State of New South Wales v Taylor

Background

1. On 18 August 1981, Garry Taylor was convicted of indecently assaulting two 11-year-old boys under his care when he was working as a teacher at a recreational camp run by the Department of Education. He had pleaded guilty to the offences. He was placed on a good behaviour bond for three years. The Department of Education was aware of his convictions. It granted him leave without pay until his good behaviour bond expired and then subsequently employed him to teach six-year-old children in a Year 1 class at Young Public School in mid-1984.
2. In 1985, six children from the Year 1 class at Young Public School taught by Mr Taylor complained that Mr Taylor had physically and indecently assaulted them. Three of those six persons were Stephen Smith, Jack Peterson and James Clarke ("the plaintiffs"). They were all six years old. The matters were reported to police and Mr Taylor was charged with six counts of indecent assault, one count in relation to each of the six complainants.
3. Committal proceedings were heard on 8 August, 2 October and 3 October 1986. All of the children gave evidence in court and the matters were committed for trial. Mr Taylor was subsequently acquitted of all charges at trial.
4. In September 2011, a detective from Queensland contacted Mr Smith to inform him that Mr Taylor was being investigated in relation to other sexual assaults. It was at that time that Mr Smith decided to take legal action against Mr Taylor, as did three of the other five complainants.
5. The plaintiffs and another person, Imogen Hart, filed statements of claim between December 2011 and March 2013 suing the State of New South Wales ("the State") for negligence arising out of the employment of Mr Taylor by the Department of Education in 1985. They alleged that the State had been negligent in employing him as a teacher, given what they knew about his prior convictions. Each plaintiff alleged that he or she had suffered psychiatric injury as a result of the State's negligence.
6. The plaintiffs subsequently joined Mr Taylor as the second defendant in their respective proceedings. He filed a defence on 25 November 2013 and the State filed a defence on 9 December 2013. On 24 January 2014, the State filed cross-claims against Mr Taylor.
7. The State settled the claims brought by the plaintiffs shortly thereafter and, on 23 May 2014, judgment was entered in the plaintiffs' favour. That left only the cross-claims to be determined.
8. This judgment resolves those cross-claims.
9. I note that, when I enquired at the hearing as to whether it was appropriate that any pseudonyms be provided to the plaintiffs, Mr Hutchings indicated that there was no need for any anonymity. On reflection, having now had the opportunity to read all of the evidence relied upon by the State and in circumstances where this judgment will be published on the NSW Caselaw website, I propose to give the plaintiffs pseudonyms. If any of them would prefer that their names be published in this judgment, the solicitor for the State has leave to approach the Court to inform the Court of such and I will amend the online judgment to publish their true names.

Procedural history

1. The procedural history of the cross-claims has been unfortunate to say the least.
2. The cross-claims were first listed for hearing before Davies J on 28 October 2014. The hearing did not proceed on that date and his Honour commenced to case manage the matter. On 6 March 2015, the State sought leave to file amended cross-claims claiming contribution or indemnity from Mr Taylor under s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW). Although the amendment was opposed, Davies J granted the State leave to file the amended cross-claims. His Honour made other orders that day, including extending time for Mr Taylor to file and serve any evidence to be relied on in relation to the hearing to 23 March 2015. His Honour indicated that any evidence not filed and served by 23 March 2015 would not be permitted to be relied upon without his leave or that of the trial judge. A hearing date of 8 December 2015 was subsequently fixed.
3. On 7 December 2015, the hearing date on 8 December 2015 was vacated and the matter listed for further directions on 17 December 2015. At the directions hearing on 17 December 2015, Campbell J fixed the matter for hearing on 29 August 2016 with an estimate of 10 days. Mr Taylor was granted leave to file defences to the amended cross-claims and directed to serve sealed copies on the cross-claimant by 22 December 2015. His Honour granted leave to serve all witness statements and documents upon which Mr Taylor intended no later than 29 August 2016.
4. The hearing of the cross-claims finally commenced before me on 29 August 2016. Mr Hutchings of counsel appeared for the cross-claimant and Mr Glissan of counsel appeared for the cross-defendant. When the hearing commenced, it became apparent that there had been an error in the court records as, although Campbell J had in fact allowed 10 days for the hearing to ensure that the matter would be finalised, it had only been allocated one day of court time for the hearing. The matter could clearly not be finished in one day. I proceeded to hear the matter on that day and, around my other court commitments that week, again on 30 August 2016 and on 2 September 2016. Three of the four plaintiffs gave evidence on those days.
5. On 2 September 2016, Mr Taylor, who had been present in court throughout the hearing, was due to enter the witness box. He arrived at court 15 minutes late. Mr Glissan informed the court that he had told Mr Taylor to see a doctor. He said that Mr Taylor had come to see him in chambers at 8am and was coughing and appeared to be shaking and trembling. Mr Glissan provided a medical certificate from a Dr Gemma Kim dated 2 September 2016 stating that, "Garry Taylor has a medical condition and is unfit to go into the witness box today."
6. After the morning tea adjournment, Mr Glissan informed the court that he had spoken to Dr Kim. She told him that her diagnosis was that Mr Taylor had a "viral upper respiratory tract infection which could be flu". Mr Glissan relayed the doctor's advice that Mr Taylor had a temperature consistent with a fever that was not "full blown" because he already taken paracetamol. He noted that the certificate was expressed in a limited way for privacy reasons.
7. Mr Hutchings' position was that it was a matter for the Court to be satisfied whether or not Mr Taylor had a medical condition and whether he would be required to give evidence that day. Mr Taylor's evidence was the only remaining evidence. The hearing could not proceed further by reason of his inability to given evidence. I reluctantly adjourned the matter given the significance of Mr Taylor's evidence. I made it clear that Mr Taylor would have to give evidence on the next occasion unless significantly more cogent medical evidence was produced. I adjourned the matter for further hearing on 4 October 2016. However, the matter was subsequently re-listed on 27 March 2017 due to Mr Hutchings's unavailability. That was the next available date for the Court and the parties involved.
8. On 27 March 2017, there was no appearance by Mr Taylor. He was called three times outside court and the matter was stood down for half an hour in order for the State's instructing solicitor to make enquiries. Shortly thereafter, Mr Taylor sent a brief email to one of the instructing solicitors for the State (copying in my Associate) in these terms: "Dear Mr Roberts Notwithstanding I deny all allegations in this matter, I am not able to fund appearing this morning at the hearing. Regards Garry Taylor."
9. It is plain from the terms of the email that there was no application for an adjournment, nor any application that Mr Taylor's evidence be given remotely from Queensland, where he was then living. Mr Hutchings informed the Court that another of his instructors had spoken to Mr Taylor by telephone and that Mr Taylor had indicated that he did not intend to appear and that he did not have money for flights to Sydney. There was no evidence before the Court (at that stage) as to Mr Taylor's impecuniosity, nor as to his efforts to obtain representation. In these circumstances, I proposed that Mr Taylor be telephoned from the courtroom in order that it could be explained to him that the proceedings would continue in his absence and that he be given the opportunity to say anything that he wished to the Court.
10. The matter was again adjourned until 2pm in order for my Associate to communicate this to Mr Taylor. At that time, he was telephoned from the courtroom. I explained to him that the hearing would proceed without him if he did not attend. He replied: "CROSS-DEFENDANT: Okay. Well I just repeat what I put in my email to your associate, that I deny all allegations regarding this matter. The matter was heard in court a number of years ago. It's really difficult for me to remember things that didn't happen, and if the transcript was looked at from the court case it would found why [sic], that I was found not guilty. Obviously it was not only from a lot of my evidence but evidence from other people, like the cleaner at the school, et cetera, and that's, you know, why the finding was made. Going on a number of years later it's very difficult for anyone to remember what happened, but from my point of view it's also very difficult because nothing happened. As far as I was concerned the matter was over a number of years ago. … CROSS-DEFENDANT:…I mean to me the case has been very difficult because I haven't been able to find witnesses, seeing it's so many years ago, it's 30 years ago, and that's why I believed the statute of limitations was at play. Now that it's gone, to me, that's [sic] makes it very difficult."
11. Mr Taylor thereafter declined to take any further part in the substantive proceedings. In the circumstances, and given the unfortunate history of this matter, I was satisfied that it was appropriate to continue to hear the cross-claims ex parte.
12. On 28 March 2017, the State provided written submissions and I reserved my decision.
13. After the hearing concluded, the State sought a freezing order in relation to Mr Taylor's property. That application proceeded at various times on 31 March, 5, 13 and 20 April, and 12 May 2017. Mr Taylor appeared by way of telephone from Queensland on some of those dates and produced certain documentation regarding his limited financial circumstances. The State also relied upon documentation. I have not had regard to any of that material for the purposes of this judgment.
14. I note at the outset that the Limitation Act 1969 (NSW) was amended from 17 March 2016 to insert s 6A: Limitation Amendment (Child Abuse) Act 2016 (NSW). Section 6A has had the effect of removing limitation periods for personal injury claims that relate to "child abuse". Mr Glissan conceded on the first day of the hearing that there was no defence relying on any limitation period.

Nature of the State's cross-claims

1. The State seeks contribution from Mr Taylor for the amounts that it paid to the plaintiffs by way of settlement in 2014. Section 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act enables tortfeasors liable in respect of damage to seek contribution from a person who is, or if sued would have been, liable in respect of the same damage. That section provides, so far as is relevant, as follows: "5 Proceedings against and contribution between joint and several tortfeasors (1) Where damage is suffered by any person as a result of a tort (whether a crime or not): … (c) any tort-feasor liable in respect of that damage may recover contribution from any other tort-feasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tort-feasor or otherwise, so, however, that no person shall be entitled to recover contribution under this section from any person entitled to be indemnified by that person in respect of the liability in respect of which the contribution is sought. (2) In any proceedings for contribution under this section the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person's responsibility for the damage; and the court shall have power to exempt any person from liability to make contribution, or to direct that the contribution to be recovered from any person shall amount to a complete indemnity." [emphasis added]
2. A number of matters that must be proved before a tortfeasor may recover contribution can be discerned from the text of s 5(1); namely, that the damage must be suffered by a person as a result of a tort (whether a crime or not); that the person seeking contribution or indemnity must be liable in respect of that damage; and that the person from whom contribution or indemnity is sought must be a tortfeasor who is liable in respect of the same damage (whether as a joint tortfeasor or otherwise).
3. The fact that the State settled with the plaintiffs is no bar to its seeking contribution from Mr Taylor. As Barwick CJ stated in Brambles Construction Pty Ltd v Helmers (1966) 114 CLR 213 (at 219), the word "liable" where it first occurs in paragraph (c) does not exclusively denote liability "by judgment, nor does it depend upon adopting a view one way or the other as to whether the word "liable" where secondly occurring means liable by judgment." These observations make plain that the tortfeasor seeking contribution may become "liable" by a consent judgment consequent upon a settlement, rather than only after a contested hearing.
4. When the State settled the matter fully as against the plaintiffs, it did so without admission of liability. Despite this, as Gummow J stated in Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 (at 616), a claimant who has settled must come prepared to establish that "…if the claim had been fought out, that party would have been held responsible in law and liable to pay in whole or in part for the damage referred to." His Honour referred (at 616-617), inter alia, to the English decision of Stott v West Yorkshire Car Co [1971] 2 QB 651 and to the decision of the New South Wales Court of Appeal in Ballina Shire Council v Volk (1989) 18 NSWLR 1 (at 10).
5. On the first day of the hearing before me on 29 August 2016, Mr Taylor sought leave to file in court further amended defences to the amended cross-claims in which he claimed, in the alternative to his denials, a defence based on s 3 of the Employees Liability Act 1991 (NSW). Mr Hutchings did not oppose leave being granted to file those amended defences and I have granted leave for them to be filed.
6. In his written submissions, Mr Hutchings identified the four issues to be determined as: 1. whether the cross-claims exposed the State to a risk of liability for damages being established; 2. whether the cross-claims exposed Mr Taylor to a risk of liability for damages being established; 3. whether Mr Taylor should be required to indemnify, or partially indemnify, the State; and, 4. whether the settlements reached by the State with each of the plaintiffs were reasonable.
7. With respect to the first two of these issues, I do not accept that a "risk" of liability being established is the relevant test. The statutory language of s 5(1)(c) is that, where damage is suffered by any person as a result of a tort "any tort-feasor liable in respect of that damage may recover contribution from any other tort-feasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tort-feasor or otherwise" (emphasis added). Where the party seeking contribution has settled with the plaintiffs, it seems to me that what must be established is that both parties are liable for the same damage. It could not be held that a concurrent tortfeasor must contribute to the damages paid by another tortfeasor, who has settled with the plaintiff or plaintiffs, merely because the claim exposed each tortfeasor to a risk of liability being established.
8. Rather, I am satisfied that there are seven separate questions that I am required to resolve in order to determine whether Mr Taylor is liable to contribute to (or indemnify the State for) the damages paid by the State to the plaintiffs: 1. Am I satisfied that Mr Taylor is a tortfeasor? That is, am I comfortably satisfied of the matters alleged by the plaintiffs? 2. Am I satisfied that Mr Taylor is liable for the "damage" within the meaning of s 5(1)(c)? That is, were the psychiatric injuries suffered by the plaintiffs caused by the conduct of Mr Taylor? 3. Am I satisfied that Mr Taylor was entitled to be indemnified under s 3 of the Employees Liability Act? 4. Am I satisfied that the State was negligent in employing Mr Taylor? 5. Am I satisfied that the State is liable for the same damage as Mr Taylor? 6. Am I satisfied that the settlement was reasonable? 7. What proportion of the settlement amounts paid by the State is it just and equitable for Mr Taylor to pay?
9. Before turning to consider these separate questions, it is necessary to set out the relevant pleadings and to explain briefly what occurred at the hearing of this matter prior to Mr Glissan's withdrawal and Mr Taylor's indication that he wished to play no further part in the proceedings.

The pleadings

1. The three statements of claim are in identical terms. The plaintiffs alleged that, during 1985, they were assaulted or otherwise mistreated, including sexually, by Mr Taylor on several occasions. The specific allegations are set out below in the consideration of their evidence. At that time, the State conducted the public school at which the plaintiffs were students and employed Mr Taylor as a teacher of young students, including the plaintiffs. It is alleged that the assaults were caused by the negligence of the State.
2. The State accepts that Mr Taylor was, at all relevant times, engaged in the service of the Crown. That is, the Crown was (by the State of New South Wales) Mr Taylor's employer and Mr Taylor was therefore in effect an employee of the Crown.
3. The particulars of negligence are pleaded as follows: "The First Defendant: a. Placed the Second Defendant in the position of a teacher of young students including the Plaintiff in 1985 in circumstances where it knew or ought to have known: (i) That the Second Defendant had been suspected, charged and convicted of offences (including sexual offences) against children in or about 1981; (ii) As a result the Second Defendant had been suspended and otherwise reprimanded, including by a Tribunal procedure in GREAT [Government and Related Employees Appeal Tribunal], including by dismissal of employment or similar process; (iii) As a result the First Defendant and/or GREAT imposed conditions and other restriction on the Second Defendant's employment with the First Defendant, including a notation "Allegations by pupils" and "+LWOP" on his personnel file; (iv) Further matters of suspicion of like offences arose in about 1983 and there was a history of complaints of like offences in 1980; (v) The Second Defendant was re-employed or re-engaged in 1984; (vi) These matters meant that the Second Defendant was not suitable to be a teacher of young students including the Plaintiff in 1985 or at all. b. Did the matters referred to in circumstances where staff of the Second Defendant former school [sic] did not advise the staff of Young Public School at the time of the transfer of the Second Defendant's position to Young Public School."
4. It is pleaded that, by reason of the State's negligence, the plaintiffs suffered injury, loss and damage.
5. In relation to Mr Taylor, it is pleaded: "Further, the conduct of the Second Defendant constitutes assault, battery and trespass to the person and by reason of that conduct the Plaintiff suffered injury, loss and damage."
6. None of the plaintiffs pleaded any cause of action that the State was vicariously liable for Mr Taylor's conduct.
7. Each of the amended cross-claims was filed on 6 March 2015. In each cross-claim, the State repeats against Mr Taylor the pleadings and particulars referred to in the statements of claim filed by the plaintiffs. It is pleaded that, if the plaintiffs sustained injury, loss and damage as alleged, such injury, loss and damage were caused by the actions of Mr Taylor in committing assault, battery and trespass. The State claims that Mr Taylor is liable to indemnify it for, or in the alternative to contribute to, the judgment sums paid by it to the plaintiffs.
8. In defences filed to each of the statements of claim, Mr Taylor denies that he assaulted the plaintiffs and that the assaults constituted assault, battery and trespass to the person. As stated above, he filed in court on the first day of the hearing an amended defence to the amended cross-claim relying upon an alternative defence under s 3 of the Employees Liability Act.

The hearing

1. On numerous occasions between 2013 and 2016, Mr Taylor was unrepresented in these proceedings. He engaged Mr Glissan of counsel on a direct access basis prior the hearing of this matter. It became clear during the hearing that Mr Taylor may not have provided Mr Glissan with all of the material that the State had served on him.
2. At the commencement of the hearing, Mr Hutchings of counsel opened for the State and tendered the material upon which the State relied. This included a tender bundle in relation to each of the four plaintiffs. Each tender bundle comprised the relevant evidentiary statement, annexing committal transcript and other documents, a psychiatric report outlining the expert evidence as to the psychiatric injury suffered by each plaintiff, and Australian Taxation Office ("ATO") records (Exhibits A, B, C and D).
3. A common tender bundle was tendered that comprised the transcript of committal proceedings before Young Local Court in 1986 and a Deputy Ombudsman's Report into the management of allegations of assault made against Mr Taylor and the Department of Education's response to them (Exhibit E). The State also tendered folders of subpoenaed material. That material was subpoenaed from NSW Police and Queensland Police (Exhibits F and G). It was submitted that those documents were relevantly before the Court on the question of the reasonableness of the State's settlement of the matter.
4. On the first date of the hearing, Mr Hutchings requested that I make an order that the evidence in all four matters be admissible in the four proceedings in circumstances where they were being heard together pursuant to r 25.8 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR").
5. A question arose on the first day of the hearing as to whether counsel for Mr Taylor ought to be permitted to cross-examine the four plaintiffs. A request that they be available for this purpose had been made to the State in the previous week. Mr Hutchings submitted that the plaintiffs should not be required for cross-examination because Mr Taylor did not dispute that judgment had been entered in the plaintiffs' favour and also because of the late notice. He relied upon the decision in Unity Insurance Brokers Pty Ltd v Rocco Pezzano Pty Ltd (1998) 192 CLR 603 as authority for the proposition that the State did not need to call the witnesses. Mr Glissan submitted that his client was acquitted of the criminal charges and that he denied the allegations. He sought to cross-examine the plaintiffs and put to them that the assaults did not occur.
6. I ruled at that time in favour of Mr Taylor. In order for Mr Taylor to be liable to contribute to the settlement amounts paid to the plaintiffs, the State would need to establish that Mr Taylor was a tortfeasor in that he committed the assaults alleged. The decision in Unity Insurance Brokers Pty Ltd v Rocco Pezzano Pty Ltd did not assist the State on this issue. Arrangements were then made for the plaintiffs to give their evidence.
7. Only three of the four plaintiffs were willing to attend court. Imogen Hart did not attend court for cross-examination. Accordingly, Mr Hutchings indicated that contribution was only sought in relation to the payments made to the remaining three plaintiffs. I made, by consent, orders under s 5B of the Evidence (Audio Visual Links) Act 1998 (NSW) that the witnesses give their evidence by way of audio-visual link.
8. As stated above, Mr Taylor effectively withdrew from the proceedings on 27 March 2017.

The plaintiffs' evidence

1. The plaintiffs' evidence in chief was given by way of evidentiary statement pursuant to r 31.4 of the UCPR and each plaintiff was required for cross-examination at the hearing. As described above at [42], a tender bundle was tendered in relation to each of the three plaintiffs. Before I turn to consider that evidence, I will address the position regarding the defence case at the time that Mr Taylor withdrew from the proceedings.

Mr Taylor

1. The evidentiary statement of Mr Taylor was tendered at the commencement of the hearing subject to his being made available for cross-examination. He subsequently did not give evidence in these proceedings. Rule 31.4(4) of the UCPR provides that, if an intended witness to whose evidence a witness statement relates does not give evidence, no party may put the statement in evidence at the hearing except by leave of the court. Accordingly, Mr Hutchings submitted that the tender of the statement ought to be rejected. I do not propose to allow the tender of Mr Taylor's witness statement.
2. It is apparent from Mr Glissan's cross-examination of each of the plaintiffs that Mr Taylor's primary defence is that the alleged indecent assaults did not occur. He denied the allegations in an email to the instructing solicitor for the State, copying in my Associate, on 27 March 2017 and again via telephone in Court on the same day in his comments extracted above at [19].
3. Mr Hutchings submitted that I should draw an inference that the evidence called from Mr Taylor (or adduced on his behalf) would not have assisted his defence of the matter: Jones v Dunkel (1959) 101 CLR 298 (at 320 - 321) per Windeyer J.
4. I have had regard to the difficulties faced by a person in Mr Taylor's situation in providing witnesses. In this matter, Mr Taylor informed the court that he had had difficulty in securing witnesses to give evidence in his case by reason of delay. He no longer has the benefit of the limitation period for personal injury actions since the enactment of s 6A of the Limitation Act.
5. I note that in criminal trials concerning historical allegations of child sexual assault, the jury, as the tribunal of fact, is directed to have regard to the forensic disadvantages to a person defending charges of that nature due to the effluxion of time. If these were criminal proceedings concerning allegations of indecent assault of an historical nature, a direction as to delay in prosecution may be given in accordance with s 165B(2) of the Evidence Act 1995 (NSW) on application by an accused if the court was satisfied that the accused had suffered a significant forensic disadvantage because of the consequences of delay. If acceded to, the court would have directed the tribunal of fact as to the nature of the disadvantage and the need to take the disadvantage into account when considering the evidence. The direction contemplated by s 165B(2) of the Evidence Act emanates from the decision of the High Court in Longman v The Queen (1989) 168 CLR 79. I am not suggesting that I am required to direct myself in this way in these proceedings, but I have nonetheless had regard to the forensic difficulties arising from the historical nature of the facts giving rise to these proceedings.
6. The difficulty remains that Mr Taylor ultimately elected not to defend these proceedings. Significantly, as set out above, he produced a medical certificate that he was unwell on the day that he was due to enter the witness box. I have had regard to this fact in determining that I do not propose to give leave for Mr Taylor to rely upon his evidentiary statement.
7. I have considered this issue carefully and determined that I propose to draw an adverse inference against Mr Taylor by reason of his failure to give evidence in these proceedings. However, I do not draw such an inference for his failure to call evidence from others, given, as he submitted, the difficulty in finding witnesses to give evidence about events that are alleged to have occurred over 30 years ago.

Issue 1: am I satisfied that Mr Taylor is a tortfeasor?

1. The first issue is whether Mr Taylor is a tortfeasor. The State's claims under s 5(1)(c) for contribution or indemnity rest on allegations that Mr Taylor is liable for the intentional torts of assault and battery in relation to each of the plaintiffs. The trespasses to person alleged are what would in criminal law be termed "indecent assaults", although the distinction is not material for the purposes of tort. The plaintiffs rely on assaults of a physical and sexual nature.
2. Although these are civil proceedings with the civil standard of proof on the balance of probabilities, the nature of the allegations informs the degree of satisfaction that I must reach in order to find that the alleged tortious conduct in fact occurred: Briginshaw v Briginshaw (1938) 60 CLR 336; see also s 140(2) of the Evidence Act.
3. It is to be noted that, although Mr Taylor was acquitted following a trial by jury in the District Court, that is not a bar to my being satisfied to the civil standard that he is a tortfeasor. Further, there is no issue of res judicata between these parties.
4. If accepted, the plaintiffs' evidence establishes that Mr Taylor committed the torts of battery in relation to each of them. In tort, battery involves an "…intentional or reckless, direct act of the defendant which makes or has the effect of causing contact with the body of the plaintiff": per McHugh J in Marion's Case (1992) 175 CLR 218 at 311. As Leeming JA observed in Croucher v Cachia [2016] NSWCA 132 at [21]-[22]: "Battery is one of three forms of trespass to the person, the others being assault and false imprisonment. While it is conveniently and conventionally labelled as an 'intentional tort', in contrast with negligence, such labels can obscure the necessary analysis of (a) the elements of the tort and (b) how the tort is affected by statute. As it is put in Clerk & Lindsell on Torts (20th ed, 2010, Sweet & Maxwell) at 986, 'in this context 'intention' has a very particular meaning'. A defendant who directly causes physical contact with a plaintiff will commit a battery unless the defendant proves that the defendant was 'utterly without fault'."
5. It seems to me that, in the context of sexual abuse, the tort of battery more appropriately describes the conduct than the tort of assault because of the need for there to be an intentional act directly causing a physical interference with the body of the other person without lawful justification. An assault on the other hand, although requiring a reasonable apprehension of an immediate harmful or offensive contact, does not require physical contact. Nothing turns on which species of trespass to the person, out of assault or battery, is more pertinent on the facts in this matter.
6. Mr Hutchings on behalf of the State submitted that I would have no difficulty finding that Mr Taylor assaulted the children as alleged. No particular acts were identified. Rather, the evidence of the plaintiffs was relied upon globally. It was submitted that the cross-examination was "tepid" and that that Mr Taylor had led no evidence to contradict the evidence of the plaintiffs, nor the evidence contained in the psychiatric reports. In light of the limited cross-examination, it was submitted, Mr Taylor could not advance any argument as to the plaintiffs' motives nor any operative reasons why their evidence should not be accepted.
7. Whether I am satisfied that Mr Taylor is a tortfeasor turns entirely on whether I accept the evidence of these three men to the requisite standard of proof.

Evidence in relation to Mr Peterson

1. A bundle of documents in relation to Jack Peterson was tendered on the State's cross-claim and became Exhibit A. It included Mr Peterson's evidentiary statement filed 2 July 2013 with annexures, a report of Dr Patricia Jungfer, psychiatrist, dated 10 December 2012, and ATO Notices of Assessment from 2003 to 2013.
2. Mr Peterson says in his evidentiary statement that Mr Taylor was his Year 1 teacher at Young Public School. Mr Taylor had a table and chair at the back of the classroom, near the entrance. The blackboard was at the front of the room. He recalls that Mr Taylor said to him, "Come sit with me to read." He picked Mr Peterson up and put him on his lap. He then placed his hands under Mr Peterson's shorts and underpants and rubbed his groin and penis for about three to five minutes. Mr Peterson states that this happened on several occasions and lasted for three to five minutes each time. On other occasions, Mr Taylor thrust his groin into Mr Peterson's buttocks when Mr Peterson was sitting on his lap. Mr Peterson recalls feeling something hard in his pants. On occasions when Mr Peterson sat on his lap on read in front of the class, Mr Taylor rubbed his groin above his shorts.
3. Mr Peterson states that Mr Taylor told him not to tell anyone about the way that they read because, "You [Mr Peterson] and I will get into trouble if you tell anyone about how we read." One day, his mother asked him whether Mr Taylor had ever done anything to hurt him and whether Mr Taylor had touched him. Mr Peterson says that he responded, "He touches me on my joey," meaning his penis. He thought that he was going to get into trouble and recalls pleading with his mother not to tell anyone. He does not recall speaking to any other children about it because he believed that they would dislike him if they knew. He was taken to the police station a couple of days later and told police what had happened. He said that it had happened only twice because he was worried about getting into trouble if he told the truth.
4. An incident is related in which Mr Peterson was in the sick bay, near the administration desk, some weeks later. He heard Mr Taylor saying to an administrative worker, "I told them not to put me with the younger kids, I told them to put me with the older kids." Mr Peterson recalls relating this to what had happened in the course of the previous few weeks.
5. Mr Peterson recalls going to court, giving evidence, and being cross-examined. He says that he felt scared and that the questions were put to him quickly and in a manner that was difficult for him to understand. He states that, on one occasion before he had given evidence, he and Mr Taylor were in adjoining toilet stalls at the same time. Mr Taylor said to him words to the effect, "You will pay for this."
6. Prior to Year 12, Mr Peterson left school and commenced an apprenticeship with his stepfather, an electrician. He says that he felt very insecure throughout his high school years and like he never fitted in. In Year 7, other students claimed that he had made up the allegations about Mr Taylor. He started drinking in 1995, at the end of Year 10. He says that that was the first time that he felt positive and confident as a teenager. From that point onwards, he drank every weekend to the point of blacking out. He drank even more heavily during his apprenticeship. He often took days off work or went to work drunk. He was treated for injuries sustained whilst intoxicated on occasion.
7. Mr Peterson became a qualified electrician after completing his apprenticeship. He worked as a subcontractor between 2002 and 2004 and then set up his own business. He describes himself as "very unreliable" as an electrician and business owner between 2004 and 2009 because of his alcohol abuse. In 2002, Mr Peterson started a relationship with his now wife. They married in 2004 and have three children. In his evidentiary statement, Mr Peterson describes an incident in May 2009 in which he came close to attempting suicide after a night's drinking, but stopped himself for the sake of his wife and children. He has not consumed alcohol since that day and attends Alcoholics Anonymous two or three times a week.
8. He states that he has dreams and flashbacks about the assaults. He worries about what people think of him and lacks confidence in his own abilities. He states that he continues to crave alcohol at times of distress. He experiences feelings of worthlessness and resentment.
9. Annexed to Mr Peterson's evidentiary statement is a copy of his statement to police on 4 February 1986. He was asked whether Mr Taylor touched him and he responded, "Yeah." He indicated his groin area when asked where it was that Mr Taylor touched him. He called the area his "joey" and said that Mr Taylor had touched his underpants, rather than his clothes.
10. Mr Peterson was cross-examined on 30 August 2016. He agreed that his parents and teachers used to tuck his shirt in from time to time and that Mr Taylor tucked his shirt in outside his underpants. He stated that Mr Taylor, as a teacher, had "some input" into teaching him how to read. Mr Peterson disagreed with the proposition that Mr Taylor had never placed his hands under his shorts or underpants whilst Mr Peterson was sitting on his lap.
11. He said that he was not telling the truth when he told police in early 1986 that Mr Taylor did not touch him on the skin but on his underpants. He said that he was frightened because Mr Taylor told him not to say anything about being touched under the underpants and that if he ever did he would be in trouble. He was scared to tell the truth regardless of whether Mr Taylor was present.
12. He was cross-examined about his statement that Mr Taylor would threaten to put them in the cupboard. It was suggested to him that the only cupboard in the classroom would have been too small for a pupil to fit inside. Mr Peterson responded as follows: "A…it's a long time ago and thinking of cupboards and that. But I don't know whether it was the actual size of the cupboard or whatever but it was the actual threat that was put against me, that was the worrying part, not actually the size of the cupboard, but I'm assured at that age I would fit in the cupboard. Q. There was never any discussion about a fox in the cupboard? A. He told me that there was a fox in the cupboard when the cupboard was shut. 'I will put you in the cupboard because there is a fox in there.'"
13. It was then put to Mr Peterson that he never saw any fox in the cupboard. Mr Peterson agreed with this. It was then suggested to him that he had no fear of there being a fox in the cupboard, to which Mr Peterson replied: "I don't know but at the time if someone says that there is a fox in the cupboard it might scare you a little at that age. But I understand now that there probably wouldn't have been a fox in the cupboard, that it would have been some sort of scare tactic or something, I assume."
14. He disagreed when it was put to him that Mr Taylor had never rubbed his groin or penis, rocked his hips towards him, or touched or stroked him below his underpants. He also disagreed with the proposition that Mr Taylor had never said "You'll pay for this" in the courthouse toilet stalls.
15. The committal transcript discloses that in 1986 Mr Peterson gave evidence of Mr Taylor touching his penis as he sat on his knee and rubbing it through the outside of his clothing. Although the transcript also discloses the evidence of five other complainants and evidence from a number of witnesses of early complaint, I have only had regard to the evidence of Mr Peterson in determining whether the torts alleged by him are proven.

Conclusion regarding Mr Peterson's complaints

1. I have had regard to Mr Peterson's evidentiary statement, his police statement and his committal transcript. The fact of his contemporaneous complaint supports the allegations now made in this matter. I have also had regard to his evidence in this Court, not only his answers in cross-examination but also the manner in which he gave them. He was an impressive witness and gave thoughtful intelligent answers. He answered questions directly. He was not evasive. At no time did he exaggerate or become melodramatic in any way. He presented as a somewhat stoic witness. I found his answers in relation to the threat of being put in the cupboard to be particularly persuasive.
2. I have had regard to the fact that there was very little cross-examination of Mr Peterson. The record of the proceedings shows that it only lasted 17 minutes. His evidence was not challenged in any significant respect. I have also had regard to the fact that Mr Taylor indicated that he was unwell when he was about to enter the witness box, the matter was adjourned and he never attended court again thereafter.
3. I am comfortably satisfied that Mr Peterson's evidence is to be accepted. In particular, I am satisfied that Mr Taylor routinely rubbed Mr Peterson's groin and penis in the classroom and that on occasion he would thrust his groin into Mr Peterson's buttocks when his penis was erect and Mr Peterson was sitting on his lap. I am satisfied that he rubbed his groin in the classroom on other occasions. I am satisfied that Mr Taylor told him that he would be in trouble if he told anyone what was happening. I am satisfied that Mr Peterson told police that it only happened twice because he was worried about getting into trouble. I accept that he heard Mr Taylor make the statement referred to above at [67] capable of amounting to an admission. I am satisfied that he was scared and confused when he gave his evidence in court as a child.
4. I am comfortably satisfied that Mr Taylor is a tortfeasor in relation to Mr Peterson's complaint.

Evidence in relation to Mr Smith

1. Tendered in relation to Stephen Smith was a bundle of documents comprising his evidentiary statement filed 12 October 2012 with annexures, a psychiatric report under the hand of Dr Jungfer dated 11 April 2012, medical records, and ATO Notices of Assessment from the years 2002 to 2013.
2. In his evidentiary statement, Mr Smith states that he was in Year 1 at Young Public School in 1985. Mr Taylor was his teacher. He says that he was abused by Mr Taylor on a weekly basis for a number of months. His first recollection is Mr Taylor calling him in from the playground at lunchtime. Mr Taylor said something like, "Come with me, I want to give you extra reading lessons." He asked Mr Smith to lie on his stomach on the classroom floor and handed him a book. Mr Smith recalls Mr Taylor lying on top of him. He recalls that Mr Taylor's penis was hard and that Mr Taylor thrust his pelvis into him. Mr Smith states that this occurred on more than one occasion, but he does not remember how many times. It happened in the same place each time, on the floor beside Mr Taylor's desk near the door to the classroom.
3. Mr Smith states that, on other occasions, Mr Taylor fondled his penis. He would say words to the effect of, "Lower your shorts all the way to the ground, your shirt is not tucked in." He would then help Mr Smith lower his shorts, fondle his penis, pull his shorts back up, and tuck in his shirt. Mr Smith does not recall how many times this happened.
4. Mr Smith also relates incidents in which he would sit on Mr Taylor's lap at his desk while the rest of the class was facing the blackboard. Mr Smith says that, on these occasions, he would have his back to Mr Taylor, with his buttocks in his groin area. Mr Taylor would have on hand on Mr Smith's leg and would use the other hand to draw numbers on Mr Smith's back for him to guess. At these times, Mr Taylor would thrust his pelvis against him and Mr Smith could feel his penis becoming hard. Mr Smith does not recall how many times this happened.
5. According to Mr Smith's evidentiary statement, Mr Taylor used to hit him and other children with a stick for what Mr Smith regarded as superficial reasons. Mr Smith recalls one occasion when Mr Taylor pulled his pants and underpants down and smacked him on his bare bottom for having his shirt untucked. Mr Smith says that, when he smacked other children, he would make the rest of the class face the blackboard, saying words to the effect of, "Do not turn around." Mr Smith recalls that Mr Taylor was prone to sudden outbursts of anger.
6. During the school holidays, Mr Smith went to stay with his father and his father's partner in Goulburn. He told his father's partner what had happened during the first time of Year 1. Things then "escalated". His mother was told. She informed the school and the police and Ombudsman became involved. Mr Smith was moved to another teacher's Year 1 class. Mr Taylor was not removed from the school immediately, which made Mr Smith feel uncomfortable going to school. Mr Taylor was eventually removed from the school some weeks or months after Mr Smith was moved to the other class.
7. Mr Smith describes the court process as "very distressing". The matter was adjourned several times and moved around to different country towns. It seemed as if people were talking about what had happened to him every day and that there was a lot of "commotion". He was afraid that he had done something wrong and that he was at fault for what had happened. He thought that people did not believe him and that he was making up stories.
8. After the case had finished, Mr Smith and his family moved away from Young and eventually settled in Sydney. Somehow, word spread to his primary school in Sydney about what had happened to him in Young. Mr Smith recalls hitting another student because he was talking about it and then being moved to another primary school. He says that he became very disruptive in his early high school years, truanting and being suspended regularly. He saw counsellors, but they did not help very much. He saw some psychiatrists. He eventually moved to a special needs high school in Hurstville, but left before completing Year 9. At the age of 14, he began smoking marijuana and, at 19, started to abuse alcohol.
9. His first job after leaving school at 14 was as a part-time kitchen hand. He then worked in paint stripping at an antique factory. At the age of about 21, he found work at a Sydney hotel in antique restoration. However, he states that he lost that job six years later as a consequence of his alcohol and benzodiazepine abuse. In 2004, he entered a period of very severe depression. His partner of four years left him suddenly and, about a week later, he attempted suicide by taking a box of Valium. He had considered suicide many times prior to this attempt. He spent about a week in Rozelle Hospital. He came under the care of another psychiatrist following his discharge, but did not continue seeing him.
10. Mr Smith states that he suffers from anxiety and has very low self-esteem and experiences difficulties with concentration and memory. There are periods of low mood that last for several hours or days. He blames himself for what happened. He has used alcohol to excess in order to reduce his anxiety, but says that he is currently drinking only about three standard drinks per night because his young daughter has given him as reason not to drink as much as he used to. He states that he is worried that his daughter might suffer abuse at school as well.
11. Mr Smith's education was poor and he has only basic reading and writing skills. His maths and spelling skills are also sub-standard. He says that, because of the stress and anxiety that he has suffered, he has never had the opportunity to consider what sort of career to pursue.
12. As stated above, in September 2011, a detective from Queensland contacted Mr Smith to inform him that Mr Taylor was being investigated in relation to multiple complaints. At that point, he states that he was motivated to take legal action against Mr Taylor.
13. Mr Smith was cross-examined by Mr Glissan on 2 September 2016. He disagreed with the suggestion that on no occasion did he read in the classroom during lunchtime. He said that he read in classrooms during lunchtime with Mr Taylor. He did not accept the proposition that Mr Taylor never called him into the classroom during lunchtime. He did not accept that Mr Taylor never asked him to lie on his stomach on the floor and read.
14. The following exchange occurred between Mr Glissan and Mr Smith as to the position that Mr Taylor was in when he was lying on top of Mr Smith: "Q. You say you felt Mr Taylor lying on top of you. Correct? A. (No verbal reply) Q. You felt it? A. That's correct. Q. Did you see any part of his body at that time? A. No. Q. So you don't know how his body was positioned in relation to your body? Assuming that this happened. A. He was in the pushup position on top of me, behind me. Q. How do you know that? A. Because he was pushing his penis into me. So he was behind me. He was on top of me, in the pushup position. Q. You were clothed? A. I was clothed. Q. You felt some pressure against your buttocks. Is that correct? A. I felt Mr Taylor's penis on my buttocks. Q. But you don't know where his - you hadn't seen any part of his body so you don't know where his hands were? A. His hands were right next to my shoulders, on either side. He was in the pushup position. Q. Well, how do you know that? How do you know that? A. Because in my peripheral vision I could see his arms next to my shoulders. Q. Well, I asked you a moment ago "did you see any part of his body" and you said "no". You want to change that evidence? A. No. … Q. You either saw part of his body or you didn't see part of his body. Which is it? A. I felt his T-shirt on the back of my head, brushing against my hair, so he was very close to me. I could feel his arm hairs on my shoulders and I could smell his breath on the back of my neck. He was very close to me. Q. Do you consider it possible that he was crouched over you, looking at what you were reading just to check what was happening? A. Yes, while he was rubbing his penis on my bottom. Q. You're sure of that, are you? A. One hundred per cent. Q. You don't think it could have been something hard in his pocket that was accidentally rubbing against your bottom? A. Absolutely not. Q. A set of car keys, for example? Just as a possibility? A. No."

Conclusion regarding Mr Smith's complaints

1. I have had regard to Mr Smith's evidentiary statement, his police statement and his committal transcript. The fact of his contemporaneous complaint supports the allegations now made in this matter. I have also had regard to his evidence in this court, not only his answers in cross-examination but also the manner in which he gave them. He was very clear as to central events. He was a particularly impressive witness. He was well spoken and is obviously still affected by what occurred to him when he was a child. He was thoughtful in his answers and on occasion would agree with part of a question only and not the rest of it. He was unshaken in cross-examination. I found his evidence to be very persuasive. As with Mr Peterson, I have had regard to the fact that there was very little cross-examination of Mr Smith. The record of proceedings shows that his cross-examination took 40 minutes.
2. As with the other witnesses, I have also had regard to the fact that Mr Taylor indicated that he was unwell and unable to give evidence just as he was about to enter the witness box. The matter was adjourned and thereafter he never attended court again.
3. I have had regard to the fact that, in 1986, Mr Smith gave evidence in court that Mr Taylor rubbed his penis on his bottom at lunchtime when everybody else was out of the classroom and that the penis felt hard. As with the other plaintiffs, although the transcript also discloses the evidence of five other complainants and evidence from a number of witnesses of early complaint, I have only had regard to the evidence of Mr Smith in determining whether the torts alleged by him are proven.
4. I am comfortably satisfied that Mr Smith's evidence is to be accepted. In particular, I am satisfied that Mr Taylor would routinely call Mr Smith into the classroom at lunchtime, lie on top of him with an erect penis, and thrust his pelvis into him. I am satisfied that, on other occasions, Mr Taylor fondled Mr Smith's penis by using the excuse of tucking in his shirt. I am also satisfied that he would put Mr Smith on his lap and thrust his groin area towards Mr Smith and, in doing so, press his erect penis into the child's groin area. I also accept that, at the same time as these assaults, Mr Taylor would also physically assault Mr Smith in the manner that Mr Smith described and that this would have made him scared to give a full account of what was occurring.
5. I am comfortably satisfied that Mr Taylor is a tortfeasor in relation to Mr Smith's complaint.

Evidence in relation to Mr Clarke

1. A bundle of documents in relation to James Clarke was tendered on the State's cross-claim and became Exhibit B. That bundle included Mr Clarke's evidentiary statement filed 2 July 2013 with annexures, a report of Dr Jungfer dated 4 February 2013, and ATO Notices of Assessment from 2003 to 2013.
2. Mr Clarke states in his evidentiary statement that he attended Young Public School from Kindergarten to Year 2. He was taught by Mr Taylor in 1985, when he was in Year 1. He goes on to describe a number of incidents involving Mr Taylor. Mr Clarke recalls that Mr Taylor was an aggressive teacher and that he would place children over his knee and smack them on the bottom in front of the class if they were not quiet. He recalls being singled out in this way on three occasions. He states that his parents did not believe him when he told them about this. Mr Clarke also relates an incident in which Mr Taylor asked students on lie on the floor on their stomachs to read books. Mr Taylor then lay on top of each child as he or she read. Again, Mr Clarke told his parents, but they did not believe him.
3. Mr Clarke states that, on a number of occasions, Mr Taylor collected him from the playground and took him back to the classroom, where "something" occurred. Mr Clarke says that he cannot recall what occurred because he seems to have blocked it from his memory. He has a "very sad and deeply depressing feeling" about this incident. On another occasion, Mr Taylor tucked his shirt into his underpants. There were many times when Mr Taylor asked Mr Clarke to sit on his lap. He would use a finger to "draw" on the child's back and ask him to guess what was being drawn. Mr Taylor told him not to tell anyone.
4. Mr Clarke recalls that there was a period of time when there was "a lot of activity" between his parents, other parents, and the school. He recalls going to the police station and giving evidence in court twice. He describes this as a "very scary time". He remembers learning that Mr Taylor had been acquitted and being told by his mother that this was because there was not enough evidence. He says that other young children at Young Public School teased him and said that he had made up the allegations.
5. The evidentiary statement of Mr Clarke sets out the impact of the alleged assaults on his educational and career trajectory. He describes feeling uncomfortable around male teachers and performing better when taught by female teachers. In Year 11, a male teacher made fun of him in front of the class and he decided to leave school and not return. He did seasonal work picking cherries before going to England for two months to visit relatives. In 1998, he commenced working in piggeries as a labourer.
6. In 2000, he joined the army. After his initial training, he was placed at a combat engineer training school. He relates an incident in which his three roommates pulled his pants down and laughed at him after coming home from a night of drinking. He says that this caused him to have a flashback to Mr Taylor lying on his back and "caused a rapid downward spiral", which culminated in his becoming suicidal and being admitted to an army hospital. Records relating to his hospital admission are annexed to his evidentiary statement. In one document, headed "Specialist Referral and Report", the referring doctor states that he suspected that Mr Clarke had post-traumatic stress disorder ("PTSD") with secondary depression. He was eventually discharged from the army as unsuited to being a soldier.
7. The impact of the alleged assaults on Mr Clarke's social and emotional life, and on his physical health, is also detailed. He started drinking after being discharged from the army and returning to Young in 2001. He has maintained heavy alcohol consumption every night since then, with the exception of some short periods of abstinence. He says that he drinks alcohol to self-medicate and that it calms him. He states that he decided to join in this claim because he cannot afford appropriate treatment and because he desires closure. At the time of making his evidentiary statement, he was working at an electrical wholesaler.
8. Mr Clarke is married and has four children.
9. Annexed to Mr Clarke's evidentiary statement is a transcript of his interview with police on 18 February 1986. He describes Mr Taylor twice - once at "little lunch" and once at "big lunch" - taking him from the playground to a classroom and lying on his back while he was reading. He was asked whether Mr Taylor had tucked his shirt in. He said that Mr Taylor had, and that he had touched his "tail" twice "on the skin". He described his tail as "private property".
10. Mr Clarke was cross-examined at the hearing of the cross-claims on 30 August 2016. He was asked somewhat remote questions in cross-examination as to what desk he was sitting at in the classroom in 1985, what colour group he was in, and whether there was a linoleum strip that came in from the door. He denied that he was mistaken in saying that there had been reading in the classroom during the lunch break. Mr Glissan suggested that Mr Taylor had been beside him while he read aloud and that that was the way in which Mr Taylor checked his reading. Mr Clarke responded that, "The bits that I remember I remember differently." He disagreed with the proposition that Mr Taylor had never laid on top of him while he was reading a book. He denied that it was possible that the pressure that he had felt was Mr Taylor's hand on his back, because he remembered Mr Taylor lying on his back. He disagreed that Mr Taylor had tucked his shirt into his shorts, rather than into his underpants.
11. Mr Glissan then asked Mr Clarke a number of questions about his time in the army. He agreed that on one night some fellow soldiers pulled his pants down and this led to depression which ultimately led to his discharge from the army. He agreed that he had had a problem with drinking, but that it had been four weeks since his last drink. He said that his drinking had affected his employment in that others often had to drive him to work. He confirmed that he had never lost employment because of his drinking.

Conclusion regarding Mr Clarke's complaint

1. In assessing whether I am comfortably satisfied that Mr Taylor assaulted Mr Clarke in the manner alleged by him in this matter, I have had regard to Mr Clarke's evidentiary statement, his police statement and his committal transcript. The fact of his contemporaneous complaint supports the allegations now made in this matter. At no time during his evidence was his credibility weakened in any way. When he could not remember, he said so. His demeanour was direct. He gave me no reason not to believe him either in the content of his evidence or the manner in which he gave it.
2. He was only cross-examined on the limited areas outlined above. The record of proceedings shows that his cross-examination took 24 minutes.
3. I acknowledge that there were gaps in his account in his evidentiary statement, but I have had regard to the allegations that were made at the time. I have had regard to the fact that, in 1986, Mr Clarke gave evidence in court that Mr Taylor smacked him on his bare bottom and that he would pull down his pants to smack him. He also gave evidence that, "He lied on top of me when I was reading. I was laying on my tummy." He gave evidence at that time that Mr Taylor was lying on his back and kept moving around on him. As with the other plaintiffs, although the transcript also discloses the evidence of five other complainants and evidence from a number of witnesses of early complaint, I have only had regard to the evidence of Mr Clarke in determining whether the torts alleged by him are proven.
4. I am comfortably satisfied that Mr Clarke's evidence is to be accepted. In particular, I accept that Mr Taylor lay on top of him as he read and moved around on him and that he saw this happen to other children. I also accept that Mr Taylor would smack his bare bottom. I accept that his parents did not believe him and that this would have been very upsetting to a young child. I accept that he would be taken back to the classroom at lunchtime and that something occurred that he has now blocked out of his memory. I make no finding in relation to that evidence. I also accept his evidence that Mr Taylor would sit Mr Clarke on his lap and touch his back. I accept that giving evidence was "scary" for him and that he was bullied for making the allegations that he did.
5. I have also had regard to the fact that Mr Taylor indicated that he was unwell as he was about to enter the witness box. The matter was then adjourned. Not only is there thus no evidence from Mr Taylor to take into account in assessing whether I am comfortably satisfied that the assaults occurred beyond a bare denial, I draw an adverse inference from the timing of Mr Taylor's withdrawal from the matter.
6. I am comfortably satisfied that Mr Taylor is a tortfeasor in relation to Mr Clarke's complaint.

Conclusion: I am thus satisfied that Mr Taylor did what is alleged in the statements of claim

1. I am comfortably satisfied that Mr Taylor is a tortfeasor within the meaning of s 5(1)(c) of the Act in relation to all three cross-claims.

Issue 2: Is Mr Taylor entitled to be indemnified under s 3 of the Employees Liability Act?

1. Mr Taylor relied upon an alternative defence that, if the Court found that he did assault the children as alleged, he was entitled to be indemnified under s 3 of the Employees Liability Act. That section is in these terms: "3 Employee not liable where employer also liable (1) If an employee commits a tort for which his or her employer is also liable: (a) the employee is not liable to indemnify, or to pay any contribution to, the employer in respect of the liability incurred by the employer, and (b) the employer is liable to indemnify the employee in respect of liability incurred by the employee for the tort (unless the employee is otherwise entitled to an indemnity in respect of that liability). (2) Contribution under this section includes contribution as joint tortfeasor or otherwise."
2. Section 5 of that Act limits its application as follows: "5 Act not to apply to serious misconduct of employee or to conduct not related to employment This Act does not apply to a tort committed by an employee if the conduct constituting the tort: (a) was serious and wilful misconduct, or (b) did not occur in the course of, and did not arise out of, the employment of the employee."
3. I am satisfied that Mr Taylor is not entitled to any indemnity for his actions as perpetrating sexual abuse on children is clearly "serious and wilful misconduct" within the meaning of s 5 of the Employees Liability Act. There is no doubt that such conduct is serious and there could be no doubt that it was wilful to the extent that he intended his actions.
4. I have had regard to the fact that some of the allegations made against Mr Taylor pertained to physical rather than sexual abuse and that greater physical discipline of children in State schools in 1986 was permitted than is now the case. Despite this, having regard to the particular allegations made by the plaintiffs in this regard, I am not satisfied that such physical discipline arose out of his employment. In any event, the physical discipline was closely connected to the sexual abuse in that it led the children to fear him and to be more circumspect in their complaints.
5. I am thus not satisfied that any of the physical assaults that I found occurred were disciplinary in nature.
6. The next question is whether Mr Taylor, if sued, would be liable in respect of the plaintiffs' psychiatric harm.

Issue 3: Is Mr Taylor responsible for the damage suffered by the plaintiffs?

1. I am satisfied that Mr Taylor's actions come within the term "sexual misconduct" in s 3B(1)(a) of the Civil Liability Act. That section provides that, with certain exceptions not presently relevant, the Act does not apply to or in respect of civil liability (and awards of damages in those proceedings) of a person in respect of an intentional act that is "sexual assault or other sexual misconduct" committed by the person.
2. Thus the statutory test for causation in s 5D of the Civil Liability Act (the "but for" test) is not applicable. Rather, in assessing whether there is a probable causal connection between Mr Taylor's actions and the harm suffered (psychiatric injury), I have applied common sense to the facts of this case and inquired whether Mr Taylor's actions can fairly and properly be considered a cause of the injury: March v E & MH Stramare (1991) 171 CLR 317; [1991] HCA 12.
3. Although assault and battery are described as "intentional" torts, that does not mean that the intention of any particular harm is required.
4. The State's submission on this aspect were was as follows: "The claims brought by [Mr Peterson], [Mr Clarke] and [Mr Smith] against the cross-defendant were founded in tort law as actions in the case. Damages were (with the possible exception of unintended consequences as discussed by Leeming JA in Croucher v Cachia (ibid) in which case the Civil Liability Act 2002 (NSW) had application) at large."
5. The reference to the observations "by Leeming JA in Croucher v Cachia (ibid)" is to the State's earlier submission that: "It is probable that the intentional acts complained of by [Mr Peterson], [Mr Clarke] and [Mr Smith], were not committed by the cross-defendant with the intention of causing harm to each of them but rather, that they were done recklessly (i.e.; the damage done to them was the likely unintended consequence of acts presumably directed towards some form of aberrant sexual gratification). As to the division between intended or unintended consequences of an intentional act, see; Croucher v Cahia [2016] NSWCA 132, per Leeming JA (At [115]-[119])."
6. The reference to the judgment of Leeming JA in Croucher v Cachia at [115]-[119] concerns the scope of 3B(1)(a) of the Civil Liability Act and in particular the phrase "civil liability of a person in respect of an intentional act that is done by the person with intent to cause injury or death". Given that the torts in question are "sexual assault or other sexual misconduct", s 3B has no applicability in any event.
7. The expert evidence regarding the psychiatric injuries suffered by the plaintiffs in this matter is as follows.

Mr Peterson

1. In addition to the evidence of Mr Peterson summarised above at [65] - [78], Dr Jungfer furnished a report dated 10 December 2012. She had examined Mr Peterson on 3 December 2012. Dr Jungfer diagnosed Mr Peterson as having complex post-traumatic stress disorder ("PTSD") and an alcohol abuse disorder that was in remission. He scored 46 on the Beck Depression Inventory (consistent with severe depression) and 39 on the Beck Anxiety Inventory (consistent with severe anxiety).
2. Dr Jungfer described Mr Peterson's presenting complaints in her report. They included feeling constantly tense and nervous. He used to drink alcohol on a daily basis to change how he felt about himself. He described not having negative thoughts about himself when he was drinking. He was attending regular Alcoholics Anonymous meetings and, whilst he no longer drank, he thought about drinking every day. He constantly thought about what happened to him as a child and about how others did not believe him. Dr Jungfer wrote that he became distressed and teary when talking about giving evidence in court. She noted that he had never undergone treatment (apart from two sessions with a counsellor), nor had he been given a diagnosis.
3. Dr Jungfer stated in her report: "It is reasonable to state that for a child to experience the traumatic events such as a teacher fondling him and threatening to harm the child that this would be highly distressing for a child who at that stage respected and admired his teachers. To then subsequently be required to give evidence within a court in what is a frightening environment for even adults must have been a further traumatising event for the child. For the matter then to be acquitted would further increase the child's anxiety and left him with no sense of self-worth and self-belief. Following this, [Mr Peterson] continues to be highly distressed. He was never offered any counselling or treatment for the original sexual abuse nor for the experiences within the court setting. There does not appear to have been any steps taken at that time for appropriate measures to protect and guard what was a vulnerable child. These events clearly were the precipitating events for his current psychiatric disorder, his Complex Post Traumatic Stress Disorder. Over the years, the alcohol abuse and the traumatic events that have arisen within the context of the alcohol abuse, the difficulties with conflict, fights, the difficult relationships with his extended family have all been secondary to the alcohol abuse and the untreated Complex Post Traumatic Stress Disorder. All these factors and events stem from the original abuse when he was 6 years of age. Since [Mr Peterson] has ceased his alcohol abuse, he continues to be troubled by severe anxiety, phobic avoidance behaviour, impaired social relationships and difficulties with regards to his emotional stability. He manages this by attending Alcoholics Anonymous meetings although notes continued difficulties with regards to poor emotional control. [Mr Peterson] would benefit from appropriate psychiatric care and treatment for his Complex Post Traumatic Stress Disorder."
4. Dr Jungfer opined that it was difficult to prognosticate in Mr Peterson's case as he had not yet been exposed to treatment. She stated that his success in ceasing alcohol use suggests that he is a person of some resilience.
5. I have applied common sense to the facts of this case to determine whether Mr Taylor's actions can fairly and properly be considered a cause of Mr Peterson's injuries. The uncontradicted expert evidence before me is that the psychiatric injuries "stem from the original abuse when he was 6 years of age". I have regard to the fact that much of the trauma appears to be the result of the court process, not being believed and then being bullied about this after the event. This does not change the fact that it was Mr Taylor's actions that caused Mr Peterson's injuries. As a matter of common sense, it is to be expected that committing an assault or battery may lead to court process that may cause psychiatric injury to a young child.
6. I am satisfied that Mr Taylor's conduct caused the psychiatric injury to Mr Peterson.

Mr Smith

1. In addition to the evidence of Mr Smith summarised above at [84] - [96], the State also relied upon a psychiatric report of Dr Jungfer dated 11 April 2012. Dr Jungfer assessed Mr Smith on that day. She diagnosed him with chronic PTSD and an alcohol abuse disorder and recommended a course of psychodynamic psychotherapy. She opined that his prognosis was guarded given the length of time that he had been symptomatic and his prior negative experiences with counsellors and psychiatrists. The history of Mr Smith's symptoms is canvassed in her report, including that he had experienced significant difficulties with respect to anxiety and depressed mood since his adolescence. He described being exhausted by the constant anxiety and depression that he experienced.
2. With respect to the relationship between Mr Smith's psychiatric conditions and the sexual abuse, Dr Jungfer wrote: "[Mr Smith's] symptom presentation is consistent with that of chronic post traumatic stress disorder, with the traumatising event being the perpetration of the abuse and the response of adults on the disclosure of the abuse. [Mr Smith's] posttraumatic stress disorder has been maintained over the years due to the absence of treatment and due to difficulties in terms of understanding the processes that have happened. [Mr Smith] currently continues to present with a posttraumatic stress disorder. The precipitating issue was he experiences a traumatic event in his children where he feared harm, and then the response of adults implied that he had done harm. He described difficulties with emotional instability, periods of instability, periods of anxiety and depression, impairments of concentration, a change in his quality of relationships with others. He remains preoccupied with the perpetrator and constantly relives the experiences that occurred in his childhood. [Mr Smith's] psychiatric symptoms have a substantive impact on his functioning from a social, interpersonal and occupational capacity. Substance abuse has complicated his presentation, and it was evidence when obtaining a history from him that the substance abuse was a form of self-medication."
3. I have applied common sense to the facts of this case to determine whether Mr Taylor's actions can fairly and properly be considered a cause of Mr Smith's injuries. The uncontradicted expert evidence before me was that Mr Smith's symptom presentation was "consistent with that of chronic post-traumatic stress disorder, with the traumatising event being the perpetration of the abuse and the response of adults on the disclosure of the abuse". As with Mr Peterson, it seems that at least some of the trauma experienced by Mr Smith emanates from the court process. As a matter of common sense, it is to be expected that the commission of indecent assaults on a child may lead to court process that may cause psychiatric injury to a young child.
4. I am satisfied that Mr Taylor's conduct caused the psychiatric injury to Mr Smith.

Mr Clarke

1. In addition to the evidence of Mr Clarke summarised above at [103] - [112], the State relied upon a psychiatric report of Dr Jungfer. She assessed Mr Clarke on 22 January 2013. In her report, she diagnosed a significant alcohol abuse disorder and opined that he was using alcohol to self-medicate his severe anxiety symptoms, which were related to a chronic PTSD. She considered that he also suffered depression secondary to PTSD. Dr Jungfer administered the Beck Depression Inventory, in which Mr Clarke scored 27 (consistent with severe depression), and the Beck Anxiety Inventory, in which he scored 30 (consistent with severe anxiety).
2. Mr Clarke reported nightmares, phobic avoidance behaviour, hypervigilance, panic attacks and checking behaviours. He told Dr Jungfer that his anxiety symptoms were exacerbated by talking about the past. She opined that this had limited his ability to seek treatment and legal redress. She reported that Mr Clarke had lost friendships and social relationships as a consequence of his alcohol abuse, although his employment (except in the army) had remained largely unaffected.
3. As to the relationship between the abuse alleged and Mr Clarke's psychological and psychosocial difficulties, Dr Jungfer stated: "[Mr Clarke's] background history indicates that he has a strong genetic vulnerability to mood disorders, with both a mother and a sister requiring pharmacological treatment with antidepressants. This would indicate that [Mr Clarke] is more vulnerable than other individuals for the development of mood symptoms in association with significant psychosocial stress. The challenge in the case of [Mr Clarke] is that the substantial psychosocial stress event occurred in childhood at an early formative period, therefore it is difficult to clarify the inter-relationship between the psychosocial stress and his subsequent adult development of mood symptoms. It is because of his genetic vulnerability he is more likely to develop mood symptoms in association with substantive stressful life events. The information provided by [Mr Clarke] would indicate that he has abused alcohol since a young adult to deal with his anxiety symptoms and his problems with regards to social scrutiny. He has also used the alcohol to diminish his post-traumatic stress symptoms. [Mr Clarke] presents with an alcohol abuse disorder, he does not describe any withdrawal symptoms or cravings suggestive of a dependence condition. [Mr Clarke] has not had the normal adverse social consequences of excessive alcohol abuse, although I do note the disruption of all social networks because of his alcohol consumption. [Mr Clarke] as a consequence of the sexual abuse that he experience in childhood has developed a lifelong anxiety disorder. The nature and characteristics of the symptoms he reports are consistent with that of a post-traumatic stress disorder. He reports recurrent intrusive thoughts and recollections regarding the abusive experiences in his childhood. He avoids the location where the abuse occurred. He describes difficulties with regard to anxiety, panic attacks, fear of social scrutiny and a sense of discomfort in public places. He avoids social interaction. He also has difficulties with regards to dysphoric mood, and at times suicidal thinking. He has a sense of low self-esteem and views himself in a negative fashion. He has feelings of guilt and worthlessness. [Mr Clarke's] current clinical presentation is consistent with that of post-traumatic stress. Talking about the incidents that occurred to him causes him to feel anxious, unwell and he avoids recounting the episodes. Particularly traumatising for him was the experience of giving evidence in court and a sense that he was not believed, which has also had markedly negative impact on his ability to seek appropriate treatment for his symptom complaints."
4. Dr Jungfer considered Mr Clarke's prognosis to be "guarded", given his phobic avoidance behaviour, associated reluctance to initiate treatment, and alcohol abuse. She recommended referral to a clinical psychologist with expertise in the management of PTSD or to a consultant psychiatrist, with an initial course of 20 consultations. She also recommended that a general practitioner or psychiatrist prescribe anti-depressant medication.
5. I have applied common sense to the facts of this case to determine whether Mr Taylor's actions can fairly and properly be considered a cause of Mr Clarke's injuries. The uncontradicted expert evidence before me was that, "[Mr Clarke] as a consequence of the sexual abuse that he experienced in childhood has developed a lifelong anxiety disorder. The nature and characteristics of the symptoms he reports are consistent with that of a post-traumatic stress disorder." The contemporaneous records as to Mr Clarke's discharge from the army also support a conclusion that he was suffering from PTSD at that time due to the tortious conduct of Mr Taylor. As with both Mr Peterson and Mr Smith, it seems that at least some of the trauma experienced by Mr Clarke emanates from the court process. Further, Mr Clarke was "triggered" by some hazing whilst in the army. As a matter of common sense, it is to be expected that committing an assault or battery may lead to court process, which may cause psychiatric injury to a young child, and that later events in life may lead to ongoing trauma if something occurs that reminds him of the earlier assaults.
6. I am satisfied that Mr Taylor's conduct caused the psychiatric injury to Mr Clarke.
7. Finally, I note that all three plaintiffs alleged both physical and sexual assaults. The State did not make any submissions as to whether different considerations apply as between the different assaults. I have given consideration as to whether I could find that the physical assaults complained of were tortious in circumstances where corporal punishment was still being used in schools in 1985.
8. I have paid close regard to the nature of the physical assaults alleged and it seems to me that they were closely tied up with the indecent assaults and the threats not to tell anyone of the indecent assaults. On that basis, it seems to me that the physical assaults were also tortious in nature. Despite this, the expert evidence does not dwell in any way on the physical assaults as causing the PTSD suffered by the plaintiffs.

Issue 4: was the State negligent in employing Mr Taylor?

1. The State, having been sued in negligence, settled with the plaintiffs. In each case it did so on the stated basis that it did not admit liability to the plaintiff. However, judgment was entered in favour of each plaintiff.
2. The State tendered evidence in these proceedings that establishes that the Department of Education knew about Mr Taylor's convictions and re-employed him to teach six-year old children.
3. Mr Taylor's teacher's file was summarised in the Ombudsman's Report at [53] - [55] as follows: "[53] The teacher's file shows that in April 1980 allegations of sexual assault were made against him by several students at a school camp where the teacher was stationed. On that occasion the Principal of the camp investigated the matter by taking written statements from the students involved and a statement from the teacher. The Principal recommended that the teacher remain on duty, and took no further action. The teacher was later convicted of indecent assault from events on 24 February and 3 March 1981 at the same school camp. On that occasion the parents apparently complained directly to the police, who acted without first advising the Department of Education. The teacher pleaded guilty and was admitted to bail, to appear for sentence on 18 August 1981, when he was given a $1,000 bond to be of good behaviour for three years from 25 June 1981. The Director of the Region in which the teacher was then stationed recommended that he be asked to resign and, if he refused, that he be dismissed. The teacher refused to resign, was dismissed by the Department, and appealed to the Government and Related Employees Appeal Tribunal. The Tribunal, in its decision dated 9 March 1982, made the following observations, among others: …Teachers are in a special position of trust and responsibility and the mere fact of a conviction for an offence of the sort involved in this case makes dismissal from employment inevitable. The evidence produced before the Tribunal on behalf of the Appellant has, however, in engendered considerable sympathy for his plight….he is a conscientious teacher with much natural ability. Save for the conduct for which he has been convicted, his character is completely unblemished…. The evidence has satisfied the Tribunal that the Appellant's actions in assaulting these boys was totally out of character for him. The Tribunal accepts that they were isolated incidents which are unlikely to recur… Having regard to all these matters the Tribunal is prepared to offer the Appellant the option of resignation from his employment rather than be dismissed. The Tribunal went on to note that the Staff Inspector of Personnel for the Department of Education had, apparently in negotiations with the Teachers Federation, offered an option of three years Leave Without Pay; this had been refused by the teacher, who had pursued his appeal. The Tribunal continued: In the course of final submissions to the Tribunal in this case, the Department's advocate also referred to the Department's readiness to consider the Appellant's re-employment at some later time, and averted to the earlier proposition concerning a period of leave without pay. The option of taking leave without pay is not an alternative to dismissal which the Tribunal would have made available of its own volition…However, because the Department has held out the suggestion of a period of leave without pay as an acceptable alternative to dismissal, the Tribunal regards itself as being in a compromised situation in this respect… The Tribunal directed that Leave Without Pay be granted until 25 June 1984, when the term of the teacher's recognisance was to expire, and said: The question of his return to active teaching duty is then to be a matter for determination by the Director General of Education, having regard to the evidence of the Appellant's suitability for employment available at that time. [54] The teacher's application for Leave Without Pay was then approved, subject to the conditions of "evidence of…suitability" set down by the Tribunal. His file contains a number of folios concerning payment of his superannuation contributions during Leave Without Pay, and the file cover shows corresponding movements among the relevant staff at the office of the Region to which he had been posted at the time of his conviction. A form letter, dated 29 March 1984 and headed "Return to Duty following Approved Leave", then appears on the teacher's file, asking whether he wishes to resume duty, and where. In reply, the teacher listed 22 choices, none of them in Young. Following his posting to Young, his file was sent to Regional Office at Bathurst; the file cover shows no further movements after that time. [55] In October 1983 the Teachers Federation had asked the Department to allow the teacher to resume duty from the beginning of the 1984 school year. A written chronology of events, compiled in 1986 reads: 31.10.83 D. G advises Teachers Federation that he will not alter L.W.O.P. terms. The teacher was appointed to Young Primary School on 7 June 1984 and took up duty there on 25 June 1984."
4. The material subpoenaed from NSW Police contains correspondence relevant to the Department of Education's knowledge of Mr Taylor's convictions as at 1981 prior to his employment at Young Public School.
5. A letter dated 13 July 1981 from the Solicitor for Public Prosecutions to the Acting Chief Administrative Officer, Hunter Regional Office, Department of Education, Newcastle was in these terms: "Regina v Garry Taylor Indecent Assault (2) Newcastle District Court 81/3/0423 You will be aware that the accused abovenamed appeared before His Honour Judge Foord at the Newcastle District Court on 25th June, 1981 in relation to 2 counts of indecent assault. Those charges alleged as follows:- 1. That on 24th February, 1981 at Myuna Bay in the State of New South Wales, indecently did assault [V1], a male person; and 2. That on the 3rd March, 1981 at Myuna Bay in the State of New South Wales, indecently did assault [V2], a male person. Both charges were laid under S.81 Crimes Act, 1900 In each case, a conviction was recorded. His Honour deferred passing sentence upon the accused entering into a recognisance and the amount of $1000 to be of good behaviour for the period of three years and to appear to receive sentence if called upon to do so at any time in respect of any breach within the said period. Although I do not have a transcript of his Honour's remarks on sentence, the fact that the accused had no prior convictions is a matter which his Honour no doubt took into consideration when passing sentence, amongst other matters. I suggest you write to the Chief Court Reporter, Court Reporting Branch, 185 Macquarie Street, Sydney, to obtain a copy of the remarks on sentence."
6. A letter from the Acting Chief Administrative Officer, Hunter Region of the Department of Education to the Clerk of the Peace in Newcastle dated 10 July 1981 seeks further details about the convictions "in order that a decision may be made on appropriate departmental action under the Education Act, 1980, in respect of Mr Taylor's employment."
7. No copy of the remarks on sentence is included in the subpoenaed material, although copies of the recognisance and reports put before Judge Foord on sentence are included. The material confirms that at the time of the convictions Mr Taylor was employed by the Department of Education at the Myuna Bay Fitness Camp, and had taught at primary schools in 1978 and 1978 before commencing at Myuna Bay in 1980.
8. I am satisfied that the State, in its capacity as having the conduct of the school, owed each of the plaintiffs, a student at that school, a duty of care: Ramsay v Larsen (1964) 111 CLR 16; [1964] HCA 40; Geyer v Downs (1977) 138 CLR 91; [1977] HCA 64. As Gummow J observed in Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330; [2007] HCA 42 at 338 [18], "…whatever its scope, a duty of care imposes an obligation to exercise reasonable care; it does not impose a duty to prevent potentially harmful conduct."
9. The question of breach of duty must be considered by reference to ss 5B, 5C and 5D of the Civil Liability Act. Section 5B provides: "5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm."
10. Section 5C provides: "5C Other principles In proceedings relating to liability for negligence: (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk."
11. Section 5D provides: "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."
12. Given what the Department of Education knew about Mr Taylor as at the time it employed him at Young Public School, I am satisfied that it was in breach of its duty of care in employing him and/or, having employed him, not arranging for any supervision or monitoring or counselling of him.
13. The material shows that, after being dismissed in 1981, Mr Taylor appealed to the Government and Related Employees Appeal Tribunal ("GREAT"). The findings of GREAT extracted in the Deputy Ombudsman's Report reveal that it would not have ruled that Mr Taylor be permitted to keep working, but that it felt constrained by the fact that the Department of Education offered Mr Taylor three years' leave without pay. It acquiesced to that proposal.
14. There was no evidence before me that anyone at the school knew about Mr Taylor's past and/or arranged for any supervision of him, nor that he was required to undertake any ongoing counselling. The risk that Mr Taylor may indecently assault the children was clearly present or ought to have been contemplated. I am satisfied that the risk of that harm was not insignificant. There is no evidence that any precautions, let alone reasonable precautions, were taken.
15. In the Deputy Ombudsman's Report it is stated that conditions and other restrictions were placed on Mr Taylor's employment "including a notation "Allegations by pupils" and "+LWOP" on his personnel file". No other details were placed before the court as to what these conditions were. The Statements of Claim also plead that, "Further matters of suspicion of like offences arose in about 1983 and there was a history of complaints of like offences in 1980." Although the State has placed material before the court regarding the conduct in 1980, there is nothing before the court of anything occurring in 1983, which would have been at a time when Mr Taylor was still subject to his three-year good behaviour bond.
16. It is also pleaded in the Statements of Claim that the State did the matters alleged in the particulars of negligence in circumstances where staff at the previous school at which Mr Taylor taught did not advise the staff of Young Public School of his convictions at the time of the transfer of Mr Taylor's position to Young Public School. There is certainly no evidence in any of the material before me to contradict this assertion.
17. The question of causation is to be determined having regard to the factual circumstances in which the duty of care was owed. The court must be satisfied that, if reasonable steps had been taken, each of the plaintiffs would, on the balance of probabilities, have avoided the harm suffered. That is, but for the State employing Mr Taylor the plaintiffs would not have suffered injury.
18. To put this another way, if the Department of Education had terminated Mr Taylor's employment, knowing that he had been convicted of indecent assault offences in 1980, he would not have been in a position to have perpetrated the assaults upon these plaintiffs. The evidence satisfies me that the Department of Education provided Mr Taylor with unfettered access to vulnerable six-year-old children knowing that he had recent convictions for indecent assaults upon young children. I am satisfied that factual causation is established in this matter.
19. As for the damages, I have had close regard to the reports of Dr Jungfer, which I have extracted above. The uncontradicted expert evidence is that all three men suffer from PTSD caused by child sexual abuse at the hands of Mr Taylor. Mr Taylor was able to commit those acts on these plaintiffs due to the negligence of the State.
20. In their written submissions the State concedes at [164]: "In all of the circumstances, it is likely that a Court - in any contested hearing - would have been troubled by the allegations advanced by [Mr Peterson], [Mr Clarke] and [Mr Smith] and made a finding of a breach of duty against the cross claimant."
21. I am thus satisfied that the State was negligent and liable for damages for psychiatric injury as claimed.

Vicarious liability?

1. The written submissions filed on behalf of the State in this matter went into considerable detail on the question of whether the State was vicariously liable for the actions of Mr Taylor. It was asserted in the written submissions that the claim for contribution against Mr Taylor is brought on the basis that the Crown was vicariously liable, pursuant to s 8 of the Law Reform (Vicarious Liability) Act 1983 (NSW), for the intentional torts allegedly committed by him.
2. I am satisfied that, having settled with the plaintiffs on the basis that it was negligent in employing Mr Taylor as a teacher, it is not now open to the State to claim a different basis for its liability for the psychiatric harm suffered by the plaintiffs; that is, that it was vicariously liable for Mr Taylor's intentional torts. Further, none of the plaintiffs pleaded that the State was vicariously liable for Mr Taylor's actions in their Statements of Claim; no doubt because of the decision of the High Court New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4. Rather, the plaintiffs brought their claims against the State in negligence. The amended cross-claims filed by the State rely upon the matters alleged in the original statements of claim. Those cross-claims did not plead that the State was vicariously liable for Mr Taylor's conduct. Until the State's final submissions were provided to the Court, no party had pleaded, particularised or relied upon a cause of action of vicarious liability. Those submissions are to be put to one side.
3. I am satisfied that the State was negligent in its actions. That was the basis upon which the matter was settled against each plaintiff. There is thus no need for me to consider any question of vicarious liability.

Issue 5: am I satisfied that Mr Taylor and the State are liable for the same damage?

1. Section 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act refers to tortfeasors being liable "in respect of the same damage, whether as a joint tort-feasor or otherwise". The State and Mr Taylor are not joint tortfeasors in that they are not liable in respect of the same tort. Rather, they are concurrent tortfeasors. As the High Court observed in Baxter v Obacelo Pty Ltd (2001) 205 CLR 635; [2001] HCA 66 at 646 [18] (footnotes omitted): "Glanville Williams, in Joint Torts and Contributory Negligence, published in 1951, used "concurrent tortfeasors" as a generic term for joint tortfeasors and several concurrent tortfeasors. Concurrent tortfeasors are persons whose amedacts concur to produce the same damage. Joint tortfeasors are responsible for the same wrongful act leading to single damage. Such joint responsibility may arise from vicarious responsibility of one for another, or from the non-performance of a joint duty, or from concerted action. Several concurrent tortfeasors are independent tortfeasors whose separate acts combine to produce damage. In their case, "concurrence is exclusively in the realm of causation". In Thompson v Australian Capital Television Pty Ltd [(1996) 186 CLR 574 at 580-581], Brennan CJ, Dawson and Toohey JJ said: "The difference between joint tortfeasors and several tortfeasors is that the former are responsible for the same tort whereas the latter are responsible for only the same damage. As was said in The 'Koursk', for there to be joint tortfeasors 'there must be concurrence in the act or acts causing damage, not merely a coincidence of separate acts which by their conjoined effort cause damage'. Principal and agent may be joint tortfeasors where the agent commits a tort on behalf of the principal, as master and servant may be where the servant commits a tort in the course of employment. Persons who breach a joint duty may also be joint tortfeasors. Otherwise, to constitute joint tortfeasors two or more persons must act in concert in committing the tort."
2. In Bitumen and Oil Refineries v Commissioner for Government Transport (1955) 92 CLR 200, the High Court considered the meaning of the word "liable" in the second clause of s 5(1)(c). The Court observed (at 210): "It seems to me clear that a tortfeasor cannot recover contribution until his liability is ascertained. If he had not been sued and has paid nothing and admitted nothing, he can have no cause of action for contribution, for the simple reason that he may never be called on to pay at all. The damaged plaintiff may go against the other tortfeasor only. Once the liability of the first tortfeasor has, however, been ascertained by judgment against him or by admission, then he has a cause of action for contribution against the second tortfeasor."
3. I have already found that the State is liable for damages in negligence and Mr Taylor is liable for damages for battery. But the word "damage" in s 5(1)(c) is not the same as the "damages" awarded by a court as compensation: Dillingham Constructions Pty Ltd v Steel Mains Pty Ltd (1975) 132 CLR 323, cited in Mahony v J. Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522 (at 527).
4. In Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231, McColl JA (with whom Giles and Campbell JJA agreed) stated at [201] - [202]: "It is germane to record that in any proceedings for contribution pursuant to s 5(1)(c), the amount of the contribution recoverable from any person is such as may be found by the court to be just and equitable having regard to the extent of that person's responsibility for the damage: s 5(2). "Damage" in s 5(1)(c) is not to be equated to the "damages" awarded by a court, but is what the plaintiff suffers as the foreseeable consequence of the tortfeasor's act or omission. Where a tortfeasor's negligent act or omission causes personal injury, "damage" includes both the injury itself and other foreseeable consequences suffered by the plaintiff."
5. For the reasons stated above, I am satisfied that the State and Mr Taylor are liable for the "same damage" within the meaning of s 5(1)(c) of the Act.
6. That only leaves the questions of whether the settlement was reasonable and the question of apportionment.

Issue 6: was the settlement by the State reasonable?

The evidence

1. The State tendered a large amount of material as being relevant to the reasonableness of the settlement. No objection was taken to this material being before the Court on that basis. It is necessary for me to summarise some of that evidence in order to explain why I have concluded that much of it is ultimately not relevant to my determination.

Exhibit E

1. Exhibit E comprised the Deputy Ombudsman's Report and the transcript of the committal proceedings at Young Local Court on 8 August 1986 and 2 to 3 October 1986. I have extracted some of the Deputy Ombudsman's Report above to the extent that it confirms the Department of Education's knowledge of Mr Taylor's convictions. I am not satisfied that the Report is otherwise relevant. It addresses complaints made by the mothers of Mr Smith, Mr Clarke and Imogen Hart, as well as another child. The complaint was particularised as follows: "That the Department of Education failed to conduct a proper investigation into complaints to the Department's representatives that children of Young Primary School had allegedly been sexually assaulted by a teacher, and allegedly failed to provide adequate safeguards for the children after allegations against the teacher were first made."
2. The Deputy Ombudsman declined to investigate matters relating to the re-employment or transfer of Mr Taylor, stating that, as they concerned the conduct of a public authority relating to the appointment of a person as an officer or employee, he was without jurisdiction.
3. In addition to the Deputy Ombudsman's Report, Exhibit E contained the transcript of the committal proceedings. Fifteen witnesses gave evidence and were cross-examined at the committal proceedings over three days. Evidence was given by the six complainants, two police officers and eight witnesses of fresh complaint, being the parents of the complainants. The committal transcript records that, on 3 October 1986, Mr Taylor was committed for trial on six counts of indecent assault, one count in relation to each of the six complainants.

Exhibits F and G

1. Exhibit F comprised volume 1 of the subpoenaed documents and Exhibit G comprised volume 2 of the subpoenaed documents. Again, the State indicated that these documents were all relevant to the "reasonableness" of the settlement.
2. The subpoenaed documents in Exhibits F and G fall within four subject areas: documents pertaining to Mr Taylor's 1981 convictions, documents pertaining to the prosecution involving the plaintiffs dating from 1986, documents pertaining to Mr Taylor's subsequent conviction for child sexual assault offences in Queensland in 2011, and documents pertaining to a NSW Police investigation conducted in 2009 concerning Mr Taylor's conduct in 1980 - 1981 when he was teaching at the recreational camp.

Documents pertaining to Mr Taylor's 1981 convictions

1. The facts before Judge Foord disclose that the allegations were that Mr Taylor entered the bedrooms of V1 and V2 at night, stroked V1's penis and rubbed V2's "bottom".
2. A psychiatrist's report from Dr William Barclay dated 13 May 1981 confirms that Mr Taylor admitted to these offences. The report goes on to state: "…Taylor says that he finds it impossible to give a reasonable account of why he behaved the way he did. He says I think 'I got so involved with the kids-I felt so alienated from the staff that I think I just came to see myself as more a part of the kids than the adults. It just got twisted up in my head-I just lost control of myself-I could feel myself getting closer to the kids, my girlfriend Linda commented that I was hard to relate to during this time'. Taylor also says that he had in the past noticed very strong feelings directed towards the children he taught but that it had never entered his head until this particular time, that these were sexual feelings."
3. Dr Barclay's conclusion was: "He needs an opportunity to examine more fully his feelings towards his parents and his own intense need for love and affection. He needs some help to shift his need for affection from children to adults and he needs an opportunity to gain maturity in terms of his relationships with adults and with women in particular."
4. A police statement on file from Detective Senior Constable Nolan, who arrested Mr Taylor on 30 April 1981 at Myuna Bay Fitness Camp, states that, when he was cautioned, Mr Taylor said, "Yes I wondered when it would happen…I didn't really think I would get away with it. I don't know what made me do it. What would happen now?"
5. A copy of two typed records of interview between Detective Senior Constable Nolan and Mr Taylor on 29 April 1981 were included in the subpoenaed material, one in relation to each of the two victims. Mr Taylor states that when he was tucking V1 in one night, "I found myself fiddling with this boy's penis." In the second record of interview, the following exchange is recorded: "Q17 The boy has alleged that he was awakened by a movement and that he felt something rubbing up and down his bottom. Is anything you wish to say about that? A I was on top of him rubbing myself up and down against him with my crutch."
6. And later: "Q21 Whilst you were lying on top of the boy did you touch him in the area of his genitals with your hands? A I'm pretty sure I didn't. I just wanted to relieve myself but even then I couldn't because I realised that wasn't right."
7. A statement from V1 dated 27 February 1981 and a statement from V2 dated 13 March 1981 are included, as well as other court documents.

Documents pertaining to the plaintiffs' allegations in 1986

1. Some of the material in Exhibit G pertained to the charges arising out of the plaintiffs' allegations. It included another copy of the Deputy Ombudsman's Report, a statement from Mr Smith's stepmother dated 4 September 1985, a letter from Paul Conlon, Crown Prosecutor dated 7 June 1989, a number of police duty books and other court documents. Exhibit G also contains a letter from Mr Smith's mother to the District Inspector of Schools dated 30 January 1986 making formal complaint against Mr Taylor for sexually assaulting her son. No transcript of the trial or trials pertaining to the plaintiffs' allegations is available. The trial presumably proceeded at some point in the period from 1987 to 1989.

Documents from Queensland police

1. Documents obtained from Queensland police reveal that, on 11 October 2011, Mr Taylor was sentenced to imprisonment for "two years suspended 4 years after serving a term of 5 months imprisonment" for five counts of "Indecent treatment of children under 16 between 2004 and March 2006". The facts sheet reveals that the offences included fondling a 12-year-old boy's penis and inserting his finger into the child's anus whilst fondling the child's penis until he ejaculated. The child reported the matters to police once he turned 17 and agreed to participate in a "pretext" telephone call with Mr Taylor that was recorded by Queensland. Mr Taylor made admissions in that call such as, "I thought you wanted me to. I only did it when you wanted me to."
2. Material in Exhibit F included the transcript of the pretext call, Mr Taylor's Queensland criminal history, and the transcript of the child's evidence at Brisbane Magistrates Court on 12 August 2010. He was cross-examined extensively. Mr Taylor was committed for trial on a number of charges. A statement from the child's father and a transcript of the child's interview with police are also part of Exhibit F.
3. This evidence, prima facie, suggests that it would have been difficult for the State to defend the proceedings on the basis that Mr Taylor had not committed the acts alleged, but otherwise carried little weight on the question of the reasonableness of the settlement.

Material regarding investigation at recreation camp

1. A number of police statements were taken in 2009 from seven men who were children in the period around 1980. They attended the recreational camp in which Mr Taylor was working the year before he committed the indecent assaults to which he pleaded guilty in 1981. They all claim to have been indecently assaulted by Mr Taylor whilst at the camp. The statements, if accepted, indicate that Mr Taylor's sexual abuse of children at the camp was far more extensive than the two counts to which he pleaded guilty. It is consistent with the reference in the Deputy Ombudsman's Report extracted above at [153] to there being a number of complaints about Mr Taylor in the year before the two complainants reported the matters to police in 1981.
2. It would appear that the investigation commenced after a television programme called "Witness" was aired. The programme explored Mr Taylor's activities at Myuna Bay Fitness Camp. I was informed by Mr Hutchings from the Bar table that the investigation was no longer ongoing.
3. This material was relied upon by the State to show the reasonableness of the settlement and presumably formed part of the material that led the State to settle with the plaintiffs.

Conclusion regarding material relied upon to establish reasonableness

1. I am satisfied that there is material in Exhibits E, F and G that establishes that it was reasonable for the State to settle its claim. It shows that the State knew about Mr Taylor's convictions and employed him anyway. It also shows that Mr Taylor's sexual abuse of children at Myuna Bay Fitness Camp was more widespread than the two offences to which he pleaded guilty. It shows that Mr Taylor went on to commit more offences at a later time in Queensland. As stated above, this material shows that it would have been difficult for the State to defend these proceedings on the basis either that the Department of Education was not negligent and/or that Mr Taylor did not commit the torts alleged.
2. I have not had regard to any of the opinions expressed in any of this documentation; I have only had regard to material establishing objective facts relevant to the Department of Education's knowledge at the time and relevant to any defence upon which the State might have relied if the matter had gone to a hearing.

Principles

1. The amount of contribution recoverable from a person is what is determined by the court to be "just and equitable having regard to the extent of that person's responsibility for the damage": s 5(2) of the Law Reform (Miscellaneous Provisions) Act. It is under this heading that the court is to determine the reasonableness of the settlement: Bitumen and Oil Refineries v Commissioner for Government Transport (at 212 - 213).
2. The State noted that Mr Taylor had not taken issue with the reasonableness of the sums as agreed between the State and the plaintiffs at any stage prior to his withdrawal from the proceedings.
3. The question of the reasonableness of the State's settlement with the plaintiffs must be assessed objectively. In Unity Insurance Brokers Pty Ltd v Rocco Pezzano Pty Ltd, Hayne J observed at [129]: "Whether the compromise of a claim was reasonable must be judged objectively, not subjectively. Thus whether a party to litigation has received advice to settle may be important in deciding whether that person's conduct in settling the case was reasonable but, standing alone, the fact that a litigant was advised to settle at a particular figure reveals little or nothing about whether the settlement reached was reasonable. This is not to say that evidence may not be led that such advice was given and adopted; it may. But evidence of that kind does not conclude the issue. What will usually be much more important is the reasoning that supported the advice that was given for that will ordinarily reveal why it was thought reasonable to compromise the claim as it was."
4. His Honour went on at [128] to state that the question of reasonableness is to be assessed by reference to the material in contemplation at the time that the compromise was reached.
5. Although it is to be accepted that the settlement was reached without any input from Mr Taylor, I am satisfied that the clear policy of the law is to achieve the earliest possible resolution of proceedings. Having regard to the finding that I have made that the State was negligent in employing Mr Taylor at Young Public School, and also having regard to some of the subpoenaed material placed before the court in Exhibits F and G, I am satisfied that it was reasonable for the State to settle this matter.
6. In addition to the material extracted above, which clearly established negligence on the part of the State, the material also shows that it would have been difficult for the State to have relied upon any defence that Mr Taylor did not commit the relevant torts. If proved, that material potentially established that Mr Taylor pleaded guilty to two indecent assault offences upon children in 1981 in circumstances where he claimed that they were two isolated events. A subsequent investigation has revealed seven further persons who made statements that Mr Taylor also indecently assaulted them when they were children under his care at that time. The material also shows that Mr Taylor pleaded guilty to offences of indecent assault in relation to a 12-year-old boy in Queensland in 2009.
7. I am satisfied that it was reasonable for the State to settle the plaintiffs' claims in the relatively prompt manner in which it did.
8. Turning to the amounts for which the State settled the claims, I have had regard to the following information provided in the pleadings and in the written submissions filed by the State.
9. In relation to all three plaintiffs I note that the claims are subject to assessment under the Civil Liability Act. I note that an award of aggravated or exemplary damages was not available as against the State: s 21 of the Civil Liability Act.
10. At any hearing it would have been necessary for each of the plaintiffs to establish that, by reason of the State's negligence, his capacity to earn an income had been limited and that he had suffered actual loss: see Medlin v State Government Insurance Commission (1995) 182 CLR 1; Husher v Husher (1999) 197 CLR 138.

Mr Peterson

1. Mr Peterson was born on 6 April 1979 and the time of the settlement was 35 years and one month of age. He represented that he intended to work until 70 years of age. Using the Australian Bureau of Statistics ("ABS") historical and projected tables in respect of life expectancy, his life expectancy at the time of settlement was approximately 49 years and 11 months.
2. I am satisfied that it was reasonable to allow for the Court's assessment of non-economic loss under the Civil Liability Act, in the event that Mr Peterson succeeded, as being between 32% and 37% as a proportion of the most extreme case. I have examined the calculations provided by the State. I am also satisfied that it was reasonable to allow global sums representing the possible range of damages that the court might award for past and future economic loss and past and future out-of-pocket expenses.
3. Adding all of these heads of damages together, the potential range was between XXX and XXX. I am satisfied that the settlement amount of XXX, in addition to costs in the sum of XXX, was reasonable in the circumstances.

Mr Clarke

1. Mr Clarke was born on 14 February 1979 and at the time of the settlement was 35 years and four months of age. He represented that he intended to work until he was 70. His life expectancy on the projected ABS table was at that time approximately 50 years and eight months.
2. I am satisfied that it was reasonable to allow for the court's assessment of non-economic loss under the Civil Liability Act, in the event that Mr Clarke succeeded, as being between 30% and 35% as a proportion of the most extreme case. I have examined the calculations provided by the State. I am also satisfied that it was reasonable to allow global sums representing the possible range of damages that the court might award for past and future economic loss and past and future out-of-pocket expenses.
3. Adding all of these heads of damages together, the potential range was between XXX and XXX. I am satisfied that the settlement in the sum of XXX, in addition to costs of the sum of XXX, was reasonable in the circumstances.

Mr Smith

1. Mr Smith was born 5 October 1978 and at the time of the settlement was 35 years and seven months of age. He represented that he intended to work until he was 70. His life expectancy on the projected ABS table was at that time approximately 49 years and five months.
2. I am satisfied that it was reasonable to allow for the court's assessment of non-economic loss under the Civil Liability Act, in the event that Mr Smith succeeded, as being between 34% and 39% as a proportion of the most extreme case. I have examined the calculations provided by the State. I am also satisfied that it was reasonable to allow global sums representing the possible range of damages that the court might award for past and future economic loss, past and future out-of-pocket expenses
3. The addition of these amounts provides a range from XXX to XXX. I am satisfied that the settlement amount of XXX, in addition to costs in the sum of XXX, was reasonable in the circumstances.

Conclusion: the settlement was reasonable

1. I am satisfied that the settlement was reasonable. I note that, although the plaintiffs were not entitled under the Civil Liability Act to aggravated or exemplary damages as against the State in negligence, there was no such bar to seeking those damages against Mr Taylor for his tortious conduct by virtue of s 3B of that Act. The plaintiffs have settled against the State and seek to discontinue against Mr Taylor.

Issue 7: what amount of contribution, if any, would it be just and equitable for Mr Taylor to pay?

1. Finally, it is necessary to consider the question of apportionment as between the State and Mr Taylor. The test, contained in s 5(2) of the Law Reform (Miscellaneous Provisions) Act, is what is just and equitable having regard to the extent of the second tortfeasor's responsibility for the damage. The last clause of s 5(2) provides that a court may direct that the contribution to be recovered amount to a complete indemnity.
2. The question of apportionment is an evaluative exercise for the court that involves comparing relative responsibility for the damage suffered.
3. Assessing the question of what is just and equitable having regard to who is "responsible for the damage" is a difficult exercise when the damage is caused not only by commission of intentional torts such as assault or battery, but also by a particularly serious breach of a duty of care owed to children by the State.
4. I first considered whether I am satisfied that this is a case in which the State ought be entitled to a complete indemnity from Mr Taylor, given he is directly responsible for the child abuse. I am not satisfied that this is such a case, having regard to the serious breach of the State's duty to these young and vulnerable children that I have detailed above.
5. Although it may be a simple way to proceed by approaching the question of apportionment by fixing on a starting point of equal liability of each tortfeasor for the damage to the plaintiffs, in this case that would mean that the individual factors may not be adequately evaluated. Thus I turn to the individual factors to enable an evaluation of what is just and reasonable in the circumstances.
6. In seeking to identify factors that would have the effect of apportioning more or less responsibility to each tortfeasor, I have had regard to the fact that it was Mr Taylor who actually committed the acts that caused the plaintiffs' injuries. This weighs in favour of him paying a greater proportion. On the one hand, the plaintiffs would not have been assaulted by Mr Taylor and suffered the damage that they did had the State not employed him as a teacher, knowing that he had already been convicted of indecently assaulting children.
7. To put it another way, although it is to be accepted that Mr Taylor's tortious conduct was the direct cause of the plaintiffs' psychiatric harm, the material before me shows a particularly serious breach of the State's duty of care to vulnerable young children under its authority. The State provided Mr Taylor with unfettered access to young vulnerable children in its care. The Department of Education knew of his convictions and not only employed him again to teach very young children, but did not supervise or monitor him. Mr Taylor remained in the class even after complaint was made by Mr Smith and Mr Smith was moved out of the class.
8. After giving all of the matters careful consideration, it seems to me that the actions of Mr Taylor and the State were of equal seriousness within the confines of their respective bases of liability and that they are each responsible for the damage. Accordingly, I am of the view that it is just and equitable that Mr Taylor contribute 50% of the judgment sums paid by the State to the plaintiffs.

ORDERS

1. I make the following orders: 1. Judgment in favour of the cross-claimant against the cross-defendant in proceedings 2011/00402501 in relation to Stephen Smith in the sum of 50% of XXX (including costs), being XXX. 2. Judgment in favour of the cross-claimant in proceedings 2013/00038200 in relation to Jack Peterson in the sum of 50% of XXX (including costs), being XXX. 3. Judgment in favour of the cross-claimant in proceedings 2013/00066329 in relation to James Clarke in the sum of 50% of XXX (including costs), being XXX. 4. The cross-defendant is to pay the cross-claimant's costs as agreed or assessed. 5. The freezing order, most recently continued on 12 May 2017, is dissolved.

Amendments 03 August 2018 - Amendments to the amounts in orders 1 and 3 were made on 5 June 2018 and are noted in the judgment on the file. 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: 03 August 2018