Plaintiff A and B v Bird; Plaintiff C v Bird; Plaintiff D v Bird

196 CLR 1; [1998] HCA 70 Hollis v Vabu Pty Ltd (2001) 207 CLR 21; [2001] HCA 44 Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 106 FCR 51; [2000] FCA 1886 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Lamb v Cotogno (1987) 164 CLR 1; [1987] HCA 47 M v M (1988) 166 CLR 69; [1988] HCA 68 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20 Merton & Merton [2007] FamCA 1350 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 CLR 445; [1992] HCA 66 New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4 Optus Administration Pty Ltd v Wright by his tutor Wright (2017) 94 NSWLR 229; [2017] NSWCA 21 Ordukaya v Hicks [2000] NSWCA 180 Palmer v Dolman [2005] NSWCA 361 Plaintiff A & B v Bird [2016] NSWSC 997 Plaintiff A v Bird [2020] NSWSC 1145 Prince Alfred College Incorporated v ADC (2016) 258 CLR 134; [2016] HCA 37 Public Transport Commission (NSW) v J Murray-More (NSW) Pty Ltd (1975) 132 CLR 336; [1975] HCA 28 R v Chief Constable of Devon and Cornwall, Ex parte Central Electricity Generating Board [1982] QB 458 R v Suteski (2002) 56 NSWLR 182; [2002] NSWCCA 509 Rabay v Bristow [2005] NSWCA 199 Re W [2004] FamCA 768; (2004) 32 Fam LR 249 RHG Mortgage Limited v Ianni [2015] NSWCA 56 Richards v Victoria [1969] VR 136 Rixon v Star City Pty Ltd (Formerly Sydney Harbour Casino Pty Ltd) (2001) 53 NSWLR 98; [2001] NSWCA 265 Roman Catholic Church Trustees for the Diocese of Canberra and Goulburn v Hadba (2005); 221 CLR 161; [2005] HCA 31 Sampco Pty Ltd v Wurth [2015] NSWCA 117 Sophie Fegan by her tutor Inga Rozenauers v Lane Cove House Pty Limited [2007] NSWCA 88 Sorbello v South Western Sydney Local Health Network; Sultan v South Western Sydney Local Health Network [2016] NSWSC 863 State of New South Wales v Riley (2003) 57 NSWLR 496; [2003] NSWCA 208 Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35 The Queen v Dennis Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40 Varmedja v Varmedja [2008] NSWCA 177 White Constructions (ACT) Pty Ltd (In liq) v White [2005] NSWCA 173 Withyman v State of New South Wales [2013] NSWCA 10 Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485; [1995] HCA 53 Texts Cited: RFV Heuston and RA Buckley, Salmond on Torts (Sweet and Maxwell, 17th ed, 1977) Category: Principal judgment Parties: A (1st Plaintiff) B (2nd Plaintiff) C (3rd Plaintiff) D (4th Plaintiff) Rodney Raymond Bird (1st Defendant) Lisa Maree Clancy (2nd Defendant) Little Pigeon T/As Footprints Childcare Centre (3rd Defendant) Representation: Counsel: C Barry QC with M Tanevski and M Hamdan (1st, 2nd, 3rd and 4th Plaintiffs) C Heazlewood (1st Defendant) A Horvath with R McEwen (2nd and 3rd Defendants) Solicitors: Shine Lawyers (1st, 2nd, 3rd and 4th Plaintiffs) EMP Michael (1st Defendant) Norton Rose Fullbright (2nd and 3rd Defendants) File Number(s): 2013/375445; 2013/375437; 2020/65223

Judgment

1. Little Pigeon Pty Ltd owned the Footprints childcare centre which B and D attended between 2008 and late 2010 when they were removed after Mr Bird, who worked at the centre and was a 1% shareholder of the company, was arrested and charged with two offences involving another child who had made disclosures about him. Ms Clancy, Mr Bird's daughter, owned 99% of Little Pigeon's shares. Little Pigeon Pty Ltd was also the licensee of the centre.
2. B and D and other children later also made disclosures about Mr Bird. While police investigations resulted in further criminal charges being laid against him in relation to B and another child, none were laid in relation to D. The DPP finally did not pursue any of the charges to trial.
3. In these proceedings the plaintiffs seek damages for Mr Bird's alleged assaults of B and D and also claim that Little Pigeon and Ms Clancy are not only vicariously liable for his acts, but that they were all also negligent.
4. A and C, who are B and D's mothers respectively also pursue claims for breach of contract, given Little Pigeon's alleged failures to provide quality childcare; retain adequately trained staff to work at the centre; follow relevant and necessary procedures required to be followed by such centres; and to ensure that the children were safe and appropriately cared for, while under its control and supervision.
5. Compensatory, aggravated and exemplary damages are sought.

Issues

1. There was no issue that B and D were owed a duty of care: New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4.
2. That a duty was also owed to A and C and that the alleged assaults, negligence and breach of contract had occurred were denied, as was any vicarious liability for Mr Bird's acts, given that on the defence case he was a volunteer and not an employee.
3. The parties agreed many of the relevant facts and identified what was not in issue to include that, given the age of the children, they cannot have consented to any sexual acts and that neither B nor D could remember what happened to them at Footprints.

Liability

1. When the hearing commenced the issues identified included: 1. Whether the assaults occurred; 2. Whether Mr Bird was Little Pigeon's employee; 3. Whether Mr Bird had unsupervised access to or the opportunity to interact with B or D, out of sight of carers employed by Little Pigeon; 4. Whether Ms Clancy or the carers were aware of Mr Bird having such access or opportunity; 5. Whether either Little Pigeon or Ms Clancy are vicariously liable for any assault proven; 6. Whether Little Pigeon or Ms Clancy breached the duty of care which they owed B and D; 7. Whether Little Pigeon or Ms Clancy owed a duty of care to A and C and whether it was breached; 8. Causation; 9. Whether there had been any breach of contract; 10. Whether A or C sustained a recognised psychiatric illness as a result of Mr Bird's assaults; 11. The admissibility of: 1. Representations made by B and D to their mothers and others about what Mr Bird had done to them; 2. Admissions made by Mr Bird in his police interviews; 3. Tendency evidence; 1. The credibility and reliability of various witnesses.
2. Some issues fell away. In final submissions whether the pleaded risk of abuse had been established; what precautions a reasonable person in Little Pigeon and Ms Clancy's position would have taken to guard against the pleaded risk and what precautions were taken to guard against the risk, all remained in issue.

Damages

1. On damages, as well as quantum in respect of claims for non-economic loss, past loss of earnings, future economic loss, out of pocket expenses and future domestic assistance, the issues included: 1. The real effect of the alleged assaults on the plaintiffs; 2. Whether the Civil Liability Act 2002 or the common law applies to the assessment of damages in the cases of Little Pigeon and Ms Clancy, if they are found to be vicariously liable for Mr Bird's assaults; 3. Whether the plaintiffs are entitled to aggravated or exemplary damages.
2. Some measure of agreement on damages was finally reached.

Conclusion

1. Because B and D had no memory of what had happened, they could not be cross examined. In this case that did not preclude evidence of their disclosures being received. Given the gravity of Mr Bird's alleged acts it was thus necessary to pay very close attention to what they had each disclosed, in light of all of the other evidence, to determine whether the plaintiffs had satisfied the obligation to prove their cases, on the balance of probabilities.
2. For the reasons which follow I have concluded that the plaintiffs have each proven their cases and that orders must thus be made in their favour.

Mr Bird's admissions

1. The starting point for these conclusions is Mr Bird's admissions.
2. After his arrest Mr Bird gave a recorded police interview in which he made numerous admissions about his access to and interaction with children at the centre, particularly in relation to child 1, who was the subject of the charges laid against him. What he recounted involved various types of inappropriate conduct.
3. Early in the interview, when asked about child 1, Mr Bird acknowledged that on arrest he had been told that the reason was for allegations of indecent assault upon child 1 and he said that he knew her. He also said, amongst many other things, that he had rubbed child 1's back or patted her bottom, which he volunteered "may be what people could classify as assault."
4. Section 55 of the Evidence Act 1995 (NSW) provides that evidence that is relevant is evidence that "if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding."
5. Hearsay is dealt with in s59(1), providing that "Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation." There are various exceptions, including under s81 in relation to admissions, defined in the Dictionary to the Evidence Act to mean: "a previous representation that is - (a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding), and (b) adverse to the person's interest in the outcome of the proceeding."
6. There was finally no issue that Mr Bird's admissions were thus admissible against him, but in issue remained whether they were admissible against either Ms Clancy or Little Pigeon and whether they could be relied on as tendency evidence.
7. Section 87 of the Evidence Act provides: 87 Admissions made with authority (1) For the purpose of determining whether a previous representation made by a person is also taken to be an admission by a party, the court is to admit the representation if it is reasonably open to find that - (a) when the representation was made, the person had authority to make statements on behalf of the party in relation to the matter with respect to which the representation was made, or (b) when the representation was made, the person was an employee of the party, or had authority otherwise to act for the party, and the representation related to a matter within the scope of the person's employment or authority, or (c) the representation was made by the person in furtherance of a common purpose (whether lawful or not) that the person had with the party or one or more persons including the party. (2) For the purposes of this section, the hearsay rule does not apply to a previous representation made by a person that tends to prove - (a) that the person had authority to make statements on behalf of another person in relation to a matter, or (b) that the person was an employee of another person or had authority otherwise to act for another person, or (c) the scope of the person's employment or authority.

Admission and use of the children's prior representations

1. In 2015 advance orders had been sought by the plaintiffs under s192A of the Evidence Act about the admissibility of evidence of B and D's disclosures about Mr Bird in 2010 and 2011 to their mothers; their electronically recorded police interviews; and the disclosures which the four other children had made about Mr Bird in their police interviews.
2. RS Hulme AJ refused to make those orders, taking the view that given all that lay in issue between the parties about the disputed evidence, it would be inappropriate to rule on admissibility prior to trial: Plaintiff A & B v Bird [2016] NSWSC 997.

B and D

1. When the final hearing commenced the admissibility of A and C's evidence about the disclosures which B and D had made to them and the admissibility of B and D's police statements, under either s63 or s64 of the Evidence Act, remained in issue.
2. Statements made by B and D had been served. There was then no issue that neither still had a memory of what had happened to them while at Footprints. B and D were thus not finally required for cross-examination.
3. After argument it was also finally conceded that A and C's disputed evidence was admissible under s64(3) of the Evidence Act, because B and D were both to be called to give evidence. Consent orders under s136 were made, limiting the disclosures to evidence of what was said, rather than as evidence of the truth of what was said.

The other four children

1. While evidence in relation to four other children were considered by RS Hulme AJ, the plaintiffs finally relied on only on the disclosures made by child 1 and child 2. The admissibility of the evidence about their disclosures remained in issue.
2. There was no question that the prior representations made by child 1 and child 2 were relevant to what was in issue: s55. Or that the disputed evidence involved hearsay, which is not admissible in civil proceedings subject to the exceptions which include those provided in ss63 and 64: s59. They provide: 63 Exception: civil proceedings if maker not available (1) This section applies in a civil proceeding if a person who made a previous representation is not available to give evidence about an asserted fact. (2) The hearsay rule does not apply to - (a) evidence of the representation that is given by a person who saw, heard or otherwise perceived the representation being made, or (b) a document so far as it contains the representation, or another representation to which it is reasonably necessary to refer in order to understand the representation. 64 Exception: civil proceedings if maker available (1) This section applies in a civil proceeding if a person who made a previous representation is available to give evidence about an asserted fact. (2) The hearsay rule does not apply to - (a) evidence of the representation that is given by a person who saw, heard or otherwise perceived the representation being made, or (b) a document so far as it contains the representation, or another representation to which it is reasonably necessary to refer in order to understand the representation, if it would cause undue expense or undue delay, or would not be reasonably practicable, to call the person who made the representation to give evidence. (3) If the person who made the representation has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by - (a) that person, or (b) a person who saw, heard or otherwise perceived the representation being made. (4) A document containing a representation to which subsection (3) applies must not be tendered before the conclusion of the examination in chief of the person who made the representation, unless the court gives leave.
3. A "representation" is defined in the Dictionary to the Evidence Act to include an express or implied oral representation, as well as one to be inferred from conduct.

Child 2

1. The issue as to the admissibility of the evidence about child 2 was resolved by service of a letter from a psychologist, which the defendants accepted established that child 2 was not available to give evidence. That letter is not in evidence.
2. An application was then, however, pressed under s135 of the Evidence Act for the exclusion of the disputed evidence on the basis that its probative value was substantially outweighed by the danger that it might be unfairly prejudicial to the defendants. That was in issue.
3. "Probative value" of evidence is defined in Part 1 of the Dictionary to the Evidence Act to mean "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue".
4. There was no issue as to the probative value of the evidence, but the defence case was that it was unfairly prejudicial, given the procedural history of these proceedings and the result of forensic decisions which they had earlier made.
5. The relevant history included that the proceedings were commenced in 2013; the plaintiffs had served s67 notices in 2015, which identified the basis upon which they then relied to establish the admissibility of the disputed evidence; RS Hulme AJ's decision that admissibility of this evidence could not be determined before trial, given all that lay in issue; orders made as to when evidence had to be served in 2019; Garling J's August 2020 decision about the plaintiff's application for leave to serve further evidence, which went to establish the unavailability of child 1 and child 2: Plaintiff A v Bird [2020] NSWSC 1145; as well as the plaintiffs' foreshadowed application on the first day of the hearing, for leave to serve subpoenas to give evidence on the children, an application which was opposed and finally not made.
6. The defence case was that in those circumstances, unfair prejudice would result from the admission of the disputed evidence, because of their forensic decision not to investigate child 2's medical and counselling history, in the way that they had investigated A and B's history. That decision was the result of the view taken that on the evidence served, the plaintiffs would not be able to establish that child 2 was not available to give evidence. In the result, now to admit the disputed evidence would be unfairly prejudicial.

Child 1

1. The position in relation to the disputed evidence about child 1's disclosures was different.
2. It was not accepted that it was admissible, there being no evidence from child 1 that she had no memory of what had happened to her at Footprints and no evidence from any medical expert about adverse consequences of calling her to give evidence.
3. To establish that child 1 was unavailable, the plaintiffs relied on her mother's evidence, that of their solicitor Ms Buchanan and an opinion of Associate Professor Quadrio, an expert who had provided reports in relation to B.
4. Child 1 was aged 4 at the time of her first disclosures in 2010 and 5 when last interviewed by police. Whether she still has any memory of what happened is not clear.
5. Ms Buchanan described the steps taken to call evidence from child 1. Amongst other things her mother initially told Ms Buchanan that she did not wish child 1 to be involved in the proceedings, because there had been long lasting impacts from what had happened and she did not want child 1 traumatised further; that child 1 had mental health issues; and that she was undergoing counselling for trauma, stress, anxiety and depression.
6. In August 2020 the mother also told Ms Buchanan that child 1's therapist had advised that if child 1 was given free rein, all she would talk about was what had happened to her at Footprints. Thus she still would not permit child 1 to be involved in any way. This advice suggested that child 1 did have some memory of the events.
7. On 7 September 2020 child 1's mother told Ms Buchanan, however, that she had not spoken to child 1 about Footprints in nine years. To the best of her knowledge, child 1 did not remember anything and she did not want child 1's memories triggered. Accordingly, she would do everything she could to stop child 1 giving evidence; that she would not allow it to happen; and that she would even get arrested.
8. On 9 September 2020 when asked if child 1 would provide a statement confirming that she did not remember, her mother again said that to the best of her knowledge child 1 did not remember. She also refused to speak to child 1 about this, because she did not want to bring up any memories, or harm her.
9. In the result the plaintiff's application that the disputed evidence was admissible was pressed under s63 and paragraph (f) of the definition of unavailability of persons in Pt 2 clause 4 of the Dictionary of the Evidence Act.

Why the tendency evidence was admissible

1. The admissibility of Mr Bird's admissions and the four children's disclosures as tendency evidence also remained in issue. It was for the following reasons that I concluded that they were admissible.
2. Section 97(1) of the Evidence Act provides: 97 The tendency rule (1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless - (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
3. In submissions it was explained for the plaintiffs that what was sought to be established by the disputed evidence was that Mr Bird had a sexual interest in young children, which he had acted on. The s97 notices specified the acts relied on to establish Mr Bird's alleged tendency and if there was any deficiency in the notice, the discretion given by s100 of the Evidence Act not to require a notice to be given, should be exercised.
4. The defence case was that the s97 notices were deficient and what was relied on did not establish the tendency submitted.
5. Again this issue required consideration of "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue". As explained in IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 in assessing this it had to be assumed that the evidence would be accepted, that is, that it was both credible and reliable. It also had to be taken at its highest: at [47].
6. The term "significant probative value" is not defined in the Act. As explained in Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 at [16]. "Tendency evidence will have significant probative value if it could rationally affect the assessment of the probability of the existence of a fact in issue to a significant extent. The trier of fact reasons from satisfaction that a person has a tendency to have a particular state of mind, or to act in a particular way, to the likelihood that the person had the particular state of mind, or acted in the particular way, on the occasion in issue. The capacity of tendency evidence to be influential to proof of an issue on the balance of probability in civil proceedings may differ from the capacity of the same evidence to prove an issue beyond reasonable doubt in criminal proceedings. The starting point in either case requires identifying the tendency and the fact or facts in issue which it is adduced to prove. The facts in issue in a criminal proceeding are those which establish the elements of the offence."

Limitation under s136 of the Evidence Act

1. It was also the defence case that if admitted, the use to which the tendency evidence could be put should be limited under s136, because there was a danger that admitting the evidence might be unfairly prejudicial to Mr Bird. That submission was not advanced in relation to his own admissions.
2. Section 136 provides: 136 General discretion to limit use of evidence The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might - (a) be unfairly prejudicial to a party, or (b) be misleading or confusing.
3. The unfair prejudice pointed to was the defendants' inability to cross-examine the children.
4. The section is not concerned with prejudice that results from the receipt of evidence tending to establish the case of the party tendering it. It is rather concerned with prejudice which is unfair to the other party, because there is a real risk that the evidence will be misused in some unfair way: Ainsworth v Burden [2005] NSWCA 174 at [99].
5. What the suggested unfair prejudice of the evidence was is not entirely clear to me.
6. In Ordukaya v Hicks [2000] NSWCA 180, evidence had also been admitted under s64 and the prejudice which resulted from the inability to cross examine, thus also arose to be considered. It was held that the resulting prejudice was not "unfair to the point of outweighing material of high probative value" and that it was unnecessary to decide whether exclusion was confined to situations where the evidence had been obtained by unfair means or had "a tendency wrongly to excite the fact finder's emotions and is of little probative value" at [39].
7. An example of where the discretion to limit use of a document under s136 was exercised as to belief about the matters recorded is provided in White Constructions (ACT) Pty Limited (In liq) v White [2005] NSWCA 173. There it was found to be justified for reasons which included that the identity of the person who wrote the note was not proved; there was no evidence about the source of the information contained in the note; it was not clear whether the note recorded facts or opinions; there was no evidence of relevant personal knowledge of the matters contained in the note; and no evidence that the person was not available to be called and no explanation tendered for not calling him: at [239]-[240].

Credibility and reliability

1. In issue was the credibility and reliability of A, C, Mr Bird and Ms Clancy, as well as the reliability of the children's disclosures, which I will deal with separately.
2. I am satisfied that there were issues as to the reliability of parts of the evidence of A, Mr Bird and Ms Clancy and as to the credibility of aspects of the evidence of both Mr Bird and Ms Clancy.
3. In their case it was relevant to take into account that the evidence established that Mr Bird, with the assistance of Ms Clancy, breached an undertaking not to dissipate his assets, pending resolution of these proceedings. It appears that proceeds of the sale of his house have been used to fund the defence.

Plaintiff A

1. A made her statement in March 2019 and gave evidence in September 2020, long after the events in 2009, 2010 and 2011 which she described. She is highly educated, working when B attended Footprints as a youth worker. She was then a mandatory notifier of suspected child abuse and trained in its detection, but there is no suggestion that she ever made a notification in relation to Footprints.
2. Some years before these events A had been treated for mental health issues. After B's disclosures she came to believe that Mr Bird had assaulted B and afterwards suffered symptoms which required treatment. The psychiatric experts Dr Allnut and Dr Smith agreed that she had suffered a psychiatric injury, but could not agree what the nature of her condition was, either before or after these events, or her prognosis.
3. Even before B made her disclosures A had a concern about B's welfare at Footprints. She gave written instructions in 2009 that male employees were not to change her nappy, explaining "I hope you understand that as a youth worker my education and experience tends to make me extra cautious."
4. In 2009 A believed that it was inappropriate for Mr Bird to have kissed B on the forehead in greeting when she dropped her off at the Centre, about which she raised her concerns with Ms Clancy. Whether Mr Bird kissed B that day was in issue.
5. A also considered it inappropriate for Mr Bird to be sitting in the playground with children in his lap, or bouncing them on a beach ball, as she had observed repeatedly, but she did not raise any concerns about these activities.
6. In cross-examination A was a careful witness who could not recall a great deal about some matters which she was asked about, but who accepted that contemporaneous records accurately reflected things which she had said and done at the time.
7. A maintained in cross-examination that her statement recorded all of the occasions she had discussed Mr Bird with B, but she there made no reference to what B told her and a counsellor, Ms Ly, in September 2011 about having made up what she had earlier told A about Mr Bird having pulled her pants down.
8. In cross-examination A initially said she could not recall this, but agreed that she did not believe what B had said. She had also not believed B earlier, before Mr Bird was charged, when B said that it was Nat, a female childcare worker at Footprints who became her baby sitter, who had kissed her with an open mouth. Before this B had repeatedly said that Mr Bird had 'spicy lips'. Later B said it was Mr Bird who had kissed her like this.

Plaintiff C

1. There can also be no question as to how distressing C found the disclosures which her daughter D made to her about Mr Bird; the police investigation which led to her decision not to pursue charges against him, because of its impact on D; and later, the DPP's decision not to pursue the criminal charges which were laid against Mr Bird.
2. At the time C took the view that it would be too detrimental to D to be involved in the pursuit of criminal charges against Mr Bird, given how adversely she had been affected.
3. C also required treatment for health issues which she suffered after D's disclosures and even came to the conclusion that she had to leave her job. She agreed in cross-examination not only that her ex-partner disagreed with her response and considered that she had become obsessed with what had happened to D, but that she had in fact become obsessed.
4. C made her police statements in February and April of 2011 and her statement for these proceedings in March 2019. In March 2016 C had also given evidence before the Royal Commission into Institutional Responses to Child Sexual Abuse. What she then said was not in evidence, but she described this to have been a harrowing experience, involving months of preparation.
5. In cross-examination C gave an account of some disclosures later made to her by D, which she had not referred to in her statement or her police statements.
6. C said that she had relied on her solicitor to help her ensure that the important matters were contained in her statement and that the other disclosures she had referred to had been contained in her police statement. In fact she had dealt with C's ongoing disclosures, which she described as a drip feed of "pieces of a horrifying puzzle", in a letter attached to her April 2011 police statement.
7. In the result I did not have the types of reservations about the reliability of C's evidence that I did about that of other witnesses.

Mr Bird

1. Having voluntarily given police a wide-ranging interview after he was arrested and charged with offences in relation to child 1, in which Mr Bird made numerous admissions contrary to his interests, given the charges laid against him, in these proceedings he swore a statement in which he simply denied the alleged assaults. There he gave no explanation at all of the contradictory and damaging admissions which he had earlier made.
2. Mr Bird told police about how he had acted towards the children, as he explained, as he would act towards his own grandchildren in ways that he saw no difficulty with at all.
3. His admissions included repeated descriptions about the various inappropriate ways in which he had touched children while working at the centre, including child 1. They included squeezing them on the bum in a manner which he said had probably involved an assault and which teachers were not permitted to engage in.
4. In cross-examination Mr Bird said repeatedly that the various acts which he had so admitted were untrue. Mr Bird then said that he understood that it was wrong to kiss children or touch them in the ways he had described in his police statement. But he could not explain at all why he had repeatedly volunteered to police acts which he apparently had never engaged in.
5. Mr Bird's evidence included that he initially did not understand what he had been charged with, because he had not been given, or had not heard the name of the alleged victim on arrest; that he was in shock; and that he was confused. The interview was recorded. Contrary to his evidence, from what he said early in the interview it is apparent that he was aware from the outset that the charges concerned child 1.
6. There was no issue about the way that the interview was conducted. The questioning seemed entirely fair to Mr Bird. When being questioned about his conduct towards child 1 he evinced no confusion or lack of understanding of why he was being asked about her.
7. Mr Bird also did not seem to be shocked, confused or even much concerned about what he was being asked or had volunteered, until he was asked about having touched child 1 on the genitals.
8. It is thus impossible to accept the explanations Mr Bird gave in cross-examination for his admissions.
9. It is relevant that then he was vehement not only in his denials of having done what the children had disclosed, but also of the acts he had admitted. For example he then denied that he had touched child 1 "on the butt". But when asked by police about her disclosure that he had "massaged her wee wee", it was Mr Bird who had volunteered: "No, no, that's not - I've maybe patted her butt or scrunched her butt, you know, like going clunk, clunk, but no"?

Ms Clancy

1. Aspects of Ms Clancy's evidence were also contradicted by other evidence.
2. It is understandable that Ms Clancy was distressed by child 1's disclosures about her father. She was overseas at the time that Mr Bird was arrested. In her later communications to parents about his arrest she referred to her belief that this was the result of a vendetta against her and Mr Bird. She also told police about this and agreed that was her belief in 2010, but she did not deal with this in her 2019 or 2020 statements.
3. The existence of such a vendetta or how it might have led to child 1's disclosures was not put to child 1's mother in cross-examination. What child 1's mother was asked about were issues which had arisen about leaving her other children in the car when she dropped child 1 off. This had presumably resulted in the Department of Community Services, DOCS, notification Ms Clancy told police about, as well as an issue about child 1's enrolment the following year.
4. When cross examined about what she said when interviewed by police after Mr Bird's arrest, Ms Clancy agreed that while she told police that she believed that child 1's disclosure was "a vendetta for a DOCS complaint about the family", she also then said that "my biggest fear is that this little girl has suffered this but the wrong person has been blamed". Again Ms Clancy did not deal with this in her statements in these proceedings.
5. Ms Clancy also did not there deal with Mr Bird's police admissions, but she was cross examined about them. Her answers established that she considered some of the acts he had admitted to have been so inappropriate, that they should have been reported to her and to DOCS, given the requirements of the regulatory scheme under which the centre operated.
6. When cross examined Ms Clancy also initially agreed that if a child made an allegation such as child 1 had made, she would accept that the child was telling the truth and would want it investigated. That was consistent with what she had told police in 2010 about child 1's disclosure, that she believed what the child had disclosed, had actually happened to her. What she did not then believe was that it could have been Mr Bird who had so abused her.
7. Ms Clancy also agreed that if more children made allegations of inappropriate behaviour, more investigation would be required.

Should a Jones v Dunkel inference be drawn?

1. It is convenient now to deal with an issue which arose as to whether a Jones v Dunkel issue should be drawn against the plaintiffs or the defendants in relation to the evidence of Ms Simons.
2. Like other workers at the centre, after Mr Bird's arrest Ms Simons was interviewed and made statements to police. It was the defendants who called evidence from others who had worked at the centre, but the plaintiffs who subpoenaed Ms Simons to give evidence in these proceedings and served a statement which they took from her, on the defendants. There was no issue that she was available to be called.
3. When this issue was being addressed for Little Pigeon and Mr Bird in final submissions, the plaintiffs attempted to tender the outline of evidence and the two police statements Ms Simons had made, to which objection was taken. The tender was not finally pressed.
4. The principles discussed in Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 are concerned with a party's unexplained failure to give evidence or call a witness, where it would be natural for that evidence to be led, or where the party might reasonably be expected to lead that evidence.
5. In RHG Mortgage Limited v Ianni [2015] NSWCA 56 at [75]-[96] the three relevant considerations were identified to be: first, that the missing witness would be expected to be called by one party rather than the other; secondly, that this evidence would elucidate a particular matter; and thirdly, that the absence is unexplained.
6. When those conditions are satisfied, the inference that the evidence would not have helped the party's case may be drawn. That inference can then be used in two ways.
7. First, in deciding whether to accept any other evidence given, whether for or against that party, which relates to a matter about which the person not called could have given evidence. Secondly, in deciding whether or not to draw inferences of fact which are open, about matters that person could have given evidence about.
8. In this case it was not easy to answer some of these questions.
9. The absence of Ms Simon's evidence could not fill an evidentiary gap, even if the inference was drawn. What her evidence would have been is not known, but it could certainly have elucidated various factual issues. Neither party explained why they had not called her and when the opportunity arose to have her statements put in evidence, that could not be agreed.

Did the alleged assaults occur?

1. For the following reasons, I am satisfied that the plaintiffs have met the onus which fell upon them to establish, on the balance of probabilities, that Mr Bird did assault B and D.

The nature of the plaintiffs' onus

1. While the standard of proof in civil proceedings does not alter according to the gravity of the matters in issue, the evidence has to be assessed in accordance with s140 of the Evidence Act, which provides: 140 Civil proceedings: standard of proof (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account - (a) the nature of the cause of action or defence, and (b) the nature of the subject-matter of the proceeding, and (c) the gravity of the matters alleged.
2. The defendants relied on Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-363; [1938] HCA 34, followed in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 CLR 445; [1992] HCA 66, to submit that like the approach adopted by the Full Family Court in Re W [2004] FamCA 768; 32 Fam LR 249 at [14], given the serious allegations of sexual assault here advanced, that any conclusions reached should not rest on "inexact proofs, indefinite testimony, or indirect inferences".
3. In Briginshaw it was also observed that account had to be taken of the seriousness of the allegations made, the inherent unlikelihood of such an occurrence, or the gravity of the consequences flowing from the findings sought: at 361-363.
4. Thus the defendants urged that conclusions favourable to the plaintiffs could not be arrived at, given the age of the children at the time they made their disclosures; the inconsistency of some of their disclosures; and because they could not be cross-examined.
5. While these are all matters which must be taken into account when determining whether the plaintiffs have satisfied the onus which falls upon them, I do not accept that they necessarily preclude the conclusion that the onus has been satisfied.
6. In Palmer v Dolman [2005] NSWCA 361 it was observed that s140 involves taking "due account" of what was said in Neat Holdings at 170-171: at [47]. That is, that in a civil case proof on the balance of probabilities remains the standard, even where the matter to be proved involves criminal conduct. The strength of the evidence necessary to establish a fact on the balance of probabilities may vary according to the nature of what is sought to be proved. Thus account must be taken of the "conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct."

The operation of the centre

1. The defence case was that because of how the centre was operated, in accordance with the regulatory scheme, the alleged assaults could not have occurred and if they did, on the approach of Little Pigeon and Ms Clancy, they could not have been prevented, because Mr Bird must have acted surreptitiously.
2. This was in issue.
3. Little Pigeon purchased the centre in October 2008. Ms Clancy had then been working there for some time doing the book keeping as office manager and Mr Bird had done maintenance work there in 2007. Neither were trained child care workers.
4. In June 2008 Little Pigeon had submitted an application to DOCS for approval to become a children's services licensee. There Ms Clancy and Mr Bird were both identified to be individuals involved in the control and management of the licensee. They were required to submit personal information and character references to DOCS, its Director General having to be satisfied that they were each a fit and proper person to be concerned in the provision of a children's service: regs 11, 117 and 118 Children's Services Regulation. Mr Bird listed his relevant work experience to be as a voluntary handyman at Footprints the previous year.
5. Mr Bird had obtained qualifications which enabled him to work as Footprint's cook, OHS officer, maintenance man and first aid officer.
6. Ms Clancy was responsible for the day to day management of the centre, but was not its authorised supervisor. That required qualifications which she did not have: reg 15.
7. In August 2008 Ms Clancy sent DOCS a pre-employment and other screening consent form for Mr Bird, to enable the Commission for Children and Young People to consider whether he was suitable for a child related role.
8. A licence was issued to Little Pigeon on 31 August. The licence included the express condition that it "develop procedures to ensure that each person who is an authorised supervisor or member of staff of the service complies with the provisions of the Children's Services Regulation that apply to that person".
9. In the Footprints 2010 Information Pack "management" was initially described to be Ms Clancy, the director of Little Pigeon and Footprints; Ms Kasim, the Centre Manager and Mr Bird, the OHS Officer and cook. Later in the "Footprint Management" section, accompanying their photographs Ms Clancy was said to be the owner and director of Footprints; Mr Bird a full time volunteer, the cook, OHS officer, maintenance person and playground supervisor; and Ms Kasim the authorised supervisor and nursery head teacher.

The regulatory regime

1. The parties advanced their cases by reference to the requirements imposed by the Children's Services Regulation as at January 2010 to 30 March 2010. I am also satisfied that the evidence established that various aspects of the regulatory regime were not being complied with, at the relevant times.
2. Regulation 25 specified provisions for the purpose of ss 209 and 210 of the Children and Young Persons (Care and Protection) Act, which dealt with licence conditions, licences and authorised supervisors. The specified provisions imposed requirements regarding: facilities and equipment; staffing; the use of volunteers; child numbers; and the operation and administration of the centre, including records and authorised supervisors.
3. Regulation 25(3) provided an additional condition requiring the licensee to develop procedures to ensure that the authorised supervisor and all other members of staff complied with the provisions of the Regulation that apply to them.
4. The term "staff of a children's service" was defined in the Dictionary to the Regulation to mean "those persons employed for remuneration by the licensee of the service who are engaged in the provision of the service".
5. "Remuneration" was not defined. Its ordinary meaning is relevantly "that which remunerates; reward; pay; little remuneration for his services:" Macquarie Dictionary.
6. Mr Bird was not paid wages, but he did receive other rewards. In cross examination he identified them to be a phone and payment of his registration, petrol and the house phone, as well as cash which Ms Clancy agreed she gave him from time to time. It follows that this arrangement did not preclude him from falling within the definition of "staff of a children's service".
7. Part 4 Licence conditions - staffing requirements of the Regulation dealt with both staff and volunteers. Regulation 51 regulated who could be employed to work in a centre and provided that the licensee had to ensure that they had an understanding, or basic knowledge of prescribed matters, including their responsibilities under child protection legislation: reg 51(4).
8. There was no such requirement in relation to volunteers and on Mr Bird's evidence he did not have such an understanding or knowledge. Ms Clancy's evidence was to different effect. On this issue Mr Bird's evidence must be preferred, consistent as that was with his earlier admissions.

Mr Bird's supervision during his daily interactions with children

1. The children's disclosures also have to be considered in light of the evidence about how Mr Bird was supervised, day to day.
2. The plaintiff's case was not only that Mr Bird was unsupervised, the instruction that he treat the children like his grandchildren promoted grooming by someone inclined to paedophilic activity, enabling him to assault the children, the other defendants not being aware of what he was doing.
3. The defence case was that looking prospectively, making sure that Mr Bird was supervised would not have been a reasonable precaution to take. That submission cannot be accepted. Close supervision of everyone who had contact with children was an entirely reasonable precaution for Little Pigeon and Ms Clancy to take, given not only what the regulatory regime and child protection policy required, but that the adults who worked at the centre were placed in positions of trust, whenever involved in the provision of the care which Little Pigeon was providing to very young children.
4. On what Ms Clancy told police, Mr Bird had contact with children who could not readily disclose if they were being abused, he even being involved in the care of the babies who attended the centre.
5. Mr Bird's routine was described in the "Rod's daily routine" document, which Ms Clancy updated from time to time. He went to the centre each day with Ms Clancy. In the mornings he cleaned the yard, greeted parents and children as they arrived and were taken inside. During the day his work included preparing meals inside. What contact he had there with children was in issue.
6. Between about 3 and 4.30 each day Mr Bird joined the childcare workers and children in the playground, on the defence case merely providing an extra pair of hands over and above applicable ratios. But there was finally no issue that he engaged in activities such as t-ball, helping children climb, holding up hoops and supervising them walking over balance beams, entertaining children with bubbles, helping with games and rolling them around on a giant beach ball and even programmed activities. Sometimes he sat on a chair with his hat low over his eyes to have a nap. Sometimes children climbed onto him, while he sat in a chair.
7. The defence case was that as a volunteer; Mr Bird was never alone with children, the childcare workers knowing that this was not permitted and that his activities always occurred in view of the childcare workers.

How the children were questioned

1. There was also an issue about whether in the questions that A and C had each asked B and D, they had pursued suggestive questioning, which may have resulted in them making disclosures which were untrue.
2. The parties led no expert evidence about things like child development; children's ability to distinguish between truth and lies; what is known about how children disclose sexual abuse; the impact upon them of being repeatedly interviewed about disclosures they have made; or how they might react to the distress which their disclosures and the resulting investigations may cause their parents.
3. But the plaintiffs called evidence from Associate Professor Quadrio, who provided unchallenged reports in relation to B and D.
4. In cross examination Associate Professor Quadrio: 1. Agreed that statements from children that occur spontaneously and without any suggestive questioning are more likely to provide an accurate account of what the child has experienced. 2. Said that there is lots of evidence that spontaneous comments by a child are reliable accounts of experience. 3. Agreed that free narrative accounts by children following open questions are the most likely to provide an accurate account of what occurred. 4. Said that with an expert interviewer, open questions are best, but it is accepted practice with very young children, if the child is unable to provide answers, to then ask more direct questions. That is not as reliable, but with very young children it may be necessary. 5. Agreed that the ideal way to go is to ask open questions wherever possible so that the child would give a free narrative account, but said that other questions are left for usually the end of the interview, when it seems that the child is not able to provide an adequate account. 6. Did not agree that children are particularly vulnerable to inadvertent but suggestive questioning. Associate Professor Quadrio explained that children are not as suggestible as a lot of people think they are. Children do distinguish the difference between playful suggestions that are not based in reality and serious questions. Even quite young children will not admit to things when they know there's a serious question and it's not true. She thought that there was a popular view that very young children are not reliable witnesses, but with experience with children and careful questioning, children do know the difference between reality and non-reality. So, you can get a child to talk about something that hasn't happened, but they know it's kidding and once you query it, it's less likely that a child will then agree to something, when it's clear that you're not kidding anymore. 7. Agreed that children are more vulnerable to being confused by suggestive or leading questions, than perhaps adults, but emphasised, having had a lot of experience with young children and interviews, that she did not think children are nearly as vulnerable as people like to think they are. But agreed that they can be suggestible. 8. Also agreed that was why people who are trained in interviewing children are taught to ask as much as they can open, non-leading questions.

Was B assaulted?

1. What was alleged in A and B's amended statement of claim was: The Abuse 12A At all material times, B attended the centre from 3 to 4 days per week. 13. From her commencement at the Centre and until 12 November 2010, B was subject to sexual assault and trespass to the person by the First Defendant. 13A On or about 12 November 2010 the First Defendant was charged with the following in respect of another child at the Centre: i. Indecent Assault of a person under 16 years of age; ii. Act of aggravated indecency - victim under 16 and under authority of the offender. 13B On or about 21 November 2010 the First Defendant was charged with the following in respect of a second child at the Centre: iii. Indecent Assault of a person under 16 years of age; iv. Act of aggravated indecency - victim under 16 and under authority of the offender. 13C On 20 February 2011 and on 2 March 2011 B disclosed the First Defendant's behaviour to her mother, A. 13D On or around April 2011 the First Defendant was charged with the following in respect of B: v. Indecent Assault of a person under 16 years of age; vi. Act of aggravated indecency - victim under 16 and under authority of the offender. 13E By reason of the assaults, battery and trespass to the person alleged above, B has suffered psychiatric injury, loss and damage. 13F By reason of learning of the assaults, battery and trespass to B alleged above, A has suffered psychiatric injury, loss and damage. Battery 13G The Abuse was an intentional act by the First Defendant. 13H The Abuse immediately and directly caused physical contact with B. 13I Such contact was offensive in that it was likely to cause injury or affront to B. Assault 13J The Abuse was a threat of force or violence made by the First Defendant to B, who was a child. 13K The First Defendant intended to cause B fear in that the threat would be immediately carried out. 13L The threat caused B to believe on reasonable grounds that the threat would be carried out.
2. For the reasons which follow I am satisfied that the evidence establishes that Mr Bird did assault B, having repeatedly kissed her, including with an open mouth and pulled down her pants, as she disclosed.

Assault and battery

1. In Rixon v Star City Pty Ltd (Formerly Sydney Harbour Casino Pty Ltd) (2001) 53 NSWLR 98; [2001] NSWCA 265 it was explained that subject to certain exceptions, every person's body is inviolate, and that any touching of another person, however slight, may amount to a battery: at [53].
2. Those exceptions include children subjected to reasonable punishment; people subjected to the lawful exercise of the power of arrest; reasonable force used in self-defence or for the prevention of crime; and the physical contacts of ordinary life which are impliedly consented to by all who move in society and so expose themselves to the risk of bodily contact: at [53]. Whether something involves acceptable conduct must be considered in the context of the incident in dispute: at [54].
3. The evidence establishes that Mr Bird was popular, both with those with whom he worked at the centre and the children. But absence of anger or a hostile attitude on the part of a person who touches another, "is not a satisfactory basis for concluding that the touching was not a battery": at [52].
4. An assault is "an overt act indicating an immediate intention to commit a battery, coupled with the capacity of carrying that intention into effect": at [56].
5. On this approach if Mr Bird kissed B, that may have involved either an assault or battery. As observed in R v Chief Constable of Devon and Cornwall, Ex parte Central Electricity Generating Board [1982] QB 458 by reference to RFV Heuston and RA Buckley, Salmond on Torts (Sweet and Maxwell, 17th ed, 1977) at 120, an "unwanted kiss may be a battery."

How the disclosures must be assessed

1. As I have said, because B could not be cross-examined, it was necessary to consider the evidence of her disclosures with particular care.
2. Both her disclosures and those of D have to be approached in a context where, as the plaintiffs submitted, they were very young to have fabricated their disclosures; their mothers, who knew them well and had seen how Mr Bird interacted with the children, believed what they each disclosed; a number of other children made disclosures about him, without any suggestion of planned concoction between them; their behaviour later changed, consistent with having endured traumatic events; and Mr Bird himself gave an account to police that he had acted inappropriately towards children, including the child who he was being questioned about.
3. B's disclosures also have to be considered in light of Associate Professor Quadrio's evidence, all of the tendency evidence and the other evidence I have discussed.

Behavioural changes

1. A's evidence was that the changes in B's behaviour after her disclosures included regular nightmares; long and aggressive tantrums, frequent anger; occasions of biting and even self-harm; fear of going to the toilet and issues with bladder control, which she had not suffered since she was aged 2; and being triggered by seeing old friends from the centre and mint chewing gum, which Mr Bird used to chew. A described the year preceding the abandoned criminal trial to have been "like hell" for the family, as neither she nor B were then "in a good place".
2. A's husband corroborated her evidence, describing B's fits of rage, mood swings, B hurting herself and her mother, including biting so hard that there was bruising; B needing to be restrained and destroying her own prized possessions. She also refused to drink water at school, because she was frightened to go to the bathroom and up until age 11, was easily frightened, especially of weather.
3. B had not required any psychiatric treatment, but she had received ongoing counselling between 2011 and October 2013. In a summary of her Sydney Children's Hospital file prepared by a senior social worker Ms Baxter, who was one of those involved in her counselling, B's behaviours and symptoms of the kind her parents described were discussed.
4. Ms Baxter said that those symptoms and behaviours were common in children who had experienced trauma. She also explained that the sessions with B had focused on addressing the impact of trauma, psycho education around protective behaviours and issues which had resulted from grooming. The sessions ceased because of B's therapeutic progress.
5. Associate Professor Quadrio saw B in 2014, but did not question her about her disclosures, because of the significant risk of re-traumatising her. On her parents accounts and the records she reviewed, Associate Professor Quadrio concluded that she presented as a child who had suffered severe trauma, entirely typical of children who had been sexually abused, consistent with the reports of the counsellors she had seen. Very little other than her disclosures could account for such a severe deterioration in her behaviour and the severe dysregulation which she manifested. The significant trauma for her family had also been relevant to how she was affected.
6. When interviewed in August 2019 by the psychiatrist Dr Kasinathan, B could not remember Mr Bird's behaviour. She did recall having had massive tantrums and nightmares, but not self-harm.

Mr Bird admitted kissing children

1. A's evidence was that when she dropped B at Footprints, she regularly saw Mr Bird putting sunscreen on children and little girls sitting on his lap, which she did not think appropriate, although she did not describe seeing such interaction with B.
2. At the time Mr Bird was interviewed by police in November 2010 he was not then asked anything about kissing children. But amongst the things which he volunteered was that he kissed, hugged and cuddled them.
3. When Mr Bird said that maybe he shouldn't throw them around as he did, because if he was a school teacher, he would "probably get busted", he was asked to explain what he meant. Mr Bird said: "O.K. Well, the rules of school teachers is that they can't touch kids. If a kid falls over they can't pick them up and kiss and cuddle because they hurt themselves. That's to, and by the school regulation, I know a lot of school teachers, they can't do it. We can because you pick them up because they are only babies, right, you cuddle them and give them, put a cold wash or whatever they, on their hurt, away they go."
4. On that account I am satisfied that there can be no question that Mr Bird kissed children when he worked at the centre. He also plainly considered that he did not have to be constrained in his behaviour, in the way that the teaching staff with whom he worked did, when he interacted with the children.
5. In cross-examination Ms Clancy agreed that she had encouraged Mr Bird to be affectionate towards the children, but denied that he had thereby been given the opportunity to sexually assault them. But she agreed that she had been entirely dependent on his moral compass to determine whether or not he would use the opportunity he had, to sexually assault them.
6. I am satisfied that Mr Bird's admissions establish that his moral compass failed him.

The tendency evidence

1. I am satisfied that both A's evidence and the tendency evidence supports the conclusion that B and D's disclosures were reliable. I have already discussed some aspects of Mr Bird's admissions, which I need to deal further with. I will deal later with D's disclosures.

Child 1

1. As I noted earlier, Ms Clancy told police that she thought that what child 1 described had happened to her, but that Mr Bird was being wrongly blamed and that they were both the victims of a vendetta. The evidence provided no basis for accepting that such a vendetta existed, let alone that child 1 was a part of it. Mr Bird's admissions also do not permit the conclusion that he was wrongly blamed for what child 1 described.
2. In her November police statement child 1's mother said child 1 had told her she was happy at kindy because Mr Bird gave her massages. She then disclosed: "I Said - Where does he give you massages? She Said - On my tummy. I became concerned after she said this as I could not understand why he would be massaging her tummy. I Said - Does he massage you anywhere else? She Said - Yes but I am not allowed to tell you it is a secret. I Said - You need to tell me, I need to know. She Said - I don't want to tell you, I don't want to get into trouble. I Said - I promise you won't get into trouble but you still need to tell me. She Said - He massages my wee wee. I Said - Well he is not allowed to do that. She Said - Why not? I Said - Because Mummy and Daddy don't do that to you, it is naughty. She Said - So you can use those things with the feet on. Child 1 was referring to the massage toys that people use to rub down the muscles in the back. We have a turtle type massager that Child 1 is aware of. I Said - Yes on your back is ok."
3. The mother contacted DOCS and made a police report. The following day child 1 began talking about Mr Bird again and said amongst other things that he had told her that boys had "noodles", a term that the family did not use, they not having discussed with her the differences between boys and girls genitalia.
4. The mother was not cross-examined about her accounts. Her unchallenged evidence reflected that child 1 made spontaneous disclosures to her about Mr Bird, accounts which were likely to be reliable, on Associate Professor Quadrio's approach.
5. When interviewed by police in November 2010 child 1 was aged 5. She was questioned in the way Associate Professor Quadrio explained, asked about her understanding of truth and lies and marked a diagram identifying body parts.
6. Child 1 said teachers looked after everybody at kindy and identified Mr Bird, who she said cooks lunch and dinner and sometimes played outside. Later she said he was a teacher and still cooks. She also said: "Q144 O.K. Fair enough. So, tell me the good things about Rod. A Um, I don't know what about good things about Rod. Q145 Well do you talk to him? A (NO AUDIBLE REPLY) Q146 Yeah. What do you talk to him about? A Um, massages. Q147 Ah hmm. Tell me about that. A He massages me. Q148 Ah hmm. And how does, how do you massage people, tell me about that, how did Rod massage you? A Um, he, you have to um, do it with your fingers. Q149 Oh, O.K. A Like this. Q150 Like that. And whereabouts do you massage on your body? A I don't know. Q151 No. Well, tell me more about the massages, because I don't really understand. A Look."

Child 2

1. In her November police statement child 2's mother reported to police that some months previously child 2 had told her about Mr Bird touching his penis. After his arrest she had arranged for child 2 to be interviewed by Community Services, which led to a police interview.
2. When first interviewed when aged 5, child 2 was also questioned in the way Associate Professor Quadrio favoured. She, too, was asked about her understanding of truth and lies. She was asked about the workers at Footprints. She said she liked Rod the best, but could not say why. She said: "Q87 Yes. That's it what about Rod, you said you don't know. Does he do certain things, what does he do? A Sometimes he plays with me. Q88 Yes? What does he play? A Sometimes we play hide and seek. Q89 Yes, what else? A Sometimes, that's about it. Q90 That's about it? O.k. A And sometimes I sit on his lap."
3. Child 2 said they played hide and seek in the yard and identified another child who sometimes played with them and also sat on Mr Bird's lap. She then identified various body parts and was asked if anyone had touched them. She said nobody had touched her bottom or vagina. She said there was nothing that she did not like about Mr Bird. When asked if she had told another lady or her mother something about Mr Bird, she said "not really nah".
4. While watching TV together in December child 2 started poking her mother on the breast. She disclosed: I said, "You can't do that. That is my private area. I don't touch your boobs do I?" Child 2 said, "No." I said, "And no one else touches them either do they?" Child 2 said, "No, only Roddy." I said, "What do you mean?" Child 2 said, "Only Roddy touches them." I said, "Does Roddy touch you anywhere else he isn't supposed to?" Child 2 pointed to her vagina. I said, "What do you mean, does he put his hand in his lap or does he do something else?" Child 2 then put her hand under her skirt and wiggled her fingers. I then woke up Joe and I said, "Joe, Child 2 was telling me about Footprints so you should hear this." I said, "When does he do that?" Child 2 said, "Every-time I sit on his lap." I said, "Have you heard Mummy talking about Footprints or Rod to anyone lately?" Child 2 said, "No." I said, "Grown ups aren't allowed to touch our private areas. Didn't the police talk to you about this when we went to visit them?" Child 2 said, "Yes" I said, "How come you didn't tell them when they asked you?" Child 2 said, "I don't know, I just forgot." I said, "You know you can always tell mummy if someone does something you think is wrong. Because mummy's job is to make sure you are safe and the police talked to you before because they want to make sure you are safe as well. Do you remember the police talking to you about telling the truth? If Roddy has touched your private areas we need to tell the police so the police can talk to him and make sure he doesn't do it anymore. But if he hasn't we shouldn't say he has or he will get into trouble for no reason. So everything you have told mummy is that the truth?" Child 2 said, "Yes, and I think you should tell the police." I said, "Did you ever see Roddy doing that to anyone else?" Child 2 said, "No, he only does it to me."

Conclusions about A's observations and B's disclosures

1. Having taken into account the tendency and other evidence I have discussed, the conclusions which I have reached about the evidence of the occasions on which A observed, or B disclosed her interactions with Mr Bird are as follows: 13 May 2009 1. A's evidence was that when they entered the baby area of the centre Mr Bird approached, put his hands on B's shoulders and kissed her on the forehead. In response to this B, then aged 2, said "yuck". A was very shocked, but said nothing to Mr Bird. A's husband's evidence was that they later discussed this. 2. A raised her concern about the kiss with Ms Clancy, advising her by email that she did not want to make a big deal out of what had happened, but had felt "a little uncomfortable", because Mr Bird's behaviour sent the wrong message about "personal space". 3. There was an issue about whether or not this communication was a complaint which Ms Clancy was obliged to report to DOCS, reg 88 requiring that notice being given of a complaint about the conduct of the service within a week, "unless the complaint is of an obviously trivial nature". It is difficult to see that what A raised was trivial. 4. But Ms Clancy's evidence was that she did not consider A to have made a complaint and that in any event, she had withdrawn her concerns. Given Ms Clancy's response, this evidence was also difficult to accept. 5. In her reply email Ms Clancy apologised to A, explaining that she encouraged "all my staff to be affectionate to the children"; that she had told Mr Bird to "treat the children as he would his own grandchildren"; that no staff is ever allowed to be alone with children; that Mr Bird interacted with them in the yard and in the little pre-school, where other staff are present; that upstairs he was confined to the kitchen; and that she would ensure that that type of contact does not happen again. 6. The evidence establishes that this was not an entirely accurate description of what Mr Bird did at the centre. 7. What Ms Clancy's response to A reflected, however, was that when she wrote it, she did not doubt what A had reported having seen. There was nothing inconsistent with the instruction to treat the children as he treated his grandchildren, in Mr Bird kissing B in greeting, when she arrived at the centre. That Ms Clancy did not challenge A's advice that Mr Bird had kissed B, was thus consistent with her instruction and her knowledge of how Mr Bird conducted himself. 8. In her response A told Ms Clancy that "you can tell the kids love him"; that she did not think that it was anything more than a completely innocent greeting, which she had witnessed; if B had come home and told her that Mr Bird had kissed B, she would have been concerned, but she was not at all concerned about his interaction with the kids. 9. In cross-examination it emerged that A had not been entirely frank in this response, because she did think that Mr Bird kissing B was inappropriate and she had become concerned about Mr Bird's interaction with children at the centre. But she explained that she was then conscious that B had to continue attending the centre and so wrote to Ms Clancy in terms which did not accurately reflect her concerns. She came to bitterly regret that decision. 10. Ms Clancy's evidence was that she had not discussed the email with Mr Bird before she sent her reply. They discussed it "informally" on 14 May, when he not only denied having kissed B, but said that he did not and would not kiss any of the children. Mr Bird did not deal with this in his statement. Such a response from Mr Bird seems unlikely, given that it is entirely inconsistent with the account which he volunteered to police about how he treated children at the centre, including kissing them. 11. What Mr Bird said in cross-examination was that B had a band aid on her forehead that day, which he had bent over to look at and that he would not have kissed her, for that reason. This was also not referred to in either his statement, or Ms Clancy's evidence. 12. While A was challenged about what she saw Mr Bird do, it was also not put to her in cross-examination that B had a band aid on her forehead that day. A did deny apologising to Ms Clancy on 14 May after she told her that Mr Bird denied the kiss, or telling Ms Clancy that she did not actually see a kiss, but had assumed that it had happened after a man had asked B for a kiss on the weekend, as was Ms Clancy's evidence. 13. Given the conclusions which I have reached on credit, despite what I have said about the need for care in assessing A's evidence, on this issue I am satisfied that her evidence must be preferred over that of Mr Bird and Ms Clancy. 14. There was also an issue as to whether the kiss A described could have involved an assault. Given B's response it is apparent that the kiss was not welcome. 15. In the result I am satisfied that A saw Mr Bird kiss B in May 2009. That also supports the conclusion that he later kissed B on other occasions, as she eventually disclosed. During 2010 1. B turned 3 in February 2010. 2. It was on a number of occasions during this year that B told A that "Rod is spicy", while rubbing her face, but A did not make much of it. On one occasion A asked B if she meant "spiky", to which she responded "yes", but B could not explain what she meant. 3. In cross-examination A said that it was after this conversation that B sometimes used the word "spicy" and sometimes "spiky", when speaking about Mr Bird. A's husband corroborated this. 4. There is no reason to doubt the evidence that when aged 3 B repeatedly made such disclosures about Mr Bird spontaneously and without any suggestive questioning. 5. As I said, the use of the term "spicy" accompanied by the repeated gesture of touching the side of her face near her mouth with her hand, as A demonstrated, involved representations that Mr Bird was touching her and that she tasted something. 6. On Associate Professor Quadrio's approach, these were reliable disclosures. Mr Bird's admissions that he kissed and touched the children partly corroborated them. I am accordingly satisfied that even though B could not be cross-examined about them, her accounts must be accepted as reflecting what she was experiencing. 12 November 2010 1. On this day A heard that Mr Bird had been arrested for indecently assaulting another child. She already had concerns about Mr Bird and described her legs then giving way, beginning to shake and cry, describing that as a "defining moment for me and my trauma". 2. This description is consistent with a mother fearing that a man charged with serious offences involving another young child at the centre had also offended against her own child; regret that she had not protected her against such a risk, given the concerns which she already had about that man's conduct; and anger that those responsible had permitted the contact which such offending involved. 3. I do not accept that this was an irrational response in the circumstances. 4. DOCS offered to have other children interviewed, with the result that A took B to the Sutherland Community Services Centre, where she was interviewed. After interview A was informed that B did not "tell us anything that would raise our concerns", after which A felt much more relaxed. 5. There is no record of that interview in evidence. Accordingly, what this evidence establishes is that B said nothing of concern about Mr Bird to the stranger who interviewed her that day. It simply cannot be inferred from this that B had nothing then to disclose. 6. A was sufficiently concerned still to keep B home from the centre, until they knew what was going on with Mr Bird. 13 November 2010 1. At 8pm that night while sitting on the lounge with her husband, B approached and kissed A with an open mouth, using her tongue. In the past B had kissed her this way and when A asked where she had learnt this, B had said something like "the Avatars taught me". On this occasion, when asked B said that she had learnt it at school and that it was Nat who had kissed her like that. 2. A did not believe B. Ms Simons was a female childcare worker at the centre, who A later engaged to babysit B. As I have explained, she was not called to give evidence. 3. A told police in her 18 November statement that she had reported this disclosure to Community Services, knowing that sometimes kids would say that it was someone else and that B had earlier said that Rod was "spiky". A then believed that B needed to be reinterviewed by JIRT. A's husband was also concerned, given what B had said about Mr Bird being spicy or spiky. 14 November 2010 1. On 14 November A asked Ms Clancy a number of questions about Mr Bird. She was not satisfied with the response which she had received, but decided that B should return to the centre, Mr Bird having been excluded after his arrest. In cross-examination A explained that she later came to believe that it was at this point that Ms Clancy should have disclosed that Mr Bird was her father and that had she known, B would not have later been returned to the centre. 2. A pursued a further interview for B, raising her concerns with police by email that she had been taught to open mouth kiss at school. On 6 December A was advised that the incidents did not meet JIRT criteria, but that she should contact Community Health and so she made a counselling appointment. 3. About mid-December B was returned to the Centre. On 21 December A learned that Mr Bird had been charged with offences in relation to a second child. That day she had an argument with one of the child care workers at the Centre, after which B was excluded. January 2011 1. In January A purchased a child protection game which she used at work, which taught children about private parts, which B then played with. 2. B later once asked A if it was OK to say "no" to a teacher, if a teacher asks you to stop talking when they are reading a book. A told her "you can only say no when you feel uncomfortable about something." B then said "no one at school touches any of the kids because all the teachers are watching". A found this strange language for B to use. 3. In his evidence Mr Bird denied that he was involved in reading books to children, but there is not only a photograph in evidence which is inconsistent with this, but it was Ms Clancy's evidence that he was involved in such reading. Mr Bird's evidence cannot be accepted. 4. In her police statement A said that she hadn't discussed anything further with B, hoping that maybe nothing had happened to her. Whether she had raised Mr Bird with her on other occasions, was in issue. 5. On 10 January B went to another session with Ms Pinkerton, with which A was dissatisfied, given its duration and where it took place. In cross-examination A agreed that Ms Pinkerton told her that B had made no disclosures. Again this does not establish that B had nothing to disclose, simply that she again said nothing which raised the interviewer's concern. 6. In January B began attending a new preschool. A still had concerns, telling the preschool about the reasons for B's removal from Footprints and asking them to advise her, if they had any concerns about B's behaviour. Some concerns were later raised with her. But A denied persisting with conversations with B about Mr Bird. 20 February 2011 1. B turned 4 in February 2011. 2. In January A spoke to another mother, who told her that her child had disclosed to her that Mr Bird had tickled her in inappropriate places. She encouraged A to keep talking to B. A decided to speak again to B. 3. On 20 February A spoke to B in the garage, in the presence of her husband. She asked B if she could remember where her private parts were and whether anything had ever happened to make her feel "yucky". B said "nup" and then A asked her about Mr Bird. Their conversation was: "A said: Can you remember where Dido said your private parts were? B said: My mouth, my boobies, and I don't remember the other one. A said: The other one was your Minnie (B calls her vagina her Minnie) and your bottom. Do you remember how Dido talks about things making you feel yucky? B said: Yep. A said: Has anything ever happened that's made you feel yucky? B said: Nup. A said: Do you remember when you used to say that Rod is spicy? B said: Yep. A said: What does that mean? B said: Rod has spicy lips. A said: How do you know Rod's lips are spicy? B said: Because I've kissed them. A said: Where have you kissed them? B said: On the lips. A said: Where would you be when Rod would kiss you on the lips? B said: Where Rod relaxes near the sandpit." 1. This conversation then ceased because B became quite shy and stopped talking. "Dido" was a reference to the game which B had played. 2. This was clearly not a spontaneous disclosure. On her evidence by this time A had herself received training in child protection, but she had no training in questioning children and did not consider that it would be very easy to inadvertently mislead them. 3. In cross-examination A agreed that it was she who had raised the issue of B's private parts with her and that she had changed what B had told her from B having kissed Mr Bird's lips, to Mr Bird kissing B on the lips. But she denied that she understood from this conversation that it was B who had initiated a kiss on the lips with Mr Bird. 4. A agreed that young children in particular say yes and no sometimes to things that are self-evidently wrong, but did not agree that her children were prepared to trust her, even over their own memories. She also agreed that before this conversation, B had never linked Mr Bird being spicy, to anything to do with her private parts, including her lips. 5. Having in mind Associate Professor Quadrio's evidence, I do not accept that this was a linkage suggested by the questions A asked, nor does the evidence suggest that B was particularly vulnerable to inadvertent, but suggestive questioning. 6. A asked B an open question about what she meant when she said Mr Bird was "spicy". It was B who explained that it was his lips and when asked another open question about how she knew this, said that she had kissed them. A certainly inadvertently changed what B had told her from B having kissed Mr Bird's lips, to Mr Bird kissing B on the lips. But what B later said in the conversation which A recorded on her phone makes clear that while B did not want to discuss Mr Bird any more, she did know the difference between reality and non-reality and was not confused about the account she gave. 7. On the recorded conversation B said when A asked again about spicy lips "Here we go again. I can't talk about spicy lips. Cause it's too hard to talk about that" and "I don't remember. Cause it was a long long time ago", which she repeated and emphasised. But then B said that she remembered it was Rod, before saying "I'm not telling you about it because I forgot." 8. It is possible that when B said "here we go again", that reflected that A had asked her about spicy lips on more occasions than she remembered in 2020. But I do not accept that the evidence establishes that A's questioning was suggestive, or that B did not know the difference between reality and non-reality and was susceptible to suggestion. 9. In the result I am unable to conclude that what B told her mother on this occasion, was unreliable. 10. To the contrary, consistent with Associate Professor Quadrio's explanation of young children's understanding of the difference between reality and unreality, B was very insistent to make clear to A that she had said "spicy" not "spiky" lips, by twice sounding out the word "spicy", when A asked about "spiky" lips. This was consistent with B then understanding the difference between suggestion not based in reality and what she had actually experienced. Thus she did not accept that she had spoken about "spiky" lips. 11. B then said: "I said - Do you know how many times Rod you kissed Rod on the lips. She Said - Well he kisses me. No me. I Said - Oh ok. Did Rod kiss you just once? Or did he kiss you lots of times? She Said - He kissed me lots of times which I didn't like. I Said - You didn't like it. She Said - He kissed me lots of times which I didn't like. I Said - You didn't like it? She Said - No. I Said - No Um. B When Rod would kiss you where would you be? She Said - I was at where he relaxes." 1. Later she was asked: "I said - Was there anything else that he would do, that you didn't like. She Said - Nup. I Said - No. She Said - Not playing in the sandpit with me. I Said - Not playing in the sandpit with you. Ok. And B what would you do… She Said - Here we go again. I Said - What would you do when Rod would kiss you on the lips? She Said - I won't. I won't like him anymore. I Said - Yeah. She said - yeah. Kind of. Now can you come and play in my house." 1. What B said was simply not consistent with her talking about something that had not happened, or being confused as the result of having been asked suggestive or leading questions about Mr Bird, or having answers suggested to her, which she adopted. 2. I am also satisfied that despite B not being available for cross-examination, the evidence establishes that Mr Bird repeatedly kissed B on the lips, as she disclosed to A. 25 February 2011 1. A had asked the new preschool to keep her informed of any unusual behaviour. On 25 February she was provided with five statements from staff, but they were objected to and not finally tendered. 28 February 2011 1. B had a lengthy interview with police on 28 February at a JIRT office, when she made further disclosures, after being asked about what she would say if she did not understand and in different ways, whether she understood the difference between telling the truth and telling a lie. She agreed to only tell the truth. At the end of the interview B said: "Q297 No. O.K. So remember B, remember we talked about --- A What? Q297(sic)---right at the beginning about telling the truth. A Yep. Q298 Yep. Has everything that you've told me been the truth today? A No audible reply. Q2990 No. A No. Q300 O.K. What have you told me that isn't the truth? A I don't know. Q301 Pardon? A I don't know. Q302 You don't know. Has everything you've, have you told me any lies today? A No. Q303 Can you, I can't hear you, I need your big voice now, this is --- A No. Q304 No. You haven't told me any lies. A No. Q305 O.K. So have told me all the true things, this that really happened, is that what we've talked about today? A Yep. Q306 Yes. O.K. All right. A Big bits----. " 1. I do not accept that what B said about truth and lies suggests that she did not know the difference, or that what she talked about had not happened to her. 2. The officer questioned B in accordance with the practice Associate Professor Quadrio described. From seeing and hearing the recording it is apparent that B was not entirely comfortable in being questioned as she was. She did not answer all questions and evaded others, but became comfortable enough to answer some questions. 3. B volunteered that she wished that she could go back to her baby school because the pumpkin soup was so yummy and that it was Rod who used to do the cooking, because he was the cooking man and a teacher. 4. B also said that Rod likes to relax near the yard, where he just sits and stares at people and she was with him when he relaxes, when she lay on the table near the yard with Mr Bird next to her, not saying anything. 5. At one point B picked up a bear and said "thank you for giving me a massage." When asked if anybody else gave her a massage, she said her mum but nobody else. 6. B was asked if she spent time with Nat and Rod at baby school, she said she spent time with Nat every time she went there, but not Rod. 7. When asked if she had told mummy something about someone kissing her, B said yes, about Rod kissing her, but she could not tell the interviewer about that. Later B said: "Q240 You said, you just said to me that you told mummy about, what did you tell mummy about? A Rod kissing me. Q241 Rod kissing you. O.K. So can you tell me about Rod kissing you, whereabouts did Rod kiss you? A On the lips. Q242 On the lips. O.K. So can you tell me about Rod kissing you on the lips? A No audible reply. Q243 O.K. Where were you when that happened? A Where, where he sits and relaxes. Q244 Where he sits and relaxes and you told me before that was downstairs. A Yep. Q245 Yep. Is that near the table? A No. Q246 No. A Yes. Q247 It is. O.K. So that was downstairs and so tell me how that happened, what were you doing when Rod kissed you on the lips? A Um, well, I was trying to stop him kissing me. Q248 Ah, so how did you try? A I don't know. Q249 What did you do, what did you to try and stop him? A No audible reply. Q250 Did he say something to you? A No. Q251 No. What did you say to him, what did you say to him? A I don't, nothing. Q252 Nothing. O.K. So were you sitting, standing or something else when this happened? A I was sitting. Q253 You were sitting and where were you sitting, were you --- A On the table. Q254 You were sitting on the table. O.K. And where was Rod, was he sitting or standing or something else? A He was sitting on a chair. Q255 He was sitting on the chair. A On a boring blue chair. Q256 A boring blue chair. A Yep. Q257 O.K. So you were sitting on the table--- A Ah Hmm. Q257 ---and he was sitting on the chair --- A Um--- Q257 ---and then what happened? A He just tried to kiss me. Q258 Ah, and how did he do that? A I don't know. Q259 You don't know. Mmm. So where was everybody else, whereas Nat, can you remember? A No audible reply. Q260 No. Was there other children around? A No. Q261 No, and was, can you remember whether this was, was this, what part of the day was it, was it play time or sleep time or something else? A Play time. Q262 It was play time. O.K. A I already told you that it was play time. Q263 I know, I've just to make sure that that was, that's the right time that we're talking about the same time. So at play time Rod's relaxing in a boring blue chair --- A Yeah. Q264 ---and you're sitting on the table and he tried to kiss you, how do you know he tried to kiss you? A Because --- Q265 Because, how can you tell me that? A I don't know. Q266 So, what did he do that made you think he was going to kiss you? A I don't know. Q267 What did he do that made you think he was going to kiss you? A I don't know. Q268 O.K. remember a big outdoor voice. A Yes. Q269 Yeah, you don't know what he did. A Yep. Q269 O.K. So what was his body doing, was he sitting still or --- A Still." 1. Later B said: "Q281 You don't know. You said he tried --- A He kissed me. Q282 He did kiss you or he tried to kiss you? A He tried to kiss me. Q283 He tried to kiss you, now how do you know he tried to kiss you? A 'Cause--- Q284 What did he do, what did he that made you think he was going, trying to kiss you, that's excellent, can you put your name on that for me 'cause all good artists have to sign their pictures, so what did he do that made you think he was going to kiss you? A I don't know. Q285 O.K. And what did you say? A I don't know. Q286 Did you say anything to him? A No audible reply. Q287 No and what did you do? A I said stop stare bear. Q288 And who did you tell about this? A Rod. Q289 You told Rod? A Ah hmm. Q290 And did you tell anybody else? A Yep. Q291 Who? A I don't know." 1. Having taken into account not only what B said in light of Associate Professor Quadrio's evidence, but also Mr Bird's admissions, the other tendency evidence and the other evidence I have discussed, I am satisfied that Mr Bird's denials of having kissed B cannot be accepted. The accounts which B gave of him having both kissed and attempted to kiss her must be accepted. That is entirely consistent with her repeated reports that Mr Bird was "spicy". 2 March 2011 1. On 2 March when A kissed B on the face she wiped her face. Their discussion was: "A said: Why did you wipe my kisses off? B said: Because it's wet. A said: My lips are not wet. B said: Your tongue is wet. A said: I did not kiss you with my tongue, has anyone ever kissed you with their tongue? B said: Yes, you. A said: Anyone else? B said: Yes, Rod (I understood B to be referring to Rodney from the Centre). A said: How would Rod kiss you with his tongue? A then opened her mouth, stuck out her tongue and moved her tongue around. A said: Would his mouth be open or closed? B said: Open. A said: Where would you be when Rod would kiss you like that? B said: Near the sandpit, I already told you that. A said: Would Rod be standing up, sitting down or walking around? B said: Sitting down. A said: What would Rod be sitting on? B said: His chair where he relaxes. A said: Where would you be? B said: On the table. A said: Would you be standing or sitting on the table? B said: Sitting, you are not allowed to stand on the table. A said: Where would Rod's hands be when he kissed you? B said: Lap. A said: Whose lap? B said: His lap. A said: Where would your hands be? B said: Behind me, leaning back. A said: Was there anyone else around when this happened? B said: Yes, kids in the sandpit. A said: Any teachers? B said: No. A said: When Rod would kiss you, how would he kiss you? B said: On the lips with his tongue sticking out. A said: Remember when you told me when Rod would kiss you, you felt weird? B said: Yes. A said: Did Rod ever do anything else that made you feel weird? B said: Yes. A said: What? B said: Ripping my pants down on my bum. A said: Ripping your pants down? What does that mean? B said: It means he would pull my pants down. A said: When Rod would pull your pants down, would it be your pants or your pants and your underpants? B said: My pants and my underpants. A said: What would happen next? B said: I don't know. A said: What does that mean? B said: Means you don't know what to say. A said: Who would pull your pants up?" 1. The conversation then ended because B began speaking in baby talk, which she rarely did. 2. A made another police statement about this disclosure on 4 March. In cross-examination A said that she was confused by what B had then said and did not believe or disbelieve her, but eventually came to the conclusion that what she had disclosed about having her pants pulled down, was also true. 3. On Associate Professor Quadrio's approach this conversation began with a spontaneous physical act, when B wiped off her mother's kiss. A asked an open question about anyone else kissing B with their tongue. B identified Mr Bird and demonstrated how he had kissed her. What B said in response to the question about whether he had done anything else that made her feel weird, elicited the disclosure, for the first time, that he had pulled down her pants and underpants. 4. There is nothing in the evidence, to this point, which suggests that this disclosure was unreliable. 5. In cross-examination A said that at the time she was confused, but did not disbelieve B, who was not initially distressed or crying. She was sitting on the bed and then pulled the curtain over herself and began to become distressed, when talking about her pants. A considered that B clearly did not want to talk about that anymore, bringing the conversation to an end by speaking in baby talk. 6. A said that without asking B more questions it was difficult to ascertain what she meant, but she did not consider that B had told her about her pants being pulled down, in order to make the questions stop, as was suggested to her in cross-examination. That this is what occurred is difficult to accept. This was a child who had demonstrated that she could distinguish between reality and unreality and had told her mother about this assault for the first time, in response to a question about anything else making her feel weird. 7. By March 2010 B had not attended the centre for some 3 months, so unlike earlier disclosures, this disclosure was not made close in time to the events. While there is nothing which provides a basis for concluding that this disclosure was the result of suggestive questioning, B later told A that what she said had not been true, to which I will return. 8. A made a further statement to police about this disclosure. She was later told that police had decided to lay further charges against Mr Bird in relation to B and B was referred for counselling at the Child Protection Unit at Sydney Children's Hospital. A believed that during this counselling B had disclosed that Mr Bird took her to the shed. But A became dissatisfied with the counsellor, after she informed her that charges were to be laid. 9. B was then referred to another counsellor, Ms Ly, who saw A and B together on a number of occasions, not all of which are necessary to refer to. 24 August 2011 1. Not referred to in A's statement was that on 24 August she spoke to Ms Ly about B telling her that Rod had not pulled her pants down. Ms Ly's notes record that: "A spoke about B initially wanting to tell her about a time where Rod pulled her pants down - that she spoke about Rod pulling her pants and undies down. Later on B told her mum that this didn't happen. A questioning whether it was something that she had made up or is she not saying anything further out of fear. We explored the possibility of B not talking further about this time out of protection for her mum - A spoke about her going red/in blotches when she is upset and even though she tried to remain calm and asked questions (detail orientated ones) she was going red and B might have noticed this." 1. The notes do not indicate that this withdrawal was then discussed with B. 2. When cross-examined A could not recall B having made this withdrawal, but accepted that Ms Ly's notes were correct. She accepted that she did not raise this with police at the time. She understood that the counsellor and police were conferring, the counselling having in part been intended to prepare B for trial. 3. That understanding is consistent with the counselling notes, which refer to case review meetings with Police/JIRT and with the fact that the November trial was deferred until May, so that the children could be reinterviewed. That followed A and B having been subpoenaed in October to give evidence at the trial. 14 September 2011 1. Ms Ly's counselling notes on this day record: "B talked about Rod doing bad things when he broke the rule. Said "he pulled my pants down" and then laughed and said "I tricked you and mummy, he didn't do this" Asked her why she tricked us, to which B responded "I don't know I wanted to trick mum." B then said "Rod kissing me on the lips and it was spicy". She said she didn't like it. I asked B "Where were you when Rod kissed you on the lips" B responded "Oh I don't know … at my old school" I asked "Was it inside or outside the classroom" which she responded "outside" I asked "where were you" B: "In the sandbox" Me: "Was anyone else with you?" B: "yes Jayden, my husband" Me: "Can you tell me how Rod kissed you?" B: "he kissed me on the chair" Me: Can you draw where the chair is" B: "I don't know how to draw a chair, it was near the shed" Me: "how did you get from the sandbox to the chair?" B: "Rod came over, my friend went away. I went away and Rod followed me to the shed…and he kissed me" Me: "how did he do that?" B: "he just kissed me" Me: "Did he do anything else… or did he say anything" B: "no" 1. The plaintiffs' case was that despite B's withdrawal of the disclosure that Mr Bird had pulled her pants down, it would be concluded that he had, given the likelihood that B had withdrawn what she said, out of concern for her mother. 2. The records are certainly replete with evidence not only of the considerable distress which A was suffering as the result of B's disclosures and their aftermath, but the effect which that was having on A's own behaviour and health, to which I will return. It is impossible that B was unaffected by what her mother was then suffering. 3. That this was what motivated B to withdraw the disclosure that Mr Bird had pulled her pants down, is thus clearly possible. That was what Ms Ly discussed with A at the time. 4. But for Mr Bird's admissions and the other tendency evidence, I would not have been able to conclude that the plaintiffs had proven that Mr Bird pulled B's pants down, as she had earlier disclosed. 5. But not only did Mr Bird admit to having assaulted child 1 when he grabbed her bottom in the way he repeatedly described, he also admitted having rubbed her bare tummy with his hand under her clothes. While he denied having massaged child 1's "wee wee", he also admitted that he had maybe rubbed her on the lower part of the tummy; that he had not touched her wee wee "intentionally"; and that he might have put his hand "down there" when "picking them up throwing them around the yard". He also described massaging and touching other children in the various inappropriate ways I have discussed. 6. Given all that Mr Bird admitted; how both A and B were affected after her disclosures, to which I will return; and how and when B made her retraction, I accept that on the balance of probabilities, B's disclosure that Mr Bird had pulled her pants down, also accurately reflected what he had done to her and that her later withdrawal was not likely to have been true. 7. The defendants relied on in Re W, where a child who had made disclosures of sexual abuse had also later withdrawn them and there was evidence from an expert that false retractions were not unusual. But it was concluded that because of the Briginshaw standard, the only serious evidence of the abuse being the disclosures, there was no logical reason for believing them, but not the retractions, given that there was no need to make a positive finding, in order to protect the child. 8. In this case, however, there does need to be a conclusion about whether this assault has been proven and the evidence does establish a reason for B making a false retraction, out of concern for her mother. 9. This was also not a case like Bowles v The State of Western Australia [210] WASCA 191, where the reliability of a child's inconsistent answers was in issue and it was considered that with some child witnesses "the desire to be compliant with the questioner may reduce the reliability of the answers": at [61]. 10. Here it was an unprompted withdrawal of an earlier unprompted disclosure, which had caused A considerable distress, which arises to be considered. 11. When that is considered together with all of the other evidence I have discussed, I am satisfied that it must also be concluded that this assault was proven. February 2012 1. B turned 5 in February and was reinterviewed by police on the 28th. She was first shown the DVD of her earlier police interview, again asked in various ways about the difference between truth and lies and made a pinkie promise that everything she told the interviewer was the truth. 2. By this time B had been repeatedly questioned about her disclosures and had ongoing counselling, where they were also discussed. She was not then as comfortable or as forthcoming as in her earlier interviews. 3. B remembered talking on the movie about Rod kissing her lips and the questioner tried to establish when that had occurred. At one point she said that it had happened only once. No one else was around, but she did not remember where she was and she could not remember anything else about when she went to Footprints. 4. While this confirmed that B then still had a memory of Mr Bird kissing her, I am satisfied that it did not establish that what she had earlier disclosed in 2009, 2010 or 2011 was untrue, or that this provided a reliable basis for the conclusion that Mr Bird had only once kissed B. April 2012 1. The DPP decided not to proceed to trial, a decision A described as having "broken" her. I will return to the evidence of the consequences of this decision for A. 2. In cross-examination A explained that despite this decision, even now she still believed that Mr Bird had kissed B with an open mouth on the lips and pulled her pants down, that having involved sexual assault. 3. As I have explained, the evidence establishes a sound foundation for her belief.

Was D assaulted?

1. The amended statement of claim pleaded: The Abuse 6. The plaintiff, D, was born on 20 November 2006. 7. The plaintiff commenced her attendance at the Centre in 2008, at the age of 2. 8. At all material times, the plaintiff attended the Centre up to 4 days per week, until late November 2010. 9. Sometime between the plaintiff's commencement at the Centre until on or about 12 November 2010, the plaintiff was subject to sexual assault and trespass to her person by the first defendant." a. Between her commencement at the Centre in 2008 and November 2010: i. The first defendant tickled the plaintiff on her underpants; ii. The first defendant would touch the plaintiff during naptime; iii. The first defendant touched and interacted with the plaintiff in an unauthorised manner; iv. The first defendant touched the plaintiff in a manner which she did not like; v. The first defendant told the plaintiff that her mother would go to gaol if the plaintiff told anybody about the touching.
2. It was easier to reach the conclusion that the plaintiffs established that D was assaulted in the way which she disclosed.

Behavioural changes

1. It was C's evidence that D enjoyed attending the centre until around August 2010, when she began saying that she did not want to go and "I don't like it there. People hurt me there", which she repeated on a number of occasions.
2. C then assumed D was referring to other kids. She tried to calm her down and continued taking her. She was also conscious that D may have been affected by her grandmother's death and her separation from D's father and so she thought might have been experiencing separation anxiety at drop off. In cross-examination C said that she had expected this would settle down and so was going crazy trying to work out whether there was something else, which she could not put her finger on.
3. C was going to speak to the mother of one D's friends, but then heard about the charges laid against Mr Bird. In cross-examination C said that she chose to believe the children and then considered that he was guilty of what he had been charged with.
4. C then accepted the offer to have D interviewed, but decided not to ask her directly about Mr Bird, having consulted work colleagues who included psychologists who deal with trauma. She also moved D to another kindy.
5. C was advised that it was important not to ask D direct questions about what may have happened to her and that she needed to focus on reassuring D that it was always safe to talk to her about anything; how to engage in protective behaviours, which could help D build up feelings of safety; and that adults would listen to her and protect her.
6. In cross-examination C said that at that time she was extremely concerned that the emotions D had been showing could indicate that she had also been harmed, but D made no disclosure in the interview. At her new centre D showed no separation anxiety, but C was seeing emotional and behavioural changes in D, which she felt could be indications that she had possibly been treated inappropriately.
7. Later D disclosed to C and eventually police, that Mr Bird had assaulted her. In cross-examination C said that immediately after she told D that where she had been tickled was not a proper place, D's face hardened, she turned away and said "I don't want to talk about this anymore', which was very unusual for her.
8. Associate Professor Quadrio did not interview D in 2014, the opinions she expressed in her report were based on what C told her and D's records. C then described the fearful state D was in after the police interview, which had left Cr with enormous regret, because later she came to appreciate that Mr Bird had left D in fear that her mother would go to jail. D was left fearing that her mother would go and not come back; suffered ongoing night terrors; feared for her friends; feared going to school because the principal might be like Mr Bird; would not engage with friends or activities and suffered from separation anxiety and tantrums.

Conclusions about C's observations and D's disclosures

1. The conclusions which I have reached about D's disclosures are as follows: 27 January 2011 1. D made a spontaneous disclosure to C about Mr Bird while they were lying together on the lounge and C was tickling her tummy, which included: I said: "who tickles your tummy?" D began telling me one at a time who tickles her. She said: "Tickle monster, mummy, daddy, Hayley, Nat, Rod". 1. C was startled to hear D refer to Rod, understanding that the "tickle monster" was her brother, Hayley an older cousin and Nat another worker at Footprints. She asked: "where does Rod tickle you?" D said: "Rod tickles me all over" I said: "Show me where?" 1. D then tickled herself on the front of her underwear halfway between her pubic bone and groin area, saying "it feels nice mummy I like it. I'll show on you mummy". 2. D then pulled up C's dress and tickled her on her underwear saying: "See, it feels nice can you do it to me?" I said: "No I won't because it's not a proper place for anyone to tickle you." D then appeared to shut down and she said "I don't want to talk about it anymore." 1. This was a spontaneous, free narrative account involving both words and physical representations, which on Associate Professor Quadrio's approach was likely to have been accurate. There is nothing in the evidence which suggests that it was unreliable. 2. While D was not cross-examined, given Mr Bird's admissions that he had tickled children and touched them in inappropriate places, including low on the tummy and that he may have even touched child 1 on the vagina, albeit unintentionally and also put his hand down the front of her pants, when considered together with the tendency evidence and other evidence I have discussed, I am also satisfied that this disclosure must be accepted as true. 9 February 2011 1. C was shocked and agreed in cross-examination that she had concluded that D had potentially experienced inappropriate behaviour, by someone who was already up on a charge. 2. C reported the incident to the DOCS helpline in the morning. Arrangements were made for D to be interviewed. 3. In cross-examination C said that she was very concerned about the police interview because D was so young and wanted to give her context and some safety, because she thought the process might be distressing. C told D in the car on the way to the interview: "D do you remember when we talked about Rod tickling you? What happened is wrong and we are going to talk to a lady about it from the police." D said: "Mummy, when we did tickling on undies no one saw us." D then giggled in a nervous way and I said, "well D that was wrong and that is why we do need to talk to the police today. You know we do have some police in our family so you don't need to talk to be worried. You have not done anything wrong and you have nothing to worry about." 1. That no-one else saw the tickling was also a spontaneous disclosure. 2. The record of D's police interview establishes that D was not reassured by what C had told her. To the contrary, she was clearly uncomfortable to be speaking to a stranger about something her mother had told her was wrong. 3. In the interview D was also asked questions in the way Associate Professor Quadrio discussed. She confirmed that she understood the differences between truth and lies. But she became extremely uncomfortable, giving many non-audible replies and repeatedly asking for her mother. 4. D did say that she knew Rod who worked at kindy and that he would put her on a beach ball and swing. She identified various parts of her body, including what she called the "wizzie". When asked whether there was anything that she should tell the interviewer or "anything I need to know" she said only "Go see momma". 5. C did make a disclosure, when she said: "O.K. very good. Now I just want to make sure D when I spoke to you before that nobody's touched you on the tummy and the wizzie and somebody told me O.K. that you told your mum that Rod touched your tummy. What can you tell me about that? A. Cause he can touch me." 1. I am also satisfied that this disclosure was true, corroborated as it was by Mr Bird's admissions that he touched children on the tummy. 2. C's evidence was that afterwards D was severely distressed and so exhausted that she fell asleep in the car. On waking she said "Mummy I don't want to go back to the police again" and became so distressed and clingy that C did not send her to preschool for the rest of the week. 3. In the following weeks D's behaviour changed. She not only began carrying a blankie for the first time, but she became uncharacteristically shy, would not participate in dance class, had night terrors during which she would scream and lash out and began to communicate in baby babble, which was unusual, having been an early talker. 4. In cross-examination C agreed that until she told D that where Mr Bird had tickled her was not a proper place, D had never demonstrated any traumatic or adverse effects; that she never said he had hurt her; and that later she had said she enjoyed being tickled there and wanted C to do it to her; and on another occasion that it felt good, but her tummy felt really sick. About a month after the police interview D said it had occurred at preschool somewhere far away 5. D also said things like when C was late picking her up "Mumma, you were late, I thought you had gone to jail and would never come get me." On another occasion in 2011 D burst into tears one night and said: "I don't want to go to school because I think the principal will be like him." C understood D to mean Mr Bird and was very worried about these changes in her. 6. C came to decide that going to court to pursue charges against Mr Bird would do D significant damage and none were laid in relation to her. D was also referred to counselling at Sydney Children's Hospital, which also provided C with strategies to support her. February 2011 1. D's disclosures continued when C asked her further questions. In late February C asked: "Remember when you told me about Rod tickling you and how no one saw? I was wondering how that happened because there were so many people at kindy?" D said: "Yes, but we have a big backyard and we would just go far away." C later asked D: "Remember when you were sad on the mornings when I would take you to kindy and you kept saying you didn't want to go there? Do you remember what was making you sad?" D said: "Because I didn't like it when Rod tickled me." 1. There is also no reason to conclude that this was untrue. March 2011 1. After seeing Mr Bird in the street, C decided to ask D how often Rodney had tickled her. D said "lots". C asked "Did you want it to happen lots?" D answered "No." C then asked "Did you tell Rod you didn't want it to happen lots?" D said "Yes, but it kept happening." 2. Later D said sometimes Rod would tickle another child at the same time that he tickled her, "because we were all best friends" and that he would let a third child watch. 3. These accounts were not all free narratives and also made some months after D last saw Mr Bird. But the questions C asked were either open or not leading. The evidence is not consistent with C pursuing suggestive questioning, or that D could not distinguish between reality and non-reality. 4. In cross-examination C did not agree that the outdoor area, which was L shaped, was clear and obvious from any number of vantage points. She said that it was not completely open and you would have to be a significant way down the sandpit end, to have a vision of where it and the shed was. C agreed that she saw staff moving around in that area, but at other times they were chatting and standing still. That is supported by other evidence I have already discussed and supports the conclusion that it was possible for Mr Bird to assault D in the ways she disclosed, without being observed by other staff. 5. Given that evidence, Mr Bird's admissions, the other tendency evidence and other evidence I have discussed, I am also well satisfied that the plaintiffs have met the onus of establishing that Mr Bird assaulted D in the ways that she disclosed.

The intentional torts are proven

1. The Civil Liability Act does not apply to the claims in respect of assault: s3B.
2. The conclusions I have reached establish that Mr Bird intentionally assaulted B and D that the plaintiffs have proven the intentional torts they alleged, on the balance of probabilities.
3. There is no issue about causation in relation to those claims.

Vicarious liability

1. It is convenient now to deal with the issue of vicarious liability which relates both to the common law and Civil Liability Act claims, in the latter case under s5Q.
2. The defence case was that Mr Bird was a volunteer for whom the other defendants were not vicariously liable: Hollis v Vabu Pty Ltd (2001) 207 CLR 21; [2001] HCA 44 and Prince Alfred College Incorporated v ADC (2016) 258 CLR 134; [2016] HCA 37.
3. That was in issue, with the plaintiffs relying on UK authorities to submit that even if it was concluded that Mr Bird was not an employee, in his circumstances Little Pigeon was also vicariously liable for his acts, as it would have been if he had been an employee, applying the tests established in Prince Alfred College.
4. Vicarious liability for a volunteer who did work which would otherwise be done by an employee, but who had entered neither an employment or independent contract, did not arise for consideration either in Hollis or Prince Alfred College.
5. Sections 6G and 6H of the Civil Liability Act now make provision for vicarious liability for child abuse perpetrated by employees and individuals akin to employees, in specified circumstances. An individual is akin to an employee of an organisation, "if the individual carries out activities as an integral part of the activities carried on by the organisation and does so for the benefit of the organisation": s6G(2). On the evidence Mr Bird would fall within that definition.
6. Section 6F imposes a duty to take reasonable precautions to prevent an individual associated with the organisation from perpetrating child abuse in connection with the organisation's responsibility for the child. Such an individual "without limitation includes an individual who is an office holder, officer, employee, owner, volunteer or contractor of the organisation": s6F.
7. But it was common ground that these provisions do not apply in this case, given that the events in question occurred before these provisions took effect.

If Mr Bird was not an employee

1. Contrary to the defence case I have concluded that the evidence does establish that in reality Mr Bird was an employee, even though he was not paid wages for his work and was represented to be a volunteer.
2. If I had not reached this conclusion I can see no reason, in principle, why there should not have been vicarious liability for his acts, given the tests discussed in Prince Alfred College and "the orthodox route of considering whether the approach taken in decided cases furnishes a solution to further cases as they arise" there discussed: at [46].
3. A case like this does not appear previously to have arisen for consideration in Australia, as it has in the UK. There in Cox v Ministry of Justice [2016] AC 660 [2016] UKSC 10 the advent and principles of a "modern theory of vicarious liability" which extends beyond the strict relationship of employment was explained by reference to Catholic Child Welfare Society v Various Claimants [2013] 2 AC 1; [2012] UKSC 56 at [24] and [29]-[31]. Those principles were considered in Barclays Bank plc v Various Claimants [2020] UKSC 13 at [27].
4. Those principles are concerned with harm done by an individual who carries on activities as an integral part of a business and for its benefit, rather than as part of the conduct of a recognisably independent business of his own, or of a third party, where the commission of the wrongful act is a risk created by the assigned activities.
5. Thus in DSN v Blackpool Football Club Ltd [2020] EWHC 595 (QB) the application of those principles resulted in the Club being vicariously liable for abuse committed by an unpaid volunteer: at [175].
6. These principles do not entirely accord with those established in Prince Alfred College, which must be applied in this case, but they do demonstrate how the common law develops, when new situations arise for consideration.
7. I consider that application of the Australian principles to the facts I have found, would permit the conclusion that Little Pigeon was vicariously liable for Mr Bird's acts, even if he provided his services to Little Pigeon as a volunteer, rather than as an employee.
8. But it is not necessary to decide the case on that basis.

Mr Bird was an employee

1. In Hollis Gleeson CJ referred to the long accepted general rule, "that an employer is vicariously liable for the tortious acts of an employee but that a principal is not liable for the tortious acts of an independent contractor": at [32]. The reasons underlying this rule and how it can be determined whether or not a wrongdoer was truly an employee, were then examined. It was observed that:

• in general the conduct of an enterprise in which persons are identified as representing that enterprise "should carry an obligation to third persons to bear the cost of injury or damage to them which may fairly be said to be characteristic of the conduct of that enterprise": at [42];
• the totality of the relationship between the parties must be considered, including the right to exercise control, "so far as there is scope for it, even if it be only in incidental or collateral matters", as well as whether it was actually exercised: at [44] and [57];
• considerations respecting economic independence and freedom of contract are not determinative of the legal character of the relationship: at [46];
• the nature of the engagement evidenced by documents and the work practices imposed can indicate employment: at [47];
• the right to control the manner of performing the work is also relevant: at [49];
• representations to the public and to those using the business that the wrongdoer is an emanation of the business, such as wearing uniforms bearing the business logo, are also relevant: at [50];
• deterrence is important. Responsibility for a wrongful act is imposed, where the claimed employer is not negligent, because employers are often in a position to reduce accidents and intentional wrongs by efficient organization and supervision: at [53].
• how finances were superintended; whether there is scope to bargain for the rate of remuneration; how the return and cleaning of uniforms, other equipment and tools was regulated; how insurance was dealt with and the method of payment used are also relevant: at [54] and [56];
• the scope for the pursuit of any other business enterprise on the alleged employee's own account is also relevant: at [55]

1. Mr Bird and Ms Clancy were Little Pigeon's shareholders, Ms Clancy its sole director and both were involved in management of the centre. Mr Bird told the police that he was both an owner and silent partner in the business.

The other defendants were vicariously liable for Mr Bird

1. There was no issue that both Little Pigeon and Ms Clancy could be vicariously liable for Mr Bird, if he was found to be an employee.
2. In Prince Alfred College vicarious liability of a school for sexual abuse of a student by a teacher arose for consideration. It was observed by the plurality that:

• Vicarious liability "has not to date been regarded as a form of absolute liability", but that a general principle has eluded the common law for a long time: at [44].
• That a wrongful act is a criminal offence does not preclude the possibility of vicarious liability. But the fact that employment affords an opportunity for the commission of a wrongful act, is not of itself a sufficient reason to attract vicarious liability, because the act may still be unconnected with the employment: at [80].
• An employer may be vicariously liable for a criminal act where, in the commission of that act, the employee used or took advantage of the position in which the employment placed the employee vis-à-vis the victim: at [80]
• The role which is given to the employee and the nature of the employee's responsibilities may not only provide an opportunity, but also the occasion for the commission of the wrongful act: at [80].
• It is necessary to consider the special role the employer has assigned to the employee and the position in which he or she is thereby placed in relation to the victim: at [81]. To determine whether the apparent performance of that role created the "occasion" for the wrongful act, features which may be taken into account include: "authority, power, trust, control and the ability to achieve intimacy with the victim, which may be especially important."
• If the evidence establishes that the employee has taken advantage of his or her position with respect to the victim, that may be sufficient to conclude "that the wrongful act should be regarded as committed in the course or scope of employment and as such render the employer vicariously liable": at [81].
• It is thus important to determine the actual role assigned to the employee: at [85].

1. On the evidence I am satisfied that Little Pigeon was vicariously liable for Mr Bird's wrongful acts. That conclusion flows from:

Duty and risk of harm

1. There was no issue that B and D were owed a duty of care of the kind discussed in Cox at [72]-[78]. The duty is not to ensure against injury, but to take reasonable care to prevent it, that requiring the taking of reasonable steps which should reasonably have been foreseen.
2. The plaintiffs relied on Mr Bird's background, lack of training or qualifications, the access he was given to the children and how he was supervised to establish that he posed a risk of harm.
3. Taking into account the requirements of ss5B and 5C of the Civil Liability Act, I am well satisfied that the evidence establishes that Mr Bird did pose such a risk; that it was a foreseeable risk, which was not insignificant and in the circumstances a reasonable person in the defendants' position, would have taken available precautions:

Breach

1. Whether the duty had been breached turned on what precautions had been taken and what precautions a reasonable person in Little Pigeon and Ms Clancy's position would have taken. On all of the evidence I have discussed, I am also satisfied that the duty owed to B and D was breached.
2. The claims pressed in the amended statements of claim in relation to B included : "15. It is alleged that the Second and Third Defendants breached the duty of care. Particulars (a) Failure to implement or maintain any procedures or policies relating to child protection and in so doing exposing the Second Plaintiff to a foreseeable risk of harm. (b) Failure to protect the Second Plaintiff from a substantial risk of harm during her attendance at the Centre. (c) Permitting the First Defendant to have unsupervised contact with the children who attended the Centre, including the Second Plaintiff. (e) Permitting the First Defendant to have inappropriate and prolonged contact with the children who attended the Centre, including the Second Plaintiff. (f) Failure to supervise and/or appropriately monitor staff interaction with the children who attended the Centre, including the Second Plaintiff. (g) Failure to supervise and/or appropriately monitor staff supervision ratios and staff placement within the Centre. (h) Failure to appropriately investigate and take responsive and protective action following parents complaints about the First Defendant's conduct with the children, such as failing to comply with mandatory reporting requirements. (i) Failing to ensure that all Centre staff were appropriately trained in child protection. (j) Allowing areas within the grounds of the Centre to be unsupervised. (k) Failing to observe and/or take remedial action against the First Defendant's inappropriate contact with the children who attended the Centre, including a failure to mandatorily report behaviours of concern. (l) Failing to have in place a system and/or appropriate system of supervision. (m) Failing to have in place a system and/or appropriate system to protect children that attended the centre from unwelcomed and inappropriate contact with staff. (n) Failing to ensure that appropriate supervision ratios were enforced covering all areas of the Centre where children were present. (o) Failing to provide direction to staff as to the boundaries relating to interaction and/or physical contact with the children who attended the Centre. (p) Permitted the First Defendant to engage in a carer's role when he was not authorised to care for children, including with the Second Plaintiff. (q) Permitted the First Defendant to spend time in unsupervised parts of the yard within the Centre, during outdoor playtime. (r) Failing to ensure all employees including the First Defendant held adequate and required qualifications in child care before being permitted to engage with and/or care for children; (s) Failed to ensure the care and welfare of the Second Plaintiff; (t) Failed to protect the Second Plaintiff against being sexually abused / assaulted by an employee."

Causation

1. It is for the plaintiffs to prove any fact relevant to causation: s5E Civil Liability Act. Section 5D is relevant, providing: 5D General principles (1) A determination that negligence caused particular harm comprises the following elements - (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent - (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
2. The defendants relied on Roman Catholic Church v Hadba [2005] HCA 31; 221 CLR 161 at [27], where the plaintiff had not called evidence from anyone other than herself, to submit that the plaintiffs needed to explain how, in a practical sense, constant supervision of Mr Bird was to be carried out, without which it could not be concluded that a different system would have prevented their injuries, particularly given that there was also no evidence that he wasn't accompanied by primary staff, those called not having been cross examined about that.
3. I do not consider that what arose to be decided in Habda assists in the resolution of this case. It was concerned with a school which operated a system under which particular teachers had specific duties of supervision and were also expected to minimise dangers of kinds other than those to which their specific duties related: at [24].

Duty

1. Whether A and C were owed a duty of care was in issue. That must be determined in accordance with s32(1) of the Civil Liability Act, which provides that a duty of care is not owed to another person to take care not to cause mental harm "unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken".
2. "Mental harm" is defined in s27 to mean "impairment of a person's mental condition". The "circumstances of the case" include the personal injury suffered: s32(3). Section 32(2) specifies that they also include: "(a) whether or not the mental harm was suffered as the result of a sudden shock, (b) whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril, (c) the nature of the relationship between the plaintiff and any person killed, injured or put in peril, (d) whether or not there was a pre-existing relationship between the plaintiff and the defendant. (3) For the purposes of the application of this section in respect of consequential mental harm, the circumstances of the case include the personal injury suffered by the plaintiff.. (4) This section does not require the court to disregard what the defendant knew or ought to have known about the fortitude of the plaintiff.
3. Section 32 requires a particular and separate inquiry into the existence of a duty of care with respect to mental harm which depends on foresight, not hindsight: Optus Administration Pty Ltd v Wright by his tutor Wright (2017) 94 NSWLR 229; [2017] NSWCA 21 at [36] and [47].
4. In issue was whether the defendants ought to have foreseen that a person of normal fortitude might, in the circumstances of both A and C, suffer a recognised psychiatric illness, if reasonable care were not taken.
5. The defence case was that once A and C's circumstances were clear, it would be concluded that they ought not to have foreseen that a person of normal fortitude might, in those circumstances, suffer a recognised psychiatric illness, if reasonable care were not taken, relying on Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35.
6. In Tame Gleeson CJ observed that "It is the reasonableness of a requirement that a defendant should have certain persons, and certain interests, in contemplation, that determines the existence of a duty of care": at [9].

Plaintiff A

1. In A's case the relevant circumstances include that when B started at the centre, that she advised that she did not wish male staff to change her nappy because "as a youth worker my education and experience tends to make me extra cautious." She had complained about Mr Bird kissing B and B had been describing Mr Bird as "spicy" or "spiky".
2. When A later learned that Mr Bird had been charged, she experienced understandable feelings of fear that B had also been assaulted and guilt that she had not acted on her earlier concerns, affected no doubt by her husband's concern. He shouted "I knew it" when she rang him with the news and returned home immediately from where he was working in Orange.
3. A was relieved when B did not disclose in her first interview that she had been assaulted, but her concerns were not allayed and only heightened, when the following day B kissed her with an open mouth. She then made a police report.
4. Again B on interview did not disclose anything of concern, but that A's fears were not entirely allayed, was understandable in the circumstances. She asked B further questions which finally led to the recorded conversation with B, the police interviews and counselling sessions in which B gave her accounts of what Mr Bird had done which not only confirmed A's fears, but heightened them when B spoke of him having pulled her pants down. That those fears were not allayed when B withdrew that allegation was also understandable, given the circumstances in which that occurred.
5. That A would not engage in the type of analysis which was undertaken in these proceedings about the differences in the things which B had disclosed to her and police is also understandable. At the time she was not aware of what B had told police and was having to deal with the considerable ongoing consequences of what had happened, for B, herself and her family.
6. While Dr Allnut and Dr Smith did not agree about the nature of A's condition, to which I will return, they did agree that if B's disclosures were accepted, a person of normal fortitude in A's position might suffer a recognised psychiatric illness. Their opinion should be accepted.
7. Whether a person of normal fortitude in A's position might suffer a recognised psychiatric illness remained in issue, but I am satisfied that the evidence does establish that the defendants ought to have foreseen that a person of normal fortitude in A's position, might suffer a recognised psychiatric illness.

Plaintiff C

1. I have reached the same conclusion in relation to C.
2. In C's case the relevant circumstances include that:

• In the weeks before Mr Bird was charged she was concerned about D, whose behaviour had altered and she suspected that she was suffering separation anxiety, which she expected would settle down but did not. D had told her that she did not want to go to the centre because 'people hurt me there' and she was struggling to identify what was causing this;
• C removed D from the centre when she learned of Mr Bird's charges and while she was happy at her new kindy, C began to see emotional and behavioural changes which caused her to fear that D had also been treated inappropriately;
• C thus also took up the offer for D to be interviewed.
• C understood that when children disclose sexual abuse it was usual for them to give little bits of information and then after they have seen how the person reacts, if they felt safe in that disclosure, to disclose another piece of information and so on. That was the process she had experienced with D.
• D later disclosed to her and police that Mr Bird had tickled her on the vagina. In cross examination C agreed that until she told D that where Mr Bird had tickled her was not a proper place, D had never demonstrated any traumatic or adverse effects and that she never said he had hurt her. Later D had said she enjoyed being tickled there and wanted C to do it to her, but on another occasion that it felt good, but her tummy felt really sick. About a month after the police interview D said it had occurred at preschool somewhere far away.
• C believed what D had disclosed about the inappropriate behaviour of someone who was already up on a charge in relation to another child, but decided that it would be too traumatic for D, to pursue charges against Mr Bird.
• Thereafter D made even further disclosures, all the while being affected in the way C discussed with Associate Professor Quadrio.
• C also had to deal with the considerable ongoing consequences of what had happened, not only for D, but also for herself and her family.

1. The experts agreed in their joint report that C did not have a pre-existing history of mental illness, but after D's disclosure she developed an adjustment disorder, which Dr Allnut considered was chronic and an alcohol use disorder. Dr Smith considered that she also suffered mixed depressed and anxious mood and Dr Allnut that she also had a generalised anxiety disorder and had used alcohol to treat her symptoms.

Breach

1. For similar reasons to those I have given in relation to B and D, I am also satisfied that the evidence establishes that the duty owed to A and C was also breached.
2. It is not necessary to repeat what I have explained. I am satisfied that what the evidence establishes about the failure to ensure that the regulatory requirements were observed, the child protection policy was in effective operation and Mr Bird was adequately supervised, also establishes breach of the duty A and C were owed.
3. It was also reasonably foreseeable that mothers such as A and C who left their vulnerable children in the defendants' care would be at risk of injury if these precautions were not taken. Further, that a reasonable person in their position would have ensured that they were.
4. Thereby the duty which A and C were owed was also breached.

Causation

1. For similar reasons to those given in relation to B and D, I am also satisfied that A and C have established causation.
2. Like the circumstances which arose for consideration in Annetts v Australian Stations Pty Ltd (2000) 23 WAR 35; [2000] WASCA 357, in both A and C's cases the evidence established that the breach of the duties which they were owed did make a material contribution to their injuries, which was also reasonably foreseeable: Tame at [29].
3. Further, it was reasonable for Little Pigeon and Ms Clancy, its controlling mind, to be expected to foresee that their approach to the regulatory requirements, Mr Bird's work and supervision and the implementation of the child protection policy carried a risk of harm to A and C, of the kind that resulted.
4. Further, that reasonable expectation required them to have A and C's mental health in contemplation when they took acts which resulted in regulatory requirements and the child protection policy not being in effective operation so far as he was concerned, and in him not being supervised as he ought to have been, whenever he interacted with children in the course of his work.
5. In both A and C's circumstances, the process by which they became aware of the nature and extent of their young daughter's abuse by Mr Bird, was also agonizingly protracted: Tame at [36]-[37].
6. Both A and C learned about the charges laid against Mr Bird, 'out of the blue'. In pursuing their reasonable concerns that he might also have hurt their daughters, they understandably accepted the counselling interviews offered. Both B and D, over time, made the various disclosures I have discussed.
7. All the while A and C had to deal with not only the consequences of the abuse B and D were suffering, but the consequences which not unexpectedly also resulted for them. All of the long unfolding events which followed had devastating and foreseeable consequences for A and C's health.
8. In the result I am also well satisfied that the evidence I have already discussed and that of the experts to which I will return on the question of damages, establishes that A and C have also proven that the defendants' negligence was a necessary condition of the harm which they each suffered and that it is appropriate for the scope of their liability to extend to the harm which they caused.

Breach of contract

1. The amended statements of claim, in A's case for example, pleaded breach of implied terms of the contract identified to be: "19. The implied terms of the Contract were that the Defendants: a) Would not cause reasonably foreseeable harm to The First Plaintiff and/or the Second Plaintiff through any act or omissions on their part whilst the Second Plaintiff was in attendance at the Centre; and b) Would ensure that the Second Plaintiff was appropriately cared for whilst under their control, supervision and care. c) The Centre would provide quality childcare to the children who attended the Centre; d) The Centre retained adequately trained staff to work at the Centre; e) The Centre would follow all relevant and necessary policies and procedures required by childcare centres like the Centre; f) The plaintiff would be safe and appropriately cared for whilst under their controlled supervision and care."
2. The defence in A's case pleaded: "19. In response to paragraph 19 of the Amended Statement of Claim, the second and third defendants: (a) admit paragraph 19(a); (b) admit paragraph 19(b); (c) deny that the other alleged implied terms pleaded in subparagraphs 19(c) - (f) were in fact terms implied into the contract."
3. The defence case was that on the principles established in BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 at 283, there was no justification for implying the terms which remained in controversy.
4. Those principles are that to justify the implication of a term which the parties have not expressed, the conditions, which may overlap, which must be satisfied are: "(1) it must be reasonable and equitable; (2) it must be necessary to give business efficacy to the contract so that no term will be implied if the contract is effective without it; (3) it must be so obvious that 'it goes without saying'; (4) it must be capable of clear expression; (5) it must not contradict any express terms of the contract."
5. It was also submitted that those implied terms which were accepted took the plaintiffs no further than their claim in negligence. The plaintiffs took no issue with this.
6. Given the conclusions which I have reached on the negligence claims and the terms which the defendants accepted, it follows that A and C have also established their contractual claims, but no additional damages flow.

Damages

1. The parties reached some limited measure of agreement on damages: exhibit 127. For reasons which follow I am satisfied that each plaintiff suffered considerable damage.
2. There was no issue that the Civil Liability Act did not apply to the assessment of damages for Mr Bird's assaults: s3B(1)(a). I can see no reason why the damages for those assaults would be assessed differently, because of the conclusions which I have reached on vicarious liability. This was an issue which the parties did not finally address and so it is unnecessary to consider it further.

A's damages

1. In total $1,349,579.31 plus costs, disbursements and interest was claimed. Mr Bird's case was that no more than $67,797.22 would be awarded and the other defendants contended for no more than $128,534.29.
2. In arriving at an award of damages what lay in issue as to A's psychiatric condition must be resolved.

What injury did A suffer?

1. The psychiatric experts Dr Allnut and Dr Smith both examined A, produced reports, later discussed the differences in their opinions and produced a joint report, about which they gave concurrent evidence. They agreed that she had suffered a psychiatric injury, but could not agree what it was or its prognosis, or whether beforehand, she had suffered post traumatic stress disorder.
2. In order to resolve what lay in issue between them, the evidence concerning A's mental health has to be considered.
3. A's husband corroborated various aspects of her evidence, including as to the considerable, adverse impact which B's disclosures and their aftermath had on her and their family. He described in detail how different her health, capacities and life were beforehand.
4. A's evidence was that she became extremely anxious after B's disclosures, experiencing difficulty in going out into the community with B and fearing judgment or a negative reaction from B. This led to a decision in October 2011, to move out of the family home in Engadine, to reduce the chance of running into someone from the centre and triggering B, despite the impact which this had on her brother.
5. A was cross-examined about her reaction to various developments, including a counsellor having to check whether her understanding that Mr Bird was to be charged in relation to B's disclosures was correct. At the time A, who had not read the transcripts of B's police interviews until these proceedings were commenced, was dissatisfied with the process and concluded from the counsellor's approach, that she could no longer work with her.
6. In cross-examination A agreed that at times when she was distressed she did not then consider that B's needs were being recognised, or adequately dealt with. It was also suggested to A that her evidence about some of these events was untrue, which she denied.
7. I do not accept that A was being untruthful. To the contrary, I consider that there is no reason to doubt A's evidence about how she felt and reacted, given her circumstances, the consequences of B's disclosures and what followed for her own mental health and the consequences for her further education, career and personal relationships.
8. A was undoubtedly under very considerable strain at the time. The fact that she reacted in ways which others might not consider to have been reasonable or warranted, does not establish that the evidence which she gave about what she remembered doing and hearing and the reasons for her actions at the time, was untruthful.

Non-economic loss

1. $250,000 was claimed, then about 38% of a most extreme case under the Civil Liability Act. Mr Bird contended $25,000 would be awarded and the other defendants 20% of a most extreme case, $23,000.
2. The defence case was that no more than the 35% awarded to the mother in Sorbello v South Western Sydney Local Health Network [2016] NSWSC 863, who had suffered a greater injury than A, should be awarded.
3. "Non-economic loss" is defined for the purpose of the Civil Liability Act in s3, to mean: "(a) pain and suffering, (b) loss of amenities of life, (c) loss of expectation of life, (d) disfigurement."
4. Section 21 of the Civil Liability Act applies, providing: 21 Limitation on exemplary, punitive and aggravated damages In an action for the award of personal injury damages where the act or omission that caused the injury or death was negligence, a court cannot award exemplary or punitive damages or damages in the nature of aggravated damages.
5. Given the conclusions I have reached about A's chronic condition, guarded prognosis; good progress in her pursuit of recovery, but vulnerability to relapse and further injury, her economic loss must be assessed at $158,000. That is 30% of a most extreme case under the Civil Liability Act.

Exemplary Damages

1. A also claimed $100,000 exemplary damages while the defendant's case was that there would be no such damages and on Little Pigeon and Ms Clancy's case, if there was an award it would not be more than the $50,000 discussed in Gersbach v Gersbach [2018] NSWSC 1685 at [512].
2. In Gray v Motor Accident Commission (1998) 196 CLR 1; [1998] HCA 70 it was observed that exemplary damages are awarded rarely: at [12]. "The first, if not the principal, focus of the enquiry is upon the wrongdoer, not upon the party who was wronged": at 15. Such damages are awarded to punish the wrongdoer and deter others from like conduct, but are not exacted by the State or paid to it: at [16].
3. They may be awarded in cases of conscious wrongdoing in contumelious disregard of the plaintiff's rights: at [20]. The power to award such damages is discretionary and not generally awarded where a perpetrator has been sentenced to a term of imprisonment. That Mr Bird was charged but not convicted of offences involving B is thus relevant, as is the fact that his victim was B, not A.
4. I have concluded that because B must be awarded exemplary damages, it is not appropriate also to award such damages to A, if available, because otherwise there would be a suggestion of double punishment, albeit here under the civil law: Gray at [42]-[44].

Past out of pocket expenses

1. $8,835.39 was finally agreed.

Future out of pocket expenses

1. $58,478.46 was claimed, based on Dr Allnut's opinions and a buffer of $15,000 for the remainder of A's life. . Mr Bird contended $2,250, which was unexplained would be awarded and the other defendants $9,330, based on Dr Smith's opinions.
2. I am satisfied that given the nature and seriousness of A's injury and what she is now at continuing risk of, the damages claimed must be awarded.

Past Economic Loss

1. $187,482.50 was claimed for past economic loss and alternatively a buffer was claimed. Mr Bird contended $31,711.83 would be awarded, that reflecting a 75% discount for her pre-existing condition and the other defendants $63,423.65, their case being that there had been an exacerbation of a pre-existing illness rather than a new injury, with the result that there should be a substantial discount of 50%.
2. The evidence establishes that but for the defendants' negligence, A would have completed her studies, continued working 4 days a week until she returned as planned to full time work when B started school and that the losses claimed were the result of the injury she was caused.
3. I do not accept that A's prior illness had the economic consequence for which the defendants contended. I also consider that the resilience which A has displayed even after the events which caused her the injury, particularly since 2017, is consistent with her prior illness not having had the economic impact for which the defendants contended, had she not suffered the results of the defendants' negligence.
4. In the result I am satisfied that the damages claimed have been established.

Past Superannuation

1. The result of that conclusion is that the claim for $17,810.84 was also established.

Future Economic Loss and superannuation

1. A $150,000 buffer was claimed for future economic loss, or loss of earning capacity, based on A now working 35 rather than 38 hours per week, which would continue for the remainder of her intended work life expectancy and took into account 15% for vicissitudes. Mr Bird contended that nothing would be awarded and the other defendants that a $25,000 buffer inclusive of superannuation would be awarded, although it was accepted that the amount of the buffer was difficult to determine.
2. The calculation of economic loss involves a comparison between the actual circumstances of the plaintiff, and the circumstances which would probably have continued or come to pass but for the events which caused the damage which is being compensated. Section 13 of the Civil Liability Act applies to this assessment: 13 Future economic loss - claimant's prospects and adjustments (1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury. (2) When a court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury. (3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.
3. Claims for economic loss must be approached in the way discussed in Rabay v Bristow [2005] NSWCA 199: "[73] Compensation for loss of earning capacity is awarded because the diminution in an injured plaintiff's earning capacity 'is or may be productive of financial loss': Graham v Baker [1961] HCA 48; (1961) 106 CLR 340 at 347. It is incumbent upon the plaintiff to prove the loss for which compensation is claimed (Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402 at 412) but, conversely, it is not incumbent upon the injured plaintiff to prove what employment he or she 'is not incapacitated from performing'. It is for a defendant which contends that the plaintiff has a residual earning capacity to adduce evidence of what the plaintiff is capable of doing and what jobs are open to such a person: H Luntz, Assessment of Damages for Personal Injury and Death (4th Ed) at 118 [1.9.20]. [74] The primary judge was entitled to take into consideration the fact that the respondent had an employment history which demonstrated a consistent pattern of full time employment in work which might fairly be described as having been of a heavy manual nature: Husher v Husher [1999] HCA 47; (1999) 197 CLR 138 at 143 per Gleeson CJ, Gummow, Kirby and Hayne JJ. … [79] The assessment of damages for future economic loss involves reference to future or hypothetical events. It was described as 'the process of estimation of possibility' in Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 at 643 per Deane, Gaudron and Gummow JJ. This is, as Santow JA has pointed out, 'necessarily an imprecise matter of estimation, carried out within broad parameters …': Donald v McKeown [2004] NSWCA 285 at [38]."

Past Domestic Assistance

1. $195,042.40 was claimed and the defendants contended nothing would be awarded.
2. This amount reflected greater hours of care provided up to February 2017, when A's condition began improving. In the first period there was 19 hours care per week, including a private cleaner for 2.5 hours and in the second period 9.75 hours, with no assistance with cleaning.
3. A and her husband gave evidence about how it was she that undertook these tasks before her injury given the nature of his work and how that was altered by her injury and its ongoing consequences. The evidence establishes that the consequences of her injury were devastating and the care she required accordingly very considerable.
4. A also relied on the opinions of Ms Lausch, an occupational therapist who provided a report.
5. The defence case was that the assumptions, on which Ms Lausch's report rested, had not been established, as they had to be. The damages claimed rested on Ms Lausch's calculations, but A and her husband did not give evidence that the hours of assistance specified in her table had been provided. They also relied on the opinions of the psychiatrists, to submit that both in the past and future, A required no such assistance.
6. Section 15(2) of the Civil Liability Act precludes such damages being awarded unless the court is satisfied: "(a) there is (or was) a reasonable need for the services to be provided, and (b) the need has arisen (or arose) solely because of the injury to which the damages relate, and (c) the services would not be (or would not have been) provided to the claimant but for the injury."
7. I am satisfied that the evidence establishes that A had a need for such past assistance, which she would not have required, but for the injury which the defendants caused and that she would not have been provided those services, but for her injury.
8. Conclusions about this issue cannot rest on the opinions of the psychiatrists, which cannot be given much weight, even though their reports do refer to A's history of problems with domestic tasks, which was consistent with her evidence and that of her husband. They had to rest on their evidence and Ms Lausch's report, even though by consent, it was subject to a s136 order, that it was not admitted as to truth.
9. Ms Lausch assessed A in April 2019 at her home. The history she gave Ms Lausch accorded with her evidence and that which she gave to the psychiatrists.

Future Domestic Assistance

1. $365,284 was claimed on the basis of $376 per week for life, with the defendants also contending that nothing would be awarded.
2. Neither A nor her husband were cross-examined about what was claimed. On her assessment Ms Lausch concluded that A required ongoing assistance totalling 8.5 hours per week, 1 hour for personal care, 5.5 hours for domestic assistance, 1 hour for transportation and 1 hour for childcare assistance.
3. The defence case was that the evidence also did not establish the assumptions on which this opinion was based, but Ms Lausch's evidence as to the cost of such care was not challenged.
4. Section 13 of the Civil Liability Act also applies to this claim. That requires an approach consistent with Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20: Avopiling at [137]. This means that consideration must be given to the need for damages to be "reduced, to take account of the chance that factors, unconnected with the defendant's negligence, would have necessitated similar care and attention": Avopiling at [139]. Given her earlier injury, that is a relevant consideration in A's case. Also necessary to take into account is "the possibility that other events will intervene": at [153]. On the expert evidence that includes the risk of relapse.
5. In Avopiling the result was a 25% discount.
6. I am satisfied that the evidence I have discussed also requires that such damages must be awarded.
7. But I am not satisfied that they can include commercial costs for childcare assistance for A's life. Given that B is now a teenager, who is in relatively good health, an ongoing basis for such assistance is not apparent.
8. It is relevant that A has utilised commercial cleaners at times, making it likely that if funds are available, she would obtain commercial care in future if such damages are awarded. But vicissitudes must be taken into account. In Avopiling, the chance that all of the assistance needed would not be obtained, for example, was also taken into account: at [153].
9. In the result having taken all such considerations into account, I have concluded that these damages must be calculated by reference to a total sum of $332 per week, discounted by 20%, that being a figure of $265.60 per week.

B's damages

1. In total $830,000 plus costs, disbursements and interest was claimed. Mr Bird's case was that no more than $25,000 would be awarded and the other defendants no more than $85,000.

B's psychiatric injury

1. B received counselling from a psychologist at the Sydney Children's Hospital from age 5 to 8. Her records are in evidence.
2. Associate Professor Quadrio provided a June 2014 report, having seen B with her parents and reviewed documents now in evidence.
3. Then B reported still going to her parents' bed 3 nights a week, but her nightmares and phobias having improved, and that she was no longer receiving counselling. A then reported that most of B's symptoms had settled and that her behaviour was more manageable, although at times she still had problems coping, had meltdowns on which she got physically violent and extremely volatile moods. A's husband gave a similar report.
4. B was highly anxious and so Associate Professor Quadrio did not see her separately to ask her about her disclosures. She considered that two years of preparation for the court hearing had prolonged her trauma. Accounts of her behaviour were typical of what is observed in children who have suffered sexual abuse.
5. She considered that B's behavioural responses after her disclosures were entirely in keeping with the sequelae of sexual trauma. On balance Associate Professor Quadrio was satisfied that she had been sexually assaulted.
6. Associate Professor Quadrio considered that B was still displaying symptoms of the post traumatic stress disorder which she had suffered, as well as separation and phobic anxiety and depression. Because the process of disclosure and litigation often creates further trauma for such children, she considered that it was difficult to estimate how long B's recovery might take.
7. There were positive prognostic factors such as B's intelligence and supportive family, which meant she could be resilient, but there were risks that she would experience difficulties at critical developmental stages such as pregnancy, childbirth and when children were at a similar age to when she had been abused. The trauma caused to her family was also relevant to her prognosis.
8. Associate Professor Quadrio thus considered it to be important for access to treatment to continue during B's formative years and during major milestones in her life, by psychologists and/or psychiatrists. If she suffered further symptoms or a relapse, she could require intensive therapy, as well as medication. Despite B's good progress, including at school, she remained vulnerable to relapse.

Non-economic loss

1. $400,000 was claimed. Mr Bird contended $25,000 would be awarded and the other defendants $50,000.
2. Common law damages for intentional torts take into account the harm which the plaintiff has suffered as the result of the defendants' conduct: Varmedja v Varmedja [2008] NSWCA 177 at [154]. They thus take into account pain and suffering: at [157].
3. Compensatory aggravated damages may also be awarded, if not included in the ordinary compensatory damages ordered: Lamb v Cotogno (1987) 164 CLR 1 at 8; [1987] HCA 47 and State of New South Wales v Riley (2003) 57 NSWLR 496; [2003] NSWCA 208 at [131]. In contrast to exemplary damages, they are awarded for injury to the plaintiffs feelings caused by insult, humiliation and the like.
4. The defence case was that the award, if there was one, would necessarily be very modest, given B's full remission for at least the last two years, with no foreseeable mental health restrictions or limitations.
5. The plaintiffs' case was that Mr Bird's assaults on this very young child had resulted in both immediate and ongoing consequences, unpredictably over the course of her life. That her earliest sexual experiences had been at such a young age, at the hands of a 64 year-old man in a childcare centre, was submitted to have involved a very serious interference with the integrity of this young child, which could have serous ongoing consequences for her, which thus required a substantial award of compensatory damages.
6. I am satisfied that the defence case cannot be accepted. It pays insufficient attention to the horrible consequences of Mr Bird's acts which B, while still a young child, had to endure for years afterwards, pain and suffering which she would not have had to experience, had he not injured her as he did.
7. B's fears and anger, self-harm and violence towards others and her own possessions, her ongoing nightmares and how this all affected her relationships with other people, serious problems which persisted for years after Mr Bird's abuse and which have left her vulnerable to further problems in the future, must result in a considerably larger damages award than the defendants conceded.
8. The resilience which has led B to the recovery Dr Kasinathan discussed was fortunate and must be taken into account. Had that not occurred the award of damages would have had to be greater. But account must also be taken of the risk which B continues to be exposed to during the remainder of her life, as the result of what Mr Bird did to her.

Exemplary Damages

1. $200,000 was claimed while Mr Bird's case was that there would be no such damages and on Little Pigeon and Ms Clancy's case, if there was an award it would not be more than the $50,000 discussed in Gersbach.
2. It was submitted for Mr Bird that exemplary damages would not be awarded in a case such as this, given that it was very young children who he had assaulted, who had no further recollection of the trauma. No authority had been found to support that submission. I am satisfied that it must be rejected, inconsistent as it is with what was decided in Gray.
3. The plaintiff's case was advanced on the basis that protection of the most vulnerable at a child care centre required the Court to take a very strong view about tortious conduct by those working in, or responsible for looking after such very young children in such centres. That was particularly because in our society, large numbers of such children are now necessarily cared for in those centres.
4. It was also submitted that in a civilised society such as ours, the most important thing that the society can do is to protect its young children. Here an unqualified, untrained, unsupervised person had been put in a position where he was able to sexually assault little girls, while the supervisor spent her time in an office and no proper supervision of this person had been put in place.
5. A more important case for the Court to express its own view about such conduct was argued to be difficult to imagine. Thus the quantum of the damages awarded should send a "loud and clear" message about the standard of care expected by the law, when such young children are being cared for.
6. I am satisfied that B must be awarded exemplary damages, both in order to punish Mr Bird and to deter others, he not having been dealt with under the criminal law.
7. As I said at the time that Mr Bird's submission was made, B's youth when he assaulted her has resulted in her no longer having had a memory of what she disclosed. That is fortunate, but cannot place his conduct outside the class of cases in which exemplary damages ought to be awarded.
8. As discussed in Gray, such damages are awarded to punish wrongdoers and to deter others from such conscious wrongdoing, in contumelious disregard of other's rights. B's youth and how vulnerable it made her to Mr Bird's predatory conduct, is precisely why he must be punished and others deterred.

Future out of pocket expenses, Economic Loss & Superannuation

1. $30,000 was claimed for future out of pocket expenses and $200,000 for future economic loss and superannuation, by way of a buffer. Mr Bird contended that nothing would be awarded on these heads and the other defendants contended $25,000 would be awarded for future economic loss and out of pocket expenses.
2. The defence case was that these damages would be modest, because while it could be concluded that there may have been some diminution in B's earning capacity, it had not presently resulted in any financial loss. Whether it would or might give rise to any loss in the future was also very unpredictable.
3. The plaintiffs' case was that a buffer had to be awarded, taking into account that B was a child and that what the future would hold for her was not known. That buffer should account for the risk which the psychiatrists discussed might arise over the course of a long working life ahead of her, B now being aged some 13 years that her injury would at times deteriorate.
4. Given the nature of the injury which B suffered, her resulting susceptibility to further injury and the retriggering of her condition during the milestones in her life, I am satisfied that there must be buffers awarded for these heads of damage of $25,0000 for future out of pocket expenses and $100,000 for future economic loss and superannuation.

C's damages

1. In total $824,732.80 plus costs, disbursements and interest was claimed. Mr Bird's case was that no more than $88,014.10 would be awarded and the other defendants no more than $113,389.10.

C's psychiatric injury

1. The evidence well established C's devastation when D made her disclosures as she did, over time and the injury which resulted. C described how in 2011 she met a counsellor alone for some 8 months, so that she could understand what D was going through, before D had face to face counselling, in her presence.
2. Before this C had worked as a project officer and fundraising executive, before being promoted to the position of Project Manager, Major Gifts at a charity. She was working 4 days a week at the time of D's disclosures. Afterwards she found it difficult to maintain her regular hours and resigned from her position after Mr Bird's charges were dropped in 2012.
3. In 2012 C began receiving trauma therapy herself from a psychologist, which continued into 2013, as well as regularly seeing her GP for issues associated with the distress which she was experiencing. C agreed that after the no bill decision, she was angry, distressed and significantly emotionally affected.
4. After she resigned C was off work for some 6 months and then undertook some sporadic casual projects, before returning to work in August 2013, 20-30 hours per week. At times, however, she required periods of extended leave, or leave without pay, due to mental health issues, including before and after contributing to the Royal Commission into Institutional Responses to Child Sexual Abuse, associated with the trauma of dealing with that process. At that time D's condition also deteriorated.
5. In 2014 C was referred to another psychologist, who treated her for a further 4 months. She also undertook physio sessions for about a year to help her manage pain and stress, which ceased because she could no longer afford that treatment.
6. In 2016 C began casual work as a consultant and in January she took a more permanent 4 day a week position as a senior consultant. She works with families dealing with trauma, which sometimes triggers her anxiety and trauma response. But she loves the work and has a lot of experience, which makes moving out of the industry difficult, as it could set her back even further
7. C was convinced that but for D's abuse, and the setbacks which she suffered as a result, her income would now be significantly higher, because her career trajectory would not have been set back as it has been.

Non-economic loss

1. $250,000 was claimed, again then about 38% of a most extreme case under the Civil Liability Act. Mr Bird contended $25,000 would be awarded and the other defendants 20% of a most extreme case ($23,000) or $25,000 general damages.
2. In C's case I have concluded, given all that I have discussed, including as to her ongoing condition and prognosis, which I consider must be somewhat guarded, given all that she has suffered and what might retrigger her injury; her pursuit of a return to full time employment; and her ongoing vulnerability to exacerbation of her injury from her work, that her non-economic loss must be assessed at $96,000. That is 28% of a most extreme case under the Civil Liability Act.

Exemplary Damages

1. $100,000 was claimed and the defendants contended that nothing would be awarded.
2. For similar reasons to those I have given in relation to A, I am satisfied that there can be no award of exemplary damages in C's case, because D must be awarded exemplary damages.

Past out of pocket expenses

1. $6,014.10 was finally agreed.

Future out of pocket expenses

1. $52,828.61 was claimed for psychologists and psychiatrists for 12 months and a buffer of $10,000 on a needs basis for life; quarterly GP consultations for life; and medication for 5 years. Mr Bird contended for $2,250 and the other defendants in the alternative for $9,330 based on Dr Smith's opinions.
2. I am satisfied that the amounts claimed for psychologists, psychiatrists and medication must be awarded, because of the nature of C's injury, the history of her required past treatment and the likelihood that she will have ongoing treatment needs. The award for GP consultations should be restricted to 5 years, in the same way as for medication.
3. I do not consider that there should be any other discounts, given the likelihood that C will have ongoing treatment needs which she will pursue, which she would not have required, but for her injury.

Past Economic Loss

1. $225,333.50 was claimed on the basis of an unchallenged forensic accountant's report, or in the alternative a buffer. Mr Bird contended for a $50,000 buffer and the other defendants for a $75,000 buffer.
2. The $75,000 figure was submitted to reflect the impact of a number of other stressors on C, unrelated to B, such as the breakup of her relationships and problems with her son.
3. I do not accept that this is established by the evidence, which suggests that the interruptions to C's career were the result of her reaction to D's disclosures and their aftermath and the injury which she suffered as a result, not the other matters relied on by the defendants. I am satisfied that but for her injury, C would not have suffered the losses she established.
4. Mr Bird's figure was calculated on the basis that up until the 2013 tax year when C's net income dropped to $13,905, there had been no loss and that her earnings in the years that followed were lower than her 2012 earnings of almost $50,000, for 5 years until 2018, when they became $62,503. That was said to have resulted in total loss of earnings over 5 years, of $75,209, that being the difference between an assumed total income of $250,000 over that period, less what C actually earned, in total $174,791.
5. Thus the $75,209 figure, it was submitted, should form the basis of the calculation of a buffer. It was accepted, however that the calculation proceeded on the assumption that between 2012 and 2017, C's income would not have increased beyond $50,000. It also assumed that without the career interruptions she had repeatedly suffered, C would have earned no more than she actually earned in the years since 2018.
6. I can see no basis in the evidence for these assumptions. They do not accord with how C's income increased either before 2012, or from 2018. Had she not been injured as she was, I am satisfied that it is also likely that her income would have increased beyond $50,000 after 2012, as it did after 2018.
7. The accountant's report explains the basis upon which the calculations relied on were made. They were not challenged by evidence, nor addressed in submissions. That being so I am satisfied that the damages claimed must be awarded.

Past Superannuation

1. $21,406.68 was claimed for past superannuation. Mr Bird contended $4,750 should be awarded and the other defendants $7,125.
2. Given my conclusion about past economic loss, it follows that the amount claimed must be awarded.

Future Economic Loss and Future Superannuation

1. $150,000 was claimed as a buffer and the defendants contended that nothing could be awarded.
2. Given that no past economic loss was claimed after 17 March 2020 and what was disclosed in C's last tax return, it was the defence case that no ongoing loss in the future was established.
3. Section 13 is again relevant to assessment of damages for future economic loss, as are the authorities I discussed earlier.
4. C has recovered sufficiently to be working full time, but also performing work that exposes her to triggering events, which she cannot leave for good reason. I am thus satisfied that C's future economic loss must be assessed on the basis that the evidence also establishes in her case that there is also a real risk that given the nature of her injury, her work and what it exposes her to, that her capacity to perform that work will also at times in the future be adversely affected.
5. Contrary to C's situation before she was so significantly damaged by Mr Bird's acts, given the nature of her still ongoing ill health, her guarded prognosis and vulnerability to exacerbation of that condition, she must also be awarded a buffer, which I also assess at $111,000.

D's damages

1. In total $830,000 plus costs, disbursements and interest was claimed. Mr Bird's case was that no more than $25,000 would be awarded and the other defendants no more than $85,000.

D's psychiatric injury

1. C's evidence was that after her disclosures D regressed. She had totally lost all capacity for emotional regulation, so her behaviour became extremely challenging. She was having emotional meltdowns time and time again, day after day. D had significant trouble leaving C for anything and wanted C to be with her 24 hours a day. It took C a long time to get D back to her kindergarten after the JIRT interview, whereas previously, she was incredibly happy and safe there. She agreed in cross examination that after 9 months of counselling she was back on track and had a good start at school, but D suffered other problems.
2. While C did not now accept that D had fully recovered, despite having said so in 2014, she considered that D was strong and resilient and had made a good transition to school. However she had been advised that with early childhood trauma, vulnerabilities meant that it was common for children to be retriggered back into trauma, particularly around developmental stages and so D's counselling file would remain open until she was 18.
3. In fact D was retriggered into trauma by the Royal Commission into Institutional Responses to Child Sexual Abuse. A month or two after she had given evidence in 2016, her teachers noticed, with the result that the following day D was seen by a counsellor at the Child Protection Unit.
4. Both Dr Robertson and Dr Kasinathan assessed D in 2020, when she was aged 13. They were not called to give concurrent evidence.
5. Their reports referred to counselling records which recorded D having suffered nightmares and wanting to be constantly close to her mother, deterioration in her mental state and classroom behaviour at times and irrational fears about safety of others, after Mr Bird's assaults.
6. In his report Dr Robertson referred to age at the time of victimisation being a significant prognostic factor, with younger age correlating with poorer long term outcomes. An analogy was drawn with asbestos exposure, where potentially catastrophic consequences may not be realised for many decades.
7. On the assumption that Mr Bird had abused D as she disclosed, in their joint report Dr Robertson and Dr Kasinathan agreed that she developed a diagnosable psychiatric disorder and was likely to have experienced transient exacerbation of her symptoms, likely attributable to her mother's contributions to the Royal Commission. Fortunately, there was no evidence of psychopathology at the time of their examinations, when she was following a normative trajectory.

Non-economic loss

1. $400,000 was claimed. Mr Bird contended $25,000 would be awarded and the other defendants $50,000.
2. The harm which D suffered, pain and suffering and aggravated damages for injury to the her feelings caused by insult, humiliation and the like, must also be taken into account in her case, in the way that I explained in B's case.
3. It is difficult to compare the seriousness of Mr Bird's assaults on B and D, but fortunately all that D suffered before she recovered to her present position, does not seem to have been quite as serious as all that B suffered. D has also fortunately proven to be resilient enabling her also to recover well from the serious injury Mr Bird caused her.
4. Still the evidence established that D suffered a very serious injury for a child as young as her, one which she would not have suffered, but for his assaults.
5. I am satisfied that this must also result in a damages award which includes a component of aggravated damages.
6. Had D not recovered as well as she has, that award would have had to be greater. But account must also be taken of what D continues to risk during the remainder of her life, as the result of what Mr Bird did to her when she was such a young child.
7. I have thus concluded that D must be awarded damages of $260,000.

Exemplary Damages

1. $200,000 was claimed while Mr Bird contended nothing should be awarded and the other defendants contended for the $10,000 discussed in Gersbach.
2. All the considerations which I have discussed in B's case, apply equally to D and I will thus not repeat them.
3. Given the nature and seriousness of Mr Bird's assaults on D and the need for both punishment and deterrence which also arises in her case, I am satisfied that she must also be awarded exemplary damages of $70,000.

Future out of pocket expenses, future economic loss & superannuation.

1. A buffer of $30,000 was claimed for future out of pocket expenses and a buffer of $200,000 for general diminution of D's earning capacity. Mr Bird contended that nothing should be awarded and the other defendants argued $25,000 would be awarded in respect of both future economic loss and future out of pocket expenses.
2. For similar reasons to those given in relation to B, I am also satisfied that given the nature of the injury which D suffered, her resulting susceptibility to further injury and the retriggering of her condition during the milestones in her life, I am satisfied that there must also be buffers awarded for these heads of damage of $25,000 for future out of pocket expenses and $100,000 for future economic loss and superannuation.

Costs

1. The usual order as to costs is that costs as agreed or assessed follow the event. In each case that would be an order against the defendants.
2. In the event that the parties wish to be heard, they should approach within 14 days.

Orders

1. For the reasons given, verdicts must be entered against all defendants. The parties should file proposed orders, including as to costs, which reflect the conclusions which I have reached, within 14 days.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 October 2020