Secondary victims in abuse cases – developing law in Australia and England

The Australian Victorian Supreme Court has permitted a claim for damages by a secondary victim of abuse and effectively confirmed the extension of liability to secondary victims.

RWQ v The Catholic Archdiocese of Melbourne & Ors [2022] VSC 483 involved a claim brought pursuant to Part IX of the Wrongs Act 1958 (VIC) (the ‘1958 Act). The claim was brought by a father whose son had allegedly been abused by George Pell, the second defendant to the proceedings and a Vatican official, in 1996 when Pell was appointed as an assistant priest, bishop, auxiliary bishop and cardinal in Australia. The claim was also brought against the Catholic Archdiocese of Melbourne, the first defendant.

The pleadings of the plaintiff alleged that his son had turned to illicit substances at the age of 14 to deal with the trauma of the alleged abuse and that this had resulted in his fatal heroin overdose in 2014. The plaintiff came to know of his son’s alleged abuse by Pell in July 2015, subsequent on having been informed by the Australian State’s Victoria (Sano Task Force). The plaintiff alleged that a result of learning about the abuse of his son, he has suffered nervous shock.

The court was required to consider whether the father of the alleged victim, could be permitted to bring a claim for injuries he had suffered as a secondary victim of the abuse his son had suffered. The court determined that the sexual abuse and subsequent overdose of the plaintiff’s son was sufficient to allow him to pursue a claim for nervous shock as the victim of his son’s alleged sexual abuse.

The defendants submitted that the application of the 1958 Act was confined to claims made by individuals who had personally been subjected to the abuse (the ‘primary victim”). The defendants argued that the plaintiff, having never been the direct victim of the alleged abuse, should not be permitted to make a claim for injuries which resulted from his connection with the alleged abuse as a secondary victim.

Consideration was to be given to section 4(2) of the 1958 Act which permits a ‘proceeding for a claim founded on or arising from child abuse’. The court found that the plain meaning of the words ‘founded on or arising from child abuse’ in s 4(2) of the 1958 Act includes a claim for nervous shock brought by a parent of a child alleged to have been sexually abused.

As a result of this finding, the court has determined that the 1958 Act had an operative effect. It was found that, should the claim prove successful, the Catholic Archdiocese of Melbourne would incur liability for the nervous shock suffered by the claimant’s father as a secondary victim, despite his never being subject to abuse directly.

This finding will be significant in opening the gates for many further claims by parents, siblings and friends of those children who suffer from childhood abuse; a concern for organisations dealing with allegations of systemic or prolonged abuse. It is noted that this was an issue of statutory interpretation and the finding was made following an extensive review of extrinsic material.

Such findings are rare, if non-existent, in the courts of England & Wales, with the closest example being the claims brought by secondary victims of clinical negligence. However, these claims apply to a very small group of individuals who are required to demonstrate that they have proximity to the “relevant event” (the act of negligence) and not just proximity to the final consequences of the negligence.

This is an extremely high threshold that has been considered narrowly by the courts. Cases by secondary victims have regularly been refused by the courts on the basis that there is no proximity to the relevant event. In the case of Taylor v, A Novo (UK) Ltd [2013], where an injury at work led to a mother witnessing the death of her son three weeks later, it was held that the proximity must be to the incident and not the eventual death. It was held that there was not proximity in this case as the claimant had not witnessed the workplace accident, suggesting that unless the individual was present at the time of the initial event, they would not be able to bring a claim.

A recent case that involved young daughters witnessing their father dying in the street due to undiagnosed heart conditions failed due to their inability to prove proximity to the “relevant event” which, in this case, was the failed diagnosis. The matter was appealed along with two others, but the appeals failed on the basis that the court was bound by previous case law but an appeal to the Supreme Court was permitted. The application to the Supreme Court requests that they reconsider the idea of delayed trauma and situations where the psychological damages are foreseeable for secondary victims.

Within their judgment permitting the appeal, the Court of Appeal cited that they were concerned with the notion of extending the definition of secondary victims due to potential exposure to insurers. Without the boundaries that are currently in place, defendants and insurance companies could be exposed to high numbers of claims from one act of negligence and the responsibility will be for the judges to determine where that boundary should be set. There is a definite concern with allowing all reasonable conclusions or actions to end in the potential recovery of damages for family members who suffer psychiatric trauma as a result, and it is now for the Supreme Court to make a definitive ruling.

This insight was authored by Amanda Do, Alastair Gillespie, Lucinda Lyons and Katherine Neal.