RJ bht RPC v State of New South Wales

District Court of NSW|2023-10-25

The proceedings before the court

The plaintiff, who was born on 8 March 2006, suffers a mild but relatively obvious intellectual disability by way of low IQ. He brings a claim for damages for negligence through his tutor ("Mrs RPC"), arising from acts or omissions of the defendant's staff at X School ("the school") in relation to an incident occurring at the school on 23 September 2019. The incident in question was that the plaintiff, who was then 13 years of age, was sexually assaulted by a 17-year-old student while he was using one of the school toilets.
The defendant denies liability and causation.
The particulars of injury and disabilities are set out in the section of this judgment concerning damages.
The hearing was adjourned part-heard on 25 October 2023 to 7 February 2024, due to health issues suffered by the tutor, who is also his mother. I have retained the transcript numbering system used for the second tranche of the proceedings in February 2024 although it overlaps with the first tranche.

The evidence

The plaintiff and his mother gave evidence and were cross-examined.
Dr Rikard-Bell and Dr Jungfer, who had provided expert reports, including a joint report, were cross-examined concurrently.
The defendant called no lay witnesses.

The circumstances leading to the assault

The plaintiff was a student at a school offering a special support unit providing teaching and other services for about 60 children who have disabilities requiring additional supervision and assistance. Although in separate classes because of their ages, it was convenient for the school to all of these children "intermingling" (Tcpt 2) in the playground as a large group, which meant that the plaintiff and other students were spending time with other students who were older than him. He was also travelling to and from school with older boys. This meant that he was exposed to conversational topics beyond that which was appropriate for his age. The school was aware of this problem and had told his parents they were trying to encourage him to stay in his year group.
Earlier in 2019, it had become increasingly evident to the plaintiff's parents that the plaintiff had discovered "sex and related activities" (defendant's submissions, paragraph 9) through these activities, and had been exchanging messages and information about sexual topics from a student at this school who was three years older than he was. I will refer this student as "Z".
The plaintiff's mother discovered Z's phone messages to her son on 1 August 2019 and notified the plaintiff's class teacher the following day. Z was already known to the school for attempts to groom and harass younger students (Tcpt 2 - 3), including the plaintiff (defendant's submissions, paragraph 33), constant truanting and a propensity for fighting after school. Against this background, it was particularly concerning to his parents, as well as to the school, that the messages sent by Z to the plaintiff's phone included a request for the plaintiff to meet him at the school toilets and perform oral sex on him.
Although the school did not see the actual messages about meeting in the toilets (which his mother had deleted immediately), the school took her complaints seriously and there was discussion about what to do. The school arranged for the plaintiff's teacher to give the class a "big chat" on 6 August 2019 about the dangers of sending and receiving "bad messages" (submissions, paragraph 17) and show a film about sexual harassment. The plaintiff was warned to stay away from Z and offering counselling, and Z was spoken to on 8 August 2019 and told to keep away.
The school had been aware for some time of the potential for misuse of toilets by students. Some of the toilets, which were for support staff, had locks, and students could only use them if the keys were obtained from a teacher. It is unknown what other steps the school took to prevent misbehaviour, but one of the teachers (by coincidence on the day of the incident the subject of these proceedings) personally accompanied one of her students in order to supervise that student's use of the toilet. The significant truancy problems with Z meant that he would wander the corridors when he should have been in class and, as his message to the plaintiff about meeting in the toilets confirms, that was a spot he liked to visit.
No consideration was given to playground "intermingling" (Tcpt 2), toilet and/or truancy issues was made prior to the incident, despite the prior complaints and concerns of the plaintiff's mother. Then, on 23 September 2019, seven weeks later, the plaintiff was assaulted by Z in one of the toilets.
This happened as follows. The plaintiff obtained permission to leave the classroom to go to the toilet, but it was occupied by one or more students being supervised by a teacher, This meant he needed a key for the locked toilet. Z, who was loitering in the corridor, obtained a key from an unknown person, unlocked and entered the toilet with the plaintiff and then, getting hold of him, anally penetrated him.

The sexual assault

The plaintiff described the assault at Tcpt 16. He gave a similar account to the police (see the record of interview at p. 146). A helpful summary is set out at paragraphs 4.6 - 4.9 of Dr Jungfer's report (Exhibit 1, p. 11). The plaintiff's intellectual deficits mean that the account of what happened is best gleaned from what he told the expert psychiatrists, Dr Jungfer and Dr Rikard-Bell, and from his contemporaneous answers to police in the record of interview.
The plaintiff said he had asked to be excused from class during a lesson in order to go to the toilet. Mr Best submits that the plaintiff must have had a key given to him by his own teacher, but this is inconsistent with all the accounts of what happened and would have been unnecessary if the unlocked toilet was free, including the plaintiff's statement that his teacher did not have a key (Tcpt 3). I am satisfied he did not have his teacher's key in his possession. The plaintiff's evidence was: "That day, I wanted to go to the bathroom, so I asked my teacher if I can borrow or take a key, but she didn't have the key to go to the bathroom downstairs, because there was a disabled bathroom that you needed a key for, and another one was unlocked, but someone was occupied and using it, and it was only one bathroom." (Tcpt 16).
The plaintiff described the route to both toilets to police in the record of interview; it involved descending stairs and going through a gate. As he confirmed to Dr Jungfer (Exhibit 1, p 11), there was one toilet without a lock (which was a toilet for use by one person only: Tcpt 16) and, a short distance away from that toilet, another which was kept locked.
It was not until the plaintiff arrived at the unlocked toilet (which the plaintiff said had only one toilet cubicle inside) that he discovered it was occupied by another student. Although the plaintiff did not say so in his evidence, he told Dr Jungfer that this student "was supervised by a teacher" who was standing outside the toilet. The plaintiff told Dr Jungfer that he asked this teacher for the key to the locked toilet but Dr Jungfer records the plaintiff saying the following about that teacher's answer, namely "she said she did not have the key".
This is a significant difference in evidence. Which version should I accept? For the reasons set out by Lee J in Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369 at [122] - [125], I consider that contemporaneous documentation will be the best guide.
The plaintiff was interviewed by police shortly after the incident and described what happened in some detail. He specifically mentioned this other teacher to police several times. One of these is in record of interview answer 122, where he is recorded as telling police that he asked this teacher for the toilet key and she replied "Okay, but please don't lose them" (which suggests the teacher supervising the other student did have a toilet key, although the plaintiff does not say she produced it).
The plaintiff then went to the other bathroom, which was locked. While he was near the locked toilet Z, who was walking in the corridor, away from his own classroom for no explained reason, saw this, came up to him and said that he would ask a teacher for the key. The plaintiff said he could get the key himself, and told Z that "I am going to get a key anyway".
The other teacher supervising the student was still nearby. When Z came back with a key, the plaintiff told police that he then "walked back to the teacher and I'm like, thank you anyways", meaning he now had a key to use for the other toilet and would not need one from her. He similarly said (at record of interview answer 84) that he was "gunna get the key from, ah, a teacher that was standing next to the old toilet but he (Z) already got the key and I'm like, Here you go, to the teacher. I forgot the teacher's name."
The contents of the record of interview were put to the plaintiff, who agreed that this was what was said: "Q. I want to suggest to you what you told the police officer was that he got a key from someone, so [Z] left and went and got a key. Yes? A. Yes. Q. You told the police officer, "I was going to get a key from a teacher that was standing next to the old toilet, but he already got the key," so [Z] already got the key. A. Yep. Q. "And I'm like, 'Here you go,' to the teacher," and you couldn't remember the teacher's name. A. I think it was." (Tcpt 58)
This was an unfortunate interruption as the plaintiff appeared about to say the name of the teacher, which would have been of assistance in determining whether a teacher was in fact present. Instead, Mr Best put it to the plaintiff that he was conflating this discussion with another teacher to the conversation the plaintiff had with his own teacher about needing to leave the classroom to go to the toilet: "Q. I want to say you also said you were actually in your classroom at the start. A. Yep. Q. You told your teacher, "'I need to go pee,' so she said, 'Okay,' and then I thought I was going to go to the support one first, but there was someone there." That's right, isn't it? You said to the police officer, "So I'm like, 'Oh my god, I need to go to the other bathroom,' and then I went I ran to the other bathroom, then it was locked." That was right, wasn't it? A. Yeah. Q. "Then I tried to wait until the support one was out, but they took so long." That was right, wasn't it? A. Yeah. Q. "And then I went back to the bathroom, then [Z] came." That's right, isn't it? A. Yeah." (Tcpt 58 - 9).
Mr Best then put this line of questioning to the plaintiff a second time and, once again, the plaintiff simply agreed with what was being put to him: "Q. You told [Z], "I don't need your help to get a key," and he says, "I'm going to get one anyway." Right? A. Yes. Yes. Q. "And then I went, like there was a teacher there that had a toilet key too." A. Yeah. Q. You found a teacher with the toilet key? A. Yeah. Q. "So I went to the teacher and I said, 'Can I borrow your key so I can go to the bathroom, since the support one is busy? Well, the other old one,' and then she was like, 'Okay, but please don't lose them.'" She gave you a key, didn't she? A. Yeah. Q. "So I was, like, walking, and then [Z] said, 'I've got the key,' and I'm like, 'Never mind.'" By this stage, you had a key and [Z] had a key, didn't you? A. Yes. Q. I want to suggest do you remember this? I want to suggest you told the police officer - A. Sorry? Q. No, that's okay. I want you to listen to me. You told the police officer, "So I walked back to the teacher, and I'm like, 'Thank you anyway,'" and you gave that teacher back the key? A. Right. Q. Do you remember that? A. No. Q. I want to suggest you told the police officer that you thought that teacher was with Ms F. She might have been a teacher's aide with Ms F. A. But that sorry. I yeah, I think that's how I remembered it. Q. The question was you couldn't remember who the teacher's aide was or who you got the key from. She was with Ms F; you didn't remember her name. The police officer asked you, "So you gave the teacher back the key?", and you said, "Yep," and the police officer then said, "Um, what happened after that?", and you said, "I followed [Z] into the bathroom." Is that right? A. Right. Q. You got a key from a teacher. A. Yep. Q. You went back to the toilet. A. Yeah. Q. [Z] was there with his key, too. A. Yep. Q. You went back to the teacher - A. Yeah. Q. or the teacher's aide; gave her back the key. A. Yep. Q. Came back to the toilet A. Yep. Q. and then followed [Z] to the bathroom. A. Yep." (Tcpt 59-60)
The plaintiff's answers show that he was simply agreeing with everything Mr Best said. The plaintiff's conflicting answers do not assist in determining whether or not there was a teacher or teacher's aide present who saw Z using the toilet key to help the plaintiff go into the toilet. If there had been another teacher there, and that teacher saw Z getting a toilet key for a student Z was supposed to have been grooming and had been told to remain away from, the question arises as to why that teacher did not intervene.
I have a choice between accepting the plaintiff's answers to the skilled questioning of the police and Dr Jungfer or the plaintiff's answers to questions from counsel that both medical experts considered to have produced answers that were attempts to please rather than to answer accurately. The police questions have the added advantage of being very close in time to the assault. For the reasons set out more fully below, I propose to regard the plaintiff's answers to the police and to Dr Jungfer as reflecting more accurately what occurred.
What is not in dispute is that the plaintiff, who by the time the key was obtained was "busting" (record of interview answer 132), went into the toilet after Z unlocked it. It was a boys' toilet with four cubicles and a urinal and he stood at the urinal. He did not describe Z as going into the toilet at precisely the same time. What he said at record of interview answer 65 was: "And then he opened the door somehow, he wanted to go pee, if he didn't actually say he was gunna pee or anything. And he was actually going down the hallway. He was, he went past the bathroom, so I'm like, he didn't need to go to the bathroom. And that's when he, you know, yeah. Um, then he started, you know, touching me, touching my private part, and I'm like, No, stop. And then he, he put his thing in my, you know, ah butt…"
This differs from his description he gives at record of interview answers 133 - 147 where he said that Z went into one of the cubicles while the plaintiff was standing at the urinal.
Mr Best has provided a reconstruction that the plaintiff then returned to the classroom a third time to return the key and then went back to the toilet for a third time where Z still was, and that it was after this that the assault occurred (defendant's submissions, paragraphs 38 - 40), an unlikely scenario that I do not accept. Nor do I accept Mr Best's assertions that the plaintiff "knew" what he was doing (submissions, paragraph 39) (for example, that he "knew how to get himself out of a bad situation"). I also reject Mr Best's submission that there is no evidence Z was truanting from class (submissions, paragraph 40) as he was clearly hanging around in a corridor away from the classrooms.
On any of the descriptions of the incident that he gave, the plaintiff was a thirteen year old who was readily overborne by an opportunistic and larger predator three years older than he was, and who was truanting from his own class at the time, at a time of great vulnerability in that he was "busting" to go to the toilet after finding the usual student toilet occupied.
Dr Jungfer has set out the distress of the plaintiff, his reasons for fearing saying anything about the assault and the circumstances in which he later left the school (at paragraphs 4.11 - 4.14). Dr Rikard-Bell has provided similar observations.

After the assault

The plaintiff's mother was overseas. The first person he told about the incident was another boy who was travelling home with him, that same afternoon. He said that he and Z were in the "new boys bathroom" and had "had sex". The other boy asked, "What kind of sex?" and the plaintiff replied that "Z's penis went inside him", that he liked it, but that he wouldn't do it again (Exhibit D, p. 4). The other student repeated this information to the principal the next day. The police were called and statements were taken.
The defendant has called no evidence and challenged the admissibility of most if not all school records and statements to police made by staff, as well as their authority to make statements binding the defendant. At the commencement of the hearing, I made rulings on admissibility which have largely favoured the admission of this material. No oral evidence was called after I made those rulings although the delay occasioned by the adjournment of these proceedings part-heard due to the ill health of the plaintiff's mother (who is also the tutor) meant that the defendant has had the opportunity to consider its position.
Mr Best submits that the evidence of the plaintiff and his mother cannot be accepted because there are "inconsistencies in their evidence" that "reflect poorly on their credit" (submissions, paragraph 73). He also relies upon a number of concessions made by the plaintiff in his evidence, and to the "vehemence" he submitted was a feature of the evidence of his mother (Tcpt 65). While the significance of these issues was lessened when both expert witnesses expressed views about the usefulness of the cross-examination of the plaintiff as an evidentiary tool, that evidence remains an important part of the factual matrix.

The plaintiff as a witness

The defendant's outline of submissions (at paragraph 1) describes the plaintiff as having "a mild intellectual delay". Dr Rikard-Bell describes it as "mild to moderate' (CB 20, 34), noting a diagnosis of ADHD as well (CB 34), while Dr Falcon describes it only as a "likely" mild intellectual delay (CB 48), although stressing that the plaintiff is incapable of managing his affairs and in particular financial matters.
The plaintiff is one of twins in a very close-knit and loving family which includes two older siblings. There was evidence from the first that he was lagging behind his twin sister but the level of family care was such that his intellectual delay was not identified until he was about seven years old. He was then transferred to a special school. His history demonstrates continuation of parental and sibling care and support to an exceptional degree, which has resulted in his making the most of his capacities in his life to date. At the same time, his intellectual delay is immediately obvious to any observer.
The plaintiff's presentation and demeanour in the witness box was one where his intellectual limitations were immediately apparent. He was at all times courteous and indeed charming, smiling and doing his best to answer questions helpfully. He was quick to pick up on how to answer questions to please the questioner, a feature of most of his testimony, as Dr Jungfer and Dr Rikard-Bell both noted.
The degree to which he understood the questions is problematic. There were inconsistencies in his answers which are best explained by their analysis by Dr Jungfer and Dr Rikard-Bell, both of whom had the opportunity of reading the transcript during the adjournment of these proceedings. Rather than set those out as evidence of what did or did not occur, I prefer to adopt the approach that these doctors recommended.
One aspect of the plaintiff's evidence, however, remained consistent. I am satisfied that he was not a willing participant in any way to what happened to him. His evidence is firm, and is uncontradicted by any evidence to the contrary. His evidence about the approaches the older boy made to him beforehand and to how he reported this to his mother is similarly firm and consistent.
The plaintiff was cross-examined about interest in sex both before and after the incident. Again, some of his answers appear inconsistent, particularly in relation to his conduct afterwards. Mr Sheldon SC submits that I should not accept those answers as factually demonstrative of what actually happened.
Unlike the many protections for victims of sexual assault in criminal proceedings, there are no protections for witnesses in civil proceedings where the factual matrix includes allegations of sexual assault (Lehrmann v Network Ten Pty Limited (Livestream) [2023] FCA 1452 at [23] - [24]). Mr Sheldon SC took no objection to the questions put to the plaintiff in cross-examination. I agree that these questions were sufficiently fair as not to attract any sanctions under s 41 of the Evidence Act 2005 (NSW).
However, that does not mean that the evidence of the plaintiff (or his mother) is of little value or should be disregarded, or that their concessions should be accepted. In Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369 at [112] - [118] (under the heading "Assessing the Credit of a Complainant of Sexual Assault"), Lee J analyses the difficulties in determining how to analyse "counterintuitive" (at [115]) behaviour by the victim of a sexual assault, noting that a "common thread" (at [186]) of reliability may be inferred despite apparent inconsistencies or even lies. Additionally, there is no right or wrong way for a person to behave during or after grooming or assault; Lee J noted academic discussion of this as well as evidence to this effect being admitted in criminal trials (at [115]). I note similar remarks by Basenko J in Roberts-Smith v Fairfax Media Publications Pty Limited (No 41) [2023] FCA 555 at [2190].
I am satisfied that the plaintiff's behaviour, before the grooming which preceded the incident, was that of any young boy just entering his teens, and that any interest he showed in sexual activities after these events is as a result of the trauma that he underwent which led to what Mr Sheldon SC termed his "sexualisation".
While the plaintiff's intellectual delay probably protected him from the full force of the cross-examination and questioning generally, that was not the case for his mother, who is also his tutor in these proceedings. Mr Sheldon told the court that she "took herself to hospital last night and is in hospital at the moment, your Honour" (Tcpt 195). The proceedings had to be adjourned for some months. When the hearing resumed, she sought and was granted permission to appear via AVL, as did the plaintiff.

The evidence of the plaintiff's mother

One can only give praise to Mrs RPC as a loving and protective mother. Her care for his wellbeing has ensured that he has grown up well despite facing formidable obstacles. This protectiveness includes her immediate notification of the school about the attempts of the 17-year-old Z to meet the plaintiff in the toilets for sexual activity, her response when the event in question occurred and her actions immediately after the incident (including her dealings with the teachers). She made an immediate report to the school, took away the plaintiff's phone, gave him advice and actively sought to find out what was happening at the school.
Mrs RPC's demeanour in the witness box, to my observation, was that of a witness under great stress. Just as she had immediately deleted many of the posts on her son's phone, she has struggled to discuss matters that she had coped with by trying to forget. She appeared conscious of some of the inconsistencies in her answers and this added to her discomfort. Although not intellectually limited herself, she is a simple and direct person, dedicated to doing her best in difficult circumstances. English is not her first language and although she appeared to understand the questions, it was apparent that there were times when she was struggling to express herself.
Mrs RPC told the court that shortly before the incident, she had left the country to fly to Europe, leaving the plaintiff in the care of her husband. While she was in Europe she received an email from the police (Tcpt 105) and came home immediately. She took the plaintiff to the police so that statements could be prepared and the matter investigated.
She was asked why she did not immediately contact the school: "Q. Why didn't you want to have any contact with the school? A. I was really upset. Q. What were you upset about? A. Because I told them that someone was following my son, and he was the guy who - who did it. Q. Why did that upset you and cause you not to want to speak to school? A. Because their behaviour, they were blaming my son from the beginning." (Tcpt 106)
Mrs RPC said that this occurred shortly before the school holidays, and that she began looking for another school: "Q. Do you recall that this was shortly before the school holidays started? A. Yes. Q. What happened during the school holidays? A. I when the incident happened, ..(not transcribable).. I start looking for another school. Q. Why was that? A. Because I didn't want [the plaintiff] to go back to the same school. Q. How as [the plaintiff] at this stage? A. He couldn't sleep, he was very aggressive, sleepless, he withdrawn from everyone, he didn't want to talk about anything." (Tcpt 106)
Mrs RPC also began looking for professional help for her son: "Q. Did you seek help for him? A. Yes. Q. Who from? A. First he saw in the hospital, a psychologist. Q. Do you remember her name? A. Alana Martin. And then I - I seek private psychologist in Bondi Junction. Q. Do you know when it was that you first saw a private psychologist? A. I don't remember. It was around that time." (Tcpt 107)
In cross-examination, it was put to Mrs RPC that the plaintiff only saw Ms Martin in November 2019 and that he did in fact stay at the school until June of the following year, when he was suspended for inappropriate sexual conduct. It was put to Mrs RPC that the reason the plaintiff left the school was because of this suspension. Mrs RPC agreed that the plaintiff had been suspended in June 2020 but repeated that this was not the reason for her wanting to change his school (Tcpt 165 - 169). It was put to her that he was asked to leave the school as a result of his conduct, which she denied (Tcpt 169).
Mrs RPC gave the initial answers set out above early on in examination-in-chief. It is clear that this evidence kaleidoscopes the timing and is wrong in content as well. I accept her evidence that she did not want her son to keep on going to the same school after what happened, but it is clear, from the email exchanges between them, that she was consulting Ms Martin about what to do in November, and that the plaintiff did not change schools until after June 2020 after he was suspended.
Mrs RPC was also cross-examined about her son's sexual activity with other children at the school after the assault by Z. This included a consensual incident of sexual exploration in March 2020. Ms Martin's notes of her interview with Mrs RPC recorded the following: "[Mrs RPC] is worried it will happen again. She sees the last incident as consensual, but is worried he would move to exploring without consent. He said he wouldn't do that and no other indicators that he would do that. She wants to him to know exploring doesn't have to happen in a bad way. Acknowledged the complexity due to his age, sexuality, confusion, and learning delays. [Mrs RPC] said it's important he respects space, body, and others." (Tcpt 159)
Mr Best says that this evidence shows the assault played very little part in the complex makeup of the plaintiff's personality, and that Mrs RPC is a completely unreliable historian which makes fact-finding even harder. This evidence is also asserted to show that the plaintiff was a problem in that he was suspended for sexual misconduct in June 2020, although Mrs RPC initially denied this. Mr Best submits that this demonstrates the unreliability of the plaintiff and his mother as witnesses.
I take a different view of this evidence. I consider that this evidence of post-assault misconduct and the difficulties Mrs RPC was having with her son disclose the degree of damage done by the assault. The plaintiff and his fellow students knew he had had some form of sexual activity and this knowledge impacted on their behaviour. Mrs RPC's concerns that this might turn into nonconsensual activity is not proof that the plaintiff's assault had little effect, but that he had been sexualised by it and continued to be so up until he was suspended. There is a flavour in Mr Best's submissions of Mrs RPC's description of the school's response to the assault, namely to blame the plaintiff "from the beginning" (Tcpt 106).
Similar submissions were made concerning the role Mrs RPC played in the dropping of the criminal charges against Z, which occurred days before his suspension. She denied that she had played any role and said she did not know who "the DPP" was. She was shown an email she sent to Ms Martin, the senior social worker at the Child Protection Unit (also described in other medical reports as a "psychologist"), which was as follows: "After a lot of thinking about pros and cons and talking to [the plaintiff] about it, we don't want to go ahead with that as [the plaintiff] wants to forget about the incident, and I don't think it's worth it as the main punishment could be a smack on the wrist. And I think it's not worth it to put [the plaintiff] through that at all, as it could also be that defendant could be found not guilty, and that will teach my son there is no justice. I am upset still, but making myself be to be calm as it doesn't help my health". (Tcpt 161 - 2)
Mrs RPC said she had forgotten about this. Clearly she did play a role in the dropping of the charges. She agreed that she had discussed whether this would be a good idea with Ms Martin.
Although Mr Best submitted that this was further evidence of the unreliability if not untruthfulness, of the plaintiff's mother, I consider the important point here is that one of the family's reasons for their decision not to put the plaintiff through the distress of the criminal proceedings is an indication of the degree of distress from which the plaintiff was suffering. This is not a plaintiff who has recovered from his distress within the nine-month frame suggested by Dr Jungfer (namely to June 2020).
It was also put to Mrs RPC that she had displayed an interest in obtaining money in the form of a claim against the school and a claim for victims' compensation (the inference being that she was looking to make money from what had happened to her son): "Q. You agree that you then said that you're still feeling very strong to sue the school, as "I feel someone must be accountable for this". A. Yes. Q. "But I know deep down that there is not justice at all". A. Mhm, yes. Q. "I hate to think that way, but I feel that way when I talk and asked about my son's right. They told me because he was assaulted, he'd get money from government. Do you know about this?". A. Yes. Q. Isn't it the case, madam, that it was your decision that is, your decision in concert with your husband and with [the plaintiff] that you didn't want [the plaintiff] to go ahead and be a part of the Court case against Z? A. After seeing this email, I don't remember trying to take Z to court." (Tcpt 162)
I do not regard this as evidence that Mrs RPC was anxious for compensation. She was discussing seeking Ms Martin's advice as well as expressing her own opinions on a large number of matters. They were appropriate matters to raise with her.
Mrs RPC was cross-examined about telling Ms Martin that the plaintiff was settled into his new school where he had made friends and was happy (Tcpt 169 - 174) and that he needed no further treatment. It was put to her that she was acknowledging that he had completely recovered from the post-traumatic stress disorder that was diagnosed after the incident almost a year earlier (Tcpt 173 - 174). It was put to her that he was enjoying jiu jitsu and music and was socialising well (Tcpt 178 - 180), which was referred to as further evidence of his good recovery.
The plaintiff clearly did make a good recovery from what could have been a significant trauma in his life. However, statements about being happy, from the plaintiff and his mother, are of limited assistance in determining what his state of mental health really was. It is necessary to see these answers against a framework of the plaintiff demonstrating behavioural problems which, according to Mr Best, resulted in his suspension from the school in June 2020 and change to another school, some or all of which could be factors in his decision not to sit for the Higher School Certificate. These were important, perhaps lifechanging, events for the plaintiff, and more significant as evidence of the level of stress he was under than whether he was enjoying jiu-jitsu classes.
The most important aspect of the plaintiff's mother's evidence is the promptitude with which she raised her concerns about the plaintiff both before and after the incident, particularly after she became aware of his increasing interest in sex after Z began to focus on him. Her concerns are evidenced by text messages, emails and notes of meetings with the school. There can be no doubt she was not only a devoted but perceptive mother who took every step possible to assist not only her son but also the school he was attending.

Witness credibility and sexual assault claims

As noted above, Mr Best submitted (submissions, paragraphs 73 - 79) that the evidence of the plaintiff and his mother should not be regarded as reliable because of inconsistencies between their evidence and contemporaneous documentation. The three specific examples are when and why the plaintiff had changed schools, the circumstances in which RJ stole money from his father and the circumstances in which the criminal charges were dropped.
Although I did not have the benefit of the observations of Lee J in Lehrmann v Network Ten Pty Limited (Trial Judgment) at [112] - [118] and [186] at the time, I was able to seek guidance from the expert witnesses as to how I should deal with these conflicting and incorrect accounts of what happened. As the experts had had the opportunity to read the transcript of the plaintiff's evidence, they were able to provide careful and considered responses, as set out below.

The expert evidence

Dr Rikard-Bell (for the plaintiff) and Dr Jungfer (for the defendant) provided reports, participated in a conclave and were concurrently cross-examined. This included the question of what to make of inconsistent answers given by the plaintiff and his mother.
Dr Rikard-Bell was critical of the way that the plaintiff had been cross-examined, referring to complex sentences and words that were hard to understand. He said the leading nature of the questions meant that the plaintiff, who was anxious to please, merely agreed: "WITNESS RIKARD-BELL: Yes. And there is a tendency - I had some concerns about his tendency to answer affirmatively to a lot of questions, and then there were a lot of leading questions such as "Do you agree that you did this and this and this". So, some of the history I obtained was obviously from the mother corroboratively. But what was in the transcript was - I would agree - that he said he was happy with adults and in social situations." (Tcpt 50)
Dr Rikard-Bell went on to say that while the plaintiff had indeed said this, the plaintiff's mother had provided different information.
Mr Best asked Dr Jungfer what she thought of his manner of questioning of the plaintiff. She gave a thoughtful and considered answer: "BEST: You've heard Dr Rikard Bell say that he has some concerns regarding RJ's answers to the questions put to him in cross examination? WITNESS JUNGFER: Yes. BEST: You read the transcript? WITNESS JUNGFER: Yes. BEST: What is your opinion in respect of what Dr Rikard Bell raises regarding concerns he has in respect of RJ's answers? WITNESS JUNGFER: On reading the transcript, I formed the impression that he would provide inconsistent responses, saying that there were problems and then there weren't problems, and that he - and it's likely - if not the reason - is to do with his intellectual disability. Clinically, when you interview people with intellectual disability, they will often provide the response they think people might want them to say or not respond very well, and hence my arguments in the conclave and in my reports that the most reliable thing is to look at what he is doing, what his functioning is, because that is relevant from the point of view of a DSM 5 diagnosis of whether or not a person has a psychiatric disorder. Not only do we need to focus on symptoms, but we need to focus on what is their functional impairment, or whether it is causing clinically significant distress which might lead a person to seek treatment. And if one looks at what he is doing functioning, both in his history when seen clinically and when examined and cross examined, he does not have a functional impairment, which supports my contention that he does not have - no longer has a post-traumatic stress disorder. I am not arguing that in the months after - the initial months - that he had problems, and he would've met the criteria; I am referring to what he is like now and going forward…" (Tcpt 53 - 54).
The parties kindly permitted me to ask both doctors to elaborate. Dr Jungfer said: "So I don't believe that the questioning from either counsel was excessively complex, but almost certainly I thought that, you know, did he want treatment, yes, and then in cross examination, no; he wanted to forget it. So there was this variability, and that's - it's important to say that's not - I didn't feel that was deception, because that's obviously something that you need to consider in the context of, you know, giving evidence. It's explicable on the basis of his intellectual disability, and hence my reliance on what he does, not what he says. HER HONOUR: So what you're saying is what he does rather than what he says in the transcript is the more reliable guide, is that right? WITNESS JUNGFER: In the context of someone with an intellectual disability, I think weight should be given to that, yes. HER HONOUR: I see. That's very helpful. Did you want to add to that, Dr Rikard Bell? WITNESS RIKARD-BELL: Yes, I would agree with Dr Jungfer in that there is concern about his wanting to please others and some of the inconsistencies that one might see because of his intellectual disability. Questions such as - I think one of the counsel asked, you know, whether talking about - I think he used the word "perfecto" and using terms like that, where - you know, asking him to agree or disagree. When asked a fairly closed question like, you know, "Is this correct or is it incorrect?", it does raise questions about his ability to understand the complexity of the question, even though it sounds like a simple question and he's expected to give a yes or no answer, he will want to give a correct answer of what he thinks the questioner is asking. So, I would be - I would agree with Dr Jungfer to put, to not put a great deal of weight on what he says. Now, with regard to his functioning, it's not saying there shouldn't be some weight, I think. But, it, it's important to understand that he will want to please others and there's quite a bit of evidence that he's wanted to please his therapist by underreporting symptoms. He's wanted to please his mother by denying certain things. The amount of difficulties and the amount of money that was, the credit card, was also, I saw inconsistencies there, that there was 10,000, 5,000, $30,000 mentioned in different capacities. So, his ability to accurately give information is a concern, and I wouldn't think that it's necessarily intentional or wanting to deceive. So, when it comes to functioning then this also is a, a, a complex area… (the remainder of Dr Rikard-Bell's answer dealt with another issue) (Tcpt 54 - 55).
Although Dr Jungfer said it rather more diplomatically than Dr Rikard-Bell, both doctors took the view that the answers given by the plaintiff, particularly in cross-examination, needed to be viewed with caution as inaccurate, stress-related or said out of a desire to please. Thus, the plaintiff's actions (and, insofar as they reflected the plaintiff's actions, his mother's understanding of the issues) were the best source of information about what happened to the plaintiff and how he had reacted to these events.
The answer is, therefore, to look at the plaintiff's actions, as opposed to cross-examination about whether the plaintiff was "happy" (Tcpt 169 - 174) in his new school and with new friends (and thus, by inference, recovered from the diagnosed conditions which arose from the incident). If this is done, a different picture is painted of the plaintiff's condition following the assault, particularly if I give greater weight to the plaintiff's contemporaneous description of events to police.
First, the question is when his behaviour in school began to change, and why. I am unaware of there being any school reports or meetings with the plaintiff's parents about his conduct prior to Z starting to groom and stalk him. It would appear, from the Head Teacher's statements to police on 10 December 2019, that the plaintiff first began making comments about sex and sending inappropriate pictures and messages in about June 2019. According to the Head Teacher's diary note of 28 June 2019 at 10.59 am, this conduct continued and a meeting was set up with the plaintiff's mother (Exhibit D, p. 4). Then, on 3 August 2019, the plaintiff's mother "contacted the school distressed stating she had seen inappropriate and sexual text messages and pornographic photos on [the plaintiff's] phone" sent by Z. The school organised for a counsellor to come "as she was greatly concerned for [the plaintiff's] welfare."
The damage flowing from sexual assault does not necessarily start from the date of the assault; the grooming process may itself be productive of harm, especially if intimidation is involved.
The plaintiff's change of behaviour in school not only changed after this grooming process commenced but continued after the incident itself. The plaintiff's involvement in other sexualised encounters with other children continued after the incident and into 2020 and on or about 25 June 2020 he was suspended as a result of this. While it is probably a coincidence that the criminal charges against Z were dropped a few days earlier, on 23 June 2020 (Exhibit D, p. 17), the plaintiff must have had some awareness of what was going on. The other students and the school would also have known that there were criminal proceedings on foot, as an Apprehended Violence Order against Z which was put in place in October 2019 was made final on 23 June 2020. The court was advised that Z was no longer attending any school within the NSW public school system. Not only the plaintiff but also many at the school are likely to have been some awareness of Z's exclusion and subsequent suspension.
Examining the plaintiff's conduct from about June 2019 to June 2020, and given the circumstances of his being suspended from school shortly after the criminal proceedings were dropped, I am satisfied that the plaintiff's psychiatric injury commenced prior to the actual incident and continued at least until he was suspended a year later. I am conscious, in arriving at this finding, that the question of when the plaintiff's psychiatric condition started is not dealt with by Dr Jungfer, but Dr Rikard-Jones has considered both the anger and distrust caused by the school's response as well as what he calls "erratic behaviours" over a long period before and after (Tcpt 42). This is one of the reasons why his assessment of the seriousness of the injury in terms of length and depth differs from that of Dr Jungfer.
Second, consideration of his behaviour after the incident and up until his suspension from school needs to be considered in light of the plaintiff's unsatisfactory conduct as a student as well as any potential stressors caused by school knowledge of the events, the ongoing prosecution and the circumstances of termination of his schooling by the suspension. Dr Rikard-Bell has referred to some of these factors, such as the damage caused by interruptions to schooling (Tcpt 40).
Third, consideration of his behaviour from July 2020 until the date of this hearing needs to take into account stressors such as changing schools as a result of the suspension following his sexualised conduct, sensitivity to third party knowledge of this and the impact of other decisions the plaintiff has made, such as his decision not to sit for the Higher School Certificate and then changing his mind about sitting for the Music examination (which in fact took place at around the time of cross-examination). These decisions suggest there is still some turmoil in his life, not all of which can be attributed to other causes. Again, Dr Rikard-Bell has made general reference to ongoing stressors of this kind, whereas Dr Jungfer has not, such as his observations about the plaintiff stealing a substantial sum of money from his father (Tcpt 42 - 45).
Fourthly, there is the question of the plaintiff's future mental health. At Tcpt 39 Dr Rikard-Bell said: "But just to recap that he, he did say - he did express feelings of disgust about what happened to him. It was reported that he still had difficulties enjoying himself and relaxing in certain social situations, that he has had some erratic behaviour, such as his credit card behaviour, and he's not comfortable around certain adults. And there's sort of some anger and dysphoria at times. So I think that there are some symptoms that could be a concern for him going into the future."
I accept that Dr Rikard-Bell now takes a more optimistic view of the plaintiff's future than he did in his earlier reports (Tcpt 41 - 42). However, Drs Jungfer and Rikard‑Bell both agree that the plaintiff's behaviour, when it began to change, is reflective of the incident with Z, because the plaintiff had been (to use Mr Sheldon SC's description), "sexualised" (Tcpt 78) and, more importantly, that if any such incident occurs again, he is three times more likely than the average member of the community to suffer psychiatric injury.
In the circumstances, I prefer the opinion of Dr Rikard-Bell as to the likely length and severity of the plaintiff's ongoing psychiatric condition.
I also reject the defendant's submission that the only reason the plaintiff needs help in the future is because of his intellectual disability, not because of his increased vulnerability if such an incident happened again. The defendant must take the plaintiff as it finds him.

The duty of care

The defendant submits that the duty of care owed by the school to the plaintiff is as set out in Commonwealth v Introvigne (1982) 150 CLR 258 at 269, where Mason J described that duty was being that "reasonable care is taken of them whilst they are on the school premises during hours when the school is open for attendance." It is not in dispute that the duty is non-delegable.
The nature of the school/student relationship was expressed broadly in Commonwealth v Introvigne, and there are additional factors to which this statement of principle does not refer. In particular, it is an exception to the general rule that there is no duty to prevent harm from criminal conduct: Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 at [26]. The principles in Modbury Triangle Shopping Centre Pty Ltd v Anzil were specifically referred to by Gleeson CJ in New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4 at [2]. Gleeson CJ's observations (in the opening paragraph of his judgment) are very far-seeing about changes to the law in relation to duty. It might be said that it is now over forty years since Commonwealth v Introvigne and over twenty years since New South Wales v Lepore, and the nature of the duty to prevent harm from criminal conduct such as sexual assault (whether physical or by use of technology) is a duty which has increased in terms of obligations to students.
The defendant submits that the duty of care relates only to ensure the safety of students "in a context where early to mid-teenage males are known, from time to time, to engage in sexualised behaviours, to use social media for this purpose" (submissions, paragraph 44).
I do not accept that, on the facts of the case, this is the nature and extent of the duty. As is stated in the plaintiff's submissions, the facts in this case show that well before the assault, the assailant had manifested a clear intention (in writing, in the form of text messages, as well as orally) to pursue his sexual interests in a manner involving predatory behaviour including being seen to pursue and harass his victims, "truanting" from class and walking around outside the classroom and in the corridors of the school in search of victims. In particular, the school was aware of the assailant's interest in and pursuit of the plaintiff and of his specific proposal to the plaintiff to meet him in the school toilets. The duty of care was to protect the school students, and in particular the plaintiff, from a known and dangerous harm.

Knowledge and foreseeability of harm

There is extensive evidence of the school's prior knowledge of the likelihood of Z, a 17-year-old student with a long history of prior sexual aggression to younger students, was targeting the plaintiff. The following evidence is identified by the plaintiff: 1. The extent of the knowledge: In Exhibit D (pp. 1 - 2), where the police identify the informants, these persons are the Principal, Vince-Principal and Head Teacher. Each of these was aware of the events prior to the assault about which they gave the police information. The police summarised this as follows: "The POI is known for frequently truanting school but when he is at school he appears to be quite intimidating and bestrides [sic] over the other classmates. The Principal, Vice Principal and Head of Teacher Support Unit believed the POI is grooming [the plaintiff] and younger male class mates and believe the matter may escalate. When the POI does attend school he appears to hone [sic] in on the younger boys one at a time by constantly following them around. The [sic] also believe [the plaintiff] may not be the only victim but no one has disclosed any further information. Whilst Police were at the location, [the plaintiff] nor [sic] the POI were not in attendance, Police were also advised the mother of [the plaintiff' was aware of the incident but not the POI's parents. The Principal stated to police she may suspend the POI due to the allegations made and his behaviour towards the younger male students." (Exhibit D, p. 4) 1. Other sources for the information: In Exhibit D (p. 3), the police set out the information recounted to the Principal by the plaintiff's mother. 2. The seriousness of Z's conduct: As is set out in Exhibit E, the Head Teacher was aware of Z approaching children as young as seven and trying to get them to meet him at the local shopping centre (p. 119). She acknowledges "prior to the incident" having seen material on the plaintiff's phone sent to him by Z, including images (Exhibit E, pp 4 - 5). As is noted in Exhibit D at p. 4 (see (a) above), the Principal was considering suspending Z not only because of the incident involving the plaintiff but also because of "his behaviour towards the younger male students." On or about 16 October 2019, it was reported to police that Z had been suspended (Exhibit D, p. 8). 3. The vulnerability of Z's targets: In her interview with police, the Head Teacher stated: "He would gravitate towards more vulnerable and less able, younger students and…I know another student in the unit - he was grooming him and when his advances were rejected it didn't go down very well. And the student was somewhat harassed and was getting messages … sexual advances, basically." (Exhibit E). 1. Z was using threats and harassment towards these vulnerable young children: These threats were not just restricted to words. The school principal was aware that Z was not only truanting and misusing his mobile phone but was also engaged in "fighting" and "fight clubs" (Exhibit F). 2. Z's use of the toilets for his sexual activities: The plaintiff's mother drew to the school's attention the specific references made by Z to the plaintiff about wanting to meet him in the school toilets.

The prior knowledge agreed to by the defendant

The defendant acknowledged (submissions, paragraph 33) that the school knew prior to 23 September 2019 that: 1. Z had a number of medical issues, including a mild intellectual disability. 2. Z was a frequent truant. 3. When at school he intimidated other boys. 4. He encouraged younger children to meet him outside school at the shopping centre, was involved in fight clubs and sent social media messages of an intimidatory and sexual nature. 5. He was "grooming" younger male classmates including the plaintiff and an incident earlier in 2019 where Z used intimidation to attempt to coerce another student into sex had resulted in his being given "parameters" by the school.
These concessions, limited though they may be, are sufficient for the school to be aware of the likelihood of harm. However, the school knew much more than this. The police and disciplinary records paint a vivid picture of the degree of knowledge of danger the Principal, Vice Principal and Head Teacher had of the danger posed to the other children by Z (some of this material is referred to in Mr Sheldon's opening), yet nothing was done to ensure that a place as dangerous as the school toilets were not the subject of a system to ensure these were not used for purposes such as those Z had in mind. Nor was there any greater surveillance of Z, or consideration of truanting policy changes or changes to playground group organisation to discourage intermingling.

Evidentiary issues in relation to the plaintiff's evidence

I briefly note my reasons for admission of the police and disciplinary records.
I admitted Exhibits D and E and related documents from the police into evidence over the objection of the defendant, pursuant to s 87 of the Evidence Act 1995 (NSW), relying upon the principles set out in Wright v Optus Administration & Anor (No 5) [2013] NSWSC 1717, on namely that the hearsay and opinion rules do not apply to evidence of an admission (s 81 of the Evidence Act).
I am satisfied that the characteristics of the persons making the admissions fall within all three categories of the requirements, as not only were they in positions of authority, but they had a common purpose of protecting children in their care. This would apply even if the Principal, Vice Principal and Head of Teacher Support were in some way under compulsion of law (The Commonwealth v Helicopter Resources Pty Ltd (2020) 270 CLR 523).
I applied the same principles to the other evidence challenged on this basis.

Conclusions concerning knowledge and foreseeability of harm

All of the evidence, in terms of admissions by the teachers to the police and to the plaintiff's mother (Exhibit D pp 1 - 4 and Exhibit E), paints a picture of an aggressive sexual predator over whom the school had little or no control, in a situation that was rapidly getting worse, where the school, in the words of Mr Sheldon SC, did nothing.
By way of alternative finding, if I have erred in admitting some or all of the police material relied upon by the plaintiff, the knowledge admitted to by the defendant, as set out above, would be sufficient to establish knowledge and foreseeability of harm.
Mr Best acknowledges that the risk was foreseeable (s 5B(1)(a) of the Civil Liability Act 2002 (NSW); Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12 at 47 per Mason J) and that the risk was not insignificant (s 5B(1)(b)).

What were the reasonable precautions?

Mr Best first submits that the school was "not aware of Z" (submissions, paragraph 61) and that Z did not constitute any risk to the plaintiff in the seven weeks prior to the assault.
Alternatively, Mr Best submits that the school did take reasonable precautions against the risk of harm posed by Z, namely by warning the plaintiff to stay away, watching the plaintiff in the playground and arranging counselling (submissions, paragraph 65). These limited "precautions" thus consisted of warning and counselling the victim.
The reasonable precautions should be considered in light of the plaintiff's particulars of negligence: 1. Failing to take reasonable care for the plaintiff's safety; 2. Failing to ensure that the 17-year-old student was supervised; 3. Failing to ensure that the 17-year-old student was not given the keys to access the toilets without the supervision of a teacher; 4. Permitting the 17-year-old student to enter the toilet block with the plaintiff; 5. Failing to ensure that processes were put in place to ensure that the 17-year-old student was unable to take advantage of younger students. 6. Failing to have in place an adequate system of supervision of the 17-year-old student including his means of access to the toilet block in circumstances where he had a known history of sexualised and grooming behaviour towards younger students.
As previously noted, Mr Sheldon SC submits that the school "did nothing" to take reasonable precautions, beyond giving the plaintiff warnings to stay away from Z.
Looking at the asserted "reasonable precautions" set out in paragraph 65 of Mr Best's submissions, I am satisfied that this is the case. Mr Best's lists does not refer to the school contacting Z's parents, discussions with other teachers, consultation of the Guidelines for schools responding to problematic or harmful sexualised behaviours from children (Exhibit D, p. 56), playground arrangements, policies to stop truanting during lesson time, posting warning notices at toilets and/or reviewing the toilet key system.
As neither party addressed me further on this issue, and I must choose between Mr Best's description of what the school did and Mr Sheldon SC's reply that this amounted to doing nothing, I am content to accept Mr Sheldon SC's submission that the school effectively did nothing.
I note in passing that neither of the parties referred to the investigations set out in the Reports prepared by the Department of Education in relation to aspects of the school staff's conduct, although their contents would appear to be of assistance to the determination of whether the school took reasonable precautions. Mr Best submitted that these documents were inadmissible, a submission I rejected, but Mr Sheldon SC has conducted his case as if this material were not tendered. It is not for me to go behind Mr Sheldon SC's case presentation (which, in a hard-fought case such as this, clearly consists of decisions for forensic reasons) and/or to make findings about matters on which I have not been addressed.
Mr Best does, however, make submissions about the events which are based on the evidence, which I am able to deal with.
Mr Best submits that what the plaintiff is calling a "reasonable precaution" is an unrealistic claim for "constant supervision" of Z (submissions, paragraph 59). That is incorrect. Z needed no extra supervision while carrying on the normal activities of sitting in class or spending time in the playground where there was a teacher on duty; the extra times he needed supervision were when he was discovered by teachers to be roaming the corridors when he should have been in class.
Mr Best also blames the plaintiff who, he says, interacted with Z on "a frequent, perhaps daily basis" (although adding, inconsistently, that the plaintiff said that after the warnings he received on 1 August 2019 he did not speak to him). If the inference is that the plaintiff's own conduct made reasonable precautions impossible, then I reject it.
There is no evidence that the plaintiff was anything other than an obedient and well-behaved student before the grooming commenced. There had been discussion of sexual issues in 2018, these occasions were part of the school's educative role rather than some form of acting out of misconduct by the plaintiff. For example, the plaintiff was cross-examined about referring to Trojans in the classroom (Tcpt 39 - 40), which he explained as being an interest in Greek history after being shown a film in class on the Trojan War.

Conclusions concerning breach of duty

The duty owed by the defendant was to ensure that reasonable care was taken to protect the plaintiff from what the defendant concedes was a foreseeable risk which was not far-fetched or fanciful and not insignificant (submissions, paragraphs 50-52) by taking reasonable precautions.
I am satisfied, for the reasons set out above that, despite clear warnings from the plaintiff's mother that her son was being targeted for sexual purposes by an older boy who seems to have been the school bully, reasonable precautions were not taken. I accept Mr Sheldon SC's submissions that nothing was done except to give the plaintiff warnings and offer him counselling.
The particulars of negligence pleaded by the plaintiff have accordingly each been established.

Causation

The plaintiff must establish that the negligence of the defendant was a necessary condition of the occurrence of the harm and that it is appropriate for the scope of that liability to extend to the harm caused: s 5D(1) of the Civil Liability Act.
The defendant submits that the plaintiff must establish what the teacher who gave the key to Z should have done, and consider the probable cause of events, based on the school's and that teacher's knowledge. He submits that the evidence did not establish that Z had used a key in this way before and the cause of the sexual assault was not a breach of the school's duty but because of "the voluntary act of RJ in following [Z] into the toilet, when he had been told to stay away from him."
This is a false argument. It is surmise that Z obtained the key from a teacher; he may have obtained it from the office. In his record of interview, the plaintiff did not know from whom Z had obtained the key. Possession of the key was not necessary for the assault to take place; if the plaintiff had gone to the unlocked toilet, Z could just have easily gone in to find him. The causation link arises from the defendant's failure to ensure that Z was not cruising the school corridors looking for the plaintiff or other potential victims.
In terms of causative links, although there is conflicting evidence, I am satisfied, having regard to the police documentation, that there actually was a teacher at or near to the scene of the assault. This is the teacher who had gone to the toilets to supervise her own student's use of the unlocked toilet, who knew the plaintiff would have to use the toilet but had no key. She was standing outside and could well have seen Z loitering in the hallway and what happened next. It is unclear when she left, but she may even have seen Z entering the toilet with the plaintiff behind him. If any of this is so, then because of the failure of the school to take precautions of the kind adumbrated by the plaintiff, that teacher did nothing.
As for the plaintiff, it is difficult to see what a thirteen-year-old intellectually slow adolescent who was "bursting" to go to the toilet could have done other than to enter it once it was unlocked.
The defence under s 5D is not made out. The plaintiff has accordingly established liability.

Damages

The plaintiff claims the following disabilities: 1. Emotional distress; 2. Behavioural problems; 3. Anxiety; 4. Nightmares; 5. Disturbed sleep; 6. Emotional lability; 7. Negative thinking; 8. Irritability; 9. Fear about being alone in some situations; 10. Social isolation; 11. Some impairment of social functioning; 12. Difficulty concentrating.

Schedule of damages

The plaintiff provided the following table:

Non-economic loss (40% MEC)                       $242,000

Future economic loss (buffer)                     $100,000

Past out-of-pocket expenses                       $TBC

Future out-of-pocket expenses                     $50,000

Funds management costs                            $TBC

TOTAL $392,000 plus past OP's, costs and funds management costs

The defendant provided the following table:

Non-economic loss (20% MEC)                                                                $25,500

Future economic loss - The plaintiff has not suffered a diminution of his earing capacity  $0

Past out-of-pocket expenses - subject to receipts and evidence served by the plaintiff     $TBC

Future out-of-pocket expenses - the plaintiff required no further treatment                $0

Funds management costs - the defendant will make submissions on this aspect, if required.  $TBC

Past Economic Loss - no loss suffered                                                      $0

In the course of closing submissions, Mr Best said that past out of pockets were agreed at $1260 and future out of pockets of $3,000 for ongoing counselling and related services would be permissible (Tcpt 65).
Both parties agreed that funds management costs could not be calculated until the quantum of the damages was known. Mr Best initially submitted that no funds management order should be made (Tcpt 71) but accepted that there is a general practice for the granting of liberty to apply for further calculations to be made and included in the quantum in circumstances such as the present. I have accordingly granted the parties liberty to bring in Short Minutes for the agreed sum and alternatively, in the case of disagreement, for liberty to apply.

Non-economic loss

The plaintiff's mother gave evidence of the impact of the assault on him: "Q. What did you notice about him when he went back to school? A. He was scared. Q. I'm sorry? A. He was scared. Q. How did you determine that he was scared? A. The way he was behaving. He didn't want to speak. If I ask something, he never answer, he just say, "I don't know". Q. Was that different to how he'd been before what happened with [Z]? A. Way different. Q. How was he before that? A. Very loving, playful, he talks normal, and yeah, he was very like in the family, we always talk, and he was into the conversations and but after what happened, he withdraw completely. Q. Did you see that improve over the years since then? A. I reckon he's trying to get better, but Q. Why do you say trying to get better? A. Because he told me so. He told me to - he's trying to forget about it." (Tcpt 109)
Mrs RPC was uncommunicative about the plaintiff's difficulties at the school up until what she later agreed was his suspension. She preferred to describe him in terms of improvement, especially after he started at a new school, but that he still did not trust people, which she put down to the school's treatment of him after the assault. She said that the plaintiff had decided to stop seeing the psychologist.
Mrs RPC was worried about how the plaintiff would cope in the workplace. He had started to do some work in his father's business but there had been an incident where he "found" $30,000 in cash and spent it on Apple products he wanted (Tcpt 112). He was told that he had to work this sum off by working with his father over a period of time.

The parties' submissions on general damages

Mr Best submitted that the fundamental difference between the parties as to quantum was whether I accepted the evidence of Dr Jungfer over that of Dr Rikard-Bell and what I made of "Mrs RPC's vehemence as to the extent of the disability of her son RJ" (Tcpt 65), in circumstances where he argued that all future economic loss issues would arise from the plaintiff's intellectual disability.
Mr Sheldon SC's overall submission was that the defendant must take the plaintiff as it finds him, namely a 13-year-old victim of sexual assault whose intellectual disability meant that he was agreed by the experts to be three times more vulnerable to future traumatic incidents for the whole of the long life ahead of him.
Although he was critical of Mr Sheldon SC for not challenging the fairness of his questions in cross-examination (and of myself for not intervening either), Mr Best has accepted Dr Jungfer's explanation of the reasons for inconsistency in the plaintiff's responses, namely his desire to give answers pleasing to the questioner, and that his actions were a better guide than his words. It is in this context that he points to the plaintiff's success in changing schools, continuing his studies and getting on with his life. In particular, he noted that the plaintiff had decided that he no longer wanted or needed counselling or other assistance and this should be accepted as evidence that he was better, because Dr Jungfer had stated that the plaintiff's actions were a better guide as to his level of turmoil than what he was saying to others, including his mother (Tcpt 69 - 70). In those circumstances, he submitted, the appropriate award for general damages could not be more than 20%.
The plaintiff has made a good recovery from a frightening episode and, absent any further similar incident, should be able to continue with his future plans. The plaintiff's proposal of 40% ($242,000) is, in those circumstances, an overestimate of the seriousness of the injury. However, the defendant's estimate of 20% is too small. I propose to award 25% ($47,000).

Future economic loss

There is no claim for past economic loss but future economic loss in the form of a buffer of $100,000 is sought.
Both experts agreed that future economic loss could arise due to the plaintiff's increased vulnerability (three times greater than for other members of the community) requiring him to change jobs in much the same way that he had eventually changed schools. Dr Rikard-Bell described this as "an increased risk of assessment or judgment - possible inappropriate interactions in a sexual manner or difficulty being able to judge situations that could impact in future workplace interpersonal relations" (Tcpt 70).
Mr Best submits that the entirety of the plaintiff's future economic loss is due to his underlying intellectual disability. The plaintiff has not demonstrated that there was any economic vulnerability arising because of his post-traumatic stress disorder, whether it be concluded (as Dr Jungfer says) or whether it is significant and improved but still present (as Dr Rikard-Bell says).
Mr Sheldon SC submits that any future PTSD would be very likely to cost the plaintiff his job and argues that a substantial award of $100,000 should be made.
Coincidentally, this was the sum sought in Chen by her tutor Huang v Kmart Australia Ltd [2023] NSWCA 96, where a future economic loss claim of $100,000 for a small child, in terms of similar issues, was reduced by the trial judge to $5,000. Dismissing the appeal, White JA said at [45]-[48]: "[45] Mr Sheldon submitted that the award of $5,000 represented less than half of 1% of net average weekly earnings projected over a 50 year working life after deductions for vicissitudes at 15%. The respondent did not challenge the arithmetic. Mr Sheldon submitted that the potential for the applicant's earning capacity to be diminished by reason of a psychological disorder was significant. In [48] of the primary judge's reasons quoted at [9] above, his Honour found that the applicant suffers a continuing and significant deprivation of the opportunity to participate in normal activities, including during conversation with people, meeting new people, attending job interviews and so on. It was Dr Lee's opinion that there was a likelihood of psychological disturbance as the applicant grew older (see [31] above). Mr Sheldon submitted that the buffer of $5,000 awarded by the primary judge failed to have regard to the real chance that such psychological disturbances would affect the applicant's earning capacity, over and above the physical effects of the scarring and the droop in her right eye. [46] The respondent submitted that, although at first sight the award of $5,000 as damages for future economic loss may appear to be low, it was not outside an allowable range, having regard to the multiplicative possibilities that diminished the chance that the applicant would suffer any financial loss in the future because of her injury, including from the psychological effects of the injury. In his report of 26 April 2022, Dr Lee's opined that the applicant was coping reasonably well at school academically with support from her teachers. Dr Delaney had opined that the small degree of ptosis will gradually improve and was only just detectable cosmetically. Dr Lee stated on 26 September 2022 that the applicant's mother considered her to be overall confident and did not present as distressed, anxious or depressed, and that her school records were "somewhat inconsistent" with clinically significant distress. Part of the distress that she reported was due to abdominal pain that was not caused by her injury. It was only if the applicant suffered a deterioration in her psychological state, and if psychological treatment were unsuccessful, and if her ptosis did not improve with time, and if revision surgery were unsuccessful, and if the psychological disturbance were productive of loss, that there would be any loss of future earning capacity. [47] These are not necessarily multiplicative possibilities. The residual physical effects of the injury could have an effect on her earning capacity independently of any continuing psychological disturbances. But it must be accepted that, if either the residual physical effects of her injury or continuing psychological disturbances would otherwise affect her earning capacity so as to be productive of financial loss, the chance of such loss would be ameliorated by the prospect of successful surgery and/or psychological treatment. No mathematical calculation of those chances is possible. [48] The applicant submitted that an appropriate buffer would be $100,000 rather than the $5,000 allowed by the primary judge. The respondent submitted that this figure equated to 9.2% of a working lifetime's average earnings but was no more meaningful or based on evidence than the buffer the primary judge awarded of $5,000 (0.4%). The respondent noted that no evidence had been led as to the occupations, attitude to life and work history of the applicant's parents and other relatives (New South Wales v Moss at [84]). There was evidence that the applicant's mother conducted her own business and it is clear from the fact that the applicant was sent to a prominent private school in Rose Bay, a considerable distance from where she lived, that her parents were at least reasonably financially successful and ambitious for their daughter's future. As Heydon JA said in New South Wales v Moss (at [93]), the obligation to value the chance of future lost earnings cannot be shirked by deficiencies in the materials advanced. In any event, I doubt that any further evidence as to the applicant's parents' occupations would have advanced the case to any appreciable extent."
The judgment goes on to refer to Harold Luntz & Sirko Harder, "Assessment of Damages for Personal Injury and Death" (5th Ed, 2021, LexisNexis Butterworths). There is a helpful discussion of this issue at [6.3.4]: "Children. It may be extraordinarily difficult to estimate what the future earnings of children would have been if they had not been injured. For this reason, the usual practice is now to award a 'buffer amount'; for 'buffer awards' generally, see [6.3.5]. In the past, attempts were made to assess from a child's socio-economic background and intelligence (as far as it could be known) whether the child would have been likely to earn more or less than the average. Such evidence may be suspect, since individuals do rise above or fall below their backgrounds. Despite the rhetoric, it is in fact impossible to make an accurate individual assessment, since it can never be known what the future would have held for this plaintiff but for the injury."
At [6.3.5], the learned authors refer to the use of buffer awards in such circumstances: "Buffer awards. Future loss of earning capacity is usually calculated by using (among other matters) the estimated lost earnings (or average earnings) in a certain period (week, month etc) and the estimated number of years that the plaintiff would have worked but for the injury. However, in many cases in which the plaintiff is a child or otherwise has had no or no sufficient pre-injury employment history, the court does not enter into such calculations, but awards instead what is called a 'global', 'buffer' or 'cushion', in which it attempts to place a value directly on the future loss of earning capacity. The same approach is taken in cases where the retained earning capacity of an injured plaintiff makes it uncertain as to the future loss of earning capacity. Buffer awards may be made even in cases in which legislation requires the court to be satisfied as to the assumptions on which any award for future economic loss is based, and to adjust the award by reference to the percentage possibility that particular events might have occurred but for the injury."
However, a court is neither required nor permitted to make a buffer award where a more precise calculation of the future loss of earning capacity is possible or no loss has been established. Any buffer which is awarded must still have a rational basis.
The plaintiff's intellectual limitations would play a very significant role in terms of his ability to work. If he were obliged to stop working or to change jobs, as a result of a future assault, he would find it more than usually difficult to obtain further employment. These factors need to be taken into account when assessing a future buffer for a young man who has no work history.
The best the plaintiff can argue is that this is a potentially likely scenario (Verryt v Schoupp [2015] NSWCA 128 at [84] (amount awarded reduced from $200,000 to $25,000). However, while I consider the amount awarded in Chen by her tutor Huang v Kmart Australia Ltd to be too small, I consider the amount in Verryt v Schoupp too large. The unknowability of the plaintiff's future work life is simply too great.
The plaintiff is keen to work and has attempted or applied for part-time or evening work, mostly in the fast-food industry. If he is unable to work by reason of the difficulties foreseen by Dr Rikard-Bell, the impact on him would be far greater than it was on Ms Chen. Accordingly I propose to award him $15,000 for future economic loss.

Past and future out of pocket expenses

Past out of pockets are agreed at $1260.
The plaintiff seeks a buffer of $50,000 for future costs and the defendant proposes $3,000. If he returns to counselling (as hoped by his mother) or suffers another sexual assault, the plaintiff would require a number of sessions. The impact of being a victim of a sexual assault should not be downplayed.
However, the plaintiff's strong family network and ongoing close relationships with family and friends will be there to protect him well into the future.
I propose to allow the sum of $15,000 for future counselling expenses.

Concluding remarks as to quantum

The plaintiff is also entitled to funds management costs, and I have granted liberty to apply to enable the parties to calculate the damages total and to bring in Short Minutes of Order. Those Short Minutes should also provide details of where the damages are to be invested.
I was not addressed on costs and have granted liberty to apply.

Orders 1. Judgment for the plaintiff. 2. Liberty to the parties to bring in Short Minutes of Order reflecting the mathematically agreed calculation of damages, such total to include funds management costs. 3. Costs reserved. 4. Liberty to apply in relation to orders 2 and 3. 5. Exhibits retained until further order.

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: 26 April 2024

Evidence Act 2005(NSW)

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Judgment (38 paragraphs)

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Legislation Cited (3)

Cases Cited (13)