In the recent matter of Hartnett v Trustees of the Roman Catholic Church for the Diocese of Wilcannia-Forbes (No 7) [2025] NSWSC 128, the plaintiff, Mr Albert John Hartnett, commenced court proceedings seeking damages against the defendant, the Trustees of the Roman Catholic Church for the Diocese of Wilcannia-Forbes, for injuries he alleges he suffered whilst a student at a school operated by the defendant, being Saint Ignatius Parish School, Bourke (“St Ignatius”) between 1992 and 1994. 

The plaintiff claims damages for personal injury suffered as a result of “serious physical abuse” allegedly inflicted on him by two members of school-staff, namely Sister Marietta Green and Mr Alex ‘Sweeney’ Dixon, while he was an infants’ school student at St Ignatius between 1992 and 1994. The plaintiff seeks compensatory, including aggravated, damages and exemplary damages. 

The proceedings are brought against three defendants in their capacity as appointed proper defendants under Pt 1B, Div 4 Civil Liability Act 2002 (NSW) (“CLA”). The first defendant, the Trustees of the Roman Catholic Church for the Diocese of Wilcannia-Forbes (“Trustees”) was the school authority for St Ignatius at the relevant time. The second defendant, the Trustees of the Marist Brothers (“Marist Brothers”) appointed certain of its members to work at St Ignatius, including as school principal, under a management agreement with the Trustees. The third defendant, Mercy Support Limited (“Mercy Support”) is the successor organisation to the former unincorporated association referred to as the Congregation of the Sisters of Mercy of Wilcannia-Forbes, an order of nuns which supplied certain of its members, including Sister Green, to teach at St Ignatius. 

In order to overcome the usual limitation hurdle and in the absence of sexual abuse, the plaintiff sought to prove ‘serious physical abuse’ as required by section 6A of the Limitation Act 1969 (NSW). 

Serious physical abuse

The Supreme Court accepted that the plaintiff was subjected to a degree of physical punishment by Sister Green and Mr Dixon by way of discipline. However, the Supreme Court was not satisfied on the evidence on the balance of probabilities that such punishment constituted “child abuse” in the sense of serious physical abuse within the meaning of section 6A(2) of the Limitation Act 1969 (NSW). As the plaintiff’s cause of action arose between 1992 and 1994, these proceedings are not maintainable under either sections 14 or 18A. There was no application for an extension of the limitation period otherwise. 

At [14], the Supreme Court provided:  

“Serious physical abuse” as it appears in s 6A Limitation Act is not a defined expression. The phrase is not one having a specific technical meaning, nor does it constitute a term of art. The expression is to be understood as having the meaning that ordinary people would understand it to convey. Like all undefined expressions used in a statute, the words are to be understood as having their ordinary meaning in their statutory context and having regard to the purpose of the statute in which they appear.  

Further at [16], the Supreme Court provided:  

It must be “serious” signifying an intensity well beyond what is minor or trivial. The requisite intensity can be supplied by either the severity in terms of injurious potential of a blow struck or by the period of time over which there has been ongoing physical abuse of the child. Abuse may cut both ways. It may consist of abuse of lawful authority over the child; or abuse of the child directly in the sense of ill treatment of the child by injurious misconduct towards the person of the child. 

Non-delegable duty

At [23], the Supreme Court proved as follows in relation to non-delegable duty:  

Although I have questioned whether to establish serious physical abuse, the plaintiff is required to prove criminal misconduct on the part of Sister Green, and/or Sweeney, it does seem to follow from these cases, including Lepore, that absent the legal justification, or defence, of “lawful chastisement”, the teacher will have committed an assault and be criminally responsible accordingly. It also seems to me, having considered the argument of counsel to which I make reference below, that the scope of the non-delegable duty of care owed by a school authority to a pupil under its care does not extend to the consequences of the criminal acts of others including the criminal acts of a teacher employed by it under a contract of service: Lepore: Gleeson CJ at [34] and [37] – [38]; Gummow and Hayne JJ at [256], [264] – [266] and [270]; Kirby J at [294] – [296]; contra McHugh J, Gaudron J [123] – [126]; McHugh J at [136]. 

Non-delegable Duty of Care Owed by Schools in Abuse Claims

At the request of the third defendant, the trial judge made some contingent findings (which were strictly unnecessary given the limitation period finding) as follows:  

Were I to assume that, from time to time, Sister Green found it necessary to administer to the plaintiff the type of smack I have found she administered to other pupils under her care, I would regard it as no more than lawful chastisement, being both moderate and reasonable and for a proper purpose. This being so, I repeat, I am not satisfied that the plaintiff has established severe physical abuse at the hands of Sister Green (at [216] in relation to serious physical abuse).  

In any event, at common law, authority to use moderate and reasonable force to chastise pupils falls upon members of the teaching staff and not only the principal. Even if this approach is incorrect, the plaintiff has not proved misconduct by Sweeney that in any way amounts to serious physical abuse (at [218]).  

It was common ground that corporal punishment of students was a permissible means of discipline of students in non-government schools until the enactment of s 47(h) of the Education Act 1990 by the Education Reform Amendment (School Discipline) Act 1995 (NSW) which commenced on 21 December 1996.  

So far as Sister Green is concerned, there was absolutely no evidence that she was employed under a contract of service by any of the defendants. There was nothing about the circumstance of a member of an order of nuns working as a teacher at a Catholic School that suggests by implication or inference any contract for service. By dint of the decision of the High Court of Australia in Bird v the DPP, this means inevitably that none of the defendants would have been vicariously liable for any deliberate act of Sister Green beyond what could be categorised as lawful chastisement, notwithstanding the consideration had she been an employee, the administration of punishment would have been prima facie within the course of her employment (at [221]).  

Sweeney was in a different situation as he was a direct employee of the first defendant (at [223]). 

As to non-delegable duties, only the first defendant owed a non-delegable duty to the plaintiff (at [224]).  

The scope of the non-delegable duty of care owed by a school authority to a pupil under its care does not extend to the consequences of the criminal acts of others including the criminal acts of a teacher employed by it under a contract of service (at [225]).  

There may have been a maintainable case against the first defendant based upon breach of its non-delegable duty if it had been proved that one or other of the principals had acquired actual or constructive knowledge of the type of systematic serious physical abuse which, in the plaintiff’s evidence was being perpetrated in Sister Green’s classroom, to which all other members of staff working there were turning a blind eye. Had such a case been proved, the principal would have been bound to act to put a stop to such grievous misconduct, and a failure to do so would have been sheeted home to the first defendant as the school authority as a breach of its duty to ensure that reasonable care was taken. But there was simply no evidence supporting such a case (at [227]). 

The plaintiff made a claim for aggravated and exemplary damages. Somewhat unusually, the claim related to an aspect of the conduct of the first defendant’s solicitors in their management of the case. In a nutshell, when pressed to state the legitimate forensic purpose for the issue of a subpoena for production to the plaintiff’s solicitors seeking advertising material published by them in Bourke, an employed solicitor under the direction of the partner with the carriage of the matter asserted the documents were necessary to establish that the plaintiff’s account and the account of his tendency witnesses are false, and that they are likely to have colluded with one another to offer false evidence to achieve some benefit (at [248]).  

On this point, the trial judge said at [251]-[252]: 

With great respect to learned senior and junior counsel for the plaintiff, I fail to see how the ground has been laid for either aggravated or exemplary damages based upon the generation and sending of a single email on 25 September 2023, however regrettable the incident might have been. As Mr Robinson points out in his written submissions, there is no evidence that the plaintiff had the email read to him or if it had come to his attention, the effect it had upon him. Bearing in mind that aggravated damages are compensatory, there is no evidence of any additional or enhanced loss caused by the email of 25 September 2023, and I would have rejected the claim for aggravated damages. 

Likewise, I would have rejected the claim for exemplary damages. There is simply nothing in the conduct of the first defendant’s solicitors that amounted to anything like contumelious disregard for the plaintiff’s rights or any criminal conduct by any stretch of any professional’s imagination. 

Ultimately, on 28 February 2025, the New South Wales Supreme Court ordered as follows:  

  1. Judgment for the first defendant against the plaintiff. 
  2. The plaintiff to pay the first defendant’s costs. 
  3. Judgment for the second defendant against the plaintiff. 
  4. The plaintiff to pay the second defendant’s costs. 
  5. Judgment for the third defendant against the plaintiff. 
  6. The plaintiff to pay the third defendant’s costs. 

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