Clifford v Missionaries of the Sacred Heart [2024]: Abuse Law Update

The plaintiff alleges three instances of abuse:

(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).

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.

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.

The plaintiff also 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.

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.

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

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) [2024] HCA 41, which held that under the common law, vicarious liability did not extend to the conduct of a person who is not an employee. 

In relation to liability for the student abuse, the Court provided as follows:  

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. 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 [at 237].  

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 [at 238].  

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 [at 239].  

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’ [at 240].  

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 [at 241].  

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 [at 242].  

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 [at 243].  

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 [at 246].  

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 [at 248]. 

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 [at 249].  

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 [at 250].  

…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 [at 252].  

…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 [at 262].  

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 [at 263].  

In relation to breach of non-delegable duty regarding the student abuse, the Court provided as follows (at [273] to [276]):  

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. 

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. 

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

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

In relation to liability for the Mamo abuse, the Court provided as follows:  

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 [at 291].  

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 [at 292].  

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 [at 293].  

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 [at 205].  

In relation to breach of non-delegable duty regarding the Mamo abuse, the Court provided as follows (at [318] to [320]):  

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. 

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. 

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. 

In relation to vicarious liability regarding the Mamo abuse, the Court provided as follows (at [310] to [311]):  

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. 

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. 

Ultimately, on 20 December 2024, the Supreme Court of Victoria ordered at [321] as follows:  

For the reasons given the plaintiff’s proceeding must be dismissed.  

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