Navigating The Increase In Historical Abuse Litigation: Emerging Challenges For Courts And Practitioners

In Hartnett v Trustees of the Roman Catholic Church for the Diocese of Wilcannia-Fores (No 7) [2025] NSWSC 128, the Supreme Court of New South Wales provided clarification as to the meaning of "serious physical abuse" in the operation of section 6A of the Limitation Act 1969 (NSW) and a useful insight into fact-finding with respect to tortious acts alleged to have taken place more than 20 years ago.

Background

The plaintiff, Mr Hartnett, brought proceedings against the defendant, Trustees of the Roman Catholic Church, alleging that he had suffered serious physical abuse at the hands of two school staff members, Sister Green and Mr Sweeney, while attending Saint Ignatius Parish School in Burke, NSW between 1992 and 1994.

The plaintiff claimed the defendant:

• was negligent in failing to exercise reasonable care and the obviate risk of physical and psychological injury by failing to institute and maintain a safe and appropriate system for disciplining children in the school
• failed to supervise and exercise appropriate control over the conduct of the staff members and their use of physical punishment
• was vicariously liable for Sister Green's actions of inflicting serious physical abuse on the Plaintiff; and
• was vicariously liable for Mr Sweeney's actions of inflicting serious physical abuse on the plaintiff.

The defendant denied liability and argued that the plaintiff, had failed to establish the alleged abuse had actually occurred and that even if it had, it did not amount to "serious physical abuse" to enliven s 6A of Limitation Act, which removes the limitation period for claims arising from sexual or serious physical abuse of a child.

The physical punishment allegedly inflicted by Sister Green was said to have involved:

• striking the plaintiff on his back, bottom, legs and hands with a long wooden ruler
• striking him with a ruler which such force it broke
• grabbing his ears, twisting his ears and dragging him
• making him stand outside in the sun in high temperatures for a prolonged period of time; and
• pulling his pants down and smacking his bottom with a ruler.

The plaintiff also claimed that Sweeney, a teacher's aide at the school, handled him and other students roughly when they were found truanting including by hitting him, twisting his ears, kicking him in the bottom and striking him by way of a 'karate chop'.

Proof of the factual allegations

The plaintiff and other students from his class gave evidence which amounted to what the Court described as an alleged "reign of terror" by Sister Green. The defendant called evidence from numerous staff who said that they had never witnessed any physical abuse, and from Sister Green who denied the allegations but did accept that she used some corporal punishment if children were engaged in physical fights, as a way of separating them.

Decision

In reconciling the evidence of the two camps of witnesses, the Court noted the difficulty posed by the effluxion of time which had "impoverished" the quality of the evidence. Ultimately, the Court was not satisfied that the plaintiff had proved that he had been subjected to the physical assaults as alleged. In making that finding, the Court relied on:

• the fact that there had been no prior disclosure of the alleged abuse, despite the plaintiff's disclosure of many other traumatic events in the context of his contact with the criminal justice system
• the fact that the plaintiff's evidence was inconsistent in relation to certain collateral facts and was not wholly supported by the other students
• the credible and impressive evidence of Sister Green, which was supported by the other teachers; and
• the apparent logic of events on the basis of the available evidence.

On the basis of these findings, the Court then had to assess whether the limited corporal punishment Sister Green administered would meet the test of "serious physical abuse" under Limitation Act. The Court stated that the expression should be construed according to its ordinary meaning and within the context in which it appears in the statute.

The Court was not satisfied on balance of probabilities that the plaintiff had established that the physical punishment amounted to "serious physical abuse". The Court found:

• Sister Green would find it necessary to administer a smack on the bottom of pupils under her care from time to time and viewed it as being "no more than lawful chastisement, being both moderate and reasonable means for proper purpose"; and
• a teacher's aide sent out to retrieve truanting students may be expected to use reasonable force to bring them back to school.

Key takeaways

The Limitation Act provides entitlement to sue for damages for historic acts if a person can prove they suffered serious physical abuse as a child. The difficulty, as highlighted in this decision, is that corporal punishment including caning and strapping of students was historically accepted as normal disciplinary practice.

The Court did not find that serious physical abuse had occurred, and it confirmed that some types of physical punishment, such as smacking and rough handling, were within reason and for proper purpose of punishing students who misbehaved.

This suggests that a Court would only find that any physical punishment that goes beyond a school's corporal punishment policy or punishment and that is so significant as to be criminal or cause permanent bodily injury would satisfy the definition under Limitation Act.

This decision also serves as a helpful reminder about the difficulties in relying on oral evidence to establish contested facts when the passage of time has undermined the reliability of that evidence, and that practitioners should consider the apparent logic of events when faced with historic recollections of outlandish or fanciful events.

An appeal in this matter was heard on 10 November 2025 with judgment reserved.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.