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[2026] NSWDC 254
District Court of NSW
2026-07-17
Abadee DCJ
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Medium Neutral Citation: NS v State of New South Wales (Department of Education) [2026] NSWDC 254
Hearing dates: 6, 7, 8 July 2026
Date of orders: 17 July 2026
Decision date: 17 July 2026
Jurisdiction: Civil
Before: Abadee DCJ
Decision: See: [298]
Catchwords: TORTS — intentional torts — institutional sexual abuse — whether child sexual abuse occurred by school teacher — causation — whether intervening acts severed causal connection
EVIDENCE — certificate of conviction — whether facts sustaining essential elements of criminal offences rebutted — whether defendant in subsequent civil proceeding discharged evidential onus to prove convictions erroneous
DAMAGES — aggravated damages — availability of exemplary damages when defendant has received a sentence of imprisonment
NEGLIGENCE — cross-claims — institutional sex abuse — first defendant (State) claims indemnity or contribution from second defendant (teacher) who allegedly perpetrated abuse against the plaintiff — significance of settlement of plaintiff’s claim against the State — whether State is a tortfeasor liable — whether teacher is a tortfeasor who if sued by the plaintiff would have been liable to her for the same damage — reasonableness of settlement of plaintiff’s claim against the State — apportionment of liability as between tortfeasors
DAMAGES — whether State’s claim against teacher for contribution apportionable under Civil Liability Act 2002 (NSW) — whether claim against teacher for damages for breach of contract apportionable
CONTRACT — contract of employment — implied terms — damages — whether costs incurred in defending suit by third party recoverable in contract against a contract breaker
Legislation Cited: Civil Liability Act 2002 (NSW), ss 3B, 34
Civil Procedure Act 2005 (NSW), ss 21, 56, 100
Crimes Act 1900 (NSW), ss 61M (rep), 66DB, 73A, 77 (rep), 80AE
Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW)
Employees Liability Act 1991 (NSW), s 5
Evidence Act 1995 (NSW), ss 92(2), 97, 140, 178
Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5(1)(c)
Law Reform (Miscellaneous Provisions) Act 1965 (NSW)
Teaching Services Act 1980 (NSW), s 42
Uniform Civil Procedure Rules 2005 (NSW), rr 12.6, 12.7, 29.7
Cases Cited: “B” v Reineker [2015] NSWSC 949
AA v MacDonald; BB v MacDonald [2026] NSWDC 1
AA v Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle (2026) 427 ALR 67; [2026] HCA 2
BDS2 v CEG2 [2025] NSWSC 1291
Blaxter v Commonwealth of Australia (2008) Aust Torts Rep 81-948; [2008] NSWCA 87
Briginshaw v Briginshaw (1938) 60 CLR 336
Cheng v Farjudi (2016) 93 NSWLR 95
Director-General of Education v Suttling (1987) 162 CLR 427
EF v GH [2023] NSWDC 538
Gray v Motor Accident Commission (1998) 196 CLR 1
Hadley v Baxendale (1854) 9 Exch 341
Hammond & Co v Bussey (1887) 20 QBD 79
Irlam v Byrnes (2022) 108 NSWLR 285
IZG2 v State of New South Wales [2025] NSWSC 1366
Jones v Dunkel (1959) 101 CLR 298
Joslyn v Berryman (2003) 214 CLR 552
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361
Lewis v Doyle [2022] NSWSC 92
Lister v Romford Ice and Cold Storage Co Ltd [1957] AC 555
M’Kew v Holland & Hannen & Cubitts (Scotland) Ltd [1970] S.C (HL) 20
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
March v Stramare (E & M H) Pty Ltd (1991) 171 CLR 506
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Ms P v Mr D [2020] NSWSC 224
MTH v State of New South Wales [2025] NSWCA 122
Nau v Kemp & Associates Pty Ltd (2010) 77 NSWLR 687
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 529
Prince Alfred College Inc v ADC (2016) 258 CLR 134
Provident Capital Ltd v Papa (No 2) [2013] NSWCA 156
Purkess v Crittenden (1965) 114 CLR 164
Ramsay v Denton [2021] NSWCA 310
Roberts-Smith v Fairfax Media Publications Pty Ltd (Appeal) (2025) 310 FCR 170
Roggenkamp v Bennett (1950) 80 CLR 292
Searle v The Commonwealth of Australia [2019] NSWCA 127
Shinwari v Anjoul (2017) 94 NSWLR 314
Shuttleworth v Morris & Anor [2020] VSC 143
SR v Trustees of the De La Salle Brothers [2023] NSWSC 66
St Paul’s College Ltd v Allan [2026] NSWCA 22
State of New South Wales v Moss (2000) 54 NSWLR 133
State of New South Wales v Riley (2003) 57 NSWLR 496
State of New South Wales v Shaw (2015) 97 NSWLR 169
State of New South Wales v Taylor [2017] NSWSC 1794
Suttling v Director-General of Education (1985) 3 NSWLR 427
Tabet v Gett (2010) 240 CLR 537
Unity Insurance Brokers Pty Ltd v Rocco Pezzano Pty Ltd (1998) 192 CLR 603
Vella v R [2022] NSWCCA 204
Watt v Redman [2024] NSWSC 638
Watts v Rake (1960) 108 CLR 158
Texts Cited: I Neil, D Chin and C Parkin, The Modern Contract of Employment (3rd ed, 2023, Lawbook Co Ebook)
Category: Principal judgment
Parties: NS (Plaintiff)
State of New South Wales (Department of Education) (First Defendant)
Ricky Joseph Vella (Second Defendant)
Representation: Counsel:
M Gerace SC / J Smith (Plaintiff)
C Gleeson SC / T Scott (First Defendant)
Solicitors:
Maurice Blackburn Lawyers (Plaintiff)
Moray & Agnew Lawyers (First Defendant)
Green & Associates Solicitors (Second Defendant, up to 6 July 2026)
File Number(s): 2024/00167029
By this proceeding, commenced by a statement of claim filed on 22 April 2024, the plaintiff claims damages for personal injuries against the State of New South Wales (‘the State’) (as first defendant) and the second defendant arising from alleged sexual abuse that the second defendant perpetrated against her. The alleged tortious conduct partly occurred when the plaintiff was a student, and the second defendant a teacher, at the relevant primary school (‘the School’) between 1997 and 2000, when she was in Years 2 to 5 (incl). In particular, the tortious conduct is alleged to have started in 2000, when the plaintiff was in Year 5 and the second defendant taught the plaintiff as her classroom teacher. The tortious conduct then allegedly continued after she had left that school at the end of 2000, in the course of other contact that the second defendant had with the plaintiff throughout 2001 and 2002. The opportunity for him to engage in this continued abuse, it was said, occurred through the second defendant providing private tutoring at the plaintiff’s family home and through outings that he had with the plaintiff outside of the school environment.
The plaintiff sued the State on multiple bases: vicarious liability for conduct of its employees, breach of a non-delegable duty of care owed to students attending schools operated by the State, and negligence. She sued the second defendant for his alleged sexual abuse perpetrated against her, which constituted the torts of battery and assault.
In circumstances addressed in a separate judgment, on the first day of the hearing, the second defendant, who had attended by audio visual link (as he was incarcerated), ceased ‘attending’ the Court. This was after certain procedural steps were taken on his behalf and after his then solicitor, Mr Green, had his retainer terminated (and, out of abundant caution, was granted leave to withdraw). The evidence for these procedural events is in Exhibits 2 DX 1 and 2.
Also on the first morning of the hearing, Senior Counsel for the State indicated that the State had, in principle, settled the plaintiff’s claim, but intended to proceed with its cross-claim against the second defendant/cross-defendant.
On the second day of the hearing, by consent, judgment was entered for the plaintiff against the State in the total sum of $755,000 (inclusive of costs fixed at $275,000). The settlement was intended to be in full and final satisfaction of the plaintiff’s claim against the State, irrespective of whatever sum, if any, she recovered from the second defendant.
I note that the fact that a settlement in principle had been reached between the State and the plaintiff was conveyed whilst the second defendant (and his former solicitor) were in attendance in Court on the first day of the hearing. There is no reason to suppose that the second defendant was, or is, actually aware of the terms of the settlement, which were indicated to the Court on the second morning in his absence. But as the State points out, when apprised of the indication of the in-principle settlement on the first day, neither Mr Green nor the second defendant wished to alter their position of absenting themselves from the hearing, even though, had the second defendant remained in attendance, he would have come to learn of the terms of the consent judgment.
(a) maintains his denials that the abuse or any battery occurred; (b) purportedly ‘without admission’, he accepts liability by reason of the convictions entered against him; (c) contests causation (citing intervening acts) and invokes contributory negligence and voluntary assumption of risks; and (d) disputes quantum and effectively propounds his own schedule of damages, which is overall quantified in the sum of $40,574.22.
The second defendant also raised objections to certain documents in the plaintiff’s tender bundle (Exhibit PX 2), which were addressed in his absence early in the course of the hearing.
The hearing proceeded in the second defendant’s absence (under r 29.7(2)(a) of the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’)), as was within the express contemplation of both the second defendant and Mr Green. An unusual consequence of the events of that first morning was that the course that Mr Green proposed on the second defendant’s behalf (without objection from the plaintiff or the State), on fully informed instructions, did not accord with the course commonly adopted by defendants who, after having filed defences, no longer wish to participate in a proceeding. Commonly, that may involve the withdrawal of a defence (as per r 12.6 of the UCPR) or the striking out of a defence for its lack of prosecution with due despatch (as per r 12.7). By the course he proposed, the second defendant obtained certain forensic advantages (including the filing of a Defence, the raising of fresh factual matters, and the making of submissions about objections and factual chronologies). Once those steps were achieved, he thereafter effectively withdrew from the proceeding and submitted to whatever orders might be made by the Court. He wanted to have his cake and eat it too. This course of action came at a price when it came to the Court’s evaluation of many of the factual assertions (some, but not all of which, were made in his Defence) that he requested the Court to take into account. As the State submitted, with reference to authority, [1] the second defendant must bear the forensic consequences of his fully informed election not to engage further with (or, more accurately, disengage from) the proceeding.
What was left for the hearing after the plaintiff’s settlement with the State was the plaintiff’s claim against the second defendant and the State’s cross-claim against the cross-defendant.
The issues arising are:
Whether the second defendant sexually abused the plaintiff.
Whether the conduct of the second defendant caused or materially contributed to the injuries, loss and damage allegedly sustained by the plaintiff.
Whether any intervening acts contributed to, or compounded injuries suffered by the plaintiff, whether she acted in a way that amounted to contributory negligence, and whether she voluntarily assumed any risks.
Whether the plaintiff suffered a diagnosable psychiatric injury and, if so, her prognosis.
The plaintiff’s entitlement to, and quantification of, her asserted heads of loss, being general damages, past and future economic loss, past and future out of pocket expenses, aggravated and/or exemplary damages; and interest on general damages, past economic loss, past out of pocket expenses and aggravated damages or, alternatively, exemplary damages.
Much of the following is drawn from the plaintiff’s narrative account in an affidavit sworn by the plaintiff, which she adopted at the hearing. The affidavit was read, and its exhibit was marked PX 1. Reliance is also placed upon a chronology (Exhibit PX 3) prepared in advance of the hearing, which was also adopted by the plaintiff when she gave evidence. Within Exhibit PX 1, there were earlier written statements that the plaintiff had made to investigators and police.
A natural consequence of the second defendant’s effective non-attendance was that any positive factual matters that he wished to advance, unless proven through documents, were insusceptible of proof. A further natural consequence for the second defendant was that unless the State took up his cudgels, as it were, in any particular instance, the evidence of the plaintiff would be unchallenged.
As to the chronology, the second defendant had indicated that there were certain matters (sourced in certain documents contained within the Court Book) that he wanted to have taken into account. These were additional to, and not in contradiction of, what was contained in the plaintiff’s chronology. The second defendant’s ‘submissions’ about the chronology were located on pages 10-11 of Exhibit 2 DX 2. The matters that he wished to emphasise essentially post-dated the events giving rise to liability, and were relevant to the claim for damages and, in particular, causation issues. None of the chronological additions that the second defendant cited bore upon proof of whether, or in what circumstances, he committed the torts of battery and assault against the plaintiff.
The plaintiff was born in February 1990. She attended the School in Years 2-5 (incl), being the calendar years 1997 to 2000 (when she was aged seven to ten years). In 2001-2002, she attended a different primary school, before commencing high school thereafter.
In 1999, when in Year 4, the plaintiff met the second defendant, who was a teacher at the School. The second defendant was born in December 1968, making him approximately 21 years older than the plaintiff. In 1999, the plaintiff’s teacher was Ms Lisa Petersen (who later gave evidence on the cross-claim), but on occasions the classroom would open up to combine with the second defendant’s classroom.
In 2000, when in Year 5, the second defendant was the plaintiff’s class teacher. The plaintiff deposed to the second defendant teaching the class about Parliament and setting up a ‘Student Leadership Council’. He appointed the plaintiff as the ‘Executive Officer’ of that group, with three of her close friends (including LB and RS). Part of their duties involved putting things away for the second defendant, helping clean his desk and buying his lunch.
The plaintiff deposed, and, in limited respects, the second defendant agreed, that he rewarded the plaintiff by giving her lollies and chips from the storeroom, visited the plaintiff and her parents at their home and, (with the parents’ consent) provided her with home tutoring.
(a) indicated that he had taken a film from their putt putt golf outing and enclosed photographs; and (b) informed her that he “miss(ed) her heaps”.
(a) expressed his hurt, disappointment and upset for the plaintiff’s omission to inform him of details of what she was doing on her birthday; and (b) explained that she and other (past) students were important to him as he tried to go out of his way to support them.
(a) remarked upon her being a “precious gift” to him; and (b) signed off with “LUMH – love you mega heaps”.
A prevalent feature of these notes and correspondence was the second defendant’s affixing of certain drawings of ‘stick people’, a key to which was indicated at page 45 of Exhibit PX 1.
The plaintiff commented upon this correspondence in her affidavit. She deposed to the second defendant telling her to be open and honest about her feelings. She indicated that she felt pressured to reply and recalled his being annoyed if her letters were short or infrequent.
At the end of 2000, the plaintiff left the School. In 2001, the plaintiff transferred to a different primary school. Her family had moved to West Hoxton towards the end of the preceding year. She sensed that she was not keeping up in class whereas before the abuse, she recalled, her school reports indicated that her results were normal or average.
In an apparent response to the deterioration in her academic performance, towards the end of 2000 the second defendant commenced visiting the plaintiff’s family home as her teacher and was engaged to tutor her and her sister.
The plaintiff also asserts other conduct as amounting to grooming. She says that he sent correspondence to her describing how he was “missing” or “wanted to see” her. Before she was about to start high school, she said that the second defendant asked her to “take (her) clothes off as a gift”.
During 2001, the second defendant continued to attend the plaintiff’s home for weekly home tutoring in Maths and English. The plaintiff also visited his home. This much is admitted by the second defendant.
The plaintiff says that throughout 2001, the second defendant engaged in contact with her of a sexual nature (indecent acts). This included the second defendant kissing her on her lips at home, including in the laundry on multiple occasions.
The plaintiff deposed to two occasions on which, before taking her to Australia’s Wonderland, the second defendant drove her to his house at Merrylands. On one occasion, she was preparing to go swimming and was wearing her swimmers when he asked her whether she had sunscreen on. Although she said that she did, he told her that she needed more. She deposed to his walking into the room where she was applying sunscreen when she had her board shorts and bikini bottom lowered, therefore leaving her naked from the waist down. [3]
On another occasion, the plaintiff deposed to the second defendant insisting on applying sunscreen to her body while she was naked from the waist down. She deposed to his rubbing sunscreen all over her body, including around and on the sides of her vagina, and taking off her shirt, making comments to the effect of “that’s cute” and “that’s pretty”.
She also deposed that on another occasion he took her to church and putt putt golf, where he kissed her.
(a) between 1 July 2000 and 31 December 2000 at Warwick Farm; [6] (b) between 1 January 2001 and 31 December 2001 at West Hoxton; [7] (c) between 1 July 2001 and 31 December 2001 in Merrylands and West Hoxton; [8] and (d) between 1 January 2002 and 31 December 2002 at West Hoxton. [9]
As is apparent, these particulars were narrowly stated in the certificate of conviction. In its written submissions (MFI 2), the State aligned these charges with the more particularised account given by the plaintiff in her evidence:
The incident referred to in (a) above concerned the second defendant kissing the plaintiff on the lips in the storeroom at the School when the plaintiff was in Year 5.
The incident referred to in (b) above concerned the second defendant kissing the plaintiff on the lips in the laundry of her family home during the private tutoring arrangement when she was in Year 6;
The incident referred to in (c) above concerned the application of sunscreen to the plaintiff’s body at her home in the second half of 2001.
The incident referred to in (d) concerned the second defendant kissing the plaintiff in the laundry of her family home in 2002.
The certificate also recorded indicative terms for 17 charges in respect of which the second defendant was found guilty.
For the four offences in which the plaintiff was the victim, the indicative terms were:
For incident (a) above: 8 months’ imprisonment.
For incident (b) above: 10 months’ imprisonment.
For incident (c) above: 20 months’ imprisonment.
For incident (d) above: 10 months’ imprisonment.
The plaintiff relies upon the convictions in multiple ways.
First, pursuant to s 92(2) of the Evidence Act 1995 (NSW), they represent (at least) prima facie evidence of the essential elements of the offence of indecent assault (as it then was). [10] In this regard, as at the date of the conduct, the offence of aggravated indecent assault (against a child) [11] under s 61M of the Crimes Act 1900 (NSW) had the following essential elements:
the accused assaulted the complainant;
the assault was indecent; [12] and
the victim was under the age of 16 years.
As summarised in the Criminal Trial Courts Bench Book (at [5-610]), for this (since repealed [13] ) offence, a deliberate and unlawful touching of another person was sufficient to constitute a (criminal) battery. Where the conduct did not comprise touching, it would amount to a (criminal) assault if the accused made an unlawful threat to the complainant causing them to fear immediate and unlawful personal violence at the hands of the accused, and intended that the complainant would have such a fear as a result of the threat.
I begin by acknowledging that the plaintiff bears the onus of proving the torts. This is to be done in accordance with the requirements of s 140(2) of the Evidence Act. This provision effectively codifies principles expressed by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362, which emphasised the requirement that the trier of fact feel ‘actual persuasion’ of factual findings, a state of mind that cannot be reached independently of the nature and consequences of the facts to be proven; with the trier of fact needing to take into account the seriousness of the allegation, the inherent unlikelihood of an occurrence of the fact, and the gravity of the consequences flowing from a particular finding.
Where a civil proceeding features allegations of tortious conduct which could also amount to criminal conduct that has not given rise to a criminal proceeding that has finally been determined, the trier of fact must apply the standard of proof, whilst giving weight to the presumption of innocence and expecting an exactness of proof: Roberts-Smith v Fairfax Media Publications Pty Ltd (Appeal) (2025) 310 FCR 170 at [18]-[19].
This case, however, is different. The plaintiff relies upon (finally) proven criminal conduct which also makes out the torts of battery and assault. The State commended, as an approach to s 92(2) of the Evidence Act, the decision of Catsanos SC DCJ in AA v MacDonald; BB v MacDonald [2026] NSWDC 1, where his Honour considered that certificates tendered under s 92 (facilitated by s 178) constituted prima facie evidence of the elements which, in turn, cast an evidentiary onus on a defendant to adduce evidence that the convictions were erroneous. It had appeared by paragraph 34 of his Defence that the second defendant might attempt to do just that. By that paragraph, he asserted that he had “insufficient legal representation” during the criminal proceedings and was “constrained”, because of ill-health, from pursuing further avenues of appeal.
However, in circumstances where he has effectively absented himself, if there be any presumption arising under s 92(2), it has not been rebutted; or, alternatively, he has not discharged any evidentiary onus. I note that, this being a civil proceeding, a convicted person in the second defendant’s position is unable to rely upon any presumption of innocence and that inferences can be drawn from his refusal to give evidence (Jones v Dunkel (1959) 101 CLR 298).
Secondly, I accept the plaintiff’s unchallenged evidence narrating the events in her affidavit. Her evidence of the second defendant’s indecent assaults upon her naturally followed from abundant evidence of his preceding conduct in grooming her. In the nature of these things, one thing (grooming) led to another (indecent assault). Even if her evidence had been challenged, there was an abundance of unchallenged and contemporaneous evidence of her complaining of the sexual abuse when she was in Year 8. This not only bolstered her credibility (to the extent that ever was in issue), but also was relevant for proof of the truth of what she alleged against the second defendant. Moreover, in a range of subsequent out of court statements, there was a striking consistency in what she complained of.
The plaintiff is currently 36 years of age. It is now about 26 years since abuse was first perpetrated upon her.
In her affidavit prepared for this proceeding, the plaintiff referred to her anxiety, low mood and depression over the years.
She deposed to engaging in counselling with a psychologist in 2014 and again in 2019. She deposed to seeing the psychologist, Anna Severino, in late 2024. From January 2025, she saw Lisa Haslam of Hazel Tree Psychology for about 3 months.
The plaintiff supplied a comprehensive schedule summarising her medical and psychological records, including mental health treatment plans (MFI 6). It is unnecessary to descend into detail about those attendances, especially in view of what was ultimately a lack of contest as to her psychiatric and mental health condition and associated disabilities.
It suffices to emphasise the following. According to the plaintiff’s Counsel, the earliest indication of a link between the plaintiff’s flashbacks, nightmares, depression and anxiety and the abuse perpetrated upon her was apparent in clinical records of the Allcare Carnes Hill Medical Centre dated 15 July 2014. [15] The mental health treatment plan of that same date referred to the plaintiff’s provision of a history of post-traumatic stress, flashbacks, nightmares and crying, together with the reporting of a sexual assault whilst she was at a young age. [16]
The plaintiff’s history of antidepressant and anxiolytic prescriptions indicates, among other medications, her taking Lexaparo from May 2015 and Valium from 2018. [17]
On 28 March 2023, Dr Nicole Phillips prepared her initial psychiatric report in which she diagnosed the plaintiff with PTSD and Persistent Depressive Disorder. Further, she queried whether the plaintiff had undiagnosed ADHD, but found that this was difficult to diagnose in the context of childhood trauma. She believed that the plaintiff’s symptoms from PTSD were first apparent when she was in Year 8, when she suffered mood disturbance.
On 19 November 2025, Dr Phillips prepared a refresher psychiatric report in which she reported on the plaintiff’s substantial anxiety, hypervigilance and ongoing PTSD symptoms, including her fears about the second defendant’s future release from jail.
She no longer had issues with substance abuse, but Dr Phillips confirmed that she had symptoms of PTSD (of moderate intensity) and that her belief that the plaintiff had undiagnosed ADHD had strengthened.
As to prognosis, in her first report, Dr Phillips considered that the plaintiff’s prognosis was quite positive, whether considered from a short term or long-term perspective. She had an established long-term relationship and had maintained a stable job for many years. She expected that the plaintiff had some permanent ongoing symptoms and was exposed to the possibility of relapse should certain triggers materialise. One such trigger might arise if she had her own children. Another might arise upon the plaintiff learning of the second defendant’s release from jail.
In her second report, Dr Phillips was less positive. The plaintiff’s symptoms had worsened and Dr Phillips’ earlier apprehension about potential triggers, such as the plaintiff having children and her concerns for their safety had been vindicated. She downgraded the plaintiff’s prognosis as being poor to fair.
As the plaintiff rightly submits, contributory negligence is not a defence in general law to an intentional tort such as a battery, especially where the injury sued upon was the direct and intended kind of interference caused by the battery: Irlam v Byrnes (2022) 108 NSWLR 285. I further accept that the defence is not available in statute: Law Reform (Miscellaneous Provisions) Act 1965 (NSW) (whose scope is limited to “wrongs” where conduct would give rise to this defence in general law). For reasons indicated below, the liability, or indeed liability-limiting, provisions under the Civil Liability Act 2002 (NSW) (as well as those relating to personal injury damages) do not apply. I also agree that even if the defence were potentially applicable, the second defendant has not sought to prove how the conduct of a 10 to 12 year old girl, whom he groomed for sexual activity, contributed to the commission of the torts.
The defence of volenti not fit injuria is, in contrast, a potential defence in law. However, this is a defence for which the second defendant bears the onus of proof: Roggenkamp v Bennett (1950) 80 CLR 292.
The defence is inapposite. The plaintiff, who was aged between 10 and 12, was incapable of consenting to the acts of sexual abuse perpetrated against her, even if, contrary to common experience, there was no proof that she freely and voluntarily agreed to incur the risk of harm that materialised. As the plaintiff points out, all the particulars of the defence that the second defendant cites in his Defence significantly post-date the events giving rise to his liability.
By her pleading (paragraph 32), the plaintiff relies upon the carve-out from the restrictions applicable to personal injury damages (including, but not limited to, the recovery of exemplary damages) effectively arising from the operation of s 3B(1)(a) of the Civil Liability Act 2002 (NSW). That exception is engaged when a defendant intentionally engages in conduct with an intention to cause injury to a plaintiff.
The second defendant joins issue as to whether this exception is engaged. He pleaded that he did not intend to cause injury. However, the second defendant did not attend the hearing and so did not give evidence as to his state of mind.
Alternatively, the second defendant says that to the extent that the Court finds that he engaged in sexually abusive conduct, irrespective of whether or not he intended to cause injury, the conduct would still fall within the exception in s 3B(1)(a), as the conduct would be characterised as “sexual misconduct”. This submission should be accepted. It is consistent with authority. [18]
Ultimately, it was not altogether clear what the second defendant’s position was. Be that as it may, to the extent that the plaintiff claims against him, I am comfortably satisfied that his conduct engaged the carve out in s 3B(1)(a), such that the provisions of the Civil Liability Act, be they those relating to liability or damages, do not apply.
Having determined that the carve out in s 3B(1)(a) of the Civil Liability Act is engaged, this means that in place of what is now s 5D of that legislation, it is the test of causation in common law that applies. Causation in general law is a question of fact, resolved by applying common sense and experience, [19] for which the ‘but for’ test is a useful, but not exclusive, guide (as a negative criterion on liability); and it is sufficient that the tortious conduct materially contributed to the harm. [20]
Anterior to these propositions, all of which are well-established, is the recognition that in any question of causation in law, the concern is the apportionment of legal responsibility for an occurrence. [21] Policy and value judgements intrude. [22] This can mean that a person may be responsible for damage where their conduct is one of a number of conditions sufficient to produce the damage. [23] This policy is in point in circumstances where the second defendant raises a point about intervening events between the harm that his conduct generated and the injuries, losses or damage which the plaintiff holds him responsible for.
Dr Phillips considered that the plaintiff’s current and past psychiatric conditions were caused by the abuse the second defendant perpetrated upon her. In particular, it was highly unlikely that she would have developed PTSD without the abuse having occurred. In this regard, Dr Phillips distinguished the development of PTSD from the plaintiff’s subsequent substance abuse and mood disorder, which she thought might have developed without the abuse. But even in relation to those concerns, the abuse was a significant contributing factor.
She also thought that there had been no underlying vulnerability to psychiatric illness (other than possibly pre-existing ADHD).
These are chronicled in paragraphs 43–76 of the plaintiff’s affidavit. Part of this account (especially paragraphs 62–69) concerns her history of employment, which I will defer until later in these reasons when addressing her claim for economic loss.
The plaintiff deposed that from Year 8, she started to experience nightmares involving the second defendant.
She deposed that from Years 9 and 10, she started to engage in conduct constituting substance abuse. Drugs and alcohol were used to block out her distressing feelings and thoughts. She deposed to becoming hypervigilant and paranoid.
She deposed to becoming easily distracted and having trouble focussing. This is relevant to what I say below about the salience of ADHD.
She deposed to having had trouble with her relationships. Apart from a student romance in Year 12, until her current partner, she felt unloved and insecure. In relation to her now husband, whom she married in 2018, retrospectively, she regarded their relationship as being “up and down”. She indicated her feelings of emotional insecurity and noted some counselling that had helped.
She deposed to moving back from Canberra in 2016 because she fell pregnant. However, she felt that she could not handle a child until she could deal with her trauma, so she decided to have an abortion.
In 2019, she took the antidepressant Lexapro, which helped her. She came off that medication after she married.
The plaintiff deposed to remaining anxious, suffering low moods and feeling depressed. At times (especially when driving), she has experienced suicidal thoughts. She finds herself crying frequently and has disturbed sleep. She referred to certain paranoid thoughts, particularly about four-wheel drive vehicles. She experiences anxiety when she comes into contact with men who share certain physical similarities with the second defendant. She also appears to have a profound sense of guilt.
She concluded her affidavit by deposing to remaining fearful of the second defendant, and evinced her apprehension that he will blame her for his imprisonment and will come after her or her family members upon his release. She deposed to getting a quote for the installation of bullet proof windows in her home.
| Date | Event | Reference | | Around 2014 | At PokerStars, Plaintiff’s boss found her modelling photos online, commented on them, and this triggered her mental health. She nevertheless remained there for about one year. | CB pp 121, 160, 164 | | Same period | During/after PokerStars, Plaintiff used cocaine and large amounts of alcohol. The 2025 report records that she now reports nil alcohol and drug use, but confirms a history of alcohol and drug abuse when younger. | pp 121, 160, 164; Phillips 2023 p 6 | | 2014–2021 | Plaintiff had a period of antidepressant use and medication changes, including Cymbalta, Lexapro, Pristiq and Valdoxan. The report records that, by 11 January 2021, her mood was “great” and anxiety “much under control”. | Phillips 2023 pp 6-7 | | New Employment | Plaintiff returned to Red Dawn Security. A co-worker looked like Mr Vella. She used drugs at work and left after six months. | pp 121, 160, 163 | | February–October 2016 — Canberra | Plaintiff moved to Canberra to get away from triggers, worked reading meters for three months, stopped using drugs, then worked in construction reception/administration. | pp 122, 161, 163 | | 2016 — Canberra | Plaintiff became pregnant in Canberra and terminated the pregnancy. The reasons recorded include concern about past drug use, being a single mother, and not being ready. She then returned to NSW for family support. Dr Phillips describes this as “another major stressor”. | pp 122, 161, 163–164; Phillips 2023 pp 7, 9 | | 2017 | Plaintiff made a police statement after being told by a person she was seeing romantically, that, she was “holding back” in the relationship. | p 157 | | 2017 onward | Plaintiff commenced seeing a psychologist around the time of the police statement, then stopped during COVID because she did not like Zoom sessions. | pp 157, 161 | | 2018 | Plaintiff commenced civil proceedings in 2018. | Phillips 2023 p 3 | | 2019–2020 | Plaintiff did not take regular leave from Steve-Watt Constructions, except for a period in 2019–2020 when attending a psychologist on Wednesday afternoons and ceasing work at 3 pm on those days. | As above | | January 2021 | Plaintiff had an ectopic pregnancy and right fallopian tube removed. | pp 162, 164 | | April 2018/ November 2021 onward | Plaintiff says the relationship with [her husband] was “very up and down”, with fear he would cheat or leave; she also records other relationship distrust and difficulty. | pp 122, 161 | | October 2023 onward | Plaintiff reports that the court case concluded in October 2023, that Mr Vella was sentenced to six years, that with parole he is due out in September 2026, and that she fears he will find and hurt her and her daughter. She also reported having obtained a quote for bullet-proof windows. | Phillips 2025 p 3 | | November 2023 onward | Birth of Plaintiff’s child and parenthood became a major later stressor: mental health difficulties, marital difficulties, anxiety around childcare, and fear for her daughter’s safety. | pp 171–176 | | March/April 2024 onward | Plaintiff recommenced individual psychology with Ana Santos. For the first six to eight months, she spoke about the court case and Mr Vella’s jailing; therapy then moved to marital difficulties and managing with [her daughter]. She said she often cannot utilise what is done in therapy because her mind “takes over”. | Phillips 2025 p 5 | | February 2024 onward | Marriage counselling commenced. The report records Plaintiff’s own controlling behaviours, difficulty relying on [her husband], anger/humiliating comments, and initial reluctance to allow [her husband] in with [her daughter]. | pp 171–172 | | 2024–2025 | Plaintiff would only use a particular daycare and would keep [her daughter] home if casual teachers were present. | p 172 | | 2024–2025 | Plaintiff’s second pregnancy caused significant anxiety, including fear of miscarriage/stillbirth, repeated reassurance-seeking, and anxiety about scans. | pp 172–173 | | 2024–2025 | Plaintiff became overwhelmed by working three days, being a mother, and running the household; she cried around twice weekly and lacked motivation to exercise. She rated her anxiety at 8/10 to 9/10, compared with 2/10 to 3/10 at the last assessment, and attributed it to “the juggling” and missing her life before motherhood. | p 173; Phillips Report 2025 p 4 | | 2024–2025 | Plaintiff feared [her husband] would leave, reported low sexual desire, separate sleeping arrangements, and only monthly intercourse. | p 173 | | 19 December 2025/ ongoing | She reduced work to three days after maternity leave and intended to cease work before the second child. The refresher report records this was due to the second child, commute, work and caring for two children. The report also records that she continued to enjoy her work, was given flexibility, had a “great deal of joy” in her work, had no incapacity for work, and could return to similar employment once her children are at school. | pp 171, 177 | | Damages schedule | She claims substantial past and future economic loss, including alleged lost promotions/career progression. | p 1499 |
A victim of a tort must act reasonably and carefully after being injured. [24] The law recognises that supervening or intervening events engaged in by a plaintiff can sever the connection between a tort and injury. This can arise where the voluntary intervention of a plaintiff or third party (B) “irresponsibly transforms the outcome of A’s conduct into something of far greater consequence not readily foreseeable by A. In such a situation, A’s conduct is not a cause of that consequence, though it was an essential condition of it”. In such circumstances, it is the intervention of B that, in the ultimate analysis, is “the true cause”. [25] As Mason CJ went on to explain, the doctrine boils down to a value judgement that it would not be just to hold a defendant legally responsible for an injury which, though traceable to their conduct, was the immediate result of unreasonable action on the plaintiff’s part. [26]
What is ‘reasonable’ requires focus on what is reasonable as between the plaintiff and defendant in the context of assessing damages for the tort, rather than any acontextual or abstract question about whether or not the plaintiff acted ‘reasonably’. [27]
The plaintiff responded to this argument on a general (principled) and specific level. This was set out in written submissions (MFI 7), but was also the subject of oral argument from her Senior Counsel.
At the level of principle, and as a starting point, the plaintiff raised an issue of proof. She relied upon the well-established principle that once a plaintiff had made out a prima facie case that her injuries and resulting incapacities were caused by (or materially contributed to) the defendant’s tort, the onus of disentangling the parts of the losses or injuries not attributable to the defendant’s conduct rests on the defendant. [28] I accept this principle and also note that where a party bears an evidentiary onus, inferences unfavourable to that party can be drawn with greater confidence if they did not give evidence. [29]
The plaintiff then submitted that any ‘voluntary’ decision to engage in ordinary incidents of life, which nevertheless potentially involve some degree of risk, does not sever causation where the decision was reasonably made in a setting created by the defendant. [30]
Further, all of the events that the second defendant adverted to post-dated the onset of the plaintiff’s psychiatric or psychological injuries caused by his abuse, which commenced when she was in Year 5 at school.
Further, the plaintiff says that where certain life events are likely to occur in the future, the principled approach is to take them into account when deciding on the quantum of a buffer for future loss, not the denial of an award.
More specifically, the plaintiff responded to each of these asserted intervening acts:
(a) Substance use: the plaintiff’s drinking and drug use began in Years 9 and 10 as an obvious attempted coping mechanism in a context where she not only had to endure the harms she had sustained, but had to deal with them being compounded for being disbelieved. Dr Phillips attributed the substance abuse to the second defendant’s conduct. (b) Cessation of treatment: the plaintiff’s difficulty in obtaining relief from such psychological counselling as she received is itself a feature of her condition. (c) Vocational choices and workplace events: the plaintiff was naturally bound to suffer issues with her self-esteem stemming, not least, from an attitude of disbelief to her complaints. Dr Phillips had noted that the incident in 2014, when her supervisor commented upon her modelling photos, was naturally apt to trigger flashbacks or memories of abuse. Her decision to cease work in December 2025 in preparation for the birth of her second child does not bear upon the way in which she puts her claim for economic loss. (d) The 2016 pregnancy and termination and the 2021 ectopic pregnancy: Dr Phillips gave (unchallenged) evidence of other factors in the plaintiff’s life that generated the internal stresses in the plaintiff which, in turn, contributed to these events. (e) Motherhood (generally): Dr Phillips anticipated that the plaintiff’s giving birth to children and her experience of motherhood could serve as a potential trigger. The plaintiff accepts that contemporaneous treatment records indicating special needs for her management were identified because of her abuse. Far from these events constituting ‘intervening acts’, they were foreseeable and therefore the antithesis of intervening events. Moreover, pregnancy and motherhood are ordinary incidents of life that the plaintiff would have experienced irrespective of the tort. The second defendant’s conduct converted those ordinary incidents into potential occasions for relapse, hypervigilance and fear. They magnify the effects of the injuries. Further, the second defendant did not seek to rely upon medical evidence to prove that it was the condition of motherhood or pregnancy which caused injury. (f) Marital difficulties: impaired trust and intimacy in personal relationships are also recognisable sequelae of abuse. (g) The plaintiff’s complaint and commencement of this proceeding: it was the plaintiff’s complaint to police that prompted the criminal proceeding, but the investigation and control of the investigation, prosecution and sentencing that followed were out of her control. It was hardly unreasonable for the plaintiff to pursue her legal rights in a manner capable of engaging the doctrine of intervening acts.
I accept the plaintiff’s principled and specific responses to each of the individual points raised by the second defendant.
The closest that the second defendant comes to proving unreasonable conduct is his focus on the plaintiff’s smoking and drinking. But the second defendant’s difficulty is that he is unable to establish that a 13 or 14 year old schoolgirl, who had been sexually abused by a primary school teacher in whom she reposed trust, voluntarily took to smoking and drinking, knowing that, at a time when she had already started manifesting symptoms of PTSD, those potentially or inherently hazardous activities would likely aggravate or exacerbate mental harm or go on to contribute to other incapacities. Part of the reason he is unable to establish that proposition (and the other suggested intervening acts) is that he did not participate at the hearing, call evidence or put such matters to the plaintiff.
Otherwise, the life and employment choices which the second defendant criticises were all ordinary incidents of human life and endeavour. They were therefore reasonable. Exercising legal rights when commencing legal proceedings may or may not be an ‘ordinary incident of life’, but it must also be regarded as reasonable. Put negatively, there was nothing unreasonable about the plaintiff engaging in them. To the extent that the second defendant suggested otherwise, this was no more than bare assertion.
More fundamentally, in my view, even accepting some of the matters that the second defendant has raised as factually correct, the flaw in his argument lies in his failure to grasp that it was the sexual abuse that he perpetrated upon a young girl over an approximately three year period that the Court finds has caused the severe mental conditions of PTSD and associated anxiety (physical or social), hypervigilance and excessive sensitivity to many ordinary incidents of, or interactions in, ordinary life. As is ordinarily the case where a defendant’s tortious conduct gives rise to a psychiatric or psychological condition, liability for the consequences will usually follow where the consequences are reasonably foreseeable. [31] The consequences of which the plaintiff asserts in this proceeding were reasonably foreseeable. It was his conduct that left the plaintiff especially vulnerable to being triggered even by events that persons who do not share her condition might regard as ‘normal’. Thus, the circumstance of the plaintiff being triggered when, as an adult, she was being taught in a particular setting, or came into contact with a person that looked like the second defendant, or that she fears for the safety of children, should be regarded as the types of reaction that his conduct had caused or contributed to. Further, the circumstance that the plaintiff took to drugs and alcohol does not assist the second defendant where, as I find, she would probably not have done so but for his abuse of her.
It was not unreasonable for the plaintiff to have foregone certain alternative employment opportunities that might have been available to a person who did not have her mental health conditions, just as it was not unreasonable for her to want to have children, even if doing so did give rise to the possibility that she might have a heightened concern for the safety of her children.
I have noted Dr Phillips’ references to the plaintiff’s ADHD. They were not very strong references, but they need to be considered.
I accept the plaintiff’s submission that even if it were to be accepted that she likely had, or has ADHD, an evidentiary onus fell upon the second defendant to disentangle any effects of that particular neuropsychological condition from the effects of the psychiatric illness and other mental health conditions caused by the his abuse of the plaintiff. The second defendant did not try to do so. He did not, for example, rely upon expert evidence from a mental health professional to that effect. He did not try to disentangle the possible effects of ADHD as being a contributor to her impeded academic performance at school and subsequent workplace limitations from the more obvious explanation that those limitations were attributable to the psychiatric and psychological disabilities that he caused, which have impeded her earning capacity and quality of life more generally.
I accept the plaintiff’s submission that the inhibitions, missed or foregone opportunities in the plaintiff’s life and work experiences have not been shown manifestly to be the result of ADHD as a matter of common sense such that it could safely be inferred. The plaintiff’s inability to complete an events management diploma was a striking illustration of this.
I therefore reject the defendant’s arguments centred upon intervening acts.
The plaintiff claimed general damages in the sum of $300,000.
By her Counsel’s written submissions (MFI 7), a list of purportedly comparable cases was supplied to the Court (in the context of institutional child sex abuse), which I have considered. No two cases in this area are alike, of course. However, for a victim of child sexual abuse, irrespective of the form of the sexual abuse, it is not unfair to say that there are recurring patterns in injuries and disabilities.
I accept Senior Counsel for the plaintiff’s submission that the abuse was perpetrated over a period of three years and was done in the context of, or in conjunction with, acts of grooming to develop trust. As I noted, two of the offences giving rise to criminal convictions were not isolated criminal acts, but rather ‘course of conduct’ offences.
The plaintiff’s injuries are permanent.
The plaintiff has been scarred in her personal relationships and social connections. She has trouble engaging in physical exercise. She has had interpersonal problems stemming from a lack of trust and a misplaced sense of guilt or shame. Her anxiety and depression are continually subjected to the risk of being triggered by many ordinary incidents of life, including childbirth and motherhood. These are conditions that, given Dr Phillips’ prognosis, she will likely bear for the rest of her life.
Further, she has endured the indignity, embarrassment and loss of self-esteem that followed from her being apparently disbelieved, or at least not receiving an adequate response to the reports that she made whilst still a young girl. These effects are also enduring. Leaving aside the effects on her education (which are considered below when assessing her loss of earning capacity), they occurred at a formative stage of her adolescence. They caused her to engage in maladaptive coping mechanisms, principally the development of a substance misuse disorder which, although currently in remission, she stands at some risk of relapsing into. Periodically, she has had thoughts of self-harm, including suicidal ideation.
The second defendant argued that any allowance should be restricted to a range of $75,000 to $81,000. He cited a decision of this Court where general damages of $150,000 were awarded. [32]
General damages are for non-pecuniary loss. It goes without saying that awards of general damages are fact specific. Although, as I have noted, there are recurring patterns in the extent of psychiatric or psychological injury, it remains the position that not every victim’s conditions fit into any mould and a tortfeasor must take the victim as they find them. The circumstance that this particular plaintiff’s suffering has manifested itself in ways perhaps more debilitating than that experienced by other victims does not lessen the need to provide compensatory damages.
Interest should be allowed on the past figure at 2% on 75% of general damages, as the loss should be regarded as having occurred over the period (26.02 years) from the date of the conduct until the present, but where the plaintiff has already suffered a large proportion of the consequences of her abuse. This is consistent with authority. [33] The plaintiff has quantified this amount in Annexure A to her written submissions (MFI 3).
This yields a sum of $117,068.
In her pleading (as amended), the plaintiff alleged that the second defendant’s conduct was “intentional, arbitrary and oppressive and in contumelious disregard” for her rights. In the Relief Claimed section of her statement of claim, she sought aggravated damages or exemplary damages. The Court was informed by Senior Counsel for the plaintiff that the second defendant had not requested further particulars of those claims. But in her pre-hearing schedule of damages, the plaintiff sought only aggravated damages. One of the matters she relied upon was that the second defendant was and remains unremorseful.
However, in the very recent Defence filed on the first day of the hearing, and by the provision of matters for the chronology that the second defendant wanted to have brought to the Court’s attention, a range of other positive matters were raised by or on the second defendant’s behalf which the plaintiff (and the State) would not necessarily have contemplated.
The second defendant contended the following in his Defence. The plaintiff, he said:
(a) should not benefit from her free choice not to place her infant child in daycare when her mother was available to assist with childcare duties; (b) should not benefit from her choice of domicile (which restricts her employment options), since any higher income she earned would need to be deployed for the expenses associated with her driving; (c) is adding to her anxiety by pursuing a career as a model and actress; (d) engaged in career-limiting lifestyle choices which impeded her progression until her late twenties and early thirties; (e) engaged in a reckless lifestyle leading to an abortion after a casual sexual relationship; (f) could have increased her earning capacity by living in Canberra; (g) chose to reduce her work capacity to part-time (three days per week); (h) did not exercise her work capacity as she preferred to take up parenting and home-maker duties on a full-time basis; and (i) if she had sustained any loss or damage, it was largely attributable to delay.
Senior Counsel for the plaintiff submitted, and I agree, that many of those contentions amount to thinly veiled ‘victim-blaming’. They were made by a party to the proceeding who chose not to attend the hearing and was therefore unable or unwilling, either personally or through a legal representative, to fairly put them to the plaintiff for her consideration and response. They were gratuitous. The second defendant’s conduct has two other features.
First, they bear out the plaintiff’s contention that, despite the grudging acceptance of liability founded upon a pragmatic appreciation that, by not participating in the hearing for his own particular reasons, he was unlikely to be able to rebut the plaintiff’s case concerning his tortious conduct, he remained unrepentant and unremorseful.
Secondly, the somewhat obsessional aspect of the second defendant’s assertions is such that they lend weight to the evidence of the plaintiff’s psychiatrist (supported by the plaintiff’s affidavit evidence) indicating the plaintiff’s increased anxiety about the imminent prospect of the second defendant being released on parole.
It is not merely the case that the plaintiff’s concerns were generated by the mental health conditions that the Court has accepted were caused by his abuse. The second defendant’s conduct on the eve of, and on the first day of, the hearing lent objective credence to the plaintiff’s concerns, which led her to the extraordinary step of seeking a quote for bullet-proof windows for her home to protect herself and her family.
Although it was open to the second defendant to raise a point about intervening acts in the abstract, I have found that the point lost much of its viability once the second defendant chose to absent himself from further involvement in the proceeding. For the points to go anywhere, it would have been relevant to the second defendant to have fairly engaged with the plaintiff about alternative courses of conduct she should have taken. By his absence, the second defendant deprived himself of the opportunity to do so. That being so, the point was left ‘hanging’, with the plaintiff (and the State) having to deal with what amounted as bare assertions. In the circumstances, the effect of the second defendant’s conduct in the lead up to, and on the eve of, the hearing was that it likely caused the plaintiff greater harm than would have been occasioned had the second defendant not filed any defence at all, leaving the plaintiff to apply for default judgment with damages to be assessed.
In the pre-hearing schedule of damages prepared before the second defendant had filed his most recent Defence and before he had raised matters on causation, the plaintiff had claimed an allowance of $50,000 for aggravated damages. Senior Counsel for the plaintiff did not seek any increase in that award, notwithstanding the second defendant’s conduct on the eve of, and on the first day of, the hearing.
Further or alternatively to the claim for aggravated damages, the plaintiff also seeks exemplary damages.
In Gray v Motor Accident Commission (1998) 196 CLR 1 (‘Gray’), the plurality explained that:
“[40] 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.”
Senior Counsel for the plaintiff referred me to the decision of the Court of Appeal in Cheng v Farjudi (2016) 93 NSWLR 95 (‘Cheng’). In that case, a civil proceeding was instituted against a defendant after he had been convicted (following a guilty plea) and sentenced to a good behaviour bond. In the leading judgment of Beazley P (as her Excellency then was), with Ward JA (as the President then was) and Harrison J agreeing, her Honour observed that exemplary damages may not be awarded where substantial criminal punishment has been imposed. However, where substantial criminal punishment has not been imposed, a Court is not precluded from awarding exemplary damages notwithstanding that a criminal sanction has been imposed (at [87]).
Ms Gerace SC (who appeared with Ms Smith) for the plaintiff argued that, notwithstanding that the second defendant received a sentence of imprisonment based partly upon offending that concurrently constituted the torts of assault and battery, it was apparent from the sentencing remarks (Exhibit PX4) and the plaintiff’s full (and unchallenged) account of all the incidents that the second defendant had not, in fact, been punished for all of the incidents that constituted the torts. Reference was made to the circumstance that Counts 1 and 2 on the indictment were, by their nature (and as explained in the sentencing remarks at paragraphs 14 and 15), ‘rolled up’ offences encompassing multiple acts committed against the plaintiff.
Reference was also made, in particular, to an incident in the laundry when the second defendant had come into the room to observe the plaintiff naked; as well as an incident of alleged indecent assault at a church in respect of which he had been acquitted at the criminal trial. It was not apparent that the second defendant was convicted of offences arising out of this conduct.
The plaintiff cites the decision of Simpson J in Ms P v Mr D [2020] NSWSC 224 as an illustration of a case in which exemplary damages were awarded in circumstances where there were ‘unpunished’ sexual assaults (at [151]-[152]).
On any view, the second defendant has been subjected to, and continues to be subjected to, substantial criminal punishment in the form of a sentence of imprisonment. This punishment has arisen, albeit only partly and a result of Judge O’Brien’s application of the totality principle, from a large number of offences, including criminal conduct which the plaintiff (and the State) has relied upon to support their proof of the torts which confers the right to damages.
Cheng is distinguishable on another basis. In that case, no claim for aggravated damages appears to have been brought. The matters that sustained the primary judge’s allowance for exemplary damages (the defendant’s conduct of the defence, including his assertion that he only entered a plea in the criminal proceeding for convenience, and other ways he contested the proceeding) summarised at [108]-[110] of Beazley P’s judgment, have, as indicated, been accommodated by the award of aggravated damages in the present case.
By her statement of particulars, the plaintiff said that she had aspirations to become a vet or to work in childcare.
The plaintiff completed school and the HSC, but her results were modest. She worked full-time at Domino’s Pizza in the year after leaving school. Thereafter, she worked as a nanny for up to two years, but found the role somewhat triggering, as it exposed her to the experience of what it was like to be around a good family environment. As she reduced her work as a nanny, she worked full-time for a security company for a couple of years before leaving following a pay dispute. She then worked for an online gambling company as a receptionist and events coordinator for just under two years. After leaving that role, she obtained employment with another security company.
She moved to Canberra in February 2016, where she worked reading meters for several months. The plaintiff then worked for a construction company until October 2016. Around this time, she had an abortion, decided to return to Sydney, and commenced a job that was more stable and secure at a small company. It was a full-time job in administration and payroll.
In her affidavit, the plaintiff explained that she was only comfortable working in small companies, where she knows everyone and no one physically resembles the second defendant. She looks to work in a workplace that employs women and not just men. However, she has found that a consequence of working in small family businesses is relatively smaller pay with less prospect for promotion.
One matter that Dr Phillips emphasised was that when she was in her mid-twenties, around 2014, the plaintiff attempted to undertake a diploma in events management diploma at TAFE. She thought that by undertaking the course, she might open herself up to an opportunity to do an internship with a production company. But she struggled as she became anxious in the classroom environment and found that the dynamic of having a teacher reminded her of past trauma.
In 2025, she declined a job offer to work at a school in an administrative role because of her apprehension that the school environment would trigger anxiety and flashbacks.
The plaintiff was positive about her project administration and payroll job with Steve-Watt Constructions. She has been employed there for nine years. She worked there until she gave birth to her first child. She returned, on reduced hours following a period of maternity leave, until she ceased work again upon the birth of her second child. The plaintiff intends to return to work in 2027, and will start looking for work at the end of this year, around October. She has aspirations to work full-time in a small construction business located no more than half an hour from home, initially for four days a week, with her children in daycare.
The plaintiff indicated that whilst she was with Steve-Watts Constructions, her gross pay increased from $71,405 in 2019 to $94,595 in 2023, before her hours at work reduced. She indicated that her pay and promotional prospects were limited: the highest position she could reach was that of a Contract Administrator. She understood that jobs doing similar work at larger companies might fetch pay between $120,000 and $150,000.
The plaintiff’s Counsel prepared two sets of written submissions (MFI 3 and 7) which addressed economic loss. Senior Counsel for the plaintiff made submissions in closing oral argument as well.
The claim of economic loss generally was based not on current unfitness for work, but on diminished earning capacity. The plaintiff submits, and I accept, that the abuse occurred not only in adolescence, at a time of crucial social, emotional and physical development, but substantially impaired her educational development at school and beyond. To make things worse, after perpetrating the abuse on the plaintiff when he was her teacher in Year 5 (which abuse had caused the plaintiff to fall behind her expected trajectory of learning), the second defendant inveigled himself into the role of the plaintiff’s tutor in Year 6 and thereafter, under the pretext of making up for an ostensible dropping off in the plaintiff’s academic performance from the year before. The substance misuse disorder that he caused, which particularly affected her in Years 9 and 10, had its own knock-on effects upon her educational development as she was entering the middle part of secondary school.
The plaintiff says, and the Court accepts, that she was incapable of going on to tertiary education after school because of incapacity caused by the second defendant. The Court has already noted and accepted her evidence about her inability to complete a TAFE course in events management.
I have noted that the plaintiff said she had career aspirations to be a vet. It is not possible to predict that but for the tortious conduct, she would likely have gone on to a professional career. The plaintiff also spoke of an aspiration to work in childcare. There is nothing to suggest that, other than the triggering effects of the second defendant’s conduct, that career was out of range. However, there was no evidence to indicate the wages of a childcare worker.
There was some evidence from relatively recent notices of tax assessment. These disclosed taxable income for FY23 of $90,576, for FYE24 of $66,390 and for FY25 of $74,280, but these years were affected by maternity leave.
I accept the plaintiff’s unchallenged evidence about the type of pay that someone fulfilling her role at a larger scale enterprise may likely have achieved.
The second defendant submits that the plaintiff’s taxable income exceeded $90,000 in the financial year ending 30 June 2023 and had increased steadily over the preceding years. Such earning history, as was disclosed, was consistent with that of an ordinary person who (like her) was starting a career after a period of alcohol and cocaine use, career changes, changes to domicile and work locations, an abortion and childbirth. The second defendant submits that (if his other contentions were rejected) her past economic loss would be limited to $50,000.
The plaintiff claimed interest on past economic loss in her schedule of interest. However, as was the case in not dissimilar circumstances in Watt v Redman [2024] NSWSC 638 (at [49]), such a claim, based as it is on lost opportunity and interspersed with some breaks in work, is problematic; notwithstanding the careful and probably conservative way in which the claim for past loss of capacity has been formulated. On the other hand, to make no provision for interest on past economic loss would appear unjust.
This presents a procedural difficulty for the plaintiff.
By her amended statement of claim of 4 June 2026, at a time when the second defendant was still participating in the proceeding, she claimed interest without particularity.
But by her statement of particulars filed 30 June 2026, [37] still at a time when the second defendant was participating in the proceeding, the plaintiff claimed interest on general damages. However, she made no claims for interest on past out of pocket expenses or past economic loss.
By her schedule of damages dated 30 June 2026, no reference was made to interest at all.
As a result of these matters, in my view, the second defendant could fairly be taken to have been on notice of the plaintiff bringing a claim for interest, but for no more than interest on general damages.
The plaintiff now effectively seeks to augment her claim by bringing extra heads of loss about which she gave no prior notice to the second defendant. That he declined to participate from 6 July 2026 does not mean that she is at liberty to claim extra heads of loss. Although there may have been multiple reasons for his withdrawal from active participation, and although he bears the forensic risks of doing so, nevertheless, he withdrew on a footing that, by that point, there were identifiable heads of loss claimed against him. It is not a case where the Court would be prepared to infer that he did not care what monetary sum was awarded against him.
In my view, it would be unfair to the second defendant to allow her to claim extra heads of loss without notice.
Past economic loss (including interest) is assessed at $234,000.
This claim assumes that promotions would have been obtained through a professional career. Allowance is sought of $400 per week for 31 years (5% multiplier 833.8) which, with 15% vicissitudes, yields the sum of $283,492.
The plaintiff referred the Court to the principles for assessing future loss, especially for plaintiffs who are injured when they are very young, in State of New South Wales v Moss (2000) 54 NSWLR 536 (‘Moss’) at [71]-[87]. As Heydon JA pointed out, the Court is asked to estimate as best it can the future effect of injuries that the plaintiff has suffered that were caused by the tortious conduct. This is necessarily an exercise in speculation, involving the weighing up of risks.
The plaintiff is no longer a child, but a 36 year old, with an employment history, so the observations in Moss are not quite so in point. But the substance of the claim remains the same: the Court’s task is to value the lost opportunity of a full earning capacity for the remainder of her working life.
The plaintiff sought a buffer and consistent with authority, at least in relation to such awards under the Civil Liability Act, the Court inquired of the plaintiff’s Senior Counsel as to the assumptions that the plaintiff asked the Court to make when assessing this head of loss.
Her answers, largely based upon Dr Phillips’ evidence, were:
(a) Her prognosis in relation to her mental harm is only poor to fair. (b) Exacerbations or relapses are to be expected, often from familiar life stresses. (c) She will not be able to make good the limitations upon her educational experience, which goes back to an essentially ruined schooling education that she received. A prime example of this was her inability to complete an events management course in respect of which she otherwise appeared a suitable candidate. (d) There are pronounced limitations of the type of workplace suitable for her (small family businesses) and the personnel she can work with (preferably women; not men). She is largely confined to administrative, payroll or clerical roles. (Although not expressly pointed out, these are the types of ‘white collar’ workplaces where, according to common knowledge, AI may play a role). (e) Her requirements for counselling or psychiatric treatment are likely to impede or hinder her work.
I accept these assumptions.
The plaintiff submits, and I accept, that her residual earning capacity is diminished, fragile and hedged, which depends on the continuation of a protective niche, constantly exposed to the risk of relapse.
The plaintiff’s Counsel helpfully provided (in MFI 7) a list of cases identifying buffer awards for future economic loss, which I have referred to. However, the utility of these cases is limited.
The quantum claimed for future economic loss is reasonable and probably conservative. I accept it.
In her schedule of interest (Annexure A to MFI 3) and schedule of damages (MFI 9), the plaintiff indicated that this claim was quantified in the sum of $5,937.53.
In the schedule summarising medical and psychological records (MFI 6), the plaintiff also summarised her medication to alleviate her depression and anxiety.
In her first report, Dr Phillips opined that the plaintiff did not appear to require specific trauma-related treatment, such as EMDR. Such treatment might help her engage in activities that she enjoyed in life, re-engage in exercise and increase her social connectivity.
Since the plaintiff saw Dr Phillips in November 2023, she commenced seeing a psychologist, Ana Santos, from March or April 2024. She had not seen a psychiatrist.
In her refresher report, Dr Phillips indicated that she regarded the psychological counselling that the plaintiff had received as not being very beneficial. She thought that she might benefit if the sessions were more frequent (fortnightly rather than monthly) for 5 years which, as time went on, might decrease to every two to three months, but also suggested she might benefit from assessment by a psychiatrist. Realistically, she did not think that the plaintiff would ever be ‘symptom-free’.
Dr Phillips also recommended that once she gave birth (she was assessing her in November 2025 with her second child being due in February 2026), she would benefit by restarting an antidepressant.
I accept the plaintiff’s claim.
The plaintiff claims the sum of $26,500.
I repeat the assumptions about the plaintiff’s future trajectory that I made in relation to the claim for future economic loss.
This head of loss was premised upon acceptance of the evidence that the plaintiff was willing to undertake fortnightly psychological counselling sessions ($250 per session) for 6 months, with the frequency thereafter reducing to every two months for 5 years. Concurrently, it was also expected that she would receive 10 sessions with a psychiatrist ($300 per session). A buffer was then provided for anticipated medication.
The plaintiff did not address her willingness to undertake counselling or psychiatric treatment, or medication into the future in her affidavit. However, there is no doubt that she has received substantial counselling in the past and no reason to doubt that she would not want that to continue. Dr Phillips opined that she had not appeared to be all that responsive to counselling; but it is another thing to say that counselling would not ameliorate some of her disabilities. I surmise from Dr Phillips’ evidence and the treatment plans as a whole that the plaintiff is an engaged correspondent and find that it is more likely than not that she would wish to receive further counselling, particularly as she is so susceptible to feeling triggered. As to her receptiveness to psychiatric attention, I doubt that Dr Phillips would have suggested this if she did not think that the plaintiff would commit to it.
My acceptance of the probability that she will undertake further counselling and psychiatric treatment, as well as the high likelihood of her receiving medication into the future leads me to accept the plaintiff’s claim for this head of loss, which I consider to be on the conservative side.
General damages 300,000
Interest on General damages 117,068
Aggravated damages 40,000
Past economic loss (incl interest) 234,000
Past loss of superannuation 25,740
Future economic loss 283,492
Future loss of superannuation 40,454
Past out of pocket expenses 5,937.53
Future Ops 26,500
Total: $1,073,191.53
The State brings two claims against the second defendant, as cross-defendant. The first is a claim under s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) (the ‘LR (MP) Act’) for indemnity or for contribution for such amount as the Court considers just and equitable. [38]
The cross-defendant defends that statutory claim on two bases. First, as was plainly apparent, he denied sexually abusing the plaintiff. Secondly, he asserts that the claim that the State brings against him is an apportionable claim for the purposes of the Civil Liability Act 2002 (NSW). He says that any liability that the State owed to the plaintiff was independent, yet concurrent, with any liability he owed to the plaintiff, so the State was not entitled to a full indemnity (if, it was entitled to any indemnity at all, in circumstances where it was itself negligent and such negligence caused or contributed to the plaintiff’s loss). It should rather be apportioned in accordance with the respective responsibilities for the plaintiff’s loss. As was the case with his defence to the plaintiff’s claim against him, natural limitations arose from the cross-defendant’s decision to absent himself from the hearing; including his capacity to adduce evidence on issues associated with the cross-claim, including the apportionment of responsibility for the plaintiff’s damage.
Secondly, the State brings a claim for damages against the cross-defendant for breach of contract. It says that the cross-defendant caused the State to incur a costs liability in defending the plaintiff’s claim against it, which cannot be recouped through its statutory claim against him. (The plaintiff*’*s costs of prosecuting the claim against the State are, if recoverable by the State at all, only recoverable by the State under the statutory claim).
The State also sought orders for interest under s 100 of the Civil Procedure Act 2005 (NSW) and costs.
The State provided comprehensive written submissions (MFI 2), which its Senior Counsel spoke to in closing argument. To some extent, the written submissions addressed matters raised by the second defendant through his Defence to the cross-claim. Understandably, the State did not seek to lead evidence in rebuttal to matters that the second defendant had only asserted, but not proven, in his Defence to the plaintiff’s claim against him.
The State relied upon the plaintiff’s proof of the cross-defendant’s conduct, the damage that she suffered that was caused by that conduct, and the quantum of the damage.
The State relied, in particular, upon the certificate of conviction that was admissible under s 92(2) of the Evidence Act. It disclaimed reliance upon the tendency notice.
The State also relied upon some of the documents in the plaintiff’s case (in Exhibit PX 1). These concerned statements and documents recorded during previous investigations, as well as State-issued policies and procedures that were applicable at the time of the second defendant’s conduct (Exhibits CX 1–CX 3). The State noted that the second defendant did not notify it of any objections to these documents when informed by the plaintiff of her intention to rely upon them. I will now summarise those documents.
A NSW Department of Education Child Update published in 1993 was in the form of a memorandum issued to school principals. The memorandum acknowledged the Department’s role in assisting with the identification of abuse or at-risk children and its intention to provide ‘inservice’ training to staff in identifying suspected child sexual assault. The memorandum recorded that school teachers were ‘mandatory notifiers’ of child sexual assault and school principals were obliged to ensure an annual review of the implications of this responsibility.
Senior Counsel argued that the document indicated that over 30 years ago, the Department was taking the problem of child sexual abuse in schools seriously.
Under ‘Principles’ identified in Child Protection Procedures for Recognising and Notifying Child Abuse and Neglect (issued 10 March 1997), schools were obliged to notify any suspected child abuse and neglect. All school staff were required to be alert to a range of indicators of abuse or neglect; perhaps what is now colloquially known as red flags. The document specified indicators of sexual abuse in children. It also stipulated that school teachers were to directly report to the school principal any ‘grounds for concern’ relating to possible sexual abuse of a student.
The State also relied upon evidentiary statements that were adopted by Lisa Petersen (Exhibit CX 4) and Lynnette Flegg (Exhibit CX 5), respectively, when they were called to give evidence. Their evidence was unchallenged and is accepted.
The plaintiff referred to Ms Petersen in her affidavit. In 2000, Ms Petersen was an assistant principal at the School and also had teaching duties. In that year, she and the second defendant shared a composite class of Year 4/5/6 students. The plaintiff was one of them.
Ms Petersen described the second defendant not only as a colleague but also as a friend. He was the best man at her wedding (also in 2000) and godfather to her eldest son when the latter was born in 2002. She also described him as being a devout Catholic.
Ms Petersen deposed to only becoming aware of the allegations against the second defendant when contacted by police in 2017. Since then, she has ceased contacting the second defendant. In September that year, she provided a witness statement to police.
Ms Petersen deposed to being ignorant of the allegations against him at the time. She received no complaint about him. She saw nothing that she thought was inappropriate. She also indicated that in 2000 and 2001, she was ignorant of the second defendant providing private tutoring or participating in private outings with students outside of school.
Ms Petersen deposed to her lack of awareness of these things in a context where she accepted that in 2000, there were written procedures and a Code of Conduct applicable to teachers, and inculcated in them by training. In this respect, she commended Ms Van der Wyk, who was the School’s principal in 2000 (who is now deceased). She was shown certain documents, including those summarised above, and whilst she did not specifically recall them, their content was consistent with her understanding of her obligations, including her personal obligation to notify suspected abuse by anyone to the then school principal.
Ms Lynnette Flegg was also an assistant principal at the School in 2000. Later in 2010, she became the principal of that school and other schools, until her retirement.
Ms Flegg also commended Ms Van der Wyk, who she recalled was active in ensuring that policies of the Department of Education were implemented. She thought that the School had strong child protection programs and described in detail what was done to train and retrain teachers in their responsibilities. Indeed, she described the policies at the School, as administered by Ms Van der Wyk, as being among the most stringent she had seen.
Ms Flegg was quite unequivocal in describing the professional standards expected of teachers at the time (i.e. in 2000). She deposed that:
There was to be no individual contact between staff and students.
[Redacted] is the plaintiff’s mother. In 2004, she answered questions raised of her by a Child Protection Investigation Directorate [39] and provided a statement to the Training Employee Performance and Conduct Unit (EPAC) of the NSW Department of Education. [40] In July 2017 she provided a witness statement to police in its investigation. [41]
The State relied upon parts of this evidence. In her answers in the questionnaire of the Child Protection Investigation Directorate, Ms [redacted] materially confirmed that the cross-defendant taught the plaintiff in Year 5 and tutored the plaintiff in Year 6 after school, at irregular intervals. She also confirmed that the cross-defendant took the plaintiff (and her other daughter) to Australia’s Wonderland. She described him as being a “family friend”.
In the statement to EPAC, also made in 2004, Ms [redacted] noted, amongst other things, that the cross-defendant was not paid for his tutoring of the plaintiff. He tutored “because we were friends”. Ms [redacted] did not mention to the plaintiff’s schools the cross-defendant’s tutoring of the plaintiff.
In her police statement of July 2017, Ms [redacted] materially noted that the cross-defendant had forged a connection with her and her family because he was able to speak Polish. The State emphasised other things in her witness statement. These included that she and her husband had noticed that the plaintiff was not performing well at school at the start of 2001. Ms [redacted] had mentioned this to the cross-defendant. She stated that it was the cross-defendant who offered to attend the family home to provide private tutoring. She recalled that he had explained that he did not have a family and “enjoyed spending time with the girls”. Ms [redacted] stated that the cross-defendant had almost made her and her husband feel bad that they did not appear to want his help.
About this last statement, Senior Counsel for the State emphasised a certain consistency in the approach of the cross-defendant in applying emotional manipulation to attain his ends when dealing with the plaintiff’s mother, just as much as he had with the plaintiff. [42]
In her police statement, Ms [redacted] reiterated that she and her husband did not need to pay the cross-defendant for his tutoring of the plaintiff. She also stated to police that the cross-defendant took the plaintiff (and her other daughter) on outings: she specifically recalled trips to Australia’s Wonderland and putt putt golf. She also recalled him sending correspondence to the plaintiff (and her other daughter). She informed police that she and her husband occasionally questioned the cross-defendant why he appeared to spend so much time with the plaintiff and her other daughter, and that his response was that he had the time to do so and enjoyed being with them.
The State correctly identifies the requirements for its statutory claim for indemnity or contribution as being:
damage was suffered by the plaintiff as a result of the tort;
the State was a tortfeasor liable in respect of that damage;
the cross-defendant was a tortfeasor who is, or would if sued have been liable with respect to the same damage; and
no indemnity operates in the cross-defendant’s favour.
The Court has already found that the plaintiff suffered damage by reason of the defendant’s acts of kissing and applying sunscreen to her body. These amounted to the torts of battery and assault.
The Court has also found, based upon the expert psychiatric evidence of Dr Phillips, that the plaintiff suffered a recognised psychiatric injury (PTSD), a persistent depressive disorder, and a substance misuse disorder (now in remission) as a consequence of the abuse.
Further, the Court has found that this psychiatric condition, along with other psychological conditions (such as anxiety and depression), were solely attributable to the torts, that there were no other significant contributing factors and there were no pre-existing conditions.
There is no doubt that the plaintiff has suffered damage as a result of the torts committed by the cross-defendant.
The State submits, and the Court accepts, that had the plaintiff litigated to judgment her case against the State, the State would have been held liable in respect of the same damage.
The State raised the question of what relevance the consent judgment that it reached with the plaintiff had to proof of this requirement. The short answer is that although the consent judgment was prima facie evidence of the State’s liability towards the plaintiff, nonetheless, it remains the position that the State still has not been judicially determined to be ‘held liable’ for the purposes of s 5(1)(c). Thus, it remains a requirement for the State to establish that it would have been responsible in law. [43]
This the State sought to do, in two pertinent respects. First, the State contends that it was in breach of a non-delegable duty of care owed to the plaintiff as a student at the School when the second defendant committed his tortious conduct in 2000. This was inevitable once the High Court of Australia had decided, on 11 February 2026, that the non-delegable duty of care owed by a school authority may be breached by the intentional criminal conduct of its delegate, [44] occurring at a time and a place within the scope of the duty-holder’s duty. [45] This was an extension of legal liability built upon earlier authority which had already posited that a breach of non-delegable duty could occur without personal fault by the duty-holder. I accept the State’s contention.
Secondly, the State contends that it would have been liable at common law for the conduct that occurred in Year 5 under the doctrine of vicarious liability: the cross-defendant was vested by the State with the authority, power and control over the plaintiff and provided the occasion for him to sexually abuse her. [46] His kissing her in the storeroom was a misuse of that role, which occurred during regular teaching hours and involved the use of school’s premises. I also accept the State’s contention.
Although the question of the State’s liability directly in an action in negligence was contentious conceptually (if not practically [47] ), the State submitted, and the Court further accepts, that in circumstances where Dr Phillips reported that the plaintiff’s psychiatric condition or injury was caused by the sexual abuse, without differentiation as between the different incidents (on or outside school premises), the State is a tortfeasor liable with respect to the ‘same damage’, for the purposes of s 5(1)(c) of the LR (MP) Act.
By its written submissions, the State submitted that the second defendant’s liability to the plaintiff was ‘as close to certain as the exercise permits’. That has been proven by the plaintiff, for reasons referred to extensively earlier in this judgment. This provides an answer to the first of the two defences that the cross-defendant raised in his Defence to the statutory claim.
It follows, as the State submits, that both the State and the cross-defendant are liable in respect of the same damage.
Section 5(1)(c) of the LR (MP) Act confers an entitlement in certain circumstances to contribution from another tortfeasor subject to the proviso that that other tortfeasor is not entitled to be indemnified by the tortfeasor seeking contribution.
In his Defence to the cross-claim (at paragraph 2), the cross-defendant admitted that he was employed by the Department of Education between 1999 and 2001. He also admitted, as at 2000, the cross-defendant was the teacher of the class of which the plaintiff was a member. [48] By the operation of s 42 of the Teaching Services Act 1980 (NSW), the cross-defendant was thereby employed in the service of the Crown.
Generally, where an employee commits a tort for which their employer is also liable, the employer is liable to indemnify the employee in respect of liability they incurred for the tort. [49] However, s 5 provides an exception. Section 5 provides that an employee’s entitlement to indemnity under s 3(1)(b) does not apply to a tort that the employee commits if the employee’s conduct constituting the tort ‘was serious and wilful misconduct’.
I have no doubt that whatever the metes and bounds of the expression ‘serious and wilful misconduct’ are, they encompass conduct that amounts to the commission of an indictable criminal offence.
Thus, the cross-defendant’s conduct on the school premises in 2000, amounting to a tort of battery, constituted ‘serious and wilful misconduct’ and he is not entitled to be indemnified in respect of liability he incurs for the tort, for which the State was also liable.
Subject to a further matter, the path is therefore clear for the State to claim contribution against the second defendant under s 5(1)(c).
By his Defence to the cross-claim, it appears (by paragraphs 14 and 15) that the second defendant contends that the statutory claim against him is an apportionable claim, within the meaning of s 34 of the Civil Liability Act 2002 (NSW).
Whether or not the State’s statutory claim (or for that matter its contract claim, as to which see below) amounts to a claim ‘for economic loss’, the difficulty for the cross-defendant is that it appears that the exclusionary clause in s 34(1) of the Civil Liability Act, being ‘any claim arising out of personal injury’, is engaged. The State referred the Court to observations of McColl JA in Shinwari v Anjoul (2017) 94 NSWLR 314 (‘Shinwari’) at [96]-[99] (Emmett AJA agreeing; and see also Gleeson JA’s observations to similar effect at [110]) about the broad import of the exclusionary clause within in s 34(1).
In my view, by analogy, the State’s statutory claim is properly construed as a claim ‘arising out of personal injury’. It is not necessary that the claim is brought by the person who actually suffered the personal injury: Shinwari at [97]. As I noted earlier, the ‘damage’ (for the purposes of s 5 of the LR (MP) Act) that the plaintiff sustained was, of its nature, personal injury. The State’s liability as tortfeasor only arose because of its liability for the plaintiff suffering personal injury.
As to the former, the State accepts that it bears the onus of proving the reasonableness of the settlement. The State submits, correctly, that evaluation of the reasonableness is determined objectively and prospectively, on the facts at the time of settlement. [50] That time was 6 July 2026.
In this regard, the State notes, as I have found, that in the circumstances, the cross-defendant’s (and therefore the State’s) liability was uncapped since the restrictions on personal injury damages in Part 2 of the Civil Liability Act (including exclusion of aggravated and exemplary damages) were inapplicable.
The State points to, and the Court accepts, the following ‘integers’ indicating the objective reasonableness of the settlement as at the time it was made (6 July 2026):
(a) Although the State never seriously disputed the plaintiff making out her claim against it, the cross-defendant did; until about 6 July 2026 when, albeit begrudgingly and for reasons of convenience, he accepted that (subject to causation issues) liability was established against him. (b) The State effectively acknowledged that in light of the High Court’s decision in AA v Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle (2026) 427 ALR 67 (published in February this year), its liability was effectively a foregone conclusion in respect of the conduct that the cross-defendant engaged in whilst the plaintiff was a student of his at school and on the school premises; irrespective of whether it was at fault. But this still left a question as to its responsibility for ‘out of school’ conduct by the cross-defendant, but the settlement that was reached represented a significant compromise of the State’s exposure. (c) The Court can infer from the very fact that settlement was reached that it was intrinsically reasonable. It accords with policy reflected, amongst other places, in s 56 of the Civil Procedure Act 2005 (NSW). It carried the usual advantages not only to the State but also to the plaintiff who, it is pertinent to emphasise, was identified by her expert psychiatrist as being particularly susceptible to trauma from litigation arising from the abuse perpetrated upon her. It saved (some) cost, time and court resources. (d) The quantum was reasonable. The State was confronted with a schedule of damages (dated 30 June 2026, prior to the second defendant’s effective withdrawal from participation in the proceeding) [51] which claimed damages as being quantified as $981,686 plus out of pocket expenses and costs and, to reiterate, the reasonableness has to be viewed at the time of settlement; not with hindsight. The State’s settlement sum of $480,000 (for the liability component) is plainly a very substantial reduction of that amount claimed. (e) The State was also on notice of the cross-defendant’s belated Amended Defence (informally notified on 4 July 2026) [52] , raising issues about suggested defences to liability, causation and certain heads of loss. It was reasonable for the State to give no credence to the defences of contributory negligence or voluntary assumption of risk. The cross-defendant’s argument about intervening acts was flawed which, in turn, removed the substratum for his arguments about heads of loss. Moreover, the general way that the cross-defendant evinced his intention to fight the case, up to 6 July 2026, could have generated the risk of additional exposure to aggravated damages for cases of this kind. [53] (f) As to the costs component of the settlement ($275,000), given the scope of litigation commenced over two years ago, this again represented a significant compromise. It avoided problematic issues associated with service of offers of compromise. It avoided any assessment of costs.
The State acknowledged the well-established considerations for the apportionment exercise: culpability (the tortfeasors’ respective departures from the standard of care) and causal potency of each tortfeasor’s conduct [54] .
The Court is expressly empowered to order an amount in contribution equating to a complete indemnity: s 5(2).
It is not a novel occurrence for the State, placed in its position, to seek a full indemnity from a tortfeasor in the cross-defendant’s position. The State cited a decision of Forbes J in Shuttleworth v Morris & Anor [2020] VSC 143 as a precedent precisely on point.
As to its culpability, the State rightly points out that, with reference to St Paul*’*s College Ltd v Allan [2026] NSWCA 22, that the plaintiff had, in effect, all that she needed to obtain judgment against the State by reason of breach of the non-delegable duty. Neither that doctrine, nor the doctrine of vicarious liability, both of which placed the State on the hook, as it were, said anything about the State’s culpability.
Senior Counsel for the State fairly emphasised, with respect to the evidence of the two assistant principals at the School, that they, being apparently diligent and professional teachers, with a stern principal in charge, strove to abide by basic requirements expected by the Department of Education. Conscious as they were of those requirements (which as at 2000 would have coincided with basic standards of decency and common sense), they had no inkling of the cross-defendant’s conduct. It was notable, in comparison, that the second defendant apparently set up a fake ‘executive council’ within the classroom when there was already an institutional ‘SRC’ as a means of procuring proximity to the plaintiff (and other friends) and committed his acts of indecency in the confined quarters of a storeroom. In other words, this was not a situation where the ‘red flags’ identified in codes of conduct were manifest.
The State also emphasised the absence, in the evidence, of matters which would have put the Department of Education on notice: there were no complaints against the cross-defendant, nor any indication that any student was at risk in relation to him. It was not the State’s fault that the cross-defendant had failed to notify relevant schooling authorities of his private tutoring: this was a teacher’s responsibility. No one within the school environment knew of the various outings for recreation or entertainment that the cross-defendant took the plaintiff during or more pertinently after 2000. This was not a case of the same kind as the cases of IZG2 v State of New South Wales [2025] NSWSC 1366 or State of N**ew South Wales v Taylor [2017] NSWSC 1794, where there were factors at play that were consistent with direct institutional fault.
The State asserts that the cross-defendant entered into a contract of employment with the State as a school teacher. This was a matter the cross-defendant admitted. [55]
The State asserts that implied terms (in law and/or fact) of that employment contract included obligations, as a teacher, to carry out his teaching duties and functions in good faith, with due care and skill and would not engage in serious and wilful misconduct.
On 3 May 1999 the cross-defendant was appointed by the NSW Department of Education and Training to be a classroom teacher at the School, commencing on 28 April 1999. [56] He had previously been appointed to Bonnyrigg Heights Public School.
In Suttling v Director-General of Education (1985) 3 NSWLR 427, McHugh JA (Glass JA agreeing) determined (at 448) that the exercise of a statutory power of appointment brought into existence a contract between employee and the New South Wales Government. This result was undisturbed on appeal to the High Court. [57] Subsequently, the legal position in New South Wales appears to be [58] that common law contracts of employment subsist between the State and teachers appointed under the Teaching Services Act 1980, with rights arising on ordinary contractual principles (subject to other statutory provisions). I accept the State’s submission that the cross-defendant was in a contract of employment with the State.
Under the common law, an employee owes their employer an implied duty to perform their duties with reasonable care and skill and to serve faithfully. [59] This, the State submits, and the Court accepts, has been left undisturbed by State of N**ew South Wales v Shaw (2015) 97 NSWLR 169 (‘Shaw’); which, it was argued, focussed upon ‘employee-protective’ terms and not well-established duties owed by an employee.
Ms Gleeson SC, who appeared with Mr Scott of Counsel, for the State, also submitted that logically, it must follow from the operation of s 5 of the Employee**s Liability Act 1991 (NSW), that where an employee’s tort (in respect of which the employer would become vicariously liable) occurs in the case of serious and wilful misconduct, the employer’s general law right to indemnity against an employee recognised in Lister v Romford Ice and Cold Storage Co Ltd [1957] AC 555 is, in effect, revived and may be exercised.
The State invokes the principle that where it may be supposed that parties at the time of entering into contract contemplate that the highly probable result of a breach by a party was that a lawsuit would arise between the other party to the contract and a third party, which lawsuit it was reasonable for the other party to defend, even if it turned out the other party would lose and necessarily incur costs, such costs would fall within the second limb of the rule in Hadley v Baxendale (1854) 9 Exch 341*.* [60] This principle was applied in Provident Capital Ltd v Papa (No 2) [2013] NSWCA 156 (‘Provident Capital’) per Macfarlan JA (Sackville JA agreeing) at [13]-[14] and [16]. Further, given that the right exists in contract rather than depends upon the exercise of the Court’s discretion to order costs, the State argued that the quantum of the damage was such that those defence costs should be calculated on what it reasonably incurred. In other words, it should recover what (under the law of costs) would be regarded as an indemnity basis.
The State referred to other cases where there are separate proceedings between the same parties (where costs of proceedings are governed by the costs discretion) and costs incurred in what is effectively a third party claim (where costs can be recoverable as damages). It acknowledged some cases where it is suggested that the amount recovered under the contract might be limited. But they should not be followed. As a matter of causation, but for the cross-defendant’s breach of contract, the State had no claim to defend so all of its costs flowed from the breach. This case was on all fours with Provident Capital.
The Court accepts these submissions. In particular, the Court finds that the principle in Hammond & Co v Bussey (1887) 20 QBD 79, as affirmed in , is applicable; and that the quantum of recovery is not limited by reference to analogies of what may be recoverable in the exercise of adjudication of a costs dispute between parties to the same proceeding.
The plaintiff foreshadowed that if she were successful, she would seek a special costs order, in the nature of a gross lump sum order against the second defendant.
The State also indicated that in the event that it was successful, it wished to be heard for seeking a special costs order against the cross-defendant.
Pending determination of those applications, costs of the plaintiff’s proceeding against the second defendant and the cross-claimant’s proceeding against the cross-defendant are reserved.
Ordinarily, an active defendant in a proceeding would be entitled to be heard on questions of costs. However, the second defendant’s indication of his unwillingness to have any further involvement in the proceeding was unqualified. That is taken to include any willingness to be involved in any further issues about costs; even though, at the time he indicated that intention, he was represented and, at the time he withdrew, it was clearly foreseeable that he would be exposed to adverse costs orders. I note, in particular, that in Exhibit 2 DX 2, in Mr Green’s email to the Court on 4 July 2026, Mr Green stated that he had warned the second defendant about the “potential costs consequences associated with his decisions and preferences”. I think it is fair for the Court to infer that the reference to advice about costs consequences is not a statement of limitation.
In those circumstances, the Court is prepared to make its decision on costs affecting the second defendant on the basis of the material and submissions made by the active parties.
For these reasons, the Court orders:
Judgment for the plaintiff against the second defendant for the sum of $1,073,192.
Pursuant to ss 5(1)(c) and 5(2) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW), the cross-defendant is to indemnify the cross-claimant in respect of its payment to the plaintiff in the sum of $755,000 (which sum is inclusive of interest and costs).
The cross-claimant is to provide the Court with short minutes of order to quantify its action against the cross-defendant for damages for breach of contract plus interest.
Costs (of the plaintiff’s claim against the second defendant and the costs of the cross-claim) are reserved.
Within 7 days of these orders, the plaintiff and first defendant/cross-claimant are (respectively) to file and serve:
(a) respective notices of motion seeking special orders, with supporting evidence, for their costs applications; and (b) written submissions not exceeding (in each case) 5 pages, unless request for leave is granted for a page limit in excess of that limit.
**********
State of New South Wales v Taylor [2017] NSWSC 1794 at [20], [55].
Evidence of this kind was limited to context evidence. The plaintiff separately relied upon tendency evidence, which did not rely upon evidence of misconduct involving other students.
See Vella v R [2022] NSWCCA 204 at [12].
In addition to the guilty verdicts for three counts, there was a directed verdict of not guilty on one count, a verdict of not guilty on another count, and the jury was discharged in relation to the remaining 14 counts.
Vella v R [2022] NSWCCA 204.
Count 1 in the first trial in 2020.
Count 2 in the first trial in 2020.
Count 4 in the first trial in 2020.
Count 1 in the second trial in 2023.
MTH v State of New South Wales [2025] NSWCA 122. Note the decision is currently on appeal to the High Court, with judgment reserved following the hearing on 10 June 2026.
Under the former s 77(1) of the Crimes Act 1900 (NSW), consent was not a defence when the complainant was a child under 16 years.
The Crown was able to rely upon the same act as amounting to both assault and an act of indecency.
The offence was repealed, with effect from 1 December 2018, by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW). The conduct, when committed in relevantly the same circumstances, would now constitute an offence under s 73A or, alternatively, s 66DB of the Crimes Act 1900 (NSW). Consent is no defence where the child is aged under 16: s 80AE.
Exhibit PX 2, tab 1.7.
Exhibit PX 2, tab 4.3, p 440.
Exhibit PX 2, tab 4.3, pp 203-5.
Exhibit PX 2, tab 4.3, pp 578-580.
“B” v Reineker [2015] NSWSC 949 at [49]-[50]; Lewis v Doyle [2022] NSWSC 92 at [163]; BDS2 v CEG2 [2025] NSWSC 1291 at [168].
March v Stramare (E & M H) Pty Ltd (1991) 171 CLR 506 (‘March’) at 515-516.
Medlin v State Government Insurance Commission (1995) 182 CLR 1 (‘Medlin’) at 6-7.
Tabet v Gett (2010) 240 CLR 537 at [113].
March at 515-516.
March at 509.
M’Kew v Holland & Hannen & Cubitts (Scotland) Ltd [1970] S.C (HL) 20 at 25, approved in March at 518.
March at 517.
March at 517.
Medlin at 13.
Watts v Rake (1960) 108 CLR 158 at 160-161; Purkess v Crittenden (1965) 114 CLR 164 at 168.
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 at [63].
Medlin at 21.
Blaxter v Commonwealth of Australia (2008) Aust Torts Rep 81-948; [2008] NSWCA 87 at [36]-[37].
EF v GH [2023] NSWDC 538.
Watt v Redman [2024] NSWSC 638 at [58].
State of New South Wales v Riley (2003) 57 NSWLR 496 per Hodgson JA (Nicholas J agreeing) at [131]-[133].
Exhibit PX 2, tab 5.4, pp 914-917.
Ramsay v Denton [2021] NSWCA 310 at [61].
Exhibit PX 2, tab 1.2, pp 24-35.
A pleaded claim for equitable contribution was abandoned at the hearing.
Exhibit PX 2, tab 6.29, pp 1160-1162.
Exhibit PX 2, tab 6.30, pp 1163-1165.
Exhibit PX 2, tab 6.31, pp 1166-1170.
Exhibit PX 2, tab 6.13, p 1021.
Nau v Kemp & Associates Pty Ltd (2010) 77 NSWLR 687 at [98]; applied in IZG2 v State of New South Wales [2025] NSWSC 1366 (‘IZG2’) at [210], [213].
AA v Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle (2026) 427 ALR 67.
A succinct summary of the steps that a claimant needs to prove for this form of liability was provided by Kirk JA (Payne JA and Price AJA agreeing) in St Paul’s College Ltd v Allan [2026] NSWCA 22 at [83].
Prince Alfred College Inc v ADC (2016) 258 CLR 134.
The State cited observations of Kirk JA in St Paul’s College Ltd v Allan [2026] NSWCA 22 at [87] to the effect that even an action for vicarious liability would now lack utility in view of the action for breach of a non-delegable duty. Impliedly this must be all the more so in relation to an action for direct negligence.
Amended Statement of Claim, paragraph 10; Amended Defence, sub-paragraph 10(a).
Employees Liability Act 1991 (NSW), s 3(1)(b).
Unity Insurance Brokers Pty Ltd v Rocco Pezzano Pty Ltd (1998) 192 CLR 603 at [129]-[130].
Exhibit PX 2, tab 9.3, pp 1498-1500.
Exhibit 2 DX 2.
SR v Trustees of the De La Salle Brothers [2023] NSWSC 66 at [74]; IZG2 at [361]-[363].
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 529 at 532.
Defence to the cross-claim, paragraph 5.
Exhibit PX 2, tab 6.26, p 1152.
Director-General of Education v Suttling (1987) 162 CLR 427.
State of New South Wales v Shaw (2015) 97 NSWLR 169 per Ward JA (Beazley P and Gleeson JA agreeing) at [100]-[102].
Lister v Romford Ice and Cold Storage Co Ltd [1957] AC 555 at 573; I Neil, D Chin and C Parkin, The Modern Contract of Employment (3rd ed, 2023, Lawbook Co Ebook) [6.086], fn 286.
Hammond & Co v Bussey (1887) 20 QBD 79.
Table formatting correction.
NS
State of New South Wales (Department of Education)
(2026) 427 ALR 67
(1938) 60 CLR 336
(2016) 93 NSWLR 95
(1987) 162 CLR 427
(1998) 196 CLR 1
(2022) 108 NSWLR 285
(1959) 101 CLR 298
(2003) 214 CLR 552
(2011) 243 CLR 361
(1990) 169 CLR 638
(1991) 171 CLR 506
(1995) 182 CLR 1
(2010) 77 NSWLR 687
(1985) 59 ALJR 529
(2016) 258 CLR 134
(1965) 114 CLR 164
(2025) 310 FCR 170
(1950) 80 CLR 292
(2017) 94 NSWLR 314
(2000) 54 NSWLR 133
(2003) 57 NSWLR 496
(2015) 97 NSWLR 169
(1985) 3 NSWLR 427
(2010) 240 CLR 537
(1998) 192 CLR 603
(1960) 108 CLR 158
(2000) 54 NSWLR 536
The second defendant’s position was fairly and accurately summarised by the plaintiff’s Counsel as follows. The second defendant:
Issues associated with the State’s cross-claim against the cross-defendant.
More than this, the plaintiff says that the provision of those rewards (which featured his following the plaintiff into the storeroom attached to the classroom) were acts of sexual grooming intended to establish an emotional connection with her, a child who was relevantly vulnerable. She deposed that the acts progressed to the point where the second defendant asked the plaintiff to kiss him on the cheek and lips in return for the provision of lollies and chips from the storeroom, which were being supplied on a daily basis. The plaintiff also deposed to the second defendant kissing LB on the cheek as well. [2]
The plaintiff deposed that throughout the school terms 3 and 4, it was a daily occurrence for her (and her friends in the ‘Student Leadership Council’) to go into the storeroom.
She deposed to the second defendant kissing her, or asking her to kiss him, and providing lollies or chips if she did so. She deposed to it starting as kisses on the cheek, before becoming kisses on the lips.
The plaintiff deposed that throughout 2000, the second defendant arranged to take her to ‘Australia’s Wonderland’ theme park on many occasions, sometimes by herself and sometimes with her friends (including LB and RS). Some photographs that he took of her on these occasions were contained in the exhibit to her affidavit (Exhibit PX 1, pp 46-53).
The plaintiff tendered several letters that she received from the second defendant in 2000. The plaintiff highlighted certain parts of the correspondence:
In a letter dated 4 January 2000, the second defendant:
Later in this section, I refer to particulars of incidents in respect of which the second defendant was charged and found guilty.
In July 2001, the second defendant sent other correspondence to the plaintiff, which was relied upon at the hearing.
In August 2001, the second defendant corresponded with the plaintiff with increasing frequency. The correspondence was punctuated with references to her being his “precious angel”, his “sweetest, loveliest, most magnificent, incredible angel”, his gratitude for spending time with her, and a customary sign off “LUMH” (‘love you mega heaps’).
In 2002, the plaintiff commenced high school. The second defendant continued to tutor her at home. She deposed to his kissing her whenever they were alone in her house.
In 2003, the second defendant became a substitute teacher at the high school the plaintiff attended. The plaintiff was in Year 8. She deposed to police officers coming to her school and presenting a ‘stranger danger’ class. This caused her to become upset and she left the classroom.
When she was in Year 8, the plaintiff deposed to confiding in another friend about her abuse, and that friend recommended that she tell the school’s principal. But the plaintiff did not feel comfortable doing so. She instead reported to the vice principal of her high school (who had previously taught her).
On 19 December 2003, a school counsellor reported the plaintiff’s allegations against the second defendant to the Department of Education. That report prompted an investigation.
On 12 February 2004, when she was in Year 9, the plaintiff provided a statement to the investigators. This was done in the presence of her mother.
On 29 September 2004, she signed a statement for the Department of Education’s Employee Performance and Conduct directorate. She indicated that although what was contained in that statement was true, her statement was incomplete.
On 11 November 2005, the second defendant provided his own statement to the investigators, in which he denied any wrongdoing.
A significant period of time ensued before the next material event in the chronology. In March 2017, the plaintiff said she made a report and provided a statement to police. An explanation for the gap between the investigation commencing in late 2003 or early 2004 and plaintiff’s report to police in March 2017 was not in evidence.
On 8 September 2017, the second defendant was arrested by police and subsequently charged. An indictment was issued on 11 July 2018.
On 20 August 2020, the second defendant was arraigned on an indictment that charged him with 17 counts of aggravated indecent assault. In her affidavit, the plaintiff deposed to her giving evidence on 24 and 25 August 2020, in the course of which she was cross-examined by Counsel for the second defendant.
On 9 September 2020, in his first trial, the second defendant was found guilty by a jury on three counts of aggravated indecent assault (contrary to the former s 61M of the Crimes Act 1900 (NSW)). [4] The plaintiff was the victim in each of those three counts.
The second defendant’s appeal against his convictions on these three counts was dismissed on 21 September 2022. [5]
On 23 February 2023, in his second trial, the second defendant was found guilty of a further 14 counts of aggravated indecent assault. The plaintiff was the victim in one of those counts. After the jury’s verdict, the second defendant’s bail was revoked and he was taken into custody.
On 27 March 2023, the plaintiff signed a victim impact statement for the sentencing proceeding.
On 10 November 2023, following the two trials, the second defendant was convicted of 17 counts, and was sentenced (by O’Brien DCJ, as the Deputy Chief Judge then was) to an aggregate term of imprisonment of 6 years (backdated to commence on 23 February 2023) with a non-parole period of 3 years and 7 months.
The second defendant was still in custody at the time of the hearing. He is eligible for release on parole on 22 September 2026.
In her affidavit prepared for use in this proceeding, the plaintiff referred to her extreme anxiety during the course of the criminal proceeding, including fears that someone was trying to kill her. She indicated that every time she received an update from the detective who was in contact with her about the criminal proceeding, she would experience flashbacks and disturbed sleep.
On 22 May 2026, a Certificate of Conviction was issued by the District Court pursuant to s 178 of the Evidence Act 1995 (NSW). It was certified by Damien Haifa.
The certificate recorded that on 10 November 2023, the second defendant was convicted of four specified charges of aggravated indecent assault (with the circumstance of aggravation being that the victim - the plaintiff - was (then) under the age of 16 years) that were committed against the plaintiff. The offences were contrary to s 61M of the Crimes Act 1900 (NSW). The particulars of the offences on the face of the certificate described the acts of indecency as occurring:
Further, the same passage in the Criminal Trial Courts Bench Book described “indecency” as generally meaning conduct contrary to the ordinary standards of respectable people in the community, although the conduct must have a sexual connotation or overtone. A touching of a complainant’s body in a way clearly giving rise to a sexual connotation was sufficient to establish indecency (such as touching the complainant’s genitals), but it also sufficed if the offender’s conduct was accompanied by an intention to obtain sexual gratification. In determining whether conduct is indecent, the trier of fact would take into consideration all of the surrounding circumstances, including the conduct itself, the respective ages of the accused and the complainant, any relationship which had existed between them, and the nature of the act relied upon.
Thirdly, parts of the plaintiff’s evidence regarding grooming and the second defendant’s general ingratiation into the plaintiff’s life, and that of her family, thereby presenting him with the opportunity to abuse her even after she had left school, were corroborated by her mother. I will return to this subject in greater detail when dealing with the State’s cross-claim.
Fourthly, as I noted in a separate judgment (overruling the second defendant’s objection to either or both of the tendency notice [14] or the admission of tendency evidence more generally), the spate of the same convictions involving the same offender and victim, that were relevantly similar, over a relatively short period of time, engaged the exception to the tendency rule in s 97 of the Evidence Act. The Court determined that, notwithstanding that the tendency notice had not served within the period prescribed by Court rules (21 days under r 31.5(c) of the UCPR), reasonable notice had been given, and the second defendant had opportunity to deal with, and did deal with, the evidence. The Court also found that the evidence had significant probative value and should not be excluded (or limited) under ss 135 or 136 of the Evidence Act. Whilst there were several tendencies asserted in the tendency notice, the pertinent one was the tendency to deliberately and unlawfully touch the plaintiff when she was a child under the age of 16 years, with sexual overtones and connotations. This tendency was proven on the probabilities and constituted circumstantial evidence in the plaintiff’s case in this proceeding.
Fifthly, as touched upon already, the second defendant chose not to participate at the hearing or to give evidence. Evidence is to be weighed in the scales according to the parties’ capacity to produce it. That principle applies to the second defendant as much as any other defendant in an ordinary civil proceeding, where he had no benefit of the presumption of innocence, but did have the benefit of not being exposed to further criminal sanction in respect of the conduct giving rise to the convictions which the plaintiff relied upon in her civil case.
This, of course, is not a criminal proceeding, in which each asserted battery or assault needs to be separately considered. That will have importance later in these reasons when I consider general damages.
It suffices to say that, subject to any available defences at law, the Court is comfortably satisfied that the second defendant committed the torts of battery and assault against the plaintiff when she was between 10 and 12 years of age.
More particularly, I find that the acts of grooming and indecent acts that the second defendant committed between 2000 and 2002 were performed without justification or legal excuse, could not have legally been consented to and, to the extent that they involved physical contact with her, constituted the tort of battery. In the absence of physical contact, intentional conduct creating an apprehension of harmful or offensive conduct constitutes the tort of assault.
She has been very severely affected by the abuse perpetrated upon her when she was a young girl. She has, to her credit, tried to get on with family life and her career. Sadly, she has likely suffered permanent mental harm and is likely to continue to experience the effects of that injury for the remainder of her life.
I accept that an allowance should be made for general damages in the sum of $300,000.
It is well-recognised that care needs to be exercised when making such awards to avoid any ‘double counting’. Aggravated damages are generally directed towards compensating a plaintiff not only for hurt feelings (which are reflected in general damages), but also for high-handed, malicious, insulting or oppressive conduct deliberately engaged in by a defendant. [34]
By her written submissions (MFI 7), the plaintiff cited other matters which she contended justified the award. These included:
the gross breach of trust inherent in the second defendant’s conduct;
that calculated nature of his grooming of the plaintiff;
the ineffective response to her disclosure of the abuse while she was still at school; and
the ongoing hypervigilance and fear of the second defendant she continues to experience.
These factors are not convincing of proof of aggravated damages. The first matter, being the breach of trust, whilst true, has already been a relevant aggravating factor in the imposition and length of a sentence of imprisonment. This goes to a point about exemplary damages that will be considered below. As to the third matter, it is not altogether easy to attribute responsibility to the second defendant for the plaintiff having been disbelieved (other than perhaps by her parents), despite the reprehensible nature of his conduct. The fourth matter has already been taken into account in the compensatory damages.
However, by reason of the matters I have referred to, comprising his pleading the content of special, but untenable, defences (contributory negligence and volenti non fit injuria), the way in which the second defendant conducted his defence, his lack of remorse, his failure to accept responsibility, and his raising matters by bare assertion of ‘intervening acts’ on the eve of the hearing, in the circumstances I have referred to I make an allowance of $40,000 for aggravated damages.
But a difficulty for the plaintiff is that, apart from the church incident, in respect of which the second defendant was acquitted, it is not entirely clear, by reason of the ‘course of conduct’ offences that gave rise to convictions on Counts 1 and 2, to what extent the second defendant has remained unpunished.
To meet this difficulty, the plaintiff drew attention to the decision in the appeal against convictions in Vella v R [2022] NSWCCA 204, where, in the leading judgment of Beech-Jones CJ at CL (as his Honour then was), it was noted that notwithstanding the form of the counts, the trial judge had in fact directed the jury that Counts 1 and 2 related only to a single occasion in respect of each count (at [42], [48]).
Nevertheless, in the sentencing remarks (Exhibit PX 4, at paragraphs [14] and [15]) it appears that the sentencing judge took into account, when assessing the seriousness of Counts 1 (relating to abuse in the storeroom in 2000) and 2 (relating to abuse through tutoring the plaintiff at her home 2001), the fact that they were ‘course of conduct’ offences. This was particularly relevant in the sentencing context, since it deprived the second defendant of an argument that the acts giving rise to Counts 1 and 2 were only isolated. This was pertinent to the objective gravity of the offending and would likely have influenced the nature and extent of the penalty imposed on him in the sentencing proceeding.
I am unable to accept, in the circumstances, that such exceptions as may apply to the principle in Gray are engaged. I refuse the claimed allowance for exemplary damages.
In her first report, Dr Phillips opined that the abuse had not significantly impacted upon the plaintiff’s capacity to work, given the pattern of continuous employment prior to and since leaving school. But she noted that the plaintiff’s work capacity may have been affected by her reduced capacity to study, which narrowed her options. In her second report, Dr Phillips substantially adhered to the views she had earlier expressed: the plaintiff had shown that she was able to work, and indeed enjoy working, five days a week despite her mental health symptoms, until she ceased work due to becoming a mother. Once her children were at school, she did not see any reason why the plaintiff could not return to work, in at least a similar form of employment. Dr Phillips did not consider that she had any incapacity for work.
ATO records and notices of assessment were in evidence. They stretched back to 2005 and 2007 respectively, which I have considered. [35]
In the light of Dr Phillips’ opinion, the plaintiff’s case on economic loss is not based on incapacity per se, but rather a loss of opportunity to complete further study and engage in a more remunerative vocation. Senior Counsel for the plaintiff elaborated in her oral argument that the type of work that the plaintiff felt comfortable doing was limited. She required stability and preferred to work in small groupings. She was uncomfortable with ‘top down’ hierarchical work relationships (which, by analogy, might resemble the top down relationship between teacher and school student) and preferred autonomy. These limitations were clearly attributable to the abuse the second defendant had perpetrated upon her, and they disadvantaged her on the open labour market.
It should be apparent already that this submission should be rejected. It is entirely heedless of the diminution and impairment of earning capacity that he was responsible for.
The plaintiff invites me to apply the principles of Malec v JC Hutton Pty Ltd (1990) 169 CLR 638*.* This approach was endorsed, inter alia, in Searle v The Commonwealth of Australia [2019] NSWCA 127 per Bell P (as the Chief Justice then was) at [202]-[206] for cases where, as here, the substance of the claim is a past loss of a chance for a full earning capacity. That should be accepted.
It is difficult to be precise, given the damage wrought at an early stage of a child’s life, but the plaintiff has shown herself to be committed and capable of clerical and payroll activities whilst labouring under her disabilities. She is good with numbers. I ultimately accept the plaintiff’s claim under this loss, reflecting a $300 net differential each week, to be conservative. As the plaintiff submits, it is open to apply a buffer even to past loss. [36] This is appropriate in a case, such as this, where her vocational choices did not have the opportunity to mature.
It was unacceptable for a teacher to be alone in company with a student, including on school premises.
Whilst students were permitted to go into the storerooms attached to classrooms, it was unacceptable for a student to be alone with a teacher in such storerooms.
She had no recollection of any teacher providing private tutoring to a student, and, if that occurred, a teacher would have to declare that.
She was very familiar with the documents referred to earlier (and others). She was trained to implement them.
Like Ms Petersen, she was completely unaware of the allegations brought against the second defendant.
A point that Ms Petersen raised, which Senior Counsel for the State emphasised, was her ignorance of the ‘executive officer’ system that the plaintiff had described in her evidence, by which certain students were given what was akin to a leadership position. Both Ms Petersen and Ms Flegg commonly referred to a ‘student representative council’. The State’s point is that, accepting the plaintiff’s account, as the Court has, it showed the extent to which the second defendant was prepared to go to conceal his nefarious conduct at school.
By contrast, I accept the State’s characterisation of the cross-defendant’s conduct, which had also been supported by counsel for the plaintiff (when arguing for exemplary and aggravated damages) that it was intentional, criminal and sustained over a substantial period of time and represented a gross abuse of trust that he had gone out of his way to cultivate from a young and vulnerable school girl. I agree that he engaged in acts of subterfuge and that he was effective in concealing his conduct within the school.
Having regard to the evidence of the plaintiff’s mother, it may fairly be said that the cross-defendant was equally effective in concealing the abuse he perpetrated from the plaintiff’s family, with whom he ingratiated himself. As noted earlier in these reasons, a common tactic deployed against the plaintiff and her mother (when she questioned him about the need for tutoring) was to engage in gaslighting or emotional manipulation. The evidence from the mother was also important in demonstrating just how little causal potency any fault (of which the State submits there was little or none) had with respect to the tortious conduct that occurred out of school. Another circumstance, concerning ‘causal potency’ is that, arguably, a not insubstantial part of the abuse occurred out of the school environment.
I accept, therefore, that it is just and equitable that the cross-defendant contribute 100% of the settlement sum, thereby representing a complete indemnity.