Kawicki v Trustees of the Marist Brothers t/as Marist Brothers Sydney Province [2026] NSWCA 220 (Link to Caselaw).
HEADNOTE
The appellant, Mr Tadeusz Kawicki, alleged that he was the victim of both sexual abuse and physical abuse while he was a student at the Marist Brothers College, Maitland between 1960 and 1967 when he was between 10 and 17 years old. The primary judge found that Mr Kawicki’s teacher at the College, Brother Florentine, had sexually abused him while he was a student but rejected Mr Kawicki’s case insofar as it was based upon physical abuse. His Honour entered judgment for Mr Kawicki against Marist Brothers in the sum of $186,000, comprising $185,000 for non-economic loss and $1,000 for medical expenses. No damages were awarded for diminution in earning capacity.
On appeal, Mr Kawicki contended that the primary judge erred in finding that Mr Kawicki had not suffered any diminution in earning capacity productive of financial loss as a consequence of the sexual abuse (ground 1). Mr Kawicki also contended that the primary judge failed to give adequate consideration to the effect of Mr Kawicki’s inability to form and maintain stable personal relationships on his earning capacity and failed to take into account the effect of that impairment on his working life and economic prospects (ground 3). Ground 2 was not pressed.
The Court (Griffiths AJA, Leeming JA agreeing, Adamson JA dissenting) held, dismissing the appeal with costs:
Ground 1: no diminution in earning capacity from sexual abuse
- Per Griffiths AJA (Leeming JA agreeing): The limited nature of the expert evidence and the inconsistencies in Mr Kawicki’s own oral evidence justified the primary judge not being satisfied, on the balance of probabilities, that Mr Kawicki’s incapacity during the period up until normal retirement age and the resulting financial loss was caused or materially contributed to by the mental harm resulting from the child sexual abuse. Further, the primary judge’s attribution of Mr Kawicki’s unfitness for work after his cessation of full time work in 2000 to injuries other than that occasioned by the sexual abuse was consistent with the appellant’s evidence in chief: [1] (Leeming JA), [139], [141] (Griffiths AJA).
- Per Adamson JA (dissenting): The effects of alcohol use disorder, which were consequential on the sexual abuse, diminished Mr Kawicki’s economic capacity by causing him to be unable to work consistently for five days a week. The compelling inference is that he suffered economic loss as a consequence of the sexual abuse by the reduction in the days on which he could work. His diminution in earning capacity has resulted in economic loss for which he is entitled to be compensated in the sum of $247,500, including interest: [65], [79].
Ground 3: no adequate consideration of effect of Mr Kawicki’s inability to form and maintain relationships on his earning capacity
- Mr Kawicki’s relationship impairment was but one manifestation of his depressive disorder and alcohol use disorder. Those conditions were expressly considered by the primary judge when assessing whether Mr Kawicki had suffered economic loss. In any event, as acknowledged by Mr Kawicki, there was no evidence that specifically connected his relationship impairment to any loss of employment or earnings: [1] (Leeming JA), [10] (Adamson JA), [149] (Griffiths AJA).
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