Tolley bht Caldwell v State of New South Wales

The second defendant is a registered charity that provided out of home care to young persons, such as the plaintiff. According to the statement of claim, the following are the facts relied upon by the plaintiff.

The first defendant referred the plaintiff to the second defendant following the identification of the plaintiff, who was with his mother, being in need of care. In November 2012 the first defendant removed the plaintiff from his mother’s care and placed him into the care of Joanne Caldwell, his tutor in these proceedings. In February 2013 the first defendant transferred the ongoing day-to-day responsibility for the plaintiff’s casework to the second defendant.

The plaintiff suffers from a number of pre-existing mental health conditions, including autism spectrum disorder, attention deficit hyperactivity disorder and a borderline to mild intellectual disability.

When the plaintiff was between 15 and 16 years of age he attended respite placement with a foster carer who subjected him to sexual and psychological abuse. This carer has since been convicted of criminal offences of indecency in respect of another person and of the plaintiff.

The abuse suffered by the plaintiff was made known to the defendants. The defendants are alleged to have breached the duty of care they owed to the plaintiff which has resulted in the significant damage described in the Statement of Particulars filed on 13 January 2026.

The first defendant filed a defence on 28 April 2026, which makes a number of admissions but denies the significant assertions of negligence and denies the plaintiff’s entitlement to damages.

The second defendant filed a defence on 18 June 2026, which takes, in general terms, the same approach as the first defendant and ultimately denies negligence and therefore any entitlement to damages.

Following discussions at a mediation on 29 June 2026, the parties reached a settlement for which they now seek approval pursuant to s 76 of the Civil Procedure Act 2005 (NSW). The plaintiff is no longer a minor, having been born in 2000, but he is a person under a legal incapacity because of the mental health conditions which I have referred to above.

The application for approval is supported by an affidavit of Ms Daisy Hender dated 26 August 2026. Ms Hender is a solicitor acting for the plaintiff.

The plaintiff’s tutor is Ms Joanne Caldwell. Ms Caldwell has cared for the plaintiff since about 2012, when the plaintiff’s condition seems to have greatly improved. It appears Ms Caldwell has been a significant influence in the plaintiff’s capacity to deal with schooling, and in particular with the effects of the abuse.

Unfortunately, it was during an absence of Ms Caldwell from Australia that the plaintiff came to be in the care of the abuser. No blame for the placement rests upon Ms Caldwell. I am satisfied that the appointment of Ms Caldwell as the plaintiff’s tutor and financial guardian was in his best interests. Ms Caldwell’s devotion to the plaintiff is reflected in the fact that she he has become the plaintiff’s guardian and financial manager.

In addition to Ms Hender’s affidavit, I have been provided with a confidential advice prepared by counsel for the plaintiff. This advice, which will remain marked as confidential, describes the background to the matter, the abuse suffered by the plaintiff and the basis for the liability of the defendants.

The advice does not suggest that a compromise should arise from the liability issues. The advice goes on to estimate the likely quantum of the claim and makes the point that economic loss will be a significant issue in the assessment of damages. For this reason, a degree of compromise is advocated which has been factored into the settlement sum.

The court’s role in approving, or not approving, a settlement is protective. The court must decide if the settlement is beneficial to the plaintiff. Part of the assessment of whether a settlement is beneficial can involve taking into account a sound reason for compromise. In my view, having regard to the plaintiff’s mental health issues, and their possible effect on his economic capacity, a compromise in this case is appropriate.

Accordingly, I approve the settlement and make orders in accordance with the Consent Orders which I will sign and date today.