A complaint that could lead to a class action has been filed today by former Dilworth students who claim the private school failed in its duty of care when it did nothing to stop the sexual abuse of young boys.
Two men have filed papers with the Human Rights Commission on behalf of "all (Dilworth) survivors of sexual abuse" for what they claim was the school's failure to "protect all students in its care from the systematic sexual abuse that occurred there between 1970 and 2006".
"As early as the 1970s, Dilworth School knew vulnerable young boys in its care were being sexually abused by staff and others in positions of power, yet the school failed to stop the abuse from happening, allowing it to continue for over 30 years," said Neil Harding, who was abused by a Scout master at the school when he was 12.
"On numerous occasions Dilworth was made aware boys were being sexually abused and instead of providing protection, boys who complained were severely punished and silenced. The school also moved offenders on and actively sought suppression orders to protect the school's reputation if the offenders were convicted for their crimes."
Rachael Reed, QC, who is heading the legal team representing the former students, said under the Human Rights Act 1993, the abuse suffered by the boys was a form of sexual harassment committed in the context of education and is therefore a prohibited form of discrimination.
"At the heart of this new legal claim is Dilworth's accountability for their failure to protect the boys in their care. The school was responsible for caring and protecting vulnerable boys in our community, instead they permitted them to be sexually abused," she said.
"We are seeking significant compensation from Dilworth for all survivors. The school should be held responsible for the awful abuse of so many vulnerable young boys."
Dilworth Trust Board chair Aaron Snodgrass said the school was aware a complaint has been filed with the Human Rights Commission.
"The details of the complaint are confidential to the Commission and Dilworth will not be making any further comment."
It is unusual for a sexual abuse class action to be taken to the HRC but an independent lawyer says there are grounds for it to be heard and if successful it could set an important precedent for others who were abused at school as students.
The man who abused Harding, Ian Wilson, was jailed in March to three years and seven months for assaulting five students between 1975 and 1992 - some of them more than once and over a period of several years. He already had a previous conviction for similar offending against another student.
The 69-year-old is one of 11 men who have been charged as part of Operation Beverly, an ongoing police investigation into historic offending at the private boarding school.
Police have spoken to 150 former students during the course of their investigation, 122 of whom say they were abused by tutors, house masters, Scout leaders, teachers and chaplains during the 1970s to 2000s.
The school publicly apologised for the abuse and has since met with many of the affected boys, giving them apologies in person and in some cases in writing.
Harding has made the complaint, which he hopes will lead to a class action, with another former student who is not identified. He hopes other men who were also abused will join them.
It will be up to the Commission to decide if the complaint is taken any further, including being referred to the Human Rights Review Tribunal which will decide whether the Act has been breached and, if so whether compensation should be paid and in what amount.
The move comes a week after a class action involving around 40 former students was dropped by Christchurch based law firm GCA which said court battles could be expensive and lengthy, especially against "deep-pocketed defendants" like Dilworth.
Principal Grant Cameron said the only option was to try and find a litigation finance company that would support a worthy and commercially attractive case - but he felt that was unlikely.
However Harding said the potential class action, which has been in the works for several months, had plenty of backing and papers have been filed with both the school and HRC today.
"We're fortunate to have our highly experienced legal team, including top law firm Wilson Harle, assist us on a pro-bono basis with New Zealand's leading litigation funder LPF Group paying all the expenses associated with taking the claim without seeking to recover any fees or profit, only cost reimbursement."
While there is a long way to go, the class action could potentially be precedent-setting in opening the doors for students from other schools who have been sexually abused and who want compensation.
THERE'S A FOUNDATION FOR THE CLAIM
Barrister Fletcher Pilditch said while he wasn't aware of a case like this being taken to the HRC before the Act does "provide a foundation for the claim that the representatives of Dilworth students are making".
He said ACC legislation, which covers victims of sexual abuse, essentially stops people from suing their abuser for anything other than exemplary damages in New Zealand.
Exemplary damages are damages designed to punish offensive conduct and to mark public disapproval of such conduct, rather than to compensate for harm and loss.
However, there is a provision in the ACC legislation which allows victims of sexual abuse to take a case to the HRC as a form of sexual harassment if certain criteria are met.
Pilditch said many people think of sexual harassment in the more traditional sense, things like comments or behaviour in the workplace.
"I think the obvious is sort of the #MeToo tenor of what sexual harassment is like but the law is broader than that.
"Section 62 of the Human Rights Act defines it as any physical behaviour of a sexual nature towards a person that is unwelcome or offensive to that person, either repeated or that has a detrimental effect on that person."
He said this section of the Act applies this definition to specified environments where sexual harassment might occur. Often the focus has been on the workplace, but one of the specified areas was education.
While he said he wasn't aware of the law previously being used in this way it didn't mean it could not be.
"Laws are meant to be applied to circumstances as they arise. They are meant to apply to new situations which may not have been fully predicted when the law was passed."
"There's a clear pathway here for this case to be considered. Where that consideration gets to cannot be predicted now."
If the class action is successful the former students would be able to seek damages for humiliation, loss of dignity and hurt feelings.
And, that could set a precedent for sexual abuse cases that have happened in schools.
"Every case is capable of setting a precedent and certainly when the law is used in a way it hasn't before or for a first time."
SORRY IS NO LONGER ENOUGH
Harding first went to the police about the abuse he suffered in the 1990s but was told they weren't going to do anything about it - but did confirm Wilson and another man he made allegations against were convicted paedophiles.
It took another 20 years before had the courage to try again — this time approaching the schools after talking to a counsellor about the abuse.
"I approached the Dilworth Trust Board with a report of my abuse and also asking questions of the trust board about their child safety policy and their pathway for dealing with historical abuse and I wrote it in a way that they would have no choice but to do something.
As a result he worked with them on a new child safety policy and when it was publicised it generated a flood of calls from old boys and ultimately police launched Operation Beverly to investigate allegations of historical abuse.
He says he never started out wanting compensation and was originally happy with the apologies made by the Trust Board, and the police prosecutions of the men allegedly involved.
But after speaking with so many other former students and discovering the extent of the abuse, including how harshly boys were punished when they sought help from the school, he's decided sorry isn't enough.
"They have recognised the abuse that has occurred, they have been remorseful about what has happened, they have put in a place safety policy ... it's the final piece that they haven't done anything with.
Dilworth must take responsibility for its role in allowing this systemic sexual abuse to happen over many years."
Survivors and others with information regarding the historic sexual abuse are encouraged to confidentially register to the class action via the website www.dilworthclassaction.co.nz.
Were you abused? Where to get help:
• The Operation Beverly team handling the Dilworth investigation can be reached on (09) 302 6624 or email firstname.lastname@example.org
• If you've ever experienced sexual assault or abuse and need to talk to someone call the confidential crisis helpline Safe to Talk on: 0800 044 334 or text 4334. (available 24/7)
• Mosaic - Tiaki Tangata: 0800 94 22 94 (available 11am-8pm)
• Dilworth has a free and confidential listening and counselling service and is happy to meet with anyone who wants to talk. Contact the school for more information.