Marist Brothers ordered to pay former Maitland student sexually abused in 60s

In a landmark case, the NSW Supreme Court has ordered the Trustees of the Marist Brothers to pay $186,000 in damages to a former student of Marist Brothers College Maitland, after finding he was sexually abused by a teacher during the early 1960s when he was aged about 10 to 11.

Justice Stephen Campbell handed down the decision on Monday, March 30, finding the religious organisation liable under a non-delegable duty of care owed by the school to its students - a legal pathway that was recently reopened by the High Court of Australia earlier this year.

The former student, now in his mid-70s, appeared in court without legal representation and alleged he was abused by a teacher known by the religious name Brother Florentine "over 40 times", with the most serious abuse occurring while in sixth class when he was between 10 and 11 years old.

The abuse occurred after school hours in a darkened classroom, when the teacher kept the boy behind under the pretence of reviewing his schoolwork.

In his oral evidence, the man described the experience as "absolutely terrifying" and said he sat "like a stunned mullet" each time the abuse occurred.

He told the court that the memory had remained "permanently ingrained" in his brain and psyche for more than six decades.

Justice Campbell acknowledged the significant challenges involved in assessing evidence relating to events from 65 years ago, noting the "fallibility of human memory" and the need for careful scrutiny of allegations of a criminal nature.

However, he found the former student's courtroom account to be reliable, noting that despite a tendency toward exaggeration in out-of-court statements, his in-court evidence was measured and credible.

The finding was supported by tendency evidence from two other witnesses, including the plaintiff's brother, who described similar conduct by the same teacher, and a separate former student who said Brother Florentine had attempted to have him sit on his lap in year six before caning him when he refused.

The case relied on a significant shift in Australian law.

The defendant had argued it could not be held vicariously liable for the teacher's conduct because brothers of the Marist order were not employed under contracts of service.

Justice Campbell agreed vicarious liability did not apply, but found the school was instead liable through its non-delegable duty of care to students - a principle recently restored by the High Court's landmark decision in AA v The Trustees for the Roman Catholic Church for the Diocese of Maitland-Newcastle, handed down in February this year. That ruling overturned a 2003 precedent that had previously barred victims of institutional child abuse from accessing this avenue of legal redress.

The court heard the abuse had lasting consequences for the man's mental health.

Psychiatric evidence from multiple experts supported findings of a persistent depressive disorder and alcohol use disorder, both linked in part to the childhood abuse.

The man told the court he had drunk heavily every day for decades, describing the alcohol as self-medication, and that he had never disclosed the abuse to partners, family or doctors until consulting a solicitor in 2017.

Justice Campbell assessed non-economic loss at 30 per cent of a most extreme case, reflecting the severity and duration of the man's suffering while accounting for other contributing factors, including a protracted dispute with the Department of Veterans Affairs, and a genetic predisposition to alcohol dependence.

An additional $1000 was awarded for medical expenses.

The court rejected a separate claim for serious physical abuse through repeated caning, finding the punishment fell within the bounds of lawful correction under standards prevailing in NSW schools during the 1960s.

The Marist Brothers were also ordered to pay the plaintiff's legal costs.