Damages - Generally - Exemplary, punitive, aggravated and like damages - Exemplary damages - Action for damages for sexual abuse - Where defendant had been substantially punished in criminal proceedings - Discretion to award exemplary damages in an unusual case - Defendant's conduct after abuse ended and of civil proceedings justified an award of exemplary damages.

Gray v Motor Accident Commission [1998] HCA 70, 196 CLR 1, considered.

Cheng v Farjudi [2016] NSWCA 316, 93 NSWLR 95, followed.

Damages - Assessment of damages in tort - Generally - Limits on recovery of damages - Causation - Other cases and matters - Action for damages for sexual abuse when a high school student - Claim for loss of earning capacity where plaintiff chose less rewarding career than would otherwise have been available - Opted for teaching role motivated by desire to protect children - Decision not directly attributable to later diagnosed PTSD but where developing psychological symptoms present - Chain of causation unbroken - Claim allowed.

Medlin v State Government Insurance Commission [1995] HCA 5, 182 CLR 1; Hirst v Nominal Defendant [2005] QCA 65, 2 Qd R 133, applied.

Damages - Assessment of damages in tort - Personal injury - Other heads of damages - Gratuitous care - Civil liability legislation modifications - Civil Liability Act 2002 allowed damages for gratuitous services subject to a threshold - Where previous legislation prevented award if the plaintiff had not paid or was not liable to pay for services - Previous legislation repealed - Effect of repeal on claim where Civil Liability Act did not apply to plaintiff's action - Plaintiff entitled to award.

Damages - Particular awards of general damages - Tasmania - Sexual abuse of female high school student by teacher over a period of about 18 months - Emotional and psychological harm including complex PTSD - Award of $275,000 including aggravated damages.

Statutes - Acts of Parliament - Repeal - Effect - Revival of common law - Legislative provision prevented an award of damages for gratuitous services where plaintiff had not paid or was not liable to pay for such services - Where that provision repealed by amendment to Civil Liability Act 2002 which allowed damages for gratuitous services subject to a threshold - Effect of repeal on claim where Civil Liability Act did not apply to plaintiff's action - Right to damages for gratuitous services at common law revived.

Civil Liability Act 2002, s 28B

Acts Interpretation Act 1931, ss 4(1), 16(1_)_

Majeau Carrying Co Pty Ltd v Coastal Rutile Ltd (1973) 129 CLR 48; R v Gallagher (1986) 41 SASR 73, considered.

State of Tasmania: Office of the Solicitor-General

Judgment Number: [2024] TASSC 30

KATRINA FAYE MUNTING v MARCUS POLLARD and THE STATE OF TASMANIA

1. This is an action for damages for personal injuries. The plaintiff, Katrina Munting (then Katrina Bolton), was a student at Rose Bay High School (the School) from 1996 to December 1999. The School is a State run secondary institution. The first defendant, Marcus Pollard (Pollard) was employed as a teacher by the third defendant, the State of Tasmania, through the auspices of the Education Department.
2. The plaintiff sues the first defendant for damages for intentional torts of battery, and both defendants in negligence. The causes of action are said to arise from the sexual abuse of the plaintiff by Pollard from mid-1998 until about August 1999. The writ was issued on 11 November 2021, but s 5B of the Limitation Act 1974, which commenced on 1 July 2018, enables actions for damages for personal injury to a person arising from or related to the sexual abuse of the person when the person was a minor, to be brought at any time irrespective of when the cause of action accrued.
3. Shortly before the trial was due to start, Pollard filed a notice of party acting in person, having up until then been represented by a firm of solicitors. The notice was accompanied by a message that he did not want to participate in the trial. When the action was called on for hearing, he was called but did not appear. Rodney Radford, the School principal at the relevant time, was named as the second defendant in the action, but on the morning the trial started the plaintiff successfully sought leave to discontinue the action against him. He remains a person of critical interest in the proceedings.
4. The claim against Pollard is for compensatory damages including aggravated damages, and for exemplary damages. The State concedes and accepts that it is vicariously liable for Pollard's tortious conduct. On that basis, the State is jointly liable for the compensatory and aggravated damages, but not for any award of exemplary damages based on Pollard's conduct.
5. There is a further pleaded basis of the State's liability; that is, apart from its vicarious liability for Pollards conduct. In that regard, there is an issue about the pleadings and about how the plaintiff's case was ultimately framed. Irrespective of the basis of any further liability, for reasons I will later explain, it will only give rise to an additional liability for aggravated damages not based on Pollard's conduct. The plaintiff does not claim exemplary damages from the State. The issue of the State's further liability also arises in the context of a notice of contribution served by the State on Pollard.

1. The plaintiff's evidence satisfies me of the following. She was in grade nine when the abuse began. Pollard was in his early 40's while the plaintiff was 14 years old at the beginning; her date of birth is 21 July 1983. She was an excellent student academically, and actively involved in many aspects of student life. Pollard first had contact with the plaintiff during grade nine. She had a particular interest in science, a subject that he taught. They began to have increased contact in relation to two science courses in particular. With one, she required extra help which Pollard provided. During this time, they were in close physical proximity and he would intermittently rest his arm against hers.
2. The plaintiff was suffering from significant acne and the medication she used would cause significant side effects, including nausea. On occasions she would need to leave the class and go to the "home room". That room also served as a teachers' office that was shared by Pollard. On occasions, Pollard would be in the office when she went in, and they would discuss her future and her anxieties about maintaining her high level of academic prowess. On one occasion, Pollard began massaging her shoulders and then on a subsequent occasion, as she went to leave, he kissed her on the lips. This was early in 1998.
3. After that incident of kissing, Pollard and the plaintiff continued to meet up and talk; sometimes they would talk over the telephone. Often they would meet in the school photography dark room and the frequency of those meetings increased two or three times a week. During these meetings, each of about 30 minutes in length - they would hold each other and kiss. Pollard touched the plaintiff over her clothing on various parts of her body including her legs, thighs, buttocks and breasts. Later during these meetings, Pollard touched her under her bra and later again, went on to touch her genitalia and on occasions, penetrated her vagina with his finger.
4. Later in 1998, in about September, both the plaintiff and Pollard went on a school camping trip to Maria Island. During this trip, the plaintiff got up during the night and went to Pollard's tent. They kissed and cuddled for a period before the plaintiff left and went back to her own tent. During the summer holidays of that year, the end of 1998 into 1999, the plaintiff and Pollard arranged to meet at the school. He then drove her to his home at an outer beach suburb, having picked her up near the school and instructed her to lay on the floor in the back of the car to avoid detection. At his home, they went to the bedroom where various acts of sexual abuse occurred, including him touching her vagina and genitalia before penetrating her vagina with his fingers. After an hour or so he drove her back to school.
5. This pattern of behaviour continued until some point during late August 1999. The plaintiff says that during a class another of the plaintiff's teachers at the School, Mr Greg Sawyer, "confronted" her about her contact with Pollard. It is described in the pleadings and argument as the "rebuke". (I will continue to call it that, although it may be an overstatement.) There is a dispute about the fact of this and I will return to the issue. For present purposes, it need only be noted that it was shortly after this that the plaintiff ended all unnecessary contact with Pollard despite his subsequent attempts to pursue her. Questions arise about what was known or ought to have been known at that time, at least by Mr Radford. The plaintiff left the School at the end of 1999.
6. In circumstances to which I need to return, on any view of things in February 2000 the abuse was specifically brought to Mr Radford's attention and then to the attention of senior management of the Department. Shortly after, Pollard was effectively suspended and he resigned from the Department on 17 April 2000. Tasmania Police was not then notified and no complaint was made to police until November 2018, when the plaintiff made a statement and an investigation was commenced. Pollard was charged with one count of persistent sexual abuse of a young person. He pleaded guilty but disputed the facts. On 27 October 2020, after a hearing at which the plaintiff gave evidence, Blow CJ found all the alleged facts made out, and sentenced Pollard to three years' imprisonment with parole eligibility of one half.

1. While the plaintiff alleges "sexual assaults and battery" all of the particularly relevant conduct involves instances of the tort of battery. In his defence, Pollard admits some physical contact which amounted to batteries but denies the entirety of the allegations. I am satisfied by the plaintiff's evidence that the particulars of sexual assaults and battery as alleged against Pollard in par 12 of the further amended statement of claim dated 20 March 2023 (the statement of claim) are made out. Those particulars encapsulate the facts set out above.
2. The plaintiff has also pleaded a duty on the part of Pollard to take reasonable care for her safety, with particular obligations to refrain from physical contact and sexual conduct, said to arise by virtue of that duty. Pollard has admitted a bare duty of care based on the teacher/student relationship, and that his admitted conduct was in breach of that duty. However, the State accepts that all of the alleged conduct said to amount to assaults and battery of the plaintiff occurred and constitutes a breach of Pollard's duty. I find that Pollard breached the admitted duty on the basis of those facts as I have outlined them.
3. The plaintiff also alleges a breach of the duty by engaging in "grooming" the plaintiff to facilitate his sexual misconduct. Pollard pleads a denial. The particulars of grooming allege that Pollard:
   • arranged clandestine meetings, including in the School's photography dark room,
   • invited and encouraged the plaintiff to contact him, including by telephone, by telling her as he passed her on the School premises, to call him that night or to ring him,
   • communicated with the plaintiff in secret by telephone calls with her,
   • paid special attention to the plaintiff and making her the object of his attention and affection,
   • shared secrets with the plaintiff.
4. As is acknowledged in the pleading, these things seem to be more conduct directly associated with or facilitative of the sexual misconduct itself, rather than "grooming" in the sense that the word has acquired; that is conduct preparatory for sexual abuse. In any event, I would accept that the content of the basic duty would extend to refraining from such conduct. I find those particulars made out as facts and I find that Pollard also breached his duty of care by virtue of those matters. The State did not argue the contrary.
5. Additionally, the plaintiff alleges that Pollard engaged in "retributive and vengeful behaviour" towards her after she put to an end to the unlawful relationship. Pollard has denied both the content of the basic duty in relation to such conduct, and the pleaded facts. This behaviour is particularised as involving "passive aggression" towards her, including making disparaging comments to her, making snide comments about her to other staff within her hearing, "scoffing" at her as he walked past and throwing small objects in her direction in the classroom. The plaintiff's evidence satisfies me that these things occurred, although the extent of any particular form of such behaviour, or the overall extent, was not addressed in evidence.
6. There are also two further particulars of this behaviour; namely that at the end of 1999, Pollard both marked down his assessment of the plaintiff's attitude in the science class he taught, and marked her down in his assessment of her level of achievement in Organic Chemistry. As I understand it, the State accepts the facts of these matters but argues that the conduct does not amount to a breach of Pollard's duty of care. Senior counsel for the plaintiff described those two particulars as "inconsequential" but as they were not abandoned I should deal with them.
7. First, in relation to the mark as to "attitude", the evidence establishes that this related to the report in July 1999 at which time, the plaintiff confirmed the abuse was ongoing. It follows that it is not made out as a particular of retributive and vengeful behaviour. Second, in relation to the "mark down" in the level of achievement in Organic Chemistry, the evidence of the plaintiff was that she received a rating "Satisfactory" in the subject. I infer I am being asked to draw the inference that due to her other higher ratings, this was a "mark down".
8. In any event, the plaintiff acknowledged in cross-examination that she, among a number of other students, refused to submit a final assessment task for the year, despite a warning from Pollard to the whole class that if it was not submitted, they would fail. She, along with others, did not submit the task. Although the plaintiff seemed reluctant to acknowledge that the overall result was not surprising in light of this failure, I am not satisfied that it is properly characterised as retributive and vengeful behaviour on the part of Pollard.
9. I find that Pollard breached his duty of care by engaging in retributive and vengeful behaviour following the end of the sexual misconduct as alleged, apart from those two particulars I have discussed.
10. The cause of action is complete in relation to the intentional torts and I find that harm was caused by Pollard's breaches of duty. Accordingly, the plaintiff is entitled to an award of damages as against him. As I have noted, there is a claim against him for compensatory damages including aggravated damages, and exemplary damages. It follows that, in light of the unequivocal position of the State as to its vicarious liability, the plaintiff is entitled to an award of damages against it.[1] But that will not include exemplary damages based on Pollard's conduct.

1. As noted, the plaintiff maintains a case against the State in relation to a liability separate from its liability for Pollard's conduct. It is important to note that the position finally adopted by the plaintiff is that any liability in the State beyond that for Pollard's conduct, however that liability might arise, would only be for aggravated damages. That is because the plaintiff alleges that the State is liable - one way or another - by way of a making a material contribution to harm suffered, primarily economic loss, for which Pollard would also be liable. The State would be already liable for damages for that harm by virtue of its vicarious liability. However, such a further liability may also affect the State's claim for indemnity against Pollard.
2. In terms of the separate case against the State, I need to discuss the pleadings. Regrettably, this discussion has to be of some length given the way in which the case evolved. I need to determine, as a preliminary point, the question of how the plaintiff's case should be approached.
3. First, by way of further background, the evidence is that after the rebuke, any question of Pollard's misconduct was not raised, by anyone, in any relevant way, until February 2000. There is a factual dispute of some proportions about what then happened. Danny Munting, the plaintiff's now husband and then boyfriend, gave evidence that after he had been told the events by the plaintiff, he went to the School alone and spoke to Mr Radford. Mr Radford's evidence, for which there are some corroboration, was that both the plaintiff and Danny Munting came to see him. There is a dispute about whether or not Mr Radford made any reference, direct or oblique, to the rebuke.
4. As to the pleadings, I note that the final version of the statement of claim was drafted in contemplation of the discontinuance against Mr Radford. Much of the pleading that directly concerned him was removed, including the prayer for relief seeking damages, aggravated damages and exemplary damages. The amendments were formally made on the morning the trial commenced. The State was given leave to amend its defence in accordance with a document that was handed up.[2]
5. In examining the statement of claim, in some respects it is necessary to work backwards. The critical pleadings are contained in pars 41 and 43. Paragraph 41 states that the plaintiff brings the action against the State pursuant to the Crown Proceedings Act 1993 "in respect of the acts, omissions and conduct of [its] officers, employees and agents." (Paragraph 42 is the pleading which deals with the State's asserted liability "for the acts of" Pollard.) Paragraph 43 alleges that the State "is liable in negligence and/or breach of duty for the acts of Radford as alleged in par [38] hereof in circumstances where he was an employee of the third defendant with statutory responsibility for staff and students of the school". [My emphasis]
6. The source and content of the duty allegedly owed by Mr Radford is contained in par 33. That alleges that by reason of the duties imposed on Radford by the Education Act 1994, he was obliged when he became aware, or ought to have become aware, "of an inappropriate or unlawful relationship between the plaintiff and Pollard" he was obliged to do certain things. Those things were, to:

(b) Report [Pollard] to the police and to the Secretary of the Department of Education;

(c) Ensure, if the plaintiff was to be spoken to by a school staff member ... , it would be done with care and sensitivity;

(d) Inform the plaintiff's parents of the relationship... ;

(e) Immediately suspend [Pollard] from teaching at the school;

(f) ... ensure the plaintiff was protected from acts of victimisation and revenge by [Pollard];

(h) Ensure that [Pollard], if he was permitted to remain at the school as a teacher, did not teach the plaintiff or have any contact with her."

1. As amended shortly after the trial ended, par 38 alleged that Mr Radford breached his duty to the plaintiff before about July/August 1999 and to February 2000 in the following ways:[3]

"(a) Failing to prevent the first defendant's grooming of the plaintiff;

(b) Failing to take reasonable steps to prevent the sexual assault and battery of the plaintiff...;

(c) Failing to supervise or adequately supervise the first defendant;

(d) Failing to supervise or adequately supervise the plaintiff;

(e) Failing to have any system in place or an adequate system in place for students or staff to complain about perceived or actual misconduct, including sexual assault and/or grooming of students by teachers at the school;

(f) Failing to take appropriate steps to investigate, or adequately investigate, the activities of the first defendant when they came to Radford's attention;

(g) Failing to refer the first defendant's conduct to the police and to the Minister for Education and to the Secretary of the Department of Education for review of his Tasmanian Teacher's Certificate; and

(h) Failing to put in place any measures or any appropriate measures for the supervision of the plaintiff whilst attending a school camp."

1. As can be seen, there is a lack of correlation between the alleged particulars of Radford's "obligation" arising from his duties imposed by the Education Act as set out in par 33 of the statement of claim, and the ways in which he has said to have breached that "duty" as set out in par 38. Some aspects are alleged but not said to have been breached, and the converse exists. Five pleaded aspects of the obligation are not said to have been breached or not complied with, while six alleged failures or omissions relate to unpleaded aspects of the obligation.

1. I need to outline how the plaintiff's case against the State, otherwise than in relation to its vicarious liability for Pollard's conduct, was developed. In addressing the amendments to the statement of claim, senior counsel for the plaintiff, Mr Read SC, said the effect was to remove Radford as a defendant, but to retain the vicarious liability against the State in respect of Mr Radford's conduct. Before dealing with the application to amend the State's defence senior counsel for the State, Ms Cuthbertson SC, sought clarification about the intent of par 43 of the statement of claim, noting it was said to be a pleading of vicarious liability, but that it could be interpreted as one of the State's direct liability.
2. In response, Mr Read said the pleading was that the State was liable for the acts of Radford; adding "whether that is a direct liability or vicarious liability it really does not matter. There is a liability". Very shortly after those exchanges, in opening the plaintiff's case Mr Read said the plaintiff alleges "that the State is not only vicariously liable for Pollard's actions but is also liable by reason of the negligence of its former employees, Sawyer and Radford." At this stage, I need to say something about Mr Sawyer. Paragraph 3 of the statement of claim asserts that at all material times Greg Sawyer was a teacher employed at the School. By way of pars 19 and 20 it is alleged that in about late August 1999 he "confronted the plaintiff during a class and rebuked her for what he described as the amount of time she was spending with [Pollard]."
3. The rebuke is alleged to have significantly distressed the plaintiff and she ran out of the class in tears: par 21. However, as is evident, there is no pleading that Mr Sawyer breached any duty of care owed to the plaintiff, and no pleading that the State is vicariously liable for any breach on his part. The State admits the employment of Mr Sawyer but "does not admit" pars 19 and 20. It is common ground that Mr Sawyer has since died, although I was not told when that happened.
4. Reverting to the pleadings, the next relevant event in the trial is that in the State's reply to the plaintiff's opening, Ms Cuthbertson again raised the question of the ambiguity of the pleading in terms of a direct liability. She noted the suggestion in the plaintiff's opening that the liability was "akin to a vicarious liability pleading in respect of Mr Radford, [with] no mention of Mr Sawyer." Ms Cuthbertson said it was Mr Radford who was the person referred to in the plaintiff's pleadings as having breached his duty of care.
5. At that point it seemed tolerably clear that the plaintiff's case against the State was first, one of vicarious liability for Pollard's tortious conduct, and second - leaving aside the late oral inclusion of Mr Sawyer - one of vicarious liability for Mr Radford's negligence. That is to say, in all respects the State's liability seemed to be put as a "true vicarious liability", as discussed and explained by Edelman and Steward JJ in CCIG Investments Pty Ltd v Schokman [2023] HCA 21, 97 ALJR 551 at [59]- [69]. Such a liability involves attributed liability for a breach of duty resting on another and broken by that other.[4]

1. The State was first to make closing submissions. It was here that a reference to the State's non-delegable duty as a school authority first emerged. Although accepting the existence of such a duty, counsel re-asserted that the plaintiff's case was ostensibly one of liability for Mr Radford's "failures to act".
2. Notwithstanding all that had gone before, in closing submissions the plaintiff squarely put that the State had breached its non-delegable duty of care, and noted the distinction between a vicarious liability and the breach of such a duty. Mr Dockray referred to what Gleeson CJ said in New South Wales v Lepore [2003] HCA 4, 212 CLR 511 at [2]. There, his Honour referred to the legal responsibilities of a school authority as including a duty to take reasonable care for the safety of pupils; noting there may be cases in which sexual abuse is related to a failure to take such care. His Honour proceeded to give instances in which that might be the case. This type of duty of care is explained in CCIG Investments (above) at [70]-[81].
3. It seems to have been assumed that the pleadings contained in pars 30, 32, 33, 38 and 43 of the statement of claim were sufficient to support a case on that basis. The alteration, or at least the expansion, to a breach of the State's non-delegable duty was accompanied by an expansion of the identified people said to have been involved in such a breach. In this respect, the breach was said to arise from the omissions and failures following Mr Sawyer's rebuke, "but more particularly following the disclosure by Danny Munting of the abuse to Mr Radford in February 2000."
4. In terms of relevant evidence, as earlier noted, the plaintiff gave evidence about the rebuke. Danny Munting gave evidence about conversations he had both with Mr Radford in February 2000 and, a short time later, with Mr Radford and Keith Scott, the Department's "Grievances and Investigations Officer". The State called Mr Radford to give evidence, along with the School's assistant principal at the time, Ian Smith, and Elizabeth Preece, then an administration officer at the School.
5. In closing, the breach of the State's duty was said to fall into two parts. The first is that the State, through Mr Radford and others, failed to act when it knew or ought to have known that Pollard's suspicious conduct was suggestive of an inappropriate relationship, at which time Mr Radford, Mr Smith, Mr Sawyer and Ms Devitt "had obligations, which they failed to comply with, under the Maltreatment Procedures. "Maltreatment Procedures" is a short-hand reference to a document entitled "Procedures Regarding the Alleged Maltreatment of Students by Employees of the Department of Education and the Arts" - March 1996. I will refer to them as "the Procedures".
6. The plaintiff argued that the facts that relate to the "first part" of the State's breach of its duty of care include:
   • Radford, Smith, Sawyer and Devitt, or some of them, knew or ought to have known that the relationship between Pollard and the plaintiff was suspicious.
   • Mr Sawyer's actions in relation to the rebuke was inadequate and insensitive, and not in compliance with the "clear guidelines" set out in the Procedures.
   • Notwithstanding that Mr Radford was aware, or should have been aware, of the "inappropriate relationship" the plaintiff was put in Pollard's science class in term three of 1999, without any further or adequate investigation.
7. The second part of the alleged duty is that once formal disclosure occurred in February 2000, Mr Radford had obligations under the Child Protection Act 1974 and the Procedures, as did Keith Scott and the Department Secretary, Dr Martyn Forrest. In response, the State pointed out that the conduct of those two was not the subject of any pleading, nor were alleged breaches of the Child Protection Act.
8. It is also worth tracing the pursuit of the claim for aggravated damages against the State. Such demands are claimed in the present statement of claim - as they were in the previous version dated 22 November 2021 - although the particulars of claim dated 5 September 2022 are silent on the issue, at least as against the State[5]. In closing submissions, the plaintiff articulated a claim for aggravated damages against the State. This claim was based on the conduct of Messrs Radford, Smith and Sawyer and Ms Devitt which was argued as giving rise to a breach on the part of the State. It also extended to the conduct of Mr Scott and Dr Forrest and in fact goes far beyond that to 2019.
9. What is said to have occurred at that time to give rise to aggravated damages is "the treatment of [the plaintiff]...when she wrote on at least seven occasions between 25 March 2019 and 30 June 2019 to the then Minister for Education, the Hon Jeremy Rockliff, requesting a meeting to discuss what happened to her" and she did not receive any response. That correspondence was contained in an agreed bundle of documents tendered without formal proof.
10. At the commencement of the plaintiff's closing, Mr Dockray sought an amendment to par 38 by inserting the words "and to February - March 2000" after "July - August 1999". I ultimately allowed that amendment but the point is that the plaintiff did not seek any other amendments, even in the face of the State's submissions on the pleadings issue.
11. After closing submissions, I reserved both the question of the amendment and judgment generally. About two weeks later, I reconvened the court and allowed the amendment. When the parties were notified of the date for that to occur, I invited further submissions on some questions concerning pars 33 and 38 of the statement of claim; in particular, how the duties pleaded in par 33 was said to arise by virtue of the Education Act 1994, and how the breaches alleged in par 38 correlated to the plea of duties, bearing in mind the plaintiff's argument about the two aspects of the duty referred to above.
12. After I had ruled on the amendment, counsel made further submissions. In the course of dealing with the Education Act point, Mr Dockray submitted that were I not to be satisfied that Mr Radford knew or ought to have known of the situation giving rise to a risk of harm, the breach could still be made out on the basis of a failure "by the School" during 1999. That involved actual or imputed knowledge by others within the school. (In the course of these submissions, counsel abandoned reliance on the Child Protection Act.) In response, the State submitted that the plaintiff's case, as pleaded, rested only on Mr Radford's actual or imputed knowledge and his conduct.
13. Because of additional questions I raised about some issues of causation, the parties were given leave to file further written submissions. In her submissions the plaintiff put an argument under the heading "the State's Direct Liability". The submissions contain reference to both Mr Radford and "the upper echelons of the Department". I do not need to set out the detail.
14. The State's further submissions contain the following:

"[A] from the Third Defendants vicarious liability for Pollard's tortious conduct, its liability has been confined by the Plaintiff to its derivative liability for the conduct of Mr Radford only. Alleged failures by others in the employ of the Third Defendant or acting on its behalf or not pleaded as a basis for the Third Defendant's liability..."

1. That is where the argument rests. The plaintiff did not respond in any way to this plain repudiation of the plaintiff's venture into the area of "direct liability", that being the type of liability referred to in New South Wales v Lepore (above) and explained in CCIG Investments (above). The plaintiff has not made any further application to amend the pleadings. It is in that environment that any further liability of the State has to be determined.

1. It is trite law that pleadings are not an exercise in themselves, but a means to the ultimate attainment of justice between the parties: see for instance Banque Commerciale SA (In Liq) v Akhil Holdings Ltd (1990) 169 CLR 279 at 286-287, 293. In Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd [2008] NSWCA 206, 73 NSWLR 653, Ipp JA discussed a number of relevant authorities including Gould v Mount Oxide Mines Ltd (In Liq) [1916] HCA 81; (1916) 22 CLR 490 at 517, Banque Commerciale SA (above), Dare v Pulham (1982) 148 CLR 658 at 664 and White v Overland [2001] FCA 1333 per Allsop J at [4]. At [424] his Honour said:

"The following propositions may be extracted from these authorities:

(a) The rule that, in general, relief is confined to that available on the pleadings secures a party's right to a basic requirement of procedural fairness.

(b) Apart from cases where the parties choose to disregard the pleadings and to fight the case on additional issues chosen at the trial, the relief that may be granted to a party must be founded on the pleadings.

(c) It may be that, in a clear case, mere acquiescence by one party in a course adopted by the other will be sufficient to ground an inference that the parties have chosen a different basis to the pleaded issues for the determination of their respective rights and liabilities

(d) Acquiescence giving rise to a departure from the pleadings may arise from a failure to object to evidence that raises fresh issues - it is in this sense that "cases are determined on the evidence, not the pleadings".

(e) While cases are to be decided upon a basis that embraces the "real controversy" between the parties, the real controversy has to be determined in accordance with the principles stated."

1. More recently, the Full Court of the Federal Court in Thomson v STX Pan Ocean Co Ltd [2012] FCAFC 15 at [13], said (omitting some references):

"It is well-established that the main purposes of pleadings are to give notice to the other party of the case it has to meet, to avoid surprise to that party, to define the issues at trial, to thereby allow only relevant evidence to be admitted at trial and for the trial to be conducted efficiently within permissible bounds. However, it is also well-established that pleadings are not an end in themselves, instead they are a means to the ultimate attainment of justice between the parties to litigation. For these reasons, the courts do not, at least in the current era, take an unduly technical or restrictive approach to pleadings such that, among other things, a party is strictly bound to the literal meaning of the case it has pleaded. The introduction of case management has, in part, been responsible for this change in approach. Even before the widespread use of case management, the High Court reflected this approach in decisions such as Leotta v Public Transport Commission (NSW) (1976) 50 ALJR 666 (at 668-669) per Stephen, Mason and Jacobs JJ and Water Board v Moustakas (1988) 180 CLR 491 (at 497) per Mason CJ and Wilson, Brennan and Dawson JJ."

1. I consider it abundantly plain from the pleadings that the case alleged is one relating to the negligence of Radford for which the State is vicariously liable. There is no pleading at that raises the State's non-delegable duty as a school authority through the agency of the Education Department, or otherwise. As I have demonstrated, the case against the State in relation to a non-delegable duty evolved over the course of the trial. It finally emerged with any real clarity in closing submissions.
2. The State's conduct of the proceedings cannot be construed as acquiescence. This is not a case in which the parties have conducted the case in mutual disregard of the pleadings and on issues they otherwise chose, nor is it a case of taking an overly literal or technical view of the pleadings. In my view, as the State argues, the plaintiff should be confined to her pleadings.
3. Accordingly, I do not need to examine the ways in which anybody other than Mr Radford is said to have been in breach of obligations under the Maltreatment Procedures or more generally negligent. The only issue is whether Mr Radford was negligent as alleged, and thus whether the State is vicariously liable for his acts or omissions. The conduct of Mr Smith in relation to the rebuke was, and remains, relevant to the question of the actual or imputed knowledge of Mr Radford. He is the only other State employee whose conduct falls to be considered, but it is to be considered only on the basis I have outlined.
4. I should say that even if I am wrong in taking that view, because of issues of breach and causation, as will become apparent the outcome of the plaintiff's case would not be any different.
5. What I have outlined to this point is unfortunately not the end of the difficulties created by the pleadings. First, as pleaded and as finally argued, Mr Radford's duty is said to arise solely from the provisions of the Education Act and from the Procedures. The statement of claim does not contain an allegation of a common law duty of care owed by him of the plaintiff which, of course, very plainly existed. I am not able to comprehend why the case was framed in that way. Ultimately, it is of no great moment because the State accepted that Mr Radford owed a common law duty of care, the content of which, for the purposes of this case, would not seem to be materially different.
6. However, some mention should be made about the way the plaintiff's case was framed and its consequences. Counsel for the plaintiff placed reliance on s 23 of the Education Act. Relevantly, that provides as follows:

(1) The principal of a State school has the following functions:

(a) to ensure that the curriculum, teaching practice, assessment and reporting procedures at the school are consistent with any instructions issued by the Secretary;

(b) to carry out the day-to-day management of the school, students and staff;

(c) to prepare the plans, budgets and reports for the school as required by the Secretary;

(d) to implement policies in accordance with the school charter.

(3) The principal of a State school may do anything necessary or convenient to perform his or her functions.

1. The plaintiff says the phrase "management of students" in ss 1(b) "impliedly, if not expressly" includes the pastoral care of students and the supervision and management of staff. The plaintiff argues that the duties asserted in par 33 of the statement of claim are all derived from s 23(1)(a) or (b), or subs (3). A similar argument is put in relation to compliance with the Procedures, even though those Procedures are not the subject of any pleading, nor is there any mechanism for their promulgation contained in the Education Act.
2. The alleged duty to report Pollard to the authorities is said to arise from the words "reporting procedures at the school ... consistent with instructions issued by the Secretary." As to this, the State submits that this reference has to be put in the overall context of the Act. In that respect, there is s 33 which is contained in a division entitled "Educational instruction" and is headed "Curriculum, assessment and reporting". Section 33(2) provides that "the Secretary may issue instructions in respect of any matter relating to the curriculum, teaching practice, homework, assessment and reporting procedures at a State school." Not without merit is the State's argument that the reference to "reporting procedures" in s 23(1)(a) is to be read in both its immediate and wider context and does not extend to reporting the misconduct of teachers.
3. In the event the Education Act does not supply a source of duty to comply with the Procedures, the plaintiff relies on Mr Radford's contractual obligation to "observe all acts and other lawful directions that relate to his functions and responsibilities." Such an obligation was not pleaded.
4. The plaintiff advanced no argument as to why, as a matter of principle, any breach of the Education Act or of the Procedures would give rise to an entitlement to damages. This just seems to have been assumed without any thought being given to the point. However, the question must arise as to whether, as a matter of construction, s 23 creates duties, the breach of which gives rise to an entitlement to damages. The approach to such a question is discussed in cases such as O'Connor v S P Bray Ltd [1937] HCA 18; (1937) 56 CLR 464, Byrne v Australian Airlines Ltd (1995) 185 CLR 410, Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59, 200 CLR 1 and Stuart v Kirkland-Veenstra [2009] HCA 15, 237 CLR 215.
5. Alternatively, assuming relevant duties are created under the Education Act, there is a question as to the extent to which non-compliance may be taking as prima facie or persuasive evidence of negligence: see for instance Sibley v Kais [1967] HCA 43; (1967) 118 CLR 424 at 427, Ridis v Strata Plan 10308 [2005] NSWCA 246, 63 NSWLR 449 at 65; Leighton Contractors Pty Ltd v Fox [2009] HCA 35, 240 CLR 1 at [49].This also arises, possibly to a greater extent, in relation to asserted non-compliance with the Procedures. But none of this was argued.
6. The difficulties created for the plaintiff's case by reliance on the Education Act and the Procedures is highlighted by a point made by the State. It is that if Radford neither knew nor ought to have known of a relevant state of affairs before February 2000, then at that stage the plaintiff was not a student at a school of which he was principal. The plaintiff's response to this point was to rely on the common law duty of care which, of course, is not pleaded.
7. The plaintiff's case is essentially one of Mr Radford having failed to act when he knew or ought to have known of the inappropriate relationship. However, pars 38 (a) to (e) inclusive of the statement of claim[6] were not pressed, so that failure to act involves a failure to properly investigate the relationship, to ensure that there was no contact between the two, and to report Pollard's misconduct to police or to ensure it was reported to police. That last failure is also said to have occurred once formal disclosure was made in February 2000.
8. One aspect of that case presents some difficulty when examining the pleadings. There is a pleaded obligation to ensure that Pollard, if he was permitted to remain at the school, did not teach the plaintiff or have any contact with her. The failure to ensure that did not happen is not pleaded as a breach of duty in par 38, but it was argued as part of the "first part" of the breach of the State's duty, a breach which is said to have materially contributed to harm suffered. There is evidence from the plaintiff about what happened to her relevant to this issue. The State's case is that Mr Radford did not know of, nor had any cause to suspect until February 2000, misconduct by Pollard towards the plaintiff. In the circumstances of the conduct of the case, I do not think it unfair to include this aspect in the consideration of the claim.
9. In all of this, given the way the case was ultimately argued, I will approach it on the basis that, as is clear and as the State accepts, Mr Radford owed a common law duty of care to the plaintiff, and determine questions on that basis but with an eye to the way in which any relevant obligations under the Education Act or, more particularly, the Procedures might govern the content of that duty and hence the question of breach.

The Civil Liability Act 2002

1. Before going on, I need to mention the Civil Liability Act (the CLA). The case was argued by the parties on the basis of the "non-application" of that Act. That position needs some analysis. If the plaintiff's causes of actions accrued before 4 July 2003, by virtue of s 4(3) of the Act, relevant Parts of that Act do not apply to this case. They are Parts 6 (except s 12), 7 and 8 (to the extent that it has any work to do). If any cause of action accrued after that date, s 3B(1)(a) needs to be considered.[7] That provides that the Act "does not apply to or in respect of civil liability in respect of an intentional act that is done with the intent to cause injury or death or is that of sexual assault or any other sexual misconduct; ..."
2. There is no doubt that the plaintiff's causes of action against Pollard accrued before 4 July 2003. That is also the case in relation to the action against the State, to the extent it is based on its vicarious liability for Pollard's actions. To the extent that any other cause of action against the State accrued after 4 July 2003, the meaning of s 3B(1)(a) needs to be considered. If the case is one of vicarious liability for intentional acts, s 3B(1)(a) applies: Zorom Enterprises Pty Ltd v Zabow [2007] 106, 71 NSWLR 354 at [6]-[14].
3. If the cause of action is one of negligence for failing to prevent intentional acts of another, the provision does not apply, because negligently failing to take such steps does not fall within its scope: State of New South Wales v Bujdoso [2007] NSWCCA 4, 69 NSWLR 302 at [66].[8] As the first scenario does not arise in this case, s 3B(1)(a) has no operation, and the Act would apply. As argued, the second scenario does not arise either. However, given the way the case was framed, and on the evidence, I am satisfied that all argued causes of action against the State subsumed within these proceedings accrued before 4 July 2023, making s 4(3) of the Act applicable.

What Rodney Radford knew or ought to have known

1. By way of background it is relevant that both Pollard and Radford were on various forms of leave during the relevant period. Pollard was on leave for the whole of December 1998 - Term 3 ended on 17 December 1998 - and on sick leave for an extended period between 22 April 1999 and the end of Term 2 on 3 September 1999. He would have returned to work at the start of Term 3 on 20 September 1999.
2. Mr Radford was on leave from 2 October 1998 to the end of the school year, and then from the beginning of Term 1 in 1999 - 9 February 1999 - until after the Easter break when school resumed on 13 April 1999. He was again on leave for the whole of December 1999, with school finishing on 16 December.
3. I have already outlined the general frequency and location of the abusive conduct. Further relevant evidence of the plaintiff is as follows. The homeroom/teachers' office that was used by Pollard was shared by Denise Devitt. The so-called photographic darkroom was used only for a store room and was customarily locked, with Pollard having a key. That room was on the first floor and was quite close to a set of stairs close to the bottom of which Pollard would customarily park his car. The contact between the two that took place when Pollard was on leave was pre-arranged by telephone call. He would drive his car to his customary parking space and the meetings would take place in the darkroom.
4. The layout of the school was such that in order to get to his parking space, Pollard had to drive through the main entrance, make a 90 degree left hand turn and effectively drive past the main entrance and a number of downstairs classrooms. That route took him past the administration area which include the offices of the principal and deputy principal and the main reception area.
5. In cross-examination, the plaintiff agreed that during the periods when Pollard was on leave, the frequency of contact decreased to about weekly, with no physical contact during school holidays apart from the trip to his home mentioned earlier. She agreed that the darkroom was not only an underutilised space but was in a part of the school "where there was very little traffic", being very much out of the way. The plaintiff also agreed that Pollard was adept that ensuring their meetings were secret.

1. The rebuke is relevant to the determination of the present issue. The plaintiff described Mr Sawyer as a senior teacher, who ran a peer support program of which the plaintiff was the group co-ordinator. The object of that program was to have the year 10 students assist those in year 7 adjust and assimilate. He had a particular interest in building that program and he, along with the teachers was perceived by the plaintiff as being interested in student welfare.
2. The plaintiff said that towards the end of Term 2 in 1999, she was in a class taught by Mr Sawyer. The class was in the library, basically at one end, with the students at tables of six. Mr Sawyer came over to her, she was sitting amongst her friends and working. He asked if he could speak to her. She got up and followed him to a set of low chairs about in the middle of the library but about ten metres away from the group. He gestured for her to sit down. She said at that time she did not believe that anybody knew of inappropriate contact on Pollard's part.
3. The plaintiff's evidence continued:

"So he gestured for me to sit down. He sat on my right, he said to me, 'it has been noticed you and - it has been noticed that you and Mr Pollard are spending time together, and that is not normal', to which the floor could have just swallowed me whole. I was gobsmacked that someone knew. So the moment he finished that statement, I didn't give a rebuttal. I burst into tears and ran out of the library."

1. She said that she went straight to the girls' toilets a short distance away and "bawled my eyes out" because she thought she was about to get into a lot of trouble. A female friend, Jess, came in to comfort her but the plaintiff did not tell her what had happened. She returned to the classroom, still very upset but trying hard not to show it. Nothing further was said to her at all although, as I have noted, it was after that, that the plaintiff stopped seeing Pollard despite his persistence. As I earlier alluded to, Pollard was the plaintiff's teacher for science in Term 3 of 1999. I will return to the effect this had on her.
2. Senior counsel for the State put to the plaintiff in cross-examination that the conversation with Mr Sawyer did not happen. The plaintiff disagreed, but did agree she did not tell Pollard that she had been spoken to by Mr Sawyer.
3. In his evidence, Mr Radford confirmed that Mr Sawyer administered the peer support program and, as well as being the head of the social sciences area, he was grade supervisor and involved in the schools pastoral care program. He described him as a "singularly impressive man of great integrity, thorough, compassionate, caring but did not really stand for people trying to do something that was incorrect that was foolish". He said that Mr Sawyer was a teacher that he was immensely proud to call a colleague.
4. As far as working closely with other staff was concerned, Mr Radford said there were numerous meetings every week with a separate senior staff meeting on another morning. There were daily briefings and a weekly broader staff meeting once a week after school and there were specialised professional development activities that ran at various times. But he was quite insistent in his evidence that the first he knew of any suggestion of misconduct by Pollard in relation to the plaintiff was in February 2000.

1. The plaintiff's case is that only Danny Munting went to see Mr Radford to speak to him about Pollard's abuse. The State's case, through the evidence of Mr Radford, is that both Danny Munting and the plaintiff went to see him. The plaintiff and Danny Munting first met in year seven, 1996. They were friends through high school and in late 1999, she said, "they went on a date". Their relationship grew very gradually particularly when it came to the early forms of intimacy. Of course, they later married. In any event, the plaintiff said it was in early 2000 that she told Danny about the abuse. Their relationship had reached the point where she felt she was harbouring a significant lie and he had a right to know. Additionally, two of her friends were Danny's sisters and were still at the school with Pollard. She felt she should try to protect his sisters from the same fate.
2. In his evidence, Mr Munting said that they were a few months into their relationship when they were having a conversation at his parents' house; he got the sense that something was wrong and ultimately the plaintiff disclosed that she had been sexually assaulted while at school by Pollard. He said that the plaintiff was very upset and to him, as an 18 year old, it was a very confronting conversation. He said that the plaintiff was reluctant to give detail. They talked at great length about what he could do and what they needed to do together. Over a number of hours he was finally able to convince her "that he needed to take it further". He told the plaintiff he was going to go and see Mr Radford and tell him the brief details that had been revealed to him at that point. The plaintiff was "not particularly thrilled" about that, and although content that he was going to do it, "... she was devastated that someone else was going to find out".
3. The next day he drove to the School. He does not remember whether he made an appointment or he just turned up. He said that he has a memory of being in Mr Radford's office; he remembers sitting looking at the door with Mr Radford at an angle to his left. He does not remember the exact words he used but conveyed the notion that the plaintiff had been sexually assaulted by Pollard at school on multiple occasions.
4. His evidence continued as follows:

"And when you told Radford that, what was his response?......He was, obviously, concerned. We had a conversation and now, the exact wording of the conversation I don't remember. I do remember the conversation - I remember distinctly that in the conversation there was mention of that they had had some concerns, that there'd been some noticings. Now, as to who 'they' were, I have no idea. I can draw conclusions from that, and at the time, I didn't draw conclusions because I was 18 and that just, sort of, slipped through to the keeper, unfortunately. So, they had some concerns that - there had been a conversation that Greg Sawyer had been asked to have a conversation with Katrina, with some concerns and that Denise Devitt, who was also a science teacher, had also been asked to have a conversation with Pollard about some concerns. Now, at 18, I didn't - it didn't occur to me any - to push that point."

1. He was asked to arrange for the plaintiff to write a statement to go to the Department. (That statement, addressed to Keith Scott and dated 29 February 2000, is in evidence.)
2. In cross-examination, Mr Munting denied that the plaintiff had gone with him to the meeting. He agreed that he probably spoke to Ms Preece at the administration area on the way into the meeting. He does not recall whether or not Mr Radford asked if whether the plaintiff's parents knew, but could not rule that out. As to a suggested mention by Mr Radford that Rosny College be contacted to provide some support if the plaintiff wanted it, he agreed there was some mention of support for the plaintiff at the College but he was not sure that it was at that meeting.
3. Mr Munting did not agree with the suggestion that Mr Radford made no comment to the effect that they had had "some concerns" or there had been "noticings", but agreed he did not mention that comment to police when he spoke to them much later about the meeting.
4. The plaintiff steadfastly denied that she was with Danny at the meeting. She said that she was not with him when it was reported, that Danny went to see Radford; she did not. When it was further put that she did attend with Danny to report the matter she said, "No, I did not. I did not sit in that office. I have not sat in that office, ever."
5. Mr Radford's evidence is as follows. He was alerted to the fact that Danny Munting and Katrina Bolton were at the reception desk of the office and wished to see him. He was "immensely pleased" to meet them and believed that the meeting was to be a social and a casual one. He said that the pair came in, sat down, and then the plaintiff alerted him to the fact that she had been abused by Pollard. He said he was shocked by the allegations and asked the plaintiff if her parents knew. He was told that they did. He does not remember all of the details of what was then discussed but they did speak about what support the plaintiff felt she may need and what she would like him to do. When asked whether he had had any concerns about his contact and his interactions with the plaintiff, he said that he had not, and that no one had raised any such issues with him at any time.
6. He told both Katrina and Danny that he would deal with the issue immediately as soon as they left. After they left he went to the nearby office of Ian Smith, the assistant principal and asked if he was aware of the allegations. Mr Smith's reaction was one of shock and disbelief.
7. Mr Radford told Mr Smith that he was going back into his office, saying "I am going to ring Bill Turner, the Bowen Superintendent, and alert him to what has happened.". He did that straight away. His evidence continued:

"And what did Bill Turner ask you or tell you?... Bill Turner asked me if - asked me to go through all of the allegations - all of the comments that Katrina had made ... He asked me to give me a chronology of what had happened during the interview. He then asked me did I believe the voracity of the claims that had been made and I assured him that I did

And what did he advise you to do?... He asked me if I had contacted the parents and were they aware of the situation I indicated then, yes,

What did he then - ?......He then said that we needed - I think he used the word 'we', meaning the department as well as Bowen and Rose Bay, he said we needed to tread carefully, we needed to do this properly. He said, 'Your next step as principal is to get in touch with the Education Department's grievances officer in the human services area - human resources area and let him know of this situation and let him deal with it.'

And who was the person that he told you to - ?......The person that had that role was Keith Scott.

Now, he told you you should contact Keith Scott?......Yes.

What else did he tell you to do - sorry, what did you do then?......I - perhaps if I can just go back one step. He - he told me that the - that the department Bowen and the grievances people would deal with the broader, overall, overarching legal issues."

1. Mr Radford said he then rang Keith Scott and alerted him to the situation.
2. I have set this out at some length because it later became common ground that Bill Turner, who was the district superintendent for a period of time, resigned with effect from 23 April 1999, some ten months before the time at which this meeting took place.
3. In cross-examination, Mr Radford agreed that he did not seek the details of the sexual abuse of which he was advised at the meeting because he felt that he did not need to, he did not need to know the finer details. He felt he needed to keep his response under wraps while he was talking to Katrina and Danny. He was asked about his response to the revelations. He agreed that it was a requirement of the Procedures that if he had reasonable grounds to suspect a genuine case of maltreatment, he should immediately contact his district superintendent. He was asked if he remembered if whether it was Bill Turner he contacted. He said, "I believe that it was Bill Turner. Look, I - I am certain it was Bill Turner." The following exchange then occurred:

"But you don't know whether he was your District Superintendent or not? ... Schools were such a busy place that most teachers and administrators didn't really have time to focus on the ladders of promotion and position within the department.

I will put the question to you again. You are not certain that Bill Turner was your District Superintendent at that time, are you? ... I cannot recollect with 100 per cent certainty no."

1. It was later specifically put to Mr Radford that Bill Turner had stopped working for the Department in April 1999, to which he replied that it may well be true.
2. Ian Smith's evidence was as follows. When asked to describe Greg Sawyer, he expressed views which reflected those of Mr Radford; he was a very genuine and empathetic man, who, when the need arose acted in the assistant principal role. Issues or concerns in relation to students were handled very much between the three of them; they operated as a very close team.
3. When asked about his recollection in February 2000 relating to the plaintiff, he said:

"I recall very distinctly, firstly seeing the Danny's car come down the drive in front of my office. And I recall that very easily because it was a car that was quite distinctive, I knew it. ... I knew who it belonged to, and it wasn't until sometime later, not a long time, that Rod came into my office. I have never seen him so shaken or distraught, he wasn't that kind of man but he was very distraught with what had been revealed to him by the visit of Katrina and Danny and he related to me what had happened and we talked briefly about what we should do and I think we both then went back to his office and he rang Bill Turner, who was the district superintendent."

1. Mr Smith went on to say that he and Mr Radford left his office and went into Radford's office, where he (Radford) rang Bill Turner. He is not sure whether Mr Radford first asked the office manager "to get Bill on the line or whether he rang him directly, I suspect he rang him directly." He said that he would have been present when Mr Radford spoke to Bill Turner, although he could only hear one side of the conversation. The upshot of that conversation was that a meeting was arranged and Keith Scott was to be involved.
2. In cross-examination it was put to him that there was no call to Bill Turner because he had retired in 1999. He said the call was made to the District office, and he assumed it was to Bill Tuner. He remembered Mr Turner being the District Superintendent and being replaced by a female but he could not think who that was. He said, "My memory is faded. I assumed it was Bill. It was an assumption on my part." It seems clear from Mr Smith's evidence that he did not actually see the plaintiff on that particular day. It was put to him that she was not in Danny's car that he had seen drive in; he said, "I would not have a clue".
3. The last witness for the State was Elizabeth Preece. In February 2000, Ms Preece had an administrative role at the school. She attended at the front counter, managed incoming calls, student records and was essentially secretary to the principal and the assistant principal, as well as doing work for other teachers. She said that she recalled both Danny and Katrina coming into the school in February 2000, and asking to see Mr Radford. She said they went to his office, had a meeting with him for a while and then left. She does not think they had an appointment. After they had left, Mr Radford told her there had been an accusation against Pollard, and that was really all of her involvement at that stage. She said she had no knowledge or concerns of misconduct by Pollard towards any of the students.
4. Lastly, I record the fact that neither party called Denise Devitt, and I was given no explanation about her availability or lack of it.

1. One of the keys, if not the critical one, to this present issue of knowledge is whether, when told of the abuse of the plaintiff by Pollard, Mr Radford told Danny Munting that there had been some "concerns", and that staff had been asked to speak separately to each person. The question of who was at the meeting is relevant to credibility, and I will deal with that now.
2. In my view it is very highly unlikely that the plaintiff and Mr Munting would be deliberately untruthful about whether the plaintiff was at the meeting. There is nothing to be gained by saying she was not there, when she was. Further, in the circumstances it is not something that either person, particularly perhaps the plaintiff, is likely to forget. Objectively, it seems to me unlikely that she was there. There is evidence she was reluctant that Danny speak to Mr Radford. The plaintiff said that after the report was made, she was exceptionally scared to do anything about taking it further; she was exceptionally scared, frightened and very ashamed. She did not want people to know. She said she was mortified and did not want to speak to anybody about it. The only reason she spoke up was because she saw Danny's sisters as potentially Pollard's next victims. There is no reason to reject this evidence.
3. The plaintiff and Mr Munting have much more reason to recall the events than do Mr Radford, Mr Smith and Ms Preece. On the face of things, they had no particular reason to recall the detail of what happened on a day in February 2000, and until at least 2018 when the police investigation commenced. I am not at all confident that their recollections have not faded considerably and they are not simply reconstructing, or that their recollections have not been moulded by subsequent events.
4. There is particular reason to doubt the accuracy of the recollection of both Radford and Smith. They were both prepared to confidentially assert that it was Bill Turner who was immediately contacted after the meeting but both were reasonably quick to reconsider when it was put to them that he was not in that position at the time. Apart perhaps from a preliminary comment from Mr Radford, neither ultimately had the confidence in their recollection to challenge the proposition that Bill Turner was not the District Superintendent. I accept Ms Preece as an honest witness, but I think her recollection of events has been tainted or subconsciously modified.
5. I find the plaintiff was not present at the meeting.
6. The next step in this process is looking at whether or not the rebuke occurred. I am satisfied that it is more likely than not that the incident did take place as described by the plaintiff. That description is different from what might be expected if the plaintiff were untruthfully suggesting knowledge of a concerning relationship on the part of some staff members; it appears less likely to be fabricated.
7. I am conscious that the evidence about this comes from one source - the plaintiff - and it is not possible for her to be directly contradicted due to the unavailability of Mr Sawyer. However, the plaintiff revealed the name of her friend, Jess, who comforted her, and a number of other students were not far away at the time of the incident. The availability or otherwise of Jess was not the subject of any discussion, nor was her absence the subject of any criticism.
8. What was the subject of adverse comment by the State was the admitted omission by the plaintiff of any reference to the rebuke, from her statement to Keith Scott. The plaintiff's explanation was that it was only partial disclosure. She said she felt at the time that if she brought in "another aspect", she would have to admit to a greater level of seriousness of what had been happening and the period of time at which it happened; "so, ..., I chose to leave it out."
9. The following exchange then occurred:

"Okay. I mean, it concerns you now what - and it certainly concerned you when you first went to police - what had - this conversation with Mr Sawyer. But it didn't concern you then. Is that the case?...... Did it not concern me, as a 16 year old child -

Well, did it not concern you that a staff member had behaved in that way towards you?...... As a child, the relative weighting of his conversation versus the sexual abuse I had endured, they were very different.

They were polar opposites, really. Well, they weren't polar opposites, they were - paled into insignificance. Is that right?...... Not into insignificance. But not enough to get me in more trouble.

You wouldn't have got into trouble by telling them that a staff member had raised it with you at an earlier occasion, would you?...... My perception, at the time, any of it, it was all shameful. Didn't matter what part it was."

1. I do not think this explanation is inherently unlikely. What must be remembered is the age of the plaintiff at the time and what she had recently endured over a prolonged period.
2. All of that returns the discussion to the question I posed at the beginning of this part; did Mr Radford mention that he had some concerns? I find that he did. I prefer the evidence of Mr Munting to that of Mr Radford. My finding as to the absence of the plaintiff, and Mr Radford's evidence about Bill Turner raise significant doubts about the accuracy of his recollection of what passed between Danny Munting and him.
3. It necessarily follows from a finding that the comment about "concerns" was made to Danny Munting that Mr Radford knew or ought to have known that the relationship between the plaintiff and Pollard was more than an orthodox teacher/student relationship, at least to the extent that it warranted investigation. In coming to this view, I take into account the evidence of both Radford and Smith concerning the close-working nature of the senior teaching group of which Mr Sawyer was a member, and the evidence about the high level of care and dedication possessed by him.
4. On the whole of the evidence, I cannot be satisfied that in August 1999 Mr Radford knew or ought to have known that what was going on between Pollard and the plaintiff was, in fact sexual abuse. But as I have said, I am satisfied that he ought to have known that the relationship involved, in general terms, a potential risk of harm to the plaintiff, and that he ought to have responded by taking such reasonable steps as were dictated by the circumstances. As far as the February 2000 disclosure to Mr Radford is concerned, on anybody's view of things, he then knew that Pollard had sexually abused the plaintiff, although he did not have the full detail.

1. That Mr Radford had a common law duty to take reasonable steps in the circumstances is uncontroversial. The essential case against the State - bearing in mind I have limited it to vicarious liability for Mr Radford's conduct - is breach of duty by, in effect, failing to report the matter to police, or at least to a level of authority that would have ensured a report to police. Coupled with that, may well be the pleaded duty to properly investigate Pollard's activities when concerns first arose about his conduct.
2. In addition, there is the somewhat problematic breach of duty issue I earlier identified. It will be recalled that a pleaded duty is one to ensure that if Pollard was permitted to remain at the School he did not teach the plaintiff, but that no corresponding breach is pleaded. That notwithstanding, in closing, counsel made a claim for aggravated damages against the State based on that conduct. The facts of the matter are, of course, not in dispute. I will deal with that issue first. Breaches of duty by failing to prevent Pollard's grooming of the plaintiff and his sexual assault and battery of her, and by failing to supervise both people are pleaded, but these were not argued at all, and I will ignore them.
3. Before going on, because of the issues in this case, it is worth recalling the seminal statement of Mason J in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 per Mason J at 47; "the negligence calculus". In deciding whether there has been a breach of the duty of care the first question is whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If so, it is then to be determined what a reasonable person would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have
4. The plaintiff does not pursue any suggestion that Mr Radford knew or ought to have known of sexual abuse at any significant time before the rebuke. Accordingly, I will start with the situation in August 1999. I have already said that Mr Radford had constructive knowledge of a relationship that posed a foreseeable risk of harm. In my view, Mr Radford ought to have known at least what Mr Sawyer seems to have known or understood. As to that, I do not think Mr Sawyer's words can be taken as any level of knowledge of or reasonable suspicion about actual sexual abuse. That is not the only inference reasonably open.
5. It may well have been that Mr Sawyer was going to ask some questions of the plaintiff about the true nature of the relationship, but was prevented from doing so by the plaintiff's reaction and disappearance into the toilet. He obviously thought that the matter was not something that he wanted to or needed to pursue, at least with the plaintiff.
6. There is at least one other alternative scenario which may have excited "concerns" and prompted him to speak to the plaintiff. It is well understood that a "teacher's pet" situation, not involving sexual or overt emotional abuse, can be harmful to the student. It can ultimately lead to emotional upheaval, feelings of betrayal and the antipathy of fellow students. As I have noted, Mr Sawyer did not see it necessary to pursue the matter with the plaintiff. There is no evidence that Pollard was spoken to. The plaintiff was not asked what she would have said if Mr Sawyer had persisted at some point, or if further more formal inquiries made.
7. However, on that factual basis alone, in light of the plaintiff's reaction I am satisfied that in order to guard against a foreseeable risk of harmful contact with Pollard, a reasonable person in the position of school principal would have ensured that Pollard did not teach the plaintiff in third term. As the facts were later made known, that would not have completely put an end to his contact with the plaintiff, but it would have reduced her stress and anxiety, and provided much less scope for his vindictiveness. The plaintiff gave evidence that there were two other scientist teachers who worked as team. The science class was divided into four groups and they rotated through the different teachers according to the particular subject matter of being taught at particular times. The State did not call any evidence as to the impracticability of making appropriate arrangements. On the basis that Mr Radford ought to have been aware of a type of relationship that involved a risk of harm, a reasonable response would have been to ensure as little sanctioned contact as possible. I find there was a breach of duty in that respect.
8. That brings me to the much more prominent and controversial issue of the failure to report the matter to police in August 1999 or later in February 2000. In the circumstances, I need to say something about establishing a breach of duty. A duty is discharged by the exercise of reasonable care, which is a factual question. That question is what a reasonable person would have done in the circumstances.
9. The inquiry is a prospective one, and it is wrong to reason backwards by asking what reasonable steps would have prevented the risk of injury materialising, and holding a person liable because those steps were not taken. See Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42, 234 CLR 330 per Gummow J at [18], [49]-[50]; Rosenberg v Percival [2001] HCA 18, 205 CLR 434 per Gleeson CJ at 16; Vairy v Wyong Shire Council [2005] HCA 62, 223 CLR 422 per Hayne J at [126]-[128], [160].
10. In Vairy at [124], Hayne J said:

"Again, because the inquiry is prospective, it would be wrong to focus exclusively upon the particular way in which the accident that has happened came about. In an action in which a plaintiff claims damages for personal injury it is inevitable that much attention will be directed to investigating how the plaintiff came to be injured. ... But the apparent precision of investigations into what happened to the particular plaintiff must not be permitted to obscure the nature of the questions that are presented in connection with the inquiry into breach of duty. In particular, the examination of the causes of an accident that has happened cannot be equated with the examination that is to be undertaken when asking whether there was a breach of a duty of care which was a cause of the plaintiff's injuries. The inquiry into the causes of an accident is wholly retrospective. It seeks to identify what happened and why. The inquiry into breach, although made after the accident, must attempt to answer what response a reasonable person, confronted with a foreseeable risk of injury, would have made to that risk. And one of the possible answers to that inquiry must be 'nothing'." [Emphasis added]

1. The inquiry into breach involves identifying, with some precision, what a reasonable person in the position of the defendant would do by way of response to the reasonably foreseeable risk: Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54, 211 CLR 540 at [192]. It is only through the correct identification of the risk that one can assess what a reasonable response to that risk would be: RTA v Dederer (above) per Gummow J at [59]. A plaintiff is thus required to formulate the claim in a way that takes account of the precautions which it is alleged should have been taken, and identifies the risk of harm which the plaintiff alleges eventuated, and to which those precautions should have been directed.
2. In this case, the plaintiff did not embark on that exercise as such, at least to any significant extent. Counsel asserted that the failure to report the abuse to police, or to take steps to ensure its report, was a breach of the duty owed, with no reference to the risk of harm said to be present, nor to the response of a reasonable person to that risk in the circumstances. Some identification of the risk of harm came by way of a submission as to the "consequences" of the breach, and then later, when the question of damages was addressed. From all of that, it emerges that the risk of harm is a risk of economic loss in the form of a loss of earning capacity. Any breach is said to have materially contributed to such a loss for which the State is jointly responsible with Pollard. (Aggravated damages for the breach are claimed against the State.) In effect, the plaintiff is saying that any breach is later wrongdoing contributing to the same indivisible harm.
3. The claim for loss of earning capacity primarily involves an asserted loss of an opportunity to pursue a high level academic career, in part said to have been forgone when she turned down an offer to complete a doctorate while doing honours in science at the University of Tasmania (UTAS), on her way to being a teacher, a career choice itself said to have been made because of the abuse. It is argued that a material contributing factor was that Pollard was then teaching in the science faculty at UTAS. Accordingly, the relevant risk of foreseeable harm is, perhaps adopting a more benevolent general description, the risk of economic loss being caused by way of some future contact or proximity between the plaintiff and Pollard at some unidentifiable point in the future, and at least involving more than a fleeting encounter.
4. So expressed, and looking at it prospectively, I would regard it as a risk of low magnitude and of a relatively low degree of probable occurrence. In the circumstances, would a reasonable person have responded to that risk by reporting the matter to the police. For the reasons that follow, I hold that the answer is "no".
5. Generally relevant to the question of this breach is the plaintiff's evidence of her feelings and thoughts when Mr Munting spoke to Mr Radford in February 2000. The plaintiff agrees that no-one, including her parents and Danny, knew until 2018 the full extent of what had occurred. I have already mentioned some of her evidence about this. She was "exceptionally scared to do anything about it; exceptionally scared, frightened, ashamed." She said, "I wanted people to not know. I was very ashamed....and was frightened that life for me as a good girl, as a smart girl, would end [and] I wouldn't be able to go to university. I wouldn't be able to fulfil that dream." She was "m_ortified_" and did not want to speak to anybody about it, with the only reason being she agreed to speak up was because Mr Munting's sisters were potentially Mr Pollard's next victims.
6. The plaintiff agreed she was content with the outcome of Pollard's resignation with him not to be re-employed in the Department, and did not want to take it any further. There is evidence that part of the early psychological symptoms that arose from the abuse was rumination about what might happen if the nature of the relationship became public. The plaintiff agreed that when she spoke to police in 2018, she told them that she could not originally bear the thought of having to go to the police or go to court; "I couldn't speak those words to anyone."
7. Of relevance here is the evidence of Mr Radford and Mr Smith. Both said that within a few days of the meeting with Danny Munting and after Pollard had been suspended or dismissed, they both met with the plaintiff's father, Craig Bolton, with just the three of them present. Mr Radford said that he was glad that Pollard had gone and that the issue was now resolved. He thanked them for the part they had played in the events and said that what Katrina needed now was some time to rehabilitate without any pressure; there was no need to make any more of the issue.
8. Mr Smith's version was that Mr Bolton had said he was satisfied with the way it had been handled and that he did not want it discussed around the school; he wanted it kept "as low key as possible, ...mainly for Katrina's sake." Both Mr Radford and Mr Smith denied in cross-examination that they had not met with Mr Bolton, with Mr Smith saying that "it was definitely Craig Bolton, because I know Paul Munting quite well." Neither Craig Bolton nor Paul Munting was called to give evidence. In this instance, I do not see any reason to doubt their evidence.
9. As to the situation in August 1999, I am not persuaded that, as things stood, Mr Radford knew or ought to have known of sexual abuse. To establish this breach of duty at that time, it seems to me the plaintiff needs to establish that he ought to have known by reason of a failure to inquire. That is, he ought to have known what reasonable inquiries would have revealed. As noted, the plaintiff was not asked the question in evidence about what she would have revealed if pressed. Her evidence might well suggest she would not then have been at all forthcoming. What Pollard may then have said is only a matter of speculation and may have depended on the terms and nature of the questioning. All of that notwithstanding, for present purposes I am prepared to infer that an appropriate level of inquiry would have given rise to at least a reasonable suspicion of sexual abuse.
10. What then of the response of a reasonable person in all of the circumstances? First, as has been seen, the question of whether there has been a breach is assessed at the time of the alleged negligence: see for instance Footner v Broken Hill Associated Smelters Pty Ltd (1983) 33 SASR 58. Second, the relevant circumstances can include conflicting responsibilities and concerns - not necessarily for different persons or entities - and clearly it can include knowledge of individual characteristics and situation of a plaintiff. That knowledge may serve to require a higher standard of care. I have little doubt that it can generally affect the assessment of the response by a reasonable person in a defendant's position.
11. There is nothing in the Education Act which assists the plaintiff but in order to discharge my duty, I will deal with the Procedures she relies on. By way of cl 1.3(c), the relevant parts of the Procedures come into play when an employee has reasonable grounds to suspect that a student has been, or is being, maltreated by another employee. "Maltreatment" is defined as it was in the Child Protection Act 1974, with "sexual maltreatment" being to cause a child to engage in, or be subjected to, sexual activity or engaging a child in exploitative sexual activity of any kind. [9]
12. If a principal had reasonable grounds to suspect a genuine case of maltreatment, the following things had to be done:
    • immediate contact made with the district superintendent; cl 2.2.2;
    • a written note consisting of the date and time of the initial report received, the date and time of the report to the superintendent and an outline of the allegations, made and retained; cl 2.2.3; and
    • the verbal report to the district superintendent to be followed by a written report within 48 hours, disclosing "the identity of the reporting employee"; cl 2.2.4.
13. The Procedures contain a separate section detailing what has to be done within a school following a report of an allegation. Clause 3.1 specifies that immediately upon receiving a report of alleged maltreatment, the principal should provide support and protection for the student concerned, which should include ensuring the student is not placed in any adverse position with the person against whom the allegation is being made. Under cl 3.2.1, the principal is to inform the parent or guardian "that a serious matter has arisen", reassure them of the student's safety and ask them to come to the school as soon as possible.
14. Clause 3.2.3 sets out what information the parent or guardian has to be given, and contains the following:

"The principal should assure the parents that the student will not be placed in an adverse position within the school setting with the person who is the subject of the allegations."

1. The Procedures can be taken as indicative of the required standard of care when faced with a reasonable suspicion of sexual maltreatment. They would inform the response of the reasonable person. But nowhere in the Procedures is there to be found any obligation on a principal to report reasonable grounds of suspicion of sexual maltreatment to police. The Procedures contemplate control of the initial investigation by the Department, with the Deputy Secretary to decide "on any further investigation" - such as a State service inquiry or a police investigation.[10] In the first instance, the principal notifies the district superintendent who, according to the procedures, is "to notify the Deputy Secretary (Education) immediately by phone", and immediately appoint an appropriate departmental officer to make an initial investigation of the case.
2. Apart from the required written report to the district superintendent, Mr Radford complied with these Procedures in February 2000, and it should be inferred he would have done the same in August 1999. The question remains though, as to whether reasonable care required a report to police or taking steps to ensure such a report was made. I need to stress that the issue is to be judged on the standards and values of the reasonable person in Mr Radford's position in the circumstances as they existed in 1999-2000, and not at present. In recent times there has been a great deal learnt about child sexual abuse, ways to detect and prevent it, and ways to properly respond to victims. Fortunately, different measures have been taken in response and, no doubt, there is much left to be done.
3. In 1999, s 8 of the Child Protection Act 1974 - repealed on 30 June 2000 - provided that a person who suspected on reasonable grounds that a child had suffered maltreatment, or that there was a substantial risk of maltreatment, was entitled to report the fact to an authorised officer. (The Child Protection Board could appoint employees within a state service Agency to be authorised officers.) The Children, Young Persons and Their Families Act 1997 was, and remains, relevant.
4. Section 14 of that Act is entitled "Informing of concern about abuse or neglect or certain behaviour" (sic). There is a list of prescribed persons who, in carrying out official duties in the course of their work, believe or suspect on reasonable grounds, or know that a child has been or is being abused (among other things), or there is a reasonable likelihood of a child being killed or abused, "must inform the Secretary [of the Department of Education, Children and Young People] or a Community-based Intake Service[11] of that belief, suspicion, as soon as practicable. This is a penalty provision with a fine not exceeding 20 penalty units.
5. The Secretary is not obliged to take action in certain circumstances, and may if considered necessary or appropriate, obtain the assistance of the Commissioner of Police in carrying out the assessment of the circumstances of the child; ss 17 and 19. In the case of neither Act, is there any obligation to make a report to police
6. Be that as it may, s 105A of the Criminal Code, which took effect in October 2019, makes it a crime for a person who has information leading to a reasonable belief that an "abuse offence" has been committed against a child, fails without reasonable excuse to disclose that information to a police officer as soon as practicable. "Abuse offences" means assault and the wide range of sexual offences provided for in the Code. Generally, the Court recognises that there is much broader provision for mandatory reporting procedures within relevant government organisations. Of course, the need to protect the child from further abuse and to protect the community from the perpetrator are fundamentally essential considerations.
7. Looking at the matter purely from the perspective of the community interest in criminal justice, punishment and public protection - and ignoring the negligence calculus and the response of the reasonable person in the particular circumstances - it is easy to conclude that Pollard should have been reported to police at the time his abuse came to light. But that is not the question. I have to determine the matter within the negligence calculus. The plaintiff did not address the issue of the response of the reasonable person in the circumstances.
8. Looking back to 1999-2000, and having carefully considered the matter, I am not persuaded that on the basis of what Mr Radford ought to have known in August 1999 (noting that this is based on the inference referred to in [134] above) or what was actually known in February 2000, he breached his duty to the plaintiff by not reporting the matter to police or ensuring that was done.
9. Inquiries made in 1999 would no doubt have revealed that the plaintiff had put a stop to the abusive relationship or was intent on immediately doing so. It had stopped by February 2000. In light the nature of the identified risk as discussed above, there is a real question of balance against what was more generally in the plaintiff's interests. That would include her objectively reasonable wishes. She was old enough and intelligent enough so that those wishes could be listened to and respected. The circumstances in which the response of a reasonable person is to be judged would include those considerations.
10. Given the plaintiff's evidence about her acute embarrassment and shame, and not wanting people to know, I strongly doubt she would have agreed to a report to police, thus requiring her to speak openly to police officers. Without being critical, it took her about 18 years to get to the stage of being mentally prepared and to summon the strength and will to make a formal complaint. Overall, I do not think a reasonable person in all of the circumstances would have, at that time, taken it upon themselves to report the matter to police independently of the wishes of the plaintiff and her family, in order to guard against the identified risk.

1. If I am wrong about the question of a breach of duty by a failure to report the abuse to police, I should say something about causation relating to that breach. Although, for the reasons I earlier explained,[12] proof of causation of the harm said to arise from this breach is not essential to the plaintiff's claim for aggravated damages, it would seem to be a necessary step in an award of aggravated damages in respect of that breach: Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; (1966) 117 CLR 118 per Windeyer J at 149; State of New South Wales v Riley [2003] NSWCA 208, 57 NSWLR at [27]-[29].
2. The common law of negligence requires determination of causation for the purpose of attributing legal responsibility. That involves two questions: a question of fact as to how the particular harm occurred (factual causation), and a normative question as to whether legal responsibility for that particular harm occurring in that way should be attributed to the defendant, attributive causation. See Wallace v Kam [2000] HCA 19, 250 CLR 375 at [11]. The two questions are distinct. As to the first question, my view is that the plaintiff would fail.
3. I am not satisfied on the balance of probabilities that the failure to report in fact made any material contribution to the claimed loss. Part of the reasoning that related to the breach issue applies here. First, I am not at all persuaded the plaintiff would have agreed to speak to police at the time. Next, even if she had, there is a question of how much she would have revealed at that time. This arises from the statement the plaintiff made to Keith Scott dated 29 February 2000. I previously set out the plaintiff's explanation for the deficiencies, but the fact remains there are significant omissions. There was no suggestion of any abuse after the end of 1998; the plaintiff said that when she back to school in 1999 she decided that due to her happiness and sanity, she said "I started avoiding him like the plague. ... I successfully evaded him for the first half or so of the year ... but then there were a few changes and then I ended up with him for both my science subjects. I still stayed away from him." Additionally, there is no reference to any contact between the two outside the school environment and no suggestion of any penetrative abuse.
4. Further, the plaintiff's case is that if a report were made in 1999-2000, Pollard would have been charged, sentenced and gaoled, and out of circulation, and "not employed by UTAS because he would have been a convicted paedophile", at the time the relevant opportunity is said to have been lost. On the evidence, which I will later detail, that was in 2005. That factual scenario is possible, but I cannot be affirmatively satisfied that it is more likely than not to have occurred.
5. There is an additional matter which I will mention. The plaintiff's evidence was that she knew that Pollard was teaching at the University when she enrolled. There is evidence that her father became involved in discussions with the Department of Education as to how that might be managed. In February 2002 the University requested signed undertakings from Pollard that he would make all attempts to avoid contact with the plaintiff while she was enrolled as a student, and that in the event he found himself in physical proximity to her he would immediately absent himself from that situation. The signed undertakings were sent to Mr Bolton by UTAS under cover of a letter dated 1 March 2002.
6. Later in these reasons I examine the question of whether the voluntary decision by the plaintiff in 2001 to become a teacher and before enrolling at UTAS, severs any causal connection between Pollard' abuse and any loss of earning capacity. That involves consideration of the case of Medlin v State Government Insurance Commission [1995] HCA 5, 182 CLR 1. I prefer to leave detailed discussion of the law until I reach that issue. For present purposes, I simply note that the plaintiff's decision to pursue a teaching career may well sever a causal connection between the failure to report the matter to police and the loss claimed as a result of the impact of Pollard's presence at UTAS.
7. There is no need for me to go further but I would also observe that, in my view, there is a real difficulty in relation to attributive causation. There is no doubt that economic loss is a type of harm reasonably as arising from battery and negligence relating to sexual abuse. Accepting that the precise means by which the loss suffered does not need to be reasonably foreseeable, and even leaving it at that level of abstraction, in this case it seems to me that the distance in time and the number of links in the causal chain between a failure to report the matter to police and the loss claimed, combine to make the damage too remote.

1. What needs to be considered are compensatory/aggravated damages for which Pollard and the State are jointly liable, exemplary damages against Pollard, and aggravated damages against the State by way of its vicarious liability for Radford's breach of duty as determined above.

1. At the time of attending the School the plaintiff lived with her parents and older brother in Lindisfarne. The house was quite close to the school, within walking distance. Up until 1990, the family had lived in the north and north-west of the State. The plaintiff said that she lived a happy childhood and considered the environment in which she grew up to be a safe one.
2. However, there was a significant early childhood trauma in the form of sexual abuse. This happened when she was about five years old and occurred over several occasions during a period of 12 months. The perpetrator was a relative some ten years older. The abuse ceased when the family moved to another area. The plaintiff has described the nature of the abuse as "molesting" her genitalia.
3. It is common ground that between the experts called to give evidence that this abuse, which did not come to light until recent years, made the plaintiff more vulnerable to the development of mental health issues in later years. The court has evidence of extensive research which clearly shows the negative effect of childhood sexual abuse on mental health over a person's lifespan. Such events in early childhood are likely to be have less impact than abuse suffered during adolescence, those victims where the abuse occurs during a period of sexual development appearing to have more adverse outcomes. This vulnerability was not the subject of any debate or comment in the trial.
4. There is no dispute that the plaintiff was an excellent student, both before and after Pollard's conduct. Various reports from the School during her time there continually describe her in such terms as mature, responsible and reliable with considerable academic ability. Chemistry was a particular interest. Her success continued at Rosny College with similar descriptions being found in various College reports. A report in respect of chemistry in August 2001 referred to "an outstanding term's work" with the results being thoroughly deserved. She was described as a highly capable and exceptionally motivated student. In finishing her secondary education she obtained a Tertiary Entrance Rank of 97.50.
5. Throughout her six years in secondary school, she was an active participant in extra-curricular activities, including participation in the School peer support program in 1999, school bands, concerts etc and other studentship programs. Away from school the plaintiff started work at a McDonalds outlet when she was 14 and then took up employment with a local supermarket working each Sunday. This she did from 1999 to 2006.
6. For a time in school, the plaintiff's career interest was in biomedicine, but in 2001, while at Rosny College, she decided that she wanted to pursue teaching as a career, focussing on science. I will need to return to the reason for that decision being made. This issue relates to the claim for loss of earning capacity.
7. The plaintiff's academic excellence continued at UTAS. She achieved mostly high distinctions and distinctions in the degree courses of Bachelor of Science and Bachelor of Teaching. She obtained first class honours in science in an honours year and her academic achievements were recognised by the award of numerous prizes, scholarships and citations. In her honours year, 2005, the plaintiff was given the opportunity to pursue an academic career. This came by way of an offer to undertake a doctorate in science. She declined the offer. Again, this is an issue to which I need to return, as it also relates to the question of loss earning capacity.
8. After graduation she taught at two different high schools before moving to the Friends School in 2008. She remains employed at Friends. She maintained her fulltime teaching load for the first ten years there. In that time the plaintiff progressed to the position of "level two senior teacher" achieving advancements in 2012 and 2018. Those promotions were made by way of the process of application and demonstration of capacity to fulfill the role.
9. In evidence, the plaintiff said she was not interested in climbing the hierarchy but has applied for two promotions, being positions that she was interested in. The first was the Certificate of Education liaison officer. The second, was as head of the science faculty. The plaintiff was unsuccessful in both applications but said that teaching is a job she loves; she is exceptionally passionate about teaching and it is something that she really enjoys.
10. The abuse of the plaintiff has caused her considerable psychological suffering over many years. The burden of a secret sexual relationship was the beginning. She lied and deceived her mother so that she would not find about that relationship. She felt trapped and feared that Mr Pollard could interfere with her marks, and thus with her future career. She experienced feelings of shame, isolation and entrapment. After she ended the relationship she was scared of what Mr Pollard might do. Psychological problems emerged. These included fear hypervigilance, anxiety, sleeplessness, flash-backs, and periods of depressed mood. She has required psychotherapy and medication.
11. The plaintiff and Danny Munting married in 2007. They have two children, a daughter born in 2011, and a son, born in 2014. The plaintiff's symptoms deepened during her first pregnancy. After delivery, she was diagnosed with post-natal depression and treated with anti-depressants. She has remained on that medication since but with abstinence during the second pregnancy. She was able to return to work about eight months after each birth.
12. The plaintiff continued to experience symptoms despite the ongoing anti-depressant medication and ultimately was referred to a clinical psychologist. A diagnosis of post-traumatic stress disorder (PTSD) was made and therapy commenced. This was to no great effect and the plaintiff was ultimately referred to a female psychiatrist, Dr Glinka, who she first saw in May 2018 and in whose care she remains. Ongoing psychotherapy seems to be of benefit. Dr Glinka is elderly and there is concern about a transition when she retires. The plaintiff remains on anti-depressant and anxiolytic medications; paroxetine and diazepam. The level of her symptoms can vary from time to time. She finds relief in sleep, comfort, security and crying which "lets the pain out". Sometime she would inflict physical pain on herself because that is more tangible, is a distraction makes some of the mental pain go away. Weight gain has been a concern as she tends to comfort eat.
13. The plaintiff experiences episodes of "dissociation" which she explained as being not actually present in the given moment, akin to "tuning out and not being aware of the immediate environment". It can range in intensity from "absentness and numbness" to becoming unconscious. In more recent times there have been two instances where she has had to be taken to hospital by ambulance from school.
14. In August 2020 the plaintiff was required to give evidence in criminal proceedings against Pollard for which she had to take time off work. Later. In early 2022, she gave evidence before the Commission of Inquiry into the Tasmanian Government Responses to Child Sexual Abuse in Institutional Settings. The plaintiff said she found that devastating but choose to engage in the process because there was "another side to what happened to me and it was not part of the criminal case."
15. There is no real dispute about the plaintiff's symptomology. In evidence is a report from a forensic psychiatrist, Dr Michael Jordan, dated 10 March 2023. Dr Jordan's report was prepared for the State but it was tendered by the plaintiff with the State's consent. It contains a useful summary as follows:

"Ms Munting has experienced nightmares, intrusive memories by day, with the capacity for cues and reminders of the abuse by the perpetrator to rekindle memories of their interactions together. Periods of intense anxiety have the capacity to precipitate periods of dissociation in which Ms Munting experiences the sense that she is entrapped back in the relationship with the perpetrator.

Over the years a pattern of avoidance and reminders of the abusive relationship has become apparent with mostly attempting to avoid Rose Bay High School. ... She indicated how the sight of individuals who resemble the perpetrator can precipitate distress, sometimes leading to vomiting; a similar response can occur if she sees motor vehicles of the same shape and that again remind her of the perpetrators vehicle.

She has pronounced problems with guilt and self-blame regarding her inability to have avoided and becoming involved in the relationship with the perpetrator and it was only with successful therapy that she no longer blames herself for allowing herself to become involved in that relationship. Ms Munting has had chronic problems with sleep disturbance, not only in terms of periods of the experience of nightmares but also periods where she wakes up when she can re-experience the anxiety and fear that has become associated with memories with her interactions with the perpetrator.

Ms Munting can still experience periods where focus and concentration can be difficult due to intrusion of thoughts and emotions related back to the trauma. For an extended period now, she struggles to contain emotions and can often be distressed and tearful, even in the public arena.

At this current point, there was less evidence of depressive symptoms but during periods of stress, such as the ongoing legal processes, Ms Munting can experience periods of suicidal ideation, hopelessness and a propensity to overeat. The periods of these symptoms are relatively contained and, similarly to the complex PTSD symptoms, can wax and wane."

1. In addition to the report of Dr Jordan, the plaintiff tendered a report from a clinical psychologist, Damien Minehan, dated 20 February 2023. Both Mr Minehan and Dr Jordan gave evidence, Mr Minehan in the plaintiff's case, Dr Jordan in the State's case.
2. Mr Minehan carried out comprehensive psychometric assessment. With one exception, the results put the plaintiff in the "high average" to "very superior range". Those results related to verbal comprehension, perceptual reasoning and processing speed. This placed her amongst a group of individuals with highly developed skills in the area. In Mr Minehan's words, "the one outlier was her score in relation to working memory." The index score put her abilities in the average range, considerably lower than her other scores. This was unusual. Mr Minehan was at a loss to explain the inconsistency but said there may have been some internal issue such as becoming emotional at the time of the testing; that would explain it.
3. Mr Minehan reached a diagnosis of PTSD applying the DSM-5 criteria. His report contains the following:

"The clinical assessment, historical information and psychometric assessment all support a diagnosis of post-traumatic stress disorder that include significant periods of depressive symptoms. It is notable that Katrina also experiences significant suicidal ideation that has been long­standing. She has been receiving psychiatric and psychological assistance for over a decade and mental health issues have clearly impacted on her employment, particularly during periods of increased stress. She described past feelings of guilt and shame, poor self-esteem and interpersonal difficulties, particularly in trusting others. She experiences a high level of anxiety, with particular difficulty coping in situations involving older males and an unbalanced power dynamic, for example a job interview. She has stated that her inability to cope in these situations, directly relate [sic] to her experiences of abuse, resulting in her 'looking good on paper' but failing at job interviews.

1. Later in his report, Mr Minehan makes the following observations:

"Katrina's abuse occurred at a particularly vulnerable stage in her development associated with poor mental health outcomes. It is a great credit to her that she continued to achieve highly in her academic pursuits at university, particularly in the sciences, as a young adult. As the burden of her mental health issues became more apparent as she matured, there has been a significant impact on her in multiple domains that have negatively affected her career path and career progression in her chosen field. It should be noted that the trajectory of her mental health issues worsened as she progressed through university and into the workforce. The first of these is the impact on the ability to effectively utilise her high level of intellectual functioning of her mental health issues.[sic] Periods of depression and associated low mood, concentration problems, motivational problems, lethargy, loss of interest and suicidal ideation would have impacted her at various points throughout her career. Secondly, Katrina's general lack of resilience to stress may have prevented her from being able to effectively sustain a career in a high stress environment. Thirdly, there has been a myriad of social impacts that have also thwarted her career progression, including difficulties with interpersonal relationships, difficulties in trusting others and significant problems in situations involving older males."

1. In evidence, Mr Minehan said the plaintiff had a close and trusting relationship with Dr Glinka and it would depend on how transition was handled, but a sudden cessation of her care would have a significant impact on the plaintiff. He was asked how important he thought sustaining the plaintiff's ongoing employment was, and what his prediction would be were she to lose that job or similar. The following exchange occurred:

"Her support networks are crucial, whether they be work, family or other things. So being in a supportive environment is extremely important, particularly during a vulnerable time but ongoing. Katrina - one of the things that shone through during the assessment is, Katrina loves what she does. She loves teaching and she loves the subject that she teaches. And I think if she was to lose the ability to do that, that was one - that's one of the significant stressors that would be an enormous knock to her psychological wellbeing.

With what consequences - what do you mean by 'an enormous knock to her psychological wellbeing'?......I would expect that many of her symptoms would probably worsen or deepen. Probably depressive symptoms, some of her suicidal ideation and other things would probably worsen in a period like that.

To the point of an inability to work?......It would certainly be difficult to work under those circumstances. It would certainly impact her ability to work and her ability to find new work as well."

1. Dr Jordan takes a slightly different view of the diagnosis. He applied the criteria known as ICD - 11, that being the International Classification of Diseases and Related Health Problems, 11th edition. He said that particular classification had a greater reach than the DSM classification, which was essentially derived from the American Psychiatric Association its main use being in the USA. Applying the ICD - 11 gives rise to a diagnosis of complex PTSD, or c-PTSD.
2. In terms of the onset of depression during pregnancy, while noting the first pregnancy was a difficult one, Dr Jordan's says it is reasonable to say that the abuse was as a factor in the onset of depression during both pregnancies, (pronounced in the first one), but not necessarily in the post-natal depression. In that respect, he conceded in evidence that it was somewhat academic to try to differentiate between a pre-natal depression "that then rolls into the post-natal period" but he thought there was a lack of detail on the issue of the pre-natal depressive symptoms as against post-natal ones. As to the incidents of fainting; he says it is difficult to objectively characterise them; "they may be vasovagal incidents, or potentially result on more intense disassociation and anxiety." [sic]
3. The evidence of both experts satisfies me that there is no material difference as would apply in this case. Mr Minehan explained that c-PTSD is essentially PTSD but with some additional symptoms relating to issues of self-image and self-esteem, relationships and emotional regulation.

1. In evidence, Mr Minehan was asked about the plaintiff's prognosis. He said:

"Prognosis is always a difficult question. I think that Katrina will be dealing with aspects of what has occurred and her psychological symptoms for much of the rest of her life. Things will wax and wane over a period of time. She's obviously gone through a very extended stressful period from the time of making her report, through a trial, through these proceedings and other matters, which will at some point come to an end and may provide some relief for a period of time, however, she will need ongoing psychotherapy for a long period of time. She will need ongoing medication management for a long period of time. There's probably some - if her medication remains the same to that which she reported to me, there may be some management of various medications that may need to occur over a period of time. Other external stressors are likely to occur at different points in her life, whatever they may be, illness, job changes, whatever they may be and her coping skills around those kinds of things will need improvement over time. So it may be that symptom relief may - may occur two, three, four years from now or it may take much longer than that."

1. In cross-examination, Mr Minehan was asked what he meant by the possibility that symptom relief could take "much longer". He said that it was very difficult to put a distinct time period on things. There remained a lot of work for the plaintiff to do in building her coping strategies and resilience around a range of things including her experience with the direct symptoms related to PTSD or c-PTSD. "So it is difficult to quantify what the time period may be." He agreed that one of the things perhaps holding her back at the moment was the current legal proceedings. The conclusion of these proceedings would remove one major stressor in her life, with the qualification that the whole period from 2018, when the report to police was made to the present, was an entire distinct period of exposure for her; it may take time for symptoms to alleviate; "So the day that everything is sorted out, things won't be better".
2. Mr Minehan agreed that there are a number of protective factors in relation to the prognosis. They included the retention of her intellectual capacity and cognitive function, the fact of employment, a stable family including her extended family - which is an extremely important factor - no evidence of substance abuse issues, high level of motivation to reduce at least the diazepam, and being positively engaged with a therapeutic relationship with Dr Glinka.
3. In terms of a prognosis, in his report Dr Jordan said that despite the adversity the plaintiff faced, she has achieved in many areas, both at work and domestically. She has been required to reduce her hours of teaching due to the stress of the ongoing legal process but there will be a hope that after the resolution of those processes, she may be able to return to a full-time capacity: "Globally, the prognosis is reasonable though ... Ms Munting is likely to be affected periodically, but hopefully in a decreasing fashion, by symptoms related to her abusive experiences_._"
4. More specifically, Dr Jordan says the plaintiff is currently receiving appropriate treatment, mainly the psychotherapy supplemented by medication. He added that with the expected resolution of the existing legal processes, it is hoped that her condition may ameliorate, but there is expected to be an ongoing requirement for psychotherapy and medication for a period of at least two years, potentially longer. As to medication specifically, he said this will be required over an extended period although it is anticipated the diazepam will hopefully be withdrawn once legal proceedings are finalised, and it may be possible for her to be on a lower dose of paroxetine into the future.
5. Dr Jordan's view is that it is to be hoped the impact of the abuse would ameliorate, or at least be contained, by way of the successful treatment pathways that are in place; it is hoped this amelioration will allow sustained improvements over an extended period.
6. In evidence Dr Jordan said that it was difficult to be specific about these things. He was asked what lead him to the conclusion that the plaintiff's condition may ameliorate to the extent he expressed, and on what he based his opinion. He said:

"[I]t's to Ms Munting's credit that she's going through this process. I think that's excellent, and there's - there's really good evidence that although going through a sort of public legal process can be challenging and difficult for - for the plaintiff and others around, with its capacity to re-traumatise and reopen aspects of the history and the narrative of the abuse, there is also evidence that should that process be managed in a reasonable fashion and, of course, to a successful outcome, shall I say, for the plaintiff, that can be a really helpful part of the process of an individual coming to terms with what has occurred to them in terms of the trauma. So my comment there was again trying to signal that although this process has been difficult for the plaintiff, it should be at least a form of landmark for a more optimistic prognosis moving forward and I note - and I recall from my - my interview with Ms Munting, with respect to the criminal proceedings that occurred in the latter part of 2020, that when the - the verdict in that case against the perpetrator was revealed, it was monumental for her, in the sense that it was part of that - can I say, healing process towards - or rehabilitative process towards being able to move her life forward and I suspect hopefully that will be the case with - with the conclusion of these proceedings. ....

With successful treatment, there is naturally ... some dilution [or] amelioration of symptoms but it would be unexpected for there to be a complete sort of extinguishment of those symptoms. So I suspect there'll always be a propensity for aspects of her symptom profile to be rekindled by events moving forward but at the same time, it would be the expectation that she endorses some factors that are associated with a better outcome in those with post-traumatic stress disorder, such as good social support. There's facets of resilience within her personality, ... . Her conscientious approach to treatment provided by Dr Glinka. There's no evidence of any development of substance misuse, which unfortunately can occur after significant traumatic incidents, and in many respects - in some respects, Ms Munting's been able to continue both in the educational and domestic arena with success. So it would be hoped, with those factors taken into consideration, that there would be an ongoing improvement within her symptom profile, although I can't be definitive again exactly how quickly or how complete that would be but ... I don't think it will ever be totally complete.

1. He went on to say that there was room for cautious optimism for an ongoing improvement in the symptom profile and further recovery of function that has been lost through the effects of the symptoms of the complex post-traumatic stress disorder. There will always be doubts on what the end point of that recovery will be, but it would be hoped and expected, given his impression of the plaintiff, that she will be able to gain considerable more control over those symptoms and others factors related to the symptoms that affect her emotional state and everyday function.
2. Dr Jordan was not cross-examined.
3. It follows from what I have set out that both Mr Minehan and Dr Jordan are of the view that the period since 2018, or shortly before in the preparatory period before the actual complaint to police, has been a particularly difficult one for the plaintiff, involving giving evidence in criminal proceedings, evidence before the Commission of Inquiry, and preparing for and giving evidence in civil proceedings. There is a common view that the plaintiff's present level of symptoms will continue for the next few years with continued psychotherapy and medication necessary but with optimism that after that period of time, there will be an improvement in symptomology, less need for psychotherapy and diazepam, but with some continuing need for an anti-depressant. The precise degree and nature of any such improvement cannot, of course, be predicted with any certainty.

1. This claim is based on the premise that in the absence of the sexual abuse by Pollard, the plaintiff would have followed an academic career progression, or at least worked as a scientist in the private sector, and not embarked on a teaching career. It is not claimed that the effects of the abuse or of the consequent c-PTSD, as such, caused a loss of earning capacity. It will be recalled that while at college, the plaintiff decided to become a science teacher rather than what she had considered to that point - a career in biomedicine - and that while at University in her honours year, declined an offer to complete a science doctorate. The case is that the wrongdoing caused the decision-making. This claim, so based, is the point of major contention.
2. The "basic principles" applicable were confirmed in Husher v Husher [1999] HCA, 197 CLR 138 at [7], [17]. They require identification of what earning capacity has been impaired or lost and what financial loss is occasioned by that impairment or loss. (It is necessary to identify both what capacity has been lost and what economic consequences will probably flow from that loss.) The first part of the process involves examining whether there is a loss of a capacity to earn what could have been earned. It is then necessary to ask what loss was suffered because of the diminution of that capacity; that invites attention to what would have happened but for the negligent infliction of injury, as best a court can predict that future course of events.
3. I will deal with facts. In her evidence-in-chief, the plaintiff explained her motivation and her experiences that lead to the decision in the following terms:

"In ... late high school ... I was intent on following a science field. I spent a great deal of time looking at different degrees, one of which was biomedical science and that was where I was headed. While I was - while I was at Rosny College, I was very focused on my academic results. To get into these biomedical fields, I needed a very high what is now an ATAR, but it's - I can't remember what it was called then - a high score. So I was very focused on that. As I moved through Rosny College, I started having this - this realisation that, yes, science was my thing. I was very good at it. But I didn't necessarily feel that that was where I belonged anymore and that despite could be and what I wanted to be, that if I - if I changed - if I changed my focus, I could still follow science, but at the same time I could prevent what happened to me happening to others ... I decided that I would follow science through a science degree and to teach, ... . But to be there, I had - I made a conscious choice that despite wanting to be a scientist, I could be a scientist in education and at the same time, protect children because for every one person like me that stood in that classroom, it was one less person like him that could. So I stand in that classroom and I know that for every hour that those students are in my presence, that is one hour that they are safe." [My emphasis]

1. Shortly after, the plaintiff was taken to the offer and rejection of the PhD program. She was asked about her motivation in relation to that decision, in addition to what she had just given evidence about. The plaintiff answered as follows:

"I did an honours degree. I didn't want to do an honours degree. I already had it settled in my mind that I - I would teach. That was what I needed to do. So I didn't want to do an honours degree. I - I was convinced to do an honours degree because they'd created a scholarship and a position, especially to keep me there. They offered me a PhD, to which I declined, many, many times, which they offered many, many times; along with money to keep me there. I - I refused because I - it's not that I didn't want to do it, I dearly wanted to do my PhD because I could and I'd now be a doctor. I dearly wanted to do it, however, that was going to take three years, which then meant I couldn't start my teaching degree for another three years, which meant instead of it being two years away from me being able to stand in front of students and keep them safe, it was going to be five years before I could stand in front of students and keep them safe. So I declined many times, despite lots of pressure from them and from friends and family but also, the thought of staying at UTAS for five years more rather than two years more - I'd much prefer to spend two more years at UTAS than five years because Pollard was still there."

1. In cross-examination, it was put that the choice of teaching was a deliberate one, to which the plaintiff replied that she was "avidly" against teaching; she was never going to do it. In high school and at college, it was not 'on her radar'. The plaintiff was asked about her interest in bio-medicine. She confirmed that there was a degree course in that discipline offered in Launceston at the time, and that had she chosen that pathway Danny would have moved with her. The following exchange then occurred:

"You found out about Pollard being at the uni in 2001, is that right?......Yes.

So that was before you actually commenced your science degree?......Yes.

And this is no criticism of you, you're quite entitled to go where you want to go to study but there was the obvious choice of going to Launceston and studying biomedicine, wasn't there, and avoiding that possibility?......However, I'd already - I'd already made a choice about my - my pathway.

And that pathway was one that allowed you to be in Hobart with your soon-to-be husband?......I'll rephrase that to - because of the harm done to me, I changed my life choices.

I suggest you would have chosen that path or more likely to have chosen that path in any event, Ms Munting?......I disagree." [My emphasis]

1. Mr Munting's evidence confirms that it was in grade 11 - that is, the year 2000 - that the plaintiff changed her career path. He said he knows that it was grade 11 because, at the end of that year, she changed her subjects for grade 12 "with the intention of shifting into specifically a science-based career to go into education."
2. Further relevant evidence came from Professor Rosanne Guijt, who was working at UTAS from 2003 until 2017, firstly as a research fellow between 2003 and 2011 and then as a senior lecturer in pharmacology from 2011 until 2017. Professor Guijt supervised the plaintiff's honours project. She spoke very highly of the plaintiff's work and described the quality of her ultimately published thesis as "brilliant". In any event, Professor Guijt made an evaluation as to the plaintiff's suitability to become a PhD student. Given the funding position at the time, she encouraged the plaintiff to apply for a particular scholarship but as an option, offered her the PhD scholarship that they had funding for.
3. Professor Guijt said:

"Unfortunately when I thought Katrina was going to be having a little dance in my office getting a PhD offer, she burst out in tears and told me she did not want to take up the offer, because she wanted - because the University of Tasmania had appointed the person that had sexually abused her at Rosny High. And she asked me to not share that information with anyone, but that is the reason that she decided to move on to a teaching degree".

1. Professor Guijt went on to say that she was surprised and disappointed that the sexual abuse had had such a big impact on the plaintiff, "and that a brilliant young female scientist decided not to pursue her passion and talent in science, but move to another career path in order to make the world a better place".
2. Further insights into this come from the plaintiff's apparent statements to Mr Minehan and Dr Jordan. Dealing first with the latter, Dr Jordan's report states that while at Rosny College, the plaintiff had begun to consider her future career in teaching, and this crystalized once her science degree was complete "as it became her mantra to protect other children, the motivation for this being mainly on account of her own experience of abuse whilst at Rose Bay High School". This is consistent with the plaintiff's evidence.
3. Mr Minehan relates a different timing of events, but the essence of the plaintiff's reasoning is consistent. He reports that that once the plaintiff's degree was complete she considered what areas she may want to work in, realising that if she could become a teacher she would be able to "protect students" an idea she indicated was motivated by her own experience of abuse during high school. She felt that "keepings kids safe" was a "big driver" to her, enrolling in a Bachelor of Teaching despite being offered scholarships and projects to stay with science. He says the plaintiff had the opportunity to continue to a PhD but instead moved into teaching. Later in the report, he says the plaintiff describes herself as a protector of her students; she feels that one of her roles is to prevent them from being victims of abuse and that her career decisions were affected by experiences of abuse. She turned her back on pursuing sciences in favour of teaching at least partially to adopt this protective role.
4. First, the State argues for a finding that the plaintiff's decision to pursue a teaching career was one that would have been made irrespective of Pollard's conduct. The argument is that there were good reasons to pursue such a career; it was a career that Mr Munting had committed to, and "it was compatible with the family life the pair committed to and building together at the time". I reject that argument. There is no reason to doubt the plaintiff's evidence. It should be noted the decision was not made at a time when she and Mr Munting had committed to a family life, but at a very early stage in the couple's relationship. I am satisfied the plaintiff would not in any event have decided to become a school teacher.
5. I find that in the year 2000, the plaintiff made up her mind to pursue a career of teaching in science, the motivation for which came from abuse by Pollard and the consequent desire to protect children from similar abuse, and to prevent it occurring as best she could. I am satisfied that before that she was intent on a different career pathway involving science; bio-medicine in particular.
6. The plaintiff knew in 2001, before she enrolled at UTAS, that Pollard was teaching in the science faculty, but went ahead regardless. When rejecting the offer of the PhD opportunity, her primary motivation was to stay on the pathway she had determined, some years beforehand, to take. The opportunity to complete the doctorate was an opportunity to change direction.
7. From the way the plaintiff framed her answer about her motivation at that point, it might be thought that Pollard's presence reinforced the correctness of the decision which had already been made, but even to that extent, his presence at UTAS did have some role to play in not reconsidering the chosen pathway. Alternatively, as Dr Jordan put it, the early consideration of the teacher pathway was "solidified". In any event, I am satisfied Pollard's presence had some influence in the process.
8. I make the observation that the factual basis of the claim seem to shift from the decision to pursue a teaching career made in 2000 - that being stated in the particulars[13]- to the decision to refuse the PhD offer. It was in closing argument by the plaintiff's counsel that the refusal of the PhD became of itself the apparently critical decision. On the evidence both decisions are relevant, predominantly the first one. The particular significance of the PhD offer and its rejection is that the offer is representative of what the plaintiff could have achieved if she had not been intent on a teaching career for the reasons she gave.
9. Alternatively, the State submits that the decision was not the product of the plaintiff's injury. It was put that "the motivation to pursue teaching was not a consequence of concern about her own capacity to pursue other career options or in any other way driven by a diminution of capacity." Dr Jordan has commented on this issue in his report:

"Ms Munting's decision to go into teaching was an understandable position to take, given her own experiences but it would not be considered at symptoms of complex PTSD directly affected that decision-making process. Rather it was a conscious decision to try prevent abuse happening to others. It would probably be accepted that given her academic ability and qualifications, she could have chosen a more lucrative career than high school teaching."

1. The debate centred on Medlin v State Government Insurance Commission (above). No other cases were cited. The facts of Medlin were that the plaintiff, a university professor, suffered physical injuries in a motor accident caused by the negligence of the defendant. He recovered sufficiently to return to his position with the university, although he continued to suffer pain and disability. He elected to retire four and a half years before he would have been obliged to retire in the normal course. The main reason for this was his desire to devote as much time as possible to research, but another reason was his belief that pain and sleeplessness and associated loss of "intellectual energy" made it impossible for him to perform his duties to what he saw as an acceptable standard.
2. There was no evidence that he was not performing his duties to the satisfaction of the university. The issue was whether the plaintiff was entitled to damages for loss of earning capacity measured by reference to the income that he would have earned, had he retired at the normal time.
3. The High Court held that he was entitled to damages for the loss of earning capacity. At [6], pp 6-7, in a joint judgment Deane, Dawson, Toohey and Gaudron JJ explained that "the question whether the requisite causal connection exists between a particular breach of duty and particular loss or damage is essentially one of fact to be resolved, on the probabilities, as a matter of common sense and experience." Other tests, such as the 'but for' test, while they may have a role to play, are not necessarily determinative of this question. That remains so in a case where the question of the existence of the requisite causal connection is complicated by the intervention of some act or decision of the plaintiff or a third party which constitutes a more immediate cause of the loss or damage.
4. Where there is suggestion that an intervening event, for example Professor Medlin's decision to accept premature retirement, has broken the chain of causation, their Honours said: (omitting references):

"In such a case, the 'but for' test, while retaining an important role as a negative criterion which will commonly (but not always) exclude causation if not satisfied, is inadequate as a comprehensive positive test. If, in such a case, it can be seen that the necessary causal connection would exist if the intervening act or decision be disregarded, the question of causation may often be conveniently expressed in terms of whether the intrusion of that act or decision has had the effect of breaking the chain of causation which would otherwise have existed between the breach of duty and the particular loss or damage_._ The ultimate question must, however, always be whether, notwithstanding the intervention of the subsequent decision, the defendant's wrongful act or omission is, as between the plaintiff and the defendant and as a matter of common sense and experience, properly to be seen as having caused the relevant loss or damage. Indeed, in some cases, it may be potentially misleading to pose the question of causation in terms of whether an intervening act or decision has interrupted or broken a chain of causation which would otherwise have existed. An example of such a case is where the negligent act or omission was itself a direct or indirect contributing cause of the intervening act or decision. It will be seen that, on the plaintiff's evidence, the present was such a case. ... .

Nor can the question of causation of damage in a negligence action be automatically answered by classification of operative causes as 'pre-eminent' or 'subsidiary'. Regardless of such classification, two or more distinct causes, without any one of which the particular damage would not have been sustained, can each satisfy the law of negligence's common sense test of causation. This can be most obviously so in a case where a 'subsidiary' cause operates both directly as a cause of the particular damage and indirectly as a contributing component of a 'pre-eminent' cause. [My emphasis]

1. The State argues that the joint judgment identifies the relevant question as whether the premature termination of Professor Medlin's appointment was caused by the injuries sustained in the accident. The State's submission is that even if is accepted that the plaintiff would not have made the decision to become a teacher absent the abuse, the decision was not the product of her injury: "The motivation to pursue teaching was not a consequence of concern about her own capacity to pursue other career options or in any other way driven by diminution of capacity". In oral submissions, it was put that it was not the breach of duty, but the injury, that had to be causative of the decision.
2. In this respect, the State relies on a number of passages. At [2], 3, the plurality noted that for a plaintiff to recover damages for loss of earning capacity he or she must first establish the "predictable" requirement "that ... earning capacity has in fact been diminished by reason of the negligence-caused injury." (State's emphasis.) At [10], 8, their Honours said that the plaintiff's evidence, if accepted, supported a conclusion that, accepting the findings of the trial judge, the effects of his injuries were a causative influence in the premature termination of his employment in two distinct ways. (See above for the two identified causes.)
3. Further, at [10], 9, their Honours said that the trial judge's findings gave rise to the question whether, taking account of any part played by the plaintiff's injuries as a contributing cause of each of those reasons, it should be concluded that the plaintiff's premature retirement was, for relevant purposes, caused by the accident in the sense that it was a product of a loss of his earning capacity resulting from the injuries.
4. For the reasons which follow, I do not see it as necessary to respond to the argument in any detail, but would make the following observations. Those passages in Medlin have to be put in the context of that case and should not be taken as statements of principle. First, they follow a clear statement of the axiom that the ultimate question is whether it is the defendant's wrongful act or omission that has caused the relevant loss or damage: see Medlin at [6], 6. Second, it was expressly accepted in Medlin that the plaintiff's earning capacity was impaired as a result of his injuries: see the joint judgment at [10], 8.[14] The issue was whether there was any financial loss occasioned by that impairment, and the focus was on the question of the causative role of the injuries - which caused that impairment - in the plaintiff's decision to retire. The ultimate question was whether the decision broke the causal connection between the negligence and the financial loss claimed.
5. As I see things in this case, there are two steps in the first question of whether the plaintiff has lost a capacity to earn, which in effect, is said to arise from her decision to limit career options solely to that of teaching. The first step is consideration of the causal connection between Pollard's conduct and the claimed impairment of capacity. Similarly to Medlin, but in a different context, that means judging whether the plaintiff's voluntary decision broke the chain of causation - whether it was caused by Pollards' wrongdoing or it was a purely voluntary act unconnected with that conduct in any causal sense. The second step is assessing whether the limitation of career options in fact impaired her capacity to earn; that is to say, whether other career options were ones in which she could have succeeded and were more remunerative.
6. I turn to what I see to be the critical part of Medlin applicable to this case. It is the statement that a chain of causation will not be broken by an intervening decision if the negligence itself was itself a direct or indirect cause of the decision: see the italicised part of the quoted passage from page 6-7 set out above.[15]
7. In Hirst v Nominal Defendant [2005] QCA 65, 2 Qd R 133 at [26], the Court of Appeal (Keane JA, Jerrard JA and Douglas J agreeing) said, "The idea of constraint on a plaintiff's free choice as relevant to the liability of the defendant for loss suffered by the voluntary conduct of a plaintiff is illustrated by the decision of the High Court in Medlin." After setting out the lengthy passage from Medlin at 5-6 set out above, Keane JA went on to say at [29]:

"The reasoning in Medlin confirms the propositions that voluntary or deliberate or unusual conduct on the part of a plaintiff does not necessarily sever the causal nexus so as to relieve a negligent defendant from liability for loss suffered by a plaintiff; and that it is necessary to have regard to the extent to which the plaintiff's voluntary conduct has been constrained by the defendant's misconduct, and then to ask whether as between plaintiff and defendant it was reasonable of the plaintiff to make the choice which was the immediate cause of the loss... . Further, while [those propositions] recognise that there may be a point at which it is possible to say that it is not reasonable as between the plaintiff and defendant that the defendant is responsible for the voluntary conduct of the plaintiff, eg because the choice made by the plaintiff may be so unexpected a response to the defendant's conduct that the defendant should not bear any of the consequences of that decision, it cannot be said that this point was reached in this case."[16] [My emphasis]

1. On the facts I have found, it is abundantly plain that Pollards' intentional torts and negligence were themselves, at the very least, a contributing cause of the plaintiff's decision to pursue teaching as a career. It must be remembered that the decision was made about 12 months after the cessation of the abuse. I am satisfied that at that time she was developing psychological problems in the aftermath, experiencing emotional difficulties associated with the abuse including feelings of fear, anxiety, shame and guilt. It can fairly be said that the abuse caused a sense of obligation or responsibility to do what she could to protect children from like harm. These things are also relevant to what follows.
2. In Medlin McHugh J wrote a separate judgment. His Honour approached the issue on the basis of reasonableness, and took the view it made no difference whether the point was regarded as one of mitigation or of novus actus interveniens; either way, the test was whether the decision to retire early had been reasonable. On the other hand, the plurality did not mention the doctrine of mitigation, but adhered to the proposition that a positive act by a plaintiff is governed by the rules of 'novus actus'. At 13_,_ the plurality said the question whether the premature retirement was the product of the plaintiff's diminution of earning capacity should be answered in the affirmative, and subject to one qualification, agreed with his Honour's reasons for the answer.
3. That qualification is as follows:

"[A]ny question of reasonableness should be framed in terms of what is reasonable as between the plaintiff and the defendant in the context of assessing damages for negligence rather than as question of whether the plaintiff acted reasonably or unreasonable in resigning his post."

1. Neither part made any submissions on the issue or reasonableness. In the absence of any submissions on the issue and on the whole of the plaintiff's evidence, and given the nature of the wrongdoing, I am satisfied that her decision was a reasonable one as between the plaintiff and Pollard, and the State as vicariously liable for his conduct.
2. That brings me to the second step in this case in looking at the first requirement in the claim for loss of earning capacity; that is, whether the limitation of career options in fact impaired the plaintiff's capacity to earn. In addition to the evidence of Professor Guijt, I have evidence from Ross Blandford, a rehabilitation counsellor specialising in vocational matters. I have two reports of his, supplemented by oral evidence.
3. Mr Blandford was briefed with an extensive array of material relating to the plaintiff's academic achievements at high school, college and at UTAS. He was asked to identify career pathways that the plaintiff could have taken, if she had not become a teacher. He identified three such pathways based around qualifications in science: chemist/chemistry scientist, postdoctoral fellow and university lecturer. He has provided assessments of expected salary levels for those positions and of the opportunities to pursue such pathways. His evidence seemed to be thorough and well researched.
4. He was not provided with details of the plaintiff's actual earnings as a teacher, but they are otherwise in evidence. By reference to the Education Services (Teachers) Award 2020, Mr Blandford determined the income for a full-time graduate teacher and a full-time teacher who is highly accomplished or working as a lead teacher. In addition he provided detail of the Friends School (Teachers) Enterprise Agreement 2021, which showed the annual salary to which senior classroom teachers employed there are entitled. Further, Mr Blandford provided information from online resources showing average annual salaries of secondary school teachers.
5. I do not need to go into the detail at this point. There is no evidence of what the plaintiff might earn were she to become, for instance, head of faculty at Friends or even to go further, but assuming a considerable increase to her present salary level, that is significantly below the figures suggested by a broad view of the range of salaries available in the alternative careers examined by Mr Blandford. In any event, I did not understand the State to dispute that, in general terms at least, the capacity to earn of someone employed in those alternative careers, was greater than someone employed as a teacher.
6. I am satisfied that the evidence strongly shows that the plaintiff had the capacity to go far in science related fields, (or alternatives for that matter), and to earn much higher amounts than as a teacher. The end result is that I find the plaintiff has suffered a loss of earning capacity by way of confining herself to a teaching career.

1. The plaintiff's claim under this head of damage is first, past loss from FYE 2006 based on a hypothetical career of an academic in science. The suggested trajectory is from a PhD student earning an income, to university lecturer to professor. Information about salaries comes from Mr Blandford, with Professor Guijt's salary as the end point [17]- less the plaintiff's actual net earnings. This loss, said to be $416,460, takes into account loss of income as a teacher due to time away from work in the last few years. Second, future loss is claimed being the weekly difference between the suggested present net salary of a university professor - again using Professor Guijt as the touchstone - and 55 per cent of the plaintiff's current full-time salary of $115,375, for the balance of the plaintiff's working life to age 67. The respective net annual amounts are $137,353 and $52,366. The weekly difference of $1,634.35 discounted for that period using the three per cent factor of 946.7 gives an amount of about $1.547 million.
2. In relation to what might have been, as I said earlier Mr Blandford had reports from the School and Rosny College along with statements of the plaintiff's results. In his estimate, her high school results showed her to be "an outstanding student", who achieved an extremely good set of academic results. There are references attesting to her maturity, academic ability and capacity to accept responsibility, with "considerable ability" with regard to academic pursuits. She won the Paul Lennon award for special achievement in her studies during 1999. The College reports show excellence in the form of top to high marks in physical sciences, chemistry, physics, biology, mathematics, information systems and English.
3. In College, the plaintiff's written work was to a meticulous standard. She was considered as demonstrating a well-developed capacity for analytical thinking and an ability to absorb information quickly and carefully. She displayed "an exemplary level of scholastic performance ranking her amongst the highest calibre of students within the College". This high level of achievement continued at UTAS. Of particular note is the fact that in 2003 she was invited to join the prestigious University of Tasmania Chapter of the Golden Key International Honour Society, which is a global Society involving 335 universities, providing recognition of academic achievement. Membership is by invitation only and based solely on academic merit. She received the School of Chemistry honours scholarship to study chemistry in 2005.
4. Mr Blandford notes that UTAS academic transcripts show the plaintiff as having achieved other various notable things including an award for outstanding proficiency in Organic Chemistry, and being placed on the Deans Roll of Excellence for several years in a row. The plaintiff produced various academic science publications, mostly in the area of micro-reactors and has patents in that field.
5. Mr Blandford's assessment is that foundations supporting the plaintiff's employment and earning prospects were strong and suggestive of a very successful outcome. He says that "based on the plaintiff's first-class academic results, [she] had the opportunity to pursue a decorated career in a science field, policy, research or academia. As stated earlier, he identified three particular pathways: chemist/chemistry scientist, postdoctoral fellow and university lecturer, and provided assessments of expected salary levels for and the opportunities to pursue such pathways. However, Mr Blandford added that the plaintiff's academic results, along with cognitive testing, suggest careers in engineering, law, accounting, finance or medicine could also have been pursued by her.
6. I accept Mr Blandford's evidence. It is supported by that of Professor Guijt. She supervised the plaintiff's honours project in her role as post-doctoral research fellow. In her opinion the quality of the plaintiff's honours thesis "was as brilliant as Katrina had been in the lab". She described the plaintiff as very organised, and an excellent experimental planner with a very good grasp of the literature as expressed in the thesis. And of course, as has been seen, this led to the offer of the PhD scholarship. I am satisfied that when at school the plaintiff was a highly intelligent, studious, skilled and ambitious young woman who had a very significant potential capacity to earn. I am satisfied that she had the capacity to progress to very high levels in her chosen field.
7. As to the focus on the career in scientific academia, the timeline for the career path sketched out by Mr Blandford generally accords with Professor Guijt's progression and, according to Professor Guijt, that of two of her former male colleagues at UTAS. At the time of giving evidence, Professor Guijt was a professor at Deakin University in Geelong. She completed a PhD in 2003 after which she was employed by UTAS from 2003 until 2017, being a research fellow for the period 2003 to 2011, and then a senior lecturer in pharmacology in the School of Medicine from 2011 until 2017. She had a fellowship involving travel to and research in Germany in the last three years of that period. She obtained the Chair at Deakin in 2017.
8. The hypothetical trajectory and the net salaries on which the claim is based are as follows:
   • 2006-2007 - PhD student - $17,246
   • 2008 - University lecturer - $60,100
   • 2013 - Senior lecturer - $84,125
   • 2018 - Associate Professor - $104,100
   • 2022 - Professor - $137,353
9. In addition, the particulars of claim assert a promotion to a dean of faculty in 2023, with a presently estimated gross weekly salary estimated by Mr Blandford to be of $4,808. This further progression was not mentioned in closing, nor was the possibility - mentioned by Mr Blandford - that in the future the plaintiff could hold the position of a vice-chancellor, the average gross weekly salary for such a position being $17,308. There is no direct evidence about the availability of such positions, but common knowledge might suggest there is a very limited number available in Australia.
10. The evaluation of the worth of a loss of capacity to earn - of a lost chance to earn - is more imprecise than calculation of lost income. It does not depend on calculating the income from a particular career which is no longer possible, but on calculating the damage on a capacity to carry on various careers. It is an exercise in estimation of possibilities, not proof of probabilities. It is necessary to take into account future or hypothetical events and a court can only do so in terms of the degree of probability of those events occurring from a range of just above the speculative to just below the certain. The inquiry - the process of estimation of possibilities - is thus an imprecise and indeterminate one to be carried out within very broad parameters. See State of New South Wales v Moss [2000] NSWCCA 133, 54 NSWLR 536 per Heydon JA at [71], referring to Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 at 643. Accordingly, damages for financial loss arising from a diminution in a capacity to earn are only an estimate, and often a very rough estimate, of the present value of the prospective loss. "Ultimately the process must always be one of judgment rather than calculation": Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402 at 413.
11. The least remunerative of the alternative careers as outlined by Mr Blandford was that of post-doctoral/research fellow. The suggested progression is to senior post-doctoral fellow, the present gross annual salary for which is about $135,200, or $100,110 net. According to Mr Blandford, for a "chemist/chemical scientist" the career progression is as follows. It can reasonably be expected that in 2006 the plaintiff would have been engaged as a full-time professional, but in a non-managerial role earning approximately $41,600 gross per annum. In 2010 she would have been a full-time professional in a non-managerial role but at a higher level of salary; approximately $82,785 gross per annum. By 2015 she "would have been well established in her career in chemistry", earning about $115,960 gross. Mr Blandford's postulation then puts the plaintiff as working as a laboratory manager, science director or principal scientist by 2022, with gross earnings of about $156,000. On an approximation, the respective net amounts per annum are $34,500, $64,300, $85,500 and $113,210.
12. Counsel for the plaintiff submits that the evidence compels a finding that it is "almost certain" the plaintiff would have followed the university academic career progression to professorial level by2022. I generally disagree. There is no evidence that in 1999-2000 the plaintiff was contemplating a career as an academic. Her evidence is that she was intent on a career in biomedicine. In my view it is more likely that the plaintiff would have followed her original plan of such a career, rather than the other postulated career paths. Despite the plaintiff's early aversion to "teaching", it is possible that a career in an academic life might have had some later attraction, but her stated level of interest in biomedicine seemed to be high; she had looked at different degrees, settled on that discipline and was focused on getting the results to secure entry.[18] In any event, there is no evidence that if she had obtained a doctorate, she would have stayed in the university environment as an academic.
13. In terms of a specific career choice, I note that "biomedicine" is a wide description and can involve various different roles, including microbiology, pathology, medicinal chemistry and forensic science. With a degree in bio-medicine, those sorts of areas are more likely to have been the ultimate ones of interest to the plaintiff. I think it safe to assume the career trajectory in those areas of bio-medicine would generally equate with that of a chemist/chemical scientist. In that respect, Mr Blandford said there was a wide range of industries in which chemists are employed, both in the private and public sectors; it was "an extremely broad field of occupation." He rejected the notion that a scientist would find it difficult to find employment outside UTAS, and provided examples of a number of organisations within the State where opportunities for scientists exist.
14. For those reasons, I think it fair to disregard the suggested possible career as postdoctoral fellow. I think it is appropriate to base the assessment on a forgone career as a chemist/chemical scientist rather than as a lecturer/academic, but such a career cannot be discounted as a possibility. Of course, the present net salary return from the latter is higher, and there seems to be room for greater increases in remuneration. As outstanding a potential as the plaintiff had, the hypothesised trajectories in both careers are optimum scenarios. They assume each elevation would have in in fact occurred and at the earliest possible opportunity.
15. The evidence of both Mr Blandford and Professor Guijt establishes the existence of a number of adverse features that may affect the academic career progression. To one degree or another, they might apply to progression in the other career. The higher the level the less the number of positions there are available. That means 'marking time' before the more senior positions become available. The advanced positions are not automatically achieved; there is an application process with others vying for the position
16. Professor Guijt explained that progression in academia is not necessarily just how many places there are, but it is a combination of articulating one's skills in leadership, research and teaching skills. There is an assessment by a committee that contains people from other departments. In recent years, universities are also downsizing in staffing levels, although largely that reflects casual staff. As she observed, some people get to a certain level and are content, leaving the more ambitious to push on for the higher roles. There can be other difficulties in the suggested trajectory such as those experienced by Professor Guijt. Because of cost considerations, she was put on "indefinite probation" at UTAS rather than being granted tenure. She said she experienced cronyism arising from a particular Hobart private boys' school as a factor in getting senior positions in the science faculty at UTAS. According to Mr Blandford there remains severe under representation of females in senior tertiary academic roles in the country.

1. The evidence shows that the plaintiff took leave without pay on a number of occasions during July and August 2020. This timeframe coincides with the criminal proceedings against Pollard. After that she returned to fulltime work but in late 2021/early 2022 reduced her working load to 82.5 per cent. In February 2023, she requested a reduction to 60 per cent but the outcome was a reduction to 55 per cent. The plaintiff explained the reason for the request as being that as she had become older she had spent much more time working on her mental health in conjunction with her psychiatrist. She could not maintain the same level of focus and the same intensity; she found that she could not do the same number of hours in a day she had previously. Working at a 100 per cent level made her feel unwell.
2. The current head of the Friends School science faculty, Nicola Anderson, gave unchallenged evidence that even at the 55 per cent level the plaintiff was struggling to cope. Ms Anderson said other staff were picking up her workload "far and beyond what they should be doing" and options in the future will depend on how the plaintiff is able to do her job. The plaintiff tendered, with leave, a late exhibit in the form of an email from the Deputy Principal of Friends School dated 5 April 2023. This refers to discussions with the plaintiff the previous day about a "safe return to work." It states a requirement that the plaintiff has a medical certificate that she is fit for work which, once provided, would lead to a formulation of a return to work plan. No further evidence was called about this email, and the consequences of it were not addressed.
3. As earlier noted, the past claim is approximately $416,460 but that is based on the "lecturer" scenario. The plaintiff provided a table showing the notional academic career progression year by year to the time of trial, and the net differences between the academic salaries and what the plaintiff in fact received. As to a comparison with the "chemical scientist" pathway, I note that in the four years from 2006 to 2010 more would have been earnt as a chemist than as an academic, particularly in the first two years. By 2010 the salaries would have been roughly equivalent, and they stayed that way until 2015, when the chemist's salary was less by about $5,000 net. From that point until 2023, the projected income of an academic increased appreciably more than that for a chemist.
4. In the period from 2010 to 2023, on my calculations at least, the total difference in net earnings between the academic career and that of a chemist/chemical scientist favours the academic career by a total of about $21,000. To a very large extent, that amount is offset by the difference in earnings at the start of the career in 2005-2006, and I proceed accordingly.
5. On the State's analysis of the source material, some of the component figures for actual earnings are slightly different and were not disputed.[19] I accept the State's figures. That reduces the claim for past loss to about $412, 000. On the State's calculations the difference between what the plaintiff could have earned in her present employment and what she actually earned is about $32,810. (The State's position is that this figure can be rounded up to $45,000 but that is the extent of the past loss.) In any event, an allowance should be made for the period to date.
6. The mental health evidence and Ms Anderson's evidence, together with what can be inferred from the email of 5 April 2023, combine to satisfy me that for the period to date an amount greater than that representing 45 per cent of the full-time salary should be added. I can only make a rough estimation and I think a 65 percent loss is a reasonable allowance. At the time of the trial the plaintiff's net full-time salary was about $85,100 net. I think a figure of $55,000 should be allowed. That is to be added to the sum of $32,810, making a total of say $88,000. As that assessment is not dependent on predictions of what might have happened, total lost income to date in the teaching role needs to be quarantined from the discussion that proceeds from here.
7. Further calculation of past loss in this case is not an arithmetical exercise. As part of the claim for loss of earning capacity, it remains a matter of judgment and impression. There is no presumption that a discount for contingencies cannot, in an appropriate case be applied to pre-trial loss. In the majority of cases, there are fewer uncertainties with regard to the past than in relation to the future, and ordinarily it might be expected there is no discounting. However, the period of time between injury and trial is of course important, and the individual circumstances of a plaintiff may justify a discount, even a sustainable one. In this case, the claim is based on purely hypothetical scenarios starting in 2005-2006.
8. One consideration in this case relates to the speed and levels of progression. It is possible the plaintiff would have encountered head winds in her progression. It is possible that openings would not have appeared at the relevant times as postulated, and diversion into other areas with longer term prospects of advancement is also a possibility to be considered. In order to achieve progression to the suggested levels, it may have been necessary to move interstate or even overseas, something the plaintiff may well not have been willing to do. The evidence does not establish the probability that her episodes of post-natal depression were caused by the wrongdoing. The difficult first pregnancy and such episodes may have affected her progression in one way or another.
9. Doing the best I can, I will take the difference between the amount claimed as calculated above ($412,000) and the amount attributable to past loss of income as a teacher ($88,000), namely $324,000, and reduce it by 10 per cent. The result is $291,600 to which the $88,000 should be added back, giving a figure of $379,600.

1. In round figures, the present professorial net weekly salary is $2,641, while that of the science director/principal chemist is $2,177. Of course, the difference in the weekly sum extrapolated over the rest of the plaintiff's working life assumes a greater significance. It follows from what I have said that my estimate of the plaintiff's forgone capacity to currently earn is in the lower end of that range. I bear in mind what was said in Moss (above) about not calculating the income from a particular career which is no longer possible. On a broad view of things, I think it fair to adopt a figure of $2,250 as the present "notional" capacity to earn. The difference between $2,250 and the net weekly amount of $1,007 derived from 55 per cent of $85,104, (the net full-time annual income as asserted by the plaintiff), is $1,243. That loss from now to age 67, using a discount factor of 946.7, is say $1,176,750. The difference between $2,250 and the net full time weekly salary of $1,637 is $613 per week). If it is assumed the plaintiff is immediately capable of working full-time as a teacher, the loss would be $580,327.
2. In the context of arguing that future loss be confined to "teacher" loss, the State accepted that an appropriate allowance would be 45 per cent of the current loss for four years, based on the net salary of $85,104. Counsel noted the negative contingency of the lost opportunity to apply for a promotion in that period, but balanced that against the positive contingency of improved working capacity and an increase in teaching hours. On that basis it was submitted an award of $200,000 inclusive of superannuation was appropriate, but I think it is useful to discuss the period of four years and the acceptance of the 45 per cent reduction in current income. In terms of the residual capacity to earn, if a return to full-time work in four years is assumed, and ignoring gradual improvement during that time, the notional loss for that period is $2,250 net per week less $1,007 which, discounted at 3% over that period, is $244,750.
3. If a slightly more pessimistic view of return to full-time work is adopted, say five years, the figure is $301,430. For illustration purposes, if it is assumed that at the end of the five year period the plaintiff has returned to full-time work, then the continuing loss after that is the notional net salary less the actual net full-time salary. At that time the plaintiff will be 46 years old. The resultant calculations are as follows. The deferral period is five years, the factor for which, according to the tables in evidence, is 0.863. The period of payment is 21 years from age 46 to age 67, with the discount factor for that period being 816.4. The deferred multiplier is 704.6. As noted, the difference in the net weekly salaries, is $613 per week. Applying the deferral factor, the end result is $431,920. The total loss using the five year scenario is $773,350.
4. Consideration needs to be given to the probabilities and possibilities of the notional careers, together with those relating to the plaintiff's current employment. There are counteracting contingencies that need to be taken into account. First, the chance of a higher level of income cannot be dismissed, and there may well be prospects of further promotion in the notional careers, particularly as has been outlined in the academic area. However, the higher the position, the scarcer the vacancies, and in order to advance beyond the anticipated present levels, an interstate move may well be necessary, and it is possible the plaintiff would have been content with a role as professor, or alternatively a principal research scientist, or similar. On the other hand, for reasons I have explained, it possible that at the present time the plaintiff would not be earning as much as the level of income that I adopted.
5. The claim as framed rests on the premise of a permanent destruction of 45 per cent of the "residual capacity" to earn as a teacher. As far as that capacity is concerned, despite mental health issues the plaintiff managed quite well in her job until 2018. She has felt able to apply for promotions. The current state of her mental health might improve to the stage at which she feels comfortable to apply again, and may well be successful. While I take the view the evidence does not establish a very high degree of probability that the plaintiff's residual earning capacity will always remain as low as 55 per cent of a full-time workload, there is a number of significant adverse contingencies.
6. As described by Mr Minehan and Dr Jordan, a meaningful recovery will take some years, and it might be more prolonged than they think will be the case. The common view is that the plaintiff will experience symptoms of PTSD to one degree or another for a very significant period of time, with complete recovery not a realistic prospect. There may well be recurrences of what seem to be the more recent 'dissociation' events, episodes of depression, triggering events, emotional difficulties that do not fall with within the diagnosed PTSD condition, and an unmanaged transition after Dr Glinka stops work. One or more in combination might put her employment at risk. The plaintiff's difficulties have worsened over the period since 2018 due to the report to police and several sets of subsequent proceedings, but there is nothing to suggest that she will improve as quickly. Ms Anderson's evidence about the plaintiff's present work performance, and the Friends School email are hardly encouraging in terms of a return to full-time work in any short to medium time frame.
7. The "conventional" discount for the vicissitudes of life needs to be mentioned. The issue is helpfully discussed in H Luntz and S Harder, Assessment of Damages for Personal Injury and Death, 5th ed, at pars [7.4.7]-[7.4.16]. The authors conclude that in an average case, for contingencies of mortality, sickness, injury, unpaid leave, unemployment and industrial disputes, the discount should be 7.4% for women in the average case. In this State, as the authors note, the Full Court in Partridge v Hobart City Council [2012] TASFC 3, 22 Tas R 29 at [182], said it may be that a customary discount of 15 per cent, as ordinarily applied in this jurisdiction, is too high, but the Court did not then (and has not since) ruled authoritatively on the issue. Since then, a discount figure of 10 per cent has been used in a case said to fall into the "ordinary" category: Raper v Bowden [2016] TASSC 35 at [271], and see also Dann v Port Sorell Bowls Club Inc [2020] TASSC 47 at [320]. Of those contingencies, it is unlikely the plaintiff will experience unemployment and connected with her mental health, or industrial disputes. A fgure of five per cent would be appropriate.
8. Drawing all of this together in the context of forming a broad perspective, I think it reasonable to allow a sum which represents the likelihood of high notional income, a significant impact on residual earning capacity to aged 67, and an assessment of the other contingencies. The figure I allow is $1 million. The total award under this head is therefore $1,379,600.

1. The plaintiff submits that this claim should be assessed on the basis of the near certainty of employment with UTAS. The evidence shows that since 2005, academic staff have been paid superannuation at the rate of 17% of gross salary. I have found that that degree of certainty does not exist, and accordingly the claim for superannuation on that basis is not sustainable.
2. It follows that allowance for superannuation has to be based on the superannuation entitlements under the Superannuation Guarantee Act 1992 (C'th). The entitlements are percentages of gross salary. From 2005 to 30 June 2013 the rate was 9%. On 1 July 2013 it was increased to 9.25%, and then on 1 July 2014 to 9.5% where it remained until 30 June 2021. On 1 July 2021, 1 July 2022 and 1 July 2023 it was increased to 10%, 10.5% and 11% respectively. It is due to increase to 11.5% on 1 July 2024. On 1 July 2025 it will increase to 12%, that being the present limit.
3. In the event that I did not find that the plaintiff would, in fact, have been employed by UTAS, counsel for the plaintiff submitted the award for superannuation should be calculated in accordance with principles that are to be found in Scattergood v Commonwealth [2022] TASSC 21 and Roberson v Icon Distribution Investments Pty Ltd [2020] ACTSC 320. The plaintiff says that these cases show that "there appears to have developed a trend in this jurisdiction (as in others) toward adopting a slightly higher factor than that previously being paid". The plaintiff submits 12% is an appropriate average rate for the present and into the future.
4. In Scattergood, Blow CJ noted that the contributions are paid on the basis of gross salary. His Honour applied the applicable percentage contribution rate (9.5%) to past loss. His Honour then noted the projected increases up to and including 1 July 2025. At [130] he observed that employer superannuation contributions in respect of the relevant salary would average at least 11% over the next 17 years, being the period he was dealing with, and he used that percentage figure to calculate the loss.
5. The reliance on Roberson needs some analysis. What was said by Crowe AJ in that case has its origins in Najdovski v Crnojlovic [2008] NSWCA 175, 72 NSWLR 728. At the time the compulsory contribution rate was 9 per cent. At [53], in the context of an issue of construction about the equivalent of s 25(1) of the CLA, Basten JA (with whom Allsop P agreed) noted that for ease of convenience and because damages are assessed by reference to net earnings, the calculation is sometimes undertaken on the basis of 11 per cent of net earnings. The basis of that was not explained. The approach has been adopted by the agreement of the parties in cases in this State: O'Neill v Rhodes [2016] TASSC 17 at [122]; Keller v Phillips [2019] TASSC 35 at [197].
6. The basic Najdovski "rule of thumb" approach has in some cases been modified, apparently to take into account further increases in the rate and, at times, the period to retirement: see for instance Alelaimat v Synergy Scaffolding Services (No 3) [2022] NSWSC 536 at [172], Franco v Workers Compensation Nominal Insurer (No 2) [2021] NSWSC 129 at [187], Metri v Nestle Australia Ltd [2021] NSWSC 343 at [368] (34),(37) and Meas (by his litigation guardian Adcock) v Tipping [2023] ACTSC 187.
7. In any event, in Roberson at [329]-[331] Crowe AJ said:

"The figure of 11% of the past loss of earning capacity award has been accepted since ... in Najdovski as being the appropriate way to assess damages for loss of superannuation. This avoids the more complicated calculations required to work out the true value of 9% of a plaintiff's gross loss, where 9% is the minimum required employer contribution under the Superannuation Guarantee (Administration) Act 1992 (Cth). Of course, since Najdovski the minimum percentage figure has increased incrementally to the current figure of 9.5%. The plaintiff has provided no authority for the increase from 11 to 11.5%, and I have not been able to find any cases applying an increase to the 11% figure. However, it does seem to me that the increase in the statutory minimum in recent years does warrant a slight increase to the conventional figure.

In relation to his future loss, the plaintiff claimed 13% of the amount awarded for future loss of earning capacity. The defendant contended that these damages should be calculated using the figure of 11%. The plaintiff argued that the higher figure should be used having regard to the proposed sequence of increases in the minimum percentage to 12% over the coming years.

It seems to me that there is insufficient certainty that the minimum percentage figure will in fact be increased as proposed. ... I award damages for future loss of superannuation at 11.5% of $450,000 giving a total of $51,750."

1. The average of the benefit rates from 2005/2006 to date is 9.4%. Given the approached urged on me by the plaintiff, and in the absence of any further submissions, I propose to allow 11.5% on the net past loss; a total of $45,550. The average from the very near future to the figure which, I think is safe to say will be in existence for at least a considerable period, is so close to 12% as to be negligible. I will allow 12% on the net future loss, which gives a figure of $120,000; a total amount of $165,550.

1. Said to be by way of a conservative assessment, the plaintiff claims a total of about $21,368 for past treatment and medication expenses. The breakdown is $15,500 for psychotherapy by Dr Glinka, $1,868 for treatment by Dr O'Rourke, $2,000 for general practitioners, and $2,000 for medication. I do not understand there to be any dispute about the amounts claimed. Further, on the evidence I am satisfied that in the period to date, further costs would have been incurred in relation to Dr Glinka, a general practitioner and medication in the frequency and at the rates as claimed and I would allow further $3,000. That makes a total of say $24,370 for past expenses and I allow that amount.
2. As to future expenses, the plaintiff submits that given the degrees of uncertainty about the future, the approach to the assessment of loss of earning capacity is appropriate - that of assessing possibilities and probabilities - has particular application in this context.
3. In the particulars of claim dated 5 September 2022, amounts of $17,974 and $14,400 are respectively claimed for future treatment and future medication. Treatment costs relate to "up to 40 sessions per year for 2 years at $191.35 per session" with Dr Glinka. The amount claimed is $7,654 but that figure only represents one year. There is a claim for GP consultations four times a year for 30 years at $86 per visit, resulting in an amount said to be $10,320, but which figure has not been discounted. The claimed medication costs are $480 a year for 30 years, said to give rise to an amount of $14,400, which is also a non-discounted figure. (On my calculations, the respective amounts, made weekly and discounted at three per cent for the 30 year period, are $6,871.56 and $9,581.54.)
4. In closing submissions, the State agreed the figures as claimed in the particulars, amounting to a total of $32,374.
5. However, in closing submissions for the plaintiff, the claim for the psychiatric consultations was expanded to monthly consultations for 30 years, noting the plaintiff's present life expectancy is 42.67 years. The discounted sum claimed is $45,835.68. That length of psychotherapy is not supported by the evidence of Mr Minehan and Dr Jordan. Psychological and psychiatric treatment first started in late 2016 and increased as events moved through to 2018 and beyond. Having regard to what is suggested by the mental health professionals in evidence, I think it fair to allow monthly psychotherapy sessions for a period of three years. At an approximate cost of $192 a session. The resultant discounted amount is close enough to $6,640.
6. The same claim was maintained for general practitioner consultations; that is, four per year for the 30 year period at a cost of $86 per visit. I think is fair to allow general practitioner monitoring of mental health and prescriptions on that basis, and say $6,875 should be allowed. As to medication, the claim was increased to $10 per week for both paroxetine and diazepam for 30 years. There is a greater degree of uncertainty about the future need for medication. There are reasonable prospects of the discontinuance of diazepam in the reasonably foreseeable future, but not so in relation to the anti-depressant. A real need might continue for a considerable period of time and there may be a continued but intermittent need indefinitely. Given the State's attitude, I think it fair to allow the sum claimed; $10,380.
7. In addition to the particularised claims, the plaintiff has claimed a "buffer for prescribing an anti-depressant from time to time and for hospitalisation." (I observe that paroxetine, presently being prescribed, is an anti-depressant.) I agree that a particular total figure for all future expenses could be excessive or inadequate depending on the plaintiff's progress, and that to an extent a broad brush approach might be adopted. On that basis, and again noting the State's position I would allow future medical and medication expenses in the sum of $28,000.

1. The plaintiff claims damages under this head in the form as it was known to the common law; that is, damages being the notional cost of domestic and nursing services provided gratuitously by a relative friend or other person, calculated by reference to market cost: Van Gervan v Fenton (1992) 175 CLR 327. There is a preliminary issue about this claim. As I have explained, the CLA does not apply to the assessment of damages and so s 28B of that Act is not relevant.[20]
2. The State asserts that the plaintiff has no entitlement at all to this form of damages. The argument runs as follows. Section 5 of the Common Law Miscellaneous Actions Act 1986 (the CLMA Act) provided as follows:

"An award of damages that relates to personal injury of a person shall not include compensation for the value of services of a domestic nature or services relating to nursing and attendance -

(a) which have been or are to be provided by another person to the person whose favour the award is made; and

(b) for which the person whose favour the award is made has not paid or is not liable to pay."

1. As is evident, this provision removed the entitlement to such damages where the services were provided gratuitously, and imposed a requirement that there be a liability to pay for them. It is convenient in this discussion to adopt the definition of gratuitous services now in the CLA: "Services of a domestic nature or services relating to nursing or attendance provided to a person for which that person does not pay or is not liable to pay."
2. The CLMA Act was repealed by the Civil Liability Amendment Act 2005, which introduced s 28B. The argument is that s 16(1) of the Acts Interpretation Act 1931 applies. Relevantly, that provision is in the following terms:

(1) Where an Act repeals any other enactment then, unless the contrary is expressly provided, such repeal shall not -

(a) revive anything not in force or existing at the time such repeal took, or shall take, effect;

(b) affect the previous operation of any enactment so repealed or anything duly done or suffered under any enactment so repealed;

(c) affect any right, privilege, obligation, or liability acquired, accrued, or incurred under any enactment so repealed;

1. The State's point is that because of par (a) in particular, the repeal of the CLMA Act by the Civil Liability Amendment Act 2005, "does not revive a right to such damages that was not in force at the time the repeal took effect." That means the plaintiff's entitlement to damages for gratuitous services is confined to those that would have been awarded if the CLMA Act continued to apply. As the services the subject of the claim were and are to be provided by Mr Munting, it is common ground that there is no liability of any nature to pay for those services. On that basis, the plaintiff has no claim.
2. I need to mention again some provisions of the CLA that I have already mentioned. Section 3B was inserted by the Civil Liability Amendment Act 2003. It provides that the CLA does not apply to civil liability in respect of an intentional act that is sexual assault or other sexual misconduct. It applies to causes of action which accrued after 4 July 2003. Section 4(3) of the CLA, which was inserted by the Civil Liability Amendment Act 2004, makes Part 7 of that Act - which relates to assessment of damages for personal injury - not applicable to causes of action that accrued before 4 July 2003.
3. Before the Civil Liability Amendment Act 2005, which inserted s 28B, all awards of damages that related to personal injury were subject to the CLMA Act. After 2005 and the repeal of that Act, in actions to which Part 7 of the CLA applied, damages for gratuitous services could only be awarded in respect of such services required as a result of injuries caused by the negligence of another person, and subject to the satisfaction of the threshold.
4. Accordingly, before 2005 there were two classes of persons to whom Part 7, and hence s 28B, did not apply; those whose action was in respect of a liability that fell within s 3B - which included liability for sexual assault or other sexual misconduct - and those whose cause of action accrued before 4 July 2003 irrespective of its nature. After the Civil Liability Amendment Act 2005 there was then a third class to whom s 28B did not apply. This consists of persons whose injuries result from something other than "negligence". And so that class consists of plaintiffs whose injuries are caused by intentional acts (eg the tort of battery) or solely by way of breach of statutory duty. The question is, what did Parliament intend in relation to those classes of plaintiffs?
5. Section 4(1) of the Acts Interpretation Act provides as follows:

(1) Except where otherwise expressly provided, the provisions of this Act shall be applied in the interpretation and construction of every Act whenever passed (including this Act) and of all regulations made under any Act, except in so far as -

(a) any provision of this Act is inconsistent with or repugnant to the true intent and object of the particular Act or regulation to be interpreted; or, in case of a regulation, with the true intent and object of the Act under which such regulation purports to have been made;

(b) the interpretation which any provision of this Act would give to anything contained in such particular Act or regulation is inconsistent with the context thereof or with any definition or interpretation contained in such particular Act or regulation or in the Act under which such regulation is made."

1. It is clear that s 16 of the Acts Interpretation Act, and its counterparts in other jurisdictions, negate the old common law rule that on the repeal of an Act that had altered the common law, the common law was revived: see for instance Majeau Carrying Co Pty Ltd v Coastal Rutile Ltd (1973) 129 CLR 48 and R v Gallagher (1986) 41 SASR 73. Some of the equivalents of s 16 contain in the chapeau, the words "unless the contrary intention appears", but in effect the same thing is achieved by s 4, although regards need to be had to the specific wording of subss (1)(a) and (b).
2. R v Gallagher provides an instance in which the construction achieved by application of the s 16(1) equivalent and the consequent non-revival of the common law, was said to "fly in the face of the evident intention of the legislature."; per King CJ at 76, and see also Zelling J at 83. More generally, I would also refer to Pfeiffer v Stevens [2001] HCA 71, 209 CLR 57 at [56], where McHugh J said that an intention contrary to the Acts Interpretation Act may appear not only from the express terms or necessary implication of a legislative provision, but from the general character of the legislation itself.
3. I think it can be accepted that before 2005 the plaintiff had no entitlement to damages for gratuitous services. She had a cause of action which she could have pursued subject to the limitation point being pleaded: Robertson v Hobart Police and Citizen's Youth Club Inc [1982] TASRp 12; [1982] Tas R 102 at 114-115; Rae and Partners v Shaw [2020] TASFC 14 at [131]; Price v Spoor [2021] HCA 20, 220 CLR 450 at [20]. That remained the case until 1 July 2018.
4. I have looked at the Minister's second reading speech in introducing the 2005 Civil Liability Amendment Bill on 23 November 2005. The Minister said that when the Act "was amended to adopt most of the Ipp recommendations," adoption of a number of recommendations including those relating to awards of damages for gratuitous care was deferred for further consideration. In relation to the amendments concerning gratuitous care, the Minister noted the situation under the CLMA Act and said:

"Tasmania is the only jurisdiction to have abolished claims for gratuitous care for an injured person. Damages for gratuitous care of a plaintiff were abolished in 1986 because there had been a sharp increase in the number of claims for gratuitous care, many of which contain unreasonable components or involved claimants who were not seriously injured.

The Ipp Report did not recommend the abolition of awards of damages for gratuitous care to an injured person, on the basis that it may be counter-productive, giving plaintiff's a strong incentive to retain professional care as to provide the services perhaps lead to an increase in total damages awards. However, the Ipp Report did recommend that damages for gratuitous care should not be recoverable unless such services are required by the plaintiff as a result of the injuries caused by the negligence of the defendant and have been provided, or are likely to be provided, for more than six hours per week and for more than six consecutive months.

This bill reinstates damages for gratuitous care to a person within the limitation stipulated by the Ipp Report. The Ipp model ... ensures that people who have relatively minor injuries are not eligible for damages for gratuitous care. This helps to address one of the reasons for the abolition of awards for gratuitous care in Tasmania, which was that the award were being made for relatively frivolous claims. In doing so, it brings Tasmania into line with other States and ensures that persons injured in Tasmania as a result of the negligence of others are not disadvantaged relevant to persons interstate." [My emphasis]

1. Of course, the references to the 'Ipp Report' and its recommendations are references to the well-known Review of the Law of Negligence: Final Report (2002). It is true that the Ipp Report recommended that damages for gratuitous services may be awarded only in respect of services required by the plaintiff as a result of the injuries caused by the negligence of the defendant. But it does not seem to be correct to say that the proposed s 28B brought "Tasmania into line with other States". No other jurisdiction seems to have limited damages for gratuitous services to those required as a result of injuries caused only by negligence.[21] However, the terms of reference of the Review confined it to an inquiry into the application, effectiveness and operation of common law principles applied in negligence, and developing and evaluating principle options to limit liability and quantum of awards for damages. Hence the Ipp Report is limited in context to the law of negligence only.
2. In my view, a Parliamentary intention to deprive those classes of plaintiffs who I have identified of an entitlement to damages for gratuitous care - unlimited though that may be under the common law - is not sensibly discernible. When enacting the Civil Liability Amendment Act 2005, Parliament must be taken to have been aware of the situation it created by the 2003 and 2004 amendments. The clearly evident intention as it appears to me, was to restore damages for gratuitous services, but for those to whom Part 7 of the CLA applied, the entitlement was subject to the threshold provided for in s 28B(2).
3. To use the words of s 4(1)(b), of the Acts Interpretation Act, the interpretation which s 16 would give to the repeal of the CLMA Act is inconsistent with the legislative context. An intention to the contrary to the application of s 16 comes by way of necessary implication from the general character of the legislation. I hold that as matter of law, the plaintiff is entitled to claim damages for gratuitous services.

1. According to the plaintiff, up until late 2018-early 2019, the division of labour between her and her husband in terms of cooking, housework etc was 50:50. That changed in about February 2019. She said her mental health had declined to a point that she was not functioning as well in a whole range of areas "including being a good wife, mother, housekeeper, everything." The change in responsibility has evolved over time and seems to have settled to its present pattern in 2022_._ She said that Mr Munting does most of the cleaning and thought that overall the domestic chores were now 80:20. Over the years they have employed a cleaner at the rate of $20 per hour. In cross-examination, while appearing to agree with the proposition stated in the particulars that Mr Munting did 100 per cent of the shopping, the plaintiff said she sometimes gets things from the shop as required during the week.
2. Mr Munting's evidence was a little clearer. He said that up to 2018, domestic work was shared on a 50:50 basis, but it changed very soon after the plaintiff reported the abuse to police. He said that her mental health started to go downhill and she was quite quickly less able to function. He said that he had taken over the cooking, cleaning and washing although the plaintiff still does some work outside because she appears to find it beneficial. When asked to estimate the number of hours that he had increased his workload by, he said it would easily be eight or nine hours a week. He was not cross-examined about this.
3. The claim is at the rate $20 per hour. As far as past loss is concerned, I think it fair to allow eight hours per week for the period 1 February 2019 to date. That is a period of about 278 weeks, which amounts to $44,480. The plaintiff claims that weekly allowance for the rest of her life. That is simply not supportable on the evidence. In my view, an allowance at the full rate but only for two years is fair. That will take into account probable gradual improvement over a longer period. The discounted amount is $16,210, making the total award under this head close enough to $60,700, which sum I allow.

Non-economic loss - pain and suffering, aggravated damages

1. I have already set out the nature of the physical acts committed by Pollard, the circumstances in which the abuse was revealed, the plaintiff's emotions at the time and the significant psychological suffering including the symptoms of complex PTSD suffered since then. Mr Munting spoke of the high levels of the plaintiff's emotional turmoil and the distress, including suicidal ideation and tendencies.
2. Because of the breach of duty on the part of Mr Radford that I have found to have occurred, and because of the claim against the State for aggravated damages, it is necessary to explain what happened to the plaintiff after the rebuke, and during the time in which Pollard taught her in the third term of 1999.
3. After refusing to be involved with Pollard any more, he wrote her letters which he put in her locker. They made her upset. She said that she felt "disgusting, dirty, naughty, distraught, scared". After reading them she tore them into tiny pieces and put them in a bin. She did not give any evidence about the contents of the letters, but counsel asserted they contained declarations of love and the need to see her, and questioning about what he had done wrong and why she would not see him. The plaintiff said that after a time of her refusing to be involved with him, Pollard became dismissive of her and then vindictive. She tried to avoid him as much as possible.
4. When she was asked how things were for her during the time he taught her, she responded as follows:

"Three hours a week of hell. I had to sit in his room like nothing had happened, listen to him teach, that was fine. Listen to his banter with the other students. Listen to his banter with the lab technician, some of which, this banter, I felt was directed at me. Those - no-one else in the room would have known that those - what those comments really meant but I did. I wanted - I wanted to shrink away and die is the wrong word, but I - I didn't want to be there. I - yeah, just stick the knife in and twist it one more time, eh? Why not? The - those - those comments were controlling. It was - it was like he was trying to keep me quiet and make me out to be the bad guy. 'Look how much we do for these students, we do so much for them and they give us so little back, you know, students of the past were so grateful for all we - for what we do for them.' Innocuous to everyone else but for me."

1. Pollard's sexual abuse has had a very significant adverse impact on the plaintiff's life. The course of conduct involved the plaintiff deceiving her family and engaging in secretive tactics. Some of the conduct involved digital penetration. She felt trapped and afraid. As noted, the plaintiff started to develop disturbances to her mental health shortly after the abuse ended. She has terrible psychological problems and endured a great deal of mental anguish which manifests itself in various ways. For instance, she starts to cry when trying to talk to students about issues surrounding consent. All of this has been with her since she has been 14 years old. She has had a particular difficult time in recent years with detailing the abuse to police, and the subsequent criminal and other proceedings. She will have a difficult period in the next few years, and will never be completely free of the consequences of Pollards' intentional torts and negligence.
2. The plaintiff has managed her family and work life with fortitude, something for which she should not be disadvantaged in this context. Positives in her life are that she has a happy marriage with a very supportive husband. She is able to engage in activities such as running, pilates and has some involvement with the Scout movement. All of that said, the emotional and psychological pain has been and will be considerable. I note the plaintiff has used all her sick leave entitlements. They accumulate and do not exhaust annually. Some allowance needs to be made for the chance of unpaid sick leave.
3. Aggravated damages may be awarded to a plaintiff who suffers increased distress as a result of the manner in which a defendant behaves when committing a wrong, or thereafter. The qualification is that the conduct must be of a type that increased the plaintiff's suffering. They are compensatory in nature, being awarded to the plaintiff's feelings caused by insult, humiliation and the like: Lamb v Cotogno [1987] HCA 47; (1987) 164 CLR 1. The more insulting or reprehensible a defendant's conduct, the greater the indignity which the plaintiff suffers and the greater hurt to feelings (Uren v John Fairfax and Sons Pty Ltd (above).
4. As to Pollard's conduct, there is good reason to make an award of aggravated damages. The whole course of tortious conduct, including his attempting to pursue the relationship and his vindictive conduct after the plaintiff put an end to what had been going on, involved a breach of trust. There were individual breaches of trust on the occasion of each incident of abuse: ZAB v ZWM [2021] TASSC 64 at [121]. The State accepts that its vicarious liability for Pollard's conduct extends to liability to this form of damages.
5. Having regards to all the circumstances, I assess compensatory damages including aggravated damages in the sum of $275,000.
6. I will now deal with the separate claim for aggravated damages against the State. This only arises from the State's vicarious lability for the breach of duty I found to have occurred on the part of Mr Radford. To recap, I found that he ought to have known that the relationship was something more than an appropriate teacher/student relationship and ought to have ensured that Pollard did not teach the plaintiff in third term. The plaintiff's case amounts to an assertion of concurrent wrongdoing materially contributing to indivisible harm caused in the aftermath of the sexual abuse. The plaintiff was required to endure Pollard as a teacher for a period of approximately three months.
7. An award is justified but the aim of an award is to compensate, not to punish. The assessment is made from the point of view of the plaintiff. The focus is not of so much on the conduct of the defendant, as is the case when considering exemplary damages. I think such awards should not be niggardly but compensatory damages as such for injured feelings need to be taken into account. In this case, the breach giving rise to the claim must be put in the overall context of the plaintiff's claim. I consider the breach to involve a reckless indifference to the plaintiff's welfare. I will allow $15,000.

1. It will be recalled this claim is only made in relation to Pollard. Exemplary damages are awarded as a form of punishment; to deter repetition of reprehensible conduct and a mark of a court's disapproval of such conduct. They may be awarded for a tort committed in circumstances involving deliberate acts, being intentional or in reckless disregard of a plaintiff's interests. In summary, the objects of the award may include condemnation, admonition, and expression of strong disapproval.
2. The plaintiff seeks exemplary damages based on the conduct of the litigation. The plaintiff relies on the case of Cheng v Farjudi [2016] NSWCA 316, 93 NSWLR 95 for the proposition that relevant "contumelious" conduct can continue include after criminal punishment has been inflicted and can be constituted by ongoing denial of the same conduct, and requiring the plaintiff to prove the conduct at trial. The submission calls for an examination of the principles involved.
3. The starting point for the discussion is Gray v Motor Accident Commission [1998] HCA 70, 196, CLR 1. At [40], the plurality (Gleeson CJ, McHugh, Gummow and Hayne JJ) held that where the criminal law has been bought to bear on a wrongdoing and substantial punishment inflicted, exemplary damages may not be awarded. Their Honours explained that this was because the infliction of substantial punishment for what is substantially the same conduct as the conduct which is the subject of civil proceedings, is a bar to an award.
4. At [41]-[43] their Honours went on to explain that there are two reasons in principle why that is so:

"Where, as here, the criminal law has been brought to bear upon the wrongdoer and substantial punishment inflicted, we consider that exemplary damages may not be awarded. We say 'may not' because we consider that the infliction of substantial punishment for what is substantially the same conduct as the conduct which is the subject of the civil proceeding is a bar to the award; the decision is not one that is reached as a matter of discretion dependent upon the facts and circumstances in each particular case.

There are at least two reasons in principle why that is so.

First, the purposes for the awarding of exemplary damages have been wholly met if substantial punishment is exacted by the criminal law. The offender is punished; others are deterred. There is, then, no occasion for their award.

Secondly, considerations of double punishment would otherwise arise."

1. Their Honours went on to acknowledge and discuss the difficulties that may arise in relation to determining what is "substantial punishment" but said the relevant questions did not fall for decision in the case. At [46], their Honours said:

"At first sight ... if criminal charges, alleging the same conduct as alleged in a civil proceeding have been brought and proved, it would be a most unusual case in which it was open to a civil court to conclude that the outcome of those criminal proceedings did not take sufficient account of the need to punish the offender to deter others from like conduct."

1. In reaching the conclusion expressed, their Honours noted that the conclusion they reached was consistent with Watts v Leitch [1973] TASStRp 2; [1973] TAS SR 16. That was a decision of Nettlefold J in which his Honour declined to make an award of exemplary damages on the basis that the defendant had already been punished in criminal proceedings, and to punish him again would be to punish him twice for the one act. At 24, his Honour said "I should assume that the punishment was appropriate having regard the facts before the Court." (In that case was an action for damages for assault. The defendant had been convicted of wounding and fined $75.)
2. I should also refer to the judgment of Blow CJ in ZAB v ZWM (above), a case of damages for sexual abuse, his Honour noted that the defendant had been punished by means of a conviction and a sentence of imprisonment, the length of which his Honour did not note. Referring to both Gray and Watts v Leitch, his Honour said:

"Because substantial punishment has been inflicted ... for substantially the same conduct as that which is the subject of this action, the exemplary damages could not be awarded".

1. In Cheng at [57]-[70], Beazley P, (Ward JA and Harrison J agreeing), discussed at some length the judgments in Gray. Her Honour went on to discuss two decisions of the New South Wales Court of Appeal which "point to the availability of exemplary damages, notwithstanding the criminal proceedings had been taken in respect of the same conduct"[22]. After further discussion, at [87] her Honour said:

"Accordingly, the position in Australia is that exemplary damages may not be awarded where substantial criminal punishment has been imposed. However, the High Court in Gray did not preclude an award of exemplary damages where something other than substantial punishment was imposed, and in accordance with the authorities in this Court exemplary damages may be awarded in some circumstances notwithstanding that a criminal sanction has been imposed." [Original emphasis]

1. Her Honour went on to consider the penalty that had been imposed on the defendant in that case. For an assault, a conviction had been recorded and was made the subject of good behaviour bond for a period of twelve months. At [105], her Honour declared she was not prepared to find that a conviction recorded in the imposition of a bond was not a substantial penalty. The question then became whether the case was "an unusual case" in the sense used by the plurality in Gray at [46]. At [107] her Honour concluded:

"Because I have not been prepared to find that the penalty imposed was not substantial, the question that arises is whether exemplary damages ought to have been awarded for some unusual reason. In this case that can only be, if at all, because of the manner in which the appellant conducted the litigation."[23] [My emphasis].

1. Hence, the imposition of criminal punishment is not an absolute bar to an award, but one cannot be made where substantial punishment has been imposed unless there is some unusual reason. That can exist because of the conduct of the litigation. (I have not been able to find any later case on this point although I note an award of exemplary damages made in Shalhoub v State of New South Wales [2017] NSWDC 363 included - in reliance on Cheng - consideration of denials that required the plaintiff "to engage in a lengthy trial that vindicated his rights": see [1181].) Although technically not binding, as a decision of an intermediate court of appeal in another State, Cheng is highly persuasive and I will follow it. I accept that because of the conduct relied on, this is one of the unusual cases in which exemplary damages can be awarded where there has been substantial punishment.
2. The plaintiff relies on the pleadings. Pollard's defence was filed in response to a statement of claim dated 9 November 2021. As does the current statement of claim, the particulars of assaults and battery are contained in par 12. The defence makes limited omissions of physical contact. They are, massaging the plaintiff's shoulders at school on one occasion, kissing her on the lips on several occasions at the School, kissing and running his hands over her body and putting his hands under her top and touching her breasts while on Maria Island, and running his hands down her side and rubbing against her on one occasion at the School.
3. By letter of 14 November 2022, Pollard's then solicitors wrote making formal admissions that such admitted conduct constituted batteries, that such batteries caused harm, and that he breached his duty of care by reasonably admitted conduct. The defence contains a denial of an unlawful or inappropriate relationship. As a result, a substantial part of the plaintiff's case remained in issue. The admissions made generally accord with the position Pollard took in the criminal proceedings in which, or course, adverse findings were made in the sense the sentencing judge was satisfied beyond reasonable doubt of the plaintiff's allegations beyond that which Pollard admitted. The defence was pleaded in spite of those findings.
4. In evidence, the plaintiff said she suffered considerable anxiety in the preparation for this trial; in particular having to return to the School carpark caused her significant distress. As earlier noted, shortly before the trial was due to start, Pollard gave notice that he would not be participating in the trial. The plaintiff said that she suffered mixed emotions as a result. She was angry because she felt he should be present at the trial, listening to her evidence and to make him accountable for what he did, but she also felt relief that she would not need to see him. As to when the trial commenced and Pollard was called, the plaintiff said:

"I watched that door and was absolutely mortified because I still thought that he would turn up I was still scared that man was still going to walk through the door even though rationally I had been told that he wouldn't."

1. In Cheng at [112], it was made clear that putting a plaintiff to proof as to damages is a different thing in terms of consequence, to taking an unreasonable position in relation to liability and showing serious disregard for a plaintiff's interest in that respect. In this case, I take into account that until the last minute, at least, the plaintiff was in event any pursuing a claim against Mr Radford, and in fact pursued the case against the State. Those things required preparation, and for her to give evidence as to the sexual abuse. However, the fact of Pollards continued denials and their emotional effect remain.
2. Counsel for the plaintiff did not mention the retributive and vindictive behaviour in this context but it seems to me to be relevant. The sentencing judge's comments on passing sentence do not contain reference to this conduct, and it can be concluded that it was not taken as evidence of a lack of remorse or was in any other way taken into account in the sentencing process. Given the existence of substantial punishment for the sexual abuse, I think an amount of $25,000 is an appropriate sum to satisfy the objectives of exemplary damages in relation to the relevant conduct.

1. In the particulars of claim the plaintiff seeks interest on lost income and superannuation pursuant to s 35A of the Supreme Court Civil Procedure Act 1932. In closing submissions this was expanded to include interest on a percentage of the damages awarded for non-economic loss. The State does not disagree that interest could be awarded in respect of those amounts.
2. Section 35A did not commence until 9 September 2019. It operates retrospectively in that it enables a discretionary award of interest at a rate not exceeding the prescribed rate for the whole or any part of the period commencing on the day on which the cause of action arose and ending on the day on which the judgment is entered. The prescribed rate is to be found in r 5A of the Supreme Court Rules 2000 (SCR). The prescribed rate for a calendar year, or for part of a calendar year, is a rate equal to 4% plus the most recent cash rate published by the Reserve Bank of Australia as at 1 January and 1 July each year.
3. The issue of whether an award of interest should be made for any period before the commencement date of s 35A was considered in Dann v Port Sorell Bowls Club Inc (No 2) [2020] TASSC 53 (Wood J), Public Trustee as Administrator of the Estate of Matthew Leonard v Atileo [2023] TASSC 33 (a decision of mine) and Steen v Trustees of the Diocese of Tasmania [2024] TASSC 3 (Brett J). As a matter of general approach, the view commonly taken in those cases was that there is general unfairness in calculating interest on a period before the commencement of the section, although it remained a matter of discretion. Authorities relied on included Simonius v Vischer [1979] 2 NSWLR 322, Aussems v Commonwealth of Australia [2005] NSWSC 217 and Nella v Kingia Pty Ltd [1989] FCA 201.
4. In each case, interest was not awarded before the commencement date but, of course, different considerations arose in each case. The writs in Dann and Atileo were filed before the commencement date, while that in Steen was filed after that date but it involved an application to set aside a previous settlement which was enabled by s 5C of the Limitation Act, introduced at the same time as s 5B. In any event, in ZAB v ZWM (above) - a case involved in damages for childhood sexual abuse - Blow CJ did not mention the question of retrospectivity, but considered the inability of the plaintiff to commence proceedings until changes in the law permitted that to occur, was the critical fact in the exercise of discretion in that case. At [92] his Honour noted that when proceedings were instituted, pre-judgment interest could not be claimed.
5. In closing submissions, neither the plaintiff nor the State made reference to any issue of unfairness arising from an award commencing before the commencement date of the section. Having regard to the State's position on the issue, and to the approach taken by Blow CJ in ZAB and taking into account the circumstances of this case, I think it is appropriate to take the same course as his Honour did in that case.
6. As to the rate, the plaintiff has supplied a list of the relevant RBA cash rates from January 2005 to that which applied at the start of 2023. There have been two relevant increases since then; from 3.1% to 4.1% in June 2023, and to 4.35% in December 2023. The plaintiff proposes to take the average and to add that to the 4% referred to in SCR r 5A. The State's calculations were essentially directed to a loss over a three year period.
7. Whatever interest rate is used, it can be at best only a rough guide as to the value of the plaintiff's loss during the relevant period: MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657 at 664. The plaintiff is awarded interest because he or she has been deprived of the use of money, not because they have foregone investment opportunities: Gogic at 666. There is nothing in the facts of this case that warrant any refined or specifically tailored approach. I accept the plaintiff's proposal to apply an average of the rates for the relevant period to the particular amounts concerned, but I need to settle on the rate to be applied.
8. The average prescribed interest rate for the relevant period is 3.15%. The higher interest rates came at the very start and at the end of the period under consideration. Over more recent years until more recently, when the plaintiff would have been earning higher amounts, the interest rates were historically low. Because the loss of earnings occurs progressively during a particular period, it is customary to apply the interest rate to the total and divide by two or alternatively halve the interest rate; the result is the same: see Cullen v Trappell (1980) 146 CLR at 19 and Grincelis v House [2000] HCA 42, 201 CLR 321 at [22].
9. Except in the case of ZAB, in which the precise calculations in each of the Tasmanian cases mentioned above, except Atileo, the rate of 4% was adopted. In Atileo, I settled on 3%. These outcomes reflect a conservative approach to the determination of the rate pursuant to SCR r 5A. Of course, each case has its individual characteristics. In my view, given the period involved and the various rates across that period, a rate of 4.5% is appropriate. On one half of the past loss of $379,600, that rate per annum from 1 July 2005 to date is about $162,000, and I order that amount be paid.
10. In terms of non-economic loss, the plaintiff submits it is appropriate to award 25% in respect of the 25 years since the start of the sexual abuse. Reliance is placed on the approach taken by Blow CJ in ZAB. In that case, having awarded $300,000 for non-economic loss including aggravated damages, his Honour at [126], said that he considered a modest award of interest was appropriate, and settled on a figure of 75 per cent of that amount as referrable to the period from the first incident of sexual abuse to the date of judgment. His Honour noted that it was a period of well over 30 years, and that it was necessary to bear in the mind the harm that was suffered "in long distant years, intermediate years, and recent years".
11. In this case, the defendant does not dispute the percentage adopted by the plaintiff of 25 per cent, but notes the plaintiff's submission involves the application of that percentage to the entirety of the relevant award. That observation is correct. Having regard to the plaintiff's age when the abuse occurred, her present age and life expectancy, and the history of her symptomology, along with assessing the possibilities and probabilities of what might occur in the future, I think the amount on which interest should be paid is one half of the award. Twenty five per cent of that figure is $34,375 and there will be an order accordingly.
12. That leaves interest on the aggravated damages awarded against the State. Looking at the case overall, and the basis of the modest sum awarded as a result, I decline to make an order for interest.

Interest on past aspect of loss of earning capacity

1. Pursuant to s 3 of the Wrongs Act 1954, the State has filed a notice seeking an indemnity from Pollard to the extent of the total amount the plaintiff may recover, or such part as may be found just and equitable. The claim is based on the ground that Pollard "engaged in criminal acts and/or intentional torts" against the plaintiff and/or was negligent, and wholly caused or contributed to any loss or damage suffered by the plaintiff. By way of particulars, the State relies on the plaintiff's pleadings as against Pollard.
2. Section 3(1)(c) of the Wrongs Act provides that in proceedings for contribution, the amount that is recoverable from the person shall be such an 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, and, for the purpose of the section, the court has power to exempt a person from liability to make contribution, or to direct that the contribution to be recovered from the person shall amount to a complete indemnity.
3. The exercise in apportioning liability between co-defendants involves the same considerations that arise in relation to an allegation of the plaintiff's contributory negligence. The approach is set out in the well-known case of Podrebersek v Australian Iron and Steel Pty Ltd (1985) 69 ALR 529 at 532-3. It reflects the wording of the provision. The making of an apportionment of respective shares in responsibility for damage involves a comparison both of culpability; that is, of a degree of departure from the standard of care of the reasonable man and of the relevant importance of the acts of the parties in causing the damage.

"It is the whole of the conduct of each negligent party in relation to the circumstances of the acts in which must be subjected to comparative examinations. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relevant importance of the acts of the parties in causing the damage will be of little, if any importance." [My emphasis]

1. Just and equitable contribution requires a consideration of culpability in the sense of the degree of departure by each dependent of the applicable standard of care, and the relevant importance of the acts or admissions of each in causing the damage. The essence of the exercise is the requirement that the conduct of the tort be subjected to a comparative examination: Shuttleworth v Morris [2020] VSC 143 at [23].
2. The State's liability as a tortfeasor primarily arises by way of its vicarious liability for Pollard's misconduct. As an employer it is entitled to seek indemnity from its employee. Lister v Romford Ice Co [1959] AC 573, has not been abrogated in this State. It is also liable for the modest sum representing aggravated damages, which liability arises by way of vicarious liability for Radford's inaction. The State does not seek contribution or indemnity from him.
3. In Shuttleworth (above) at [33] Forbes J said:

"Contribution amounting to a complete indemnity might be appropriate in circumstances where one joint tortfeasor has a liability without blame - such as a purely vicarious liability by reason of the relationship between tortfeasors**-**. ... However where there is a direct liability, the comparative exercise required for apportionment will rarely lead to a result that a just and fair contribution amounts to a complete indemnity."

1. In this case, the State has not been found to have any direct liability. In the circumstances, I do not see any proper reason the State should be not be entitled to a full indemnity in respect of the total award of damages excluding the sum I have specifically awarded against it in respect of aggravated damages.
2. In conclusion, I note that Pollard filed notices of contribution or indemnity against both Radford and the State. Of course Pollard did not appear at all, and is to be taken as not appearing to defend the plaintiff's claim, to be heard in relation to damages, or to pursue his notices of contribution. As those notices are outstanding and they have no merit, they will be dismissed.

(1) Judgment be entered for the plaintiff against the first defendant, Marcus Pollard, and the third defendant, the State of Tasmania, in the sum of $2,129,595.*

(2) Judgment be entered for the plaintiff against the first defendant in the sum of $25,000.

(3) Judgment be entered for the plaintiff against the third defendant in the sum of $15,000.

(4) The third defendant be fully indemnified by the first defendant in respect of the judgment the subject of order (1).

(5) The claims made for contribution in the notices of contribution of the first defendant dated 20 September 2022 are dismissed.

On 24 June 2024, acting by way of SCR r 435(a) and with the agreement of the solicitors for the plaintiff and the third defendant, I varied the amount in order no (1) to this amount from a lower figure. At the same time, I also published these revised reasons. The variation was made after the plaintiff's solicitors, pursuant to leave I had granted to make submissions on such matters, correctly pointed out an omission I had made in relation to the calculation of interest on past loss of income.

[1] On the first day of the hearing, the plaintiff asked that judgment be entered against the State, apparently on this basis; or at least that is how it appears to have been understood. Somewhat laxly in hindsight, I agreed, and ordered judgment accordingly. On later reflection I saw that this had the potential of creating great difficulties for both parties. Correspondence was sent to the parties detailing my concerns and indicating I was prepared to set aside the judgment of my own motion. Both parties agreed it was the appropriate course, and on 2 November 2023, that judgment was set aside.

[2] The amended defence is dated 19 March 2023; no doubt having been prepared in response to a draft supplied in advance by the plaintiff's solicitors.

[3] The words "and to February 2000" were added in the circumstances discussed later in these reasons.

[4] In its context, Mr Read's reference to "direct liability" was indeed ambiguous. On one view, if analysed, it might have appeared that what was being referred to was a primary liability, rather than a derivative liability, based on the attributions of acts arising from the principles of agency: see CCIG Investments at [55]-[58], [65]-[66]. As to that, I note the pleading of liability for the acts of Pollard and of Radford.

[5] In the particulars, there are claims for aggravated damages against Pollard on specified bases but not for exemplary damages, notwithstanding they are claimed in the statement of claim and in closing submissions.

[6] Those paragraphs are set out in par [31] above.

[7] Section 3B has no application to a cause of action that accrued before that date: see s 12 of the Civil Liability Amendment Act 2003.

[8] The Court (Basten JA, Hodgson and Ipp JJA agreeing) said the words "in respect of" should be understood as referring to the liability of the person who did the intentional act, not a person whose liability derives from their negligent conduct where the risk against which they should take precautions is the intentional act of another.

[9] "Emotional maltreatment" involved interfering with or neglecting the mental or emotional well-being of a child to such an extent that the child suffers, or is likely to suffer, psychological damage or impairment.

[10] This explanation of the Procedures is set out in a memorandum to principals of all schools and colleges from the Deputy Secretary dated 19 March 1996.

[11] Something that is not defined in the Act

[12] The plaintiff's case is that any breach materially contributed to a loss of earning capacity, as did Pollard's tortious conduct. Accordingly, because of its vicarious liability for the conduct of Pollard and Radford, the State is liable for the whole of any proven loss.

[13] "As a result of the abuse that she had suffered, the plaintiff felt that she needed to contribute to the education system as a teacher so that she might be able to protect other children from experiencing the trauma she suffered... .But for the abuse, it is unlikely that the plaintiff would have commenced a career as a secondary school teacher. It is likely she would have had the capacity to carry on various careers that attract a significantly higher income. ... [I]t is likely the plaintiff would have completed her PhD over three or four years [but] she may still have pursued a career as a chemist or chemical scientist without a PhD following her Honours year in 2005."

[14] "Clearly enough, the chronic and sometimes intense pain, the nightly disturbance of sleep and the associated loss of 'intellectual energy' which...resulted from the plaintiff's injuries had caused some diminution of his earning capacity."

[15] That particular passage and a possible connection between the wrongdoing itself and an intervening decision has been examined in a number of cases involving different legal contexts: see for instance Air Manymak v Jeffs [2006] NTCA 12 at [61]; Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82, 223 FCR 334; Gratax Pty Ltd v TD & C Pty Ltd [2013] QCA 385; Metro Waterloo Pty Ltd v HWL Ebsworth Lawyers [2022] QCA 195 at [105]- [111].

[16] See also New South Wales (NSW Police) v Nominal Defendant [2009] NSWCA 225 at [39].

[17] Professor Guijt's salary is within the general range of professorial salaries suggested by Mr Blandford.

[18] It might be noted that if the plaintiff had enrolled in biomedicine she would not have been at the Hobart campus of UTAS, and the particular PhD opportunity would not have arisen.

[19] The annual figure for 2021/22 includes income from the Department of Education, and projected income for the 2022/23 year is used in lieu of actual earnings to the date of trial.

[20] Section 28B(1) provides that damages for gratuitous services may be awarded in respect of gratuitous services required by the person as a result of injuries to that person caused by the negligence of another person, but that, by subs (2), such damages are not recoverable unless the services have been provided, or are likely to be provided, for more than six hours per week for more than six consecutive months.

[21] See Civil Liability Act 2002 (NSW), s 15, Civil Liability Act 2003 (Qld), s 59, Civil Liability Act 1936 (SA), s 58; Civil Liability Act 2002 (WA), s 112.

[22] Niven v SS [2006] NSWCA 338 and Whitbread v Rail Corporation of NSW [2011] NSWCA 130.

[23] The appellant/defendant in that case denied on oath the assault and pleaded that he had only pleaded guilty as a matter of convenience.