T2 (by his tutor T1) v State of New South Wales

T2 (by his tutor T1) v State of New South Wales - [2024] NSWSC 1347 - NSWSC 2024 case summary — Zoe

On 16 October 2017 T2 was assaulted after the end of the school day sometime between 3:26pm and 4:00pm.
From now on some of this narrative is not common ground. It is alleged by T2 that there was no teacher supervision provided to students as they dispersed at the end of this school day, notwithstanding Department of Education policies and the known violent tendencies of some students, in particular XY. This is disputed by the defendant. The defendant argued that two teachers were supervising the busses in the immediate vicinity of the school.
The supervision system at the school provided, in part, for the rostering of two head teachers to supervise the students as they left the gate of the school on Thorney Road, adjacent to the pedestrian crossing and bus stop. The roster for that week is set out in the defendant's tender book (Ex 9 tab 5).
The defendant submitted that teachers would have had no reason to suspect any risk of harm to T2 even if a supervising teacher had observed him leaving the bus stop on the day of the assault.
While waiting for the bus on his way home from school, sometime after 3:04pm, T2 was approached by a male student, identified as 'TJ', and told that XY wanted to talk to him. T2 responded to the effect that he did not want to talk to XY. On hearing this, T2 was concerned so he decided to walk across the road back to the school office. The office was locked, and no one was present to assist him. T2 contacted his mother, advising her that he was about to be 'bashed'. T2's mother attempted to telephone the school twice but each time her call was diverted to a message bank. The bus arrived and T2 re-crossed the road, intending to board the bus. CCTV footage was shown in court of the assault, the attempted boarding of the bus and of the students escorting T2 towards the park. The footage did not capture the entirety of these events.
The first video depicts the students surrounding T2 as the bus makes its stop on Thorney Road. He is not visible, but several students can be seen positioning themselves between what appears to be T2 and the entrance of the bus in what seems like an attempt to prevent him from boarding (Ex A).
The second CCTV video was taken by a camera situated in a laneway connecting the bus stop with the park where the assault occurred. The assault took place at Endeavour Park. The school principal was aware of unrelated previous violence that had occurred at the park (T316 [5]). The CCTV footage depicts T2 and another student walking, seemingly peacefully, towards the park. The accompanying student had his arm loosely around T2's neck. The pair were followed by 10 to 12 other students who were located approximately two to three metres behind them. Upon viewing this footage, the principal believed that the group of boys would have caused her concern and that she would have investigated the situation (T317 [15]).
The assault of T2 occurs in the final video. The footage was filmed on one of the student's phones. T2 was spear tackled from behind. Once he was on the ground, several students proceeded to kick, punch and stomp on his head and various parts of his body. The assault was lengthy and violent. T2 was in a vulnerable position, defenceless against his attackers.

[3]

The evidence

T2 relied upon his evidentiary statements dated 10 June 2021 and 14 August 2023. He also gave evidence and was subject to cross examination. Both counsel during examination and cross-examination strived not to distress T2 by directly asking questions about the assault.
T2 further relied on evidentiary statements made by his mother dated 15 June 2021, 23 November 2022 and 14 August 2023; his sister, Maddison, dated 17 August 2023; his brother, Bradley, dated 3 February 2021; and his friend, Gavin Close, dated 24 August 2023. They all provided statements and were cross examined. As they mainly referred to T2's life after the assault, these statements will be discussed later in this judgment.
While T2's father prepared a statement, T2 did not want him to give evidence, hence it was not relied upon.
The defendant provided statements from Kathleen Seto, principal of the school (the principal), dated 4 February 2022 and 2 August 2023 and Krystal Fountis, deputy principal of the school (the deputy principal) dated 4 February 2022. They both gave evidence and were cross examined at length.
Both parties relied upon expert evidence on liability. T2 relied on Professor Kerri Ikin and her statements dated 21 October 2020 and 23 November 2021. The defendant relied on the two statements of Peter Meaney dated 28 February 2023 and 17 July 2023. The experts wrote a joint report on liability and gave concurrent evidence. When giving concurrent evidence, they agreed on many issues.
As to damages, each of the parties engaged occupational experts to provide expert evidence. T2 relied on a report prepared by Mr Christian Byrnes, dated 11 May 2021. This report included a domestic assistance assessment in relation to T2's condition stemming from the assault. The defendant relied on the evidence of Ms Dawn Piebenga, who prepared a report dated 8 October 2021. Ms Piebenga's report traversed substantially the same subject matter as that of Mr Byrnes. Mr Byrnes and Ms Piebenga also prepared an expert conclave report, which is dated 19 May 2023.

[6]

Credibility of the parties

I carefully observed T2 and the other witnesses when they were giving evidence and being cross examined. This is not a case where any witness gave deliberately false evidence. The only findings necessary to make are, as to where the evidence is disputed, whose evidence is preferred and why.
T2's mother supported her son's case. The defendant put in issue the mother's credibility as she did not mention the carer's pension that she received for T2, the fact that T2 received a disability pension or the fact that she also had a carer herself, who is paid for by NDIS. It is correct that T1 did not tell the occupational therapist, Mr Byrnes, that she and T2 had received financial support from NDIS. However, she did not deny these supports when giving evidence. I make no adverse findings to her credibility on this basis.
I do not accept T2's mother's evidence where she said that the principal admitted on 11 September 2017 that the school had breached its duty of care. The principal denied that she did so, and I accept the principal's evidence. It is my view from the tenor of the principal's evidence that she was a truthful witness. I prefer her evidence over that of T1 in this regard. While T1 was mistaken about the school having claimed responsibility for breaching its duty of care, I accept that she, like all the witnesses, was giving evidence to the best of her recollection. It was truthful evidence.
During his police interview, T2 stated that while being led to the park he was placed in a headlock by another student (CB 20023). The defendant submitted that this was an exaggeration, pointing to the absence of any CCTV footage depicting a headlock. However, there was ample time during which the events were not captured on CCTV, such that the headlock could have occurred. The CCTV did not capture T2, XY and the other students for the whole duration of their walk down the pathway towards the park. T2 may have been put in a headlock during this period. Thus, no adverse inference as to T2's credibility is drawn.

[7]

Evidence of T2

T2's first evidentiary statement was dated 10 June 2021. It stated the following:
T2 was born on XXX 2002. He is now 21 years of age. At the time of the assault, he was 14 years old and residing with his mother and sister, Maddison. T2 has an older brother, Bradley, and a younger brother, Blayde. Bradley works for NDIS and is married with three children. Blayde was still in school at the time of the assault when he lived with T2's father. T2's parents separated when he was young.
While in primary school T2 struggled with school attendance and misbehaviour. He then went to live with his father for a period. His father was diligent about ensuring T2 went to school every day. T2 was sent to a 'behaviour' school named Verona for three days each week. T2's attitude improved while attending Verona. He commenced high school at Fairvale because it was the closest school to his father's residence.
T2 had been at the school for three years before he was assaulted. He did not know all of the school students who were involved in the assault. He believed some of the students were younger than him. He did, however, know XY, the instigator of the assault. In 2017 they were in the same English class. T2 confirmed that it was XY who assaulted him, and this was common ground (T172 [10]-[25]).
T2 did not recall any school policy about bullying. He said that he did not receive any counselling from the school counsellor. He said that fights would occur in the playground on occasion, but he was never involved in them. T2 recalled XY being involved in fights. He wondered why this was the case because, prior to the assault, XY had not been aggressive towards him.
T2 largely kept to himself at school. He had three friends, Gavin, Michael and Anton, all of whom played rugby league together, both at school and socially. During cross examination, T2 was asked about his friend, Gavin. He gave evidence that they were still friends and would play computer games online together (T176 [40]-[50], T177 [5]-[15]). Gavin gave evidence at the hearing, a subject returned to later in this judgment.
It is common ground that prior to the assault T2 had never claimed to have had any past issues or bullying with the instigator of the assault, XY.

[9]

Long and short suspensions

The principal explained the processes that the school employed in respect of students serving long and short suspension for misbehaviour. She referred to her decision to suspend XY as a consequence of his continued misbehaviour and involvement in relation to a prior assault. The principal described the common practices that were implemented following XY's suspension.
A letter was addressed to XY's parents on 1 September 2017 requesting their assistance during the suspension period. A copy of the school's rules was also sent, as well as schoolwork that was to be completed by XY during his suspension. A counsellor was arranged to meet with XY. Finally, a formal interview was conducted on 12 October 2017 with XY to discuss the reasons for his suspension and future pathways that should be adopted.
In cross examination, the principal and deputy principal outlined the protocols for reintegrating students back into the school after long suspensions. The principal was asked by T2's counsel as to what documents and potential meetings were required to establish that a student serving a long suspension had shown remorse for their actions, and that their reintegration would not pose a threat to any other students at the school. She believed that the school had followed and applied the protocols correctly for XY and that XY had displayed throughout the process the analogous remorse and maturity required to be allowed back into the student population, but these decisions were made by the deputy principal.
The principal explained the difficulty with expelling students at her school. "HER HONOUR: Because with the kicking and stomping on him, yes, it was just awful. WITNESS: And that's - that's the reason he got expelled. And as you know, in public education, it is very hard to expel a student, nigh impossible. And I haven't been able to - I mean, I have not, in the years that I've been a - a principal expelled many kids, because where are they going to go? Where are they going to go? All right-- HER HONOUR: I've been thinking that all the time you've been in the box. WITNESS: Sorry? HER HONOUR: I've been thinking that all the time you've been in the witness box, and I've been thinking, what becomes of these kids? WITNESS: And just for the record, I take many students that are expelled from private schools. That's an issue that needs to be addressed, but not by this Court. And therefore, the nature of this injury was so serious, and I felt very, very sorry for T2 and his family, his mother especially, and I did say sorry to her. And that's why we had the Department of Education person come and talk to her. But that boy got expelled, and I went to court on behalf of T2's family, as well." (T275 [6]-[30]).

[13]

XY's assault on 29 August 2017

T2 submitted that in 2017, to the knowledge of the defendant, XY organised and led other students in physical assaults upon lone students.
On or about 29 August 2017 XY was in the company of two other students. XY assaulted one of the students (the second student) in an unprovoked attack. Fortunately, the second student escaped the attack. It was a physical altercation that occurred after school hours and outside of the school premises. XY assaulted the student because he would not provide XY with the address of another student.
When interviewed by the deputy principal XY told her that he was not remorseful about his attack on the student as the 'bashing' was deserved.
On or about 1 September 2017, J, a student at the school, identified XY as an 'enforcer', a person prepared to back up his friends with violence and intimidation.
As a result of attacks on other students and disobedience, XY was suspended from the school between: 1. 3 to 8 August 2017 inclusive, (the short suspension); and 2. 1 September to 12 October 2017 inclusive, (the long suspension).
After the assault of 29 August 2017 had taken place, the following recommendations were prescribed in a document titled 'School Counsellor Suspension Report' in relation to XY: 1. The student sees the school counsellor in order to discuss his current behaviour. 2. Student to be enrolled in the RAGE program. 3. Student to be encouraged to use appropriate resolution strategies when trying to resolve conflict matters. 4. A risk assessment be completed. 5. Student sees the counsellor to assist with emotional regulation for a few sessions. 6. Student to seek counselling for emotional regulation with an outside agency depending on the assessment/success of counselling at school. (CB 12549)
The defendant made the same recommendations for XY in relation to the assault of the 16 October 2017.
T2 submitted that by reason of the attack on 29 August 2017, the defendant knew that the strategies implemented as a result of this attack were inadequate to prevent XY from assaulting and bullying other students.

[14]

T2's pre-existing medical condition

T2 had been diagnosed with ASD and oppositional defiant disorder (ODD) prior to the assault. He had a history of difficult and challenging behaviours. His school records, however, demonstrate that his behaviours settled and his conduct and ability to learn improved in periods of stability, consistency and engagement. For instance, his Miller Public School report for Second Semester 2008, included the comment: "He has consistently applied himself and consequently his work is regularly among the best in the class." (CB 10834)
Likewise, his Canley Heights Public School report for Second Semester 2014 included: "It has been an absolute pleasure to teach T2 this year. I have enjoyed watching him develop from a negative young boy into a more confident young man who will give everything a go." (CB 12420)
Up until mid-2017, T2 was doing well at Fairvale High School. An entry in the school records on 10 May 2017 noted: "Behaviour support plan is no longer relevant due to insufficient evidence of behavioural issues recorded and referrals made. Only two negative incidents recorded in 2017, both on attendance." (CB 12516)
T2 enjoyed going to school before the bullying started. He was fit, played a lot of sport, and had friends. He intended to complete Year 12 and then look for a job. He was interested in construction. His uncle Grant is a builder and would have given him a start. If that worked out, T2 could have gone to TAFE and obtained a trade certificate as a carpenter. T2's father, Shayne, works as forklift driver. When T2's brother, Bradley, left school, Shayne secured employment for him as a forklift driver. Shayne could have also found work for T2. After a protracted course involving surgical procedures and complications arising from infections, T2's physical injuries have substantially recovered. However, T2 said that because of his psychological condition and his poor physical health as a consequence, these job opportunities are no longer open to him.
T2's mother described the difficulties she faced getting her son to school. She explained that T2 was very quiet and hardly spoke, making it difficult for her to communicate with him and understand his frustrations.
In July 2017, T2 finally confided in her about his issues at school associated with bullying. T2's mother described trying to contact the school and seek help regarding the bullying issues. She recalled that she had a meeting with the head teacher who had assured her that T2 would be safe.
T2's mother did not believe that the school had a bullying policy and was unaware of any discipline problems from other students. She believed that the school had mishandled the situation, on the basis that the school principal had made the representation to her that "the school had failed in its duty of care to her son." This so-called representation was denied to the principal (Evidentiary statement dated 15 June 2021).
T2 submitted that on or after September 2017, he was at risk of harm in the event the school did not take reasonable steps to prevent violence by students who were known to be violent to other students.
On 6 September 2017, T2's mother contacted the school and advised them of T2's complaints that two or three unknown students had been taunting her son.

[15]

The meeting at the school on 11 September 2017

On 11 September 2017, a meeting was held at the school to discuss T2's issues with bullying and to identify the perpetrators. The meeting included the following participants: T2, his mother, his older brother, Shayne, as well as the deputy principal, the school counsellor and another teacher. T2 and his family were assured that, if T2 came back to school, he would be safe. These complaints did not involve XY.
On 11 September 2017, the deputy principal said that she first learnt the names of the bullies. She had no recollection of XY being identified. The students were identified, spoken to by the deputy principal and warned of the consequences of their conduct.
She did not recall if any other action were taken but she "assume[d]" that she would have followed protocol and informed teachers via email or through a staff meeting to be aware of any instances of misbehaviour related to those specific students.
The deputy principal believed that the bullying was an independent incident caused by a few students, who had previously displayed immaturity and poor social skills. She said that prior to the assault she had never observed or knew of any bullying that occurred between XY and T2. Her observation was correct.
The defendant submitted that all complaints made by T2's mother to the school in or about September 2017 were appropriately addressed.
In the months before the attack, T2's evidence was that he had been accused of taking a phone belonging to a friend of XY. T2 was bullied and became fearful of going to school. He told his mother about that bullying.
As set out earlier, XY was known as being an enforcer and someone who would enlist the assistance of other students to carry out attacks on lone students. At the time of the assault, XY had recently returned from a second suspension for violent conduct that year.
There was no evidence from anyone who witnessed the prior assault that had been committed by XY and had caused his long suspension. The only evidence of this assault was provided by the deputy principal. She was told of the assault and made records (CB 12539). She gave evidence that she could truly gauge the seriousness of the assault by what she was told. Her report was of a "scuffle". When the events of the assault were read to her, she was of the view that there was one assault that occurred on a school student outside school grounds when a bystander witnessed it and scared XY off.
The deputy principal was asked in cross-examination about the 'scuffle' involving XY that had resulted in a long suspension. The deputy principal made the following statement regarding XY's after school altercation. "Q. You would not, in any term, seek to minimise the violence or the viciousness of the attack by describing this as a scuffle, would you? A. No. Q. It is far more serious than a scuffle, isn't it? A. Yes. Q. The incident back in March 2017 where the socks and shoes were taken might be described as a scuffle. Would you agree? A. I'd call it stupidity, but yep. Q. It led to a scuffle. But this attack of XY upon [J] could not, on any view, be fairly described as a scuffle? A. No, it was nasty." (T80 [35]-[45])
The deputy principal gave evidence that it was a vicious attack warranting a long suspension and that the school had made efforts to ensure that XY (who had shown violent behavioural tendencies in the past) was fit to return to school.
At the end of the long suspension, the deputy principal explained that all required protocols were followed. XY was issued with a blue book, a book issued to students who have been reprimanded for misbehaviour (a copy of an unused blue book is in Ex 6). Students issued with a blue book were required to carry the book to each of their classes and present them to their teacher who in turn uses the book to log a rating for the student's behaviour while in their class. The principal was unaware of the whereabouts of XY's blue book. She stated that often students would lose the books 'on purpose' to avoid receiving a bad rating.

[16]

Was a proper risk assessment conducted?

The principal in cross-examination was asked whether a risk assessment report had been conducted for XY. The principal was unsure why the report was missing and believed that the deputy principal would have more information regarding the report and its status. The principal added that even in the absence of a risk assessment report, the school had taken adequate steps and precautions to mitigate any risks associated with XY's return from long suspension.
So far as the assault on T2 that occurred 16 October 2017, the deputy principal gave evidence that the school only conducted one meeting, in which a 'resolution' had been achieved. She recalled that XY was subsequently asked to meet with the school counsellor before his return to school. However, she could not recall if the meeting took place. She explained that a report on XY would have been written by the school counsellor, but the report would not have been made available to her and would have stayed with the counsellor.
The deputy principal was taken to a document obtained from the school titled "School Counsellor Suspension Report - 2017" (CB 12549). That document required XY to see the school councillor to discuss his current behaviour and to assist with emotional regulation, enrol in the 'RAGE' program and for the school to complete a risk assessment.
Senior counsel for T2 cross examined the deputy principal on whether a long suspension resolution meeting had been conducted for XY. She answered that it was not a requirement and could have been addressed in the initial suspension meeting. She was then asked whether a risk assessment had been conducted for XY or if any of the counsellor's requirements had been implemented. She had no recollection of XY being enrolled in the RAGE program or whether a risk assessment had been performed. The following evidence was given: "MORRIS Q. I want to suggest to you that without having the risk assessment, and without having made inquiries of the school counsellor, or the parents, or XY as to whether he's been to the school counsellor, you couldn't make a realistic assessment [o]f the risk this young man posed to other students when he returned to school, could you? A. Well, I had the discussion with him when he returned. He was very different to how he was when he was suspended initially, which is not unusual because they've had time to think about what they've done when they're suspended for a period of time. Q. Is your answer then that you thought, based on your discussion with him, he would - he was suitable to return to school? A. I guess so. Q. That was in circumstances where the senior psychologist and school counsellor had recommended, can I suggest, very clear steps be taken during the suspension. Correct? A. It doesn't say that it should - these things should occur during the suspension. Q. I want to suggest to you that they are suggesting steps be taken to actually more formally assess this student's situation by skilled people. What do you say about that? A. The counselling is more about helping him move forward. Q. The counsellor is a school person. Correct? A. Yes. Q. Savita Rahim is a school person. Correct? A. Yes. Q. What they are suggesting is intervention by skilled people to address his behaviour and risk profile. Do you agree with that? A. Yes. Q. And yet, if we just look at the school records and the school notes, none of these steps took place, did they? POLIN: I object to this, your Honour. If it's suggested that there was no intervention by a skilled person at all, that's simply not correct. HER HONOUR: That's right, it's not correct. MORRIS Q. You could not be satisfied that this student had enrolled in the rage program, could you, on the day he returned to school? A. I don't recall. Q. You couldn't be satisfied, when he returned to school, that the student had returned to the school counsellor? A. I don't recall. He did see the counsellor to complete his report. Q. Yeah, but not after that. Correct? A. I don't recall. Q. And, of course, we didn't have a risk assessment. In those circumstances, I want to suggest that you couldn't make a relevant assessment of this fellow's risk profile when he resumed school, could you? A. As a teacher? Yes, I could. Q. Is her Honour to understand that you based your assessment of his risk profile based on a conversation with him on the day of his return to school, rather than on any of this other material? A. It all comes into context, and I spoke to him every day, because he would have to present his - the blue book to me, in any case." (T396 [10]-[50]; 397 [5]-[20]).
The deputy principal also gave the following evidence: "Q. You told us yesterday that upon his return to school other teachers would be notified. Correct? A. Yep. Yes. Q. The purpose of that would've been to enable those teachers to monitor and supervise him. Correct? A. Correct. Q. Those teachers, would they be given a, I think yesterday you said it could be oral, or it could be a written notification? A. Yep. Q. Do you have any note as to which teachers were in fact told, or are you just relying on the usual practise? A. I couldn't say, categorically, what exactly happened. Q. They may have been notified, they may not have been notified? A. No, they would've been told, but I can't tell you how - I can't remember how. Q. What you're saying is if the system was applied, they would've been told? A. Yes. Q. Would the teachers that were told include his class teachers? A. Yes. Q. Would you be responsible for that, or would you ask somebody else to arrange for that? A. Well, the head teachers could tell them. Head teachers, learning and support could say, your advisors, head teacher welfare. We're a team. Q. If the system that was supposed to be applied was applied, they would be given notification. Correct? A. They would have been aware of his return, and they would've seen the blue book which on the cover says, "returning from suspension". Q. What other information does the blue book contain, other than "returning from suspension"? A. I guess it's like a table, it's got the period breakdown on the left as a column, the kids write their subjects, and there's a score that the teachers give for conduct, work progress, homework, there's another I can't remember, and they can write something if they wish, or they can just sign. On the front cover it's - I can't remember the exact wording, but it's things like, "I understand that I need to use the blue book and" you know, "behave" and things like that. But I can't remember the exact - I couldn't give you the word for word quotes." (T400 [50]; T401 [10]-[40])
From this evidence, on the balance of probabilities a proper risk assessment of XY was not performed before XY was permitted to return to the school. This accords with the expert evidence that is referred to later in this judgment.
Finally, the deputy principal contended that despite the absence of any official documents to support XY's return to school, she had conducted her own assessment of the situation and had deemed his return acceptable. She did so in her capacity as a teacher and based on her daily interactions with XY. While a risk assessment can contain several separate documents, on the balance of probabilities, no written risk assessment had been conducted during XY's long suspension nor was there one when XY returned to school after the long suspension. It is more likely than not that arrangements were not made for XY to attend the RAGE program.
The deputy principal recalled that she had previously had interactions with XY on several occasions relating to behavioural issues, but not violent ones. XY had been placed in a learning support class to help him. He had been disciplined by the deputy principal on numerous occasions. She recalled that the first time XY had displayed real physical violence occurred on 29 August 2017. That display of real physical violence resulted in a long suspension.
It was her view that her previous interactions with XY had not indicated to her that XY was capable of physical violence. She did not believe that XY was adept enough to organise a premeditated attack involving numerous students. She believed XY was more impulsive and was more likely to follow a crowd than to be the instigator of a well-orchestrated assault.
Senior counsel for T2 asked the deputy principal to describe the seriousness of XY's previous assault and the similarities of it to that of T2's assault. She agreed the attack that had led to XY's long suspension was serious and displayed a degree of viciousness and cowardness but did not agree that the attack was a precursor for XY's subsequent behaviour. She opined that she could not predict future violent outburst from XY based on this previous assault.
However, she did agree that the assault that led to the long suspension had displayed XY's potential for violent behaviour. The deputy principal was asked to comment on the procedures involved in suspending a student and then reintegrating back into the school. She explained that it was the school's prerogative on whether to conduct a second interview, as well as whether to include the parents of the student, along with the required paperwork.

[18]

T2's pleading - the assault

In his amended statement of claim T2 pleads:
On 16 October 2017, between 3:00pm and 4:00pm there was no supervisor at the bus stop area adjacent to the school where students were collecting, waiting for a bus.
T2 left the school at about 3:05pm and assembled with other students at the bus stop at the front of the school for a bus.
While waiting, T2 was threatened by other students, including XY.
T2 moved back into the school grounds and at 3:26 p.m., sent a text message to his mother advising that he was about to be 'bashed'.
Shortly thereafter the bus arrived. T2 moved towards the bus, intending to board it.
While T2 waited to board the bus, XY and other students grabbed him, preventing him from doing so.
T2's mother attempted to contact staff at the school to seek their intervention to prevent T2 from being attacked.
At 3:26pm T2's mother tried to contact any employee at the school. Her call was diverted so she left a message.
Again, at 3:28pm T2's mother could not make telephone contact with the school. Her call was again diverted, so she left another message.
Between 3:00pm and 3:40pm there was no mechanism in place at the school whereby any person, including students or parents, could give any warning by telephone of an escalating episode of violence or other risk eventuating at the bus stop.
Shortly thereafter, T2 was attacked by four other students, including XY, and dragged down a laneway in view of the school office and into a nearby park.
At the park, T2 was set upon by about 12 students and repeatedly punched and kicked.
The risk that T2 would be assaulted by other students thereby causing injury, was foreseeable by the defendant and not insignificant.
The defendant was under a duty to take reasonable precautions to prevent persons including T2 from being exposed to a risk of serious harm. The duty of care owed by the defendant to T2 was non-delegable.
The defendant did not take the precautions that a reasonable person in its position would have taken against the risk that a person in the position of T2 would be assaulted by other students in close proximity to the school. Such precautions include: 1. Heeding information that T2 was being bullied and threatened by other students and acting on that information. 2. Heeding and acting on T2's mother's advice in September 2017 that students had bullied and pushed T2. 3. Not allowing XY to return to the school following a lengthy suspension for violence.

[20]

Were the teachers present for crossing/bus duty after school on the day of the assault?

The next factual issue to be dealt with is whether the teachers were present at the bus stop on Thorney Road on the afternoon of the assault.
The principal described the after-school supervision in her statement. She described the procedures and practices that the school had adopted when conducting after school supervision. Of the 1400 students attending the school, only 70 students caught buses home. Three head teachers were rostered daily and tasked with supervising students' departure from the school. Two of the head teachers were rostered to supervise the pedestrian crossing on Thorney Road, the site is about 20 metres from where the bus stop was located and where T2 caught his bus.
The school did not conduct "bus duty". The teachers were only rostered to monitor the school crossing on Thorney Road (T48 [20]-[35]). According to the principal, the school's sole responsibility was to ensure that students could cross the road in a safe and efficient manner. However, the principal conceded that the bus stop was very close to the school crossing, approximately 20 metres down the road and that she would expect a teacher on duty to keep "an eye out" (T352 [45]) for any possibilities of conflict at the bus stop.
Her evidence is that crossing duty was not a requirement of the NSW Department of Education. Rather, she introduced the policy as an extra precautionary measure with the intention of keeping her students safe. Her evidence in this regard is not entirely correct, as will be discussed later. She explained that the teachers were to conduct themselves in a similar manner to that of playground duty. They were required to be aware of their surroundings, move around actively and intervene if any issues arose. She further explained that the teachers were not required to spend a specific amount of time at the crossing and could use their discretion as to when they could leave, usually after most students had dispersed.
Due to her concern regarding XY's prior long suspension and prior violence, the deputy principal's evidence was that she would have followed protocol and informed teachers via email or through a staff meeting that they needed to be aware of any incidents of misbehaviour by XY. There were no emails in evidence to demonstrate that this was actually done.
The principal was cross examined by T2's counsel with a focusing on whether Stephen Barbuto (Mr Barbuto) and Andrew Nguyen (Mr Nguyen), both senior teachers who were rostered on bus duty on the day of the assault, were actually present at the Thorney Road pedestrian crossing.
There was no contemporaneous evidence of whether Mr Nguyen and/or Mr Barbuto were actually present at the Thorney Road bus crossing duty on the day of the assault. The principal recalled speaking with Mr Barbuto the day after the assault. He confirmed to her that he had attended at the Thorney Road crossing and he had not witnessed any suspicious behaviour from the students. The principal accepted Mr Barbuto's oral statement to her on the basis that he had been a teacher for over 30 years and was therefore well qualified to identify and address any situations of concern. The principal's confidence in Mr Barbuto was the subject of cross examination: "Morris Q. Its entirely possible that Mr Barbuto gave you nothing more than an estimate. Do you agree? A. No, I don't, because Mr Barbuto is a very honest person, I've worked with him for a long time, he would have told me correctly the information. He's also a maths teacher, so therefore, for him two and two makes four, he's very accurate with numbers, so he would have been very accurate with his time." (T565 [45]-[50]; T566 [5])
As to the principal's actual knowledge about whether Mr Barbuto attended bus duty on the day of the assault, the following exchange took place: "Morris Q. Well, you didn't go down to supervise them? A. My office was near the bus stop, and if any - the head teachers know to go to the bus duty straightaway, like all duties, on time, and if someone's not there, usually I'll get a call to come, the head teacher administration checks on people on duty; I'd get a call. Mr Barbuto's absent today - if he was absent that day, for example, someone else would've done that duty for him. So we have a system in place where staff that's absent, someone will relieve - will do that duty. Q. You see, you just called it bus duty, didn't you? A. Sorry? Q. You just called it bus duty, didn't you? A. Did I? I'm not sure. Q. That's what you refer to it commonly as, don't you; bus duty? A. No, its playground duty generally. Q. In describing the work to be done by Mr Barbuto, I want to suggest to you, you just referred to it as bus duty. Is that correct? A. I can't recall. Maybe. We'll look at the dialogue." (T244 [5]-[15])
From this exchange, the principal did refer to the supervision as "bus duty". On the day of the assault, there was a staff meeting scheduled to take place at 3:15pm. All teachers were required to attend. The meeting was a presentation of "film pond", a type of visual media used for learning purposes.

[21]

Should a Jones v Dunkel inference be drawn against the two supervising head teachers?

The system in part provided for the rostering of two head teachers to supervise the students when they left the gate of the school on Thorney Road, adjacent to the pedestrian crossing and bus stop. The roster for that week is contained in the court book at tab 5. The two rostered supervising head teachers on the day of the assault were Mr Barbuto and Mr Nguyen.
The principal gave evidence that that there was no specified time for the head teachers to finish their after-school crossing and bus duty. They were able to leave once most of the students had dispersed. She said that most students would disperse in approximately 10 minutes. The teachers rostered to the duty were instructed to use their professional judgment. They were to remain until most students had disbursed and they no longer perceived any issues (T236 [45]).
Senior counsel for the defendant submitted to the Court that a Jones v Dunkel (1959) 101 CLR 298 (Jones v Dunkel) inference was unnecessary because the two head teachers rostered on duty would not be in a position to provide any further information that could assist the Court in its findings. The school principal was probably the best person qualified to give expert evidence.
When the principal spoke to Mr Barbuto, he told her that he attended the staff meeting at about 3:25 to 3:30pm and he had not seen anything unusual outside that day (T233 [50]; T242 [45]).
However, T2's evidence was that when he first went to the bus stop there was only himself and four others present. The principal said that if there had only been five students at the bus stop, she would not have reasonably expected for there to be still teachers present (T354 [40]).
I accept that the principal gave evidence that the CCTV footage of the view of the bus driver showed her nothing to suggest that she would have needed to intervene (T358 [40]). She observed that the bus in fact blocked the view of the bus stop from a position near the crossing (T357[1]). However, when the principal was shown the CCTV footage of the school students walking towards the park, she accepted that the image of the boys following T2 down towards the park would have been a reason for concern and that she would have intervened. It is my view from watching the two CCTV videos and taking into account the principal's evidence, that if a supervising teacher had observed T2 leaving the bus stop it would have caused concern. Mr Meehan and Dr Ikin, expert witnesses, agree.
Neither Mr Barbuto nor Mr Andrew Nguyen prepared affidavits. Nor were they called by the defendant to give evidence. This was despite me having previously indicated to counsel that a Jones v Dunkel inference may be drawn if no evidence was given by the teachers. "HER HONOUR Q. All right. Just before you do that. There was Mr Nguyen, wasn't it? And who was the other one? A. Mr Barbuto. Q. Barbuto. I'm just looking at the statements, they haven't provided statements. POLIN: No. HER HONOUR Q. Is that - A. Well, they didn't see anything, your Honour. MORRS Q. I'm sorry? HER HONOUR Q. They didn't see anything - is what you answered. It's just that otherwise it's going to be - aren't there going to be Jones v Dunkel. POLIN: Your Honour, the evidence will come out about this and it will be quite clear what actually occurred and - so I don't - HER HONOUR: Okay. All right. I'll wait and see. All right…" (T302 [18]-[46])
The two head teachers, Mr Barbuto and Mr Nguyen, were rostered for after school duty at the crossing on the day of the assault. Their statements would have assisted the Court as they would have seen what did or did not occur at the bus stop had they been there. I warned the defendant that I would probably draw a Jones v Dunkel inference due to the absence of their evidence if there was no satisfactory evidence as to why they were not called to give evidence (T302 [40]-[41]).
They were not called as witnesses over the remaining five days of the trial. No satisfactory explanation for their nonattendance has been provided. Therefore, in the exercise of my discretion, I draw a Jones v Dunkel inference that Mr Barbuto and Mr Nguyen's evidence would not have assisted the defendant's case.

[22]

The assault - 16 October 2017

T2's evidence was that teachers would be on duty only some days and when they were there, they would only spend about 10 minutes supervising and would then leave. His evidence was that, prior to the assault on 16 October 2017, he did not mind waiting with other people at the bus stop, but after the assault now he finds it stressful waiting at bus stops with other people.
On 16 October 2017, the day of the assault, T2 initially had intended to go to the shops before the bus arrived, but he changed his mind. While at the bus stop a student came to him and said, "[XY] wants to talk to you" (CB 20047). T2 responded that he did not want to talk to him. T2 thought that this was still regarding the stolen phone.
Understandably, while in the witness box T2 did not want to discuss the details of the actual assault, for reasons explained by psychiatrist Dr Rickard-Bell, that I accept.
On that day, T2 had been told by XY that he was being "big" in English class after school had ended. Yeah, so when did [XY] say that you were big in English class? He didn't say it in English. Oh, okay, when - - He just waited until after school. Say it again, sorry? He waited till after school. Oh, okay, but you said that [XY] was calling you big because you weren't doing your work? Yeah, but he said that after school. (CB 20015)
T2 was then informed of the impending assault by his friend 'TJ' at the bus stop about two minutes before the approximately 12 students arrived at the bus stop. (CB 20014). TJ had warned T2 that XY was looking for him and wanted to speak with him. Oh, okay, and they've come over and then what's happened when they were walking towards you? Oh, they were all walking because my friend just said, "[XY] wants to speak to you." I said, "Why, I did nothing wrong?" and they just came up to me and they crowded me. Okay, so you said your friend said that [XY] wants to speak to you? Yeah Are you referring to [XY]? No - oh, yeah, [XY]. Yep, okay. Which friend said that to you? Oh, TJ. He's a mate. TJ? Yeah. Do you know TJ's full name TJ. [TJ]? Yeah. And what year is [TJ] in? Year 9. Year 9, okay, and does [TJ] go to the same school as you? Yep. Yep, and when did [TJ] tell you that [XY] wanted to speak to you? Oh, before 3.30. Before 3.30? Yeah, when they came through the park. Okay, so where were you when [TJ] told you that? I was at the bus stop. At the bus stop? Yeah. (CB20013-20014)

[23]

CCTV footage and videos

A series of CCTV footage was recorded on the day of the assault on 16 October 2017. The CCTV entitled 'Back of the bus footage' ran from 3:28:23pm to 3:28:30pm. The bus videos were recorded between 3:27pm and 3:28pm. The CCTV entitled 'Front of bus footage' ran from 3:27:47pm to 3:28:23pm. The CCTV entitled 'Inside door of bus' ran from 3:27:53pm to 3:28:23pm. The CCTV entitled 'Kambala Road footage' ran from 2:55:18pm to 2:59:59pm. It is common ground that the timer of the Kambala Road footage was incorrect. It appears that this footage actually took place between 3:55pm to 3:59pm.
The first CCTV footage is of the bus stop taken from cameras mounted at the front, rear and within the bus. The footage shows a group of students congregating at the bus stop. It is unclear exactly where T2 is located. It appears that T2 has been backed onto a wire fence surrounded by a group of students. On viewing the CCTV footage in slow motion, nine students boarded the bus. There were also about 13 ither students standing outside the bus. No teachers were depicted in the CCTV footage.
In T2's statement to the police dated 17 October 2017, he said that while he was waiting in line to board the bus he was grabbed by his bag and dragged down the alleyway (CB 20019). The officer asked him if he had managed to board the bus, T2 said "no" (CB 20020). When viewing the CCTV footage however, it is evident that the students prevented him from boarding the bus by standing in his way. They did not drag him out off the bus, nor did they drag him towards the alleyway.
In the second CCTV footage (captured by cameras in the alleyway), one of T2's fellow students escorted him away from the bus stop with his arm wrapped around T2's neck and shoulder while they walked side by side. Approximately two to three metres behind T2 and his escort was a group of school students who were following them down the alleyway. The alleyway is long. When giving evidence T2 was asked questions regarding this perceived threat and his compliance. "MORRIS Q. There's another question that I've got, and it's taking you to the day of the assault, all right. When you were taken down the laneway, okay. Did anybody say to you that you had to go down the laneway? A. No Q. So, you have said in one of your statements, "On the day of the assault I had to go with the others, or something would've happened to me". Is that something that somebody said to you, or is it the way you felt? A. The way I felt." (T170 [50]; T171 [1]-[5])
In his statement dated 14 August 2023, T2 stated that, "[o]n the day of the assault, I had to go with the others, or something would have happened to me" (CB 20054). Taking into the account of the evidence above, I accept that T2 was concerned that he was not safe, particularly because he was warned that XY wanted to speak to him. Students visible in the CCTV at the bus stop were also the instigators of the assault that would take place once they reached the park. T2 told the officers during his statement that the alleyway he was led down was approximately 10 metres down the road to the right of the bus stop, when one is facing the school.
The final video of the assault was filmed using a camera phone by another student present and filmed the assault as it was taking place. It was later uploaded to Instagram. The video depicts T2 and the escorting student of the group arriving at the park that was situated at the end of the alleyway. A student is then seen spear tackling T2 from behind, a dangerous act that is outlawed in both Rugby Union and Rugby League. The tackler lifts T2's feet out from under him and throws him onto the ground so that T2 finds himself in a very vulnerable position. T2 places his hands out in front of him to break his fall, but he still lands with force face-down. At this point, he is lying on his back. The group of students then immediately surround T2 and begin to kick and punch him from all angles with force including on his torso, head and legs. T2 covered his face with his hands. The attackers inflict their violence en masse. The attackers take turns inflicting their violence. Others in the group spectate and encourage the attack. T2 is lying limp on the ground screaming. One of the students is recorded as saying "fucking oath lad, eshay" while the assault continues to escalate. This video makes very distressing viewing.

[24]

T2's statement to police dated 17 October 2017

On 17 October 2017 at 5:38pm, the day after the assault, T2 made a statement at Fairfield Police Station. He was interviewed by Senior Constable Ryan Booker. The interview was conducted in the presence of T2's brother, Bradley, and their mother. It was Senior Constable Ryan Booker who later located the footage of the assault on Instagram.
During the interview, T2 was asked questions by the police about the assault. He stated that, at the beginning, he was about to go to the shops. However, he changed his mind late and decided to go the bus stop instead (CB 20004). When the students initially approached T2 at the bus stop, he recalls leaving and going back across the road into the school. He tried to find a teacher at the school and its administrative office, but the office was closed. He went back across to the bus stop when he saw his bus was coming. When he tried to board the bus he was held back by the students. T2 recalled that, after the assault, the perpetrating students ran away down towards the river.
T2 stated that while he was waiting for the bus at the bus stop (CB 20014), his friend, referred to as 'TJ', walked past and notified him that XY wanted to speak to him. T2 said: "Oh they were all walking because my friend just said, "XY wants to speak to you." I said, "Why, I did nothing wrong?" and they just came up to me and they crowded me (CB 20013).
T2 then described what took place with the students while he was waiting at the bus stop. The police statement records as follows: "I was waiting for the bus in the line- - Yep? Then they grabbed me by the bag and dragged me down the alleyway." (CB 20019)
It is important to note that T2 never said to the police that the student pulled him off the bus, nor did he say that at the beginning of the walk down the alleyway he was being dragged. The video does not show the entirety of the walk down the alleyway.
T2 reiterated that when they reached the park by the river he was tackled from behind, before being kicked and punched while on the ground repeatedly by multiple students. T2 recognised two of the students from the total of approximately 12 who attacked him. They were XY and XZ. He saw them running away from the scene.
The principal's response as to whether the school failed to provide adequate after-school supervision was that the school's policy to provide three head teachers to conduct after-school supervision was adequate. Being a high school with more mature students, the standard of supervision required was a lower one to that of a primary school. The principal reiterated that there was no specified time requirement for after school duty. She opined that if teachers were required to wait until every child had dispersed, they may have been there until 5:00pm. At the time of the assault, the principal was not aware of any statutory or regulatory obligations from the department that required teachers to remain after school in a supervisory role until a specific designated time.

[25]

Policy documents

The principal's evidence is that the crossing duty (including bus duty) was not a requirement of the NSW Department of Education and that it was a policy introduced by her as an extra precautionary one. That statement is not entirely correct.
A series of policy documents were tendered by T2 (Ex H, J, K). These policy documents are published by the NSW Department of Education address the scope of duty the school owes its students. The policy document titled "Duty of care to students", last updated on 16 February 2023, outlines the kind of duty of care that exists regarding after school care. It reads, "A school's duty of care to students can extend beyond school premises, for example, on excursions or when students commence their journey home. … Duty of care doesn't always stop at the bell or at the school gate. …" (Ex H)
The policy document titled "Managing school road safety", last updated on 1 September 2023, refers to the school's obligations to provide and implement strategies that prevent bullying from occurring as well as the school's requirement to provide a greater level of care towards vulnerable students, i.e., students with physical or mental health disabilities. The document additionally outlines that a duty of care will extend beyond the school gates as well as after school hours in "circumstances where there is a clear and close connection to the school" (Ex J).
The policy document entitled "Duty of care and behaviour management", last updated on 13 June 2023, defines the duty of care as being the duty to take reasonable steps or care to avoid harm. The document reiterates that the duty can extend beyond the school gates and after the end of the school day.
In summary, these policy documents set out that the school's duty of care extends beyond the school gate after the end of the school day, such as when students convene their journey home. Also, that the school's obligations include preventing bullying from taking place as well, particularly in respect of vulnerable students, such as T2.

[26]

Experts on liability: Dr Ikin and Mr Meaney

T2 relied on the expert liability reports of Dr Ikin, an independent educational consultant, dated 21 October 2020 and 21 May 2021. The defendant relied upon the expert liability reports of Mr Meaney dated 15 February 2023 and 13 July 2023. Both experts wrote a joint report where they disagreed on most issues. When giving concurrent evidence and when Mr Meaney accurate factual evidence, they agreed on various important issues.
Dr Ikin is an independent educational consultant. She holds degrees in education at the bachelor, masters and doctoral level. She was a director of schools for six years and supervised 32 schools in NSW. She has extensive knowledge in school policies and practices, in addition to teacher / principal practices and student behaviour.
Dr Ikin stated in her report dated 21 October 2020 that the school, and specifically the principal, were responsible for the safe passage of all students to and from the school. She opined that when a bus stop or crossing are in close proximity to the school, teachers should be placed on duty before the start of school and after the end of classes to ensure that students arrive and leave in a safe and appropriate manner. This duty extends until all or most students had boarded their respective buses or had left the school by other means of travel at the end of the day.
Dr Ikin reiterated this view when she was giving concurrent evidence. She was adamant that the school had a responsibility to ensure that all students had boarded their buses safely (T546 [20]). In her report Dr Ikin references a Memorandum to Principals 97/165 dated 21 August 1997. Clause 2.4 of that document provides the following regarding after school supervision: … "Students must be supervised to safely leave the school grounds and commence their journey home. Students must be supervised if crossing roads adjacent to the school. Students waiting for buses outside or near the school must be directly supervised. Principals must consider the numbers of students present, the age, maturity, any special needs and behaviour of the students, the number of exit sites and the danger from buses and normal traffic in determining an appropriate level of supervision."
Dr Ikin also expressed concerns regarding the school's failure to keep its offices staffed after the end of school for a longer period. It is Dr Ikin's view that that this would have provided a point of contact for any students who felt unsafe or threatened after the end of school.
It is Dr Ikin's opinion that the school is responsible for failing to assess and institute policies that would protect vulnerable students like T2 from students who had previously been known to 'bully' or be aggressive. She reiterated this view when giving evidence. She opined that the school had failed to accurately assess XY upon his return from a long suspension and that a risk assessment report had not been properly performed.
Dr Ikin concluded that the Department of Education required schools to provide supervision for the safe passage of students for their journey home. She believed that the school had failed to provide the required level of supervision. Dr Ikin believed that this failure was a contributing factor to the assault of T2, and she stated that, had the bus stop been adequately supervised, the assault would not have occurred or, at the very least, it would not have escalated to the degree of violence that was ultimately inflicted. Dr Ikin also opined that school should have been more "advanced" in developing an anti-bullying policy (CB 11411). Had that occurred, she believed the group of bullies who instigated the assault may never have formed in the first place. It is Dr Ikin's opinion that the school has failed in its duty of care towards T2.
The defendant submitted that Dr Ikin was an advocate for T2 putting forward a cause (T704 [20]). While I do not agree with some of Dr Ikin's opinions, I accept her opinions when she agrees with Mr Meaney's evidence. I do not accept that she was an advocate for T2.
Mr Meaney served as a school management specialist for 42 years and was a senior lecturer at the school of education at RMIT University. Mr Meaney has also published several books in the field. Importantly, when asked by me about his bus stop experience, it turned out he was responsible for supervising the bus stop every school day for a period of two years early in his career as a teacher in Scotland. In my opinion, this provided him with practical experience of the behaviour of students while waiting at a bus stop to catch a bus home.
Initially, Mr Meaney based his opinions on the limited view that the footage provided to him and upon the assumption that T2 had specifically told the police that he was dragged off the bus while boarding it. When giving concurrent evidence, after being showed additional CCTV footage, Mr Meaney gave the following evidence: "WITNESS MEANEY: The interesting thing - I mean, I've got three comments to make actually, particularly about that. T2 in his evidentiary statements to the police, and in my report I actually say what the point number is; said that he was actually boarding the bus when the students grabbed him by his Nike bag and pulled him off. Now, that doesn't show that, particularly if he's supposed to be in the background. So that's - that was of concern to me. And then the next statement too was that he was then put in a headlock, which that video doesn't show either. Lastly - I'm sorry, do you want me to stop? HER HONOUR: No, keep going. Yes, you're entitled to answer the question. WITNESS MEANEY: Lastly, and then something I thought of for quite a while. I've actually looked up the public transport regulations, and the bus drivers have a role and duty scheduled that they have to conform to, and one of them is no matter how small the incident is, if they see an incident of any kind, they're to report it to, (a) the school, (b) their - the bus company, and if they're in any doubt whatsoever, they're to pullover to the side of the road and review their footage of the - of the thing, and then do the same sort of thing. Now, looking at that, and I understand by the way, the point you're making, I don't see any of those things come into play. MORRIS: Just on the question of being grabbed by the Nike bag, you would accept the possibility that T2 had not yet approached the bus, but was restrained by the Nike bag-- POLIN: Well, object to that, your Honour, because that's not the evidence. You can't make up the evidence now and say it's an assumption. The evidence is what it is. It's not going to get any better. You can't be putting assumptions that suggesting to an expert that that might be the evidence somewhere down the track if that happened, but-- HER HONOUR: But I think it was in the police statement. POLIN: No, the evidence was that he was boarding the bus and he's dragged off by the bag. It's quite clear what happened, and he can put what that evidence, and that's what Mr Meaney has dealt with. To suggest, oh no, could it be the case that - there's no evidence of that. MORRIS: He was a 14 year old boy, and the use of language may or may not be sophisticated, to say, I was boarding the bus, could encapsulate approaching the bus rather than actually taking a step on to the bus. HER HONOUR: That's true, but - MORRIS: And I'm perfectly entitled - I mean, Mr Meaney, we are looking at an interpretation of a statement to police, you would accept, that although T2 is not shown getting actually on to the bus, by saying he was boarding the bus, that could encapsulate approaching the bus intending to board it. Do you agree? WITNESS MEANEY: I agree with what you just said, but in which case what I would have to do is go back to the police statement and actually see what his words were. MORRIS: And taking into account the possibility that there may well have been a degree of ambiguity in what he was saying in circumstances where he was being spoken to shortly after this attack. Do you agree? WITNESS MEANEY: Again, that's a possibility." (T565 [40]-[50]; T566 [5]-[50]). When viewing the CCTV footage from the bus, it can be seen that the students were congregating around T2. T2 did not say that the students dragged him off the bus, but rather that they prevented him from boarding the bus and dragged him down the alleyway. Mr Meaney conceded that if he were to have seen a group of students pushing another student back onto a fence and not letting him board the bus, he would have been concerned and would be prompted to investigate. "MORRIS: I'm sure he could say what he's saying, but that's all right. If a student of about 14 years was surrounded by a group of other students, a student who would ordinarily get on the 3.30 bus; if a student was surrounded and pushed up against a fence, or hemmed in against a fence, and you were the supervising teacher on crossing duty or on bus duty, that would be something you would wish to investigate. Is that right, Mr Meaney? WITNESS MEANEY: The same deal; if - if the scenario you've just painted is accurate, then yes" (T563 [42]-[50]).
When shown the footage again of T2 being led down the path towards the park where he was attacked, Mr Meaney conceded that the large number of boys following T2 and the other boy with his arm around him, might cause him "some concern" (T573 [10]) and that there was "something untoward" (T573 [20]) about what was shown in the footage. Mr Meaney agreed that he would want to investigate the situation if he was on duty.
Dr Ikin shared a similar view with Mr Meaney regarding the students in the footage. She too believed it would be a cause for concern (T703 [22])
When Mr Meaney was appraised of the evidence concerning the prior conduct of XY, who was the instigator and enforcer of the assault against T2, including the details of a former assault that had caused XY's long suspension, he made further concessions regarding his report and its conclusions. Mr Meaney agreed with T2's counsel that a 'risk assessment' of the student had not been properly performed and that the mitigating factors instituted by the school to keep the student from perpetrating further violent behaviour were not sufficient and had failed as a deterrent (T585; T586 [45]-[10]).
Mr Meaney also altered his opinion after new evidence was given as to the time both students had attended English class together. Initially, both experts were under the assumption that the class was class eight, being the last class of the day, thereby leaving very little time for XY to gather the approximate 12 boys who were also involved in the assault. The class had in fact been, according to evidence provided by the English teachers, class three or class six. Mr Meaney agreed that that would have given ample time for XY to instigate and organise the assault. It is common ground that XY had time to organise the students in the premeditated attack on T2.
Dr. Ikin maintained that a teacher had to remain supervising until the last student has boarded the bus. If a student missed the bus, she said she expected the teacher to remain until 4:00pm (T542 [5]-[20]; T543 [35]-[40]). I do not agree with Dr Ikin on this topic. I do not think it is reasonable. I prefer the view of Mr Meaney on this topic: "POLIN: Mr Meaney, do you think it really has to go to that sort of extreme? And I think I'll repeat the evidence that Dr Ikin says - WITNESS MEANEY: I know what she said. POLIN: ‑‑that every student in New South Wales needs to be seen onto that catch public transport from adjacent public transport spots? WITNESS MEANEY: Look, Dr Ikin, in her response, actually touched on an area, and I've - I've actually had this happen on excursions, when I brought children back on excursions, and their parents haven't been there, when the bus has stopped, to pick them up. Now, that doesn't mean that I go home, but it doesn't mean that I stay there. What I would do, and this is what you said a few minutes ago, you could, if - if you've judged it that way, say to the child, "Well, come into the school with me. I'll phone your mum, dad, whoever it is when they're approaching," but I certainly wouldn't be standing at the bus stop with them, no." (T547 [45]-[50]; T548 [5]-[10]).
The defendant emphasized that we are not just talking about this school but it is what is being suggested be done for high school students in New South Wales (T705 [30]-[35]).
As to where Dr Ikin and Mr Meaney disagree, I prefer and accept Mr Meaney's evidence for the reason set out earlier; he had done bus duty every school day for two years, so he had 'on the job' experience. He also, rightly, changed his view when he was presented with evidence contrary to the instructions he was given.

[27]

Duty, scope and breach of the duty of care

The duty of care a school owes to its students is non-delegable. It is common ground that the defendant, a school, owed T2, a student, a duty of care. As stated earlier, the principles of liability and damages are governed by the CLA.
It is also common ground that the school owed T2 a duty to take reasonable care to prevent injury to him on the assumption he was using reasonable care for his own safety: Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 ; Jones v Bartlett (2000) 205 CLR 166; Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330 (Dederer).
Sections 5B and 5C of the CLA read, 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." 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.
The onus lies on T2 to show that ss 5B and 5C have been satisfied. The inquiry in s 5B of the CLA asks what a reasonable person would have done, looking forward from the point of time before the injury, rather than retrospectively at what could have been done to avoid the injury: see Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12.
In normal circumstances the expectation that T2 would exercise reasonable care goes not merely to the assessment of breach of duty, but is "a specific element contained, as a matter of law, in the scope of the duty of care": see Dederer at [45] per Gummow J.
Section 5B of the CLA sets out the necessary, but not sufficient, pre-requisites for liability to arise. Although headed "duty of care", s 5B is directed toward questions of breach of duty: see Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem (2009) 239 CLR 420; [2009] HCA 48 (Adeels Palace) at [13].
The effect of s 5C(b) of the CLA is that determining whether reasonable care has been exercised cannot merely involve asking if different conduct could have produced a different outcome: see Mobbs v Kain (2009) 54 MVR 179; [2009] NSWCA 301.
The test is whether T2 has proved that the defendant, who owes a duty of care, has not acted in accordance with reasonable care: see Derrick v Cheung (2001) 181 ALR 301; [2001] HCA 48. The fact that there were measures that could have been taken to avert or diminish the risk that materialised does not establish breach of duty: see Thornton v Sweeney [2011] NSWCA 244.
A plaintiff must fail in an action for negligence framed in terms of a failure to take precautions unless the plaintiff shows that a reasonable person in the defendant's position would have taken those precautions: see Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [2015] NSWCA 253 at [50].
While a school has a duty of care in relation to its students, a school is not absolutely liable for injuries sustained by pupils while they are under the supervision of their teachers. A school is not an insurer of its pupils: see Trustees of the Roman Catholic Archdiocese of Sydney v Kondrajian [2001] NSWCA 308 (Kondrajian).
The question of what amounts to reasonable care in a given case must be seen in light of the fact that it is neither practical nor desirable to maintain a system of education that seeks to exclude every risk of injury: Kondrajian at [66], see also Wright v Cheshire County Council (1952) 2 All ER 789 per Morris LJ at 796.
However, the fact that a risk was foreseeable and preventable does not mean it was negligent: see Shaw v Thomas [2010] NSWCA 169. This concept was also succinctly described in terms of occupiers' liability by Mahoney JA in Phillis v Daly (1988) 15 NSWLR 65 at 74, where his Honour stated: "There are dangers on any premises. A room may have a desk or a table. There is a danger that, if I fall, I will hit my head on it and my skull will be fractured. If the desk or table were not there, I would suffer little or no harm. And the danger is obvious: people do slip and fall. And the injury may be serious. But the obvious foreseeability of such an injury and its seriousness does not involve that, if a person falls and hits his head on table, there must have been a breach of duty by the occupier of the room. And this notwithstanding that people may live without tables and that tables may be easily removed."

[28]

T2's submissions

T2 submitted that he had attended the school for some years in the lead up to the assault. He did not have major problems with other students at the school. However, a degree of bullying commenced in July 2017, a couple of months prior to the assault. T2's mother had reported the bullying to the school.
As to the scope and content of the duty of care, the school should have anticipated that bullying or physical violence could occur at the school and put systems in place to detect and deter it. The school had young people under its control, where impulsiveness, lack of judgement and interpersonal aggression could give rise to a risk of physical or psychological harm to fellow students. As such, supervision of students outside class and in the playground was required, in addition to systems for students to be able to complain and procedures put in place to minimise the risk of aggression and bullying.
The school ought to have anticipated that those students who used the school bus service were also at risk of harm after school as they aggregated outside the school at the bus stop. This is recognised by other schools. The risk of harm is obvious enough; physical or psychological harm from skylarking, being struck by a vehicle, abduction, physical violence between students or the general risk of public transport.
Thus, T2 submitted that for a period after school, there is a requirement for the presence of teachers at or near the school bus stops to provide supervision of students, and a resource for students to call upon if they felt threatened. Further, the school ought to have had the capacity to answer telephone calls for a period after school classes concluded to address the safety concerns of students or their parents.
T2 submitted that there was no systemic policy issue with the New South Wales educational system. There was already considerable case law about whether the duty of care extended beyond the confines of the school premises, in addition to various Department of Education Guidelines.
T2 further submitted that none of these steps were taken in this case, despite the obvious duty the school had as parens patraie, and the obvious risks posed by the enthusiasm and impulsivity of young students aggregating outside school grounds without the supervision that had been in place since arriving at the school. Therefore, T2 argued, a breach of the duty of care was established.
T2 was assaulted after the end of the school day that occurs at 3:04 p.m. There was no supervision provided to students as they dispersed at the end of the school day, notwithstanding Department of Education policies and the known violent tendencies of some students.
One such student, XY, was known to enlist the assistance of other students to carry out attacks on lone students. At the time of the assault, XY had already been given a long suspension. He had just returned from his second long suspension for violent conduct just four days prior to the assault of T2. He was in the same English class as T2. XY had garnered a reputation amongst school staff as an 'enforcer'. That is, a person ready to use intimidation and violence to lay down the law to others.
In the months before the attack, T2 had been accused of taking a phone belonging to a friend of XY. T2 was bullied and became fearful of going to school. He told his mother about the bullying. On 6 September 2017, T2's mother contacted the school and advised them of T2's concerns. On 11 September 2017, T2 attended school with his mother and older brother, and reported the bullying and named the perpetrators. T2 and his family were assured that, if T2 returned to school, he would be safe.
On the afternoon of the assault, T2 sought assistance from the school office, but it was locked. He then further contacted his mother, advising he was about to be attacked. His mother then attempted to telephone the school twice but each time her call was unanswered. When the bus was arriving, T2 re-crossed the road, intending to board the bus but he was intercepted by a group of students and taken down a nearby laneway into a park, where he was assaulted and beaten by about 12 students. As a result, T2 suffered physical and severe psychological injuries.

[29]

The defendant's submissions

The defendant denied that T2 had established either a breach of the duty of care or causation. Therefore, negligence under the CLA has not been made out.
A school is not liable for the illegal acts of student that occur after school hours unless the school knew or ought to have known of facts requiring intervention in order to protect other students.
The question of whether the school had breached its duty of care turns first on determining whether the risk in question was one of which it knew or ought to have known: s 5B(1)(a). This means the risk must be defined. Before doing so, however, it is essential to determine the scope of the duty of care the school owed. The question also includes whether the duty extends to protection against the deliberate wrongdoing of another student.
In addition, the scope of the duty that is owed to a primary school child will be different from the duty owed to a high school student. As the student gets older, the demands of the duty of care change. In Camkin v Bishop and another [1941] 2 All ER 713 (Camkin), the UK Court of Appeal considered an appeal by the school from a finding of liability where boys from the school were allowed to help a farmer by working in a field, unsupervised, and one of them was struck so badly in the eye by a clod of earth thrown amongst them during horseplay that his eye was lost. The claim against the headmaster was that he was under a duty to arrange for the supervision of the boys whilst they were doing the work. The appeal succeeded.
In Camkin, it was relevant to the Court of Appeal's finding that the boys were high school students. Goddard LJ said at 716-717: "Boys of 14 and 16 at a public school are not to be treated as if they were infants at creches, and no headmaster is obliged to arrange for constant and perpetual watching out of school hours. For one boy to throw something at another is an ordinary event of school life, but the fact that there was in this particular case a disastrous and wholly unexpected result is no reason for throwing responsibility on the master."
Any duty to take reasonable care required the school to protect T2, or the class of person of which he was a member, from a "not insignificant" risk that could reasonably be foreseen and avoided. The measure of the discharge of the duty, at common law, was what a reasonable person would, in the circumstances, do by way of response to the foreseeable risk: Hackshaw v Shaw (1984) 155 CLR 614. The measure is now prescribed by s 5B of the CLA.
The inquiry is not confined to what could have been done to eliminate, reduce or warn against the risk. While asking what could have been done will reveal what was practicable, it is necessary to ask also: would it have been reasonable for the school to take those measures? In other words, the knowledge of how T2 actually came to sustain his injury has to be excluded when considering whether the school was obliged to take any precautions in the circumstances.
A person does not breach his duty of care merely because there are steps that he could have taken to avert the risk that actually materialised.
As a starting point, T2 must identify, and articulate clearly the "risk of harm" in respect of which it is said the school was obliged to take precautions. Gummow J, in Dederer at [59]-[61] demonstrates that it is only through the correct identification of the risk of harm that an assessment of the reasonable response can be made.
Here, it would appear that the "risk of harm" was that T2 would suffer injury as a result of being assaulted by XY.
The first element that T2 must establish is that the risk of harm was foreseeable to the school. Foreseeability is described in the CLA differently from the traditional common law description of something that "... is not far-fetched or fanciful".
For a risk of harm to be one that is foreseeable under the CLA, T2 must establish either actual knowledge in the school of the risk of harm, or else constructive knowledge, ie, that it ought to have known of the risk of harm.
There was no evidence that the school had any actual knowledge of the risk of harm: see Youkhana v Di Veroli [2009] NSWSC 942 at [108] to [122].
The best case T2 can put is that the risk of harm was foreseeable, in terms required by s 5B(1)(a), because the school ought to have known of it.
The establishment, by T2, of constructive knowledge in the school of the risk of harm necessarily depends upon all of the facts, matters and circumstances that were known to it or else ought to have been known to it.
It is important to emphasise, however, that knowledge, whether actual or constructive, must be judged as at the date of the alleged negligence and not at a later date. That is, knowledge must be judged without the benefit of hindsight and ignoring subsequent increases in knowledge about the risk and its consequences.
At the point in time just prior to the assault, there was not the slightest indication that XY would assault T2 in the manner in which he did.
Looking objectively, there is not a single piece of evidence that would suggest to anyone that XY would have assaulted T2 the way he did on that day.
Therefore, within the terms of s 5B(1)(a), the risk of harm identified in this case was not a risk of which the school knew or ought to have known. Accordingly, the risk was not foreseeable, and the school therefore cannot be negligent.
The second step in the analysis required by s 5B is to determine whether the alleged risk of harm was "... not insignificant". This must be judged from the perspective of a person in the school's position, and in prospect not retrospect.
The phrase derives from the final report of the Review of the Law of Negligence (the Ipp Report), that was published in September 2002. The Ipp Report, at [7.15], described the recommended change from the common law phrase "... not far-fetched or fanciful" to the statutory test "... not insignificant" in the following way: "The panel favours the phrase 'not insignificant'. The effect of this change would be that a person could be held liable for a failure to take precautions against a risk only if the risk was 'not insignificant'. The phrase 'not insignificant' is intended to indicate a risk that is of a higher probability than is indicated by the phrase 'not far-fetched and fanciful', but not so high as might be indicated by a phrase such as 'a substantial risk'. The choice of double negative is deliberate. We do not intend the phrase to be a synonym for 'significant'. 'Significant' is apt to indicate a higher degree of probability than we intend."
In view of the fact that the assault involving T2 appears to have been a "one off" isolated and random incident, of which the school could not be said to be on notice, T2 cannot show that the risk of harm in this case was one that can be described as "not insignificant". It did not reach that level or order of magnitude. See: Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151.
Section 5B(1)(c) then requires an analysis of the conduct of a reasonable person, in all the circumstances of the case, when faced with the relevant risk of harm. Any consideration of this element requires attention to the provisions of s 5B(2). However, as the terms of the legislation make plain, s 5B(2) is not an exhaustive list of factors that a court is required to take into account in deciding if s 5B(1)(c) is made out.
The relevant duty to exercise reasonable care for the safety of school students, depends upon proof that the school knew or ought to have known facts requiring intervention.
It was not put to any teacher that XY's suspension should have been extended. It was not put to any teacher that XY should have had any sort of special level of surveillance. Nor was it put to any teacher what further steps should have been undertaken that would have led to any material change.
It is not suggested what a risk assessment would have contained. It is not suggested what a risk assessment would have done, nor was it put that any teacher that XY should have been expelled prior to the assault on T2.
T2's claim in this respect seems to be simply that the school should have had more supervision at the bus stop until 3:30pm. However, the evidence was that there had been no prior incidents at the bus stop. T2 had never seen fights at the bus stop.
The principal gave the evidence of the system of supervision: see (T279-280, 281, 283, 286, 343).
Taking these matters into account, what is wrong with the system at the school?
Looking at situation prospectively, T2 is not able to establish that any of the conduct of the school and its employees was in any way unreasonable.
In respect to allegations regarding supervision, the defendant's duty of care to a pupil ceases to exist at the school boundary except in exceptional circumstances: Graham v The State of New South Wales [2001] NSWCA 248 (Graham).
In Graham, the NSW Court of Appeal demonstrated that there are limits to the duty of care owed by a school authority to its pupils. It considered an appeal brought by a then-year seven student, aged 12 years old with poor eyesight and balance, who had suffered serious injury when she was hit by a motor vehicle while crossing the road on her way home from Mount Druitt High School.
Generally, her mother would walk her home. Her mother asked the school to provide the student with transport if she was unavailable; however, the school declined to do so and notified the mother that it would not provide transport. On the day of the accident, the plaintiff's mother did not walk home with the plaintiff. The plaintiff was injured crossing the busy road on her way home. She sued the State of New South Wales as the relevant school authority for her loss. She argued that the school owed a duty to transport her home if her mother was not available to walk her home.
In Graham, the Court of Appeal dismissed the appeal. Meagher JA said: "No doubt the school had a duty to take reasonable steps to protect the child whilst it was at school, and this it apparently did. There may also have been a duty to inform Miss Graham's parents that neither taxi nor bus was running, and this it certainly did. There is no duty, in my opinion, to go further to take precautions to escort a pupil like Miss Graham to her home. Except in exceptional circumstances the master/pupil relationship ceases to exist at the school boundary."
In Graham, a crucial factor to the finding in favour of the Department was the fact that the appellant/plaintiff was of high school age, and that the school had informed the plaintiff's parents that it would not transport the plaintiff and that buses were not running. The NSWCA held that the school had discharged its duty by informing the plaintiff's parents and that there is no duty to go further to take precautions to escort a pupil home. It was held that except in exceptional circumstances the master/pupil relationship ceases to exist at the school boundary. This case does not demonstrate exceptional circumstances that would warrant the duty owed by the school to T2 to extend beyond the school boundary. That is, in circumstances where: 1. the incident took place more than 30 minutes after the bell, and well outside of the bounds of the school. 2. there was no evidence of knowledge of any incidents of bullying or otherwise involving T2 and XY. 3. there is no evidence of any prior incidents occurring at the bus stop; and 4. neither T2's, nor his parents have ever reported concerns about his safety while at the bus stop or travelling to or from school.
The defendant submitted that T2 fails to satisfy the threshold test applied by the Court in Graham, particularly when the assault took place more than 30 minutes after the bell, and well outside of the boundaries of the school.
The policies of the Department of Education which have been set out earlier in this judgment have extended the liability of the school after hours and liability goes beyond the school gates.
In oral submissions the defendant referred to s 5B(2) of the CLA and submitted that the probability of harm would occur if care were not taken was next to zero (T714 [30]-[37]). This is because neither the principal nor T2 had ever seen it happen before. The probability is next to nothing as to the likelihood of the seriousness of the harm is difficult, but the assault can cause serious harm (T714 [30]-[37]).
As to social utility s 5B 2(d) of the CLA, the defendant submitted that "the social utility the activity's creating" must be balanced against the burden of doing so. It reasoned that the precautions suggested by Dr Iken would impose substantial cost, requiring staff to supervise "every bus stop… train stop… [and] ferry wharf which is adjacent to the school" at a substantial cost (T714 [39]-[50]). Suffice it to say that, previously indicated, while her opinion is aspirational it is not reasonable.
It appears that after school sometime, there is a void of 20 minutes as to where T2 was and what he was doing. The defendant set a chronology of what it said were the relevant times after school on the day of the assault (T697 [25]-[30]).

[30]

Resolution

It is common ground that the school owes a duty of care to T2, whether it is vicarious liability or a non-delegable duty, to take reasonable care to prevent injury to him on the assumption that he was taking reasonable care for his own safety.
The principal gave evidence that no prior assaults at the bus stop had been reported to her. While that is a consideration to be taken into account pursuant to s 5B(1) of the CLA, it may be that an assault or assaults had previously occurred at the bus stop but had never been reported to the school. Just because it is the first time a student was seriously injured, does not mean that a breach of duty has not been established. In analysing the scope and nature of the duty of care, the various guidelines of the Department of Education, previously referred to in this judgment, set out that the duty of care owed in respect of high school students does extend to after school hours and beyond school grounds. The principal was aware of prior violent altercations that had occurred in the park where the assault took place. In these circumstances, I consider there was "a clear and close connection" between the assault on T2 and the school, to use the language of the departmental guidelines (Ex J).
The scope and nature of the duty of care are in dispute. It is my view that the school owes a duty of care to vulnerable students such as those school students who have physical or psychological issues, secondly, to keep students safe from being bullied and assaulted by other students, thirdly, to perform a proper risk assessment to school students who have been granted a long suspension before allowing them to return from that long suspension, fourthly, to keep the administrative office open at the end of day for a longer period so that students who find themselves in difficulty can seek help and safety there, finally, to provide supervision in and around the school for the safe passage of students for their journey to home from school.
It is Dr Ikin's opinion that the school is responsible for failing to assess and institute policies that would protect vulnerable students like T2 from students who had previously been known to 'bully' or be aggressive. She reiterated this view when giving evidence.
The principal gave evidence that she had known T2 since 30 January 2015, when he initially enrolled in the school. She recalls that T2 had several interactions with the head teacher for welfare Ms Ethymiades as recorded in T2's school file. She specifically recalls the school being advised of the murder of T2's grandfather. The principal also referred to T2's particular needs at the school as he had been diagnosed with ASD.
Prior to the assault the principal was aware that T2 had been bullied. On 11 September 2017, a meeting was held with the deputy principal and T2's mother and T2 where the deputy principal was advised that T2 had been bullied since July 2017. T2 and his mother were advised that if he returned to school, he would be safe.
The scope of the duty of care owed to T2 was broader than that owed to most other students. This is because of his pre-existing psychiatric diagnoses, which made him more susceptible to bullying, and the fact that the school was on notice of him having been subjected to bullying in the months leading up to the assault.
Dr Ikin in her report opined that the school in 2017 had not implemented or did not have sufficient policies and processes in place to deter and control bullying. She believed that if the school did have the required policies, the assault on T2 might have been avoided (CB 30021).
Mr Meaney addressed the school's bullying policy in his second report, dated 13 July 2023. He disagreed with Dr Ikin. Mr Meaney expressed the view that the school had adequately addressed and implemented the NSW Department of Education's anti-bullying policy.
It would be difficult, if not impossible, to have an anti-bullying policy that would eradicate all bullying. I am satisfied that the school had sufficient policies in place to deter and control bullying. The question in this case is not whether the policies themselves were sufficient, but whether the application, or lack thereof, of those policies in practice was sufficient.
As stated earlier in this judgment, Mr Meaney agreed with T2's counsel that a 'risk assessment' of XY had not been properly performed and any mitigating steps which had been instituted by the school to keep him from perpetrating further violence were insufficient and had failed as a deterrent (T585; T586 [45]-[10]). Dr Ikin opined that the school had failed to accurately assess XY upon his return from a long suspension and that a risk assessment report had not been properly performed.
The deputy principal gave evidence on the topic. She could not point to a specific document evidencing XY's risk assessment. I accept that the risk assessment did not need to be one document but could have been a combination of documents, or even a recording in a file note. Aside from conducting an interview with XY prior to his return to the school, no other action was taken. The interview was the only step taken in furtherance of a 'risk assessment'. The deputy principal considered, as a result of the interview, that XY had demonstrated the requisite remorse to return to the school.
I understand there is some discretion involved in arriving at a decision as to whether a student should be permitted to return to school after a long suspension. However, as a result of XY's prior long suspension, school counsellor Sonja Milinkovic and psychologist Linda Harrison (the school counsellors) prepared a document entitled "School Counsellor Suspension Report - 2017". The authors made the following recommendations in relation to the eventual re-integration of XY into the school: "[XY] to see the School Counsellor in order to discuss his current behaviours. [XY] to be enrolled in the RAGE Program. [XY] to be encouraged to use appropriate resolution strategies when trying to resolve conflict matters. A Risk Assessment to be completed. [XY] to see the school counsellor to assist with emotional regulation for a few sessions. [XY] to seek counselling for emotional regulation with an outside agency depending on the assessment/success of counselling at school." (CB 12549)
The deputy principal was unable to recall or confirm if any of the suggested protocols for XY's return to the school had been conducted. She could only recall that she had multiple unidentified conversations with XY, who had assured her that he was ready to return. As previously stated, I accept that the deputy principal had one interview with XY prior to his return to the school following his long suspension and that she was of the opinion that his attitude had changed. While the deputy principal was entitled to use her discretion, had she implemented the recommendations of the school counsellors she may well have formed a different opinion.
Taking into account the defendant's suspension and expulsion policy and the recommendations made by the school counsellors, it is my view that the school failed to undertake a comprehensive risk assessment prior to the return of XY.
Further, as in State of New South Wales v Mikhael [2012] NSWCA 338 (Mikhael), the school failed to comply with its own procedures in failing to disseminate information to alert the head teachers about XY's long suspension and his subsequent return to the school. Even if it had put the senior teachers on "high alert" (T713 [11]-[17]), there was an obvious failure from the school to carry out the elevated requirement for monitoring XY's movements.
Dr Ikin and Mr Meaney agreed that no schools, in their professional experience, would close their doors for the day at 3:15pm and put the contact telephone through to an unmonitored voicemail, even if that might technically be outside of the 'office hours' of the school. Both experts opined that teachers should and would have been available somewhere on the premises of the school. Mr Meaney agreed that a sign would have been helpful in assisting students who were looking for a teacher after hours. Dr Ikin opined that the school phone should have been diverted to a principal or deputy principal so that they could offer assistance. Both experts agreed that it would be bad practice to deny students the benefit of adult support beyond 3:15pm.
There are any number of reasons why students and/or their caregivers would need to access school staff soon after school finished. The reasons might include a student being hit by a car, a suspicious member of the public approaching students or, like in this case, a student fearing violence from a fellow school student and who seeks refuge inside the safety of school grounds.
Closing the office immediately after school closed and forwarding the telephone onto a message bank that was unanswered, coupled with an absence of any staff on bus duty, makes it difficult, if not impossible, for students and/or caregivers to seek the assistance of staff.
What occurred at the bus stop after school hours ended at 3:04pm occurred sometime between 3:17pm and 4:00pm. This was in clear and close connection with the school.
The experts gave their views about what occurred at the bus stop: "POLIN: You're aware that [T2] used to regularly catch the bus from this bus stop, and he also said that he'd never seen any violent behaviour at the bus stop? WITNESS IKIN: yes, I think I remember reading that. POLIN: You shrug your shoulders. That important, isn't it? WITNESS IKIN: I - I think I remember reading it. POLIN: But it's important to know these sorts of things? WITNESS IKIN: it's important in - as context, but it doesn't obfuscate the need for supervision, which the‑‑ HER HONOUR: Also, and this is at - but also just by the virtue of having people, teachers in high-vis and with whistles at the bus stops a deterrent for bad behaviour. POLIN: It might be, your Honour. So the next thing is, did you inquire about the school numbers before you did your reports as to how many kids attended the school and how many kids caught public transport? WITNESS IKIN: Yes. POLIN: What did you find out from that? WITNESS IKIN: Well, from what I read, there was about 1400 students at the school, and there were on average, about 70 students at - at the front bus stop area. POLIN: But I think the evidence, in fact, is that in fact there are only 70 kids who would catch public transport from the school. That's all public transport. (T530 [16]-[50]) … MORRIS: Just taking up a couple of issues that arose in the course of this evidence, the presence of a teacher at or near the crossing or, at or near the bus stop would be a deterrence to poor behaviour, wouldn't it, Mr Meaney WITNESS MEANEY: Generally, yes. WITNESS IKIN: Yes. HER HONOUR: Ultimately, my findings are going to be depending on what I say happened at the bus stop. MORRIS: Yes. HER HONOUR: About the supervision. MORRIS: Ms Ikin, I want you to assume that head teachers were selected for crossing duty at this crossing. Is what you're saying to her Honour that the presence of the head teacher, in this sort of role, is not just a question of authority that that head teacher carries, but their knowledge of the students in their year, and at the school? WITNESS IKIN: Yes, or the - or the knowledge given to them as head teachers about particular students, not because they teach them, but because they're alerted to those sorts of things. MORRIS: Mr Meaney, you agree with that? WITNESS MEANEY: Yes. (T562 [19]-[46]) … MORRIS: And also, the very presence of a teacher would be a deterrence to any untoward behaviour, including physical violence. Correct? WITNESS MEANEY: Well, yes, at that moment in time." (T578 [20]-[23])
The scope of the duty of care includes taking reasonable steps to ensure that a school student, such as a vulnerable student like T2, can depart the school in a safe manner.
In 2001, the Court of Appeal in Graham found that a duty of care to a pupil ceases to exist at the school boundary or at the end of school hours except in exceptional circumstances. Since Graham, times have changed and expectations that students can safely leave school after the school day ended have changed. The Department of Education has issued several guidelines to which I have earlier referred that set out that the duty of care does extend beyond the school gates before and after the school hours.
In Graham it was stated at [7], "There will be some situations where the duty extends beyond the school gate, at least so far as enlivening some obligation to give a particular warning to parents or sometimes to effect some added supervision".
In my view, since Graham was decided in 2001, teachers performing bus duty has become common place after school finishes. Teachers performing bus duty in high visibility vests no longer constitutes exceptional circumstances.
Here, given T2 had diagnosed physical and psychological conditions and was previously the subject of bullying at the school prior to the assault, the risk to T2 was reasonably foreseeable. This was heightened by the fact that XY was a known aggressor who had been suspended for assaults in the past and had just returned to school after a long suspension. There were similarities between this previous attack and that inflicted upon T2. Both were group attacks orchestrated by XY and both occurred outside of school hours and off school premises.
While in the immediate vicinity of the school, XY should have been monitored by senior teachers, such as those who were rostered on bus duty, who should have been informed of XY's long suspension. However, as they were not present that afternoon, the potential behaviour of XY and the safety of the vulnerable student T2 was not monitored.
The school was actually aware of both XY's propensity for violence and T2's vulnerabilities. During the very month prior to the attack the school assured T2 and his family that if he returned to the school, he would be safe. The scope of the duty of care extended to both taking reasonable steps to protect T2 from further acts of bullying and prevent XY from assaulting other school students who were new targets, such as T2.
On the balance of probabilities, it is more likely that there was an elevated risk that an assault by XY on another student would occur in the absence of supervision, as it did on the day of the assault.
The risk was not insignificant as the school had knowledge of XY's propensity for serious violent behaviour and of T2's vulnerabilities, which made him a greater target.
There was no dispute that the attack had been premeditated and was unavoidable by T2. The assault was imminent and well planned, such that no reasonable person in T2's position could have done more than he did to avoid the situation as it unfolded. While waiting at the bus stop, T2 was told that XY wanted to see him. In response to that information, T2 crossed the road and returned to the school grounds and the administration office within, because he surmised that it would be safe there. It was not because the administrative office was closed, the phones were not monitored, and messages were forwarded to a message bank. T2 alerted his mother via text of the imminent assault at 3:26pm. His mother was also then unable to contact the school prior to the assault occurring. She called the school's office twice at 3:27 and 3:28pm. Both phone calls went to message bank and remained unanswered. T2 did all he reasonably could have done to avoid the assault. In short, T2 "exercise[d] reasonable care for [his] own safety": Dederer at [45] per Gummow J.
On the afternoon of the attack, a mandatory all-staff meeting was scheduled to occur at 3:15pm. I accept the principal's evidence that the two senior teachers rostered on after-school crossing and bus duty did not need to attend this meeting. However, I have already made a Jones v Dunkel inference that the teachers never attended the Thorney Road crossing and bus duty on that afternoon. Therefore, there were no teachers at the crossing and bus stop to assist any student who may have encountered problems after school while waiting for the bus. Due to their absence, there was no staff there to deter and monitor the threat to T2. T2 could have approached them for assistance, had they been in attendance.
It is correct that, as the defendant contended, the demands of the duty of care owed to school-aged children will change as they mature. However, this does not imply that, universally, the likelihood of certain harms will reduce in older children. The risk of certain serious harms, such as premeditated group attacks like that inflicted upon T2, will be as great if not greater in older age groups. As such, the duty of care to protect against some harms can increase over time.
I do not accept the defendant's submission that, at the time of the assault, there was not the "slightest indication" that XY would assault T2 in the manner that he did.
XY had a history of poor behaviour that was known to the defendant. Notably, he previously organised and undertook a similar group attack on a fellow student. He was unrepentant as he advised the deputy principal that the 'bashing' he inflicted was 'deserved' (CB 12553).
While the assault on T2 was more serious than XY's prior misconduct, there were nevertheless similarities. Like the assault on T2, XY's previous violence, for which he received a long sentence: 1. Occurred outside of, but near to, the school; 2. Occurred shortly after school hours; 3. Was motivated by XY deploying his warped sense of justice; 4. Involved XY punching and kicking the victim; and 5. Escalated to the point that a passerby had to intervene. (CB12543 and T373 [12]-[50]; T374 [1]-[45])
T2 had a recent history of being bullied, to the point that during the month prior to the attack, the school had to assure him and his mother that he would be safe if he returned.
As T2 was in XY's English class, XY would have been aware that T2 had a psychological or psychiatric condition and that because of this, he was a vulnerable student.
Against this background, it cannot be said that there was "not a single piece of evidence" that XY would have assaulted T2 on the manner that he did. If proper care were not taken by the defendant, it was reasonably foreseeable that such harm would occur.
It is my view that the probability of harm, as a forward-looking assessment at the time of the assault, was a significant one. It is a sad reality that physical bullying occurs in the context of schools. Here, the school knew that XY was a physical aggressor and had dealt with his bullying previously. Without active steps taken to address his previous misbehaviour, there was always a likelihood that his conduct could continue, if not escalate, as it did here. Further, there is a heightened risk of physical bullying in and around the school immediately after school hours, when students are left on their own accord to congregate and mix together. In these circumstances, the probability of harm if the school did not implement supervisory measures and provide a safe place to resort to after hours for a period as students dispersed and the buses had left, was a significant one.
The injuries suffered from a single attack by fellow students can be life changing. For instance, in Mikhael, a single hit to the head resulted in the plaintiff suffering from brain damage. T2 was not the first victim of XY. For any student, particularly those with pre-existing psychiatric conditions like T2, the infliction of a physical assault by a group of students will likely lead to long-term developmental challenges, undermining their self-confidence. Therefore, it is my view that the likely seriousness of harm, if no preventative action were taken by the school, ranks as high.
T2 identified the social utility as being the supervision of students managed by the school. The failure to administer competent and responsible supervision can lead to acts similar to that inflicted upon T2. Specifically, counsel said in closing submissions. MORRIS: And the issue of supervision is to provide a resource where a child, and we're talking about a 14 year old who has been threatened, does not have the resources to be able to deal his way out of conflict, doesn't have the personal resources, and, in this case, he has a particular vulnerability. That's an issue of social utility. (T746 [35]-[39])
The defendant submitted that the social utility of extending a duty of care beyond the school gates would be offset by placing an unwarranted burden on public schools. However, it is my view that the burden to the school would be low when weighed against the significant public utility that it would serve. I base this on the principal's evidence, who stated that of the school's 1400 students, approximately 70 used the bus stop. The staffing of two teachers on bus duty for the time period during which students left the school would represent only a limited staffing burden, over approximately 15 minutes, when weighed against the significant social utility that this would serve. The teachers would act as a deterrence to poor behaviour by students and they would have been in a position to pay particular attention to the vulnerable students, like T2, and aggressors, like XY.
Teachers could intervene upon observing vulnerable students, such as in the situation of T2 being escorted from the bus in the manner he was. On the afternoon of the assault, nine students got on the bus that T2 usually caught. In addition, it can be seen on the CCTV that there were about 13 students a few metres away from the bus door. If the teachers had been present, the presence of an unusual number of students standing near the bus and not boarding would have been most unusual. There was earlier evidence that only approximately four students caught that bus. Both experts and the principal gave evidence that if the behaviour of XY and his followers were observed, they would have intervened.
Similarly, ensuring that the school office was staffed until 4:00pm or such time as students had dispersed would have provided T2 a safe place to avoid the impending assault. These steps would protect against a variety of additional risks including, but not limited to, the risk of collision with a motor vehicle and skylarking between students where a school student could be injured. Further still, if the phone calls were monitored by a staff member until 4:00pm, the risk of harm to T2 could have been avoided through intervention.
It is my view that both ss 5B and 5C of the CLA are satisfied. It is uncontroversial that a school has a duty of care towards its students. Hence, T2 has established that the defendant has breached the duty of care, as set out earlier, that it owed to him. The next issue to be determined is one of causation.

[31]

Causation

Sections 5D and 5E of the CLA set out the relevant tests for causation: Adeels Palace at [41], [44]. The onus to prove causation is upon T2.
Sections 5D and 5E of the CLA read, 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. 5E Onus of proof In proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.
As the High Court explained in Wallace v Kam (2013) 250 CLR 375 (Wallace) at 383: "[11] The common law of negligence requires determination of causation for the purpose of attributing legal responsibility. Such a determination inevitably involves two questions: a question of historical fact as to how particular harm occurred; and a normative question as to whether legal responsibility for that particular harm occurring in that way should be attributed to a particular person. The distinct nature of those two questions has tended, by and large, to be overlooked in the articulation of the common law. In particular, the application of the first question, and the existence of the second, have been obscured by traditional expressions of causation for the purposes of the common law of negligence in the conclusory language of 'directness', 'reality', 'effectiveness' and 'proximity'. [12] Statute now requires that the two questions be kept distinct. Section 5D of the Civil Liability Act 2002 (NSW), which is substantially replicated in each other Australian State and the Australian Capital Territory, provides: (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 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 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. … [14] The distinction now drawn by s 5D(1) between factual causation and scope of liability should not be obscured by judicial glosses. A determination in accordance with s 5D(1)(a) that negligence was a necessary condition of the occurrence of harm is entirely factual, turning on proof by the plaintiff of relevant facts on the balance of probabilities in accordance with s 5E. A determination in accordance with s 5D(1)(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused is entirely normative, turning in accordance with s 5D(4) on consideration by a court of (amongst other relevant things) whether or not, and if so why, responsibility for the harm should be imposed on the negligent party. … [16] The determination of factual causation in accordance with s 5D(1)(a) involves nothing more or less than the application of a "but for" test of causation. That is to say, a determination in accordance with s 5D(1)(a) that negligence was a necessary condition of the occurrence of harm is nothing more or less than a determination on the balance of probabilities that the harm that in fact occurred would not have occurred absent the negligence."
In order to succeed, T2 must show that it is more probable than not that, but for the breach, the "particular harm" that materialised would not have been suffered. This involves two elements: "factual causation" and "scope of liability": see Adeels Palace at [42]; Wallace at [12].
Determination of factual causation under s 5D(1)(a) is a statutory restatement of the "but for" test of causation. That determination is "entirely factual, turning on proof by the plaintiff of relevant facts on the balance of probabilities in accordance with s 5E": Wallace at [14]. To prove that a change in circumstances might have made a difference does not alone prove factual causation: Adeels Palace at [50].

[32]

T2's submissions

The determination of "scope of liability" involves a value judgment (Wallace), as does the determination of "factual causation": see Paul v Cooke (2013) 85 NSWLR 167; [2013] NSWCA 311 at [11].
It must be established on the balance of probabilities that but for the negligence of the defendant, T2 would not have been assaulted and injured.
Causation could be established two-fold. Firstly, relating to the school's failure in performing a proper risk assessment before XY was permitted back into the school. "On the question of the "but for" test, we've got to look at this in these terms. With respect to the admission, 'but for' test had XY returned with behavioural monitoring, and so forth, given his expressed intention to cooperate with the school, his behaviour may well have been modified, this may never have happened, he may have just got over it. Or, he had his time out card, and he could go and speak to people about his problems. He didn't. He took it into his own hands. Had a risk assessment been performed on his return, then it's entirely possible, or probable, we say, that, given the nature of the attack, that there would've been a staggering of departure times from the school, where he would've been on half days." (T746 [40]-[50])
Secondly, in the school's failure to properly supervise and provide adult assistance to students during their home departures or in a time of need. "On the supervision question on the 'but for' test, we say, had either teacher been present on the pedestrian crossing, T2 would have gone up to them and been provided with assistance, and he would not have been put into a headlock, and dragged down to the park and beaten. XY may have been counselled and told to disperse. The police might have been called." (T747 [1]-[6])
It is no answer to say that XY would have found another opportunity to lead others in an organised attack on T2. He was able to organise the attack in the way that he did because he knew about, and took advantage of, the weaknesses in the school's system. Specifically, he took the opportunity presented to him by the defendant's failure to supervise the departing students onto the bus.

[33]

Defendant's submissions

The defendant submitted that T2 was unable to establish factual causation. Mikhael is applicable.
In Mikhael, the plaintiff brought a claim in negligence in relation to injuries he sustained when he was assaulted by a fellow student, identified as 'T', at a state high school on 5 December 2008.
T had been involved in a previous assault following a touch football game some six weeks prior to the assault. T had struck another student from behind and inflicted injuries sufficient to warrant an ambulance to be called. T was suspended for four days.
On 5 December 2008, the plaintiff and T attended a school class and were involved in a disagreement over a worksheet that required intervention by the teacher. Following the class, the plaintiff stayed behind with the teacher and another student as he was apprehensive of further problems with T.
At the teacher's direction, the plaintiff left the classroom. When he left, the plaintiff was hit on the left side of his head by T, causing a significant injury including brain damage. The teacher in charge of the class was also the head teacher for welfare and during the course of giving evidence confirmed that while she was aware of the previous assault, she had not received any formal notification from the school regarding T's propensity for violence following minimal provocation.
The initial proceedings in Mikhael were heard in the District Court of NSW by Sorby J. The plaintiff alleged that the defendant had breached its duty of care by failing to adhere to its own procedures and provide teachers with information regarding the previous assault and T's propensity to violence, even if provoked by a minor event. His Honour held that the school had breached its duty of care and had been negligent in failing to take adequate precautions to prevent harm to the plaintiff.
The school appealed the decision on the grounds that the primary judge had erred in finding the school had breached its duty of care to the plaintiff, had failed to undertake any analysis, and made no finding on causation.
Upholding the appeal, the Court in Mikhael accepted that the school did not comply with its own procedures in failing to disseminate information on the nature and extent of the first incident, and this constituted a breach of its duty to take reasonable care for the safety of the student. However, the onus was on the plaintiff to prove factual causation, which required a determination under s 5D of the CLA of the probable cause of events had the teacher been informed of the fellow student's propensity to violence.
It was held that in the case of negligent omissions, 'but for' causation is not made out by the suggestion of a possible outcome should some alternate course have been taken. Rather, the Court had to be satisfied that on the balance of probabilities the precautional relevant step that ought to have been taken would have averted the risk of harm. Even where there is no direct evidence of the necessary causation connection between breach and harm, a court is not precluded from drawing appropriate inferences if the underlying evidentiary basis for doing so is established.
In Mikhael the plaintiff accepted that if all that had happened in the classroom was a minor disturbance, then there would be no causal link between the school's omission to inform his teacher of the previous assault and the subject assault. However, the plaintiff contended that there had been an angry exchange with swearing and therefore submitted that the teacher would have realised that T had once again become very angry. Had she known that T could be "set off" and that his reaction could be out of proportion to the incident, she would have done something about it.
In dealing with the above submissions, Beazley JA noted that: 1. the plaintiff's teacher was experienced, and her responsibilities included the position of head of welfare. She was also familiar with T and his general behaviour, and it was noted that T was ordinarily a student who applied himself to his work, was well behaved and was generally compliant with directions and instructions. Having dealt with the classroom 'tussle', she made a professional assessment that the incident was over and that there were no ongoing anger management issues with T; 2. the principal's assessment was also that T had been an exemplary student up to the time of the first incident and it was her opinion that he would not re-offend; 3. the evidence did not suggest that, but for the failure to separate T and the plaintiff, the assault would not have occurred; 4. even if the plaintiff's teacher had counselled T following the classroom tussle, the most that could be said is that the outcome might have been different as T may have assured the teacher that he was not angry, when in fact he was quietly seething and intent on doing harm to the plaintiff.
In the absence of such evidence, Beazley JA, noting that the Court is not entitled to speculate as to what the teacher's evidence may have been, therefore concluded that the plaintiff did not establish factual causation.
Returning to the submissions in these current proceedings, both parties agreed that there is no doubt that this was a pre-meditated assault by XY.
However, to constitute 'but for' causation it is not sufficient that there simply be a suggestion of a possible outcome should some alternate course have been taken. The Court must be satisfied that on the balance of probabilities the precautional relevant step that ought to have been taken would have averted the risk of harm.
On XY's return to school, what was or was not done as a precautional relevant step that ought to have been taken would have averted the risk of harm.
T2 claims a breach of duty of care by failing to have a record named a "risk assessment". There is simply no evidence as to what would have been the change on come had one existed.
Returning to the current proceedings, after school on 16 October 2017, what was or was not done as a precautional relevant step that ought to have been taken would have averted the risk of harm.
If a teacher was present, XY may have got onto T2's bus and followed him home. Previously, XY had sought the address of the person allegedly responsible for racial taunts. If a teacher was present XY may have waited until the next day to assault T2. There is no evidence that T2 would not have gone with the boys even if a teacher was present.
There is an obvious question as to what, if any difference, additional supervision would have made and at what point it ought to have ceased, noting the likelihood that XY would have simply waited until that point to orchestrate his attack. This is particularly so given that the CCTV footage of the bus stop depicts T2 leaving the bus stop and walking with the group of boys voluntarily without any apparent distress.
I pause to observe here, that the defendant has made a reverse Jones v Dunkel submission: see Ferrcom Pty Ltd v Commercial Union Assurance Co of Australia Ltd (1993) 176 CLR 332 (Ferrcom). The defendant submitted the following on the application of Ferrcom, POLIN: So, what we're looking at, put some perspective, can you imagine that pedestrian crossing at four minutes past three and 15 seconds, so there's 1,400 kids exiting the school, I daresay they're out in five minutes. Then, fast forward to 3.27, and the bus driver, and there's not a person there. So, what's being suggested is that you've got to stay there for five high school students to make sure they get on what is not a government school bus, it's just a bus, when kids go to different areas, when primarily most of the kids walk home. This is not about stopping an assault at or near a bus stop. It's about their safety getting onto buses. And the problem with the safety is 1,400 kids leaving through two gates across a busy road, and buses, and cars, and parents picking them up, that's where really the safety comes in. This is a hindsight reasoned case saying if you had a teacher there, it would have stopped have something. And I'll come back to that on causation because it wouldn't have. (T709 [35]-[49])

[34]

Consideration

On the issue of causation, the Court must be satisfied that on the balance of probabilities the precautional relevant step that ought to have been taken would have averted the risk of harm.
The school was aware of XY's propensity for violence. The teachers had been asked to monitor his interactions and had been placed on "high alert" (T713 [15]). The school gave XY a 'blue book' so each of his teachers could note comments on his behaviour in their class. The school was aware that XY had a record as an 'enforcer' who sought out new victims. The teachers ought to have monitored XY's behaviour closely, especially as he had just returned to school from a long suspension.
The school was also aware that T2 had been bullied in the past. Staff knew that T2 was a vulnerable student as he was diagnosed with ASD and ODD. The supervising teachers were, or alternatively ought to have been, aware that there was a high risk he would become the subject of bullying. Therefore, the school owed a duty to take reasonable care that T2 was not being bullied.
There was a strong possibility that T2's vulnerability and XY's susceptibly to violence would converge after school, especially in the absence of supervision.
With respect to factual causation, it is my view that had the head teachers who had been rostered actually been present at the Thorney Road crossing duty, their presence would have likely been a deterring factor to the group of students from congregating at the bus stop and then being able to take T2 away from the bus stop to the park or elsewhere where they were able to assault him. Further, had teachers been available at the crossing at the time, T2 could have sought their assistance.
The school should have been aware that the administration office was closed after 3:04pm. Any student seeking assistance from staff at the office, such as T2, would not have a safe place to go given the absence of administrative staff and the fact that the phone was sent to message bank. Without a means of contacting staff, students would remain at risk.
If teachers were on crossing duty at the time when T2 went to the office, as they should have been, T2 could instead have sought those teachers' assistance. The fact that T2 sought safety at the school administration office was factually causative to T2 being assaulted. T2 had no safe place to go and the best he could do, which he did, was message his mother. At the very least, considering that T2 was blocked from boarding his bus by a sudden gathering of 12 or so students at about 3:27pm. This should have raised high suspicion on the part of the supervising teachers that the situation needed their immediate intervention.
While the defendant submitted there were only four or five students who normally caught the same bus as T2, the CCTV footage shows that of the students waiting at the bus stop, nine students boarded the bus.
This case differs from Mikhael. There, in the immediate lead-up to the assault, a teacher was present and able to make an ultimately ill-fated "professional assessment that the incident was over and that there were no ongoing anger management issues with T" (at [98]).
In the present proceedings, the school failed to conduct a proper risk assessment of XY, there were no teachers on bus duty to act as a deterrent or be able to intervene as T2 was led away from the school's vicinity and the administration office was closed. This was in circumstances where T2 was at a high risk of bullying due to his psychiatric diagnoses and XY had a prior history of assaulting other school students. The principal, Dr Ikin and Mr Meaney all said that, had they seen what occurred at the bus stop, they would have intervened.
In Mikhael the principal had undertaken an assessment of the perpetrator after the first incident, and as a result arrived at the opinion that he would not re-offend. In these current proceedings, the deputy principal did not follow any of the recommendations of the counsellors. Had she done, it is my view that XY would not have been allowed back to the school until he started the RAGE program and undertook the various recommendations. It is likely that undergoing these recommendations would have given him insight about the underlying causes of his prior violence and he would have been taught skills to defuse his anger.
If any or all of these reasonable precautions were taken, in all likelihood the group attack of T2 would not have occurred. While it was suggested by the defendant that XY would nevertheless have followed T2 to his address some 40 minutes away, he would have needed to catch T2's bus to do so. It is unlikely that he would have maintained his rage for an extended period of time. It is even more unlikely still that he could have coordinated a large group of co-attackers to travel that distance on a bus to inflict violence upon T2.
In my view, any one or a combination of the above omissions establishes factual causation. The various breaches of the school's duty of care enabled the assault on T2 to proceed in the manner that it did and were a necessary condition to the assault.
In relation to the scope of liability test, s 5D(4) of the CLA provides: 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.
An assessment under s 5D(1)(b) involves an holistic approach of all the facts and making a value judgment about whether the scope of liability ought to extend to the defendant's conduct.
There has been long-standing acceptance of the particular responsibility that schools owe to their students, as demonstrated by the development of the loco parentis principle over time. Where a parent sends their child to school for the day they should be entitled to expect that teachers to take all reasonable precautions to prevent physical, foreseeable harm being inflicted upon their children. As discussed previously, the NSW Department of Education accepts and expects that the duty of care owed to students extends beyond the school gates.
It is my view that legal causation has been established. The school failed to meet its duty of care not just in one respect, but in several respects. These failings heightened the risk of harm to T2 and, in totality, enabled the assault on him to occur in the manner that it did. It is appropriate that the scope of liability extend to the school in this case. As I stated earlier, even if not every individual failing of the school were present, the remaining omissions were sufficient to justify a finding of causation.
As to whether or not responsibility for the harm should be placed on the school, one of its paramount duties is to keep school students safe. In my view, it is reasonable that the school should keep its administration office open until 4:00pm, ensure that senior teachers turn up to bus duty until students' buses depart and properly monitor both violent and vulnerable students. If any one of these actions were undertaken by the school, it would be a safer place for its students.
Breach of duty of care and causation have been established. The assault caused T2 to suffer physical and psychological injury. Therefore, I find that negligence is established.

[35]

After the assault

After the assault, T2 started at a new school, Ashcroft High School. Even though he describes feeling good when he started, he stopped attending because he felt unsafe and due to his earaches.
The assault, and the bullying that preceded it, changed everything for T2. On 20 June 2017, before the assault, the school noted that "T2's attendance has dropped below an acceptable level" (Ex 9, tab 3, page 4). After the assault, he stopped going to school altogether. He retreated to his room, put on weight, and required medications and other treatments. About 12 months after the assault, film of it appeared on social media. Understandably, when the video was shown to the witness, T2's mother took the opportunity to leave the courtroom.
T2's evidence is that following the assault he would get headaches and earaches. He had never experienced similar issues before the assault. T2 also recalls struggles with his hearing for a period. Following the assault, T2 had significant difficulties leaving the house and going outside. He was nervous and scared that something might happen to him again. His confidence had eroded, and he was reluctant to go anywhere with a large crowd of people. Now most of his time has been spent playing games on his computer or PlayStation in his room. During cross examination, T2 attributed wanting to stay at home and play video games due to his PTSD (T179 [50]). On the positive side, T2 enjoys fixing things around the house and likes to use tools.
T2 said that at present, he helps his mother with chores around the house, including doing the dishes and cleaning the house. His reading and writing levels are below average and he is not interested in books. T2 prefers maps and geography. He had hoped that one day he could travel to a different country, like the United States of America, but no longer thought this was possible after the assault. T2 is worried about seeing XY again. He would like to move away from where he lives. T2 has gained substantial weight and says that he is unable to play sports anymore or go swimming because of his ear. T2 feels very bored with his life and mostly plays PlayStation all day. He hopes that one day he might be able to get a job but is concerned that someone will have to transport him as he does not drive.
T2 provided a second evidentiary statement dated 14 August 2023, updating his current situation.
T2 continued to reside with his mother and his sister, Maddison. He attended an NDIS provider named Jacob once per week for one hour in a session called 'ability options'. Jacob helped T2 deal with his anxiety and fears concerning meeting new people. T2 found it hard to go and see Jacob and did not like going.
With Jacob's assistance T2 applied for, and was accepted into, TAFE, however he did not go. He gave evidence that he was scared to leave home and travel all that distance to end up in a classroom of people he did not know. T2 said that he liked and trusted Jacob. He believed that if Jacob could travel with him to TAFE and help him assimilate, he would feel more comfortable taking classes. Jacob, however, moved away from 'ability options' and an NDIS worker named Jess has taken his place. As at 14 August 2023, T2 was unavailable to meet Jess during the week of their scheduled session because his mother was admitted to hospital.
As previously stated, T2 rarely goes out. He maintains social media accounts but does not use them. He said that in the home, his mother does most of the cooking and the cleaning. While his mother is in hospital, he and his sister prepare their own meals. T2 is able to heat up food in the microwave for dinner, make himself a sandwich for lunch and wash up his dishes.
T2 will assist his mother from time to time with the shopping, but they deliberately pick times to go when they know the shops will not be busy. He will ask his mother to take him to the shops when he needs to go. If she is unable to take him, he will ask his friends, Gavin or Rourke. Gavin has since moved to Newcastle.
T2 has been to the pub a few times together with Gavin and Rourke. He also goes fishing on occasion with his Gavin (T177 [30]-[45]). Gavin took T2 to a movie. He did, however, qualify in cross examination that the movie was a one-time thing (T178 [30]-[35]). They chose to go in the afternoon when they knew that there would not be many people at the cinema. T2 has also stayed at Gavin's house in Newcastle.
T2 does not see his brother, Bradley, often. He says that on occasion he will play with Bradley's children in the back yard or in the park. He does not recall visiting Bradley's house at all this year.
T2 says that he has maintained a good relationship with his father and an okay relationship with his father's wife. He stayed at his father's house three times during the past year. However, I am sceptical of T2's description of the relationship given that T2 did not want his father to give evidence.
T2 thinks he might be able to work with his father driving forklifts but believes he would need to go to TAFE to obtain a forklift licence. Now, T2 is learning to drive. He has obtained his L plates with his mother's assistance. He did not like the man who was teaching him to drive so his mother teaches him.
T2 maintains a bank account and a bank card, transferring money using an application on his phone. T2 will give his mother his bank card or will transfer her money when he wants to buy something. He rarely uses an ATM. T2 is struggling to save any money. He says that he uses it for the family dog and gives money to his mother to help with the house bills. T2 is aware that he is getting a disability support pension but is unaware of how much money he receives.
T2 has a gym membership but does not attend. T2 regularly fights with his sister, Maddison. T2 says that he is not on any current medications. He does not see his general practitioner (GP) but does visit an ear, nose and throat specialist (ENT) (T179 [15]).
T2's mother provided details regarding her health and her diagnosis of a second aneurism and intercranial hypertension. She expressed fears that if something were to happen to her, T2 would not be able to take adequate care of himself.
T2's mother also has a carer, having suffered a brain aneurysm in 2015. She also has other health concerns. It may become a reality that T2's mother will be unable to care for him in the future.
After the assault, T2's mother recalls that he suffered from multiple injuries, including three blood clots in his head, a fracture of the mastoid bone and issues with bleeding in his ears. She describes T2's psychiatric state as having deteriorated.
T2's mother stated that he was still living with her and his sister. He spent most of his time in his room and would become violent and emotional on occasion. T2 was offered a position at TAFE but refused to go, worried that he might be assaulted again. He had been provided with an NDIS package but had not been able to use it because of COVID-19 restrictions. This should have now changed. She recalls that he would not take public transport unless accompanied.
In November 2021, T2 had surgery that improved the pain in his ear for a period of one year. However, his ear condition deteriorated in October 2022, and he was placed back on medication.
In her third and final evidentiary statement 14 August 2023, T2's mother gave a further update as to his condition. According to her, T2 has made little to no progress over the years since the assault. T2 has not forged any new relationships over this period. On rare occasions, his old friend Gavin still visits him from Newcastle and takes him fishing. T2 continues to spend most of his time isolated with his dog. He still spends most the day playing PlayStation, neglects to walk his dog and is often very unhappy. He predominately eats unhealthy junk food and does not exercise.
T2 has not participated in Christmas for a few years and does not have an amicable relationship with his sister. According to his mother, T2 and his sister view their relationship differently. While T2's sister, Maddison, says they have fights, she considers this normal behaviour between siblings who live in the same residence. She confirms that T2 still refuses to use public transport and on the rare occasions that he does, he is anxious, stressed and fidgety. T2 is still driven to and from medical and other appointments by his mother. Maddison's evidence is that T2 has shown interest in having a job but does not think that he is capable because of the assault. She says that T2 often tells her that he is 'stupid' because he could not finish school, and he could not finish school because he was assaulted. He attributes much of his current situation to the assault.

[38]

Treating doctors and medico-legal expert reports

The following individuals have given expert medical reports or provided other medical evidence.
Dr Patrick Krakovsky is a GP and T2's treating doctor at the First Care Medical Centre in Busby (the medical centre), where T2 has been a patient since 2003. He issued a medical certificate certifying that T2 had no history of ear infections prior to the date of the assault.
Dr Vincent Sundrasingham is a GP at the same medical centre. At times he was the treating GP of T2. He is the author of the following documents: 1. Letter dated 18 November 2022, where Dr Sundrasingham expressed his opinion that T2 needs more NDIS funding assistance due to "his multiple disabling conditions which are persistent" (CB 40180). Attached to that letter is: 1. A report dated 15 September 2020 concerning T2's mother, in which Dr Sundrasingham noted severe mental and emotional trauma suffered by her due to the assault on her son. 2. A medical certificate dated 13 June 2018, addressed "to whom it may concern", in which Dr Sundrasingham certified that due to severe PTSD resulting from the assault, T2 would be unfit to attend school for an indefinite period. 3. A medical certificate dated 25 May 2018 in which Dr Sundrasingham stated that he had provided frequent medical care to T2 since the assault, that T2 continued to suffer PTSD with severe depression and ongoing ear problems, and that as a result he had not been able to attend school for several months. 4. A letter dated 9 April 2018 in which Dr Sundrasingham recommended that T2 be accepted for distance education. 5. A letter of Dr Sundrasingham dated 26 February 2018 and addressed "to whom it may concern", that recounted that T2 presented to him after the assault and that in response he sent him by ambulance to Liverpool Hospital. Dr Sundrasingham observed that T2 was still suffering from the sequelae of the assault.
T2 relies on the expert medico-legal opinions Dr Thandavan Raj (an ENT); Dr Chris Rikard-Bell (a child, adult and family psychiatrist); and Mr Byrnes (an occupational therapist). The defendant relies on the expert opinions of a different set of witnesses: Dr Doron Samuell (a clinical and forensic psychiatrist); Ms Piebenga (an occupational therapist); and Mr Matthew Henricks (a vocational psychologist).

[39]

Medico-legal ENT specialists' reports

Dr McDougall is a staff specialist in neurology; Mr Davies and Ms Argaet are clinical audiologists. All three work in the neurophysiology department of Liverpool Hospital and prepared written reports.
In an audiological assessment dated 8 May 2019 and addressed to Drs Chang and Hwang, Dr McDougall and Mr Davies observed mild to moderate conductive hearing loss in T2's right ear.
By letter dated 11 February 2021 addressed to Drs Chang and Seneviratne, Dr McDougall and Ms Argaet detailed their audiological review of T2's hearing following surgery in November 2020. The results showed significant improvement in hearing, albeit with moderate severe hearing loss at higher frequencies.
Dr Robert Chang is an ENT who saw T2 at Liverpool Hospital. In his letter dated 3 November 2021 and addressed to Dr Sundrasingham, Dr Chang provides a report on revision surgery undergone by T2 due to a recurrence of cholesteatoma in his ear.
In a letter dated 6 August 2020 and addressed to T2's lawyers, Dr Chang provided a brief recount of his prior consultations with T2 about his ear and responded to 10 questions raised by the lawyers.
Dr Raj is an ENT who was engaged by T2 to prepare three expert reports concerning T2's physical injuries. He was not called to give evidence.
There are 12 photographs depicting injuries to T2's right ear after the assault (Ex D). The photographs show his right ear had been bleeding. There is redness behind T2's left ear, on the left side of his forehead and above his right eye. Between the back of his ear to his hairline is red and it appears as though he may have been trodden on as it looks like marks from the sole of a shoe. I take these injuries into account when assessing non-economic loss.
Dr Raj said that that on the balance of probabilities it is possible that the assault caused: "a middle ear haematoma and, with subsequent infection, caused the previously asymptomatic cholesteatoma to be symptomatic" (CB 40178).
He finally opined that there was no permanent damage to T2's left ear, but he did undergo an ear operation.
The first of Dr Raj's reports is dated 9 October 2020. It addressed ear injuries suffered by T2, including the nature, cause and extent of these injuries, his continuing disabilities, the details of the treatment received and appropriate future treatment, and the impact of these injuries on T2's education and future employability. In a supplementary report dated 31 March 2022, Dr Raj revised the diagnosis he provided in his first report. In his third report, dated 17 May 2021, Dr Raj addressed the possibility that the assault "caused [a] previously asymptomatic cholesteatoma to become symptomatic" (CB 40178).
In the first of these reports, Dr Raj noted that T2 had suffered from recurrent infection of the right ear, and that all the evidence indicated that this was a middle ear pathology caused by the assault. He opined that the assault resulted in an "unexplained fluid collection in the middle ear and mastoid, which became infected and resulted in a chronic middle ear infection with polyp formation" (CB 40170). This resulted in conductive hearing loss, but Dr Raj was confident that a mastoid operation "would clear the infection and, in all likelihood, the conductive deafness will be corrected". Accordingly, he concluded that the prognosis regarding the ear infection was "good" and that any adverse effect on T2's educational achievement and employability would arise due to his "current mental and emotional states" rather than his ear pathology (CB 40171-2).
In his second report, Dr Raj revised his previous diagnosis. He stated that the current diagnosis was "right chronic middle ear disease due to cholesteatoma", and that the assault "ha[d] not caused this condition" (CB 40174). That is, the occurrence of the infection after the assault was merely "coincidental", and the infection would have occurred even if the assault never took place. In this report, written after T2 underwent surgery on 24 November 2020, Dr Raj noted that his prior opinion that the conductive deafness could be corrected had been vindicated and that the infection was expected "to settle entirely". He therefore upgraded T2's prognosis with respect to the ear injury to "excellent".
In his third report, Dr Raj addressed whether, on the balance of probabilities, the assault and subsequent treatment or infection could have made a previously asymptomatic cholesteatoma symptomatic. Dr Raj's somewhat Delphic answer to this question was: "[I]t is my opinion that the Injury resulted in an unexplained fluid collection in the middle ear and mastoid, which became infected and resulted in a chronic middle ear infection with polyp formation" (CB 40170).
After surgery, Dr Raj expected T2's ear condition to settle entirely.

[43]

Medico-legal expert evidence of Drs Rikard-Bell and Samuell

Both parties adduced expert psychiatrist medico-legal opinions concerning T2's psychiatric condition.
T2 relied on the five medico-legal reports authored by Dr Rikard-Bell, who is a child, family and adult psychiatrist. Dr Rikard-Bell provided two reports dated 23 December 2020. The first report is a general psychiatric assessment of T2. The second report addressed T2's capacity to manage his financial affairs and to advise lawyers in legal proceedings. Following a further interview with T2 and the provision of additional documents, Dr Rikard-Bell provided two further reports dated 1 December 2022, addressing similar subject matter as his prior reports. In a fifth report dated 19 May 2023, Dr Rikard-Bell conveyed his opinion that it would likely be "highly traumatic" for T2 if he were required to watch video footage of the assault in the course of examination in chief or cross-examination. As I said earlier, the senior counsel in Court took heed of this advice.
In his report dated 1 December 2022, Dr Rikard-Bell reassessed T2. He updated details about T2's continuing psychological injury caused by the assault as an estimate as to the likely costs of future treatment. This re-assessment was in response to the vocational assessment report of Dr Henricks, an opinion as to support services likely to be required, and a general prognosis of T2.
The defendant, in turn, relies on the evidence of Dr Samuell, a clinical and forensic psychiatrist. Dr Samuell prepared a report dated 5 July 2021 that contains a psychiatric assessment of T2 following a video interview conducted by Dr Samuell with T2 and his mother. Partway through the interview, when asked about the assault, T2 abruptly ceased to participate further. Thereafter Dr Samuell was only able to direct questions to T2's mother (CB 40033).
Both experts, but in particular Dr Samuell, noted difficulties in interviewing T2 due to his non-cooperation and propensity for anger. Such reactions appear primarily in response to questions directed to the circumstances of the assault. I understand his anger that arose when he was asked to recount the assault.
Both psychiatrists agreed that it is difficult to give an opinion as to how T2's future was affected by the assault given his pre-existing psychiatric conditions. Where Drs Rickard-Bell and Samuell disagree, I prefer and accept Dr Rickard-Bell's opinions as he is a specialist child adolescent psychiatrist and his opinion accords with mine. Dr Rikard-Bell interviewed T2 a number of times and Dr Samuell had one interview with T2 via video link. Dr Samell declined to express a concluded opinion due to the absence of cooperation of T2.
In Furner v Jackson [2023] NSWSC 914, I said, at [354]: "… In my view, it was up to [the expert psychiatrist] to take steps to establish a therapeutic alliance…"
In this case, Dr Samuell did not establish a therapeutic alliance. Rather, he alienated T2 early in the interview.
Drs Rikard-Bell and Samuell later prepared an expert joint report dated 19 May 2023.

[44]

Agreement in the joint expert report

Both experts agree that T2 has ASD and ODD and that Dr Polon, T2's treating paediatrician, had already diagnosed him with these conditions at an early age.
Both psychiatrists, Doctors Rikard-Bell and Samuell, agree that T2 is capable of instructing lawyers in the proceedings, but that he is sufficiently vulnerable to neglect, abuse or exploitation regarding his financial and other affairs such that he would need assistance with managing them (CB 40028, 40040).
Both experts agree that the assault was "seriously traumatogenic" and would have "had a large material impact on [T2]". Dr Samuell described the assault as "horrific" (CB 40041). Both experts suggest that the assault was likely to have "seriously aggravated" T2's pre-existing psychological problems (CB 60009).
There was a difference in response to a question as to whether T2's present condition could be a "natural progression" of an underlying condition. Dr Samuell acknowledged that it was "difficult to know" the extent to which T2's ASD and ODD contributed to his present condition but reaffirmed his view that the assault "exacerbated or aggravated [T2's] underlying conditions" (CB 40043).
That said, the experts agree that there were certain other events, namely, the bullying at school from mid-2017, the murder of T2's grandfather and his mother's aneurysm, that were likely to have been adversely impactful on T2's psychiatric health. I would also include T2 witnessing a serious motor cycle accident prior to the assault as likely having affected him to some extent. The extent of those effects were not explored in the written reports.
Both psychiatrists agree that T2 experienced "significant pre-existing psychological and behaviour problems" prior to the assault and that those problems would have persisted even if the assault had not occurred (CB 60009). As noted above, however, it is common ground that those pre-existing problems were aggravated by the assault.
There is some disagreement as to whether the assault caused T2 to develop any additional mental health difficulties. Dr Rikard-Bell adopts the position in his individual reports and the joint report that T2 developed PTSD as a result of the assault (CB 40011). In support of this diagnosis, Dr Rikard-Bell points to a number of DSM-5 factors, including previous reporting of nightmares, avoidance behaviours, negative emotions, significant impairment of functioning and a duration of symptoms over one month. It might be observed that there is a large degree of overlap between these factors and symptoms attributable to his ASD and ODD.
Dr Samuell, conversely, considers T2's observed difficulties after the assault could be caused by three things: (1) an extension of his ODD; (2) a change in his risk perception based on the assault; and/or (3) a manifestation of PTSD. As previously stated, Dr Samuell declined to express a concluded opinion due to the "absence of cooperation" by T2 during their interview.
As to the extent of T2's pre-existing psychological and behavioural problems prior to the assault, there is some disagreement. While both experts accept in the joint report that T2's educational and occupational prospects would have been "poor" even if the assault had not occurred, it is less clear whether each considers those prospects were reduced by the assault. In his individual reports, Dr Rikard-Bell noted school reports from 2015 and 2016 indicated improvement in T2's disposition and academic application, before a sharp decline in 2017, that was precipitated by bullying and personal issues. Dr Samuell is more pessimistic, noting several instances where T2 engaged in negative conduct prior to the assault occurring. That includes non-attendance at school, aggression, anger and suicidal ideations. Most of these incidents arose at some point during 2017 prior to the assault.
Finally, there is some disagreement between these experts as to the appropriate treatment for T2's psychiatric condition. I have found this a very difficult subject to make findings as to future medical expenses. Dr Rikard-Bell's view is that modified trauma-based CBT therapy with a psychologist may be helpful. Dr Samuell is more pessimistic about the efficacy of any therapy at this stage, though he does state that T2 "should be managed in a hospital setting or perhaps a group home where there can be a full-time, consistent behavioural approach" (CB 40045). Importantly, however, both experts agree that "the plaintiff's capacity for activities of daily living is independent of the subject incident" (CB 60010).
These factors lead Dr Rikard-Bell to conclude that T2's prognosis "appears to be poor as his education and vocational trajectory has been significantly impacted upon by the subject assault" (CB 40025). Dr Samuell's report, conversely, states that "[w]ere it not for the subject assault one could have expected that [T2's] outcomes would have been poor" (CB 40041), and that in the absence of treatment he does "not expect that there will be any change in the foreseeable future" (CB 40046).

[45]

Concurrent evidence

Drs Rickard-Bell and Samuell gave concurrent evidence. Initially Dr Rickard-Bell expressed his view regarding the series of events that led to T2's assault. He opined that T2 would have experienced the effects of heightened trauma due to the anticipation of his attack. Dr Samuell agreed with this view and added that this would have made the event more terrifying for T2 and contributed to his altered ability of 'risk perception' (T459 [45]). When questioned by counsel about whether this contributed to T2's current state of reclusion, Dr Samuell conceded that this may have been a factor. He did, however, qualify in his response that it was difficult for him to ascertain the extent to which this factor had played a role in T2's current condition, given his history with ASD.
Dr Rickard-Bell opined that between the end of primary school and the start of high school (before the assault), T2 had been on a trajectory that was encouraging and relatively incident-free. He believed that T2 had been "functioning reasonably" (T460 [40]) given his psychiatric health diagnoses and despite the murder of his grandfather. Dr Samuell agreed with this assessment; he believed that regardless of the medical report dated 2016 referring to T2's struggles with aggression, suicidal tendencies and a fascination with knives, his school reports for that year showed him to have "excellent participation" and "great sportsmanship" (T461 [40]-[45]).
Both experts agreed that T2 may have displayed an "adjustment problem" (T460 [40]) around the time of his grandfather's murder. Dr Rickard-Bell believed that this may have contributed to some of the isolated incidents with T2's behaviour in the immediate months before the assault. Dr Samuell was less convinced, however. He based T2's issues on his ADD and possible ODD. They were both in agreement that T2 was a vulnerable child who would likely find it more difficult to cope with stressful events compared to other more resilient children.
Dr Rickard-Bell opined that if not for the assault, T2 would have continued in school and at the very least completed his higher school certificate. When asked about a medical certificate in 2016 seeking the renewal of a carer's allowance, which recorded T2 as being be antisocial, avoidant and in need of 24 hour care, Dr Rickard-Bell questioned the weight of the medical certificate and implied that the information may have been over-stated by T2's mother who at the time was unemployed, struggling with her own mental health issues and potentially fearful of her son's condition and mental struggles (T466 [3]-[50]; T467 [1]-[33]).
Dr Samuell expressed concern about the view that, but for the assault, T2 would have been on a better vocational and life trajectory. He considered this was "somewhat speculative" (T469 [10]) and any opinion needed to be based on the known facts. He opined that if the information presented in the application for carer's payment was representative of T2's functioning prior to the assault, it would be difficult to assume his vocational outcome would be a positive one.
It is my view that in T2's application to NDIS, T2's mother provided information to the GP so as to achieve the best disability compensation she could for her son and embellished the extent of his disabilities as a result.
Both psychiatrists agreed with T2's options for vocational possibilities. This included machinery operation, driving and labouring, grooming, kennel handling, gardening, etc. The experts did not agree that T2 could possibly do well in an apprenticeship. Dr Rickard-Bell opined that T2 was capable of doing an apprenticeship.
To recap, Dr Rickard-Bell argued that T2 was functioning reasonably between the end of primary school and the start of high school. Dr Samuell agreed that he was participating well in school and in sports at that time.
Dr Rickard-Bell placed more weight on T2's 'adjustment problem' around the time of his grandfather's murder to explain his behavioural incidents. Dr Samuell attributed his behavioural problems to his ASD and ODD. Both experts agreed that T2 was vulnerable.
Mr Byrnes is an occupational therapist engaged by T2. He prepared one individual report dated 11 May 2021. Mr Byrnes' report included a domestic assistance assessment in relation to the injuries T2 sustained because of the assault. Mr Byrnes has also written an expert joint report with Ms Piebenga. Ms Piebenga is an occupational therapist engaged by the defendant. She prepared one individual report dated 8 October 2021, in addition to the joint report noted above. Ms Piebenga's individual report addressed the same issues as covered by Mr Byrnes' report of 11 May 2021.

[50]

Resolution

The non-economic loss in this case is centred around T2's psychiatric condition after the assault.
T2 was diagnosed at an early stage of his life by his treating child psychiatrist, Dr Polon, with the psychiatric disorders of ASD and ODD. Both Drs Rikard-Bell and Samuell agreed with these diagnoses and that the assault was seriously traumatic and would have a had a large material impact on T2. The experts agree that the assault was likely to have seriously aggravated T2's pre-existing psychological condition, but that other events, such as the bullying at school since mid-2017, the death of his grandfather and his mother's aneurism, were also likely to have been contributing factors to his deteriorating psychiatric health. To that, I would add the witnessing of a serious motorcycle accident. They agreed that T2's significant pre-existing psychological and behavioural issues would have persisted even if the assault had not occurred, and T2's educational and vocational prospects would have been poor even if the assault had not occurred; they do not agree whether those prospects were reduced by the assault. Dr Rikard-Bell is of the opinion that T2's trajectory has been significantly impacted by the subject assault. Prior to the assault, Dr Rikard-Bell believed that T2 had been functioning reasonably. Dr Rikard-Bell opined that if it was not for the attack, T2 would have completed his HSC (T379).
According to T2's paediatrician Dr Polon, T2's condition has advanced from a level two on the ASD to a level three (CB 40194) (as set out earlier in this judgment), impacting his amenity of life, particularly due to the worsening of his ASD after the assault. T2 was coping with his disorders reasonably before the assault.
Prior to the assault T2 was catching busses to and from school, adequately coping with schoolwork and engaging in social activities with friends.
After the assault T2's level of ASD worsened, and he experienced a decreased quality of life. He was unable to return to school. Even though he was transferred to another school, T2 was no longer able to catch the bus on his own. He did not engage socially with others and he spent most of his time homebound, playing PlayStation and computer games online. T2 stopped exercising and gained considerable weight, causing greater vulnerability to the loss of that residual function in terms of living a normal life.
It is my view that T2 may have been able to live independently prior to the assault but he will find it difficult to do so now without supervision. I also take into account that T2 had some physical injuries on his face inflicted when he was assaulted and a genetic asymptomatic nose issue became symptomatic for some time before resolving. It also caused complications with his right ear for some years but has since substantially resolved. While his life had limitations prior to the assault, these limitations increased following the assault.
It is likely that if T2 had not suffered the worsening of his psychiatric condition due to the assaults, he would now be in some form of employment. Being employed may have made him happier. Certainly, it would have got him out of the house.
Taking these considerations into account, given the evidence of T2's precondition and the poor prospects of full-time employment associated with ASD, it is my view that 40% of the most extreme case is appropriate in these circumstances. This equates to the sum of $290,000.

[51]

Past and future economic loss

Future economic loss, like future care, is very difficult to assess.
Sections 12 and 13 of the CLA deal with damages for past or future economic loss. They read, 12 Damages for past or future economic loss - maximum for loss of earnings etc (1) This section applies to an award of damages: (a) for past economic loss due to loss of earnings or the deprivation or impairment of earning capacity, or (b) for future economic loss due to the deprivation or impairment of earning capacity, or … 13 Future economic loss - claimant's prospects and adjustments (1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury. (2) When a court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury. (3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted. .…"
T2's evidence is that prior to the assault he felt good attending the school. He enjoyed playing sports at school including cricket and rugby league. He believed that he could have finished high school and looked for a job in construction or in labour. He thinks he could have attended TAFE and done a course. Now T2 is unsure if he will ever finish school.
Alternatively, T2 seeks either $550 per week net from January 1 2024, or $650 per week net from January 2024 and relies on the report of forensic accountant Mr Rossetto. Mr Rossetto estimated future economic loss at either $721,607 or $795,041, at an average notional income depending on the residual capacity of T2.
In Mr Henrick's vocational report dated 1 October 2017, he opined that, although T2 may at some stage be able to work in a full-time capacity, he "could only confidently assert that [T2] has the capacity for two to three hours per day, five days a week at this stage" (CB 40159). Mr Henricks stated that T2 "should have the capacity for in-house, on-the-job training, provided an appropriate job is selected within a support workplace" (CB 40159). He suggested, based on T2's expressed interests, employment as a pet groomer, kennel hand, dog walker, garden labourer and/or lawn mower. If T2 were prepared to undertake further training, Mr Hendrick suggested that T2 could consider the possibility of becoming a dog handler or trainer, a store person or a sales assistant at a pet shop (with restricted duties) (CB 40160).

[52]

Occupational therapists' concurrent evidence

The occupational therapists had previously agreed that T2 suffers from ODD and is on the autism spectrum.
When giving concurrent evidence during the last day of the trial, both occupational therapists agreed that T2 had suffered from ASD at level one or level two prior to the assault but that after the assault he was classified as level two or possibly level three (T613 [40]-[44]).
Ms Piebenga conceded it was "absolutely" the case that T2 had been functioning reasonably well at school in 2017 prior to the assault when she was alerted to a document noting that T2's behaviour support plan was no longer in place due to insufficient evidence of behaviour issues recorded and referrals being made about him, with only two negative instances (both related to attendance) in 2017 (T621 [12]-[24]).
The occupational experts further agreed that: 1. Prior to the assault, the school considered T2 to be able to function without behavioural support (T622 [3]-[10]). 2. T2 suffered from "significant functional impairment" after the assault, which had occurred at a critical time in his development (T622 [23]-[41]). 3. It was appropriate for T2 to be supported on a regular basis at the beginning, so that he could have the confidence to cope in the TAFE environment and, over time, the level of support T2 required could reduce (T626 [33]-[50]; T627 [1]-[14]). 4. T2 had attempted suicide prior to the assault, but not since the assault (T630 [44]-[50]; T631 [1]-[9]). 5. It would have been useful to hear evidence from T2's father, given that in 2017, prior to the assault, T2 had moved from living with his father to living with his mother (T632 [44]-[50]; T633 [1]-[19]). 6. T2 had considerable absences from school over the months from June to September 2017, prior to the assault (T633 [21]-[29]). 7. If T2 were to move into vocational re-engagement, he would need somebody to help him get to and from work (T655 [7]-[15]). 8. The ability of autistic persons to attain and retain a vocational trajectory is very much dependent on the level of autism they suffer (T658 [26]-[44]). 9. Many autistic people have skills that mean they are well-suited for meaningful vocational activity if placed in the right environment, and this work can be good for them (T660 [3]-[9]). 10. Following the assault, T2 became socially avoidant, derailed and now requires multifactorial treatment and a process of re-engagement with the educational and/or vocational systems (T662 [13]-[29]).

[54]

T2's submissions

T2 is at present unemployable. The problem is that his schooling was interrupted at a time when he was still developing socially and intellectually, and as a result of the psychiatric disturbance caused by the assault, he disengaged from education. This has affected his social and educational progression. It is difficult for him to now re-engage to make up the lost years.
At the time of the assault, and for several years beforehand, T2's school records demonstrate that his functioning was unremarkable, and he was progressing well, in contrast to an earlier period when his underlying problems were causing dysfunction and conflict. It is this stability and progression that was interrupted by the trauma of the assault.
Dr Rickard-Bell diagnosed T2 as suffering PTSD, which gives rise to issues of avoidance and anxiety. He says that T2's prognosis is poor. Evidently, T2 was never going to be a high achiever vocationally. However, had he been uninjured, on the balance of probabilities, T2 would have continued with his education and matured intellectually and socially. It is more likely than not that T2 would have meaningfully engaged in the workforce. Realistically, he cannot now do this. Further, he requires extensive supervision and care as a result of his anxiety and avoidance state.
But for the assault, T2 would have finished school in 2020. Subsequently, he would have entered the workforce with either his uncle Grant, a builder, or his father, doing picking and packing work in a factory. Alternatively, he would have found some similar employment. He would likely have progressed to a skilled position such as a carpenter, or a semi-skilled position, such as a forklift driver. He would have been capable of progressing to earning at least average weekly earnings.
T2 had been diagnosed with ASD and ODD before the assault and had a history of difficult and challenging behaviours. His school records, however, demonstrate that his behaviours settled and his conduct and ability to learn improved in periods of stability, consistency and engagement. For instance, his Miller Public School report for Second Semester 2008, included the comment: "He has consistently applied himself and consequently his work is regularly among the best in the class." (CB 10834)
Likewise, his Canley Heights Public School report for Second Semester 2014 included: "It has been an absolute pleasure to teach T2 this year. I have enjoyed watching him develop from a negative young boy into a more confident young man who will give everything a go." (CB 12420)
To recap, up until mid-2017, T2 was doing well at Fairvale High School, although at times he was prone to aggression that made him lash out. An entry in the school records on 10 May 2017 noted that his "[b]ehaviour support plan [was] no longer relevant due to insufficient evidence of behavioural issues recorded and referrals made. Only two negative incidents [were] recorded in 2017, both on attendance." (CB 12516)
It has long been recognised that there are difficulties in asseessing damages for future economic loss for children with no established educational or vocational trajectory or history. There is inevitably speculation involved in such assessment. That does not mean that the Court is absolved from the obligation to make an assessment based on all facts, matters and circumstances before it. Such an assessment relies on a matter of judgment and evaluation. There remains a range of figures about which reasonable minds may differ.
For the future, T2 claims average weekly earnings less $200 per week residual earning capacity. The average weekly earnings for men in full-time employment in NSW are $1,988 per week, or $1,470 net per week.
As against the possibility that T2's pre-existing condition may have manifested during his working life, T2 suggests that an increase in vicissitudes to 20% provides an appropriate adjustment of the underlying medical issues he already experienced.
As against the possibility that T2 may show further improvement in, say, 10 years' time, T2's residual earning capacity would increase to $400 per week. This, again, is an appropriate adjustment to take into account the optimism of improvement with intervention, as against the risk that such intervention will have no practical effect or otherwise fails to achieve any relevant functional improvement.

[56]

Resolution

In Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244 (Cervantes), Basten JA, with whom McColl and Macfarlan JJA agreed, said, "[33] The calculation of economic loss, whether in the past or for the future, involves a comparison between the actual circumstances of the claimant, as a result of the accident, and the circumstances which would probably have continued or come to pass but for the accident. On the assumption that the accident has resulted in a loss of earning capacity, the court must also consider whether such a loss might have occurred independently of the accident. … [35]: The conventional approach to such an exercise is to assess the earning capacity of the claimant in monetary terms prior to the accident (usually on the basis of net weekly or annual earnings) and, where there is evidence of unemployment or employment at a reduced income thereafter, to assess the quantum of the difference up to the date of hearing (past economic loss) and to project the calculation into the future (future economic loss). The latter exercise will, again conventionally, be discounted by 15% on account of vicissitudes. [36]: Such calculations produce precise figures, often resulting in awards expressed in dollars and cents. However, such precision is fallacious. Varying degrees of uncertainty will attend the hypothetical aspects of the calculation, rendering any degree of precision misleading. [37]: Additionally, with respect to future economic loss, the exercise requires a discounting of the calculation in order to achieve a present monetary value for the assessed loss which, it is assumed, will accrue steadily over the remaining working life of the claimant."
In State of New South Wales v Moss (2000) 54 NSWLR 536, Heydon JA, at [87], with whom Mason P and Handley JA agreed, reviewed numerous authorities before concluding, "In short, where earning capacity has unquestionably been reduced but its extent is difficult to assess, even though no precise evidence of relevant earning rates is tendered, it is not open to the court to abandon the task and the want of evidence does not necessarily result in non-recovery of damages. ... The task of the trier of fact is to form a discretionary judgment by reference to not wholly determinate criteria within fairly wide parameters. Though the trier of fact in arriving at the discretionary judgment must achieve satisfaction that a fair award, is being made, since what is involved is not the finding of historical facts on a balance of probabilities, but the assessment of the value of a chance, it is appropriate to take into account a range of possible outcomes even though the likelihood of any particular outcome being achieved may be no more than a real possibility..."
In Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99, the Court of Appeal said at [84], "As to the future economic loss, it is appropriate to award damages by way of a buffer, including in a case such as this where damages are to be determined pursuant to the Civil Liability Act, when the impact of the injury upon the economic benefit from exercising earning capacity after injury is difficult to determine. In such a case, the Court still undertakes a comparison between the economic benefits the plaintiff derived from exercising earning capacity before injury and the economic benefit derived from exercising earning capacity after injury, although the difference cannot be determined otherwise than by the broad approach of a buffer…"
Prior to the assault, T2's ASD was classified as falling into level two and after the assault it increased to level three. There is a marked difference between the disabilities in autism of level two and level three. People with level two diagnoses may have inflexible behaviours that can interfere with daily functioning. They typically do not cope very well with changes, which can cause them significant distress. Level three is the most severe autism diagnosis. People with level three diagnoses have significant impairments in their verbal and nonverbal communication. They will often avoid interactions with others, but they may interact in a limited way if they must respond to others or communicate a need. Their behaviours are highly inflexible and repetitive. They may react strongly to changes and become highly distressed in a situation that requires them to alter their focus or task. Level three individuals require very substantial support. The outlook for employment for those at level three is poor. (Ex 7 (pages 3-4)).
T2 already had difficulties at school with his behaviour and his academic progress. In the 2017 school year, prior to the assault, T2 had somewhat improved both academically and with his behaviour until July 2017, when he was being bullied.
While it is uncertain whether T2 would have completed his HSC, over time he should have gained in maturity. It is likely that if the assault had not occurred, he could have been engaged in some type of manual employment. T2 could have worked with his father or brother, who could have provided him support. However, the more likely outcome is that the most T2 would have been capable of doing professionally was 'picking and packing' work. However, he likely would have been incapable of working on a full-time basis.
While Mr Henricks suggested at some stage that he would be able to work in a full-time capacity, he could only confidently assert that at this stage, T2 has the capacity to work two to three hours per day, five days per week. This was due to T2's pre-existing disabilities, the fact that he rarely leaves his house and his extensive reliance on his mother's support and to a lesser extent the NDIS support person. I think that Mr Henrick's opinion that T2 could work in a full-time capacity in the future is optimistic.
Unless T2 is able to get psychological treatment with the goal of catching up on the lost years since the assault and being integrated back into society, it is unlikely that there will be any changes to T2's lack of earning capacity. Under the topic of future medical expenses, I have made an allowance for treatment aimed at providing T2 with the opportunity to attend TAFE, albeit on a gradated attendance basis to acquire a trade and the possibility of some part-time employment. Regardless of any progress he may make with psychiatric treatment, it is my view that he will be unable to work in a full-time capacity in the future and it is most unlikely that he would have been able to work in a full-time capacity in the past.
As to past loss of earning capacity, it is my view that, but for the assault T2 would have faced challenges in entering the workforce. It is likely that T2 would have made an attempt to study at TAFE. If he were to succeed, it would take longer than others to obtain a qualification. So while T2 would be studying, at least until now, he would not have had any earning capacity prior to the assault. So, I assess his past loss of earning capacity at nil.
As for T2's loss of future earnings capacity, he is currently 21. He has 46 years of earning capacity until he reaches the retirement age of 67. Due to his psychiatric diagnoses prior to the assault, he would not have had the earning capacity of an individual working on a full-time basis in a trade or one of the other jobs suggested by the vocational expert.
I acknowledge that this paragraph is repetitive, but it explains the main factors that I have taken into account in avoiding a buffer. Prior to the assault, T2 already had educational development challenges due to him being on the autistic spectrum. At the time of the assault, T2 was 14 and still developing socially and intellectually. He had pre-existing diagnosis of ODD and ASD. As a result of the psychiatric disorders caused by the assault, T2 disengaged from education and from life. He is now only 21 years old. At school he sometimes struggled with his behaviour and his school curriculum, while at other times he was coping. The psychiatrists both agreed that it is very difficult to assess the trajectory of T2's future. I agree. In the circumstances, I cannot make, with any precision, findings on the balance of probabilities as to past and future economic loss that is on the assessment of the value of a chance. The best I can do is assess T2's past and future economic loss on the basis of a buffer (or cushion, as it is also known).
Currently, T2 does not leave the house and needs to have regular 'in house' treatment with a psychologist and psychiatrist. He is unemployable. Over time, he may be able to undertake employment, provided it is in a supportive environment. Most likely, this would be in a factory completing 'picking and packing work' or something similar. It is my view that T2 would never have had the capacity to earn $935 net per week, even if the assault had not occurred. Mr Rosetti opined that T2 has a residual earning capacity of $200 net per week and accepting T2's submission's his residual earnings capacity may increase to $400 net per week.
What T2 would have earned 'but for' the assault is a difficult question. Doing the best I can, his past earning capacity would have been earned approximately $400 per week on a net basis, because he would only have the earning capacity on a part-time or casual basis. It would have been likely that there would be periods where, due to fluctuations in his psychiatric condition, T2 would not be working at all. During these periods, T2 would have had no earning capacity. But for the accident, T2 still may not have attained his HSC. Further, it is likely that the best T2 could have achieved professionally was an unskilled job in the trades, or picking and packing in a factory, and likely on a part-time rather than full-time basis.
It is my view that T2 would have had difficulty with being in full-time employment even if the assault had not occurred. He may have matured and been able to hold down some jobs, but not on a full-time basis. It seems unlikely that his pre-existing psychiatric diagnosis would abate, but they may have remained the same or improved as he matured. All I can say is that he had more earning capacity prior to the assault than after the assault. The level of his ASD increased in severity after the assault. It was always going to be difficult for T2 having ASD to gain employment. Unless his ASD improves it will be impossible. It is very difficult to calculate on the balance of probability the trajectory of T2's earnings capacity over the next 46 years. Doing the best I can taking these factors into account, I allow a buffer of $500,000 for the loss of future economic earnings.

[58]

Future medical expenses

The psychiatric experts agreed on T2's need for treatment and on the modalities of treatment. They considered the practical support and assistance required to try to re-establish his previous educational and vocational trajectory.
Dr Rickard-Bell, whose evidence I prefer, considered that an adolescent and young person hospital environment could help break the cycle of negativity. Dr Samuells agreed that a program such as 'USpace' would be reasonable to attempt. USpace is a private mental health service that provides services to young adults - those aged under 30 - like T2.
Dr Rickard-Bell considered that T2 would require a multi-disciplinary approach with psychology, a psychiatrist and an occupational therapist.
If T2 were to attend TAFE, he would need a support person and someone to provide transport, preferably independent of his mother.
As far as T2's options for future therapy, both psychiatrists agreed that he would benefit from a multidisciplinary approach, which would include someone assisting and encouraging him to get out of his home. They believed he would benefit more from socialising and participating in day-to-day activities, rather than talk based therapies. They both agreed that T2 with the assistance of his carer may benefit from some form of rehabilitative medical environment and that while T2 would need more assistance initially, the level of assistance could be gradually reduced as he improves over time.
Mr Byrnes has calculated the one-off costs for future medical expenses as $189,354, to which he has added $27,994 per annum or $538 per week. The total costs are: $538 x 1,020 = $548,760 plus $189,354 = $738,111. He has included attendances, psychological counselling, exercise physiology, hydrotherapy, gym membership, occupational therapy and dietary, educational and vocational assistance. To that should be added attendances of T2's GP and specialists and a stay in a rehabilitation facility such as USpace.
T2 submitted that he has shown some recent improvement since the assault, but at 21, he still stays mainly in his bedroom playing video games. His participation in NDIS programs and counselling has been little more than minimal thus far. If he continues to improve, T2 will likely prove more amenable to accepting treatment and inclusion in more activities, including those with an educational and vocational focus. However, assuming that T2 will not avail himself of all of the recommended modalities of treatment and assistance, $500,000 is claimed for future treatment expenses taking into account all of the vicissitudes and exigencies and the risks that the expenditure may not amount to the full amount calculated by Mr Byrnes as against the risk that they may exceed that amount.

[62]

Past attendant care

Mr Byrnes stated that it was appropriate for an expert to assess past care on the basis that it was provided gratuitously by T2's mother and he described the home where the services were provided: see Coles Supermarkets Australia Pty Ltd v Haleluka [2012] NSWCA 343.
The estimate for the past gratuitous care provided by T2's mother, allowing only for active care contributions, as assessed by Mr Byrne, is as follows: 1. 16/10/2017 - 16/1/2018: 12.83 hours plus 0.5 hours transport = 13.33 hours per week x 13 weeks x $30 per hour = $5,199 2. 17/1/2018 - 17/8/2019: 8.75 hours plus 0.5 hours transport = 9.25 hours per week x 82 weeks x $31 per hour = $23,513 3. 18/8/2019 - 17/4/2021: 9.6 hours plus 0.5 hours transport = 10.1 hours 10.1 hours x 90 weeks x $32 per hour = $29,088 4. 18/4/2021 - 31/10/2023: 10 hours x 132 weeks x $34 per hour = $44,880 5. Total: $102,680
Alternatively, including both the active care and "protective attention and supervision", Mr Byrnes assessed gratuitously provided past care: 1. From 16/10/2017 - 16/1/2018: 40.83 hours plus 0.5 hours transportation = 41.33 hours 2. From 17/1/2018 - 17/8/2019: 36.05 hours plus 0.5 hours transportation = 37 hours 3. From 18/8/2019 - 17/4/2021: 37.06 hours plus 0.5 hours transportation = 37.56 hours 4. Thereafter 38.47 hours per week
Mr Byrnes calculated that past care until 17/4/2021 was $222,488. 1. The cost thereafter would be 38.47 hours x 127 weeks x $34 per hour = $166,113 2. Total past care = $388,602
This should be reduced somewhat because no more than 40 hours per week may be claimed. The amount is then $385,000.
Mr Byrnes then details T2's pre- and post-injury daily living activities in order to assess his need for past gratuitous care and to make a future care recommendation. The types of care considered included personal care, protective attention and supervision, meal preparation, housework, spring cleaning, bed making/linen cleaning, laundry, management household rubbish, car washing and shopping.
Mr Byrnes concluded that, on average, T2 received between 36.75 and 40.83 hours of gratuitous care per week in the four years following the assault, as well as 30 minutes of transportation assistance per week, almost all of which was provided by his mother (CB 40071-2). Mr Byrnes then estimates that T2 will require 38.47 hours per week of future care, including one hour of transportation assistance per week (CB 40073). A significant portion of this care is described as "[p]rotective attention and supervision", which is to be provided by a "mental health worker" for 28 hours per week. This care is said to be required due to T2's "poor psychological health, in particular [his] suicidal ideation."

[63]

T2's submissions

Whether T2's mother receives a carer's payment and/or a carer's allowance, both types of payments are presumably intended to enable her to provide care to T2. He does not directly benefit from the carer's payment.
T2 benefits from his mother being available to provide care to him in the home. Before the assault, he attended school and was away from the home for about eight hours each day. Following the assault, he has needed protective attention and supervision in the hours he formerly spent at school.
In any case, an award for care is to compensate the plaintiff for his need for care: Griffiths Kerkemeyer (1976) 15 ALR 387, Mason J said at page 413: "The theory on which the Plaintiff is permitted to recover is that the damages are awarded as compensation for his loss, whether he is under a legal liability or other obligation to pay for the services or not."
Even if a payment to another person could be considered as double dipping or double recovery by the plaintiff, it should not be taken into account in the calculation of damages for reasons explained in Zheng v Cai (2009) 239 CLR 446 (Zheng).
In Zheng, the plaintiff did voluntary work and received payments from her church. The Court of Appeal reduced the plaintiff's damages to take those payments into account. In respect of those payments, the High Court held at [23]-[24]: "The critical question… was whether the payments by the [church] were intended by it to operate in the interest of the respondent and to diminish the damages he otherwise would be liable to pay… The presence of a collateral benefit to the [church] could not substitute for the necessary intention on its part to benefit the respondent by diminishing his liability for damages at the expense of the award recovered by the applicant, the object of the bounty provided by the [church]."
In reaching its conclusion in Zheng, the High Court reviewed the authorities: "[14] The Court of Appeal set out a passage from the reasons of Windeyer J in National Insurance Co of New Zealand Ltd v Espagne (Esapgne): In assessing damages for personal injuries, benefits that a plaintiff has received or is to receive from any source other than the defendant are not to be regarded as mitigating his loss, if: (a) they were received or are to be received by him as a result of a contract he had made before the loss occurred and by the express or implied terms of that contract they were to be provided notwithstanding any rights of action he might have; or (b) they were given or promised to him by way of bounty, to the intent that he should enjoy them in addition to and not in diminution of any claim for damages. The first description covers accident insurances and also many forms of pensions and similar benefits provided by employers: in those cases it is immaterial that, by subrogation or otherwise, the contract may require a refund of moneys paid, or an adjustment of future benefits, to be made after the recovery of damages. The second description covers a variety of public charitable aid and some forms of relief given by the State as well as the produce of private benevolence. In both cases the decisive consideration is, not whether the benefit was received in consequence of, or as a result of the injury, but what was its character: and that is determined, in the one case by what under his contract the plaintiff had paid for, and in the other by the intent of the person conferring the benefit. The test is by purpose rather than by cause. [15] The Court of Appeal referred to the words from the letter of 1 May 2006, emphasised above, as indicative of "the real intent" of enabling the applicant to perform more effectively her volunteer work, thereby taking the payments outside the second category identified in Espagne and rendering them more analogous to payments for services. [16] The Court of Appeal noted that the only evidence of the intent of the Church came from the letter. But in this court the applicant properly submits that, had this been an issue at trial, it would have been open to her to object to the tender of the letter and, if that had failed, to call evidence on the issue. The respondent should have been bound by the presentation of his case at trial and the departure from that course in the Court of Appeal has so prejudiced the applicant's position as to call for remedy by this court. The nature of the payments [17] Further, even if regard properly be had to the letter of 1 May 2006 and the issue of the benevolent nature of the payments to the applicant was to be determined upon the record before the Court of Appeal, the applicant should have succeeded there on that issue. [18] In Parry v Cleaver, Lord Wilberforce remarked that the decision not to make a deduction from damages for receipts from voluntary funds had been put either on public policy or the intention of the subscribers. His Lordship referred to what had been said to that effect by Andrews CJ in Redpath v Belfast and County Down Railway. But these considerations are not discrete; rather, it is the policy of the law which informs the importance of the wishes of those providing the benefaction. [19] This is apparent from the treatment of the subject by Windeyer J in Espagne. His Honour began with the propositions that damages for personal injuries are not to be assessed by constructing a profit and loss account and that the compassion, kindness and sympathy of friends and the gifts of charitable persons cannot be weighed against pain and suffering caused by the wrongdoer, such that the balance of account favours that wrongdoer. From that basis his Honour reasoned that voluntary gifts should not diminish damages because "they are given for the benefit of the sufferer and not for the benefit of the wrongdoer". [20] The "intent" of the donor thus assumed great importance, but it was an intent of a particular character, contrasting an intention to benefit the wrongdoer with an intention to benefit the victim. Thus, Windeyer J said: 'If, out of sympathy for a man unfortunately responsible for a motor accident, someone gives money to the victim, stating that he does so in the interest of the tortfeasor and to diminish the damages he must pay, effect must be given to his intention. If, on the other hand, the donor's expressed intention is that the injured man shall enjoy his bounty in addition to whatever rights he may have to recover damages from the tortfeasor, effect must in my opinion, be given to that intention. And if nothing be said, the intention of the giver may be inferred from the circumstances. To that there may be added the observation by Professors Harper, James and Gray in their treatise upon United States tort law: F. Harper, F James and O Gray, The Law of Torts, 2nd ed, Little Brown, Boston, 1986, vol 4, 25.22, p. 663. Often of course the intent was never even thought out by the donor, certainly not expressed. In these cases of private generosity the best solution seems to be a rule of thumb that would give greatest scope to the donor's generosity and to the adjustment of moral obligations within the more or less intimate relationships that usually bring such generosity into play. The gift should be disregarded in assessing damages.' [21] It is here that the decision of the Court of Appeal encounters well-founded complaints of error. The leading judgment was delivered by Hoeben J. Speaking of the letter of 1 May 2006, his Honour said: 'That letter makes it clear that the payments were intended not merely to benefit [the applicant] insofar as her daily living and accommodation expenses were concerned, but to enable her to function more effectively as a volunteer church worker.' [22] The letter is to be read as a whole and, if this be done, it is apparent that the Assembly was anxious to counter any argument that the applicant worked as its employee, rather than as a volunteer. [23] The critical question, on the respondent's case, was whether the payments by the Assembly were intended by it to operate in the interest of the respondent and to diminish the damages he otherwise would be liable to pay. The conclusion expressed by Hoeben J does not address this consideration. Rather, his Honour concluded that the intention was to benefit the applicant in her circumstances after the accident, but denied the legal consequence which Espagne would attach to that conclusion by finding in the Assembly an additional intention with respect to voluntary work. [24] The presence of a collateral benefit of this kind to the Assembly could not substitute for the necessary intention on its part to benefit the respondent by diminishing his liability for damages at the expense of the award recovered by the applicant, the object of the bounty provided by the Assembly. Reducing the applicant's award without finding such an intention would defeat rather than advance the policy of the law in this area. [25] It may be added that the applicant's evidence was that she welcomed the opportunity to assist at the Church as an activity to fill her time and a response to the kindness which had been shown to her by members of the Church. Situations such as this emphasise the justice and wisdom of the statement by Professors Harper, James and Gray set out earlier in these reasons. [26] Hoeben J went on to refer to the decision in Marinko v Masri (2000) Aust Torts Report 81-581; [1999] NSWCA 364 as supporting the classification of the payments to the applicant as "a form of compensation for her inability to obtain employment". In this court, counsel for the respondent supported that classification as akin to the treatment of unemployment benefits in Evans v Muller (1983) 151 CLR 117 [(Evans)]. [27] Those benefits were provided pursuant to the Social Security Act 1947 (Cth) and, as later emphasised in Manser v Spry (1994) 181 CLR 428 at 436, in such cases the ascertainment of whether the statutory benefit is to be enjoyed independently of and cumulatively upon the right to damages requires attention to the intention of the legislature. It will be apparent that this use of "intention", with examination by the judicial branch of government of the subject, scope and purpose of the text enacted by the legislature, differs from that discussed earlier in these reasons which deals with private benefaction by a donor such as the Assembly in the present case. [28] It has been said that to attribute an intention to the legislature is to apply something of a fiction. However, what is involved here is not the attribution of a collective mental state to legislators. That would be a misleading use of metaphor. Rather, judicial findings as to legislative intention are an expression of the constitutional relationship between the arms of government with respect to the making, interpretation and application of laws. As explained in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs, the preferred construction by the court of the statute in question is reached by the application of rules of interpretation accepted by all arms of government in the system of representative democracy. [29] What these situations, whether or not arising under statute, have in common is the need to answer the ultimate question, framed by Mason and Dawson JJ in Redding as being: 'Was the benefit conferred on [the plaintiff] independently of any right or redress against others and so that he might enjoy the benefit even if he enforced the right? In Evans… their Honours, who were part of the majority, concluded that unemployment benefits provided by the federal law had the character of a partial substitute for wages. But that holding does not support the denial by the Court of Appeal that the private benefaction conferred upon the applicant by the Assembly was to be enjoyed by her independently of redress against the respondent.' [30] Nor does Marinko at [47] assist the respondent. In that case, the Protective Commissioner had the administration under the Protected Estates Act 1983 (NSW) of the estate of the seriously incapacitated wife of the plaintiff husband. The Court of Appeal held that in an action for nervous shock sustained by the husband at the time of the injury to his wife, the payments made by the Protective Commissioner to the husband should be treated as reducing the economic loss suffered by the husband and that his damages should be reduced accordingly. However, Handley JA, who gave the leading judgment, emphasised that the payments were not made to the husband as gifts from motives of charity or benevolence, and thus normally intended to benefit the recipient not any tortfeasor; the payments were made pursuant to the statutory power to apply the estate to the benefit of the family of the wife."
In Kars v Kars [1996] HCA 37 (Kars), the plaintiff received care from her husband, the defendant. Dawson J said at pages 36-37: "The provision of gratuitous services to an injured plaintiff by a friend or relative is… to be categorised as an act of benevolence where there is no intention that it should result in the reduction of damages recoverable by the injured person."
Dawson J in Kars held that in such circumstances, no relief from the defendant's liability should be given.
The defendant is not relieved of paying damages for care on the following bases: 1. The carer's payment and/or carer's allowance is a payment made to T1 to assist her to provide care to T2. 2. T2 is to be compensated for his need for care provided by his mother or other persons on a gratuitous basis. He need not be under any legal liability to pay for such care. 3. The carer's payment and/or carer's allowance is not paid with the intention that the defendant's damages would be thereby reduced.

[64]

The defendant's submissions

The defendant referred to ss 15(2) and (3) of the CLA. These sections have been reproduced earlier in this judgment.
The defendant submitted that there was no evidence from T2, nor from his family, that would satisfy the thresholds prescribed by s 15 of the CLA.
This is especially so given that T2's mother, who supposedly at the time was providing the care, was herself being cared for by a paid carer, with her primary care need being noted to be in the nature of supervision.
The Court should place little weight on this opinion of Mr Byrnes in the absence of any other evidence. See: Sampco Pty Ltd v Wurth [2015] NSWCA 117.
T2 has not made out a claim for domestic assistance. No damages should be allowed in relation thereto, other than for the regime recommended by the psychiatrists in their oral evidence.
The defendant submitted that T2 is not entitled to the care on the basis that his mother is in receipt of a carer's payment herself, which has been granted to her for the very purpose of enabling her to provide care to her son T2. However, the rationale set out in Gordon is that to award damages to enable the plaintiff to receive assistance at commercial rates while Mr Gordon's wife continued to receive a pension for that very purpose would amount to unjust enrichment and be contrary to the principle.
In these proceedings, T2's mother is in receipt of a carer's payment to look after T2. She suffers from bi-polar disorder, depression and PTSD, as well as having suffered two brain aneurisms and intercranial hypertension. She also has a carer, her stepbrother, who is paid a carer's payment to look after her.
It appears that the plaintiff's mother receives the carer's allowance to care for T2. It is unclear if she also receives a carer's payment. The carer's payment is an income substitute whereas the carer's allowance is a supplementary payment (Ex E). Both parties have relied upon supplementary submissions on the topic of the effect of these monies.
A carer's allowance may be claimed in addition to other income support payments such as a Disability Support Pension or a carer's payment.
The amount of the carer's payment is currently $1,047.10 per fortnight. The amount of a carer allowance is currently $153.50 per fortnight.
T2's submissions about T1's carer's payment and the question of double dipping are misconceived.
In Gordon v Truong [2014] NSWCA 97 (Truong) the Court of Appeal stated at [130]: "Notwithstanding an apparent correspondence of facts, there is a very significant point of differentiation between the facts of Miller and the facts of the present case. In Miller, the plaintiff's wife was in receipt of a carer's pension, granted for the very purpose of enabling her to provide care to the plaintiff. Although it was not given as a reason in this court, it seems to me that, to award damages to enable the plaintiff to pay for assistance at commercial rates, while his wife continued to receive a pension for that very purpose, would amount to unjust enrichment, and be contrary to principle. In fact, it is difficult to say that the services in Miller were being rendered gratuitously. They were being paid for, although not by the plaintiff, and the plaintiff was not liable to pay for them. The implicit finding of this court was that the assistance would continue to be rendered, and it would continue to be paid from resources other than those of the plaintiff. In the terms of s 141B, therefore, they were services for which the plaintiff would not be liable to pay. In the circumstance that the plaintiff's wife was in receipt of a carer's pension for the very purpose of providing the services it was an inevitable conclusion that the services would continue to be rendered on the basis that the plaintiff would not be liable to pay for them."
In Campton v Centennial Newstan Pty Ltd (No 2) [2014] NSWSC 1799 (Campton), Hall J said at [773]: "I note that subsequent to the second operation Mrs Campton applied for and received a Carer's Pension: Ex M at [10]. I have determined that the award received by Mrs Campton by way of Carer's Pension should be deducted from the plaintiff's award for past personal care, in accordance with the principles discussed by Simpson J in Gordon v Truong [2014] NSWCA 97 at [130]."
More recently in Pietrobelli v Jewell Family Nominees Pty Ltd [2022] NSWSC 660 (Pietrobelli), Walton J said: "[699] The defendant submitted that I should have regard to the fact that one of the plaintiff's daughters currently receives a carers allowance for looking after the plaintiff (T91:35-36). [700] The Court of Appeal stated in Gordon at [130] (referring to Galderisi) that "to award damages to enable the plaintiff to pay for assistance at commercial rates, which his wife continued to receive a pension for that very purpose, would amount to unjust enrichment, and be contrary to principle". The Court of Appeal also stated (at [131]) that, even if the pension was received before the plaintiff's injury and had nothing to do with the plaintiff's injury, this was not a basis that the carer will continue to render the services gratuitously once the plaintiff has funds. [701] In Campton v Centennial Newstan Pty Ltd (No 2) [2014] NSWSC 1799 (Campton v Centennial Newstan) at [773], Hall J deducted the carer's pension from the plaintiff's award for past personal care in accordance with the principles in Gordon. [702] I will respectfully apply the approach in Gordon and Campton v Centennial Newstan. If the allowance was paid because of the plaintiff's injury, the support of the allowance means that at least some of the services were not rendered gratuitously and were being paid for, although not by the plaintiff. I agree that the amount of the carers allowance should be deducted in accordance with the principles stated in Gordon and Campton v Centennial Newstan. It is unclear on the evidence presently before me the precise amount of the allowance and the duration of which it has been paid. This much will be addressed in the orders made below for full disposition of this matter."

[66]

Future attendant care

Mr Byrnes calculates that between 16 October 2017 and 17 April 2021 T2 received gratuitous care worth $222,468.80. He suggests that the value of current and future care will be $1,533.07 per week (CB 40075-6).
In her individual report, Ms Piebenga contested many of Mr Byrnes' conclusions. Of the numerous care and treatment recommendations made by Mr Byrnes, Ms Piebenga concluded that only the travel related to the injuries sustained in the assault, as well as psychological assessment to determine whether T2 requires any intervention following the assault, were justified. She did so on the basis that his pre-existing condition would have required that he obtain much of the treatment recommended, regardless of the occurrence of the assault, and because T2's mother was already providing extensive gratuitous care to him prior to the assault such that no additional gratuitous assistance was provided (including "protective attention and supervision") after the assault (CB 60005). In doing so, she noted that T2's mother made a "Centrelink Carer's Application" on 25 December 2016 (i.e., prior to the assault) in which she stated that "the plaintiff required 25 hours of care per day for his lifetime" (CB 40097).
In his individual report dated 11 May 2021, Mr Byrnes noted T2's medical history and living environment before a functional assessment. In doing so, he stated that T2 would benefit from "occupational therapy to assist with community access, interpersonal and lifestyle skill development", "an occupational therapy driving assessment to assess his fitness to drive", "participating in a hydrotherapy program", "ongoing regular support from a psychological regarding depressed mood… and anxiety", "significant educational support (one-on-one tuition)" and "participation in a group program for the development of interpersonal skills and [a] one-on-one support work". Mr Byrnes further stated that T2's mother would benefit from "psychological support to develop skills to better manage her son's condition and manage her own stress" (CB 40065). The estimated cost of this therapy intervention is $189,354 in "one-off costs" and $27,994.20 per annum in ongoing costs (CB 40079).
For the future, Mr Byrnes considers that T2 will require paid care at a cost of $1,533 per week. 1. $1,533 x 1,020 x 85% = $1,329,111
T2 prefers people he knows and trusts. He may find it difficult initially to tolerate paid care and it is likely that he will continue to require gratuitous care of 38.47 hours per week while such care is available. His mother may be unable to continue providing care in the long run.
Over his lifetime, gratuitously provided past care would be: 1. 38.47 hours x $34 = $1,308 x 1,020 x 85% = $1,134,036
T2's condition regarding self-care is likely to improve. As he slowly regains confidence, he will likely need less prompting and supervision.
T2's pre-existing condition will mean that he is more vulnerable to setbacks. This is a manifestation of the eggshell skull rule.
Gratuitously provided care of, say, 25 hours per week for the next five years would be: 1. 25 hours per week x $34 x 231.5 (5% discount multiplier for five years) x 80% = $157,420 2. Thereafter 10 hours per week x $34 x 412.9 (5% discount multiplier for 10 years) x 0.784 (deferred by five years) x 80% = $88,050
Thereafter, his need for care may fall below the six-hour threshold. On that basis, total future care would be $245,470. Alternatively, the Court could consider allowing a buffer for a mixture of commercial and gratuitous care, say, $250,000.

[67]

Ms Piebenga

Ms Piebenga, an occupational therapist at Interface, wrote a report dated on behalf of the defendant entitled Activities of Daily Living (ADL) assessment, dated 8 October 2021.
Ms Piebenga's interview with T2, which formed the basis of her report, occurred on 23 July 2021. The interview lasted 2.75 hours. T2 was initially interviewed alone. He was initially co-operative for the first 45 minutes of the interview, at which point he became increasingly frustrated with the questions towards the end of that period. T2's mother joined him for the remainder of the interview.
Ms Piebenga described the assault and T2's pre-accident medical and education history, "[T2's] pre-existing ASD, ODD and mental health issues had resulted in him attending numerous primary schools, a high rate of absenteeism, school suspensions, bullying and attendance at school specifically designed to educate students with behavioural, emotional and academic needs. His symptoms of ASD, ODD, depression, family conflict, suicidal ideation and non-compliance with treatment all pre-dated the assault. Similar symptoms and behaviour were evident post the assault." (CB 40098)
At [5.0], Ms Piebenga summarised T2's medical intervention/investigation to date, which has already been summarised in this judgment. I have set out earlier in this judgment other history that Ms Piebenga relied upon and accepted the views of the defendant's psychiatrist. As a point of difference, I accept and prefer Dr Rikard-Bell's opinions.
At [6.0], she addressed T2's current status. She said, "Physically: [T2] reported ongoing issues with his right ear, including intermittent ringing and reduced hearing. He claimed this reduced his capacity to concentrate and "sometimes gives me a headache." He stated he is able to hear music in both ears when wearing headphones. Psychologically: [T2] stated that he "used to have nightmares. I'd say these lasted for about a month [after the assault]. But I'm no longer having nightmares." He reported symptoms of panic in crowds (eg at the shops) and avoidant behaviour. He advised that he avoids sleeping and remains awake watching shows and playing games on his phone until 3:00am or 4:00am. He reported that he does not have a diver's license but wants to obtain one. He remarked, "I don't know yet what I want to do." He has continued to perform personal care and domestic tasks to his pre-assault level. His mother, [T1], advised, "soon after the assault, during the first 12 months, [T2] was suicidal and had made two attempts. He had spoken about wanting to kill himself and had made plans." She noted that this affected her sleep, and she would not leave him at home. She reported that although he is no longer suicidal, "he still won't go out… but I am beyond the stage of having to watch him now. I can leave him for a maximum of two hours". She also stated that after the assault, he had a period of nightmares, and he became very withdrawn and would not come out of his room. His personal hygiene deteriorated, and she had to prompt him, but she acknowledged that this would not have amounted to more than a few minutes a day. She had the court subpoena [regarding the assault case] "dropped" as she knew he was too traumatised to manage this. [T1] expressed that she felt the Department of Education had failed them and she did eventually receive an apology. Comment: as [T2] no longer attends school, he has fewer routine tasks, such as catching a daily bus and sleeping at a reasonable hour. Poor sleep routine and habits may be contributing to his apathy to go out and schedule daily activities if he is sleeping into the day. Observing healthy sleep patterns is important for both physical and mental health, improving productivity and overall quality of life. Research has demonstrated that forming good habits is a central part of health. Crafting sustainable and beneficial routines makes healthy behaviours feel almost automatic, creating an ongoing process of positive reinforcement. On the flip side, bad habits can become engrained even as they cause negative consequences. Although [T1] stated, "he will not go out", documentation noted that [T2] attended school in February 2018. [T1] advised in this assessment that [T2] goes to the hairdresser, and [T2] stated he attends the shops with his mother. [T2] has demonstrated capacity for attending school and accessing the community. Dr Rickard-Bell documented (23 December 2020), "I do believe [T2] would be able to act in his own best interests and to make an informed decision based on the facts and advice given to him. I believe he could convey instructions to his legal representatives. Yes. I believe he would be able to participate fully in legal proceedings." There was no documentation in the hospital or General Practitioner notes documenting [T2's] panic attacks. The first mention of 'panic' was by Dr Polon on 17 August 2020. [T2] regularly consulted the hospital ENT clinic during 2017/2018, and there was no documentation of panic attacks, anxiety or suicidal ideation. Liverpool Hospital noted on two occasions that [T2] 'looks well'. The behaviours that [T2] displayed in the ENT clinic pre-dated the assault. The first documentation of PTSD was by Dr Sundraingham on 16 March 2018. [T2's] reported suicide attempts or plans following the assault were not evident in any medical and school documentation that I reviewed from the year after the assault or beyond. A suicide attempt would be considered a relatively serious event and a reasonable expectation would be that [T2] or his mother would have attended for medical attention. His doctor would have needed "to gather information about the patient's intent, plan, support system, and past medical/psychiatric history. [T2] would not have been allowed to leave the office until the doctor had thoroughly assessed" him. Before the assault, there was documentation in June 2011 and September 2017 that [T2] wanted to kill himself. I note that [T1] has, on occasions, attended medical consultations concerning [T2] without him being present. If [T2] was non-compliant about seeking medical attention post suicide attempts, it would be reasonable that [T1] sought medical assistance on behalf of [T2] as she had in the past. Based on the documented evidence, given [T2] demonstrated capacity for attending school, assessing the community, and lack of evidence relating to deteriorating mental health, including suicide, I do not support gratuitous assistance for additional supervision of T2 following the assault." (CB 40099-40101)
Ms Piebenga covered education post-assault at [7.0]. She said, "Post-assault, [T2] attended a new school (Ashcroft) and was offered an alternate, client-centred education program, as he had been offered at Verona in earlier years of his schooling before the assault. In most cases, ASD is a life-long condition, often severely affecting the quality of life of the patient and their family… though even today the recovery from the autism spectrum is an unlikely possibility, a timely psycho-educational intervention can significantly improve the level of autonomy reached by the individual and therefore favourably modify the outcome. Community support and social integration may be very important in improving outcomes for individuals with [ASD]. Given [T2's] medical history, it is reasonable to expect that he would have required such support at some stage. I do not support additional tutoring for [T2] based on the injuries he sustained in the [assault]." (CB 40102)
Ms Piebenga addressed T2's employment prospects at [8.0]. She said, "Remaining out of school or work is counter-intuitive to [T2's] recovery and has not resulted in further recovery. The evidence is compelling: 'for most individuals, working improves general health and wellbeing and reduces psychological distress.' However, in Australia, research indicates that the unemployment rate for autistic people is 31.6 per cent. This is three times the rate of people with a disability and almost six times that of people without a disability. More than half of unemployed autistic Australians (54%) had never held a paid job, despite often possessing the skills, qualifications and a strong desire to join the workforce. While I believe that the assault has genuinely impacted [T2], given [T2's] medical and educational history, he would have required assistance to identify and locate suitable employment based on his ASD. It is beyond my expertise or the scope of this assessment to determine what [T2's] capacity for employment was regardless of the assault, particularly his capacity for working with others and his level of communication given his diagnosis of ASD." (CB 40103)
Ms Piebenga discussed periods of incapacity at [11.0]. She said, "[T2] demonstrated periods of recovery. These included his capacity to attend Fairvale High School on 18 October 2017 (for one day). He was exempt from school for 44 days. Then from 15 December 2017 until 31 January 2018 or 6.86 weeks, [T2] was on school holidays and under the supervision of his periods during this time, regardless of the assault. He attended Ashcroft High School from February 2018. [T2] retained independence in personal care tasks and his pre-assault contribution of domestic tasks. [T1] stated she did provide prompts for self-care before the assault and that prompting continued. Prior to and at the time of the assault, [T1] provided care above that provided to a 14 year old without [T2's] diagnoses. This is evidenced by her receipt of a carers pension. I conclude that there was no additional gratuitous assistance provided to [T2] following the assault." (CB 40106)
Ms Piebenga made the following recommendations at [12.0], [13.0] and [15.0], "Due to [T2's] age at the time of the assault, it is reasonable to support travel to and from medical and rehabilitation appointments that relate to the injuries he sustained in the [assault]. I support psychological assessment to determine if [T2] requires any intervention consequent to the assault. I support a treatment program with either an OT or Psychologist with expertise in desensitising [T2's] anxiety and thus enabling him to access the community independently. In addition, I support a driving assessment…" … I do not support Mr Byrnes' recommendation of past gratuitous assistance based on [T2] having reduced memory, decision-making, and concentration, resulting in the need for prompting and assistance. [T2] did not sustain an injury that impacted his cognition. Based on the documentation provided to me and my assessment of [T2's] capacity to function after the assault, no additional gratuitous assistance is supported for past gratuitous assistance for personal care or domestic tasks as a result of the injuries sustained in the assault. [T2] retained the capacity to attend to personal care and domestic tasks with minimal prompting from his mother, as was the situation prior to the assault." … Based on the documentation provided to me and my assessment of [T2's] capacity to function after the assault, I do not support gratuitous or commercial assistance for future personal care and/or domestic tasks as a result of the injuries sustained in the assault. [T2] is currently independent in managing his personal/self-care, to the level of his pre-assault functioning and he is participating in domestic tasks at a similar to that completed by his sister. His mother continues to perform many of the household domestic tasks although both she and [T2] admitted that he has the capacity to contribute to tasks now and in the future. I note there is also a recommendation for the cost of life coaching and education tuition fees. Whist this may be appropriate and necessary, I do not consider it is consequent to the assault but rather to the multiple issues that [T2] was diagnosed with prior to his assault." (CB 40106-40108)
I have already allowed for all of the above recommendations except the driving assessment under the heading 'future medical expenses'.

[68]

T2's comments concerning Ms Piebenga's opinion

Ms Piebenga's view was that the December 2016 Review of Carer Payment (Ex E) demonstrated that T1 was receiving payment for 24-hour care provided by her to T2 before the assault. As a simple matter of logic, Ms Piebenga inferred that T2 therefore did not receive any additional care from his mother after the assault. This approach is too reductionist to be of assistance. An examination of his daily routine and activities, as set out in the school records and by necessary implication of him attending school (see evidence of Mr Byrnes on 25 October 2023), demonstrates that T2 was nowhere near as dependant on his mother as of December 2016 as he was after the assault. 1. Ms Piebenga took a task-by-task approach and did not consider the need for protective supervision, prompting and encouragement. These are forms of attendant care within s 15B of the CLA. 2. In looking at the before and after picture, Ms Piebenga did not factor in age-appropriate activity. At the time of the assault, T2 was 14 years of age and dependent on his mother. There were a range of activities he would have performed by reason of his age. He is now almost 21 years of age, however his dependency on his mother is greater than it was immediately before the assault.
Mr Byrnes interviewed T2 and his mother and provided a detailed assessment of the nature and extent of care required by T2 since the assault.
The main component of the care claim is "protective attention and supervision". This claim is advanced on the basis that before the assault, T2 could get himself to school and participate reasonably well and independently. After the assault, he could not effectively get to school and, given his age, injuries and underlying condition, he could not be left alone.
Following the assault, T2 stopped attending school. He was 14 years old at the time. The cessation of schooling placed an immediate burden on his mother. She was required to care for him during the hours he previously attended school. T2's mother has done most of the housework, cooking and cleaning. She says T2 could do some housework but would need supervision. Currently, T2's mother supervises his cooking, and takes him or otherwise accompanies him when he is shopping. She takes him to appointments, including with NDIS, waits for him and takes him home. She has shown him how to use an ATM. She is giving him driving lessons after he was unable to tolerate a driving instructor. Maddison confirmed that T2 gets his mother to do everything for him. In her opinion, if T2 were to undertake housework and cleaning, he would need reminding. Mr Byrnes noted a reluctance of T2 to shower.

[69]

Joint Report of Ms Piebenga and Mr Byrnes dated 1 March 2023

Both Ms Piebenga and Mr Byrnes agree that T2 had significant pre-existing (pre-assault) psychiatric health diagnoses of ASD and ODD.
The experts disagree about both T2's pre-injury capacity and the impact of the assault on T2's capacity following it. Both experts formed different opinions because they placed different weight on the documentation they were provided, and because they were given different information by T2.
Ms Piebenga acknowledged some of the medical experts considered the assault on 16 October 2017 likely exacerbated or aggravated the plaintiff's underlying condition. Whilst this may well be true, Ms Piebenga remained of the opinion that no additional gratuitous assistance was provided by his mother (or anybody else) in relation to the plaintiff's personal care, including the 'protective attention and supervision' recommended by Mr Byrnes. In particular (as noted in section 10, page 12 of Ms Piebenga's report): "His mother, [T1], was his paid carer before the assault. This indicates that [T2] required a level of care over and above what could be expected because of his age due to his pre-existing diagnoses… he had high-level behaviour support needs and difficulty with emotional regulation. … any participation in ADLs required prompting from his mother. During my assessment, [T2] and [T1] reported retained capacity for all personal care and domestic tasks at [T2's] pre-assault level of function. Although community based tasks were reported as dysfunctional, [T2] attended school, the shops and the hairdresser." (CB 40106)
Ms Piebenga noted that Dr Sundrasingham completed a 'Review of Carer Payment and Carer Allowance - Medical Report' on 20 December 2016 in which it was documented that: "[T2] is very uncontrollable. He is very aggressive. He is suicidal and has a fascination with knives. Has to have 24 hour care. No medications are helping, in any case he vomits all medication. He is very restless, he hits his head against the wall. He is very antisocial and avoids everyone including [unable to read]. His condition has not changed and will be present for his lifetime". (CB 60006)
It was noted that Dr Sundrasingham declared that T2 required "care 24 hours per day for his lifetime" (Ex E).
Ms Piebenga noted Dr Samuell's comment in relation to domestic tasks. Specifically, Dr Samuell documented on 5 July 2021 that the plaintiff "said that he cannot cook". He said that he has tried, but he is "horrible" and "can't follow a recipe". In contrast, T2 told Ms Piebenga that he "can use the deep fryer" and his mother added "he's really good with it". Dr Samuell also noted that the plaintiff "does some basic domestic chores, such as washing the dishes, cleaning and vacuuming". Dr Henricks (Vocational Psychologist, 1 October 2021) documented that the plaintiff "is able to catch public transport independently ... [noting however that] he prefers his own space and dislikes catching the bus when it is crowded" (CB 60006).
The defendant submitted that because Mr Byrnes had not been informed of T2 receiving the disability pension from NDIS and his mother receiving a carer's payment for T2, Mr Byrnes' assessment was based on inaccurate assumptions (T690 [5]-[10]).
The defendant challenged the past care claim on the bases that: 1. T2 had not established that care provided did not meet the threshold, and 2. "Being there" is not domestic assistance.
Ms Piebenga was sceptical about the extent to which the assault increased the supervisory care T2 required. She noted that, prior to the assault, T1 had applied to be a 24 hour per-day carer of T2 and that T1 was "very involved" in his care prior to the assault as well. She accepted that there was care provided to T2 following the assault but considered that the care provided "didn't increase as a result of the assault" (T628 [38]-[47]).
Ms Piebenga considered that there would have been value in keeping T2 in the school system following the attack, even if on a reduced workload. "MORRIS: Is what you're telling her Honour that in fact that what was required here from the time of this attack was some systems put in place to try and maintain [T2] in the education system, and then help him transition into some sort of vocation? WITNESS PIEBENGA: I know this is harping on. But not just from the time of the attack. Because of the things that were going on for [T2] that predated the attack, and the attack, there would've been value in him having support to keep him in the school system. I was led to believe that he did actually continue at school though, which is different to-- MORRIS: He continued-- WITNESS PIEBENGA: In a reduced capacity. MORRIS: He changed schools-- WITNESS PIEBENGA: Yeah. MORRIS: --by put him into a standard class and found that difficult, and he ended up specialised-- WITNESS PIEBENGA: Yeah. MORRIS: --limited teaching, I think two hours a day or something like-- WITNESS PIEBENGA: Two or three hours a day, yep. MORRIS: Two to three hours a day. WITNESS PIEBENGA: Yep. MORRIS: That's in accordance with your-- WITNESS PIEBENGA: That's what I was led to believe too, yep. Yep. MORRIS: And he disengaged from that. WITNESS PIEBENGA: Yeah, okay. But yes, in answer to your question; yes, I believe it would've been in his best interests to stay in school in order to transition into employment. MORRIS: But despite the fact that some support was given at the new school, he was unable to persist? WITNESS PIEBENGA: Yeah. I - I didn't get a lot of documentation from that period. So at the time of my assessment, it looked like he was in very supported, minimal attendance at Ashcroft High, which I believe was a special needs, you know, a class for kids with special needs." (T652 [3]-[50]; T653 [1])
Ms Piebenga was doubtful that T2 was truly bedroom-bound following the assault (T667 [47]-[50]; T668 [1]-[12]).

[70]

Resolution - future care

So far as T2's future care needs are concerned, it is unrealistic to rely on his family to provide gratuitous care in the future.
T2's mother is currently 50 years old and she suffers from her own health issues, including bipolar disorder, depression, anxiety disorder, post-traumatic stress disorder and she has suffered three aneurysms. In a form submitted to Centrelink, T2's mother claimed to require 24 hour care and supervision herself, including for help with various routine tasks such as grooming herself, using the toilet, transferring herself between her bed and a chair, mobility issues, dressing herself, using stairs and bathing (Ex F). Currently, her stepbrother is in receipt of a carer's payment for her.
Given her supposed ailments, it is unrealistic to expect T2's mother to provide him care going forward. T2's mother suggested that her older son, Bradley, could care for T2 should she be unable to do so in the future (CB 20100). I am not confident of Bradley's capacity to become T2's carer. He has his own young family to provide for and is in full-time employment.
T2 is now an adult. Neither his mother, nor his brother have any legal obligation to provide him care in the future. Given T2 is physically much larger and stronger than his mother and he has anger management issues, it is my view that T2's mother may not be able to continue being his carer. In this regard, I note paragraph [624] of this judgment.
For these reasons, any future care required by T2 should be provided on a commercial basis.
As it currently stands, T2 is largely confined to his room. If he is to continue on this trajectory, it is unlikely that he will have significant need for attendant care. As he stays in his bedroom most of the day, he does not need supervision for these hours. If, as is hoped, he engages with treatment and his psychiatric condition improves such that he has some earning capacity, then he his need for commercial attendant care will similarly be limited.
I accept that currently T2's mother does most of the housework, cooking and cleaning for him. She does his shopping or otherwise accompanies him when he shops. She takes him to appointments, including with NDIS, waits for him and takes him home. Maddison agrees that T2 gets his mother to do everything for him. Mr Byrnes notes a reluctance of T2 to shower.
I accept Maddison's evidence that if T2 were to undertake housework, he would need reminding. He also requires some supervision to ensure that he carries out the tasks required to keep the premises in which he is living in a habitable condition, such as cleaning, washing, washing up, showering and vacuuming. To this end, I allow two hours of care, two days per week, on a commercial basis. The parties are to calculate the cost of this.

[73]

T2's submissions

The fact that T2 has received payments under the NDIS does not affect the quantum of damages to which he is entitled in these proceedings.
Section 106 of the National Disability Insurance Scheme Act 2013 (Cth) reads, 106 Recovering past NDIS amounts from certain judgments. (1) This section applies if: (a) an amount of compensation is fixed under a judgement (other than a consent judgement) given in respect of a personal injury that has caused, to any extent, a participant's impairment (whether or not the participant was a participant at the time of the injury); and (b) before the day of the judgement, NDIS amounts (the past NDIS amounts) had been paid in respect of supports in relation to the participant's impairment; and (c) the judgement specifies a portion (the past NDIS support component) of the amount of compensation to be a component for supports of a kind funded or provided under the National Disability Insurance Scheme. (2) An amount (the recoverable amount) is payable by the participant to the Agency. The recoverable amount is an amount equal to: (a) unless subsection (4) or (5) applies - the sum of the past NDIS amounts, reduced as mentioned in subsection (3) (if applicable); or (b) if subsection (4) or (5) applies - the amount worked out in accordance with whichever of those subsections is applicable. (3) If: (a) the judgement fixes the amount of compensation on the basis that liability for the injury should be apportioned between the participant and another person; and (b) as a result, the amount of compensation is less than it would have been if liability had not been so apportioned; the sum of the past NDIS amounts is to be reduced by the proportion corresponding to the proportion of liability that is apportioned to the participant by the judgement. (4) If the recoverable amount would, apart from this subsection, exceed the past NDIS support component, the recoverable amount is taken to be the lesser of the sum of the past NDIS amounts and the past NDIS support component. (5) If the recoverable amount would, apart from this subsection, exceed the difference (if any) between: (a) the amount of compensation fixed by the judgement; and (b) the sum of the amounts (if any) payable in respect of the amount of compensation under the following: (i) the Health and Other Services (Compensation) Act 1995; (ii) the Health and Other Services (Compensation) Care Charges Act 1995; (iii) Part 3.14 of the Social Security Act 1991; (iv) a law of the Commonwealth, a State or a Territory, prescribed by the National Disability Insurance Scheme rules; the recoverable amount is taken to be the amount of the difference."

[74]

Resolution - NDIS

Section 3(1) of the National Disability Insurance Scheme Act provides that the objects of the NDIS include to: "(c) support the independence and social and economic participation of people with disability; and … (e) enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and … (g) promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community; and … (h) raise community awareness of the issues that affect the social and economic participation of people with disability, and facilitate greater community inclusion of people with disability…" (emphasis added)
That is to say, a key focus underpinning the NDIS is to support, facilitate and enable disabled persons to best engage in, and be productive members, the community.
In Zheng, the critical question was whether the payments were intended by the payer to operate in the interest of the plaintiff or to the diminish the damages to which he would otherwise be entitled.
As in Evans, where the High Court concluded that unemployment benefits provided by the federal law had the character of a partial substitute for wages, so too does the federal NDIS law have the character of assisting those who have a disability. The function of the NDIS differs from that of the carer's payment.
No evidence was placed before me to suggest that the provision of the carer's payment to T1 for her care of her son was intended to diminish his entitlements in this Court. The fact that these payments commenced prior to the injuries he sustained through the assault means this cannot have been the case.
However, more recent cases have repeatedly emphasised that the provision of a carer's payment and/or payment to a caregiver for services they provided to a plaintiff should be deducted from the plaintiff's award for past personal care.
In this case, the carer's payment was not paid because of injuries T2 sustained in the assault. Rather, it was on the basis that T2 "need[ed] care 24 hours per day for his lifetime" (Ex F).
While T2's need for care following the assault was greater than that previously, any entitlement to care is nevertheless to be capped at 40 hours per week. This is the same amount as the carer's payment received by T1.
After the assault occurred, T1 continued to receive a carer's payment for T2, and she continued to provide him care.
It is possible that following this judgment, T2 may be compelled to repay amounts he will receive under the NDIS scheme pursuant to s 106 in the future. That is not a matter for this judgment.
The sum of $17,312.26 NDIS funding was paid in relation to T2's psychiatric disabilities prior to the assault, not the worsening of these conditions after the assault. Therefore, I do not make any deductions in relation to these NDIS payments.

[75]

Cost of future management of funds

Section 77 of the Civil Procedure Act 2005 (NSW) relevantly reads, 77 Payment of money recovered on behalf of person under legal incapacity (1) This section applies to money recovered in any proceedings on behalf of any of the following persons- (a) a person under legal incapacity, … (c) a person whom the court has found, under section 76(1)(c), to be incapable of managing his or her own affairs, pursuant to a compromise, settlement, judgment or order in any proceedings. (2) All money recovered on behalf of a person referred to in subsection (1) is to be paid into court.
Dr Rikard-Bell opined that T2 would be limited in his ability to make informed decisions regarding his financial earnings and the management of his monetary funds. In his report dated the 23 December 2020, Dr Rickard-Bell addressed this issue and opined, "Can he mange the ordinary affairs of living, including banking, buying and selling and keeping track of his assets and liabilities, and income and expenditure? I believe he would need assistance with banking, buying and selling and keeping track of his assets and liabilities, income and expenditures. Does he have a reasonably sound understanding of his assets, liabilities, sources of income and financial obligations? I believe he would need assistance as he would be unable to understand fully his income and financial obligations. Does he have a reasonably sound understanding of the complications, pitfalls and risks of what he, others, propose to do with his assets and money, and whether there is a substantial risk that any such proposals will result in his assets and money being dissipated or lost? I do not believe he has the appropriate ability to understand the complications, pitfalls and risks of what he or others could do with his assets and money or that money could be dissipated or lost. Does he have the ability to identify situations where others may attempt to benefit from his assets or money through unfair dealing, and thereby create a real risk that he will be disadvantaged, or that his money or assets will be dissipated or lost? I believe he is vulnerable and would not be able to identify situations where others could attempt to benefit from his assets and therefore, he could be disadvantaged." (CB 40015)
In his report dated 11 February 2021, Mr Rossetto responded to a request by T2's lawyers that he provide additional calculations for "costs of funds management". He said that if the funds were invested by the NSW Trustee and Guardian, there would be numerous fees applicable such as an establishment fee, a monthly management fee and an investment fee.

[77]

An alternative approach is to apply the Furzer Crestani table of the calculation of the Present Day Value applying a 5% discount rate.
The Explanatory Note appearing at [17] of the Furzer Crestani tables records that the tables are based on the NSW Trustee and Guardian fund management fees.
T2 has a life expectancy of 61 years. If the quantum of damages is, for example, $1,000,000, the cost of fund management would be $268,270. If $2,000,000, $380,976.
Senior counsel for the defendant referred to the Furzer Crestani Forensic Assessment Handbook - Cost of Fund Management Update. It states: "Changes to NSW Trustee and Guardian Cost of Fund Management Fees We have recently been made aware of changes to the NSW Trustee and Guardian ('NSWT&G') Cost of Fund Management Fees, which came into effect on 1 January 2022. As a result we have updated the Furzer Crestani Forensic Assessment Handbook located at the Resources page of our website. The NSWT&G Fund Management investment fee (previously 0.1%), changed to either 0.15%, 0.25% or 0.35% depending on which investment fund the damages are placed in. (Note: All other fee components remain unchanged). We have assumed the damages would be placed in the NSWT&G Financial Management Growth Fund, on the assumption that injured parties have a longer investment horizon and are willing to accept the market volatility with a higher expected return through capital growth. As a result the investment fee adopted by us in the Furzer Crestani Forensic Assessment Handbook is 0.35%. If funds are placed in the NSWT&G Financial Management Growth Fund (investment fee is 0.35%), this will lead to significant increases in the Cost of Fund management fees charged by the NSWT&G, compared to the fee regime pre 1 January 2022."
The difference between the approach taken by Mr Rossetto and Furzer Crestani appears to be that Mr Rossetto adopted an investment fee of 0.1% and Furzer Crestani has assumed an investment fee of 0.35% on the assumption that damages would be placed in the NSW F&G financial management growth fund. As explained by Furzer Crestani, and in view of T2's age and life expectancy, it is reasonable to assume that a fund's manager for T2 would have a longer investment horizon and would be willing to accept market volatility with a higher expected rate of return through capital growth.
For that reason, the plaintiff prefers the Furzer Crestani approach.

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