Background
Tadeusz Kawicki alleged that he was sexually and physically abused while attending Marist Brothers College in Maitland between 1960 and 1967. The Supreme Court of New South Wales found that Brother Florentine had sexually abused him and that the Trustees of the Marist Brothers were vicariously liable, but rejected the claim based on physical abuse.
The primary judge awarded Kawicki $186,000, comprising $185,000 for non-economic loss and $1,000 for medical expenses. No damages were awarded for diminished earning capacity because the judge was not satisfied that the sexual abuse caused actual financial loss. On appeal, Kawicki challenged that conclusion and argued that the judge had inadequately considered how his inability to form and maintain stable relationships affected his economic prospects. A separate appeal ground was abandoned.
The Court’s Holding
By majority, the Court of Appeal dismissed the appeal and ordered Kawicki to pay the Trustees’ costs. Griffiths AJA, with Leeming JA agreeing, held that the primary judge was entitled to find that Kawicki had not proved, on the balance of probabilities, that mental harm resulting from the sexual abuse caused or materially contributed to a diminution in earning capacity that produced financial loss. The expert evidence was limited and lacked specificity, important underlying materials and financial records were not in evidence, and Kawicki’s accounts of his employment and alcohol use contained inconsistencies.
The Court unanimously rejected the challenge concerning the period after Kawicki stopped full-time work around 2000, because the evidence supported attributing his inability to work to unrelated physical conditions. It also unanimously rejected the relationship-impairment ground: the primary judge had considered Kawicki’s depressive and alcohol use disorders, of which the relationship difficulties were a manifestation, and no evidence specifically connected those difficulties to lost employment or earnings.
Adamson JA dissented on the claim for the period from 1975 to 2000. Her Honour considered that Kawicki’s alcohol use disorder, which resulted from the sexual abuse, prevented him from working consistently five days a week and supported a compelling inference of economic loss. She would have awarded $247,500, including interest.
Key Takeaways
- Proof of psychiatric injury and impaired earning capacity does not by itself establish compensable economic loss; the claimant must prove that the impairment produced financial loss.
- General or conclusory expert opinions may carry limited weight when they do not identify the periods, jobs, or earnings affected and rely on factual materials that were not placed in evidence.
- A trial judge may accept a claimant’s evidence on liability while remaining unpersuaded by the claimant’s evidence concerning the nature and amount of economic loss.
Why It Matters
The decision illustrates the evidentiary difficulty of proving historical economic loss in institutional-abuse litigation. Even where abuse, psychiatric harm, and vicarious liability are established, employment records, financial evidence, reliable testimony, and sufficiently specific expert analysis remain important to linking that harm to lost earnings.
The split decision also highlights a judicial disagreement over when evidence of disrupted attendance and alcohol-related employment instability permits an inference of economic loss despite incomplete historical records.