Abuse Law Case Update: MC v White Fathers [2024] NSWSC 1658 Verdict

In the recent matter of MC v Casa Generalizia Della Societa Dei Missionari D’Africa Detti Padri Bianchi (White Fathers) [2024] NSWSC 1658, the plaintiff (MC, a pseudonym) commenced court proceedings seeking damages against the defendant, Casa Generalizia Della Societa Dei Missionari D’Africa Detta Padri Bianchi (“the White Fathers”). The plaintiff alleged that the defendant is liable for damages, in either negligence or by way of vicarious liability, for the sexual assaults the plaintiff suffered sustained at the hands of Father Camil Dufort (“Fr Dufort”) in 1973 to 1975 at St Mary’s Church in Erskineville in New South Wales.

In or about 1973, the plaintiff started attending baptism classes, which were given by a person who he knew as Fr Dufort. The head mistress of Alexandria Public School, Mrs Abdullah, was a devout Catholic and was keen for the plaintiff to be baptised. She agreed to be the plaintiff’s godmother. Mr Emerson, the plaintiff’s physical education teacher, agreed to become his godfather. HH thought that the plaintiff should be baptised. Mrs Abdullah put the plaintiff in touch with Fr Dufort. The plaintiff then met with him for baptism classes which he attended, first fortnightly and then weekly, at St Mary’s Church in Erskineville Sydney. Whilst attending baptism classes Fr Dufort would be affectionate towards the plaintiff, touching his back, rubbing his arms and legs, and telling him “you’ll be okay”. The plaintiff was baptised on 8 November 1973.

After his baptism lessons were completed, Fr Dufort invited the plaintiff to attend confessional classes. He attended those classes with Fr Dufort every one to two weeks over approximately two years. Fr Dufort appeared to be caring and took an interest in the plaintiff. The plaintiff was never confirmed, despite attending many confessional classes, as he was only eight years old when he was baptised, and Fr Dufort left St Mary’s Church when he was about ten years old in 1975 (the usual age of confirmation being twelve years old).

Over time, what started out as a hand on the shoulder or a hug escalated to sexual assault. The plaintiff was in awe of Fr Dufort. He was a respected priest and was being friendly to him. He trusted him because he was a priest. He had “all the robes on”, and conducted services like the taking of communion. He believed Fr Dufort to be a “holy man”.

The sexual assaults perpetrated upon the plaintiff by Fr Dufort included:-

(a) kissing him on the lips;

(b) forcing the plaintiff to touch his genitals;

(c) touching the plaintiff’s genitals;

(d) performing oral sex on the plaintiff;

(e) forcing the plaintiff to perform oral sex on him;

(f) ejaculating in the plaintiff’s mouth;

(g) ejaculating in the plaintiff’s anus; and

(h) anally penetrating the plaintiff.

The abuse took place regularly, generally in the afternoon after school, one to two times each week. The abuse always occurred when the plaintiff and Fr Dufort were alone. Fr Dufort would bribe the plaintiff with money and would threaten to send him to a boys’ home if he told anyone about their secret. Fr Dufort would threaten that he would tell welfare and social services that the plaintiff was living with HH, who was not legally approved to be living alone with the plaintiff, and he would tell the plaintiff that he would be removed and taken to a foster home.

The abuse occurred within the church on approximately 10 occasions. The abuse inside the church occurred at the back of the church in the pews where it was very dark and within the closet or dressing room where the priests’ robes were hung. The abuse in the church occurred in the afternoon between 4.00pm to 6.00pm. The church would be shut, and it was dark inside.

The abuse was also perpetrated in the presbytery attached to the church at least once a week. Fr Dufort would take the plaintiff to the presbytery, and they would enter through the back entrance rather than the front door. There were two side doors of the presbytery, which were accessed through a walkway between the church and the presbytery. The first side door was larger and prettier than the second and led almost immediately to a staircase which went upstairs to what the plaintiff believed was the nicer area of the presbytery. The plaintiff did not go up there. The second side door opened to a small kitchenette located to the left and a solid wall to the right. There was a very elderly priest who would always be in a day bed next to the kitchenette. The plaintiff believes that this person was a retired priest who had dementia and would have been about 80 years old at the time of the abuse.

This matter was marked part-heard pending the High Court’s judgment in Bird v DP (a pseudonym) [2024] HCA 41 (“Bird”). Further submissions were recently heard, and the plaintiff’s claim in vicarious liability was abandoned. The matter falls to be determined pursuant to the provisions of the Civil Liability Act 2002 (NSW) (“CLA”).

The plaintiff alleges the following particulars of breach of duty by the defendant:-

The defendant, by its servants and agents failed:

(a) To ensure that those persons charged with the care and supervision of the plaintiff were fit and proper persons to undertake and              oversee such care, supervision and treatment of children;

(b) To have in place appropriate safeguards to protect the parishioners from predatory behaviour of its priests;

(c) To ensure that those persons charged with the care and supervision of the plaintiff did not have unfettered and unsupervised access to the plaintiff;

(d) To ensure that the plaintiff remained safe and free from abuse whilst attending the parish and adjoining priest residence;

(e) To provide a mechanism by which fellow priests can report suspicious and/or concerning behaviour of their brother priests;

(f) To provide a mechanism by which abuse of children may be safely reported;

(g) To ensure adequate supervision of the activities that took place within the parish of both priests and parishioners; and

(h) To ensure that the plaintiff remained safe and free from abuse while under the supervision of priests working at the parish.

In its Defence, the White Fathers do not admit or deny all the other paragraphs of the plaintiff’s Statement of Claim, so the plaintiff is put to proof on all matters concerning his claim.

At [81], the Court provided as follows:

At the outset, I wish to record that I believe that the plaintiff was abused by Fr Dufort as he has alleged. He has suffered greatly over the course of his lifetime and has shown considerable courage coming forward. I must, however, apply the law in determining his claim.

In its consideration, the Court provided as follows:

Nothing in the evidence before me points to a breach of a duty of care owed to the plaintiff. It simply cannot be said that the evidence demonstrates that the risk of harm to the plaintiff was reasonably foreseeable. There is nothing to suggest that the Fr Coolen knew or ought to have known that Fr Dufort was sexually assaulting the plaintiff or that he was interacting with him in an inappropriate manner [at 100].

Further, as the report of Fr Dillon candidly notes, if Fr Coolen – as the superior of the house – was aware that anything untoward was occurring, he would have done something about it. As Fr Dillon observes, in the 1970s, the high standing and respect afforded to priests in the community gave them a significant level of authority, control and power over the behaviour of a child parishioner which would have been endorsed by parents, teachers and other parishioners [at 101].

In this case, Fr Dufort abused his authority, trust and control over the plaintiff. Of that I have no doubt. Notwithstanding that finding, I cannot find, on the evidence adduced in this case, that the risk of harm was foreseeable such that s 5B(1)(a) is satisfied. The claim in negligence therefore fails [at 102].

From [104] to [127], the Court provided that, against the possibility that the Court’s judgement is wrong, damages would have been awarded to the plaintiff if successful as follows:

Non-economic loss – $502,500

Past economic loss – $269,500

Past superannuation – $29,645

Future economic loss – $232,242

Future superannuation – $25,546

Past out-of-pocket expenses – $0.00

Future out-of-pocket expenses – $45,230

Totalling $1,104,664.

Ultimately, on 20 December 2024, the New South Wales Supreme Court ordered as follows:

1. Verdict and judgment for the defendant;

2. The exhibits are to be returned;

3. I make no order as to costs, to the intent that each party pay his and its own costs of the proceedings;

(4) If any other costs order is cavilled for, the plaintiff’s solicitors are to contact my Associate within 7 days.

We are specialist abuse lawyers and can help you receive acknowledgement, meaningful apology and financial resolution from those institutions and systems of power that failed to protect you from harm. If you would like advice in relation to a childhood or adult sexual, physical and/or psychological/emotional abuse claim in any jurisdiction in Australia, please reach out to Littles Lawyers today. 

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