later.

303 As observed at [215], the question of foreseeability must not be assessed prospectively. What the defendant knew or ought to have known about the risk of sexual abuse in 1976 or 1977, cannot be judged in the context of the awareness which exists now.

304 Pursuant to s 48(1) of the Wrongs Act, a defendant is not negligent in failing to take precautions against a risk of harm, unless that risk was foreseeable, and not insignificant. For the reasons given, the plaintiff has failed to satisfy me that the risk of sexual abuse by a brother at the College, was foreseeable by the defendant prior to the Mamo abuse. I therefore dismiss the plaintiff's claim that the defendant's negligence was a cause of the Mamo abuse.

305 In so deciding, I have given no weight to the Schack apology letters. The apology to Mr Schack in 1994, for events which occurred in 1967, does not constitute an admission of liability in respect of the plaintiff's proceeding. Further, the acceptance by the defendant in 2022, that it had failed to provide a safe, supportive learning environment to Mr Schack, is not probative of whether the defendant, in the context of what was reasonably expected of it in 1976-1977, ought to have foreseen the risk of sexual abuse of its students.

306 On 13 November 2024, after evidence in this proceeding had closed but prior to final oral submissions, the High Court handed down judgment in DP. In that judgment, the majority of the Court held that the common law boundaries of vicarious liability should not be expanded beyond a relationship of employment to one that is 'akin to employment.'[57] Put simply, in the absence of an employment relationship, a defendant cannot be vicariously liable for the acts of another.

307 At final oral submissions, the plaintiff was asked whether he would withdraw his claim relating to vicarious liability in light of the High Court's decision. The plaintiff did not do so, as it was submitted that Mr Mamo was effectively an employee of the defendant.[58]

308 In advancing this submission, plaintiff's counsel acknowledged the decision of Keogh J in O'Connor v Comensoli.[59] In that judgment, his Honour found that the Archbishop of the Catholic Archdiocese of Melbourne was vicariously liable for sexual abuse perpetrated by a priest in the Archdiocese. In his analysis, his Honour found that priests were in a relationship with the Archdiocese which was akin to, but not, employment.[60] In relation to the existence of an employment relationship, his Honour stated:

An intention to create a legally binding relationship is a necessary condition to a finding of employment. In the absence of there being a contract of employment, O'Connor cannot establish that Father Connellan and Gannon were employed by the Archdiocese simply by pointing to features of the arrangements between those parties that would otherwise be consistent with an employment relationship.[61]

309 The plaintiff submitted that the circumstances in O'Connor were distinguishable from the present proceeding, and that Mr Mamo could be categorised as an employee of the defendant by reason of his placement at the College with a range of duties, his description as staff in the College annuals, and his relationship with the College being subject to direction of the rector. On this basis, it was submitted that it was still open for the defendant to be held vicariously liable for the Mamo abuse.

310 There is no basis for me to find that Mr Mamo was an employee of the defendant. I do not consider Mr Mamo's name being listed as staff in the College annuals as indicative of an intention by the defendant to create an employment relationship with him. The evidence does not support a conclusion that the relationship between Mr Mamo and the defendant involved an intention that the rights, duties and obligations associated with this relationship would be legally enforceable and subject to adjudication of the courts.

311 I see no reason to depart from the reasoning in O'Connor that, in the absence of a contract of employment, the plaintiff cannot establish that Mr Mamo was employed by the defendant. I therefore dismiss the plaintiff's claim that the defendant is vicariously liable for the Mamo abuse.

312 In the further submissions advanced following the close of oral submissions, noted at paragraph [264] above, the plaintiff also submitted that the Court should find the defendant liable for the Mamo abuse as if it were vicariously liable, pursuant to s 61 of the Wrongs Act.[62]

(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 defendant were vicariously liable for the negligence of the person in connection with the performance of the work or task.

(2) This section applies to a claim for damages in tort whether or not it is a claim for damages resulting from negligence, despite anything to the contrary in section 44.

314 The plaintiff submitted that s 61 'applies the non-delegable duty to [the Mamo abuse]'. On this basis, it was put that the defendant was to be treated as vicariously liable for the Mamo abuse, as Mr Mamo was its delegate, and noting there was no barrier at common law for a defendant to be held vicariously liable for an intentional assault.

315 In reply, the defendant submitted that the plaintiff's proposed interpretation of s 61 was untenable, as it would effectively render the decision of DP nugatory. The defendant additionally submitted that a plain reading of s 61 demonstrated a threshold requirement of negligence on behalf of another, in connection with the performance of the work or task. The defendant submitted that here, in the absence of negligence on behalf of its delegate, and as the Mamo abuse did not occur in performance of any delegated work or task, s 61 did not apply.

316 Section 61 is contained within Part X of the Wrongs Act, which was inserted by s 3 of the Wrongs and Other Acts (Law of Negligence) Act 2003, the final of three tranches of legislative response by the Victorian State government to the Final Report of the 2002 Review of the Law of Negligence,[63] commonly referred to as the Ipp Report.[64] Section 61 has not yet received 'significant judicial consideration' in Victoria.[65] In New South Wales, an equivalent provision, s 5Q of the Civil Liability Act 2002 (NSW), was considered by the Court of Appeal in the matter of Galea v Bagtrans & Ors.[66] In that case, the plaintiff suffered an injury from a defective truck seat. The plaintiff was employed by a labour hire agency, and was hired out to work for the second defendant as a truck driver. On appeal, the Court held both defendants liable for the plaintiff's injury, with a finding that the plaintiff's employer breached its non-delegable duty. Hodgson JA (with Allsop P and Macfarlan JA agreeing) explained the application of s 5Q in the following way:

Where an employer entrusts another with the task of providing the employee with the place and/or system of work, and/or with plant and equipment, the employer will generally be vicariously liable for failure by that other person to exercise reasonable care in those matters.[67]

317 There was no dispute between the parties in this proceeding that the defendant owed the plaintiff a non-delegable duty of care. As I have previously noted, and the plaintiff previously accepted, under the common law, liability for breach of a non-delegable duty does not extend to intentional wrongdoing by delegates.[68] As the Mamo abuse was an intentional tort committed against the plaintiff, his conduct as a delegate of the defendant does not give rise to a finding that the defendant breached its non-delegable duty to the plaintiff.

318 In respect of the Mamo abuse, for the reasons given above, I have made no finding of negligence against the defendant or any of its delegates, most relevantly, Fr Fyfe. The further amended statement of claim contains particulars as to what Fr Fyfe did when he was made aware of Mr Mamo's abusive conduct in September or October 1977, which included sending Mr Mamo away 'forthwith'. As I have concluded above, I am satisfied that the Mamo abuse occurred prior to this time. The pleading does not otherwise contain allegations of any acts or omissions by Fr Fyfe, nor any other defendant delegates, which are said to constitute a failure to exercise reasonable care relevant to the Mamo abuse.

319 On the evidence before me, I am not satisfied that the defendant breached its non-delegable duty in respect of the Mamo abuse. Accordingly, the presumption of vicarious liability under s 61 does not arise, and it is not necessary for me to consider the operation of this section further.

320 I therefore reject the plaintiff's submissions that, pursuant to s 61, the defendant be held liable for breach of its non-delegable duty in relation to the Mamo abuse.

321 For the reasons given the plaintiff's proceeding must be dismissed.

[2] The defendant is a non-government organisation as defined by the Legal Identity of Defendants (Organisational Child Abuse) Act 2018.

[3] Mr Mamo has subsequently been dismissed from the order and I therefore refer to him as Mr Mamo in this judgment.

[4] Subsequent to my hearing of the parties' oral closing submissions on 15 November 2024, the plaintiff made additional written submissions as to why the defendant was liable for the Frith abuse and the Mamo abuse pursuant to section 61 of the Wrongs Act 1958. I deal with such submissions at paragraphs [312]-[320] below.

[5] [2024] HCA 41 ('DP').

[6] Oral reasons given in the course of the trial.

[7] Clifford v Missionaries of the Sacred Heart (Ruling) [2024] VSC 701.

[8] Blatch v Archer [1774] EngR 2; (1774) 1 Cowp 63, 65; [1774] EngR 2; 98 ER 969, 970.

[9] [2023] HCA 32; (2023) 97 ALJR 857.

[10] Ibid 874-5 [57] (citations omitted), with reference to Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517, 521, itself citing Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 ('Briginshaw').

[11] Briginshaw (n 10) 347 (Latham CJ).

[13] I use the term staff member, whilst noting the defendant denied that it employed the religious staff, including the brothers of the defendant's order.

[14] Fr Fyfe's evidence relevant to this is detailed at paragraph [201] below.

[15] Dr Watt was engaged by the defendant's solicitors.

[16] Pursuant to orders dated 27 August and 20 December 2024.

[17] I note that Br Frith was criminally charged with offences relating to alleged abuse of students at the College. The particulars of these charges are discussed at paragraph [171] below.

[18] See paragraphs [95]-[96] above.

[19] DP (a pseudonym) v Bird [2021] VSC 850, [81]. Subsequently cited by O'Meara J in Double v The Salvation Army (Victoria) Property Trust [2023] VSC 452, [77].

[20] Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, 320-1 (Windeyer J).

[21] On 3 September 2024, I ruled as inadmissible a document which had been discovered by the defendant which recorded a list of complaints made against Br Frith. The document contained no detail as to the particulars of the complaints, nor the names of the complainants.

[22] My conclusions in relation to Mr Pearce's evidence are at paragraph [178] below.

[23] [2022] NSWCA 119.

[25] The plaintiff explained this term as referring to his understanding that Mr Mamo would mentally bank images of children being spanked, for his future sexual gratification.

[26] Some of the witnesses, including the plaintiff, described being strapped as 'getting the cuts.'

[27] DPP v Mamo [2013] VCC 2202; DPP v Mamo [2015] VCC 1831.

[28] There was no dispute between the parties that Mr Mamo was unavailable for the purposes of s 61 of the Evidence Act.

[29] PCB v Geelong College [2021] VSC 633, [318]-[319], with reference to Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40, 47-8 (Mason J).

[30] [2015] VSCA 220 ('Erickson').

[34] [2005] HCA 31; (2005) 221 CLR 161 ('Hadba').

[35] Ibid 167-171 [13]-[27] (Gleeson CJ, Hayne, Callinan and Heydon JJ).

[37] Ibid 170 [26], quoting Spender J's dissenting judgment in Hadba v Trustees of the Roman Catholic Church for the Diocese of Canberra and Goulburn [2003] ACTCA 25, [59].

[38] See for example Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434, 441-2 [16] (Gleeson CJ); Hadba (n 34) 170 [26]; Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422, 461-3 [126]-[129] (Hayne J), 443 [60]-[61] (Gummow J); Neindorf v Junkovic [2005] HCA 75; (2005) 222 ALR 631, 655-6 [93] (Hayne J); New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486, 505 [57] (Gummow and Hayne JJ).

[39] [2012] VSCA 326; (2012) 37 VR 284.

[40] Ibid 292 [31] (citations omitted) (Buchanan JA agreeing at 300 [70], Harper JA agreeing at 300 [71]).

[42] Erickson (n 30) [33]; Southern Colour (Vic) Pty Ltd v Parr [2017] VSCA 301, [54].

[43] See cases referred to at (n 38) above.

[44] [2024] NSWSC 1347.

[45] I note that plaintiff's counsel did not sign these written submissions.

[46] [2003] HCA 4; (2003) 212 CLR 511 ('Lepore').

[47] DP (n 5) [36], citing Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672, 686 ('Kondis'). See also Willmot v Queensland [2024] HCA 42, [49] ('Willmot'), citing amongst others The Commonwealth v Introvigne [1982] HCA 40; (1982) 150 CLR 258, 269-270, 271-272 ('Introvigne'); Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13; (1994) 179 CLR 520, 550; Lepore (n 46), 598 [254].

[48] Geyer v Downs [1977] HCA 64; (1977) 138 CLR 91, 94 (Stephen J). See also Richards v Victoria [1969] VR 136.

[50] Ibid 270. Cited and approved in Willmot (n 47) [49].

[52] [2007] HCA 6; (2007) 230 CLR 22 ('Montgomery').

[53] Ibid 29 [9]. See also Pafburn Pty Ltd v The Owners - Strata Plan 84674 [2024] HCA 49.

[54] DP (n 5), [36], citing Lepore (n 46), 565 [144].

[55] Ibid, citing Woodland v Swimming Teachers Association [2013] UKSC 66; [2014] AC 537, 573 [5].

[56] Citing O'Connor v Comensoli [2022] VSC 313, [112] ('O'Connor').

[57] DP (n 5), [47] (Gageler CJ, Gordon, Edelman, Steward and Beech-Jones JJ, Jagot J agreeing at [240]-[251]).

[58] The same submission was made in respect of Br Frith, however it has been unnecessary for me to consider this in respect of Br Frith, give my conclusion as to the occurrence of the Frith abuse.

[59] O'Connor (n 56). I note that his Honour's decision was subject to appeal, but not in relation to the issue of vicarious liability. This finding on vicarious liability was determined prior to DP (n 5).

[62] These written submissions were not signed by the plaintiff's counsel.

[63] Review of the Law of Negligence, Final Report, Commonwealth of Australia, September 2002 ('Ipp Report').

[64] Victoria, Parliamentary Debates, Legislative Assembly, 30 October 2003, 1421 (John Brumby, Treasurer).

[65] Lombardo v Dermatology and Cosmetic Surgery Services Pty Ltd [2023] VSC 463, [38].

[66] [2010] NSWCA 350.

[68] See discussion of Lepore (n 46) at paragraphs [268]-[269] above.