TT v The Diocese of Saint Maron: Vicarious Liability in Abuse Cases

In the recent matter of TT v The Diocese of Saint Maron, Sydney & SS (No 3) [2024] NSWSC 943, the plaintiff, TT (a pseudonym), brought proceedings against the defendants, The Diocese of Saint Maron, Sydney (the First Defendant) and SS (a pseudonym) (the Second Defendant), in relation to a historical abuse claim.  

The plaintiff was born in 1990. His family were and are devout members of the Maronite Catholic Church. The first defendant is The Diocese of St Maron, Sydney which encompasses the St Joseph’s Maronite Catholic Church in Croydon. The second defendant, SS, is a Priest. He came to St Joseph’s from Lebanon where he had been ordained as a Sub-Deacon on 8 December 2001. He was then ordained as a Deacon at St Joseph’s on 14 May 2005, and as a Priest on 6 May 2006. 

The plaintiff alleges that he was sexually abused by the second defendant, beginning when he was 13 or 14 years of age and continuing through to a particular incident in October 2005. 

The plaintiff alleges as follows against the first defendant:  

The first defendant owed a duty to take reasonable care for the safety and welfare of the plaintiff when the plaintiff was engaged in church activities. 

The first defendant breached its duty of care to the plaintiff as follows: 

• by reason of the failure of the first defendant to take reasonable care for the safety and welfare of the plaintiff, the plaintiff was subjected to a risk of harm, namely that of being sexually assaulted by the second defendant.    
• the risk of harm was foreseeable because it ought to have been known to the defendant. 

Additionally, or alternatively, the first defendant is vicariously liable for sexual abuse by the second defendant and the injury, loss and damage caused to the plaintiff. 

The allegation against the second defendant is one of direct sexual assault upon the plaintiff. 

The plaintiff claims that he was psychiatrically injured by the conduct of the defendants. The heads of damages which he claims are non-economic loss, past and future economic loss, past and future medical expenses, and past and future domestic care. As far as the applicable law is concerned, the parties agreed that the plaintiff’s allegations in negligence against the first defendant fall under the Civil Liability Act 2002 (NSW).  

The allegations of sexual assault against the second defendant, including the assessment of damages, are to be decided at common law which would, in turn, encompass any vicarious liability of the first defendant. 

Both defendants denied the plaintiff’s allegations, saying that the sexual abuse never occurred. The defendants also challenged the extent of the plaintiff’s damages’ claim. 

The second defendant had gone to trial before a judge and jury in the District Court in May 2016 in relation to the plaintiff’s allegations of sexual abuse. He faced a single charge of assaulting the plaintiff, and at the time committing an act of indecency upon him in circumstances of aggravation. The charge related to the incident in October 2005. The second defendant was convicted and sentenced to a term of imprisonment. On 7 February 2018 the Court of Criminal Appeal set aside the conviction and entered a verdict of acquittal. 

In this matter the court assessed the evidence and held that the plaintiff had proved his case in relation to the abuse (at [238]). However, the Court found that grooming had not occurred and rejected any finding that any person in the church hierarchy was aware of any misconduct by the second defendant. Accordingly, the action in negligence against the first defendant failed. 

In relation to vicarious liability, the court held that for all intents and purposes, but other than the receipt of remuneration, the second defendant held a position and was treated as if he was an employee of the church. In addition, the trust that his position allowed him to build up with the community provided him both with “the opportunity to sexually abuse the respondent, but also the occasion for the commission” of the abuse (at [260]). 

However, the trial judge went on to say at [263] referring to Bird v DP (2023) 69 VR 408; [2023] VSCA 66 that: 

This conclusion is obviously a product of me taking the path dictated in Bird. I do not think it appropriate for me to find that Bird is plainly wrong. The result in Bird is a product of analysis as set out in the judgment. The case is currently before the High Court; it is up to the High Court to decide if it is plainly wrong or not. I would not presume to make such a decision. Obviously if the High Court takes the view that the decision should be overturned and vicarious liability is restricted to cases involving employment, then my decision will be wrong. That is a matter out of my hands and for the future.