In the recent matter of QC v The Scout Association of Australia New South Wales Branch [2025] ACTSC 228, the plaintiff (QC, a pseudonym) commenced proceedings on 11 November 2024 against the defendants The Scout Association of Australia New South Wales Branch (first defendant), and The Scout Association of Australia ACT Branch Incorporated (second defendant) in which he sought damages for personal injuries arising from historical sexual assaults alleged to have been committed against him when he was a boy by an adult member of his local Scout group.

The perpetrator is said to have held various roles in that and another Scout group over the period of the alleged abuse, including the positions of Assistant Scout Leader and Scout Leader. Although no defence has yet been filed, the defendants have indicated that they will deny the man (referred to as the Scout Leader by the Court) held any position of leadership and deny that he belonged to the same Scout group as the plaintiff.

The Scout Leader is alleged to have started offending against the plaintiff in 1980, when the plaintiff was just 12. In the summer of that year, the plaintiff attended a week-long hike in NSW organised by his Scout group. He alleges that, during that hike, he was required to share a tent with the Scout Leader and that the Scout Leader sexually assaulted him in the tent on at least two separate occasions. The pleading specifies many further alleged assaults over the following five years. Some of the incidents complained of are alleged to have involved the provision of alcohol and illicit drugs to the plaintiff by the Scout Leader. The plaintiff claims damages for multiple psychological injuries arising from those allegations including post-traumatic stress disorder, alcohol use disorder, depression, substance abuse and numerous suicide attempts.

The Scout Leader is not a party to the proceedings. The defendants are the Scout Association of Australia, NSW Branch, which is alleged to have been responsible for the plaintiff’s Scout group up to and including 31 March 1981, and the Scout Association of Australia, ACT Branch, which is alleged to have been responsible for the Scout group after that date. Each of those entities is an incorporated association.

The plaintiff filed an amended statement of claim seeking to address issues raised in correspondence by the defendants. Scouting NSW considered that the amended statement of claim did not address the issues raised and, by application filed 13 February 2025, sought to have that pleading struck out and alternatively an order that the plaintiff provide further and better particulars of the claim. Scouting ACT did not bring a separate application but supported the application brought by Scouting NSW. Since the filing of the application, the plaintiff has propounded two versions of a draft second amended statement of claim. The application was argued by reference to those drafts on the implicit assumption that the Court would not grant leave to file a pleading that was liable to be struck out.

The Court noted at [11] as follows:

Absent any allegation of employment of the Scout Leader by the defendants and following the decision in Bird, the only paths to liability available to the plaintiff are breach of a duty to take reasonable care, which I will term “direct negligence”, and breach of a non-delegable duty of care.

The Court further noted at [23] to [24] as follows:

…The decision of the High Court in Lepore has been taken to hold that there can be no non-delegable duty to ensure that a delegate does not commit an intentional criminal act…

However, it does not follow that a claim alleging the existence of a duty to ensure that reasonable care was taken to protect the plaintiff from the risk of sexual abuse must necessarily be struck out.

After referring to the decisions in Lepore, Bird and AA, the Court held at [27] as follows:

Those observations in both appeals implicitly assume that there will be cases in which it will be appropriate not to exercise the discretion to strike out a pleading even if, on the existing state of the law, it discloses no reasonable cause of action. If the cause of action invoked raises issues of such importance and complexity as might warrant the attention of an appellate court, particularly if it raises the spectre of the High Court being invited to revisit one of its own decisions, a puisne judge might properly stay her hand in such a case rather than accede to a demurrer application. That is a necessary incident of the doctrine of precedent.

Of note, at [29], the Court provided as follows:

…I would not have struck out the pleading solely on the basis that it pleaded a non-delegable duty to ensure the plaintiff was protected from intentional criminal acts. As the law presently stands, that claim faced the hurdle of Lepore. However, the logical corollary of the High Court’s dismissal of the notice of contention in Bird on the ground that a non-delegable duty had not been pleaded at first instance is that a trial court could properly decline to exercise its discretion to strike out a pleading that seemed to raise the issue in circumstances that might test the parameters of Lepore. The High Court evidently considered that, for the point to be tested in that Court, it would be preferable to have findings of fact made at first instance to frame the issue, even if the claim was doomed to fail at first instance.

However, is this instance, the plaintiff addressed the issues raised by the Court by simply seeking to delete the words “non-delegable” from the pleading and confining his claim to direct negligence. The defendants’ application fell to be determined on the premise that the only claim is direct liability for negligence.

Considering the pleading by reference to section 43 of the Civil Law (Wrongs) Act 2002 (ACT), the Court held at [68] to [69] as follows:

…..I am satisfied that the plaintiff has pleaded the material facts of the elements of the existence of a duty to take reasonable care to protect the plaintiff from a risk of harm, namely, sexual abuse by adult members of the Scouts. It may be accepted, without more, that that risk of harm was not insignificant. However, the plaintiff has not pleaded material facts to support the allegation that the risk was foreseeable. Furthermore, the precautions it is alleged a reasonable person would have taken appear to have been borrowed from another pleading and plainly require revisiting; some are capable of being relied on in the present case; others are not. One alleges a duty “to ensure”, which appears to be a hangover from the now abandoned claim for breach of a non-delegable duty.

Accordingly, the amended statement of claim should be struck out with leave to replead. Leave will not be granted to file an amended pleading in the form of the draft second amendment.

Ultimately, on 3 June 2025, the Supreme Court of the Australian Capital Territory ordered that the amended statement of claim dated 26 February 2025 is struck out with leave to replead.

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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