The decision in Kawicki v Trustees of the Marist Brothers [2026] NSWSC 289 is in relation to a civil claim of damages for historical child sexual abuse. The plaintiff alleged that he had been sexually abused as a child by teachers at the Marist Brothers College in Maitland between 1960 and 1967. For most of the proceedings, the plaintiff was self-represented. He sought damages for the long-term psychological harm he suffered, arguing that the defendant owed a duty of care to students at the school and was negligent, leading to the abuse. The plaintiff significantly relied on vicariously liability which makes an organisation responsible for wrongful acts committed by individuals related to it.
However, precedent created by the decision of High Court of Australia in Bird v DP [2024] HCA 41; (2024) 98 ALJR 1349 stated that vicarious liability only applies where there is a true employment relationship and does not extend to relationships that merely ‘akin to employment’. In this case, the alleged perpetrators were members of a religious order carrying out ministry roles and not contractual employees. As a result, the organisation could not be held vicariously liable for their actions. The court also considered a non-delegable duty of care however this augment was not pursued in the pleadings and earlier High Court precedents limited it.
Despite those limitations, the court still assessed the damages in relation to the plaintiffs’ psychological conditions. The court accepted that the abuse had contributed to long term mental health issues including depression, although other factors such as alcoholism were considered. As a result, the court awarded general damages based on 23% of a most extreme case under the Civil Liability Act. In determining the 23%, the court made a broad evaluative judgement based on what was just and equitable, considering both parties conduct and the responsibility of the psychological condition. Although the defendant’s wrongdoing was the primary cause of harm, the plaintiff’s conduct was found to have made a real but lesser contribution.
The Court also ordered the defendant to pay the plaintiffs legal costs for the period he did have legal representation.
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this publication is accurate at the date it is received or that it will continue to be accurate in the future. We are not responsible for the information of any source to which a link is provided or reference is made and exclude all liability in connection with use of these sources. If you do not wish to receive newsletters from us, please let us know.