Today, I received what is known as a Section 20 Liability Response from solicitors acting for a religious institution in which our client was subject to devastating child sexual abuse.
Their denial of liability was along the lines of “the institution is not liable as the institution was not on notice, constructive or actual, as to the offending that forms the basis of the claim”
For a plaintiff to succeed in a civil claim for damages against an institution for childhood sexual abuse carried out by a member or employee of that institution, it is necessary to establish vicarious liability on the part of the institution. Vicarious liability can be established if the plaintiff is able to show that the institution knew, or ought to have known, of the risk of the perpetrator sexually abusing children.
Historically, denial of such prior knowledge or ‘notice’ has been the fall-back position of many institutions charged with the care and welfare of children. It is disappointing to see the level of denial of prior ‘notice’ that persists to this day.
George Pell gave evidence to the Royal Commission by video link from Rome in February and March 2016. His evidence to the Royal Commission and their findings in relation to such evidence was previously redacted from their reports into the Catholic Church authorities in Ballarat (case study number 28) and the Catholic Archdiocese of Melbourne (case study number 35) as Pell was the subject of criminal proceedings. As Pell’s criminal proceedings have come to an end, that evidence and those findings have now been released.
In relation to Pell’s knowledge, while serving as an auxiliary Bishop of the Archdiocese of Melbourne, about “Father Searson”, the Commission had this to say:
- In November 1989, Bishop George Pell, then an Auxiliary Bishop of the Archdiocese, received a delegation of teachers from Holy Family School. Prior to receiving the delegation, he was provided with a list of incidents and grievances about Father Searson that the staff had prepared. He also met with Mr Norm Lalor, the CEO chairperson for primary staff, prior to the delegation.
- Cardinal Pell’s evidence was that, despite his request for a briefing, Mr Lalor did not take him through, in ‘any comprehensive way at all’, the CEO’s dealings with Father Searson and the complaints against him. Cardinal Pell told us that he and Mr Lalor discussed the list of grievances and Mr Sleeman’s resignation. Cardinal Pell said he might have been told ‘in a non-specific way’ that part of the story behind Mr Sleeman’s resignation was that he had raised complaints of sexual misconduct by Father Searson. Cardinal Pell said that the implication was that the allegations could not be sustained.
- The effect of Cardinal Pell’s evidence, which he expressly acknowledged, was that the CEO (through Mr Lalor) deceived him because they did not tell him what they knew about Father Searson’s misbehaviour.
- We are satisfied that Cardinal Pell’s evidence as to the reasons that the CEO deceived him was implausible. We do not accept that Bishop Pell was deceived, intentionally or otherwise.
- We are satisfied that, on the basis of the matters known to Bishop Pell on his own evidence (being the matters on the list of incidents and grievances and the ‘non-specific’ allegation of sexual misconduct), he ought reasonably to have concluded that action needed to be taken in relation to Father Searson.
- It was incumbent on Bishop Pell, as an Auxiliary Bishop with responsibilities for the welfare of the children in the Catholic community of his region, to take such action as he could to advocate that Father Searson be removed or suspended or, at least, that a thorough investigation be undertaken of the allegations. It was the same responsibility that attached to other Auxiliary Bishops and the Vicar General when they received complaints.
- As Auxiliary Bishop to the Archbishop, Bishop Pell had the capacity and opportunity to urge the Archbishop to take action against Father Searson in order to protect the children of the parish and the Catholic community of his region. Cardinal Pell’s evidence was that he could not recall recommending a particular course of action to the Archbishop. He conceded that, in retrospect, he might have been ‘a bit more pushy’ with all of the parties involved. We do not accept any qualification that this conclusion is only appreciable in retrospect. On the basis of what was known to Bishop Pell in 1989, it ought to have been obvious to him at the time. He should have advised the Archbishop to remove Father Searson and he did not do so.
- BVC told us that he was sexually abused by Father Searson beginning in around the middle of 1992. BVC was then in grade 5 at Holy Family School. BVC’s story reveals the tragic consequences of inaction. If Father Searson had been removed before 1992, BVC may not have been sexually abused.
Similarly unfavourable findings were made concerning Pell’s knowledge and inaction in relation to other notorious offenders in both Ballarat and Melbourne, including Father Gerald Ridsdale, Father Baker and Father Ted Dowlan.
To those of us practising in this area, this is familiar territory. Many survivors report having made complaints or allegations that were swept under the rug, with the perpetrator swiftly moved on, following the “out of sight, out of mind” / “hear no evil, speak no evil” mentality so prevalent in religious institutions at the time.
The upshot of the Royal Commissions findings is that victims of Father Searson, Father Gerald Ridsdale, Father Baker and Father Ted Dowlan ought now be able to hold the Catholic Church liable for acts of abuse that occurred after the relevant Church officials knew or ought to have known of the dangers that each of the above perpetrators’ posed to children in their respective parishes. The significance of these findings is also further proof of the mass of evidence held by the Catholic Church that prior to the Royal Commission was not freely available to survivors.
The intense spotlight thrown by the Royal Commission on the knowledge and inaction of various officials in various institutions is heartening to survivors. We now face the challenge to take up the cudgel and shine that spotlight for other victims of other perpetrators.
 Case Study number 35, page 20
 Case Study number 35, page 23