Category:
Created:
Updated:
SHOULD AN INSURER HAVE TO ANSWER A SUBPOENA FOR INFORMATION IT HAS ON SEXUAL ABUSE ALLEGATIONS AGAINST A PRIEST?
Di Cesare v Bird & Anor [2021] VSC 25 (2 February 2021)
This case involves the determination of whether the subpoena filed by the plaintiff against the respondent will assist the plaintiff’s case after alleging that he was sexually abused by a priest.
Facts:
The plaintiff alleges that when he was a child he was sexually abused by Robert Claffey (‘Claffey’), who was at the time a Catholic priest in the diocese at Ballarat (‘the diocese’). He brings this proceeding claiming there was negligence by the diocese which was a cause of the abuse and his injuries, and that the diocese is vicariously liable for the acts of Claffe
Catholic Church Insurance Limited (‘CCI’) is an insurer of the diocese. The plaintiff subpoenaed CCI to produce documents it holds relating to sexual abuse committed or allegedly committed by Claffey.
CCI has objected to the subpoena. CCI submits that to comply with the subpoena it will be necessary to review each document to ascertain whether it ‘relates to’ the subject matter stipulated in the subpoena, to ascertain whether privilege inheres, and to protect the privacy of other complainants. The burden on CCI of responding to the subpoena, measured against the limited degree of relevance of documents which may be produced to any fact in issue in the proceeding, is such that the subpoena is oppressive and should be set aside.
Issue: Should the subpoena be issued?
Law:
Analysis:
The plaintiff alleges the diocese should have known Claffey was sexually abusing children in part by reason of the extensive abuse perpetrated by him since 1970. There is no doubt that Claffey abused a number of children in the diocese before November 1984 and that CCI holds claim files which include records relating to claims of abuse, the claimants and Claffey. There will be documents recording the circumstances in which the abuse occurred. Of course it is possible that the diocese did not know of Claffey’s offending. However, there is a reasonable possibility that knowledge of surrounding circumstances which falls short of showing that the diocese knew Claffey was abusing children and was a pedophile may, when all the evidence is considered, assist the plaintiff to establish that, with reasonable supervision and enquiry, the diocese should have known this was occurring.
The plaintiff’s case is not so narrow as CCI’s submissions suggest and is not based solely on proof that the diocese knew or ought to have known that Claffey was a pedophile. The pleadings raise more generally the alleged duty to protect the plaintiff from sexual abuse by diocesan priests, the foreseeability of the risk of harm to the plaintiff from sexual abuse by Claffey and, in relation to breach, issues of training, supervision, instruction, reporting, education and the systems which allowed Claffey to regularly have unsupervised access to children.
The plaintiff may be able to use documents in all categories to assist to prove breach by establishing that there were systemic deficiencies by the diocese in supervision, instruction, training, reporting, education or access by Claffey to children, which were a cause of the abuse.
Conclusion: Court concludes that there is a legitimate forensic purpose for the subpoena. There is a reasonable possibility that the documents sought will materially assist the plaintiff’s case, and will be relevant to the issues in dispute.
0
0
0
0
0
0
0
