Despite a convicted paedophile teacher dying in prison, a man claiming he was sexually abused as a boy over five decades ago can still sue the Catholic school he attended.
The man is seeking damages for psychiatric injuries suffered through abuse allegedly conducted by Francis William Cable at Marist College in the Sydney suburb of Kogarah in 1969 or 1970.
Cable, who was also known as Brother Romuald, was previously convicted for the abuse of a number of young boys while at various Marist Brothers schools.
In June 2015, he was sentenced to 16 years in prison with a non-parole period of eight years for sexually abusing a number of boys.
He was then given an "additional six years in jail" in March 2019 after admitting further child abuse offences.
Cable died on September 12 last year when he was 90 years old.
Sued for negligence in November 2021, Marist Brothers tried to dismiss the man's civil case after Cable's death, claiming they could not get a fair trial because the paedophile priest could not give evidence.
In a judgment handed down on Friday, NSW Supreme Court Justice Nicholas Chen rejected this, saying the Catholic organisation had plenty of chances to get a statement from Cable before his death but failed to do so.
"(Marist Brothers) should not, in my view, have the benefit of its own inaction," the judge said.
Claims the case should be halted because there were no longer any documents or witnesses relating to the alleged abuse because of the passage of time were also rejected with Justice Chen finding this evidence would not have existed anyway.
The abuse was allegedly conducted "surreptitiously" including when the schoolboy victim was on detention at the back of a largely empty classroom.
Other disputes, such as whether Cable even taught at Kogarah at the time or whether Marist Brothers had knowledge of his conduct, could be dealt with at a hearing and were not enough to stop the lawsuit.
A separate civil case brought by the man against the State of NSW over allegations of child abuse was also not enough for the court to toss the case against Marist Brothers.
While claiming in 2018 that the only abuse he allegedly suffered was under the supervision of the NSW government, the man had since provided an explanation about why he omitted the accusations against Cable, Justice Chen found.
The five-year Royal Commission into Institutional Responses to Child Sexual Abuse found Cable taught at a number of schools in NSW and Queensland in the 1950s and 1960s and that Marist Brothers did not act to stop the abuse.
"Nothing was done to protect children at Marist Brothers schools from abuse by Cable, and no appropriate action was taken in response to any complaints made to the Marist Bros in the 1960s," a report handed down in 2017 found.
"Complaints of this nature ought to have been recorded, should have led to appropriate action being taken within the school and should have been reported."
Marist Brothers was ordered to pay the man's legal costs.
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