Will the Child Abuse Royal Commission backfire?

(Personal note: I thought for quite a while before writing this, and I’m a little reluctant to post it because I know it may hit some very raw nerves. If it does, I certainly apologise).

The Royal Commission into Institutional Responses to Child Abuse is starting to trouble me.

Not because I have a personal stake in the subject matter at any level (save, perhaps, for being a reasonably genuine Roman Catholic). I am starting to think that, ultimately, the Commission will help normalise child abuse rather than stamp it out.

Like most people, I have followed the enquiry entirely through the media. The accounts of abuse and institutional inaction must, indeed, be seen to be believed. The problem is that, once seen and believed, they quickly numb the senses (1). I don’t think that this (lack of) reaction is unique to me: I suspect it is becoming the norm. Some evidence for this might have come through a few weeks ago, when an allegation that at other times would have seemed implausible – that former Field Marshal, war hero and Governer-General Sir William Slim had been an abuser – was reported, not only uncritically, but deadpan. What’s important here, I stress, is not the allegation (which might or might not be well-founded) but the tone of the report. It is, one might say, a scandal that failed to scandalise.

I’m going to make a prediction and suggest that in the foreseeable future, we may see the Royal Commission, and child abuse connected with it, becoming the source material for comedy. There’s a precedent for this: in the late 1980s the Fitzgerald Inquiry into Police Corruption uncovered a seemingly endless amount of misconduct, and itself eventually became the subject of humour –

In the case of child abuse, some of the comic foundations have perhaps already been laid in the form of Family Guy’s character “Herbert the Pervert” and in South Park episodes like “Cartman joins NAMBLA” and “World Wide Recorder Concert”. (2)

If I am right about this, and child abuse becomes a subject of comedy, then the next step is likely to be normalisation: once something becomes a punchline, it tends to lose a great deal of its taboo-ness and its abnormality (3) and can be discussed ‘rationally’ (for want of a better word). Some of the intellectual groundwork has actually already been done for treating child abuse as just another form of sexual conduct: consider the indulgence which some would afford film-maker Roman Polanski in relation to his rape of a thirteen year old girl, and the support in 1970s France for legalizing sexual relations between adults and children.

There is a powerful argument that the present Royal Commission is a long overdue act of justice, and a much needed cleaning of many institutions’ Augean stables. I have a lot of sympathy for this argument. But I think that in the long run, the revelations which flow from it will do more harm than good.


(1) A phrasing I have shamelessly stolen from Clive James’ “Postcard from Los Angeles”.
(2) It’s interesting to note in this regard that Family Guy is usually taken to have a liberal orientation and South Park a conservative one.
(3) For example, a person who might have been alarmed by the decision in National Socialist Party of America v Village of Skokie may well find it harder to treat Illinois Nazis as a threat after seeing them openly mocked in The Blues Brothers.

McNamara v Duncan (1971) H&FLR 2014-5

McNamara v Duncan (1971) H&FLR 2014-5

Supreme Court of the Australian Capital Territory

6 April 1971

Coram: Fox J

Appearing for the Plaintiff: J.B. Norris (Instructed by Gallen, Guild & Johnston)
Appearing for the Defendant: I.A. Curlewis (Instructed by Davies, Bailey & Cater)

Catchwords: Australian Capital Territory – Australian Rules football – striking in the course of tackle – against the rules – consent

Facts: The parties were playing on opposing teams in an Australian rules football match on 15 September 1968. The court found that the defendant deliberately struck the plaintiff in the course of tackling him, causing a significant head injury. It was common ground that intentionally striking the head of a player was against the rules, and that it would normally result in a free kick to the opposing team and the offending player being reported.

The defendant raised a defence of consent (volenti non fit injuria).

Held: upholding the plaintiff’s claim, that it could not reasonably be said that the plaintiff consented to the physical contact which was deliberate and against the rules. Although intentional forcible contact causing ‘sensible hurt’ was part of this code of football, it found justification in the rules and usages of the game. Acts done solely or chiefly with the aim of causing harm, however, were not justified by the rules.


Judgment reported at 26 ALR 584 (interestingly, the report in the Australian Law Reports was prepared by Susan Crennan – then of counsel – who was in 2005 appointed to the High Court of Australia).

Abel Limones Sr & Ors v School Board of Lee County (2013) H&FLR 2014-6

Abel Limones Sr & Ors v School Board of Lee County (2013) H&FLR 2014-6

Second District Court of Appeal (Florida)

6 February 2013

Coram: Silberman CJ, Casanueva and Black JJ

Appearing for the Plaintiff: Matthew Moore and David Rash (inst. Alters Law Firm)

Appearing for the Defendant: J. Matthew Belcastro and Traci T. McKee (inst. Henderson, Franklin, Starnes & Holt)

Catchwords: Florida – soccer – high school – collapse of player – automated external defibrillator – brain damage – negligence

Facts: Abel Limones Jr was a member of the East Lee County High School soccer team in a match against the team of Riverdale High School on the evening of 13 November 2008. During the game he collapsed on the field , following which he rapidly lost consciousness, stopped breathing and apparently ceased to have a pulse. Emergency services were called and cardio-pulmonary resuscitation was commenced. There was evidence that the coach of the East Lee County team called for an automated external defibrillator (AED) and that such a device was available at the ground. About 26 minutes after collapsing, Limones Jr was resuscitated by emergency services but suffered catastrophic brain damage.

The plaintiffs (Limones Jr and his parents) sought compensation based on a common law duty by the defendant to provide a reasonably safe environment and based on a failure to comply with §1006.165 of Florida Statutes 2008. The action was dismissed on the basis that there was no common law duty to provide or use an AED and that the claimed section did not establish a cause of action in negligence. The plaintiffs appealed.

Held: Dismissing the appeal –

(1) In relation to athletic activities, a school’s duty includes doing what a reasonably prudent person would do in the circumstances to (a) provide adequate instruction; (b) supply suitable equipment; (c) select and match competitors; (d) supervise; and (e) should injury occur, take appropriate steps to prevent aggravation of the injury.

(2) A school is not obliged at common law to provide medical care or rescue, including by means of an AED.

LA Fitness International LLC v Mayer, 980 So. 2d 550 (Fla. 4th DCA, 2008), followed.

The Court declined to decide whether §1006.165 of Florida Statutes 2008 created a private cause of action in negligence.


The Court’s judgment is available here.  Note that an appeal will be considered in the matter by the Supreme Court of Florida.

Sibley v Milutinovic (1990) H&FLR 2014-4

Sibley v Milutinovic (1990) H&FLR 2014-4

Supreme Court of the Australian Capital Territory

9 February 1990

Coram: Miles CJ

Appearing for the Plaintiff: Mr Lunney (Instructed by Macphillimy Cummins & Gibson)
Appearing for the Defendant: Self-represented

Catchwords: Australian Capital Territory – soccer – non-competitive match – tackle – punch – consent – rules.

Facts: The parties were members of two soccer teams which held a friendly training match on 27 May 1987. The match was unrefereed. Two incidents took place between the parties. In the first incident the plaintiff undertook a “low sliding tackle” which caused both men to fall over. The defendant abused the plaintiff and told him to watch out. In the second incident the plaintiff performed another slide tackle on the defendant, who again fell. The defendant got up and punched the plaintiff breaking his jaw. The defendant received a kick to the ankle in the tackle and for which he made a cross-claim. Both parties pleaded a defence of voluntary assumption of risk.

There was no evidence as to the rules of soccer. The court relied on judicial knowledge to find that while soccer involved some inevitable physical contact between players, the intentional use of force by one player against another was outside the rules where the force was likely to cause injury.

Held: Upholding both claims –

(1) The defence of voluntary assumption of risk is not appropriate to an action for assault. The court worked on the assumption that the parties had actually intended to raise a defence of consent.

(2) The blow to the plaintiff’s jaw was outside the rules and outside the scope of the plaintiff’s consent to some physical contact during the game. Hence, the plaintiff’s claim succeeded.

(3) Because the match was non-competitive, “the extent to which players were entitled to adopt tactics likely to result in physical injury to an opposiiung player is … to be distinguished from conduct justifiable during a competition match”.

(4) The court was not satisfied that the plaintiff’s slide tackles were within the rules that the parties had expected to be observed. Because the plaintiff had not proved that the defendant consented to the sliding tackle, the cross-action succeeded.


The Court’s judgment is available here.

Smith v Emerson (1986) H&FLR 2014-3

Smith v Emerson (1986) H&FLR 2014-3

Supreme Court of the Australian Capital Territory

23 May 1986

Coram: Miles CJ

Appearing for the Plaintiff: Not recorded
Appearing for the Defendant: Not recorded

Catchwords: Australian Capital Territory – Australian Rules football – deliberate punch – contact sports – consent – aggravated or exemplary damages.

Facts: The plaintiff and defendant were involved in two incidents while playing on opposite sides of an Australian Rules football match on 13 May 1984. In the first incident the plaintiff alleged that after he had tackled the defendant, the defendant punched him a glancing blow just under his left ear. The defendant alleged that he had simply pushed the plaintiff away after that person stepped on his foot. In the second incident the plaintiff alleged that the defendant had run at him and struck him while he (the plaintiff) was shepherding a team-mate. The plaintiff’s jaw was broken in this incident. The defendant alleged that he had simply tried to push the plaintiff’s right arm downwards and upper body to the left.

It was agreed that the actions the defendant claimed to have performed were within the rule of the game. The court noted that the incidents alleged by the plaintiff – deliberate punches to the head – were outside the rules.

Held: (1) Upholding the plaintiff’s claim, that it was well established that players of contact sports consent to physical contact (which would normally be an assault) as long as the acts are within the relevant sport’s accepted rules. The Court found the plaintiff’s case more probable than that of the defendant and therefore his claim succeeded.

(2) Rejecting the claim for aggravated or exemplary damages, that while the defendant’s actions were assaults, they did not go so far beyond acceptable conduct on a football field that there was a need for punishment or making an example of the defendant.


The Court’s judgment is available here.


Dunagan v Coleman (2014) H&FLR 2014-2

Dunagan v Coleman (2014) H&FLR 2014-2

Texas Court of Appeals (Fifth District)

7 April 2014

Coram: Moseley, FitzGerald and Evans JJ

Appearing for the Appellant (Defendant): Gregory Ave and Jay Harris (inst. Walters, Balido & Craine)

Appearing for the Respondent (Plaintiff): Niles Illich (inst. Law Office of Ben Abbott)

Catchwords: Texas – softball – negligence – inherent risk – recklessness

Facts: The parties were teammates on a slow pitch softball team and had played together many times. Prior to the first game of the season the defendant asked the plaintiff to catch a few pitches from him to assist him (the defendant) to focus his pitches. The defendant threw a rising fastball which the plaintiff failed to catch. The ball hit the plaintiff in the mouth causing significant injuries.

The plaintiff sued, alleging both negligence and gross negligence. A jury in the 134th Judicial District Court found that the defendant had been negligent and awarded significant damages.

Held: That the verdict ought be reversed. It is an inherent risk of softball that a ball will hit a participant and cause injury. The plaintiff’s injuries resulted from a risk inherent in the sport he was playing. As such, the defendant was not at fault based on ordinary negligence. A defendant will be found liable, however, if his conduct was grossly negligent, intentional (1) or reckless. Recklessness in this context would have taken the form of the defendant knowing or having reason to know that his pitch resulted in an unreasonable risk of physical harm, and that the risk of such harm was substantially greater than that which would be classed as “mere negligence”.

The Court observed that the fact that the incident occurred during a warm up rather than a game was not relevant: the inherent risks of a sport did not change depending on whether the conduct in issue occurred in practice or in competition.

(1) The court did not explore liability for harms caused by intentional conduct in cases where intentional and forceful contact is part of the sporting activity.


 The Court’s judgment is available here.


Prosecutor v Liam Johnston (2013) H&FLR 2014-1

Prosecutor v Liam Johnston (2013) H&FLR 2014-1

Livingston Sheriff Court (Scotland)

Circa 4 October 2013

Coram: Sheriff Rafferty

Appearing for the prosecutor: Not known

Appearing for the defendant: Alan Jackson (solicitor)

Catchwords: Scotland – fraud – fail to attend – sentencing – arrest – obesity

Facts: On four occasions in or about 2013 the defendant bought pizzas valued at about £30.00 each using another person’s credit card.  He pleaded guilty to obtaining goods by fraud.  He was ordered to pay compensation to the relevant Domino’s Pizza outlet (it is unclear why he was not ordered to compensate the card holder) but failed to do so.

The matter was again brought before Livingston Sheriff Court for formal sentencing.  The defendant – whose reported weight was approximately 254 kilos / 560 pounds – did not attend.  Counsel for the defendant advised the Court that he (the defendant) had“extreme difficulty getting out of the house [and] … can’t physically get out of the house even with assistance”.

Held: Semble, that a defendant’s physical size can be a relevant consideration for the Court in considering whether to grant a warrant for their arrest.  Per Sheriff Rafferty: “’It’s only because I can see huge practical difficulties with him being apprehended by the police that I’ll not grant a warrant in this case.”


No written judgment available.

Sources: Reports in the Mirror, Daily Mail, and Scotsman.