LBE v Perth Diocesan Trustees & Western Australian Cricket Association Ltd [2024] WADC 92 (Link to JADE).
In these two sets of proceedings the plaintiffs sought compensation from the Perth Diocesan Trustees (the Trustees) and the Western Australian Cricket Association Ltd (WACA) for sexual abuse that they allege they suffered at the hands of Mr Wenlock..
Against the Trustees, the plaintiffs alleged that Mr Wenlock between 1963 and 1977, Mr Wenlock was employed by the Trustees as the Warden of St Christopher’s Hostel. It was pleaded that between 1976 – 1977, three complaints were made about the conduct of Mr Wenlock to the Archdeacon, who invited him to resign. A report about his alleged conduct was not made to any relevant authority.
Negligence & Breach of statutory duty
The plaintiffs alleged that the Trustees are liable to compensate them because they negligently failed to report Mr Wenlock’s conduct to the appropriate authorities, or to warn the WACA about that conduct and publicly expose him.
The plaintiffs also allege that the Trustees breached statutory duties that the Trustees owed to them.
Interlocutory applications and orders
The Trustees contended that they did not owe the plaintiffs such a duty in negligence. They argued that the plaintiffs’ claims stretched the concept of a duty of care well beyond that which has been recognised by the law. However their application for summary judgment in respect of the negligence claim failed. The court noted at [96] that:
The imposition of a duty in the circumstances alleged by the plaintiffs would seem to me to involve a significant extension of the present law. Whether the salient features alleged by the plaintiffs were present and, if so, whether they would be sufficient to give rise to a duty of care might reasonably be disputed.
The court held that the merits of the plaintiffs’ arguments that the Trustees owed them a duty of care are best considered at trial upon all of the relevant evidence (and after discovery has been given. ([99])
The Trustees also argued that the statutes that the plaintiffs allege were breached do not create any relevant statutory duties and do not confer any right on the plaintiffs to sue for damages. In relation to that argument, the court held that current pleading of the plaintiffs’ claims for breach of statutory duty obscured the precise nature of the claims being made. It was therefore difficult to make any proper assessment of whether or not those claims warranted trial. ([100]).
The paragraphs of the statement of claim that pleaded these claims failed to properly identify the particular statutory duties that it is alleged that the Trustees owed, or the relevant provisions of the statutes that it is alleged give rise to those duties. ([101]).
The court made orders for strike out the relevant paragraphs of the statement of claim (the breach of statutory duty paragraphs) with leave to re-plead.
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