IZG2 v State of New South Wales; AXJ2 v State of New South Wales; KWM2 v State of New South Wales; BJS2 v State of New South Wales

Medium Neutral Citation: IZG2 v State of New South Wales; AXJ2 v State of New South Wales; KWM2 v State of New South Wales; BJS2 v State of New South Wales [2025] NSWSC 1366

Hearing dates: 17-21, 24-27 February; 26-27 March; 17, 28 April; 28 July 2025

Date of orders: 21 November 2025

Decision date: 21 November 2025

Jurisdiction: Common Law

Before: Harrison CJ at CL

Decision: IZG2 v State of New South Wales:
(1) Judgment for the cross-defendant on the cross-claim.
(2) Order the cross-claimant to pay the cross-defendant’s costs.
AXJ2 v State of New South Wales:
(1) Judgment for the cross-defendant on the cross-claim.
(2) Order the cross-claimant to pay the cross-defendant’s costs.
KWM2 v State of New South Wales:
(1) Judgment for the cross-defendant on the cross-claim.
(2) Order the cross-claimant to pay the cross-defendant’s costs.
BJS2 v State of New South Wales:
(1) Judgment for the cross-defendant on the cross-claim.
(2) Order the cross-claimant to pay the cross-defendant’s costs.

Catchwords: NEGLIGENCE – cross-claims – against third party for contribution – historical sex abuse – abuse of four male pupils by female teacher in 1978 and 1979 – judgments entered against the State in favour of the plaintiffs – where State seeks contribution from teacher alleged to have perpetrated the abuse – s 5(1)(c) Law Reform (Miscellaneous Provisions) Act 1946 – whether the State is a tortfeasor liable – whether the teacher is a tortfeasor, who would, if sued by the plaintiffs, have been liable to them for the same damage
NEGLIGENCE – historical sex abuse – whether the abuse alleged occurred – where physical acts upon which each plaintiff sued must be individually assessed – where plaintiffs were cross-examined – where cross-defendant did not directly contradict the plaintiffs’ evidence – assessment of credibility and reliability of plaintiffs’ evidence
NEGLIGENCE – liability as a tortfeasor – consent judgments – whether the entry of judgments against the State establishes it is a tortfeasor liable
WORDS & PHRASES – meaning of ‘tort-feasor’ – s 5(1)(c) Law Reform (Miscellaneous Provisions) Act 1946 – distinction between the first and second mentioned tort-feasor
NEGLIGENCE – breach – whether the State breached its duty of care – failure by State to take specified precautions – s 5B(1) Civil Liability Act 2002 – whether the risk of harm was foreseeable by the school – whether the risk of harm was not insignificant – whether the school ought to have taken precautions against the risk of harm
NEGLIGENCE – causation – s 5D Civil Liability Act 2002 – whether the failure by the State to take reasonable precautions was a necessary condition of the harm suffered
NEGLIGENCE – breach – foreseeability by cross-defendant – whether the cross-defendant ought to have known of the risk of harm to the plaintiffs in 1978 or 1979 – where evidence did not reveal the personal knowledge or experience of the cross-defendant – where foreseeability cannot be judged by what the cross-defendant ought to have known in similar circumstances today – where the harmful consequences of child sexual abuse were not in 1978 or 1979 notoriously part of contemporary thought
NEGLIGENCE – reasonableness of the settlements – whether the settlements were reasonable – where the State obtained advice from counsel on liability and quantum
NEGLIGENCE – apportionment – apportionment of liability between tortfeasors – degree of the departure by the cross-defendant and State from duties owed to the plaintiffs – assessment of what is just and equitable

Legislation Cited: Civil Liability Act 2002 (NSW), ss 5B, 5D, 27, 31
Civil Procedure Act 2005 (NSW), Pt 6 Div 1
Employees Liability Act 1991 (NSW), ss 3, 5
Evidence Act 1995 (NSW), ss 136, 140
Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5
Limitation Act 1969 (NSW), s 6A

Cases Cited: About Life Pty Ltd v Maddocks Lawyers [2021] NSWSC 1370
Amaca Pty Ltd v Ellis (2010) 240 CLR 111; [2010] HCA 5
AVWest Aircraft Pty Ltd v Clayton Utz (A Firm) (No 2) [2019] WASC 306
Bakker v Joppich and Bitumax Pty Ltd (1980) 25 SASR 468
Bellevarde Constructions Pty Ltd v L’Officina by Vincenzo Australia Pty Ltd [2022] NSWCA 246
Bitumen and Oil Refineries (Australia) Ltd v Commissioner for Government Transport (1955) 92 CLR 200; [1955] HCA 1
Bonnington Castings Ltd v Wardlaw [1956] AC 613
Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502; [1988] HCA 21
Commonwealth v Introvigne (1982) 150 CLR 258; [1982] HCA 40
DC v State of New South Wales [2016] NSWCA 198
Dowthwaite Holdings Pty Ltd v Saliba [2006] WASCA 72
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22
Garzo v Liverpool/Campbelltown Christian School Ltd [2011] NSWSC 292
Gett v Tabet (2009) 109 NSWLR 1; [2009] NSWCA 76
Harriton v Stephens (2006) 226 CLR 52; [2006] HCA 15
IZG2 v State of New South Wales [2025] NSWSC 173
IZG2 v State of New South Wales [2025] NSWSC 482
James Hardie & Coy Pty Limited v Seltsam Pty Limited (1998) 196 CLR 53; [1998] HCA 78
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Nau v Kemp & Associates Pty Ltd (2010) 77 NSWLR 687; [2010] NSWCA 164
New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4
Newcrest Mining Limited v Thornton (2012) 248 CLR 555; [2012] HCA 60
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529; [1985] HCA 34
Ramsay v Larsen (1964) 111 CLR 16; [1964] HCA 40
Richards v Victoria [1969] VR 136
Saccardo Constructions Pty Ltd v Gammon (1991) 56 SASR 552
Saccardo Constructions Pty Ltd v Gammon (No 2) (1994) 63 SASR 333
SR v Trustees of the De La Salle Brothers [2023] NSWSC 66
State of New South Wales v Mikhael [2012] NSWCA 338
Stott v West Yorkshire Road Car Co Ltd [1971] 2 QB 651
Strong v Woolworths Ltd (2012) 226 CLR 182; [2012] HCA 5
Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204
Tabet v Gett (2010) 240 CLR 537; [2010] HCA 12
Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574; [1996] HCA 38
Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle v AA [2025] NSWCA 72
Unity Insurance Brokers Pty Ltd v Rocco Pezzano Pty Ltd (1998) 192 CLR 603; [1998] HCA 38
Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62
Wallaby Grip Limited v State Rail Authority of New South Wales; James Hardie & Company Pty Limited v State Rail Authority of New South Wales [2001] NSWCA 105; (2001) 21 NSWCCR 650 Woolworths (WA) Pty Ltd v Berkeley Challenge Pty Ltd (2004) 28 WAR 540; [2004] WASCA 196 Zanner v Zanner (2010) 79 NSWLR 702; [2010] NSWCA 343

Texts Cited: Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, 2017)

Category: Principal judgment

Parties: IZG2 (Plaintiff)
AXJ2 (Plaintiff)
KWM2 (Plaintiff)
BJS2 (Plaintiff)
State of New South Wales (Cross-Claimant)
Helga Lam (Cross-Defendant)

Representation: Counsel:
D Lloyd SC with G Marsden (Cross-Claimant)
D Toomey SC with J Thompson and A Burkitt (Cross-Defendant)
Solicitors:
Moray & Agnew (Cross-Claimant)
Australian Criminal & Family Lawyers (Cross-Defendant)

File Number(s): 2022/84730; 2022/84738; 2022/88115; 2022/91093

Publication restriction: Nil

JUDGMENT

1. HIS HONOUR: Helga Lam was a teacher at Maroubra Bay High School in 1978 and 1979. In 2022, the State of New South Wales was sued by four former pupils of that school who alleged that they had been sexually assaulted by Ms Lam when she taught there. Those pupils, who were between the ages of 13 and 15 years at the time, are referred to throughout these reasons as IZG2, AXJ2, KWM2 and BJS2. They recovered damages from the State when their proceedings were settled. By its amended statements of cross-claim filed on 14 October 2024, the State now seeks contribution from Ms Lam pursuant to s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 upon the basis that she is a tortfeasor liable in respect of the same damage who would, if sued, have been liable.

2. Unless the context suggests otherwise, references hereafter to “the State”, “the school” or “the Department” can be taken to be references to the body responsible for the conduct of Maroubra Bay High School in 1978 and 1979.

Overview

3. In summary, the State contends that the claim for contribution in each case ought to succeed because:

(a) judgments have been entered against it in each case. The judgments establish that it is a tortfeasor liable to the plaintiffs within the meaning of s 5(1)(c); (b) in the alternative to (a), the State has proved that it is a tortfeasor liable to the plaintiffs; (c) Ms Lam’s contention that the plaintiffs’ claims against the State were statute-barred because s 6A of the Limitation Act 1969 did not apply (on the basis that her conduct is not within the definition of “child abuse”) should be rejected on a proper construction of that provision; (d) Ms Lam is a tortfeasor who would, if sued, have been liable to the plaintiffs. Ms Lam appears to contend that the plaintiffs’ allegations of child sexual abuse should be rejected as a matter of fact. Ms Lam elected not to give evidence in her defence, despite being able to give direct evidence going to virtually every contested issue in the case, most particularly whether the abuse alleged against her occurred; (e) contrary to Ms Lam’s contentions that the claims were not settled on reasonable terms, the State maintains that the amounts that it agreed to pay the plaintiffs were reasonable; (f) the Court should apportion liability 90 percent to Ms Lam and 10 percent to the State having regard to the causal potency of their respective contributions to the plaintiffs’ loss and damage.

The State’s case

4. The plaintiffs brought proceedings against the State alleging that they were sexually abused by Ms Lam, when she was employed as a teacher at Maroubra Bay High School in 1978 and 1979. The abuse alleged by IZG2, AXJ2 and BJS2 occurred in 1978. The abuse alleged by KWM2 occurred in both 1978 and 1979. The school was operated by the State. At the time of the alleged abuse, the plaintiffs were students at the school and were between 13 and 15 years old.

5. Each of the plaintiffs alleged that Ms Lam engaged in various sexual acts with him. In broad terms, the plaintiffs’ allegations may be summarised as follows:

(a) IZG2 was taught by Ms Lam. He alleges that she gave him special attention in class and then invited him into the staffroom after school when the sexual contact between them started. It continued for many months. (b) AXJ2 was also taught by Ms Lam and is the younger brother of IZG2. He alleges that when he was in year 8, Ms Lam asked IZG2 to bring him to the staffroom after school where a single incident of sexual contact occurred. AXJ2 says that he was shaking, frightened, in shock and started to cry. He was pre-pubescent. (c) KWM2 was also taught by Ms Lam. The sexual contact between them first occurred after he observed Ms Lam kissing IZG2 and another student in the music hall where he was helping with the school musical. The sexual contact continued for part of 1978, when KWM2 was in year 9, and into 1979, when he was in year 10. (d) BJS2 was not taught by Ms Lam. The sexual contact between them started when both Ms Lam and BJS2 were involved in the school musical and she used the excuse of fitting his costume to initiate sexual activity which continued for about one month.

6. The principal of the school at the relevant time was William Addinall. There are allegations of direct complaints having been made to him about Ms Lam’s conduct as follows:

(a) IZG2 and AXJ2 say that in late 1978 they disclosed sexual contact between Ms Lam and students at the school to Mr Addinall but that he dismissed them and took no further action; (b) KGM2, another teacher at the school at the relevant time, says that she observed Ms Lam in the languages staffroom with a male student sitting on her lap with their arms around each other and immediately informed Mr Addinall. Nothing happened following the report of this incident.

7. The plaintiffs alleged that the State was liable to them for the sexual abuse by Ms Lam on the basis of direct liability in negligence and vicarious liability. The State joined Ms Lam to the proceedings as a cross-defendant, alleging that, if it was liable to the plaintiffs, she was a joint tortfeasor liable to contribute to any damages to which the plaintiffs were entitled.

8. On 6 August 2024, the State resolved the proceedings brought by each of the plaintiffs. On 23 August 2024, Garling J entered the following judgments against the State in favour of the plaintiffs:

(a) IZG2 in the sum of $975,000 inclusive of costs; (b) AXJ2 in the sum of $675,000 inclusive of costs; (c) KWM2 in the sum of $485,000 plus costs; and (d) BJS2 in the sum of $400,000 plus costs.

9. Ms Lam was represented in court when the judgments were entered against the State. Before Garling J entered judgments for the plaintiffs in those amounts, Ms Lam indicated by her counsel that she was content for the orders to be entered. No application was made that the entry of judgment be deferred: cf James Hardie & Co**y Pty Limited v Seltsam Pty Limited (1998) 196 CLR 53; [1998] HCA 78.

10. The State claims contribution from Ms Lam pursuant to s 5(1)(c) of the Act which provides:

5(1) Where damage is suffered by any person as a result of a tort (whether a crime or not):

…

(c) any tort-feasor liable in respect of that damage may recover contribution from any other tort-feasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tort-feasor or otherwise, so, however, that no person shall be entitled to recover contribution under this section from any person entitled to be indemnified by that person in respect of the liability in respect of which contribution is sought.

11. Section 5(2) of the Act is in the following terms:

In any proceedings for contribution under this section the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person's responsibility for the damage; and the court shall have power to exempt any person from liability to make contribution, or to direct that the contribution to be recovered from any person shall amount to a complete indemnity.

Issues arising for determination in these proceedings

12. In the circumstances, the following issues arise for determination:

Issue 1: whether the abuse alleged by the plaintiffs occurred;

Issue 2: whether the State is a tortfeasor liable within the meaning of s 5(1)(c), which requires determination of the State’s primary and alternative positions:

(i) first, whether the entry of judgments against the State establishes that it is a tortfeasor liable within the meaning of s 5(1)(c); or

(ii) alternatively:

A. whether the State breached its duty of care to the plaintiffs;

B. whether the breach was a necessary condition of the harm suffered by the plaintiffs;

C. whether the plaintiffs’ causes of action against the State were statute-barred;

Issue 3: whether Ms Lam is a tortfeasor liable, who would, if sued by the plaintiffs, have been liable to them for the same damage, which requires the determination of the following:

(i) the scope of the duty of care owed by Ms Lam to the plaintiffs;

(ii) whether Ms Lam breached her duty of care;

(iii) whether any breach of duty by Ms Lam was a necessary condition of the harm suffered by the plaintiffs;

(iv) whether Ms Lam has a defence under s 3 of the Employees Liability Act 1991;

Issue 4: whether the settlements were reasonable; and

Issue 5: the apportionment of liability between the State and Ms Lam.

Ms Lam’s response - summary

13. Ms Lam, by her defence to each cross-claim, puts almost every matter in issue. She admits that she was employed by the State and worked at the school in 1978 and 1979. The State is put to proof on every other issue of substance in the proceedings. Ms Lam’s defence pleads that:

(a) the State is not a tortfeasor, primarily because none of the alleged abuse occurred; (b) even if the abuse did occur, the State did not breach its duty of care; (c) further, even if there was a breach of duty by the State, any such breach did not cause harm; (d) even if the State had a liability to the plaintiffs, the claims against it were statute-barred: s 6A of the Limitation Act 1969 does not apply because even if the plaintiffs’ accounts are accepted, Ms Lam’s sexual activity with them does not fall within the definition of the phrase “child abuse” in that section; (e) Ms Lam is not a tortfeasor who would if sued have been liable to the plaintiffs, again because none of the alleged abuse occurred; (f) further and in any event, Ms Lam did not owe any duty to refrain from sexual activity with year 8 and year 9 boys at the school; (g) the settlements between the State and the plaintiffs were not reasonable. Ms Lam’s position appears to encompass unreasonableness in that the State had a good defence to the claims and in any event has paid more than what is reasonable even if it was to be held liable.

14. Although it will in due course be necessary to refer in detail to Ms Lam’s several responses to these contentions, it is sufficient for present purposes to note that she denies entirely her liability to the State for contribution of any sort: in short, Ms Lam denies that she sexually assaulted or abused the plaintiffs in the ways or at the times they allege or in any way at all. Accordingly, the logical and essential starting point from which to consider the State’s cross-claims must be the determination of whether Ms Lam’s alleged conduct, howsoever it may be characterised or described by the plaintiffs, occurred in fact.

Background

15. Before proceeding further, it is convenient to record the following matters that are not controversial.

16. Ms Lam was born in December 1953. She was between 24 and 25 years old at all relevant times in 1978 and 1979. Her husband is Solomon Lam. He is of Chinese heritage. They were married in September 1977.

17. Ms Lam was employed by the Department of Education as a languages teacher at the school between January 1978 and December 1979. In 1978, Ms Lam drove a red Mazda 323 and typically drove to and from work each day. She and her husband lived in a unit in Dulwich Hill.

18. IZG2 was born in June 1963 and attended the school from 1976 to 1981. In 1978, he was 14 turning 15 and was in year 9.

19. AXJ2 was born in December 1964 and attended the school from 1977 to 1982. In 1978, he was 13 turning 14 and was in year 8.

20. KWM2 was born in October 1963 and attended the school from 1976 to 1979. In 1978, he was 14 turning 15 and was in year 9. In turn, in 1979, KWM2 was 15 turning 16 and was in year 10.

21. BJS2 was born in April 1963 and attended the school from 1976 to 1980. In 1978, he was 14 turning 15 and was in year 9.

22. The school was a public co-educational high school operated by the Department of Education. At all relevant times, the principal of the school was William Addinall. He is now dead.

23. In 1978, Term 1 commenced on 1 February and concluded on 5 May; Term 2 commenced on 22 May and concluded on 24 August; Term 3 commenced on 11 September and concluded on 14 December. In 1979, Term 1 commenced on 31 January.

24. In 1978, the school put on a musical for which Ms Lam prepared the costumes.

ISSUE 1: DID THE ABUSE ALLEGED BY THE PLAINTIFFS OCCUR?

Evidence of abuse

25. The plaintiffs all gave evidence before me. They were all cross-examined. The following summary of that evidence derives from the State’s written submissions which reliably reproduce both the essence of the plaintiffs’ respective complaints as recalled by them and the emphatic challenges that Ms Lam makes to that evidence. I note that, having reviewed the plaintiffs’ statements in detail, the State’s summaries appear to me to be entirely uncontroversial in the sense that they accurately relate both what the plaintiffs’ statements record and the challenges to that evidence in court. However, my acceptance or rejection of that evidence as proof of the allegations of sexual abuse made by the plaintiffs remains to be determined having regard to the fact that, as examined below, the plaintiffs and other witnesses were all cross-examined and that their evidence has not been directly contradicted by any competing version given about it by Ms Lam. I wish to emphasise that my utilisation of large portions of the State’s summaries of the evidence as a matter of convenience is not intended to convey, and should not be understood as, an acceptance of the State’s submissions about that evidence or a conclusion that it is either truthful or reliable. The evidence that I propose to recount with the benefit of the State’s summary remains in contest: the resolution of that contest cannot begin until the details of the allegations are understood.

IZG2

26. IZG2 adopted his evidentiary statement of 27 July 2023. He also gave brief oral evidence-in-chief about an incident described at paragraph [42] involving Ms Lam and the teacher KGM2. IZG2 was present when Ms Lam came to his class and asked KGM2 if she could pull him and GJK2 out of class. IZG2 said KGM2 asked Ms Lam why she needed the students, and the two teachers then began to argue in hushed tones, with KGM2 giving Ms Lam a “look of disgust”. IZG2 said that Ms Lam then “spun on her heels and walked out” and later said to him, referring to KGM2, “What the fuck is up that bitch’s arse?”.

27. IZG2’s abuse took place in 1978 when he was 14 turning 15. He was in year 9 and Ms Lam was his English teacher. IZG2 said that the abuse commenced with Ms Lam giving him and GJK2 “special attention” and telling them that they were talented. He recalled an occasion where he and GJK2 received the same mark and went to see Ms Lam to ask who was the better student. She responded by saying that they were both “really bright” and “good looking” and that they could go and see her at any time to talk about things with her. He said that the next time they saw her, Ms Lam said words to the effect of, “Do you grow any bigger?”, which made him confused and unsure whether she was talking about his height or his penis. He said over the course of around four to five visits to the staffroom by him and GJK2, Ms Lam became “more gratuitous with her friendly comments”, including disclosing that her husband was Asian, was called Solomon, and had a “very small penis”.

28. About two or three months into the school year, IZG2 and GJK2 were in the staffroom with Ms Lam after school when GJK2 told her it was his birthday and she responded by “French kissing him on the mouth” as a “special birthday gift”. She then pulled her dress up and put it over IZG2’s head, before abruptly stopping and saying that she had to go home to meet her husband. A few days later, Ms Lam asked him and GJK2 to talk to her about what had happened in the staffroom. IZG2 went back to the staffroom with GJK2 where Ms Lam got very close and rubbed against him, before putting her hands down both boys’ pants prior to performing oral sex on them, first on GJK2 and then on IZG2 until he ejaculated. IZG2 recalled that when she finished, Ms Lam said that she had to go and gave both boys a lift home.

29. After the first incident involving GJK2, Ms Lam saw IZG2 alone. Ms Lam later told him she was going to teach him how to please a woman and taught him to perform oral sex on her, including showing him where her clitoris was. A couple of weeks after this, he and Ms Lam had sexual intercourse in the staffroom, which was the first time he ever had intercourse. This involved them kissing and Ms Lam complimenting his appearance, performing oral sex on him and putting a condom on him. Ms Lam then directed his penis into her vagina and had intercourse until he ejaculated. IZG2 also recalled an occasion during the holidays when Ms Lam collected him and GJK2 from Maroubra and took them to her place in Tempe or Dulwich Hill. He thought this occurred at around the Easter holidays because the weather was still warm. He and GJK2 had arranged this with Ms Lam a couple of days beforehand by telephone, she having given them her telephone number. While at Ms Lam’s house, she took GJK2 into her bedroom while IZG2 remained outside, before taking IZG2 into her bedroom and having sex with him.

AXJ2

37. AXJ2 adopted his evidentiary statement of 27 July 2023 and his police statement of 15 June 2021. He also gave brief oral evidence-in-chief about a conversation he overheard between IZG2 and GJK2 about the teacher KGM2. Specifically, AXJ2 said he overheard a conversation in which IZG2 said “why did [KGM2] not let us leave class with Ms Lam” and “She was going to take us to her house” and GJK2 responded, “what was that bitch doing not letting us go”. While AXJ2 could not recall the specific date of the conversation, he said that it was in 1978 and was before his own abuse, as he was confused by it.

38. AXJ2 said that the abuse took place in 1978 when he was in year 8 and was 13 years old. Ms Lam taught him either languages or music. One day in year 8, his brother came and told him that Ms Lam wanted to see him after school. He met up with his brother and went to Maroubra Bay to spend $1 that Ms Lam had given his brother. They went back to school at around 4pm and straight to the languages staffroom.

39. When they got there, IZG2 knocked and went inside while AXJ2 waited in the corridor. About 15 minutes later, IZG2 came out and said, “she wants to see you now”. AXJ2 entered the staffroom. Ms Lam was sitting on a desk with her dress hiked up and her legs open. She was not wearing underwear and called him over to her. He said he was very confused and frightened. As he approached Ms Lam, she put her arm around his shoulder and pulled him in and started nuzzling his neck with her nose and face. She then grabbed his hand and put it on her vagina and began rubbing it up and down. He was shaking while this took place. She then asked him to pull his shorts and underpants down and proceeded to perform oral sex. He had no physical reaction and began to cry, at which point she stopped, pushed him away and told him to pull up his pants. As he left the room Ms Lam said, “You’re not like your brother”.

40. IZG2 was waiting for him outside the staffroom and he was crying as he came out. IZG2 asked him what happened and he ran off, saying “I’m telling Mum”. He then ran towards his home. As he approached the front door, IZG2 stopped him and said, “we are going for a walk”. They then went walking towards the beach. AXJ2 said that he did not like what had happened and would tell their mother. In response, IZG2 became angry and violent and ultimately punched him about three times saying, “you’re not telling anyone or you’re going to ruin it for everyone”.

41. Sometime after his abuse, there was a bullying incident against IZG2. AXJ2 recalled being in the playground when IZG2 was approached by Ms Lam and a group of older boys, including PDJ2 and JM. PDJ2 said to IZG2, “Have you been spreading rumours about Mrs Lam?” and then grabbed his brother by the shirt. One of the older boys asked IZG2, “Have you had sex with Mrs Lam?”, and then told IZG2 to stop spreading rumours or they were going to “fuck him up”.

42. Sometime after this incident, AXJ2 and IZG2 decided to tell the principal, Mr Addinall. He recalled going to Mr Addinall’s office and knocking on the door. Mr Addinall asked, “What do you boys want?” AXJ2 replied that Ms Lam was getting older boys to threaten them or beat them up. He recalled Mr Addinall responding, “Why on earth would she do that?”, and said he got scared and told Mr Addinall that “Mrs Lam was having sex with students”. Mr Addinall became really angry and started bellowing and “went off on a tirade”. He told them to get out of his office and not to come back.

KWM2

45. KWM2 adopted his evidentiary statement of 27 July 2023. He also gave brief oral evidence-in-chief as to the timing of the 1978 musical, saying that his best recollection was that the musical was performed in October 1978.

46. KWM2 said that the abuse took place during 1978 and 1979 when he was in year 9 and 10. He was 14 to 15 years old at the time. He came to know Ms Lam as she was both his English and German teacher in 1978.

47. KWM2’s abuse commenced at around the time of the school musical. He was helping with lighting and other things backstage. He recalled an occasion when he was in the hall preparing some lighting and was above the stage when he looked down and saw Ms Lam kissing IZG2 and GJK2. He said he went straight down to the stage. He felt very distraught. He recalled saying to Ms Lam that he had defended her when students were talking about her and what she was doing was wrong.

48. What followed next was the first instance of sexual abuse between Ms Lam and KWM2. He said that Ms Lam grabbed him, cuddled him and told him everything was okay and that she would explain everything to him later. She told IZG2 and GJK2 to leave the stage and told KWM2 to lie down on gymnastic mats that were there. She then lifted up her dress, straddled KWM2 and started grinding herself on his penis until he ejaculated in his underpants. Ms Lam told him to meet her in a classroom near the staffroom after school so that she could explain everything to him. He said that he left the hall and went to the toilets to wash his underpants. At the time, he was very confused as he was 14 and was a virgin but had felt aroused by what Ms Lam had just done.

49. KWM2 followed Ms Lam’s instructions and met her in a classroom after school. There she asked him if he was a virgin and told him she wanted to help him so he “knew what to do”. She then told him to sit on a desk and pushed her body up against him before pulling his penis out of his shorts and performing oral sex until he ejaculated in her mouth.

50. After the first occasion, the sexual activity between KWM2 and Ms Lam continued for many weeks. She would summon him to a classroom near the staffroom where she would ask him sexually explicit questions followed by oral sex. She would also summon him during school hours, by pulling him out of other classes on the basis that she needed help with the musical. He said that once they were in the music hall, she would push herself onto him, “masturbate” him and tell him to touch her vagina.

51. The sexual activity also continued once the musical was over, with Ms Lam coming and getting KWM2 out of class so they could go to the hall together. He said that they would mostly meet up after school, where she would take him to a couple of different classrooms. He recalled being taken to the staffroom once or twice. When he was taken to classrooms by Ms Lam out of school hours, she would place a crochet rug on the floor and perform oral sex on him and they would then have sexual intercourse.

BJS2

56. BJS2 adopted his evidentiary statement of 1 August 2023. He also gave brief oral evidence-in-chief in relation to two matters referred to in that statement. First, he said that he thought the name of the 1978 school musical was “El Rancho Grande”. Secondly, he clarified what he said at [37] of his evidentiary statement, explaining that during the incident he describes in that paragraph when he was in the languages staffroom with Ms Lam and they were “just about to have sex”. They were interrupted by a cleaner or teacher and did not proceed to have sex on that occasion, but did continue to have sexual contact on subsequent occasions.

57. BJS2 was not taught by Ms Lam. His first recollections were of her flirting with male students, including KWM2 and IZG2, who “seemed to spend a lot of time around her”. He recalled numerous occasions in which KWM2 was collected by Ms Lam in her little red car.

58. BJS2 came to have contact with Ms Lam through the school musical: she did the costuming, and he worked backstage and eventually played a part. Ms Lam was flirty towards him during this period and would smile at him and touch his arms. He further said that during the rehearsals, Ms Lam told him that she watched him around the school and at school dances, liked the way he moved when he danced, and would be “good in bed” because of how he moved his hips. BJS2 said that not long after this incident, Ms Lam asked him to meet her in the languages staffroom so she could fit him with trousers for the musical.

59. BJS2 went to the languages staffroom in response to this request in the early evening. He walked into the staffroom and Ms Lam directed him to sit on a bench that was in the middle of the room. She unzipped his pants and removed his penis and began “masturbating” him before performing oral sex. She then sat on his lap and they had sexual intercourse until he ejaculated inside her vagina. BJS2 said that he was either 14 or 15 years old at the time and was a virgin and was stunned by what was happening. He further said that when it was finished, Ms Lam’s actions indicated that it was time for him to leave and as he left, he saw KWM2, IZG2 and AXJ2 on the school grounds although he did not say anything to them.

60. BJS2 did not recall how many times he had sexual intercourse with Ms Lam but did so on multiple occasions, always in the languages staffroom, and it began with her performing oral sex. In addition to his clear recollection of the first occasion in which they had sexual intercourse, he also recalled an incident when he and Ms Lam were alone in the languages staffroom and were about to have sex when they were interrupted by a female cleaner or teacher.

61. Whenever he was in the hall or backstage during the school musical, Ms Lam would flirt with him and have sexual contact with him, such as groping his testicles or rubbing herself against him whenever they were alone. Ms Lam occasionally invited him to her place in the inner west. On one occasion he went with her to pick up something for the musical. He understood from her behaviour and actions that she was inviting him in order to have sex.

Other witnesses

KGM2

62. KGM2 was a science teacher at the school between August 1977 and approximately July or August 1979, when she left for medical reasons. She adopted her police statement dated 10 June 2021 and her supplementary statement dated 19 February 2025. KGM2’s evidence achieved considerable significance in these proceedings for a number of reasons.

63. KGM2 recalled an occasion between August 1977 and August 1979 when she was working back late and visited another staffroom looking for something like chalk or paper. The languages staffroom was directly above the science staffroom and she walked upstairs to it at around 4pm.

64. She approached the closed door of the languages staffroom and opened it without knocking. She assumed everyone had left and walked in. As she did so, she saw a chair in the middle of the room with a teacher she recognised but not by name. The teacher was young, about her age, with wavy and shoulder length, or just above shoulder length, blonde hair. The woman was attractive and of average height. KGM2 was pretty sure that the woman taught languages. There was no other teacher at the school at that time who resembled the teacher she saw.

65. The teacher was sitting on the chair facing the door with a male student in school uniform on her lap facing her. KGM2 was shocked to see what she saw. The teacher and student looked up towards her, but KGM2 quickly closed the door and left so abruptly that nothing was said. She made her observation for two or three seconds only but was certain about what she saw. KGM2 was four to five metres from the teacher and student at the time and had a clear and unobstructed view. She could not see the student’s face and could not identify him.

66. KGM2 knew what she saw was wrong, so she went straight to Mr Addinall’s office. She knocked on his door and walked in. She said, “I just wanted to let you know what I have just seen, I think you should know … I walked into the language staffroom and the young blonde teacher was sitting on a chair with one of the young boys sitting in her lap”. Mr Addinall responded, “I don’t think the situation is what you think it is, but you leave it with me”. She then left.

67. After she had spoken to Mr Addinall, KGM2 returned to the science staffroom and went home. She then contacted another science teacher, David McGuiness (who is now dead) and also reported to him what she had seen. She also discussed the incident with her husband.

68. In her first interaction with police about the incident, KGM2 said she received a phone call from Detective McNaughton on 9 June 2021 who asked her if she remembered anything that was not right concerning teachers at the school. She said, “Yes, I got the shock of my life I walked in on a teacher with a student. She was a blonde language teacher. They were in the staffroom and I told the Principal”. She then arranged to meet Detective McNaughton at Maroubra Police Station to make a statement. She attached a drawing to her statement of what she saw in the staffroom.

“Q. Did you say to the lawyers that that woman's face was not so obscured that you could not recognise her?

A. If it means that it was not covered and I could see her clearly, yes, that's what I said.

Q. But it wasn't so obscured that you were placed in a position that you could not recognise who it was?

A. I could recognise her.

Q. What I'm suggesting to you is that you have said in very recent days to others that the face of the person in the chair was not so obscured that you were not in a position to recognise her.

A. Okay, I did not dwell on those words as they are written. However, I understood it to mean that I could recognise her clearly and the face was not obscured.”

76. KGM2 was next asked about a sketch of the teacher and student attached to her police statement, drawn at the request of Detective McNaughton. It was suggested to KGM2 that her sketch depicted the teacher and student face to face, as distinct from their faces being side by side. KGM2 said, “… I was just asked to draw a rough sketch of the position of the male and female. I was not asked to put in the position of heads or anything like that. That was the best that I did”, and later, “all I know is I saw the teacher’s face. I did not see the boy’s face. So exactly how close or exactly what position they were in, I cannot tell you”.

77. In the course of responding to this series of questions, KGM2 clarified that the male student’s legs were across those of the teacher, as depicted in the sketch, their faces were very close, and they had their arms around each other. She later confirmed that she was troubled by what she saw as she would never put a boy in her lap as a teacher, and that the student she observed was “not a small boy. It was a teenager, junior high”. It was later suggested to KGM2 that “leaving aside [her] view that it is inappropriate for an early high school student to sit on the lap of a teacher, there was nothing in what [she] had seen that led [her] to the conclusion that they were in an intimate moment”. KGM2 disagreed with this assertion and said that “they had their arms around each other”.

78. KGM2 was then cross-examined about her disclosure to Mr Addinall and her colleague, Mr McGuiness. She was asked a series of questions about why she did not make any further enquiries following her disclosure. She said that while she agreed it was a shocking event, she “had other things at the forefront of [her] mind at the time”.

79. KGM2 was cross-examined about her statement regarding the timing of the incident and specifically her evidence linking the timing of the incident by reference to her miscarriage in the middle of 1978. KGM2 said that after her miscarriage in the middle of 1978, she did not walk up any stairs and asked for anything upstairs to be relocated to the ground floor. She explained that the miscarriage in the middle of 1978 was her second and that when she again became pregnant she was placed on bed rest due to pregnancy complications. This led to her ceasing work in around July of 1979 and not returning to the school. KGM2 did not walk up stairs at all between the time of her second miscarriage in the middle of 1978 and her subsequent pregnancy, which led to medical advice that placed her on bed rest in mid-1979. When she was asked why she did not provide this detail in her police statement, she responded, “The policeman asked me what happened. I just said I had medical issues. He never asked me for any detail and I didn’t offer any detail”.

80. When KGM2 was asked to clarify the details of her pregnancies and miscarriages, she explained:

“I had a miscarriage in May 1977. I had another one in the latter part of 1978 and then I was threatening miscarriage in 1979. From 1978 I took everything the obstetrician said to me, literally. When he said to me, don’t go upstairs, you know, have bed rest. I took everything literally”.

81. It was suggested to KGM2 that it was after she fell pregnant for the third time that she was told not to go up stairs. She initially said yes, but corrected this statement and said, “No, with the second miscarriage when I was at the school”. This question was again put to KGM2 a short time later. She said she was told not to walk up any stairs after experiencing spotting early into her third pregnancy. It was then put to KGM2 that “It was on the basis of that memory that you told the lawyers on 31 January this year that you thought that this incident that had occurred where you had pushed the door open to the staffroom occurred in the latter part of the 77 to 79 period?”. KGM2 responded, “Correct. But I thought it was the latter part of 78”.

82. KGM2 was asked whether the reason she did not have any further conversation with Mr Addinall or Mr McGuiness was because shortly after the staffroom incident, she was put on bed rest and left the school. The implicit premise of this question was that the staffroom incident occurred at the time of KGM2’s third pregnancy, not her second pregnancy as she had said previously. KGM2 responded, “I don’t know. I can’t remember” and then agreed that it “might” explain why she did not speak to them any further about it and that was because the event “possibly” happened so shortly before she left.

83. In re-examination, KGM2 said that she did not speak to Mr Addinall again after the incident because she had other things at the forefront of her mind, meaning that she was preoccupied with herself and with her condition, namely her miscarriages, that she was unwell and that she could not conceive.

84. KGM2 was cross-examined about her ability to identify Ms Lam as the teacher she had seen in the languages staffroom. She explained she had virtually nothing to do with Ms Lam at the school and had no relationship with her or anyone else in the languages staffroom. There were around 40-50 teachers at the school at the time and the only teachers she had any relationship with were those in the science staffroom, although she did not socialise with them.

85. It was suggested to KGM2 that she was not able categorially to assert that the teacher she saw in the languages staffroom was unlike anyone else at the school. She said,

“you had an idea of the teachers within the school. You didn't actually know them all by name, but you did recognise them in the corridors and you would nod to them. You didn't necessarily know who they were or where they were from or what their name was.”

86. The following exchange then took place:

“Q. I'm going to ask you the question again. When you made the statement that the person you saw was unlike anyone else in that staff room, what you were meaning to say, that there was no one else there who was young and had wavy and shoulder length or just above shoulder length blonde hair and was an average build?

A. Correct.

Q. You were in no position to say that when you made that categorical statement?

A. Why?

Q. Because you didn't know who was in that staff room from time to time.

A. I did know who. I didn't know the people intimately or I didn't have anything to do with them but you did have an idea of who was in the staff room.”

87. KGM2 was cross-examined about the circumstances of her identification of Ms Lam from the 1978 yearbook at the time of her police statement. She described the process that led to her identification of Ms Lam and was asked about why that evidence was not in her police statement. KGM2 accepted that the evidence was not in her statement and said, “but…she was identified at the time” and then explained, “I’m not used to making police statements to this – of this nature, so I wasn’t looking for any particular detail. What he had written was correct and that’s what I signed”.

88. While it was suggested to KGM2 that she was mistaken in concluding that the nature of the interaction between the teacher and male student was intimate, it was not put to her that she was mistaken in her observation of seeing a student sitting on the teacher’s lap, with his legs across hers and their arms around each other in an intimate embrace. KGM2 was challenged in respect of her failure to follow up with Mr Addinall or Mr McGuiness about what she told them but it was not suggested to her that she did not actually make the disclosures in the terms she said. KGM2 was challenged as to her ability to conclude that the young blonde female teacher she observed was a languages teacher, but her description of the teacher as young, blonde and female was not challenged.

89. KGM2 was also challenged in respect of her evidence of the timing of the incident, and specifically, her recollection of the timing of her second miscarriage and the leave she took and medical advice she complied with following that miscarriage. The State contends that this line of questioning was confusing and the “concession” made by KGM2 (namely, that she might have been placed on bed rest following the incident) was made in response to a question that was unclear as to the timing of that leave or by reference to the pregnancy KGM2 was referring to. Conversely, KGM2 said on several occasions in cross-examination and again in re-examination that her best recollection was that she observed the incident between the teacher and student in 1978 before her second miscarriage and she took a period of leave following that observation before her return to the school and her subsequent pregnancy which led to her departure in mid-1979.

PDJ2

90. PDJ2 was a student at the school. He did not allege any sexual abuse by Ms Lam, but gave evidence as to her tendency, rumours that circulated about her at the time and disclosures that were made to him by IZG2 and KWM2.

91. PDJ2 adopted his police statement of 20 May 2021. He also gave brief oral evidence-in-chief about rumours he had heard which related to Ms Lam while he was a student at the school. He said that he recalled hearing from other students that Ms Lam “was rooting certain boys” or that students were “having sex with Ms Lam”. He clarified that he heard these rumours from other students, including JM, and that the boys who he thought were involved with her were AXJ2, IZG2, KWM2, BJS2, DIJ2 and RW. He first recalled these rumours in 1978 when he was in year 10 and thought they continued into year 11. He could not recall how often he heard the rumours but said it was often.

92. PDJ2 was in year 10 in 1978 and was taught German by Ms Lam. She had blonde hair, blue eyes, large breasts and was very pretty. He thought she was in her early to mid-twenties. Ms Lam was “very friendly” and she would on occasion lean over him in class and rest her breasts on the back of his shoulders while she read over his notes.

93. Rumours about Ms Lam having sex with students began to spread in 1978. Specifically, the rumours about KWM2 and IZG2 having sex with her were “pretty well known around the school”. There were also rumours involving BJS2 and another student, RW. IZG2 told him on two occasions that he had slept with Ms Lam but that he did not believe him at the time.

94. On one occasion during the period of the school musical when he was looking for Ms Lam, he walked into a room where she was alone with another male student. On a later occasion when Ms Lam arranged for him to attend her home in Coogee for maths tutoring, she told him, “My marriage isn’t working. He is not satisfying me; he has a small one”. After this occasion, Ms Lam drove him home in her red Mazda hatchback.

95. One to two years after he left school, PDJ2 bumped into KWM2 who told him that he had had sex with Ms Lam. PDJ2 said that he is not otherwise in contact with any of the plaintiffs.

96. PDJ2 gave evidence in cross-examination about an incident in which he was asked to bully IZG2 in order to stop him from saying that he was sleeping with Ms Lam. He was accompanied by JM. He said he could have assaulted IZG2, but could not remember. Either JM or Ms Lam asked him to do it but he could not be certain. He said that Ms Lam was generous to him with her car and lent it to him on occasions.

97. It was also suggested to PDJ2 that he did not attend Ms Lam’s home for the purpose of maths tutoring and Ms Lam did not speak to him about her husband. PDJ2 rejected this.

98. PDJ2’s evidence about Ms Lam’s behaviour towards him was not challenged, nor was his evidence about the rumours involving her or the contemporaneous disclosures made to him by IZG2 and KWM2. His evidence about attending Ms Lam’s Coogee home was challenged. PDJ2 was not challenged about his assertion that Ms Lam lent him her car during the musical to take other kids driving.

Solomon Lam

99. Mr Lam is Ms Lam’s husband. He prepared an evidentiary statement dated 27 December 2024 and was cross-examined.

100. Mr Lam was not a teacher at the school and was not present for any period of the alleged abuse.

101. Mr Lam started dating Ms Lam in 1972. They were married in 1977. She moved into Mr Lam’s unit in Dulwich Hill around December 1977. They did not own a record player in 1978 or 1979.

102. He said that Ms Lam was visibly upset after nearly every day of teaching during the 1978 school year.

103. Around three or four weeks after Ms Lam started teaching at the school, they began receiving prank calls on their home telephone. They received three to four prank calls per week until they moved to Coogee around September 1979.

104. Around early May 1978 when IZG2 and GJK2 visited their Dulwich Hill unit, there was a knock at the door and he saw the boys standing outside. He opened the door and GJK2 said, “someone in the front block told us that Mrs Lam lives in the back block”. He said IZG2 then walked into the unit and Ms Lam said, “those are two boys from my school”. The boys said, “we’ve come to see where you live, Mrs Lam” and she replied, “now that you’ve seen where we live, we’ll show you to the train station”. They then saw the boys out of the unit and onto the street. Mr Lam was disgusted at how rude IZG2 and GJK2 were, but he was not concerned for his safety and did not contact the Police.

105. On one occasion Ms Lam brought home a record of the song, “Kiss You All Over” which made her visibly upset. He threw it in the bin.

106. He and Ms Lam went overseas during the 1978-1979 school holidays. They left Sydney on 1 January 1979 and returned around 27 or 28 January, a day or two before the commencement of the 1979 school year.

107. Mr Lam was only challenged in respect of a small number of matters on which he gave evidence. He rejected the suggestion that he was mistaken that he and Ms Lam did not own a record player in 1978 or 1979. He also rejected the suggestion that his account of his inaction in response to the prank calls and unannounced visit from IZG2 and GJK2 was implausible and that this was because it did not happen. He rejected the suggestion that his account of throwing the record of the song “Kiss You All Over” into the bin was wrong.

The State’s submissions concerning the plaintiffs’ evidence

IZG2

108. One of Ms Lam’s challenges to IZG2’s account was that he had been infatuated with her at the relevant time and had made up the allegations of sexual activity in an attempt to boast or big-note himself. Specifically, it was suggested to him that he and GJK2 visited Ms Lam in the staffroom on multiple occasions because they were infatuated with her and were making pests of themselves. It was also suggested that he and GJK2 had made an unsolicited visit to Ms Lam’s home, and had given her the single “Kiss You All over”. It was also was suggested that when IZG2 told a friend, DCP2, of his intention to have sex with Ms Lam, he was big-noting himself and was starting a false narrative. IZG2 rejected these contentions.

109. It was also put to IZG2 that he had been informed of the details of other witnesses’ statements by the investigating police in Ms Lam’s criminal prosecution and had discussed his evidence with them. Specifically, it was put to IZG2 that police had told him that “a teacher had written something” and that the police had shared with him the contents of someone else’s statement. IZG2’s response was that he could not recall the specific account in question and that the police had not to his knowledge shared the contents of someone else’s statement with him. He said that no other witness had provided him with a copy of their statement at any time, that no other witness had discussed the contents of their statement with him and that while he had discussed the proceedings generally with the other plaintiffs, they had not discussed the contents of the statements they have made in these proceedings.

110. In addition to suggesting concoction and/or contamination of evidence, it was also suggested to IZG2 that he disclosed the abuse to his wife in a dishonest attempt to excuse his past poor behaviour and infidelity. He rejected that suggestion. The State in fact submitted that the suggestion that IZG2 would falsely disclose sexual abuse to his wife in an attempt to excuse poor marital behaviour, solely on the basis of rumours he had himself started while in high school in an attempt to big-note himself, was absurd.

111. As with all of the plaintiffs, there were also a number of general attacks on IZG2’s recollection which the State submitted are based on misconceptions about memory. For example, a lengthy series of questions concerned IZG2’s arithmetic in calculating the frequency of his abuse. However, it is now widely recognised and accepted that the inability to recall precise details of recurrent events is common in survivors of child sexual abuse who may also have difficulties remembering instances of abuse which were not experienced as abusive at the time they occurred. Similar challenges to IZG2’s ability to recall tangential details such as who entered the staffroom first or whether or not the door was locked, do not serve to undermine the core features of his account of his sexual abuse: peripheral details may not be recalled but core memories are retained. The same may be said for IZG2’s memory of a song on a record player on repeat. No doubt that is the way it seemed to IZG2 in his memory of a traumatic event.

(a) IZG2’s account of his early interactions with Ms Lam and GJK2 of receiving special attention and praise and being complimented for being “really bright” and “good looking” was not challenged; (b) IZG2’s account of his disclosure to Mr Addinall was only challenged at a level of generality: while it was suggested that his account of the disclosure was implausible, in that IZG2 did not explicitly disclose his own abuse or what had occurred with AXJ2, it was not suggested that the disclosure that “Mrs Lam is having sex with children” did not happen; (c) as for the incident IZG2 observed between Ms Lam and BJS2, it was suggested to IZG2 that he could not now state with certainty the sequence of the events, but it was not suggested that his core recollection was incorrect. Rather, issue was taken with IZG2’s account of the timing of the recollection; (d) no challenge was made to IZG2’s recollection of the disclosure made by BJS2 to him following the incident observed by IZG2, namely, that BJS2 said that he had “got a blow job”; (e) even IZG2’s account of the sexual activity between him and Ms Lam was only challenged at a level of generality, namely, that IZG2 was making “this” up. No specific challenge was made to IZG2’s account of the first occasion he had sexual intercourse with Ms Lam, and IZG2’s account of his first sexual encounter with her was only challenged in respect of the oral sex he described: no challenge was made to IZG2’s account of being “masturbated” by Ms Lam in GJK2’s presence.

AXJ2

116. The principal challenge to AXJ2’s account was that he had lied about the sexual abuse in order to “jump on board” his brother’s civil proceedings and receive damages. Underlying this challenge was the suggestion that he had concocted his account and/or that it was contaminated through discussions he had with IZG2 and others about the evidence that was to be given in the proceedings.

117. It was indirectly suggested that AXJ2’s recollection of the conversation he overheard between IZG2 and GJK2 was a recent invention in circumstances where he had not referred to it in his previous statements about the sexual abuse.

118. AXJ2 rejected this and frankly accepted that he had failed to tell his lawyers about the overheard conversation despite having “recalled it over time”. He further said, “I may have recalled it and forgotten it too in time before I spoke to anyone. These ruminations happen at odd times in your life and odd hours in the day”. The State submitted that this evidence is unsurprising: AXJ2’s recollection of further details over time is entirely consistent with scientific research about reminiscence and is relevant to considering the suggestion of recent invention.

119. As to the suggestion that AXJ2’s account was contaminated through discussions he had with IZG2 and others about the evidence that was to be given in the proceedings, AXJ2 admitted in cross-examination that he had given incorrect evidence when he said he was not aware of the contents of the statement of the teacher KGM2. Of this concession and the weight to be given to AXJ2’s evidence in light of this attack on his credibility, the State made the following submissions.

120. First, it was submitted that there was a general lack of specificity in the line of questioning as to what precisely had been the subject of discussions between AXJ2 and others. For example, when AXJ2 was first asked, “Have you ever discussed with your brother the evidence that might be given in the civil case or the criminal case”, he gave the following response:

“[W]hat do you mean by ‘the evidence’, sir? I’ve discussed – we’ve discussed our abuse at the hands of Helga Lam at certain times during our life, if that’s what you mean”.

121. When the topic was later returned to, the following exchange took place and the lack of specificity remained:

“Q. You have had numerous discussions with your brother, I suggest to you, about the subject matter of this case?

A. Correct.

Q. You've had numerous conversations with him about the evidence that might be given in the case?

A. Maybe. We haven't really - I specifically don't know any events of a sexual nature that happened to him. If that's what you're talking about.

Q. I'm not just talking about that. I'm talking about the evidence that might be given by anyone in this case?

A. No. Well, we don't know that, do we?

Q. I'm sorry?

A. How are we to know what other evidence there is, what other people are going to say?”

122. Secondly, while the State accepted that AXJ2 admitted to giving incorrect evidence as to his knowledge of KGM2’s statement, it submitted that it is apparent from the cross-examination that he was confused during this line of questioning and he said as much soon after. For example, when he was first asked, AXJ2 said that he had never become aware of the existence of a statement by a teacher concerning her having walked in on an incident at the school. A short time later, he clarified that he had heard that there was a teacher who had made a statement and said he thought he was told this by his former solicitor. AXJ2 was then asked what he had been told by his former solicitor, and responded, “I believe she said that a teacher has come forward that has seen something that’s relevant”. It was then put to AXJ2 that he had no knowledge of what the teacher said, and he responded, “No. How could I? I haven’t seen a statement”. When AXJ2 was taken to the text message exchange with his brother and it was suggested that he must have known what was in the statement, the following exchange took place:

“Q. I'm not asking you now whether you recall. I'm asking you whether you accept the proposition that I'm putting to you, which is that you could not have had that exchange unless you knew of the contents of the statement?

A. Yeah, to the best of my recollection, I didn't fully understand but—

Q. You have said--

HIS HONOUR: Hold on, let him finish.

Q. Didn't fully understand what?

A. What he was saying. Sorry, the way you asked the question was confusing to me. Could you—"

123. AXJ2 later gave evidence that he was having trouble recalling what he had and had not heard from different sources and “felt panicked” during the line of questioning. When this topic was returned to, the following exchange took place:

“Q. You understood me to be asking you about whether you had been made aware of the existence of the statement, and what was asserted in it?

A. I thought you'd asked me had I seen the statement, and what was in it?

Q. When you gave all your answers, you were certainly aware that you had been made aware of the existence of a statement from that teacher, yes?

A. Yes, yes.

Q. And that in it, the teacher asserted that she had entered a room and seen something going on in there?

A. I don't know what's in any of the statements.

Q. You don't know that it is asserted in a statement that the teacher had entered a room and seen something going on in there?

A. No, I - how would I know that? I haven't seen the statement.

Q. Because you'd been told what was in it.

A. No.

Q. Never been told what's in it?

A. Over the last five years, we've been in and out of many chambers and rooms, and I may have heard things about, you know, different statements here and there. But I was never told face to face what was in KGM2's statement.”

124. In circumstances where the nature of this line of questioning was confusing (and AXJ2 said as much during cross-examination), the State submitted that I would give little weight to AXJ2’s concession. More importantly, whether or not he had been made aware of the contents of KGM2’s statement at some time before giving evidence in the proceedings has absolutely no bearing on his account of his alleged abuse or on any incident to which he was a witness. As was established in re-examination, AXJ2 provided two written accounts concerning his alleged abuse and disclosure to Mr Addinall prior to KGM2 having made a statement: his first evidentiary statement was signed on 22 April 2021 and his first police statement was signed on 27 May 2021. Any suggestion that AXJ2’s account of his alleged abuse or disclosure to Mr Addinall was in some way tainted by KGM2’s police statement of 10 June 2021 does not withstand scrutiny.

125. Further, even if I were to reject AXJ2’s evidence about his knowledge of KGM2’s statement, that does not necessarily mean that I would reject his account of his sexual abuse and disclosure to Mr Addinall. Rejection of some parts of a witness’s evidence does not mandate the rejection of all of their evidence.

126. Finally, with respect to the specific text exchange relied upon in this line of cross-examination, the State repeats submissions previously made concerning that exchange between KWM2 and BJS2. Ms Lam issued broad subpoenas seeking production of all communications on a large number of topics between each of the plaintiffs and a number of other potentially relevant individuals. It can be inferred from the fact that only a small number of text exchanges were the subject of Ms Lam’s documentary tender that the remainder of the material produced did not assist her defence.

127. Another aspect of the cross-examination of AXJ2 concerned his reliability, and specifically his recollection of the incident in which Ms Lam exposed herself to him on the train on a school excursion. In cross-examination, AXJ2 accepted that he was not certain whether this incident occurred before or after his sexual abuse. He did not resile from his recollection of the incident itself, providing a detailed account of other details of the incident including the nature of the excursion and others present. In this regard, the State repeats its earlier submissions as to the scientific research regarding memories of recurrent events and the memories of children in remembering details of matters of timing.

128. AXJ2 was also cross-examined about the plausibility of his conduct in response to his abuse and specifically, why he did not disclose his abuse to his mother at the time it occurred or why he did not inform Mr Addinall that Ms Lam had abused him, as opposed to his general disclosure that she was having sex with students. Of his “failure” to disclose the abuse to his mother, AXJ2 said “I was way too ashamed of what had happened to me. I just didn’t feel that I could confess that to anyone, especially a parent”. He later explained that he was also protecting his mother and that she spoke limited English and would not have understood what to do in that situation. Concerning his “failure” to disclose his own abuse to Mr Addinall, AXJ2 said, “I was still carrying a lot of – a lot of shame about that incident, and I hadn’t disclosed to anyone, so it was mainly about the shame that I was feeling as a young boy”.

“Q. That was the perfect opportunity to say, ‘Mrs Lam has been interfering with me’, wasn’t it?

A. Probably, if I was given enough time.”

130. Finally, as with the other plaintiffs, there were also several aspects of AXJ2’s evidence which were not challenged and should be accepted. Significantly, AXJ2’s account of being taken by IZG2 to see Ms Lam and remaining outside the languages staffroom while IZG2 was inside was not challenged. While it was put to AXJ2 that it was a lie when he said Ms Lam interfered with him in the staffroom, the events leading up to AXJ2 entering the staffroom were not challenged. Likewise, the altercation between AXJ2 and IZG2 following the incident in the staffroom, in which both brothers say IZG2 punched AXJ2, was not challenged. Nor was AXJ2’s evidence of IZG2 later apologising to him.

KWM2

131. The main challenge to KWM2’s account was that he had lied about having sex with Ms Lam in order to obtain money through civil proceedings. Specifically, it was put to him that he knew that there was potential for significant compensation, and determined to “go along” with BJS2 and manufacture allegations of sexual abuse in pursuit of money. While KWM2 frankly accepted that he was interested in seeking compensation, he flatly rejected any suggestion that he made up the allegations for that purpose. Any suggestion that a person alleging child sexual abuse has dishonestly concocted the allegations to obtain money is grave. It is plainly an allegation of serious fraud and was made against each of the plaintiffs.

132. As with IZG2, it was also suggested to KWM2 that he disclosed the sexual abuse to his ex-wife early in their relationship in an attempt to “explain away” his past poor behaviour and infidelity. KWM2 rejected this suggestion and that he made this disclosure off the back of rumours about him and Ms Lam that circulated while he was at school:

“Q. When you came to speak to your wife, you knew that if you were to assert that you had had sexual relations with Ms Lam, that that would accord with the rumours that had been milling around at school?

A. Not correct.

Q. You didn't think that it would be discordant or inconsistent with the rumours, did you?

A. I told my wife, for no reason, that - that you tell your partner things, personal things. As far as rumours at school, that's not even part of that conversation.”

133. As with IZG2, the State submitted that the notion that KWM2 falsely disclosed sexual abuse to his wife in an attempt to excuse poor marital behaviour, solely on the basis of rumours that circulated while he was in high school, was absurd.

134. The other principal focus of the challenge to KWM2’s evidence concerned perceived inconsistencies in his account. KWM2’s credibility and reliability were attacked on the basis that he incorrectly described the student KEC2 as his “girlfriend” in his evidentiary statement. The State made the following submissions in response to this particular attack.

135. First, it submitted that it is not accurate to say that KWM2 had unequivocally described KEC2 as his “girlfriend” at the relevant time. He referred to KEC2 as his “girlfriend” in two paragraphs of his evidentiary statement:

(a) At [12], he said:

“I had a girlfriend [KEC2]. [KEC2] was my first girlfriend. We spent a lot of time growing up together because she lived across the road from me. I would go to her place every afternoon to talk and do our homework together. [KEC2] and I would see each other every day. On weekends, [KEC2] and I, along with two other boys, would ride our bikes around the housing commission block or go to Maroubra Beach together. We were all very close friends.”

(b) At [63], he said,

“[KEC2] was my first girlfriend and was someone I had spent a lot of time with”.

136. The State submitted that based on these descriptions, it is not accurate to say that KWM2 was unequivocally holding KEC2 out as his “girlfriend” at the time of the alleged abuse.

137. Secondly, it is submitted that even if KWM2 considered KEC2 to be his “girlfriend” at the time of the alleged abuse, his oral evidence as to what he meant by his use of the word “girlfriend” places this evidence in context and makes plain that any perceived inconsistency in his evidence is of little or no weight. For example, he said that he and KEC2 were “close friends” but “hadn’t had sex”. He later said, “[KEC2] and I were friends – friends and more than friends, from many years before that” and “I would go to her – her unit – she lived across the road from me – every – every single day we’d see each other”. When it was put to KWM2 that he had been untrue in asserting that KEC2 was his “girlfriend” he said the following:

“Q. She was not your romantic girlfriend?

A. No.

Q. And you were meaning to convey in that paragraph that she was.

A. I was meaning to convey that we were very close friends. We were very close.

…

Q. Did you not earlier in answer to my questions to you accept that what you were asserting in your statement was that she was your romantic girlfriend in 1978?

A. She wasn't my romantic girlfriend. She was my girlfriend as far as we were friends.”

138. Further, it was suggested to KWM2 that his evidence that Ms Lam was his teacher in 1979 and treated him badly in class following the cessation of their sexual activity was false. This suggestion was made on the basis that KWM2 did not study German in 1979. It was put to him that Ms Lam did not teach a year 10 English class that year. KWM2 frankly volunteered in his evidence that he could not recall what subject Ms Lam was teaching him in 1979 and that he had a very limited recollection of his subjects and teachers that year. That said, he adhered to his account of Ms Lam’s conduct towards him in class following the cessation of their sexual activity notwithstanding that he was unable to recall the subject she taught to him. In any event, there is no evidence of the classes taught by Ms Lam in 1979, despite Ms Lam presumably being able to give such evidence.

139. It was also suggested to KWM2 that his account of being taken to Heffron Park by Ms Lam for sexual activity during the Christmas holidays was made up. Specifically, it was put to KWM2 that Heffron Park in 1978 consisted mainly of open playing fields, open space and was generally used by the public. This was rejected by KWM2, who said repeatedly that there were a lot of trees at Heffron Park in 1978. The State submitted that KWM2’s evidence in this respect is corroborated by Google Maps satellite image of the Heffron Park and its size being approximately 380,540 sqm.

140. It was also suggested to KWM2 that he had made up his evidence about going to Heffron Park with Ms Lam because he was unable to recall the specific details of how such visits were arranged, beyond generally recalling that she collected him from his home on one occasion.

141. As with all of the plaintiffs, the State submitted that some of the attacks on KWM2’s reliability and his ability to recall peripheral details were based on misconceptions about the nature of memory of survivors of child sexual abuse and are matters which are now well established as being within the general experience of the Court. For example, KWM2’s inability to recall the details of the arrangements for the occasions on which he was taken to Heffron Park by Ms Lam is unsurprising: they were recurrent events from approximately 47 years ago and any memory of the arrangements is likely to be subsumed by the memory of the abuse itself, which KWM2 did recall. Further, as set out earlier, survivors may have difficulties remembering instances of abuse which were not experienced as abusive at the time they occurred. The same can be said of KWM2’s inability to recall his subjects and teachers in 1979. This is also unsurprising given that 47 years has passed. KWM2’s memory of Ms Lam’s treatment towards him after he ended their sexual contact was retained as a core memory.

142. Finally, as with IZG2, there were a number of aspects of KWM2’s evidence which were not challenged and which should be accepted, or which were only challenged at a level of generality. For example, while it was put to KWM2 that “none of those incidents that you describe in your statement, starting with the one in the hall, occurred”, KWM2’s account of observing Ms Lam kissing IZG2 and GJK2 in the hall prior to his first sexual interaction with her was not specifically challenged. Similarly, while it was put to KWM2 that none of the allegations about sexual contact with Ms Lam was true, his account of her telling him about the altercation she had with KEC2, including that she told him that she had observed her underwear on the floor while arguing with KEC2, was not challenged. Nor were his accounts of Ms Lam telling him that her husband was “Asian” and had a “very small penis”, or that she wanted to take him to Bali over the holidays.

BJS2

143. As with KWM2, the main challenge to BJS2’s account was that he had lied about having sex with Ms Lam in order to obtain money through civil proceedings. In this regard, BJS2 was taken to a text message exchange between him and KWM2 in August 2021 in which BJS2 said that he was not getting involved in the criminal proceedings as “it’s not what [we] set out to do”, said “fuck that would be nice” in response to a message about a male claimant who was awarded $1.4 million in respect of child sexual abuse perpetrated by a female teacher, and said “between me and you I’ve never felt like a victim”. It was suggested that these messages were inconsistent with earlier comments he had made to Dr Michael Diamond, a consultant psychiatrist and that he ultimately joined the civil proceedings brought by IZG2 as he thought it was a “good opportunity to get on board”.

144. BJS2 accepted that he had sent the messages and had said that at that time he had not considered himself to be a victim. Nothing of substance turns on this answer: see the Final Report of the Royal Commission and its commentary regarding the impact of child sexual abuse differing between individuals and that survivors may not perceive themselves to be victims. Further, it is obvious that the content of an adult male’s discussion with a health professional may differ markedly from a casual text message exchange with a male friend for a range of reasons. Finally, it is noted that Ms Lam issued broad subpoenas seeking production of all communications on a large number of topics between each of the plaintiffs and a number of other potentially relevant individuals. It can be inferred from the fact that only a small number of text exchanges were the subject of Ms Lam’s documentary tender that the remainder of the material produced did not assist her defence.

145. BJS2 also denied that he provided a statement because he was pressured or harassed by IZG2 and AXJ2. He said of this, “I’d say they would have preferred that I was on board, but I didn’t feel like I was under any pressure to do so”.

146. BJS2 was also cross-examined at length about inconsistencies in the different accounts he had given of his abuse since the commencement of proceedings. Some examples of this are as follows.

147. It was suggested to BJS2 that he had made up the contention that he had left school in year 11 because of Ms Lam in order to enlarge the damages he might be awarded. This is because he did not refer to her when explaining his decision to leave school in an earlier version of his statement that was prepared in April 2021. In response, BJS2 frankly accepted that he understood his evidence about his decision to leave school had the potential to increase the damages he might have been awarded, but explained that his later connection of his abuse by Ms Lam to his decision to leave school was the result of thinking that he did over the two years between the preparation of the two statements. He said:

“Q. When you told others later on that there was some connection between the two events, it's because you knew that it could have some impact on that aspect of the case?

A. No, that's not the reason. The reason is I considered how my life had unfolded and why I'd left school, and with careful consideration, I came to the conclusion that that was part of the reason why I left school.

HIS HONOUR

Q. When did you first give consideration to that?

A. After I gave my first statement, I did a lot of thinking about the experience and the way that it affected my life, and tried to come up with a reason why I'd left school. And that's what it led me to believe, that that was part of it.”

148. BJS2 was questioned about the fact that in the version of his statement prepared in April 2021, he said there had been only one instance of sexual intercourse between him and Ms Lam but in his evidentiary statement of August 2023, he said that there had been multiple instances. In response, BJS2 said that he gave his solicitors a comprehensive account of what had happened “as he recalled at the time” but that “[i]t wasn’t until after [he] sat down and had a serious think about what had occurred that things came back to [him]”. He explained that while he had a clear recollection of the first time he had sexual intercourse with Ms Lam, in part because it was the first time he had sexual intercourse with anyone, he did not have a clear recollection of the detail of the other occasions on which they had sex.

149. BJS2 was questioned about the clarification he made to [37] of his evidentiary statement, where he explained that he and Ms Lam did not continue to have sex after they were interrupted but did continue to have sex on other occasions. Specifically, it was suggested that his clarification of this paragraph was putting a “strained interpretation” on an otherwise unambiguous assertion that he and Ms Lam had continued to have sex after being interrupted. BJS2 soundly rejected this contention and said that he “would like to have seen [the relevant sentence] better worded”.

150. It was also suggested to BJS2 that he had made up the account of having been interrupted following being made aware of the existence of the statement from the teacher KGM2. He repeatedly denied being made aware of the existence of a statement from KGM2 prior to making his evidentiary statement and said that the first time he became aware of such a statement was in the lead up to the hearing. The following exchange took place:

“Q. I want to suggest to you that you did in one way or another come to know about the existence of a statement from a teacher, and that is what caused you to give the account you did to the police of that occasion when someone opened the door into the room.

A. That's incorrect.

Q. Well, what was it, then, that prompted that memory in you almost two years after you had provided a statement to the solicitors in which you don't mention that at all?

A. I don't know whether it was two years later that I remembered that. It was sometime in that period of two years that I remembered it, but I remembered it when I sat down and considered the things that had happened to me over that period of time.

Q. What prompted you to recall that, particularly?

A. I don't know. I don't know. The same thing that prompted me to remember that the musical was called El Rancho Grande.”

151. BJS2 also said that he recalled the incident due to “long consideration” and that because he was “put in a situation where [he] had to stop and think and remember and go over this thing over, and over again in [his] head”, he started to remember more information.

152. As with the other plaintiffs, the State contended that these attacks on BJS2’s credibility and reliability are based on misconceptions about the nature of memory of survivors of child sexual abuse.

153. Finally, as with the other plaintiffs, there were also several aspects of BJS2’s evidence which were not challenged and should be accepted, or which were only challenged at a level of generality. BJS2’s account of his first recollections of Ms Lam flirting with male students including IZG2 and KWM2 were not challenged, nor was his account of seeing KWM2 get collected from school by her in her “little red car”. Further, his account of his own early interactions with Ms Lam, including of her flirting with him, touching him and making sexualized comments towards him, were not challenged. Rather, it was put to him that he had made up all assertions of having sex with Ms Lam.

154. In addition, BJS2’s account of leaving the languages staffroom after having sex with Ms Lam and walking past KWM2, IZG2 and AXJ2 was not specifically challenged, nor was his assertion that she would touch him sexually when they were backstage together during the rehearsals for the musical. Further, BJS2’s evidence that he was with Ms Lam in the languages staffroom about to have sex when a female teacher or cleaner entered the room was not challenged. Rather, these matters were only challenged at a high level of generality through the contention that BJS2 had made up all assertions of having sex with Ms Lam.

Ms Lam’s submissions concerning the plaintiffs’ evidence

IZG2

155. Ms Lam submitted that IZG2’s evidence regarding the material events in respect of which he claimed damages against the State, gives rise to considerable doubt as to his account in terms of both its reliability and its veracity: those doubts were said to be sufficient for me not to be satisfied, to the requisite standard of proof, that his evidence could safely be accepted. That was said to be for the following reasons.

156. First, it was not until 2021, some 43 years after the events in question, that IZG2 first provided his account of having been sexually abused by Ms Lam, while a student at the school.

157. Secondly, IZG2’s evidence regarding the circumstances in which Ms Lam perpetrated the alleged sexual abuse were inherently implausible. On IZG2’s account of those events, Ms Lam:

(a) Repeatedly and brazenly engaged him, and his friend GJK2, in oral sex or sexual intercourse in the school’s language staffroom, a mere 45 minutes after school had finished for the day, when other students and teachers, including Mr Addinall, were likely still to be around, while the door remained unlocked throughout. (b) Repeatedly and brazenly engaged in sexual activity with him, GJK2 and, on one occasion, KWM2, in the music hall during preparations for the 1978 musical, when there was every chance that multiple people involved with the production might walk in at any time. (c) Brought IZG2 and GJK2 into her own home in order to have sex with them, when her husband, who worked flexi hours, could have come home at any time. (d) Acted with such wanton abandon, that she was prepared to jeopardise both her marriage and her livelihood, by repeatedly engaging in sexual activity with IZG2 at times when, and at places where, there was an inordinately high risk of getting caught.

158. Thirdly, IZG2’s account of the number of occasions on which Ms Lam engaged him in sexual activity is internally inconsistent. IZG2 said that he and Ms Lam had sexual intercourse at least 2 to 3 times per week for a number of months up until the incident involving KWM2, and once a week thereafter, until the incident involving AXJ2. He also said, however, that he had sexual contact with her for a period of around 8 to 9 months, and that he had oral sex with her on 6 to 10 occasions, and sexual intercourse on around 4 or 5 occasions throughout that whole period. When challenged as to that glaring arithmetical inconsistency, rather than simply conceding the possibility that he was mistaken, IZG2 said: “No, but see, I’m including digital penetration… hand jobs, things like that would have happened. I consider them sexual encounters.”

159. Fourthly, whenever confronted with matters that had the potential to undermine the reliability or veracity of his evidence, IZG2 gave answers which were evasive, or could only have been motivated by self-interest. In addition to the last example, he was similarly evasive when asked whether the contents of any other witness’ statement had been shared with him, or the subject of discussion between him and any other witness in the civil or criminal proceedings, including AXJ2. IZG2 was also evasive when cross-examined on his previous work as a real estate agent, and his failure to disclose that work when he first prepared a statement for his solicitors, and when medicolegally examined by Dr Diamond.

160. Fifthly, there are two obvious explanations for the account that IZG2 now provides, some 47 years after the events in question:

(a) In 1978, IZG2 said to his friend and neighbour across the road, DCP2, in words to the effect of, “I’m going to fuck my teacher. I’m going to screw Helga”. Having done so, he then told a number of the school’s students, including PDJ2 on more than one occasion, that he had had sex with Ms Lam. (b) Approximately 40 years later, when working as a teacher for the Department of Education, he decided to take advantage of the rumours that circulated at the school in 1978, by bringing his own claim for damages against the State.

AXJ2

161. Ms Lam submitted that the credibility issues that attended the evidence of AXJ2, were even more significant, and that his evidence was even less capable of acceptance. Those issues, which pertained to both AXJ2’s reliability, and more significantly, his veracity, were as follows.

162. First, it was not until 2021, some 43 years after the events in question, that AXJ2 first provided an account of having been sexually abused at Ms Lam, while a student at the school: the passage of time, alone, is sufficient to cast doubt over the reliability of his evidence.

163. Secondly, AXJ2 also did not avail himself of the opportunity to report Ms Lam’s alleged misconduct towards him to Mr Addinall at or about the time it occurred. He and his brother IZG2 went to Mr Addinall in late 1978, and told him that Ms Lam was “having sex with students”, but not that she was having sex with them.

164. Thirdly, his deliberately untruthful evidence regarding his knowledge of the contents of KGM2’s police statement, which was patently contradicted by the text messages he had exchanged with IZG2 in around February 2022, left him with no choice but to admit to the lie. Having lied under oath, Ms Lam submitted that I could not safely accept any of his evidence on any material matters to the relevant standard of proof.

KWM2

165. Ms Lam submitted that I would be equally troubled by the evidence given by KWM2. The account that he gave of the events which formed the basis of his claim for damages against the State, was also inherently implausible and internally inconsistent. Furthermore, the evidence he gave of the circumstances in which he and Ms Lam were alleged to have had sex in Heffron Park, and of how they might have arranged to meet there, could only be described as absurd.

166. For example, according to KWM2, on around three occasions during the 1978-1979 summer holidays, Ms Lam picked him up in her car and drove to Heffron Park for the purpose of having sex. KWM2 said that he did not see any other person there on any of those occasions, even at dusk during the height of summer. He said that although he could not recall exactly how he and Ms Lam made the necessary arrangements, he offered as a possibility that, “She knew where we frequented. She could’ve driven past and picked me up.”

167. KWM2’s evidence of his assignations in Heffron Park with Ms Lam is even less probable, when regard is had to Mr Lam’s evidence that he and Ms Lam were away from Sydney for all but a few days of the 1978-79 summer holidays. During the limited days on which they were in Sydney during that period, Ms Lam was busy with last-minute preparations for Christmas with her parents in Wollongong, and for their upcoming trip to South-East Asia. On KWM2’s account, Ms Lam would have had to leave home shortly before dusk when Mr Lam would likely have been home, drive their only car to pick up KWM2 and drive him to Heffron Park to have sex, before getting back home at some time later in the evening. Ms Lam contended that such evidence is glaringly improbable.

168. Thirdly, and just as implausible, was KWM2’s evidence regarding the sexual interactions he had with Ms Lam at the school. Those interactions included Ms Lam grinding on KWM2 on the stage of the music hall, as he lay on a blue gymnastics mat, numerous instances of her pulling him out of class so that she could take him to the music hall for further sexual activity during school hours, meeting with her after school in a disused classroom, where they had sex two or three times a week and, on at least one occasion, his having to climb out of a second storey window ten metres above the ground and down a drainpipe, to avoid being discovered.

169. Fourthly, his evidence of the impact his assignations with Ms Lam had on his relationship with his high school girlfriend KEC2, before conceding under cross-examination that KEC2 was in fact in a relationship with another student at the school.

170. Fifthly, the evidence that KWM2 did not study German in 1978, and his evidence in cross-examination that he had no recollection of Ms Lam having been his Year 10 English teacher. That rendered it glaringly improbable that the humiliation to which Ms Lam allegedly subjected KWM2 during class, after he ended it with her, occurred at any stage in 1979.

BJS2

172. Ms Lam highlighted the following issues arising from BJS2’s evidence.

173. First, in his evidentiary statement that he signed for the purposes of his claim against the State, BJS2 said that sexual intercourse between him and Ms Lam happened on “multiple occasions”, but that it was hard to “articulate or explain how each other occasion occurred”. He had, however, previously provided a statement, signed 1 April 2021, in which he unambiguously said that he only ever had intercourse with Ms Lam once. When cross-examined on that inconsistency, BJS2 attempted to explain it by saying it was not until after he had prepared the previous statement, that he “had a serious think about what had occurred [and] things came back to [him]”. He also said that:

(a) he had simply forgotten about all the other times he had had sexual intercourse with Ms Lam in 1978; but (b) he nevertheless had a specific recollection of other events that occurred after that “only occasion” (in the first statement) / “first occasion” (in the evidentiary statement) of sexual intercourse, including, in particular, of Ms Lam having groped his testicles, backed him up against a wall, and rubbed her breasts and body against him on multiple occasions during the school musical.

174. Secondly, BJS2 was a former police officer, an experienced witness who appreciated the very distinct difference between the competing assertions in his two statements. His explanation that he neglected to refer to sexual intercourse that allegedly occurred subsequently, and on multiple occasions, in his first statement because he could not “articulate or explain how each other occasion occurred” casts significant doubt over his credibility.

175. Thirdly, there must also be significant doubt as to the veracity of BJS2’s evidence, in circumstances where, when medicolegally examined by Dr Diamond, he provided a history in which he portrayed himself as a “victim” of Ms Lam’s alleged sexual abuse. However, a mere three weeks after that examination, he sent a text message to KWM2 in which he wrote: “Between me and you I’ve never felt like a victim.” He did so, moreover, during the course of a discussion (over text message) with KWM2 regarding damages that had been awarded to a plaintiff in Toowoomba for historical sexual abuse by a female teacher. BJS2 also said, during that same discussion with KWM2, that he was “not getting involved in the police case [against Ms Lam]”, because “it’s not what we set out to do.”

176. Based on the inclusion of additional episodes of sexual intercourse in BJS2’s evidentiary statement, together with the history that he gave to Dr Diamond and his text messages with KWM2, Ms Lam submitted that I might infer that those amendments to his written evidence were not the result of organic developments in his recollection but were instead motivated by a desire for financial gain. At the very least, the circumstances which surrounded the addition of those “multiple occasions”, could only serve to compromise the reliability of that evidence to such an extent, that I would be disinclined to accept it.

177. Fourthly, those “multiple occasions” were not the only allegations to make their way into the subsequent versions of BJS2’s written evidence. The additional allegation was that of him and Ms Lam being caught in a compromising position in the languages staffroom, by either a cleaner or a teacher. That evidence first appeared in the police statement BJS2 signed on or around 18 January 2023, by which time:

(a) KGM2 had provided her statement to Senior Constable McNaughton, regarding her involvement in a similar event during her tenure at the school, although somewhat later in time; (b) AXJ2 and IZG2 knew of the contents of KGM2’s statement, and had discussed it in their text messages; (c) IZG2 and AXJ2 had discussed (via text message) putting “pressure” on BJS2, or at the very least trying to “persuade” him, to become involved in the police case against Ms Lam.

178. Finally, In the light of those surrounding circumstances, Ms Lam submitted that it might be inferred that the addition of that event to BJS2’s police statement was not the result of a natural improvement in his recollection but instead resulted from things that had been said to him by IZG2 or AXJ2, in the course of encouraging him to involve himself in the criminal proceedings.

179. Having regard to the extent to which the reliability and veracity of BJS2’s account has been undermined by those matters, Ms Lam submitted that I could not be satisfied that his evidence of sexual conduct by her is sufficient to meet the threshold imposed by s 140 of the Evidence Act 1995.

Consideration

180. The first thing to note is that there are four separate plaintiffs who make separate allegations of sexual abuse by Ms Lam. Even though their evidence includes events that are common to some of them from time to time, the actual physical acts upon which each plaintiff sued the State must be individually assessed and analysed to determine if they occurred in fact and what follows if they did.

181. The second thing to note is that the plaintiffs’ evidence of sexual abuse is not directly contradicted by the evidence of any witness called by Ms Lam. Mr Lam’s evidence put some matters in issue but he was not in a position to gainsay the events at the school at all, or what happened after school, other than in a limited way. The observation that the plaintiffs’ evidence is not contradicted is not made in the context of competing forensic inferences that flow from the fact that Ms Lam did not give evidence in these proceedings. It is made simply to emphasise that when considering the cases for the plaintiffs, there is no evidence or competing version of what occurred upon the basis of which to compare the plaintiffs’ versions of what happened to them. That is also entirely different from my obligation to take account of Ms Lam’s submissions that the plaintiffs should not be believed for other reasons, such as the suggested inherent unlikelihood that Ms Lam would ever have risked her career and her livelihood by engaging in conduct that could have been seen or heard by other teachers or pupils, or could not have occurred in the way or ways alleged because, for example, Mr and Ms Lam were overseas at the time.

182. The third thing to note is that the plaintiffs were each challenged in cross-examination to suggest that their allegations are false. For example, in the case of KWM2:

“Q. Part of your reluctance in going to the police, was because you knew that what you were asserting had happened between you and Ms Lam, was not true?

A. That's not correct.

…

Q. I do suggest to you, that none of the allegations that you make, about sexual contact with Ms Lam, are true?

A. I deny that.

Q. You never went to Heffron Park with her?

A. I did. I reject that.

Q. None of those incidents that you describe in your statement, starting with the one in the hall, occurred?

A. I reject that.

Q. What happened in this case, was that you saw an opportunity to pursue a claim for compensation, and when you were contacted by BJS2 and learned that they were going to solicitors, you thought you'd go along with it?

A. I reject that.

Q. You have manufactured all the allegations in pursuit of money?

A. I reject that.”

183. IZG2 was challenged as follows:

“Q. At 88, you assert that you continue to have sexual contact with Mrs Lam over a period of about eight to nine months?

A. From day 1?

Q. Yes?

A. Yes.

Q. But let's take the first two months

A. Yep.

Q. at the frequency you say, and the remainder at the frequency you said in paragraph 47?

A. Yeah.

Q. The arithmetic just doesn't stack up, does it, because you then say you estimate oral sex on six to ten occasions and sex about four to five times over the whole period?

A. Yeah.

Q. The two are simply inconsistent with each other, aren't they, sir?

A. No, but see, I'm including digital penetration. I don't know how to say this hand jobs, things like that that would've happened. I consider them sexual encounters.

Q. I suggest to you that the inconsistency is borne of the fact that you are making this up and you cannot get your story straight?

A. I reject that.

…

Q. Just to be clear, you yourself never witnessed any intercourse taking place or oral sex taking place between KWM2 and Mrs Lam, did you?

A. Oral sex or sex?

Q. Yes?

A. No.

Q. And you never witnessed either of those two things with BJS2?

A. No.

Q. And indeed, you didn't witness what had occurred between your younger brother and Mrs Lam either?

A. No.

Q. And the only person who you say witnessed intercourse of oral sex between you and Mrs Lam is dead?

A. Yes.”

184. BJS2 was cross-examined in these terms:

“Q. To be clear, you don't suggest that any sexual interaction you had with Ms Lam occurred around lunchtime, do you?

A. No.

Q. If you told someone that, that would also have been wrong?

A. Yes. Any interaction we had was after school.

Q. You never went to Mrs Lam's house, did you?

A. Yes.

Q. You've made that up, I suggest to you, to embellish the story that you are giving?

A. That's not correct.

Q. You claim to have recalled that you had more than the one sexual interaction with Mrs Lam that you referred to in your first statement was also made up, wasn't it?

A. No, that's not correct.

Q. Just as your assertion that you had sex with her on any occasion was made up?

A. Not correct.”

185. As far as I am able to detect, the following evidence is the only occasion when AXJ2 was tested on his account:

“Q. It is also a lie when you [say] that Ms Lam interfered with you, in the way you say she did, in the staffroom. That's also a lie, isn't it?

A. I reject that.”

186. It is no secret that, as Mr Lloyd identified in the course of a discussion about evidentiary matters on 21 February 2025 at page 286 of the transcript, Ms Lam’s case, “without putting too fine a point on it, is that [the plaintiffs have] engaged in a fraud by deliberately and falsely making allegations and falsely giving…evidence.” I accept that the challenges to the plaintiffs’ evidence were properly made with the benefit, and on the basis, of instructions. They were in all cases rejected by the plaintiffs, as the extracted excerpts from the transcript of their evidence makes plain. Ms Lam’s case must therefore be that I should reject their evidence, not with the benefit of a competing account from her, but upon an assessment of their credibility and reliability.

187. With respect to the plaintiffs’ reliability, Ms Lam uncontroversially emphasised the obvious fact that the relevant events are alleged to have taken place in 1978 and 1979 when the proceedings are only now being heard in 2025, or some 46 or 47 years after the events. Inevitably, the passage of time affects human memory, particularly the details of events recalled from so long ago. However, aside from the details, it seems to me to be highly likely that a sexual encounter, involving sexual intercourse and other intimate interactions such as oral sex, experienced by a 14 or 15 year old student with a female teacher, then in her twenties, would not, in the most general terms at least, be particularly difficult to recall at all. Indeed, having regard to the range of human experience in a setting as structured and formal as a high school in the late 1970s, it would in my opinion be remarkable if sexual intercourse with a teacher were forgotten.

188. With respect to the plaintiffs’ credibility, it is plain that it is neither possible nor legitimate to deal with it generally, as it is with reliability: four plaintiffs with the same ability to recall may be differently motivated to maintain that they were assaulted by their teacher, ranging from fabrication for financial gain at one extreme to shame or the need for vindication or even retribution at the other. Nor is a finding that the plaintiffs or any of them were motivated by a desire for financial gain necessarily inimical to a finding that their evidence is truthful. The desire of a plaintiff who has sued for damages to recover damages, the single most obvious object of successful litigation, would be a common element in any case such as the present. An attack on the credibility of the plaintiffs upon the basis that they were motivated by monetary gain is only of assistance to Ms Lam in this case if it wholly supplants or compels rejection of the truthfulness of their accounts.

189. In these cases, the plaintiffs’ evidence in varying respects contains reference to matters that would not ordinarily be expected to have occurred in a normal school day or to information that would not usually be expected to be known. For example, KWM2’s account of being told by Ms Lam to climb out of the window and down the drainpipe to avoid detection following a sexual encounter in a classroom. Putting aside completely the fact that KWM2 was not challenged about it, it seems so extraordinary that it is likely to have occurred.

ISSUE 2: IS the state a tortfeasor within the meaning of s 5(1)(c)

THE CONSENT JUDGMENTS

The State’s submissions

197. The State’s primary submission is that its liability as a tortfeasor is established through the consent judgments that were entered against it on 23 August 2024, so that it is neither necessary nor appropriate for the Court to determine whether the plaintiffs would have succeeded in their cases against the State had they proceeded to trial.

198. In James Hardie & Coy Pty Limited v Seltsam Pty Limited [1998] HCA 78; (1998) 196 CLR 53, a majority of the High Court (Gaudron, Gummow and Callinan JJ), held that a defendant could not be a joint tortfeasor who would if sued have been liable to the plaintiff because the entry of a consent judgment in favour of that defendant established that it was not liable to the plaintiff. At [41] (per Gaudron and Gummow JJ), their Honours said:

“The status of the Tribunal as a court of record was such that the circumstance that the judgment in favour of the respondent was entered by consent renders it no less effective to absolve the respondent from liability to the plaintiff. It was for the appellant to have taken the necessary steps to oppose that entry of judgment and to have put itself in the procedural position whereby it was competent to appeal against that entry. In the meantime, whilst that judgment remained on the record of the Tribunal, the respondent did not answer either of the statutory descriptions necessary to confer entitlement upon the appellant to proceed against it for contribution.”

199. The State accepted that while the statements of principle in Seltsam support its position, the decision was not on all fours with the present case, where a party asserts that a consent judgment against it, rather than in its favour, is sufficient to establish that it meets the description of tortfeasor. However, the issue in the present case was addressed by the Supreme Court of South Australia in Bakker v Joppich and Bitumax Pty Ltd (1980) 25 SASR 468, where Wells J said at 473 that in any claim for contribution, these questions fall for determination by the court:

“Has the defendant the right to institute a claim at all – that is, has he satisfied the conditions precedent to institution? If he has the right, is the third party called on to make a contribution of any amount – that is, is the third party properly described as one who ‘is, or would, at any time, have been liable in respect of the same damage’? And, if it is proper so to describe the third party, what amount ought to be found by the Court to be a ‘just and equitable’ contribution by the third party.”

200. Of the first question, his Honour said that:

“… the word ‘liable’ … comprehends all circumstances in which a defendant becomes, under any head, legally liable to the plaintiffs to pay damages on account of acknowledged or alleged negligence: liability, within the meaning of that passage, exists, inter alia, where the defendant has submitted to judgment on that account or has made an accord and satisfaction. One should bear steadily in mind that, for the purpose of answering the first of the foregoing questions, the adequacy or inadequacy of the sum ordered or agreed to be paid, is irrelevant.”

201. This issue was also addressed by the Full Court of the Supreme Court of Western Australia in Woolworths (WA) Pty Ltd v Berkeley Challenge Pty Ltd (2004) 28 WAR 540; [2004] WASCA 196. There, the party seeking contribution had consented to judgment against it in the plaintiff’s claim. On appeal, the defendant from whom contribution was sought contended that there was no negligence on the part of the claimant appellant and that its consent to judgment in favour of the plaintiff was unreasonable. Murray J (with whom Malcolm CJ and Jenkins J agreed) rejected the defendant’s argument, citing the decision in Seltsam and held (at [29]):

“Nor in my opinion can the respondent now defeat the appellant's claim in the contribution proceedings by asserting that the appellant should not have consented to judgment against it. The simple fact of the matter is that it did so and it matters not that the judgment against it was by consent. The plaintiff's cause of action against the appellant merged in the judgment the plaintiff obtained. The appellant's liability to the plaintiff was thereafter res judicata. It was a tortfeasor liable in respect of the damage suffered by the plaintiff as the result of the tort of negligence committed by the appellant and it therefore has the capacity to seek contribution in respect of the burden of that liability. This is the classic mode of operation of the section: Brambles Construction Pty Ltd v Helmers (1966) 114 CLR 213 per Windeyer J at 221.

202. The State contends that I should follow Woolworths v Berkeley and Bakker. They are directly on the point of the construction of the word “tort-feasor” where it first appears in s 5(1)(c). The Court of Appeal of New South Wales will be bound to follow the decision in Woolworths v Berkeley unless it considers that it is plainly wrong: see Gett v Tabet (2009) 109 NSWLR 1; [2009] NSWCA 76 at [277]-[278]. Woolworths v Berkeley and Bakker are moreover consistent with the statements of principle in Seltsam.

Ms Lam’s submissions

203. Contrary to the State’s primary submission, Ms Lam contended that her liability as a tortfeasor is not established by the consent judgments that were entered against it and that Seltsam*,* Bakker and Woolworths v Berkeley are not of any assistance.

204. The majority decision in Seltsam was based on the entry of a consent judgment which, according to both its terms and its legal effect, was distinguishable from the consent judgments entered against the State on 23 August 2024. As the reasons of the majority in Seltsam make plain, it was not the entry of that consent judgment per se, which bore upon the defendant’s right to claim contribution from another defendant. It was instead the entry of a consent judgment which, in express terms, precluded that defendant from being a “tortfeasor who is, or would if sued have been liable” for the purposes of s 5(1)(c), and which rendered the claim for contribution invalid.

205. Ms Lam submitted that the terms of the consent judgments entered in favour of the plaintiffs against the State could not have any bearing upon whether the State meets the description of a “tortfeasor liable” in respect of the damage complained of by the plaintiffs, as is required for the purposes of its claim for contribution from Ms Lam. All that is relevantly established by the terms of the consent judgments is that the State owed a judgment debt to each of the plaintiffs, for the amount of the judgment sum. As Gaudron and Gummow JJ observed in Seltsam, however, that is not sufficient. It is the “liability ascertained as between the plaintiff and the claimant tortfeasor”, which is the condition precedent to an assertion by that tortfeasor of its right to contribution under s 5(1) of the Act.

206. In Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574; [1996] HCA 38, Gummow J said this in relation to the equivalent provision in the ACT:

“Authority indicates that the phrase in s 11(4) "any other tort-feasor ... liable" includes a party whose liability has been ascertained upon a settlement whether or not reflected in a consent judgment, and that this is so whether or not in reaching the settlement the party now seeking contribution admitted liability. Nevertheless, the party seeking contribution after such a settlement must be prepared in that proceeding to establish that, if the claim had been fought out, that party would have been held responsible in law and liable to pay in whole or in part for the damage referred to in s 11(4). The decision of the English Court of Appeal in Stott v West Yorkshire Car Co, which established these propositions with respect to the UK Act, has been followed in respect of Australian legislation deriving from it.”

207. Gummow J’s observations were subsequently approved by French CJ in Newcrest Mining Limited v Thornton (2012) 248 CLR 555; [2012] HCA 60. As the Chief Justice observed at [27], the approach endorsed by Gummow J in Thompson had been followed not only in Australia, but also by the Supreme Court of New Zealand and the Court of Appeal in Northern Ireland. His Honour then said (at [28]):

“Each of the authorities mentioned was concerned with the equivalent of s [5(1)(c)] and the conditions necessary to establish one person's liability for a tort which is necessary to enliven that person's entitlement to contribution from a joint or concurrent tortfeasor. None of the authorities support the proposition that liability as a tortfeasor in such cases is established simply by a consent judgment or agreement without some basis from which it may be ascertained that the liability imposed relates to a tort.”

208. Ms Lam submitted that the observations of Gummow J in Thompson and French CJ in Newcrest were seriously considered dicta of the kind to which the High Court referred in Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 at [134]-[135]. Ms Lam contended that the decision in Woolworths v Berkeley was in conflict with the dictum of Gummow J in Thompson and plainly wrong.

The State’s response

209. The State submitted that Woolworths v Berkeley, Bakker and Seltsam do not assist Ms Lam for the following reasons:

(a) Stott v West Yorkshire Road Car Co Ltd [1971] 2 QB 651 precedes the decision in Seltsam; (b) Gummow J’s observations in Thompson are obiter. Thompson did not concern the construction of the legislative analogue of s 5(1)(c). It is settled that the word “tort-feasor” when used in the different paragraphs of s 5(1) does not necessarily bear the same meaning: see for example Newcrest at [43] per Heydon J. Further, Gummow J’s observations were not picked up by any other judge in that case and in any event preceded the High Court’s decision in Seltsam; (c) French CJ’s observations in Newcrest at [28] only stand as authority for the proposition that the judgment entered must provide “some basis from which it may be ascertained that the liability imposed related to a tort”. That is satisfied in the present case: the State was only sued in tort. In any event, to the extent that the observations support Ms Lam’s position, they are obiter. The decision concerned the construction of the equivalent Western Australian provision and his Honour’s observations were neither picked up by any other judge in that case, nor are they easily reconciled with Heydon J’s observations at [46]; (d) McColl JA’s observations in Nau v Kemp & Associates Pty Ltd (2010) 77 NSWLR 687; [2010] NSWCA 164 at [98] are also obiter: that was a case concerning s 5(1)(b). Furthermore, her Honour’s observations were not referred to by either of the other judges in that case.

Consideration

210. McColl JA’s remarks in Nau should be recorded here:

“98 These authorities demonstrate, in my view, for that for the purposes of s 5(1)(c), the efficacy of a consent judgment turns upon the purpose for which it is sought to be prayed in aid. Thus in the context of the first limb, a claimant for contribution who has agreed to terms of settlement which result in a consent judgment in the plaintiff’s favour is prima facie a ‘tortfeasor liable’ for the purposes of the first limb. In other words such a settlement establishes that the claimant is subject to ‘an enforceable obligation to pay money for the damage caused by his tortious act’ (Brambles (at 219)) and ‘responsible in law’ (Stott). However because that tortfeasor has not been ‘held liable’, in order to make a contribution claim, s/he has to establish that, had the claim been litigated to judicial determination, s/he would have been ‘held responsible in law’: Thompson (at 616). Applying that conclusion to this case, it is apparent that, were the State to seek to claim contribution from the respondents it would have to establish that it was, in fact, responsible in law to the appellant for the damage she suffered in consequence of their treatment.

99 Conversely, a consent judgment entered in favour of a defendant establishes that person is not within the second limb of s 5(1)(c) because, having been sued, s/he has been found not liable to the injured party: James Hardie. James Hardie, however, turned on the words in the second limb of s 5(1)(c) where the concept of liability appears in a different context both to the first limb of s 5(1)(c) and to that in which it appears in s 5(1)(b).”

211. It is timely to record exactly what the section provides:

5 Proceedings against and contribution between joint and several tort-feasors

(1) Where damage is suffered by any person as a result of a tort (whether a crime or not):

…

(c) any tort-feasor liable in respect of that damage may recover contribution from any other tort-feasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tort-feasor or otherwise, so, however, that no person shall be entitled to recover contribution under this section from any person entitled to be indemnified by that person in respect of the liability in respect of which the contribution is sought.

212. It is notorious that this provision does not clearly or unambiguously offer any guidance as to whether the word “tortfeasor” has the same meaning wherever it appears. Doing the best I can, it seems to me that a proper reading of this provision draws a distinction between a pecuniary liability to pay money to compensate the plaintiffs for the damage caused, enforceable by the terms of the consent judgment (any tort-feasor liable in respect of that damage) on the one hand and a delictual liability for the tortious conduct causing damage (any other tort-feasor who is, or would if sued have been, liable in respect of the same damage) on the other hand. The liability of the first-mentioned tortfeasor may arise (as here) from the entry of a consent judgment: the assumed tortfeasor has become a judgment debtor liable to pay damages as agreed. In contrast, the assumed or conditional liability of the second-mentioned tortfeasor can only arise if responsibility for the damage caused by the tortious conduct would have been established by judicial determination if litigated to judgment. The unpredictable nature and extent of that undetermined liability presumably informed the parties’ decisions to settle the plaintiffs’ claims.

213. In the present context, which is concerned with the entry of a judgment by consent, the tortfeasor first mentioned in s 5(1)(c) is the person or body whose decision (that is, agreement) has led to the entry of the money judgment against it. The tortfeasor has agreed to be or to become liable in respect to the damages payable to the plaintiffs: the consent judgment speaks only to its liability to the party who sued it for the debt that it has agreed to incur. It says nothing about the liability, if any, of the other putative tortfeasor who is, or would if sued have been, liable in respect of the same damage*.* That liability depends on the establishment of a liability in fact (is … liable in respect of the same damage), or upon the establishment of a liability that would arise following a judgment if sued (would if sued have been, liable): the focus is upon damage, not damages.

214. In the present case, the State is not, because it has not been shown to be, liable in respect of the same damage: it is liable only for the amount of a judgment entered against it. Ms Lam’s liability, at the suit of the State, depends in my opinion upon the establishment of her liability to the plaintiffs for the same damage tortiously caused to them by the State, not upon mere proof that the State consented to a judgment against it to pay damages to the plaintiffs. Seltsam was concerned with a consent judgment in favour of the tortfeasor sued by the plaintiff. It did not concern a situation involving assessment of whether the proof of a judgment entered against it established, without more, that a cross-defendant would if sued have been liable “in respect of the same damage”.

ALTERNATIVELY, IS THE STATE’S LIABILITY OTHERWISE ESTABLISHED ON THE EVIDENCE?

The State’s submissions

216. In light of my rejection of the State’s primary position, it must establish that it was negligent. The State maintains that it has established that:

(a) it owed each of the plaintiffs a duty of care in operating the school; (b) it breached its duty of care, in that the alleged conduct occurred and the State was informed of the alleged conduct and did nothing; (c) its breaches of duty made a material contribution to the loss suffered by the plaintiffs; and (d) it did not have a limitation defence.

217. The State was operating the school in 1978 and 1979 and owed each of the plaintiffs a duty of care. Ms Lam admits such a general duty in her defence to the cross-claims.

Has the State breached its duty of care to the plaintiffs?

218. The State pleads the scope of the duty owed by it to the plaintiffs as a duty to take reasonable care to see that they would not suffer foreseeable injury or disability while under the State’s care and supervision. The scope of the duty owed by a teacher to a pupil is well-established and has been explained, for example in Richards v Victoria [1969] VR 136 at 138-139 as akin to the duty owed by a parent to a child:

“…it is now clearly established by authority that in general a schoolmaster owes to each of his pupils whilst under his control and supervision a duty to take reasonable care for the safety of the pupil. It is not, of course, a duty of insurance against harm but a duty to take reasonable care to avoid harm being suffered. As was said by Kitto, J, in Ramsay v Larsen (1964) 111 CLR 16, at p. 27; [1964] ALR 1121: ‘The breach of duty which the plaintiff alleges is a failure to take such precautions for his safety on the occasion in question as a reasonable parent would have taken in the circumstances. It is indisputable that in general a schoolmaster owes his pupil a duty of that order.’ The reason underlying the imposition of the duty would appear to be the need of a child of immature age for protection against the conduct of others, or indeed of himself, which may cause him injury coupled with the fact that, during school hours the child is beyond the control and protection of his parent and is placed under the control of the schoolmaster who is in a position to exercise authority over him and afford him, in the exercise of reasonable care, protection from injury…”

219. The precautions which the State contends it was required to take in discharge of its duty of care are pleaded in this case as follows:

(a) acting in response to the disclosures made by KGM2 and/or IZG2/AXJ2 by investigating the allegations; (b) acting in response to the disclosures made by KGM2 and/or IZG2/AXJ2 by dismissing Ms Lam; (c) acting in response to the disclosures made by KGM2 and/or IZG2/AXJ2 by providing each plaintiff regular emotional support; (d) regularly checking with students about their safety and wellbeing; (e) properly supervising employed teachers.

220. The State contended that, with the possible exception of (d), there can be no serious doubt that each of those precautions was required by the exercise of reasonable care:

(a) the State submitted that I should find that the reports that KGM2, IZG2 and AXJ2 say were made to Mr Addinall were made in fact. Whatever Mr Addinall thought of KGM2 or IZG2 or AXJ2, each of those reports demanded a proper investigation into the allegations; (b) a proper investigation would have required and led to the prompt dismissal of Ms Lam; (c) once the reports were made by IZG2 and AXJ2, Mr Addinall had cause to believe that a teacher on his staff had been having sex with students at his school. On the weight of the evidence, it would not have been difficult to establish which students were victims of that abuse. Plainly, that required the school to provide regular support to those students; (d) whilst there is no protocol or policy to which the State can point to establish that its duty extended to checking regularly with students about their safety and well-being, it is clear that at least by 1979 the school had a counsellor, Mr Don Jaeger. Mr Jaeger had a Bachelor of Education and Master of Education. He visited the school twice a week and was “happy to discuss anything that is bothering [students] in connection with [their] studies or interactions with others”. Mr Jaeger was also able to arrange appropriate referrals for students or parents. The employment of Mr Jaeger in 1979 at the latest supports the recognition of a duty on the part of schools by around that time (including 1978) that students should have a trained school counsellor available regularly at the school with whom they could discuss any issues of concern; (e) plainly the school owed a duty to supervise its teachers.

221. The State submitted that there cannot be any serious issue that it breached its duty of care in failing to take each of these precautions:

(a) there is no evidence to suggest that Mr Addinall did anything to investigate the disclosures made. A pretty obvious starting point would have been for him to put the allegations to Ms Lam in response to KGM2’s disclosure and the disclosure by IZG2 and AXJ2. Ms Lam was uniquely placed to give evidence on the issue of whether there was an investigation, noting that Mr Addinall is dead. There is no evidence of any investigation, and the available inference is that nothing at all was done by Mr Addinall; (b) a proper investigation would have led to the prompt dismissal of Ms Lam; (c) on the direct evidence of IZG2 and AXJ2, plainly this precaution was not taken; (d) no student who gave evidence mentioned being aware of the existence of a school counsellor, much less that any efforts were made by him to make any enquiries of the wellbeing of students; (e) such is the weight of evidence of widespread rumours at the school that it is difficult to identify any system in place, much less a proper one, for the supervision of teachers at the school.

Ms Lam’s response

222. As earlier noted, Ms Lam does not dispute that the Department of Education, and therefore the State as the relevant educational authority, owed a duty to the school’s students, including the plaintiffs, to take reasonable care to protect them from reasonably foreseeable harm: Ramsay v Larsen (1964) 111 CLR 16 at 27; [1964] HCA 40; Commonwealth v Introvigne (1982) 150 CLR 258 at 275; [1982] HCA 40. Ms Lam emphasised that, in this case, the existence and scope of the State’s duty to the plaintiffs will necessarily be informed by whether the class of injury said to have been suffered by them – namely, psychiatric injury or illness – was reasonably foreseeable.

223. Ms Lam submitted that in order to establish that it owed the plaintiffs the specific duty to ensure that reasonable care was taken that the plaintiffs would not suffer foreseeable injury or disability while under the school’s care and supervision, it had to demonstrate, by supporting evidence, that the psychiatric injuries complained of by the plaintiffs were of a kind that was reasonably foreseeable to the Department or the school, in 1978-1979. The State did not tender any such evidence. Ms Lam therefore submitted that I would be reluctant to find that the Department or the school owed the duty to take the precautions alleged in the cross-claims.

224. Ms Lam submitted that even if I were to were to find that the Department or the school owed that duty, the State still must establish that it failed to take reasonable precautions against a foreseeable, and not insignificant, risk of harm. To that end, the State would need to satisfy the necessary preconditions to liability prescribed by s 5B(1) of the Civil Liability Act, by demonstrating:

(a) that the Department and the school knew, or ought to have known, of the risk of harm, including mental harm, to each plaintiff should he engage in sexual conduct with Ms Lam: s 5B(1)(a); (b) that the risk of harm was not insignificant: s 5B(1)(b); and (c) that the school and the Department, or a reasonable person in their position, ought to have taken precautions against that risk: s 5B(1)(c).

225. The inquiry into the first of those preconditions, foreseeability, is to be undertaken without the benefit of hindsight, and by ignoring any subsequent increases in knowledge about the risk and its consequences: Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62 at [126] per Hayne J; Garzo v Liverpool/Campbelltown Christian School Ltd [2011] NSWSC 292 per Garling J at [70].

226. There being no allegation of actual knowledge, the State was required to prove that the school and the Department ought to have been on notice of the risk of harm at the time of their alleged failure to take precautions against it by reason of:

(a) the age of the plaintiffs, the position of authority Mrs Lam had over each of them, and their emotional immaturity and vulnerability; (b) the existence of “publicly available material” about the effects of sexual conduct between adults and minors, and the fact that mandatory reporting had been introduced in New South Wales in 1977 by the Child Welfare Amendment Act; and (c) the view then held by KGM2 that the conduct of Ms Lam was out of the ordinary and was unacceptable conduct by a teacher which, the State asserts, was representative of the “prevailing community standards” in relation to the conduct of teachers towards their students.

227. Ms Lam submitted that, having been put to proof in respect of those allegations, it was incumbent on the State to call evidence by which it could discharge its onus of proving them. Such evidence might have included testimony from former high school principals or teachers as to what matters and circumstances, relevant to the risk of harm, were known to them at the relevant time, or (admissible) opinion from a suitably-qualified expert, regarding the “prevailing community standards in relation to the conduct of teachers towards their students”, and why those standards ought to have alerted the State to the risk of harm, or one or more of the documents said to comprise the “publicly available material” particularised in the cross-claims.

228. Ms Lam submitted that the State failed to call any such evidence, or any evidence, that was capable of establishing constructive knowledge on the part of either the school, or the Department, of the relevant risk of harm. The State failed to do so, moreover, in circumstances where KGM2, a former member of the school’s teaching staff, was called in its case and who was presumably in a position to give evidence as to what, if anything, was known to her or her teaching colleagues regarding the risk of mental harm to male high school students resulting from sexual conduct with a female teacher during the period from 1977 to 1979. KGM2 did not, in either of her statements or her oral evidence, say anything about whether she or her colleagues knew anything in relation to those matters.

229. Ms Lam submitted that, in the unexplained absence of that evidence, I should comfortably infer that KGM2 and her colleagues did not actually know of any matters or circumstances in 1978 or 1979, that ought to have put the school on notice of the risk of harm.

230. Ms Lam submitted that by reason of the State’s failure to call any evidence capable of proving that the risk of harm was foreseeable, in that it ought to have been known to the school and the Department, it has failed to satisfy the first of the “necessary preconditions to liability” under s 5B(1), and thus failed to establish that it was negligent.

Consideration – s 5B(1)

231. It will be apparent that I have set out at some length Ms Lam’s contentions with respect to the question of whether the harm allegedly suffered by the plaintiffs was reasonably foreseeable. Without wishing to do injustice to those contentions, the burden of her submissions appears to be that it has not been established by evidence, and that it cannot otherwise be assumed or inferred, that sexual activity between a female teacher and a male student in 1978 or 1979 carried a foreseeable risk of causing mental harm to the student, that the risk was not insignificant and that a reasonable person in the position of the school ought to have taken precautions against that risk.

232. Dealing only at this stage with the position of the school, I am unable to accept those submissions. To start with, I do not consider that it was incumbent upon the State to lead evidence to prove that sexual activity between a hypothetical female teacher and a hypothetical male student at the relevant time carried a foreseeable risk of harm of that kind. It seems reasonably apparent that the school ought to have been aware that boys of the plaintiffs’ age when the sexual activity occurred would have been at various stages of their psycho-sexual development but that in all cases could not be described as psycho-sexually mature. The school ought to have known that the plaintiffs were each likely to have been incapable of dealing with the emotional consequences of Ms Lam’s sexual interest in them, or the sexual activity that she initiated as a result, by reason of their age and immaturity in the same way that might be expected if they were adults. So much would be beyond question had the boys been of primary school age. The fact that the plaintiffs were in their second, third and fourth years of high school may possibly inform the different nature, extent and degree of the harm that would be caused, but does not eliminate entirely the risk of some harm occurring.

233. Secondly, the test is not whether harm was certain to be caused, but whether there existed a risk of harm that was not insignificant. It is also trite, but important, to bear in mind that it is not the harm, but the risk, that must be not insignificant. Colloquial opinions that may have been alive or current in 1978 or 1979 about the assumed enthusiasm such boys might have had for the activities concerned, should not be permitted to mask or disguise the existence of a simultaneous risk that sexual activity with a mature female teacher might cause them harm. In the nature of things, some boys may have fared better than others as a consequence of their exposure to the sexual activity, but the total absence or minimal extent of the harm that may have been caused in fact says nothing about the significance of the risk that harm of some kind may result when viewed prospectively.

234. Thirdly, the test is not whether the risk is significant, but whether it is not insignificant. Presumably it might confidently be assumed that that means something that is of a higher probability than is indicated by the phrase “not far- fetched or fanciful” but not so high as might be indicated by a phrase such as “a substantial risk”.

Consideration – failure to take precautions

238. With respect to the issue of breach of duty, Ms Lam submitted that even if, as I have now found, the State were able to establish that it owed a duty to take precautions against the identified risk of harm, I could not also be satisfied that there was any relevant failure to take those precautions. The dispute between the parties on this issue raises an evidentiary question: has the State proved that the school in fact negligently failed to take the precautions in question so as to establish (notionally against itself in the original proceedings) that the plaintiffs’ case would have succeeded on that issue.

239. It will be immediately apparent that the precautions which the plaintiffs said the school should have taken, and which the State says I should be satisfied it failed to take, are either prophylactic or responsive: they were things that the school should have done even before it knew or ought to have known of Ms Lam’s sexual contact with students on the one hand or things that it should have done when her conduct was drawn to its attention on the other hand.

240. I have already found that KGM2 reported what she said she observed in the languages staffroom to Mr Addinall and that IZG2 and AXJ2 told him about their concerns that Ms Lam was having sex with students. I have also found that the sexual activity between Ms Lam and the plaintiffs took place. It could hardly be doubted that such reports should have prompted an investigation in the first place and, depending upon the outcome of the investigation, some action in response. Ms Lam’s position is that, even accepting that is a fair assessment, the State has not proved that no investigation or other response occurred following the disclosures to Mr Addinall, so that, inferentially, Ms Lam’s sexual abuse of the plaintiffs thereafter had nothing to do with the school’s negligent failures.

241. It is timely to recall that the State’s position on this evidentiary issue is to say that there is no evidence to suggest that Mr Addinall did anything to investigate the disclosures made to him: Ms Lam was best placed to confirm or deny the question of whether any investigation took place, as she would have been the obvious first port of call for Mr Addinall’s investigation, and Mr Addinall is dead. The State says that the available inference is that Mr Addinall did nothing at all.

242. Ms Lam’s submissions in response to this are detailed, and are as follows.

243. First, in the context of the present adversary proceedings, Ms Lam maintained that it was not incumbent on her to give evidence as to what might, or might not, have been done by Mr Addinall to investigate the alleged disclosures. If the State is to establish that Mr Addinall failed to undertake any such investigation, it must discharge its onus of proving it. Ms Lam carries no such onus. Ms Lam contended that the State’s submission was “not only risible, but entirely misconceived. If the State cannot point to any evidence to make good the allegation that Mr Addinall failed to investigate the disclosures, it should not have pleaded it”.

(a) the assumption that Ms Lam was “uniquely placed” to give evidence on that issue is unsound. For all anyone could know, Mr Addinall may well have taken other steps to investigate the matter which, without any need to speak with Ms Lam, were sufficient to satisfy him that the disclosures were groundless. For example, Mr Addinall may well have spoken with another teacher from the staffroom, such as Ms Rogers, Ms Lam’s immediate superior, and, based on what he was told, concluded that no such improprieties had occurred. (b) I could not comfortably be satisfied that it was Ms Lam who KGM2 says she saw in the languages staffroom when KGM2 first identified her as that teacher some 42 years after the event, where the reliability of that identification was tainted to such a significant degree by the methods used by Senior Constable McNaughton to procure it, and by the resultant displacement effect. I have already rejected that submission and accepted the truthfulness and reliability of KGM2’s evidence. (c) the State’s submission ignores KGM2’s evidence that she had no way of knowing whether Mr Addinall investigated the matter “there and then”, once she had left his office. For all anyone could know, Mr Addinall may well have walked directly to the languages staffroom after KGM2 had left his office and, based on what he saw or heard, appropriately concluded that KGM2’s account of those events, or her interpretation of them, was mistaken. It will be apparent that KGM2’s evidence does not and cannot assist the resolution of whether an investigation occurred. (d) the inference contended for by the State is plainly inconsistent with the authorities, including those cited elsewhere in the State’s submissions. A Jones v Dunkel inference is not a substitute for evidence. If there is no evidence of a matter, the inference cannot fill the void: Bellevarde Constructions Pty Ltd v L’Officina by Vincenzo Australia Pty Ltd [2022] NSWCA 246 at [37]. The law does not authorise a court to “choose between guesses…on the ground that one guess seems more likely than another or the others”: Jones v Dunkel (1959) 101 CLR 298 at 305; [1959] HCA 8.

245. Thirdly, the State’s submissions in fact demonstrate that it has been unable to discharge is onus of proving that Mr Addinall failed properly to investigate the disclosures made by IZG2 and AXJ2, or by KGM2. It follows necessarily that the State has failed to prove that the school was obliged to dismiss Ms Lam from her employment, or that there arose any obligation to take “reasonable steps” to provide the plaintiffs with regular emotional support.

246. Fourthly, Ms Lam submitted that the particularised precaution that the school should regularly have checked with the students about their safety and wellbeing, is “similarly devoid of any evidentiary foundation”: the State has not called any evidence of protocols or policies that gave rise to any such obligation, how it might have been implemented, or how “checking with the students about their safety and wellbeing” might have alerted the school to rumours of sexual activity between teachers and students. It was moreover particularly unlikely that any of the plaintiffs would have alerted the school to the existence of those rumours, when regard is had to:

(a) IZG2’s evidence that he tried to talk AXJ2 out of telling their mother; and that when AXJ2 refused, IZG2 “bashed him, hard. I told him that he was going to ruin it for everyone and get everyone in trouble.” (b) AXJ2’s evidence that after IZG2 bashed him, he “never mentioned it again after this because we were sharing a room”; coupled with his evidence that he did not want his mother to find out Ms Lam’s alleged misconduct towards him because he wanted to “protect” his mother, who “wouldn’t have understood what to do in that situation”. (c) KWM2’s evidence that he “did not want people to find out anything as I wanted to be a PE teacher like my hero Chris Armstrong. I was scared if people found out that I would get kicked out of school and miss the chance to become a PE teacher.” (d) BJS2’s evidence that he “quite enjoyed school… the sport was great and the people were great”, and that he “probably” would have been school captain, together with his text message to KWM2, on 29 August 2021, that he had “never felt like a victim”.

Ms Lam submitted that I could safely infer from that evidence that, had BJS2 been asked about his “safety and wellbeing” in 1978 or 1979, he was unlikely to have said anything that could have been capable of alerting the school to rumours of sexual activity between him and Ms Lam, or between her and any other student.

247. Fifthly, Ms Lam submitted that whilst it may be accepted that the school had a general obligation to supervise the conduct of teaching staff, the State did not lead any evidence (including from KGM2) by which it could demonstrate the absence of a proper system of supervision at the school, or that that system was not followed. If the State intended to substantiate its submission that “it is difficult to identify any system in place, much less a proper one”, it should have called some evidence to do so. Ms Lam submitted that the allegation that the school failed properly to supervise employed teachers must, accordingly, fail.

248. Finally, with respect to the submission that there was a recognised “duty on the part of schools by around [1978-1979] that students should have a trained school counsellor available regularly at the school with whom they could discuss any issues of concern”, Ms Lam submitted that the allegation was not pleaded, and formed no part of the State’s case at trial. Besides, the evidence that the school, “at least by 1979” provided its students with a counsellor on a twice-weekly basis, betrays the allegation that it failed regularly to check with students “about their safety and wellbeing”.

249. In summary, Ms Lam submitted that the State has not proved that it negligently failed to take any of the precautions pleaded at 5L(a)-(e) of the cross-claims and has not satisfied the third “necessary precondition” to liability under s 5B(1) that a reasonable person in the position of the school would have taken those precautions.

Consideration

250. In the light of my conclusions that the complaints were in fact made, there is a connection or relationship between the first two precautions (investigating and dismissing Ms Lam) that the State maintains, and Ms Lam disputes, the school failed to take. The State’s position is that it has proved that the school failed to conduct an investigation into the complaints made to Mr Addinall because, if it had done so, it would have revealed the abuse and Ms Lam would have been dismissed. The fact that Ms Lam was not dismissed is therefore said by the State to be powerful evidence of both a failure by the school to investigate at all as well as evidence of a failure by the school to do what a properly conducted investigation would have demanded. The State submitted in terms that each of the reports (KGM2, and IZG2/AXJ2) demanded a proper investigation into the allegations and that a proper investigation would have required and led to the prompt dismissal of Ms Lam.

251. It may at one level appear to be tautological to conclude that a failure to dismiss Ms Lam can be used as proof that no investigation was conducted following these complaints. However, once it is accepted, as I have found, that the complaints were made, they demanded a proper investigation, and the result of any such investigation could only have been Ms Lam’s dismissal. A failure to dismiss Ms Lam following an investigation would correspondingly support a finding that the investigation was inadequate.

252. It is unnecessary in the circumstances to make a finding about the alleged failure to counsel the students or to have a counsellor on hand, or the allegation that the school failed to respond to rumours of sexual abuse of students.

253. In my opinion, the school breached its duty of care by failing to take the two precautions that I have identified.

Were the breaches a necessary condition of the harm suffered by the plaintiffs?

254. Section 5D of the Civil Liability Act provides as follows:

5D General principles

(1) A determination that negligence caused particular harm comprises the following elements--

(a) that the negligence was a necessary condition of the occurrence of the harm ("factual causation"), and

(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ("scope of liability").

(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent--

(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and

(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

255. The plaintiffs bore the onus of proof of establishing that the failure by the State to take reasonable precautions was a necessary condition of the harm they alleged. The harm alleged by the plaintiffs is pleaded in the amended statements of claim.

256. With respect to the precautions which the State ought to have taken, being a necessary condition of the harm alleged by the plaintiffs, apart from AXJ2, the State accepts that there is no precaution the State could have taken which would have prevented all of the abuse suffered by them. That is, at least the first occasion of abuse by Ms Lam of each plaintiff, other than AXJ2, was not caused by the State’s negligence. Accordingly, apart from AXJ2, the State accepts that not all of the harm alleged by the plaintiffs was caused by the State’s negligent omissions.

257. The State submitted that the plaintiffs would not have had any difficulty establishing causation against the State. This is not the first case with respect to child sexual abuse where part of the harm has been suffered before a negligent act or omission by the defendant. Indeed, that is a common occurrence. And it is not only in this area of the law where the courts have had to address this kind of problem, dust diseases cases being a prime example. After a period of some uncertainty before the High Court’s decision in Strong v Woolworths Ltd (2012) 226 CLR 182; [2012] HCA 5, the principles are now well-settled. Negligent conduct that materially contributes to the plaintiffs’ harm but which cannot be shown to have been a necessary condition of its occurrence may be accepted as establishing factual causation: see Strong v Woolworths at [26]; Zanner v Zanner (2010) 79 NSWLR 702; [2010] NSWCA 343 at [11]-[12] per Allsop P. This issue was the subject of debate in a child sexual abuse decision DC v State of New South Wales [2016] NSWCA 198. Whilst the three judges in that case (Ward, Basten and Sackville JJA) diverged on some issues, it is clear that for the purposes of s 5D, sexual abuse which is actionable and which postdates sexual abuse which is not actionable, may make a material contribution to the harm suffered by the plaintiff.

258. What then is a material contribution? In Bonnington Castings Ltd v Wardlaw [1956] AC 613 at 621, Lord Reid observed that what is a material contribution is a question of degree and any contribution which exceeds “de minimis non curat lex” is material. What is necessary for a contribution to be material is merely the establishment of a connection between the harm and the negligent conduct: see for example Amaca Pty Ltd v Ellis (2010) 240 CLR 111; [2010] HCA 5 at [68].

259. Each of the precautions pleaded against the State is an omission. As such, it was necessary for the plaintiffs to establish against the State some factual underpinning enabling the Court to find that but for the negligent omission or omissions, the harm would not have been suffered: see [2012] NSWCA 338 at [96].

Failure to act in response to the disclosure made by KGM2 by investigating the allegations

261. The State maintained that KGM2’s report to Mr Addinall plainly concerned observations made by her of Ms Lam and a male student at the school. That disclosure to Mr Addinall required immediate action in the form of an investigation. Having regard to the evidence supporting sexual contact between Ms Lam and multiple students, as well as wide-ranging rumours among the student body, the plaintiffs would have established in their case against the State that the investigation would have led to Ms Lam’s immediate dismissal.

262. There is an issue about when KGM2’s disclosure to Mr Addinall occurred. That is because the disclosures by IZG2 and AXJ2 to Mr Addinall were made toward the end of 1978 and after the sexual contact between IZG2, AXJ2 and BJS2 had concluded. Accordingly, for any investigation to have led to Ms Lam’s dismissal, the failure to investigate in response to the disclosures by IZG2 and AXJ2 would not have avoided any of the abuse already suffered by IZG2, AXJ2 and BJS2. The timing of the disclosure made by KGM2 therefore assumes importance to the State’s case on causation inasmuch as it depends upon Ms Lam’s dismissal so as to avoid some of the abuse.

263. The State contends that I should find that KGM2’s observation and immediate disclosure to Mr Addinall occurred, as KGM2 said in her evidence, in Term 2 or early Term 3 of 1978, during the period of preparation for the musical in 1978 but before the performances of the play had concluded. The reasons in support of that finding are as follows.

264. First, KGM2’s evidence was that she made an observation of Ms Lam and reported it to Mr Addinall during Term 2 or early Term 3 of 1978 and not in 1979.

265. Secondly, the State submitted that I should apply probabilistic reasoning of the kind adopted in Strong v Woolworths. The vast majority of Ms Lam’s abuse of students occurred around the time of the preparation for the 1978 musical and before the beginning of 1979. The only student who alleges abuse after this period is KWM2.

266. Thirdly, and more particularly with respect to the application of probabilistic reasoning to the timing of KGM2’s observation in the languages staffroom, a particular problem for Ms Lam’s contentions with respect to the timing of KGM2’s observations is that the only students who gave evidence that they were routinely abused in the languages staffroom were IZG2 and BJS2.

267. KWM2 made it plain in his evidence that most of the occasions of sexual contact between him and Ms Lam were not in the staffroom. Indeed, he could only remember meeting her in the staffroom once or twice. Further, there was only one occasion when AXJ2 was in the staffroom with Ms Lam and that occasion plainly was not the occasion that was observed by KGM2.

268. Accordingly, the only likely candidates for the student who was sitting on Ms Lam’s lap on the occasion that KGM2 entered the staffroom are IZG2 or BJS2. As set out above, the effect of BJS2’s evidence was that the sexual contact between him and Ms Lam occurred over about a month and concluded before the musical ended. Further, the effect of the evidence of IZG2 is that his last sexual encounter with Ms Lam occurred well before the end of 1978. Therefore, the proper inference to be drawn is that the student who KGM2 observed sitting on Ms Lam’s lap is very likely either to have been BJS2 or IZG2. Ms Lam was silent on the issue.

Failure to act in response to the disclosure made by IZG2 and AXJ2 by investigating the allegations

272. The disclosures by IZG2 and AXJ2 would not have prevented either their abuse or BJS2’s abuse. An investigation into the disclosures made by IZG2 and BJS2 would however have led to an investigation which would have meant that some of KWM2’s abuse would not have occurred and the failure to investigate the allegation made by IZG2 and AXJ2 made a material contribution to the harm that they each suffered.

Acting in response to the disclosures made by KGM2 and/or IZG2/AXJ2 by providing each plaintiff with regular emotional support

273. Even if KGM2’s complaint postdated the abuse of one or other of the plaintiffs, Mr Addinall’s failure to respond properly to disclosures by IZG2 and AXJ2 made a material contribution to the harm suffered by each of the plaintiffs. This is particularly so with respect to IZG2 and AXJ2, who brought the complaint to Mr Addinall and were promptly called liars or fools. They both gave evidence of the damage that this did to their attitude to schooling. Further, it is settled that the initial approach taken by people in senior positions in response to disclosures of abuse is capable of having a significant impact on the trajectory of survivors.

Regularly checking with students about their safety and well-being

274. The State submitted that the evidence supported a finding of widespread rumours at the school: if the system with respect to checking on students’ safety and well-being had been working properly, it is likely that the rumours would have been identified and regular support given to the pupils. That support would plainly have had a positive impact on the plaintiffs by providing them with pastoral support and a proper opportunity to disclose what was occurring.

Properly supervising employed teachers

275. The State contended that having regard to the evidence of the widespread rumours at the relevant time of sexual activity between Ms Lam and male students, the bullying incident given by IZG2, AXJ2 and PDJ2, as well as the evidence of Ms Lam lending her car to PDJ2, supervision was clearly non-existent. Proper supervision by the school of its employed teachers at the relevant time would likely have identified that Ms Lam’s conduct was highly irregular, that abuse was taking place, which in turn would have meant that some of the abuse of KWM2 would not have occurred. Further, the proper supervision of employed teachers would plainly have had a positive impact on the outcome of the plaintiffs by providing a better school environment following the abuse.

Ms Lam’s submissions

276. The State’s case on causation is pleaded in terms that reflect s 5D(1)(a), namely, that the failure by the Department and the school to take any of the five precautions already discussed, was a necessary condition of the harm suffered by each of the plaintiffs.

277. The State’s pleading of causation, whilst expressed in slightly narrower terms, is also reflective of the manner in which causation had been pleaded against it by the plaintiffs, each of whom relevantly alleged that the breaches of duty by the Department and school were necessary causes of the physical, sexual and/or psychological abuse suffered by the plaintiffs within the meaning of section 5D(1)(a) of the Act.

278. Having regard to the way in which it was pleaded by the plaintiffs against the State, and by the State in the cross-claims, the causation issue to be determined in these proceedings has at all times been confined to the question of whether, if the State is found to have breached the duty it owed to the plaintiffs, that breach was a necessary condition of the harm of which the plaintiffs complained.

279. Where there is more than one set of conditions necessary for the occurrence of a particular harm, a defendant’s act or omission must be necessary to complete a set of conditions that are jointly sufficient to account for the occurrence of the harm, in order for that act or omission to meet the test of factual causation within s 5D(1)(a): Strong v Woolworths at [20]. It is in that sense, that an act or omission which “materially contributed to” the harm, can be capable of constituting a ‘necessary condition’ of the harm that occurred: Zanner at [11].

280. Where, however, there is a cumulative operation of factors in the occurrence of the total harm in circumstances in which the contribution of each factor to that harm is unascertainable, those factors could not be said to each constitute a “necessary condition” of the harm that occurred. Acts or omissions of that kind, in order to satisfy causation in an action governed by the Civil Liability Act, necessarily fall within the operation of s 5D(2).

281. For me to find that the State’s negligence was a necessary condition of the harm alleged by the plaintiffs, the State was required to prove that, in the probable course of events but for its failure to take one or more of the five pleaded precautions, that harm would not have occurred: Strong v Woolworths at [32]. In other words, it was incumbent on the State to demonstrate that any abuse that occurred prior to the disclosures to Mr Addinall would not have resulted in the harm of which the plaintiffs complained, were it not for the alleged instances of abuse that occurred subsequently to those disclosures.

282. As the State has acknowledged, the evidence of IZG2 and AXJ2 was that they made their disclosure towards the end of the 1978 school year, after the conclusion of the abuse allegedly perpetrated against each of them, and against BJS2. On the case advanced by the State, its negligence could only have been a necessary condition of the harm suffered by those plaintiffs if KGM2’s disclosure pre-dated that of IZG2 and AXJ2, and pre-dated the conclusion of their alleged abuse.

“Because damage constitutes the gist of an action in negligence, a plaintiff needs to prove actual damage or loss and a court must be able to apprehend and evaluate the damage, that is the loss, deprivation or detriment caused by the alleged breach of duty. Inherent in that principle is the requirement that a plaintiff is left worse off as a result of the negligence complained about, which can be established by the comparison of a plaintiff's damage or loss caused by the negligent conduct, with the plaintiff's circumstances absent the negligent conduct.”

288. In their amended statements of claim, each of the plaintiffs alleges that he suffered various damage “as a result of the abuse”, principal among which are recognised psychiatric injuries including post-traumatic stress disorders, persistent depressive disorders, and compulsive sexual behaviour disorders. Yet there is no evidence from any medicolegal or treating doctors, or any other medical practitioner, that could satisfy the Court that one or more of those disorders has been diagnosed in any plaintiff, or that he continues to suffer from it, or the cause of its onset. Nor, for that matter, is there any evidence capable of establishing the various other kinds of damage, particularised in the amended statements of claim.

289. The only evidence of such a kind that was admitted in the proceedings, was that which was exhibited to the affidavit of Ms Haski. The use of that evidence, however, was expressly limited to the separate issue of whether the State’s settlements with the plaintiffs were reasonable. Without the benefit of that evidence, Ms Lam submitted that I could not be in any position to apprehend and evaluate the damage that is said to have been suffered by the plaintiffs as a result of the State’s alleged negligence: none of the loss, deprivation or detriment that is alleged is capable of proof.

290. For that reason, Ms Lam submitted that the State’s case on causation has not been, and cannot be, established.

Consideration – causation

291. Two principal issues arise for determination:

292. Has the State proved that the plaintiffs suffered harm?

293. If so, was the school’s negligence a necessary condition of the occurrence of the harm they suffered?

294. With respect to the first issue, it is convenient to record some of what I had to say in May of this year in an earlier judgment in these proceedings: see IZG2 v State of New South Wales [2025] NSWSC 482. The following paragraphs from that decision are self-explanatory:

“2 The proceedings had reached the point where the evidence was complete and the parties were in the course of their final oral submissions. Written outlines had previously been provided to me. However, it was in the course of addresses that it became apparent, if it were not otherwise so, that Ms Lam wished to contend that the State could not succeed on its claims against her for at least the reason, among others, that it was seeking to recover contribution for damages paid by it in respect of pure mental harm and that notwithstanding that fact, it had tendered no evidence to establish that the damage for which the State maintained it was liable qualified as a recognised psychiatric illness.

3 Section 31 of the Civil Liability Act 2005 provides as follows:

31 Pure mental harm – liability only for recognised psychiatric illness

There is no liability to pay damages for pure mental harm resulting from negligence unless the harm consists of a recognised psychiatric illness.

4 Ms Lam did not refer to this provision in her defence. It was never referred to in terms in the several pre-trial directions hearings before his Honour Garling J, or in the schedule of issues in dispute. The State maintained that Ms Lam is not in these circumstances entitled to take this point as s 31 was never pleaded, and that it should have been, and that her attempt to rely upon it now is defeated by that fact. That proposition is contested by Ms Lam. This dispute resulted in the State seeking an order by notice of motion filed on 17 April 2025 that I determine pursuant to s 61 of the Civil Procedure Act 2005 whether Ms Lam “is permitted to rely upon s 31 of the Civil Liability Act 2005 in her defence”.

5 I pause at this point to make the following important observation. The alleged absence in the case before me of evidence that the plaintiffs were suffering from a recognised psychiatric illness is a function of a particular forensic decision taken by the State with respect to its tender of various medical reports from psychiatrists in which expert opinions are offered about what is said to have resulted from Ms Lam’s alleged sexual abuse. Without at this stage expressing, or appearing to express, any view about the substance of those medical opinions, it is at least arguable that in the case of three of the plaintiffs, the psychiatric conclusion was that they were suffering from a recognised illness. However, the State tendered those reports before me with the avowed limitation that they were only to be received as evidence of the reasonableness of the settlements between the State and the plaintiffs, and not as evidence of the diagnostic opinions which they contained.

6 The reason that the State took that approach is disputed. It may be taken at this stage, although not uncontroversially, that the self-imposed limitation upon the use to which those reports might be put was on one view the result of what the State maintains was a misunderstanding or misapprehension on its part about the very point that Ms Lam now wishes to maintain concerning the operation of s 31 of the Act. In short, the State insists that it was never aware that Ms Lam would contend that s 31 was a bar to its success because it was never pleaded when it should have been and that there was no other indication given to it by Ms Lam to the contrary. The State also disputes Ms Lam’s proposition that the damage sustained by the plaintiffs was pure mental harm. She says in contrast that the s 31 limitation on liability was always in play because the damage asserted was pure mental harm but that in any event she had no obligation to plead the section in terms or otherwise draw its asserted significance to the attention of the State.

7 For reasons that I trust will later emerge clearly, I have chosen fully to record the parties detailed submissions on the motion in what follows. However, in the events that have occurred, I consider that the resolution of the manifold issues that the parties have felt the need to raise at this time can and should be put to one side without a final determination now and ought preferably be left for consideration after final submissions have been made. This is explained later in these reasons.”

293. In the events that occurred, I dealt with the issue in the following way:

“75 I have taken the somewhat laborious, if not on one view unnecessary, course of including in these reasons a great deal of the detailed submissions upon which the parties rely with respect to their competing positions on the State’s notice of motion. My principal reason for doing so is to ensure that no points upon which the parties rely are misstated or overlooked. That becomes important in my opinion for the reason that these arguments, or many of them, will likely have a potentially significant role to play in the final disposition of these proceedings. It is to be emphasised that I am not presently deciding the case on a final basis and I remain cautious that I should not express any opinion on a significant matter that may give the impression, real or imagined, that I have a concluded view on how it should ultimately be decided.

76 It seems to me that the resolution of this application is best achieved by taking a pragmatic and practical approach that effectively retains the parties’ respective arguments for consideration at a later time without prematurely and unnecessarily foreclosing on their eventual viability. In so saying I appreciate in excruciating detail the fact that Mr Toomey has been steadfast in his singular adherence to a forensic plan that he considers was legally correct and procedurally valid and that in the context of adversarial litigation, modifications in the form of the Uniform Civil Procedure Rules or judicial pronouncements about their application, should not deprive him of his carefully curated advantage.

77 However, without wishing to discount the significant effort applied to the elucidation of the several issues by both parties in their submissions, resolution of the current dispute effectively turns upon the recognition and appreciation of one particular fact. Ms Lam’s point is that, for the reasons and in the way outlined in her submissions, the State has led no evidence of damage in the form of a recognised psychiatric illness and that it should not now be permitted to do so. If Ms Lam succeeds in both respects, the State on her case must fail at the threshold. The significance of that point would be great, and possibly determinative, if it were the case that no such evidence was ever likely to become available or could never be obtained.

78 That is not the case. The several psychiatric reports referred to by the parties contain, subject to cross-examination or possible evidentiary exclusion, statements of professional medical opinion to the effect that the plaintiffs are suffering from a recognised psychiatric illness. Those reports could have been tendered by the State for all purposes and, but for the State’s decision to seek a limitation upon the use of those reports, they would be before me now as evidence in the proceedings. Nor is it in my estimation the case that the State sought cynically to secure some tactical or strategic advantage by limiting the use to which the reports could be put from which in good conscience it ought not now be permitted to resile.

79 I do not consider that the form of the relief sought by the State in its notice of motion suitably informs how this contest should be resolved. The State’s preferred position is that Ms Lam should have herself sought leave to plead s 31 in order for her principal contention to be in play. That did not occur. The State’s secondary position is that it should, if required, be given leave to remove the current limitation applying to the medical reports it has tendered on the single issue of the reasonableness of the settlement.

80 Ms Lam’s response to that approach is to say that cross-examination of the plaintiffs has now long ago concluded and that it was at the time carefully crafted so as not to negate or dilute the perceived forensic advantage that she was confident would flow from the state of the medical evidence concerning proof of any recognised psychiatric illness. Moreover, and in a related sense, Ms Lam maintains that the atmosphere of the proceedings has now changed so that any further cross-examination of the plaintiffs upon which she would inevitably be able to insist, if so advised, or cross-examination of the psychiatrists if that were also requested, would no longer be as effective as it might earlier have been. In that setting, Ms Lam insists she has suffered an irremediable forensic disadvantage.

81 Ms Lam is critical of, and correspondingly sceptical about, the genuineness of the State’s explanation for not understanding or appreciating that she would contend that the plaintiffs sustained pure mental harm and that s 31 was clearly going to be significant even though it had not been pleaded. Whatever may be said of that criticism, it seems fairly clear that the State’s limited tender of the medical reports was a function of at least a failure to advert to the alleged significance of s 31. In the circumstances of the current dispute, a resolution of the question of why the State chose to take the course it did is not really of much present relevance or should not in my opinion be determinative.

82 Ms Lam should not in my opinion be deprived of the opportunity ultimately to contend that the plaintiffs’ damage was pure mental harm or that s 31 means that the State cannot establish a fundamental aspect of its claim for contribution. Ms Lam has not yet sought, and may never seek, to amend her defence in the way that the State contends would be necessary before Ms Lam can maintain that contention. Whether or not Ms Lam seeks to amend her defence for that purpose remains to be seen. I anticipate that the State would not be in a position to oppose such an application if it were made.

83 Correspondingly, the State should not in my opinion be deprived of the opportunity to rely upon the currently tendered psychiatric reports without limitation. Such an application has already been foreshadowed. As I have attempted to make plain, the absence of those reports for all purposes is the single unadorned fact that informs both the existence of, and a possible solution to, the current contest. I acknowledge that questions such as whether Ms Lam should have pleaded s 31 in her defence, or whether the plaintiffs’ claims were in fact for pure mental harm, or whether in the modern era Ms Lam’s attempt to rely upon an unpleaded issue should be permitted, remain unresolved. That was my intention. As I have earlier indicated, these fascinating and well-argued issues, among others, may well remain in play in the further conduct, and ultimate disposition of, the proceedings so that a final decision about them now is not appropriate.”

294. I then made the following orders:

(1) Direct the State of New South Wales, if so advised, to file an amended notice of motion within 7 days seeking leave to reopen its case limited to the removal of the s 136 limitation currently applying to the tendered psychiatric medical reports of Dr Diamond.

(2) Reserve the costs of and incidental to the State’s notice of motion filed on 17 April 2025.

(3) Direct the parties to bring in short minutes of order containing a schedule or timetable for the further conduct of the proceedings.

(4) Grant liberty to apply.

295. When the matter returned to me on 28 July 2025, the following exchange took place concerning the State’s motion to reopen its case to remove the self-imposed s 136 limitation upon the use it could make of the medical reports of Dr Diamond and Dr Roberts concerning the plaintiffs’ psychological or psychiatric conditions and Ms Lam’s application to amend her defence specifically to plead a reliance on ss 27 and 31 of the Civil Liability Act:

“LLOYD: …There is one another thing I should say. For our part at least, your Honour can deal with this issue. Where no one is saying they want to come back and cross examine anyone else, and as I understand our friend's position there is argument about this, your Honour can deal with it in the final judgment, at least from our perspective. For our part, we wouldn't see why it would be necessary for your Honour to rule either now or at any point separately on this issue.

HIS HONOUR: What's your position on that last point, Mr Toomey? You don't want to cross examine the plaintiffs at all.

TOOMEY: No, your Honour.

HIS HONOUR: No matter what the outcome is.

TOOMEY: That's correct.

HIS HONOUR: Sorry, no matter what the outcome of this procedural quagmire is.

TOOMEY: Yes.”

296. The resolution of the dispute carried potentially very significant consequences. If Ms Lam’s point were made good, and the State were not to be permitted to rely upon the medical reports of the psychiatrists for all purposes, there would on Ms Lam’s argument be no evidence before me of damage sustained by the plaintiffs and hence the absence of an essential element consummating the tort the State is required to prove. Conversely, if Ms Lam had failed to plead the s 31 pure mental harm defence when she should have, the force of her opposition to the State’s application to remove the limitation correspondingly retreats.

297. In my opinion, the State should be given leave to reopen its case in order to remove the limitation upon the use it can make of the nominated medical reports, so that they are now in evidence for all purposes. I am also of the view that Ms Lam should be given leave to amend her defence so as to plead reliance on s 31, a matter that I consider she would have been required specifically to plead in any event. It is plain that no prejudice (in the relevant sense) is occasioned to either side by my taking that approach. I am comforted in that conclusion by the fact that senior counsel for Ms Lam did not seek to cross-examine the plaintiffs further or to cross-examine either Dr Diamond or Dr Roberts. My conclusion also accords with the express and implied statutory exhortations concerning the conduct of litigation in Part 6 Div 1 of the Civil Procedure Act 2005.

298. It follows in these circumstances that from a literal or prim**a facie reading of these medical reports, there is evidence before me upon the basis of which the State can submit that the plaintiffs have all suffered harm and that the harm qualifies as or corresponds to a recognised psychiatric illness. The nature, extent and degree of the harm that each of the plaintiffs may have sustained is relevant to whether or not the settlements were reasonable, considered later in these reasons as Issue 4.

299. With respect to the second issue, I consider that the school’s negligence was a necessary condition of the occurrence of the harm suffered by the plaintiffs. This is for the following reasons.

300. It will be recalled that KMG2 said on several occasions in cross-examination and again in re-examination that her best recollection was that she observed the incident between the teacher and student in 1978, before her second miscarriage, and that she took a period of leave following that observation before her return to the school and her subsequent pregnancy which led to her departure from the school in mid-1979. The timing of her observations becomes critical because of the allegation that Ms Lam should and would have been investigated and/or dismissed immediately following KMG2’s report of the incident that she observed in the languages staffroom to Mr Addinall.

“Q. You don't mean to suggest in your evidence, do you, in your supplementary statement that you never walked up any stairs after the unfortunate event of your miscarriage in March of 78?

A. I actually asked I actually asked for anything upstairs, if it was upstairs that I could work on the ground floor.

Q. I'm not now confining the question to school.

A. No, I never walked up the stairs.

Q. You never walked up

A. No.

Q. any stairs

A. No.

Q. after your

A. No.

Q. first miscarriage?

A. No.

Q. How many miscarriages and I'm sorry to have to ask you such a personal questions but how many miscarriages have you had?

A. Four.

Q. The first of them you say was in 1978.

A. Correct.

Q. You had a daughter in January 1980.

A. Correct.

Q. Did that pregnancy go to term?

A. It did. Sorry, I'd had a miscarriage in 1977 as well.

Q. Just bear with me a moment, if you wouldn't mind. When in 1977 was that?

A. In May.

Q. The miscarriage you had in 1978 was not your first?

A. No, it was my second one.

Q. What was it? Second?

A. Yeah.

Q. Again, I'm sorry to have to ask you these questions, but was there an intervening miscarriage between that one and the birth I'm sorry and your conception of your daughter who was born in January 1980?

A. No, but I was put on bed rest for six or seven months. So I had to stop teaching.

Q. I understand that happened in 1979.

A. Correct.

Q. What I'm asking you about I think you've answered the question there was no intervening miscarriage, that is to say, you had two miscarriages before you conceived your daughter

A. Correct.

Q. who was born in January 1980.

A. Yes, correct.

Q. You say that you had some time off work after the miscarriage in 1978.

A. I did.

Q. Then you returned to work.

A. I did.

Q. You remained at the school until either July or August of 1979.

A. I'm not certain. It could have been earlier, because I was put on bed rest very early.

Q. I'm just taking it from

A. Yes.

Q. accounts you've given.

A. Yes.

Q. It was either July or August of 79.

A. It was around it was around then, yep. That that's early, yeah. July, probably.

Q. Do you say that you did not walk up stairs between the time of your second miscarriage

A. Correct.

Q. and the time of your conception with your daughter?

A. Correct.

Q. None at all?

A. No.

Q. Never?

A. Never.”

302. The observations that KMG2 made were of an incident in the languages staffroom, which was upstairs from her own staffroom. KGM2 said that to the best of her recollection, her observations of the teacher and student took place before the leave related to her miscarriage because she did not walk up the stairs from the science staffroom to the languages staffroom after her second miscarriage. That evidence, if accepted, would place the incident KGM2 observed somewhere in the middle of 1978 and before the report to Mr Addinall made by IZG2 and AXJ2.

303. It will be apparent from my earlier findings with respect to KGM2 as a witness that I consider this evidence should be accepted. As noted earlier, KGM2 was an independent witness with no interest in the outcome of the proceedings. Her obstetric history was unfortunately quite troubled but in my view it is for that reason all the more likely to have been accurately recalled by her. She was adamant that she did not walk upstairs after her 1978 miscarriage on the advice of her obstetrician, to which advice she religiously adhered. I find that statement to be entirely understandable and credible. It follows that KGM2 would not have been in the vicinity of the languages staffroom at any time following her second miscarriage so that the incident she observed must have predated the report to Mr Addinall by IZG2 and AXJ2 later in the year, probably in Term 3.

304. Although with the exception of AXJ2, the plaintiffs had each commenced to have sex with Ms Lam before the incident observed by KGM2, the dismissal of Ms Lam immediately following the report to Mr Addinall would have prevented a significant amount of the abuse in the case of three of the plaintiffs and all of it in the case of AXJ2.

305. I consider that the evidence clearly establishes that the event observed by KGM2 was BJS2 sitting on Ms Lam’s lap, and that is clear that there was sexual abuse by Ms Lam of each of the plaintiffs after that occasion. Plainly, the sexual abuse thereafter made a material contribution to the harm suffered by the plaintiffs and was a necessary condition of the occurrence of the harm that they suffered: KGM2’s disclosure pre-dated that of IZG2 and AXJ2 and also predated the conclusion of their alleged abuse.

306. In those circumstances it becomes unnecessary in this context to consider whether the State’s failure to take one or more of the other alleged precautions made any contribution to that harm.

ISSUE 3: Is Ms Lam a tortfeasor liable etc?

Did Ms Lam breach her duty of care?

307. Ought Ms Lam to have known of the risk of harm to the plaintiffs in 1978 or 1979?

308. It is not controversial that, in accordance with s 5B(1)(a) of the Civil Liability Act, Ms Lam cannot have been negligent in failing to take precautions against a risk of harm, which for present purposes effectively means by refraining from engaging in the sexual conduct alleged by the plaintiffs, unless the risk of harm was foreseeable, being a risk that Ms Lam knew or ought to have known. There is no evidence in this case that Ms Lam knew in 1978 or 1979 that engaging in the particularised sexual conduct with the plaintiffs risked causing harm, including mental harm, to them.

309. At paragraph 5J of the cross-claims, the State has pleaded that the risk of harm was foreseeable by the school, but only in that the risk ought to have been known to the school. I have already concluded that the school ought to have known of and foreseen that risk. The State has pleaded that the risk was foreseeable by the school in that way because of the following matters:

(a) the age of the plaintiffs; (b) the position of authority of Ms Lam over the plaintiffs; (c) the emotional immaturity and vulnerability of the plaintiffs; (d) … (e) mandatory reporting had been introduced in New South Wales in 1977 by the Child Welfare Amendment Act and in most jurisdictions by then; (f) the prevailing community standards in relation to the conduct of teachers towards their students.

310. The State contends that Ms Lam ought to have foreseen the risk in the same way, and because of the same matters, that established that the risk was foreseeable by the school. I came to that view, even in the absence of evidence about it, because of the significant institutional experience that the school must be taken to have possessed: see [231]-[237]. However, in my opinion, Ms Lam’s position is fundamentally different and I am unable to come to the same conclusion with respect to her.

311. I note before proceeding further that this topic of whether or not Ms Lam, as opposed to the school, ought to have known of the risk of harm to the plaintiffs, was the subject of detailed submissions on the question of the admissibility of the report Professor Patrick Parkinson AM dated 13 November 2024. I rejected the tender of that report by the State: see IZG2 v State of New South Wales [2025] NSWSC 173. Before I did so, however, the following exchange, which admittedly ranged somewhat discursively over more than just foreseeability in the sense of what Ms Lam ought to have known, took place between me and Mr Lloyd of senior counsel for the State:

“HIS HONOUR: I'll hear everybody on it. But it wouldn't strike me as controversial - but I could be wrong - that knowledge that young adolescents could be harmed as the result of hyper sexualisation in the circumstances I've just described, as a matter of clinical or situational understanding. That may be controversial. It would be controversial in these proceedings if knowledge that hyper sexualisation could be caused in this way was also not known among, let's say, the society or the school at that time. I'm just seeking to draw a distinction between knowledge of whether the damage could be caused as a matter of clinical fact and the extent to which that knowledge might've been known to limit it to the school at that time.

LLOYD: Certainly, we accept there's a distinction, but it's not necessary at least at the admissibility stage, in our respectful submission, for us to be able to establish that a teacher or those within a school had knowledge of the clinical effects. On our case, it is sufficient simply to identify that the risk of harm as we've pleaded it included mental harm. That doesn't go anywhere near traumagenic effects of the kind identified here, but there's obviously a difficulty. It beset the royal commission, as your Honour knows or will know, in terms of being able to go back and identify community standards and what was applicable at the time. But the state of knowledge on the part of medical and other professionals at the relevant time is capable of contributing to that finding about what was broadly the knowledge about the harmful nature of what we would describe as child sexual abuse.

HIS HONOUR: Does he speak to whether or not this harm was known about in the 70s?

LLOYD: Yes. I anticipate it'll be said that he can't go any earlier than 1985 by reference to these articles, but may I just say on that point, to the extent it's a point at all, it's only one of weight. Because if one thinks about it - let it be assumed he talks of knowledge, including within school communities, of harmful effects of what we would describe as child sexual abuse in 1985 in the absence of any evidence to the contrary, say, for example, from a competing expert, that there'd been a major shift between 78 or 79 and 1985, the position in 85 would be capable of bearing on that question.

HIS HONOUR: Can I just ask; I'm sorry, I shouldn't interrupt you. Do you need and you may; I don't know evidence from the professor about the cause of harm? I haven't checked the pleadings, and it might not be part of your case, but is it part of your case that sex between a teacher and a student of 15 or 16.

LLOYD: Or 13.

HIS HONOUR: Or whatever, is presumptively harmful? I raise that in the context that, from the criminal law we know that it's illegal and consent is irrelevant. I'm just wondering whether or not the complete proscription on that conduct informs what you might want to say is a presumption that it's harmful.

LLOYD: We would certainly put it that way, and we've pleaded it including, in the foreseeability paragraph, by reference to prevailing community standards, and I will be most certainly saying to your Honour that a teacher would, in 1978 and 79, regard it as presumptively harmful.

HIS HONOUR: Again, Mr Toomey might want to talk me out of it, but it doesn't at first blush seem to me to be a controversial proposition that sex between an adult teacher and a minor student would potentially at least be harmful or damaging.

LLOYD: We embrace what your Honour's just said, but the problem for us is, it's obvious, in a sense, what's led us to obtaining expert evidence on a matter which many people would regard as being thoroughly uncontroversial, is the pleadings. We are here required to establish that the risk of harm - that is, mental harm - by sex with a minor by an adult teacher in 1978 was foreseeable, was not insignificant, and that a precaution that a teacher was bound to take in compliance with her general law obligations was not to have sex with 13 year old boys and 14 year old boys. That is a case that we are squarely faced with on the pleadings.

HIS HONOUR: I understand that, but the fact that it's denied that there was a duty on a teacher then not to have sex with 16 year old pupils or whatever age pupils raises an issue on the pleadings. That doesn't mean to say that you have to have an expert to tell you that it's not true if you think the expert will say it. I know this is adversary litigation and you respond as the issues appear to emerge from the pleadings, but on one view you could have the courage of your convictions and rely upon the possible presumption as an answer to that. I'm only thinking aloud; I don't have a view.

LLOYD: Your Honour, our primary submission that I will advance is your Honour will not need, ultimately, to look at one word in this report to resolve that issue, but being a natural born coward, I don't have the conviction that, either here or elsewhere, necessarily advancing a submission that it was so obvious that you should find, as a matter of fact, that that was the content of the duty, will prevail, and so as a second tier contention, I wish to adduce evidence which is capable of supporting that submission less it be rejected, the primary submission.

Your Honour would remember Neill v Fresh Food in the High Court and other cases. There is a principle to the effect that a plaintiff alleging a breach of a general law obligation, has an onus to call evidence to establish the content of the particular duty and that it was breached. In this case, there is some evidence about attitudes at the time, for example, the teacher witness is one. The teacher witness is one and I'll be citing authority from the UK, making it plain, at least according to some of those intermediate appellate decisions over there around this time, that sexual contact of the kind alleged here was indecent just as a matter of fact, irrespective of the criminal law.

The real question, in our respectful submission, here is the opinion evidence in this report capable of being relevant to a fact in issue in the case, and admissibility is a relatively low bar, and our submission about these passages that we rely upon, is that it is evidence that it is capable of being relevant to that fact, being the finding of risk of harm, foreseeability of risk and the content of the duty.” [Emphasis added]

312. To start with, the evidence in these proceedings tells me nothing of substance, directly or even anecdotally, about Ms Lam’s own personal knowledge or experience as a teacher. For the purpose of assessing the objective inquiry of what Ms Lam ought to have known, I take it to be accepted that her personal characteristics must be taken into account in deciding what knowledge, and hence what foresight, she ought to have had. In that respect, I do not know whether she trained as a teacher in New South Wales or overseas. I do not know what educational requirements she had to satisfy before qualifying as a teacher. I do not know, for example, whether she undertook a teacher’s college course, or some equivalent form of education and training, that involved or included material with respect to the psycho-sexual development of children or adolescents. I do not know whether Ms Lam was instructed in sex education for children and adolescents.

313. Secondly, although I infer from the evidence that Ms Lam’s first language is German, I have no evidence about where she grew up, what formal or informal social or cultural influences she was exposed to or to what norms of behaviour and conduct she was encouraged to adhere. Even assuming that Ms Lam has lived in Australia all of her life, I have no evidence or information from which to conclude what she, as a reasonable woman of her age, background, training, education, characteristics and experience, ought to have known in 1978 or 1979 about the alleged harm that might be caused to boys of the plaintiffs’ ages if exposed to sexual conduct with her.

314. Thirdly, the State bears the onus of establishing to my satisfaction on the balance of probabilities what Ms Lam ought to have known. It is not to the point that Ms Lam ought to have known that sexual interactions between her and boys of the plaintiffs’ ages in 1978 or 1979 were or might have been prohibited by the school in particular or by society in general. It might reasonably be assumed that the same could be said about offering or providing cigarettes and alcohol to the plaintiffs at that time: it is almost certain to have been expressly prohibited by the school and by society and as much ought to have been known to Ms Lam at that time. The question of whether doing so might have caused harm, including mental harm, or whether any harm that it may have caused ought to have been foreseen, is in contrast completely unknown. The same, it seems to me, must be said about the effects of sexual activity with the plaintiffs. Any opinions or submissions about what Ms Lam ought to have known are just speculative and dangerous unless supported by evidence or attended with such notoriety that I can legitimately take judicial notice of them.

315. It is also an egregious mistake to assume, and I have not assumed, that the nature and extent of knowledge that might be thought to circulate in the community today was also at large in the same way in the Australian community 46 or 47 years ago. The significant public awareness about the harm caused by sexual assaults upon children created by the work of The Hon Peter McClellan AM, QC and his landmark Royal Commission into Institutional Responses to Child Sexual Abuse was not a feature of the national psyche five decades ago as it is today. The harmful consequences of sexual abuse are now, but in 1978 or 1979 were not, notoriously part of contemporary thought.

“[8] The importance of pleading and proving the factual basis for an alleged duty of care was emphasised in Bird in rejecting the respondent’s notice of contention: see at [42]. Justice Leeming’s reasons in the present case highlight the need for close attention to detail in the formulation and proof of a duty of care and its content. That will require, amongst other matters, a precise understanding of the defendant, its juridical nature (if it is not an individual or corporation) and its position, powers, control and state of knowledge as at the time of the alleged breach(es) of duty, including as to the foreseeability of relevant risks. For example, one obvious question necessary to be addressed and answered affirmatively in the present case was whether the risk of harm of the kind alleged to have been suffered by the plaintiff was foreseeable by the defendant in the sense that it was not insignificant in 1969 when the sexual assaults upon him were alleged to have occurred. Many superior court judges were not even born at that time. Historical evidence will invariably be required, absent formal admissions. It may be elusive.

[9] As a general proposition, as Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 illustrates, questions of knowledge of risk are an ‘obvious example’ of the kind of question that may take on considerable importance in determining whether a defendant owed the plaintiff a duty of care: see at [64]. Ascertaining the answer to such a question may be acutely difficult in cases where the relevant time period by reference to which the question is to be answered was decades beforehand. That is not to say that an answer may not be ascertained but it is to identify what may be a real forensic difficulty for a plaintiff in such a case. It was a critical difficulty in the present case.” [Emphasis added]

325. Leeming JA’s comments at [235] in the same case should also be emphasised:

“[235] This is a question of evidence. It turns on what a reasonable person in the position of Fr Doran in 1969 would have done. It is important not to assess what a reasonable person in Fr Doran’s position in 1969 would have done against the expectations and knowledge of 2025. The plaintiff did not adduce any evidence that in response to the report of the abuse described by Mr McClung, Fr Doran or some other parish priest would take the matter further. Such evidence as there was pointed in the opposite direction. As the appellant pointed out, Fr Dillon confirmed that in the late 1960s, ‘[a]mong Catholic people and even among the vast majority of Priests, Religious Brothers and Sisters, the tragic catalogue of offences and crimes which have been so well documented and proven since the mid-1980’s was still virtually unknown’.” [Emphasis added]

326. There is simply no evidence before me of any kind to support the proposition that Ms Lam should, as part of her experience as a teacher or an ordinary member of society in the 1970s, have been or become aware of the effects of sexual conduct between adults and minors. Indeed, the State in these proceedings, clearly recognising that fact, withdrew all or any reliance upon particular (d) in paragraph 5J of the cross-claims which was in the following terms:

“(d) there was publicly available material about the effects of sexual conduct between adults and minors including but not limited to the material reviewed in Historical Review of Sexual Offence and Child Sexual Abuse Legislation in Australia: 1788-2013, Australian Institute of Criminology; and Final Report: Nature and Cause, Royal Commission into Institutional Responses to Child Sexual Abuse.”

327. Whereas the reason for that withdrawal of reliance on particular (d) is obvious, having regard to the dates of publication, not one single additional publicly available or notorious source of any similar information was said by the State to exist for Ms Lam’s consumption in 1978 or 1979 and if there were, it was not tendered or so much as referred to in the proceedings before me. A contention that Ms Lam ought to have known of the risk that the conduct in question might cause harm in those circumstances seems to me to propound a particularly harsh and cynical, and manifestly unconvincing, thesis. Mr Toomey’s final submission on this issue deserves reiteration:

“TOOMEY: It is necessary, of course, … for the State to establish, if it is to obtain contribution from Ms Lam, that she is, or would, if sued, have been liable in respect of the same damage…To succeed in respect of the action in negligence against Ms Lam, I am only reiterating a submission earlier made, the State would have to establish that damage of like kind to that of which the plaintiffs complain, was foreseeable to Ms Lam when she acted, as she is said to have acted in 1978.

The expert's report that the State wished to rely on, having been excluded entirely, the State offers no evidence as to the foreseeability of psychiatric harm as at 1978 in circumstance where there is sexual conduct between a female teacher in her twenties and male students of the age of 15 and 14 respectively. No doubt the State says you can take judicial notice of that, which we submit you cannot.

I have referred your Honour already to the decision to Tarantino of the High Court where it was made clear that frequently evidence will be required of the foreseeability of harm. That was a case where, one would have thought, that the Court take judicial notice if you put water on the roots of a tree for long enough that the tree will fall over. No, you cannot, said the High Court.”

328. In all of these circumstances, I consider that Ms Lam was not negligent by failing to take precautions against the pleaded risk of harm to the plaintiffs, which can only mean by not having sex with them. I cannot be satisfied that the State has proved that Ms Lam ought to have known of the risk of harm, including mental harm, that arose by doing so.

329. Finally on this issue, I note that the State has also purported to rely in its cross-claims for contribution from Ms Lam upon the basis that she committed an assault or battery of the plaintiffs in performing the sexual activities of which they complain. That aspect of the State’s cross-claims can be put aside for at least two reasons.

330. First, as explained by Mr Toomey of senior counsel for Ms Lam:

“TOOMEY: … An allegation is made of battery and sometimes of assault, and different considerations, of course, arise in respect of battery and assault because they are, as your Honour well knows, trespasses and are actionable per se. Some reference is made by the defendant in its submissions to the fact that Mrs Lam is proceeded against in this cross-claim, on the basis that she is liable in battery and assault, but that's neither here nor there. What we're concerned with here is whether the State has proven the case against itself, and the only case that the State puts against itself, is in the tort of negligence.”

331. Secondly, but separately, I am not satisfied that the alleged assaults or batteries have been established. Apart from the case of AXJ2, there is no evidence that I am prepared to accept that the plaintiffs did not consent to the conduct in question. Attitudes expressed by them in evidence in these proceedings about what happened 46 or 47 years ago that may be characterised as regret or remorse or shame or embarrassment should not be confused with an express or implied complaint or indication of opposition by them given at the time to Ms Lam about what happened or was happening. Nor does the evidence satisfy me that Ms Lam threatened or coerced the boys into what she did to them or what they did to her in response or that they withdrew consent in the course of some conduct that Ms Lam proceeded to ignore.

332. It is not to the point, because the sexual conduct may have amounted to a crime, that it was therefore not something to which the plaintiffs could consent. Consent as presently relevant is not consent for the purposes of the criminal law but for the assessment of the civil torts of assault and battery. IZG2, KWM2 and BJS2 were, and remained, willing participants in the activities until they were no longer interested. None has said that he was forced to be subjected to, or to engage in, any activity against his will.

333. In contrast, AXJ2’s account of the single occasion of his sexual interactions with Ms Lam are instead consistent with him being confused and overborne by the unfamiliarity and unexpected nature of her advances so that his consent to what occurred cannot be as easily assumed.

334. Notwithstanding my conclusions concerning what Ms Lam ought to have known of the risk of harm, it is still necessary to consider the remaining issues.

Was any breach of duty by Ms Lam a necessary condition of the harm suffered by the plaintiffs?

335. Yes. Ms Lam’s conduct for which the State is liable was in like manner a necessary condition of the harm suffered by the plaintiffs in the State’s claim for contribution against her.

Does Ms Lam have a defence under s 3 of the Employees Liability Act 1991?

336. No.

337. Section 3 of the Act is in these terms:

3 Employee not liable where employer also liable

(1) If an employee commits a tort for which his or her employer is also liable:

(a) the employee is not liable to indemnify, or to pay any contribution to, the employer in respect of the liability incurred by the employer, and

(b) the employer is liable to indemnify the employee in respect of liability incurred by the employee for the tort (unless the employee is otherwise entitled to an indemnity in respect of that liability).

(2) Contribution under this section includes contribution as joint tortfeasor or otherwise.

338. Accepting for present purposes that the literal terms of s 3 apply on the facts established in the present case, the terms of s 5 remain to be considered. That section provides as follows:

5 Act not to apply to serious misconduct of employee or to conduct not related to employment

This Act does not apply to a tort committed by an employee if the conduct constituting the tort:

(a) was serious and wilful misconduct, or

(b) did not occur in the course of, and did not arise out of, the employment of the employee.

339. There seems to be no dispute in these proceedings that sexual contact between a teacher and students under her care in 1978 or 1979 amounted to serious and wilful misconduct.

Were the plaintiffs’ causes of action against the State statute barred?

340. No.

341. Section 6A of the Limitation Act 1969 relevantly provides:

(1) An action for damages that relates to the death of or personal injury to a person resulting from an act or omission that constitutes child abuse of the person may be brought at any time and is not subject to any limitation period under this Act despite any other provision of this Act.

(2) In this section, child abuse means any of the following perpetrated against a person when the person is under 18 years of age--

(a) sexual abuse,

(b) serious physical abuse,

(c) any other abuse (connected abuse) perpetrated in connection with sexual abuse or serious physical abuse of the person (whether or not the connected abuse was perpetrated by the person who perpetrated the sexual abuse or serious physical abuse).

342. To satisfy the exception in s 6A, the State must establish that the actions brought by the plaintiffs against it for damages relate to personal injuries “resulting from an act or omission that constitutes child abuse”. The only definition of “child abuse” for the purposes of the Limitation Act is that contained in s 6A(2), namely “sexual abuse”, “serious physical abuse” and “any other abuse (connected abuse)”.

343. It was made clear in the Second Reading Speech introducing the Limitation Amendment (Child Abuse) Bill 2016 (namely, the legislation which inserted s 6A into the Limitation Act) that it was the Legislature’s intention to leave it to the courts to determine whether or not child abuse had occurred having regard to the circumstances of each case and the ordinary meaning of the terms. However, the Second Reading Speech also said that the phrase “child abuse” should be interpreted in a beneficial manner and made reference to a definition in the Bill (but not in the Act) of child abuse as being “abuse perpetrated against a person when the person is under 18 years of age; that is sexual abuse, serious physical abuse, and/or other abuse perpetrated in connection with sexual or serious physical abuse”.

344. The reference to the legislative intention that “child abuse” should be interpreted in a beneficial manner is consistent with general principles of statutory construction. In Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204, Leeming JA at [85] and [97] referred to the principle that remedial legislation is to be given a broad, beneficial construction, consistently with the more general principle that all legislation is to be construed purposively (citing New South Wales Aboriginal Legal Council v Minister Administering the Crown Lands Act (2016) 260 CLR 232; [2016] HCA 50 at [92]). Consistently with these principles of statutory construction, I consider that I should construe the term “child abuse” in s 6A(2) broadly and in a manner that is beneficial to the survivors of child abuse that the provision was inserted to assist.

345. As for the ordinary meaning of the term “child sexual abuse” (in the absence of a detailed definition in s 6A), the definition referred to in the Bill is broadly consistent with the following definition adopted by the Royal Commission into Institutional Responses to Child Sexual Abuse:

“Any act which exposes a child to, or involves a child in, sexual processes beyond his or her understanding or contrary to accepted community standards. Sexually abusive behaviours can include the fondling of genitals, masturbation, oral sex, vaginal or anal penetration by a penis, finger or any other object, fondling of breasts, voyeurism, exhibitionism, and exposing the child to or involving the child in pornography. It includes child grooming, which refers to actions deliberately undertaken with the aim of befriending and establishing an emotional connection with a child, to lower the child’s inhibitions in preparation for sexual activity with the child.”

346. I am satisfied that Ms Lam’s alleged conduct plainly falls within the definition of child abuse in s 6A on a purposive construction of that section.

ISSUE 4: WERE THE SETTLEMENTS REASONABLE?

The State’s submissions

347. Ms Lam has denied that the judgment sums paid to the plaintiffs were reasonable.

348. The State’s primary position is that it is not open to Ms Lam to contest the reasonableness of the judgment sums. Judgments were entered in open court in Ms Lam’s presence. Not only did she not oppose the entry of those judgments, but Ms Lam also indicated through counsel that she was content for the judgments to be entered. Ms Lam’s position putting the reasonableness of those judgment sums in issue is therefore said to be an impermissible collateral attack on the judgments. It is not to the point that the judgments were entered by consent: see, for example, Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 at 508; [1988] HCA 21 and Seltsam at [127]. However, the State submitted that if this primary position is rejected, the following alternative position should apply.

349. My consideration of the State’s analysis necessarily presupposes my earlier finding that the State is a tortfeasor liable at the suit of the plaintiffs.

350. The test of the reasonableness of a settlement is objective and whether a settlement is reasonable depends on the circumstances at the time of settlement. The relevant principles were recently summarised by Rees J in About Life Pty Ltd v Maddocks Lawyers [2021] NSWSC 1370 at [649], citing AVWest Aircraft Pty Ltd v Clayton Utz (A Firm) (No 2) [2019] WASC 306 at [661]-[662] as follows:

“The test of reasonableness is objective. Accordingly, it is not satisfied by evidence that the parties thought the settlement was reasonable; nor why they thought it was reasonable. Whether a settlement is reasonable depends on the circumstances at the time of settlement (assuming the claimant acted reasonably in discovering the circumstances material to settlement). Evidence of legal advice is material but not conclusive. The reasoning that supports the advice is important insofar as it reveals why it was thought reasonable to compromise the claim at that level. The court should also be satisfied that the negotiations were conducted with proper care and skill. The settlement must reflect the claimant’s true prospects of success - albeit recognising that there may well be an appropriate discount due to the inherent uncertainty of litigation and the benefit not having to incur unrecoverable costs in proceeding to trial. In short, the question of reasonableness is to be determined based on a reasonable assessment of the risk faced by [the plaintiff] if the claims against [the third party] were to proceed to trial and judgment.”

351. The particular question that arises in these proceedings – namely, the reasonableness of a settlement in circumstances where a consent judgment has been entered in respect of that settlement – was considered by the Full Court of the Supreme Court of South Australia in Saccardo Constructions Pty Ltd v Gammon (1991) 56 SASR 552. The Full Court considered what a claimant for contribution was required to prove where the claimant had consented to judgment in a specific sum in favour of the injured plaintiff.

352. The Court held by majority that in determining the basis for apportionment under the equivalent South Australian legislation, the question was whether the consent judgment was objectively reasonable having regard to the state of knowledge of the claimant for contribution at the time of settlement, but that there was no presumption that the quantum of settlement was reasonable. The Court cited with approval the judgment of Wells J in Bakker v Joppich, which rejected the assertion that the judge in the contribution proceedings was required himself or herself to assess damages on the evidence as would be required in a personal injury action. In rejecting that proposition, Wells J said that it was sufficient if the settlement was within the limits of reasonable tolerance.

353. As appears from Saccardo Constructions Pty Ltd v Gammon (No 2) (1994) 63 SASR 333 at 335, the High Court refused special leave to appeal from the decision in Saccardo because the Full Court was correct in concluding that there was no presumption of law in favour of the reasonableness of the settlement. However, in refusing leave, the High Court disagreed with the view that a settlement is no evidence at all of the reasonableness of the amount agreed.

354. In Saccardo (No 2), King CJ identified four propositions as to the law applicable where a defendant seeks to recover contribution in respect of its liability on a consent judgment to which the party against whom the contribution is claimed did not consent. They are:

(a) The test as to whether the defendant can recover on the basis of the full amount of the consent judgment is the reasonableness of the settlement; (b) There is no presumption of law that the settlement was reasonable and the onus is on the defendant seeking contribution to prove in the proceedings against the third party the reasonableness of the settlement; (c) The settlement is some evidence of its reasonableness and the defendant is not in all circumstances required to call witnesses to establish that the amount paid was reasonable; (d) The circumstances in which the settlement was arrived at and any proper inferences therefrom may be evidence of its reasonableness.

355. King CJ added that as the issue is the reasonableness of the settlement, it must be assessed in light of the facts which were known or ought to have been known by the defendant and its legal representatives at the time of settlement. This is consistent with the approach taken by the High Court in Unity Insurance Brokers Pty Ltd v Rocco Pezzano Pty Ltd (1998) 192 CLR 603; [1998] HCA 38. See, also, Dowthwaite Holdings Pty Ltd v Saliba [2006] WASCA 72 at [84]- [95].

356. In the present case, Ms Haski’s evidence addresses the reasonableness of the settlements and exhibits the relevant material going to damages and quantum. It is apparent from that material that the State, for the most part, acted in accordance with a careful assessment conducted by Mr Hilbert Chiu SC in his advices on liability and damages prepared in November 2023. While the settlements were at the high end of the range and in one instance exceeded it, they were largely effected in accordance with advice from senior counsel and took into account the significant costs associated with the trial and the difficulties in obtaining any costs protection by making offers of compromise.

357. The State also referred to Wallaby Grip Limited v State Rail Authority of New South Wales; James Hardie & Co**mpany Pty Limited v State Rail Authority of New South Wales [2001] NSWCA 105; (2001) 21 NSWCCR 650 at [48]-[49]. The Court concluded that under s 5(1)(c) the application for contribution must accept an earlier judgment against the now plaintiff tortfeasor as “conclusive as to the existence and the amount of liability of the plaintiff claiming contribution”, citing Bitumen and Oil Refineries (Australia) Ltd v Commissioner for Government Transport (1955) 92 CLR 200 at 212-213; [1955] HCA 1 as follows:

“A decision that the liability imposed by the previous judgment is a liability which par (c) of subs (1) contemplated does not necessarily mean that the tribunal which discharges the responsibility of fixing the amount of contribution under subs (2) of s 5 cannot consider whether owing to the fault of the now plaintiff it stands at an excessive figure. No doubt the Court under subs (2) must accept the assessment as conclusive as to the existence and the amount of the liability of the plaintiff claiming contribution. The Court, however, is required to find what is just and equitable as an amount of contribution having regard to the extent of the responsibility for the damage of the tortfeasor against whom the claim is made. There does not seem to be any valid reason why that tortfeasor may not say to the tortfeasor making the claim, if he has improvidently agreed to pay too large an amount or by unreasonable or negligent conduct in litigation has incurred or submitted to an excessive verdict, that the excess is due to his fault and not to that of the tortfeasor resisting the claim. It would be a matter for the Court to consider under the heading of ‘just and equitable’.”

358. Priestley JA said that passage makes clear that the court could investigate whether the amount for which the party claiming contribution had been made liable was excessive due to some default on that party’s part. That investigation would be permissible, and, if required by the party resisting contribution, no doubt obligatory, because of the court's duty to decide upon what would “be just and equitable having regard to the extent of that person's responsibility for the damage”. His Honour concluded, however, that while the trial judge “was bound to consider the question whether Ampol had incurred an excessive judgment, he was also bound to do so on the footing that it had been adjudged liable for negligence against the plaintiff, which necessarily involved that the plaintiff … had suffered damage caused by Ampol’s breach of duty.”

359. His Honour’s decision is also relevant given the manner in which one of the cross-claimants, Ampol, had conducted its defence in the substantive proceedings. At [20], his Honour noted that “it was submitted against Ampol [in the proceedings below] that it would not be just and equitable for it to recover any contribution because of what was said to be its supine conduct of its defence against the plaintiff, allied with this was the contention that had Ampol properly fought the question of causation against the plaintiff, Ampol could not have been held liable because it was the exposure of the plaintiff during his employment with SRA that caused his mesothelioma.”

360. That submission was not accepted by the primary judge, who found that Ampol had not conceded causation (at [21]). Further, the primary judge found that because Ampol had not caused the plaintiff to contract mesothelioma, combined with his opinion that Ampol was entitled to contribution because of the judgment against it, it was entitled to complete indemnity in respect of the amount it in fact paid in satisfaction of the plaintiff’s judgment.

361. The State submitted that another factor which is relevant to the quantum of damages to which the plaintiffs may have been entitled is the State’s exposure to aggravated or exemplary damages, or to increased non-economic loss on account of the manner in which the proceedings may be conducted. In these proceedings, the plaintiffs have been accused of inventing their allegations and colluding with each other to bring false claims. This has occurred in circumstances where ultimately and no doubt for very good forensic reasons, Ms Lam elected not to give evidence. She maintains the denials of the abuse in her defences.

362. In SR v Trustees of the De La Salle Brothers [2023] NSWSC 66, it was put to the plaintiff during the course of cross-examination that the alleged abuse was a fabrication (at [66]), which was subsequently withdrawn (at [67]). In his decision, Cavanagh J observed that in the context of child sexual abuse litigation, “putting to a victim of child sexual abuse that he or she in fact suffered no abuse is a serious matter. It goes to the very heart of what victims of historical sexual abuse fear: not being believed” (at [74]). His Honour observed that in cases of historical sexual abuse, it will be appropriate to have regard to the way in which the case was conducted and how that might have affected the plaintiff in assessing whether aggravated damages should be awarded (at [205]).

Ms Lam’s submissions

363. Ms Lam submitted that upon an application of these unchallenged principles, I could not be satisfied that the settlements were reasonable. Mr Toomey made three specific submissions.

364. First, he contended that there was no reasonable basis upon which to accept IZG2’s claim for economic loss. He said this:

“TOOMEY: May I now address the reasonableness of the settlements, your Honour. We take issue, first, in the case of IZG2 concerning the claim for economic loss, which I have already addressed briefly. His claim was for $975,000, inclusive of costs. There was some cross examination of Ms Haski as to this point, which your Honour will find at 377 of the transcript and following. In fact, it probably commences at 376 at line 5. It was appreciated in his claim for economic loss that he would have been a full time teacher were it not for what happened at the hands of Mrs Lam. He was advancing a claim that he had only been doing odd jobs before he finally went to university and undertook tertiary studies. He did not say anything to the doctors about work in real estate.

Then, of course, it must have been appreciated by the State that a significant component of any settlement would be attributable to economic loss. He two most significant components must have been general damages and economic loss, just having regard to the nature of the claim. But the fact was, as I have already adverted to in earlier submissions, that he had undertaken work with a real estate agency for at least a couple of years. That work we can see from the accountant's report, had paid him more than he would have been earning had he gone into a full time teaching position. It is established, through his evidence, that he left that work because he didn't like the nature of the work and he didn't like the people he was working with.

In our submission on no view could it be said that on a proper appraisal of his claim for economic loss he was likely to make out any substantial entitlement to damages for that head.

It was also established, both through his cross examination and in the accountant's report, that in fact what he was paid later for the casual teacher position he undertook, was very close in amount to the amount he would have been paid had he been working full time. I think, indeed, at times it might have exceeded it because of the benefit of casual rates. The point being that on the basis of that evidence the State ought not have to have been satisfied that it was appropriate to pay anything like the sum they paid to him in damages, the amount of $975,000, including, as it must have, a significant component of that head of damages.”

365. Secondly, Mr Toomey made a general submission in respect of the issue of causation. He said this:

“TOOMEY:… We do make a general submission in respect of each of the plaintiffs concerning the reasonableness of the settlement based on the causation issue. That goes both to the question of when the school was on notice, first on notice, and secondly to the question of the medical evidence and its failing to divide in any way, or even purport to divide in any way, damage attributable to what occurred before the school was on notice and damage that might have been attributable after the school was on notice.

HIS HONOUR: Are you saying that taking a broad brush approach, as I am required to, I should make, or allow, a discount for the problems of causation on either or both of those bases?

TOOMEY: Yes. Your Honour will recall, and this is important, that the State sought counsel's advice in respect of the quantum of each of these matters and Mr Chiu, now of Senior Counsel, gave advice to Ms Haski in which he raised a very causation issue which we say is a complete impediment to the State's success. He raised the issue of the timing itself the teacher, KGM2, to Mr Addinall. Your Honour might recall I did cross examine Ms Haski on this matter. In her email reports to her clients she did not raise the difficulty in respect of causation which had been raised with her by counsel. It was a real problem, as the evidence has now demonstrated.

In those circumstances there ought to have been a very significant liability discount if the State wished to settle the cases. That, of course, applies in respect of each plaintiff, as does the medical evidence issue.”

366. Finally, Mr Toomey made this submission about the amount paid to the brothers:

“TOOMEY: The last matter I wish to raise specifically in respect of the reasonableness of the settlements, concerns AXJ2. There was frank advice given by Senior Counsel to the State that in circumstances where the other three plaintiffs were effectively holding out on settlement unless they paid AXJ2 more, that it might be justifiable for the State to pay more just to see all the cases settled. That is a matter which we submit should not be placed at the feet of Mrs Lam. If it is being frankly acknowledged, as we submit it was, the State was being advised to pay more

HIS HONOUR: One in all in.

TOOMEY: That was the attitude and that may be understandable…”

Consideration

367. The parties were agreed upon the legal principles to apply: was the quantum of the consent judgments objectively reasonable (“within the limits of reasonable tolerance”) having regard to the state of knowledge of the State, assessed in light of the facts which were known or ought to have been known by the State and its legal representatives at the time of the settlement?

368. The approach was the subject of discussion between junior counsel for the State and me during final submissions:

“MARSDEN: … If I can turn now to the evidence, I noted at the outset that the question of what was known to the State at the time of settlement does not include, for example, the detailed evidence now before your Honour on the question of causation, which Mr Lloyd has taken your Honour to earlier today. Rather, the question is what was known to the State at the time of settlement, and particularly, what was known to the State at the time of settlement on the question of causation, which appears to be the principal basis of Ms Lam's attack on the state's case.

HIS HONOUR: I really have trouble with this, not because of anything you're saying or not saying, but you talk about what was known. A defendant couldn't recklessly choose to settle proceedings to get them off their books, comfortable, so they might think, in the expectation they could recover a big swag of it from somebody else. They couldn't blindly take refuge in a settlement expecting half of it to come from someone else if the sum bore no reasonable relationship to the liability they faced. Just this idea about what they knew then, and you take the point, "Well that they didn't have all the details". I mean, how can a person settle proceedings without those sorts of details and yet expect to recover a proportion of the sum, even if in due course, closer examination such as in a case like this shows that those details would have revealed that the sum was excessive?

MARSDEN: Well, on that question, your Honour, for reasons I will come to, we will submit that essentially what was known to the State then, the position hasn't changed a great deal in light of the advice of senior counsel given at the time. But nevertheless, the test remains, what was known at the time, viewed prospectively. That's the lens through which we have to look at the advice that was given and the information that was available to the state's decision makers at the time of settlement. In the decision of Wallaby Grip, there is a discussion of the approach to causation that was taken, and the reference there is to the supine approach.

HIS HONOUR: Yes, I think I referred you to that.

MARSDEN: Yes.”

369. It is clear that the State sought and obtained the detailed and thorough advices of Mr Chiu on the questions of its potential liability to the plaintiffs and the likely or probable quantum of their respective claims for damages. It is fair to say that Mr Chiu’s memorandums contain or represent a contemporaneous snapshot of the state of knowledge acquired by the State by the time they were provided.

370. Mr Chiu’s (suitably anonymised) advice on liability was relevantly as follows:

“MEMORANDUM OF ADVICE ON LIABILITY

Background

1. These are four proceedings in the Supreme Court of New South Wales for historical sexual abuse. The alleged perpetrator in each case is Ms Helga Lam, a modern languages teacher at Maroubra Bay High School (MBHS) in 1978-1979. Each of the plaintiffs was a student at MBHS at the relevant time. Each of them alleges that Lam engaged him in various sexual acts for which he did not consent by reason of his status at the time as a minor under the age of 18. Ms Lam was about 24-25 years old at the time of the alleged incidents.

2. The plaintiffs have commenced proceedings against the State for damages arising from alleged vicarious liability for the sexual abuse, and from negligence in failing to take precautions against the risk of the abuse occurring. In each proceeding the State has brought a cross-claim against Ms Lam. The precise status of Lam's assets is unknown. My instructing solicitors believe that she may own three properties in NSW, with two of them mortgaged.

3. Ms Lam is also facing criminal proceedings for multiple counts of indecent assault contrary to section 81 of the Crimes Act 1900. She has pleaded not guilty. The criminal trial in the District Court is due to commence on 13 May 2024, with an estimate of 5 weeks. According to an affidavit of [Ms Lam's solicitor], the complainants in the criminal proceedings include AXJ2, IZG2 and BJS2. ….

4. Pending the outcome of the criminal proceedings, the Supreme Court has deferred making any direction in the civil proceedings for Ms Lam to file defences to the cross-claims, so as to protect her right to silence. In the meantime, the Court has directed the State to serve its evidence in defence of the vicarious liability and negligence aspects of the claim against it, whilst acknowledging that such evidence may need to be supplemented after Ms Lam eventually files her defences and puts on her evidence. The Court has also directed all parties to attend mediation.

5. The mediations in the four matters have been scheduled to take place over two days on 21-22 November 2023. Ms Lam's solicitors have already indicated that although they will attend in compliance with the Court's orders, they do not intend to make any monetary offers.

Case on Negligence

6. The pleadings in each of the four proceedings make similar allegations as to liability.

7. ln relation to negligence, there is an allegation that in late 1978, AXJ2 and IZG2 disclosed the abuse to the then Principal of MBHS, William Addinall, who did not believe the complaint and took no further action. There is also an allegation that during the 1978 school year, KWM2's then girlfriend KEC2 disclosed the abuse to Addinall, who again did not act on the complaint.

8. There is no other specific allegation in the pleadings of disclosure of the abuse to employees at MBHS. However, some of the evidentiary statements of the plaintiffs allege that the deputy principal Ian Porteus and another teacher, KGM2, were aware of the complaints.

9. The balance of the pleaded allegations for negligence go to general systems case, essentially allegations that MBHS had inadequate systems of vetting and supervision of teachers, and for inspection of school grounds.

10. Addinall and Porteus have both long since died, but my instructing solicitors and I have conferred with KGM2. She has a clear recollection of walking into the languages staff room after school finished, one day in 1978, and seeing Ms Lam with a male student sitting on her lap, facing her, with arms around each other, in what seemed to KGM2 to have been an intimate moment. KGM2 immediately left the scene and went to inform Addinall in his office. She says that Addinall told her: ‘I don't think the situation is what you think it is. Leave it with me.’

11. KGM2 then returned home and told another MBHS teacher, Dave McGuiness about what she saw. McGuiness was living near KGM2 at the time. She told McGuiness what she saw, because she was not confident Addinall would do anything about her complaint. McGuiness told KGM2 that he would follow up with Addinall. KGM2 believes that he would have done so, because that was the type of person McGuiness was. KGM2 never discussed the topic again with either Addinall or McGuiness. She has always remembered the incident because it was so out of the ordinary. McGuiness died about 15 years ago.

12. KGM2's evidence is set out in a police statement in the criminal proceedings against Ms Lam. My instructing solicitors do not have a copy of the statement, but KGM2 read it out to us during our AV conference with her. It must be assumed that the plaintiffs, most of whom are complainants in the criminal proceedings, are aware of this statement or will soon be once KGM2 gives evidence for the prosecution. KGM2's evidence will therefore almost certainly be adduced at the final hearing of the plaintiffs' civil claims.

13. As discussed in conference on 27 July 2023, in my view the negligence component of each case is likely to be established by reason of KGM2's evidence. This is for the following reasons:

(a) She is an independent witness with no pecuniary interest in the outcome of the plaintiffs' claims. She has a very clear recollection which reinforces the shocking nature of the incident she witnessed.

(b) Her account lines up perfectly with paragraph [37] of BJS2's evidentiary statement, in which he recalls being in the middle of the languages staff room, about to have sex with Ms Lam, when a female cleaner or teacher entered the room, saw them, and abruptly left.

(c) KGM2's evidence corroborates BJS2's allegations of abuse, whose evidence in turn tends to corroborate the allegations of the other plaintiffs by: (i) directly confirming Ms Lam's liaisons with KWM2 and IZG2 at the time; and (ii) establishing a clear pattern (i.e. tendency) of sexual interest and emotional manipulation of pubescent male students.

(d) The allegations of abuse in each plaintiff's evidentiary statement are detailed both as to the activities in question, the frequency and duration, and the locations in the school where they occurred (languages staff room, a classroom near that staff room, and music hall when not otherwise in use).

(e) In circumstances where the State has been able to find no evidence to challenge the plaintiffs' allegations of abuse, other than what little can be inferred from Ms Lam's plea of not guilty, KGM2's evidence makes it extremely unlikely that the Court would reject the evidence of all four plaintiffs to find that none of the alleged abuse occurred. Indeed, without the benefit of specific instructions from Ms Lam, on the current material available, counsel for the State would not even be able to put to any of the plaintiffs that the alleged abuse did not occur.

(f) KGM2's evidence establishes that Addinall was informed of the abuse by at least one teacher, possibly two (if McGuiness followed up as he said he would do). The fact that Addinall appears to have taken no action tends to corroborate the evidence of IZG2 and AXJ2 that their complaints to Addinall were similarly ignored; as well as the evidence of KWM2 that his girlfriend KEC2’s complaint to Addinall was similarly ignored.

(g) KGM2's evidence makes it difficult, if not impossible, for the State to apply for a permanent stay of the proceedings on the basis that Addinall and Porteus have died. KGM2's presence as an independent witness to both the abuse and a complaint, not to mention Ms Lam's ability in due course to meet the allegations of abuse and give evidence as to whether any action was taken against her by Addinall, clearly distinguishes this case from those in which permanent stays have been granted. This is even before the High Court's recent decision in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32 has arguably swung the pendulum in favour of plaintiffs on resisting such stays.

(h) Once the Court finds that Addinall was informed of the abuse, at least once by a teacher, by late 1978, the Court would almost certainly find that his failure to act on it and to stop it from continuing to occur amounted to a breach of duty by a Principal for which the State is vicariously liable.

14. Although I consider the State is likely to be found liable in negligence, that liability does not necessarily extend to the entirety of the abuse suffered by all four plaintiffs.

15. According to IZG2 and AXJ2, their complaint to Addinall occurred in late 1978 at the end of third term. This was after the single incident involving AXJ2, and also after IZG2 had stopped seeing Ms Lam. Even if Addinall had immediately acted to investigate and thereby prevent further abuse, arguably the damage had already been done.

16. In contrast, BJS2's period of intimacy with Ms Lam was, according to him, over 2-3 months in late 1978. It is possible that KGM2's complaint to Addinall occurred before the complaint made by IZG2 and AXJ2. ln any event, on BJS2's evidence his sexual relationship with Ms Lam continued after it was spotted by KGM2. BJS2 therefore has a reasonable argument that intervention by Addinall in late 1978 would have avoided part of the abuse.

17. Of the four plaintiffs, KWM2 was the one who had the longest period of abuse after the complaints to Addinall. KWM2 says that in his case it continued until October 1979, almost a year after the complaints in late 1978. KWM2 therefore has a strong argument that intervention by Addinall in late 1978 would have avoided most of the abuse.

18. Perhaps recognising this causation problem, the plaintiffs have alleged as part of their case on negligence that they should have received regular and appropriate emotional support, including guidance counselling and treatment, once complaints were made about Ms Lam. There is however at present no expert psychiatric evidence as to what difference such 'early intervention' might have made to their respective outcomes.

19. As to the balance of the plaintiffs' case on negligence, there is no evidence at present as to any deficiency in MBHS's general systems of supervision of teachers such as Ms Lam. There is no evidence that, prior to the complaints to Addinall, Ms Lam should have been under suspicion in any way. Almost all of the alleged abuse appears to have occurred after regular school hours.

20. It is therefore unclear what system of supervision the plaintiffs say should have been in place, unless it meant a system that prevented any contact between high school students and teachers anywhere on school premises after regular school hours ended. Until some expert evidence is served as to applicable standards in 1978-1979, this aspect of the negligence case is unlikely to succeed.

Case on Vicarious Liability

21. The allegation that the State is vicariously liable for Ms Lam's abuse of the plaintiffs is sparsely pleaded. There is no dispute that Ms Lam was an employee. What is at issue is whether the abuse occurred in the course of her employment. The pleadings allege that: ‘The scope of Ms Lam's employment extended to all aspects of control, authority, unrestrained power and influence in the day to day conduct of the Department [of Education] at MBHS, including its care and supervision of MBHS students."

22. The suggestion in the pleadings that Ms Lam's duties, as an ordinary languages teacher, could have amounted to ‘unrestrained power and influence’ seems fanciful. The above description might be more apt for the Principal, Mr Addinall, but even in 1978-1979 is it doubtful that the role of the Principal extended to unrestrained power and influence over the day to day conduct at MBHS.

23. Whether vicarious liability extends, in a given case, to the criminal acts of an employee is highly dependent on the facts and circumstances of that case. Although there have been some discussions of principle more recently in Prince Alfred College v ADC (2016) 258 CLR 134, which focused attention on whether the duties conferred on an employee gave that employee a degree of intimacy and authority over the victim, at least in cases concerning regular high school teachers the best authority remains New South Wales v Lepore (2003) 212 CLR 511. Lepore was upheld in Prince Alfred College.

24. In Lepore, Gleeson CJ observed at [67]:

‘it cannot be said that the risk of sexual abuse ought to be regarded as an incident of the conduct of most schools, or that the ordinary responsibilities of teachers are such that sexual assaults on pupils would normally be regarded as conduct (albeit serious misconduct) within the scope of employment. However, there are some circumstances in which teachers, or persons associated with school children, have responsibilities of a kind that involve an undertaking of personal protection, and a relationship of such power and intimacy, that sexual abuse may properly be regarded as sufficiently connected with their duties to give rise to vicarious liability in their employers:'

25. In the present claims, the abuse suffered by each plaintiff started in the following ways, according to their respective evidentiary statements:

(a) KWM2 - taught by Ms Lam. The abuse started when he observed her kissing IZG2 in the music hall where he was helping backstage.

(b) BJS2 - not taught by Ms Lam. The abuse started when she was involved in putting on the school musical and used the excuse of fitting his costume after school hours.

(c) IZG2 - taught by Ms Lam. She gave him special attention in class, and then invited him into the staff room after school which was how the abuse started.

(d) AXJ2 - taught by Ms Lam. She asked IZG2 to bring AXJ2 to the staffroom after school where the single incident of abuse occurred.

26. In each case, Ms Lam opportunistically used her access to the students, as a teacher of the school, to commit the alleged abuse. In each case except for AXJ2, the plaintiffs reciprocated the advances and willingly took part in the sexual activities.

27. That each sexual interaction amounted to abuse, given they were 14-15 at the time, is not in dispute. However, these cases are not akin to cases of sexual abuse where the perpetrator obtained access to the victim and was able to perpetuate the abuse only because of coercion or compulsion arising from moral authority or power they held over the victim. The better characterisation, in my view, is that Ms Lam's position as teacher gave rise to the opportunity for her to meet students. She then formed sexual relationships with students after school hours, and had access to locations within the school after hours to have sexual contact with them. If that is the correct characterisation, it cannot readily be said that the abuse occurred ‘in the course of’ Lam's duties as a teacher.

28. For those reasons, in my opinion the State is more likely than not to avoid a finding of vicarious liability for Ms Lam's criminal actions. The position may change if the plaintiffs adduce better evidence to show that Ms Lam's particular duties gave her more power, authority or intimacy over students than I have assessed, or more likely, if Ms Lam herself gives such evidence at trial. But given her role at the time as one of several languages teachers, albeit one with some cocurricular involvement in the school musical, it is difficult to see what such evidence might be.

Recommendations

29. I will separately provide brief advices to set out my assessment of damages for each of the four plaintiffs' claims.

30. For the purposes of negotiating a settlement of each claim at mediation, I recommend taking the following overall approach:

(a) Each claim should be assessed under the CLA, on the basis that vicarious liability for Ms Lam's actions is unlikely to be established.

(b) There should be no discount for the risk of the plaintiffs succeeding in establishing liability for negligence in failing to act on the complaints made to Addinall.

(c) Each plaintiff's claim should be discounted for the likelihood that, in each case, some or all of the abuse would still have occurred even if Addinall had acted on those complaints, and even if counselling had been provided after those complaints.

(d) The discounting should incorporate an 'offset' for the modest risk to the State that: (i) it might be found negligent for having a poor system of supervision overall; and (ii) it might be found vicariously liable for Ms Lam if further evidence on that front is adduced.

(e) Taking into account the above, and recognising that there can be no science or precision in this exercise, I recommend the following discounts:

• IZG2 - 60%

• AXJ2 - 60%

• BJS2 - 40%

• KWM2 - 25%

31. The final issue for consideration is whether the State should contemplate settling the claims without any contribution from Ms Lam; and if so, whether it should continue to pursue its cross-claims against Ms Lam.

32. Ms Lam's current asset position is unknown. I am told that she owns property, but that the extent of those properties and her equity in them are unknown and difficult to ascertain from publicly available sources. The expectation is that protracted criminal proceedings and likely appeals in those proceedings would erode any assets she has. From her perspective, it makes sense to hoard her assets to fund her legal representation in the criminal proceedings, so I do not expect her refusal to contribute to a settlement will change at the mediation or until after those criminal proceedings are ended.

33. Option 1 is for the State is to refuse to settle without any contribution from Ms Lam. I do not recommend this approach. The evidence strongly favours a conclusion that the abuse occurred, and that the State is liable at least for failing to act on complaints made. Ms Lam may never be willing to contribute to a settlement, and by the time her criminal proceedings are concluded, she may have no assets to contribute. All the while, the plaintiffs' costs are increasing and the overall cost to the State of resolving these claims increases.

34. Option 2 is for the State to settle with the plaintiffs, but to maintain the cross-claims against Ms Lam. The cross-claims would in effect be stayed pending resolution of Ms Lam's criminal proceedings. If Ms Lam is convicted, the State could then try to negotiate some recovery from Ms Lam, or have those cross-claims determined at trial - assuming she has any residual assets. The upside is that if Ms Lam is convicted and has residual assets, the State does not end up bearing the entire financial consequence of her crimes. The downside is that the State continues to incur costs of the proceedings going forward, without any confidence that it will ultimately recover a contribution from Ms Lam. Also, to pursue its cross-claims to trial if Ms Lam continues to deny the abuse occurred, the State would need the assistance of each plaintiff to give evidence to prove. That is so even if she is convicted, should she maintain her denial in the civil proceedings. The plaintiffs may not be willing to offer that support as part of the terms of settlement.

35. Option 3 is for the State to settle with the plaintiffs and Ms Lam, on the basis that Ms Lam makes little or no contribution to the settlement. The proceedings end and no further costs are incurred.

36. The choice between option 2 and option 3 turns in part on the extent of Ms Lam's assets and whether they are likely to be eroded by legal costs in her criminal proceedings. At mediation she may be willing to reveal verifiable details of her asset position on request, but has no obligation to do so. To the extent that further searches can be done about her asset position in advance of mediation, they should be carried out. I understand that real property and registered personal property searches have already been conducted. An ASIC search of directorships may also be worthwhile.”

371. Mr Chiu’s recommendations for settlement were as follows with respect to each of the plaintiffs:

Memorandum of Advice on Damages – IZG2

“Summary of Assessment

40. In summary, my assessment of damages (at full value, before any discounts) is as follows:

• NELs $375,500 - $433,000

• Past OPs $5,000

• Future OPs $20,000 - $25,000

• Economic loss $945,000 - $1,045,000

41. This gives a total of about $1,345,500 - $1,508,000 in damages, with a midrange of about $1,425,000.

Recommendations

42. As discussed in my advice on liability, I suggest a discount of 60% to reflect the fact that not all of the abuse is attributable to the State's alleged negligence. Applying that 60% discount to $1,425,000 gives an indicative settlement amount of $570,000 plus costs as agreed or assesse****d.”

Memorandum of Advice on Damages – AXJ2

“Summary of Assessment

33. In summary, my assessment of damages (at full value, before any discounts) is as follows:

• NELs $289,000 - $346,500

• Past OPs Nil

• Future OPs $15,000 - $20,000

• Economic Loss $100,000 - $150,000

34. This gives a total of about $404,000 - $516,500 in damages, with a midrange of about $460,000.

Recommendations

35. As discussed in my advice on liability, I suggest a discount of 60% to reflect the fact that not all of the abuse is attributable to the State's alleged negligence. Applying that 60% discount to $460,000 gives an indicative settlement amount of $185,000 plus costs as agreed or assesse****d.”

Memorandum of Advice on Damages – KWM2

“Summary of Assessment

23. In summary, my assessment of damages (at full value, before any discounts) is as follows:

• NELs $289,000 - $361,000

• Past OPs $5,000

• Future OPs $25,000 - $30,000

• Economic Loss $100,000 buffer

24. This gives a total of $419,000 - $496,000 in damages, with a midrange of about $460,000.

Recommendations

25. As discussed in my advice on liability, l suggest a discount of 25% to reflect the fact that not all of the abuse is attributable to the State's alleged negligence. Applying that 25% discount to $460,000 gives an indicative settlement amount of $345,000 plus costs as agreed or assessed.”

Memorandum of Advice on Damages – BJS2

“Summary of Assessment

26. In summary, my assessment of damages (at full value, before any discounts) is as follows:

• NELs $274,500 - $310,500

• Past OPs Nil

• Future OPs $10,000 - $15,000

• Economic Loss $75,000 - $100,000 buffer

27. This gives a total of about $360,000 - $425,000 in damages, with a midrange of about $395,000.

Recommendations

28. As discussed in my advice on liability, I suggest a discount of 40% to reflect the fact that not all of the abuse is attributable to the State's alleged negligence. Applying that 40% discount to $395,000 gives an indicative settlement amount of $240,000 plus costs as agreed or assessed.”

372. Mr Chiu’s advices on the damages aspect of the plaintiffs’ claims were equally thorough. Although they quite properly do not contain what purports to be a complete encapsulation of the nature and extent of the loss and damage that each plaintiff claimed in his proceedings against the State, Mr Chiu’s summaries are a fair representation of the information relating to an assessment of the value of the claims in the possession of the State’s legal advisers when the decisions to compromise them were being considered. Mr Chiu’s four advices on damages are incorporated by reference in these reasons and are to be found in Volume 5 of the Court Book between pages 2334 and 2363.

373. The evidence before me also includes extensive documentation concerning further advice given to the State by Mr Lloyd. That advice included an anticipation that the settlements with IZG2 and AXJ2 may be subject to the added difficulty that the brothers’ offers were tied to each other in what Mr Lloyd described as a package deal. That may very well explain why the amount paid to AXJ2 was considerably in excess of Mr Chiu’s recommendation. In addition, Mr Lloyd expressed the view that there was “not an unreal prospect” that AXJ2 could recover a sum in the order of Mr Chiu’s high point of $516,000 before a discount.

374. In the final analysis it is pellucidly clear that the State sought and received detailed, well-reasoned and clear advice from at least two members of the inner bar on the settlement of the litigation brought by the plaintiffs. Those advices analysed liability and quantum arguments at some length. Mr Chiu referred comprehensively to the medical and other evidence in support of the plaintiffs’ respective quantum claims. The settlement amounts ultimately paid to KWM2 and BJS2 were effectively in accordance with counsel’s recommendations. There is no suggestion that the State sacrificed Ms Lam’s interests in the sense that it approached the settlements with those plaintiffs upon the basis that it could recover the damages paid to them from her in any event.

375. I am however not similarly satisfied that the settlements agreed with IZG2 and AXJ2 were reasonable. In the same way that I have implicitly accepted the appropriateness of compromising the claims upon the basis of detailed advices on settlement from experienced senior counsel, it is apparent that in the case of IZG2 and AXJ2, that advice was not, or would to me appear not to have been, followed. Allowing for the fact that Mr Chiu’s recommendations were for settlements on a plus costs basis, the amounts of the settlements with those plaintiffs were respectively $405,000 and $490,000 in excess of the pre-costs sums that he recommended. I have not been provided with any material from which I could reliably calculate what in the circumstances of these two plaintiffs a reasonable sum for costs would have been. On the uninstructed assumption that a reasonable allowance for the costs of each plaintiff would have been $150,000, the settlement sum in the case of IZG2 was $255,000 more than I consider to have been reasonable and in the case of AXJ2 was $340,000 more than I consider to have been reasonable.

ISSUE 5: How should liability between the State and Ms Lam be apportioned?

The State’s submissions

379. The principles applicable to the apportionment of liability between tortfeasors are well established and have been addressed in a number of cases. Section 5(2) empowers the Court to apportion the contribution recoverable in an amount that “may be found by the court to be just and equitable having regard to the extent of that person’s responsibility for the damage”. That test requires the Court to compare the degree of departure from the standard of care of the reasonable person and the relative importance of the acts of the parties in causing the damage: Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529 at 532; [1985] HCA 34.

380. A key consideration for the Court in apportioning liability will be the degree of departure by Ms Lam and the State respectively from the duties they owed to the plaintiffs.

381. The State necessarily conceded that it departed from the duty of care it owed to the plaintiffs in five separate ways and that those departures materially contributed to the harm suffered by them. However, the State submitted by way of comparison to the degree of departure by Ms Lam from the standard of care required and the contribution that her failure made to the harm suffered by the plaintiffs, that I should conclude that the overwhelming causal contribution to the harm were the breaches by Ms Lam.

Ms Lam’s submissions

382. Mr Toomey offered the following succinct contentions:

“TOOMEY: In coming to a view about apportionment, your Honour has to take into account, first, the degree of departure from the standard of reasonableness, the relative degree of departure. Secondly the relative causal potency of the said departure by each part, that is the school on the one hand and by Mrs Lam on the other. We only wish to say this about that exercise; if your Honour were to accept the State's case in its entirety, your Honour would have found that, despite repeated complaints to the Principal of the school, that that Principal completely refused to do anything about it, or at least failed to do anything about it. That, on any view, would be a radical departure from the standard of reasonable care, whether in 1978 or in 2025.

So, in those circumstances you would have to give very considerable weight to the institutional authority over the acts of the individual teacher and when it comes to the question of causal potency, and again I say this proceeds on the basis that your Honour would have found against us on all points that the State brings against us, but if your Honour were, it is the State's case that the school could have prevented. So the causal potency must all be significant.

In our submission your Honour would have to find, having gone through that waiting exercise, at least 50 percent liability on the part of the State.”

Consideration

383. In calculating the amount of the contribution recoverable from any person under the Act, s 5(2) commands attention to such amount “as may be found by the court to be just and equitable having regard to the extent of that person's responsibility for the damage”. This test is reflected in Mr Toomey’s references to causal potency. Much like the assessment of contributory negligence, assessment of what is just and equitable is an evaluative task calling for the exercise of judicial discretion in which minds may legitimately differ without error, subject to the accepted constraints and limitations of House v The King.

384. I have concluded that Mr Addinall either ignored complaints made to him by KGM2, or IZG2 and AXJ2, or both. Alternatively, which may amount in practical terms to the same thing, Mr Addinall did not ignore the complaints but investigated them carelessly or did not take steps that would or should have led to Ms Lam’s dismissal.

385. The evidence about Mr Addinall’s responses to receiving the two reports of potential abuse are curiously similar. Mr Addinall told KGM2 that things may not have been as they appeared: “I don’t think the situation is what you think it is, but you leave it with me”. It is difficult to know from KGM2’s evidence if that is all Mr Addinall said to her, or whether it is a summary some 40 years later of the effect of his response. It was certainly peremptory and dismissive, there being no evidence that Mr Addinall engaged KGM2 in a conversation in order to elicit more details.

386. Mr Addinall’s response to IZG2 and AXJ2 was similarly peremptory, if even more dismissive. That may well have been a function of the authority he had and the juniority of the boys. Mr Addinall did not suggest by his response that he gave any credence to their report, even though he had reason to listen in light of the earlier report from KGM2. The feeling I get from the evidence is that the report that Ms Lam “was having sex with students” greatly annoyed him.

387. On any view of the matter, Mr Addinall’s response, or lack of it, represented an egregious failure of proper procedure and good governance. It cannot be denied that what was being reported to him was potentially the report of a criminal offence. It could not and should not on any reasonably available view have been ignored. Ms Lam’s dismissal, which I take to be the inevitable outcome if the reports were verified, would have prevented all of the abuse that postdated KGM2’s report, even without the later report from the brothers.

388. In that sense, Mr Addinall’s failings, in his capacity as the personification of the school, permitted or enabled Ms Lam’s behaviour to occur or at least to continue. The obverse is not true: nothing done by Ms Lam contributed to or exacerbated the fact of Mr Addinall’s anterior failure to take action on two separate occasions that would have each occluded her subsequent opportunities.

orders

391. In these circumstances, having regard to my conclusions and findings with respect to whether Ms Lam ought to have known of the risk of harm to the plaintiffs in 1978 or 1979, the following orders should be made in each proceeding:

392. Judgment for the cross-defendant on the cross-claim.

393. Order the cross-claimant to pay the cross-defendant’s costs.

*************