Successful Institutional Abuse Claim – De La Salle Brothers
SR v TRUSTEES OF THE DE LA SALLE BROTHERS [2023] NSWSC 66
Brief Summary
The injured plaintiff, SR was successful in his institutional abuse claim against the Trustees of the De La Salle Brothers.
At the time of the abuse, between 1983 and1984 the plaintiff was a pupil at De La Salle Revesby (“the School”). Mr Erol Swain was a teacher at the school. The plaintiff alleged that Mr Swain had sexually abused him on numerous occasions.
The plaintiff brought proceedings claiming damages for injuries suffered because of the abuse. He alleged negligence, admitting into evidence that the defendant was aware of Mr Swains propensity to abuse and that the school was vicariously liable for the conduct of Mr Swain.
Justice Cavanagh concluded that the defendant was vicariously liable for the conduct of Mr Swain and awarded the plaintiff damage for general and aggravated damages, past and future economic loss, interest and treatment expenses, totalling $1,330,304.60 in damages.
CASE SUMMARY
Background
The plaintiff commenced proceedings in the Supreme Court of NSW in March 2021. The plaintiff alleged sexual abuse by Erol Swain, a teacher and groundskeeper at De La Salle Revesby (“the School”) when he was a student between 1983 and 1984. The nurture of the abuse escalated over a period of time. The plaintiff alleged that the defendant was aware of the tendency for Mr Swain to abuse children and that two parents had complained about Mr Swains conduct before the plaintiff was abused.
The plaintiff was cross examined extensively by the defendant, and it was put to the plaintiff that he did not suffer from the abuse at all.
Brother Julian, the principal in 1967 at the school was told that Mr Swain was interfering with children. Brother Julian investigated the allegation and determined that it would be safer to keep Mr Swain at the school because they knew of the problem, and they could watch him.
Medical evidence
The plaintiff relied on the evidence of Associate Professor Carolyn Quadrio, consultant psychiatrist. The defendant had the plaintiff examined by Dr Samson Roberts.
There was substantial agreement between the experts. The experts agreed that they obtained similar accounts of symptomology and came to a similar diagnosis. They agreed that the conditions which they diagnosed arose from the abuse by Mr Swain. They also agreed that if not for the effects of the abuse, the plaintiff would have likely achieved a higher level of formal education and there is an accepted correlation between child abuse, substance abuse and criminal activity. The experts diagnosed that the plaintiff was suffering from complex post traumatic stress disorder (“PTSD”) and depressive disorder, chronic anxiety and enduring post-traumatic personality change.
Main issues
Justice Cavanagh reduced the case to 4 main issues that needed determining.
- Did the plaintiff suffer abuse at the hands of Mr Swain? Is so, under what circumstances and to what extent?
- Is the defendant vicariously liable for the conduct of Mr Swain in perpetrating the sexual abuse?
- To what extent and for what period has the plaintiff suffered psychological symptoms consequent of the abuse?
- On what basis should damages be assessed?
Vicarious Liability
The plaintiff sought damages at Common law which can be higher than assessments governed by the Civil Liability Act.
For the purpose of the case, the defendant accepted that Mr Swain was employed but did not accept that they employed Mr Swain to commit an intentional tort.
Justice Cavanagh concluded that the defendant was vicariously liable for the conduct of Mr Swain in abusing the plaintiff because of the following:
- The defendant placed Mr Swain in a position of power, trust, authority, and control over the plaintiff when he was a young boy.
- Mr Swain used his position of power, trust and control over the plaintiff to require him to attend the caravan, even on the weekend.
- The position of Mr Swain vis-à-vis the plaintiff provided both the opportunity and the occasion for Mr Swain to abuse the plaintiff. Mr Swain was put in a position by the defendant, such that he could exercise complete authority and control over the plaintiff.
- Finally, the defendant was aware of Mr Swain’s propensity toward young boys before the plaintiff commenced year 6. Not only did the defendant provide the opportunity and occasion for Mr Swain to abuse the plaintiff, but it did so with forewarning of his propensity top engage in such conduct.
Damages
General and aggravated damages
The plaintiff submitted that one award of general and aggravated damages should be awarded. Justice Cavanagh awarded $300,000.00 for the sum of both general damages and aggravated damages.
Past loss of income
The plaintiff submitted that he had lost $3,645,533 in wages and $401,008.00 in superannuation between 1993 and 20022 and will suffer a future loss of $965,925 in wages and $115,911.00 in superannuation.
The defendant submitted that the plaintiff should receive nothing for loss of earning capacity suggesting that his losses all attributable to his life of crime or other non-compensable factors.
Justice Cavanagh determined that his case should be “loss of opportunity claim” in the sense there was a change he would have gone on to have a successful career, but also a chance that he would not have. He assessed his loss of earning capacity up to 2016 by way of a buffer in the sum of $150,000.00. Justice Cavanagh accepted that the plaintiff was unfit for work from 2016 the day of this judgement and awarded average weekly earnings during this period, discounting the total by 50%. to $184,761.20.
Justice Cavanagh accepted that the plaintiff is unfit for work at the moment and that his it is highly unlikely that he will obtain any employment in the future, having regard to the absence of any real work history and his psychiatric state. However, he does not accept that the plaintiff should receive his full loss of earnings for the next 17 years as the plaintiff had minimal treatment and the state of depression and anxiety has been much affected by the difficulties with his wife. It may be both the treatment which he will be having, and the passing of time which may lessen his symptoms. His future economic loss is discounted by 40% on account of these factors in terms of his claim.
Justice Cavanagh awarded $456,234.40 for future economic loss and $70,510.50 for loss of superannuation.
Interest
Interest was awarded at 2% on past general damages ($150,000.00) awarding $114,000.00 for interest.
Medical expenses
There was no award for past medical expenses as it had been subsidised by Medicare. There was an award of $20,000.00 for future medical expenses.
Conclusion
Justice Cavanagh accepted that the plaintiff had suffered abuse and found that the defendant was vicariously liable. He concluded that the plaintiff is entitled to the damages as follows.
- General and Aggravated Damages- $300,000.00
- Interest on past general damages -$114,000.00
- Past loss of income- $334,761.20
- Interest on past loss of income – $34,789.50
- Future loss of earning capacity $456,243.40
- Loss of superannuation- $70,510.50
- Future medical treatment- $20,000.00
- Total- $1,330,304.60
HOW CAN STACKS GOUDKAMP HELP
The team at Stacks Goudkamp are advocates for survivors of institutional abuse and do so with compassion, persistence, and clear communication. We strive to ensure cases are dealt with efficiently to guarantee a timely outcome. Our experience in litigation ensures that survivors of institutional abuse receive damages according to law.
Our team has successfully litigated against religious, state and commonwealth run institutions in New South Wales, Victoria, the ACT, Tasmania, Western Australia, and South Australia. These institutions include churches, public schools, private day schools and boarding schools, public and privately-run detention centres, homes and education facilities as well as the scouts, the salvation army, and the Australian defence force.
Our team understand that every survivor of institutional abuse will respond differently to trauma. Each case is unique and techniques to assist survivors in a trauma informed practice are essential. At Stacks Goudkamp, we are proud to advocate for survivors from all walks of life.
Successfully pursuing a claim for institutional abuse can be a difficult and complex process. It requires a deep understanding of the legal system, as well as the ability to navigate a range of emotional and psychological challenges. However, a successful institutional abuse claim can provide survivors with the justice and compensation they deserve.
Written by Alessandra Pettit
Alessandra Pettit (Ali) is a specialist in historical institutional abuse law and practices exclusively in this area. She has acted for survivors from all walks of life and continues to get outstanding results for her clients. She is compassionate, thorough, professional and kind, always ensuring that her clients feel supported and confident throughout the legal process.
If you or a loved one are a survivor of institutional abuse, you may be entitled to compensation. For more information and to arrange a free, no-obligation conference with Ali, please call Stacks Goudkamp on 1800 251 800, or alternatively make an online enquiry.
