Withyman v State of NSW & Anor

Withyman v State of NSW & Anor - [2010] NSWDC 186 - NSWDC 2010 case summary — Zoe

[140]

Had Anna engaged in a sexual relationship with David Withyman she would have disclosed that to me. At no time did Anna ever mention that she had any sexual relationship with David during the material period or any other time."
On 1 September 2008 Ms Blackburn emailed Ms Minato asking her if she had "had a chance to look at the statement yet". Some 12 minutes after receiving the reminder Ms Minato responded, by email, stating:- "You realise that you're asking me to straight out lie and deny any knowledge of what went on seemingly without a second thought? That you're dropping me right in the middle of this and asking me to go against my principles … I am not really prepared to sign anything knowing that it is not truthful Anna. You should know me better than that - that my conscience is bigger than that … I want to support you as much as I can but to go against the person that I am …"
A little over an hour later Ms Blackburn responded. This response is perhaps capable of more than one interpretation. As I read it, it is a plea for help from Ms Blackburn, drawing on a friendship and exhorting Ms Minato to help defeat the problems that had befallen her. This email includes the following:- "If you do sign a statement then it is unlikely you will be cross examined and with all the other statements as well, it is likely the DET will reassess their own evidence. You understand at this point they have nothing except for his accounts of what happened to suggest that there was a sexual relationship. There are NO EYE WITNESS ACCOUNTS AND NO FORENSIC EVIDENCE. Only what I say and what he said and some phone records."
On 4 September Ms Blackburn emailed Ms Minato saying she had not heard from her. About half an hour later Ms Blackburn sent another email attaching a second draft affidavit, much shorter than the first but containing this paragraph:- "7. I deny that I ever had a discussion with Anna to the effect that she should or should not have an intimate relationship with a person called David Withyman at any time."
On 11 September 2008 Ms Minato wrote to Ms Blackburn: "I am sorry Anna, but I just can't lie". A little later in the day Ms Blackburn emailed, it would appear without having seen Ms Minato's email of the same day. This was at 3.40pm and she wrote:- "Every day I wait for an email thinking that you have changed your mind and decided to help me. But alas each day goes by and no response. I am shocked that this is how it is to be."
At 5.01pm, on the same day, another email was sent, attaching the same draft affidavit. She wrote, inter alia:- "Read the affidavit and change it to suit what you are comfortable with. You don't have to lie. You just need to confirm that we didn't have an argument where you told me not to have a relationship with him …"
Ms Minato would not sign the affidavit.

[388]

(e) The last quoted portion from Dr De Saxe's report follows this sentence: "My opinion is that Mr Withyman suffers from major depression as a consequence of the breakdown of the sexual relationship with Ms Blackburn." . The sentence about the absence of a previous mood disorder, on my reading of the report was a pre-condition to the just stated opinion. I put this to Dr De Saxe and he responded, as he was perfectly entitled to, as the wording is his own, that I was applying a "too literal" approach. The application of such an approach is an unfortunate failing of the legal mind but nevertheless it seems to me that the attribution of a medical condition to a particular cause must take into account whether or not the condition existed before the alleged cause. It is true, of course, that a pre-existing condition can lead to an aggravation. Dr De Saxe agreed this might be so. However, he would not allow of any amendment to his opinion even if there was a pre-existing history of mood disorder or depression. 306. Dr De Saxe did, however, make this important concession. This is contained in the following evidence:- "Q. The plaintiff's clinical state as observed by you in 2009 doesn't depend on the existence or otherwise of that relationship; it could be explained independently of that, couldn't it? A. Yes, it could." (T1057.21) As I understand this concession, the doctor is accepting that the plaintiff's mental state in 2009 could be a product of matters besides the relationship with Ms Blackburn. This is, of course, in direct contrast to the opinion I quoted above, namely: "my opinion is that Mr Withyman suffers from major depression as a consequence of the breakdown of the sexual relationship with Ms Blackburn." As I have already said, this was an opinion that I felt the doctor was very reluctant to give up. Yet the simple words in the cross examination that I have just quoted seem to fundamentally undermine the doctor's otherwise steadfast defence of his opinion. 307. When Dr De Saxe resumed evidence in June I thought there had been a subtle softening in the firmness of his view, in particular of the opinion quoted above. I suggested this to the doctor and he replied in this way:- "A. I have to put it this way. Based on the information available to me at the time that I met Mr Withyman as well as the information that I subsequently received there is nothing that's really changed my original view of the matter except to say that the information that has come to light for me subsequent to writing my report has simply supported the likelihood that someone like Mr Withyman might have become severely depressed and then acted out once a relationship of this nature had taken place and broken up. In other words, he was - he was quite vulnerable to becoming depressed." (T 1202.23) 308. The resumed cross examination by the first defendant concentrated on establishing that the plaintiff's pre-existing problems were as likely to have been responsible for his activities and depression after the breakup with Ms Blackburn as the effects of the breakdown. Although perhaps not in these terms I think the doctor accepted some substance in this argument but only to the extent that if the plaintiff was already suffering from a chronic depression then the depression following the breakup was an example of an episode of resumed depression rather than a first manifestation of the condition. Dr De Saxe went on to say that episodes of depression, without treatment, normally were overcome within two years. He also said that the description given by the plaintiff's mother of his current condition was consistent with a recovery from a depressive episode.

[390]

In re-examination, the doctor was asked to, in effect, restate an opinion that the acts of violence against Ms Blackburn were a product of his depression following the assault. In other words the defendants were liable for the assaults on Ms Blackburn. He said this: "A. Well your Honour, a situation that occurs in a person's life is always an interaction between the person's nature as endowed by genes and their developmental period and the environment in which that person is operating. I think that the argument that has arisen here is almost impossible to try to pin down to one side or the other, both sides are correct. It is not unlikely, for instance, that given the relationship with Ms Blackburn that a person with an avoidant or schizoid personality would have responded in that way, although not impossible, but less likely, whereas somebody who has had a history of borderline personality disorder involving impulsivity and antisocial traits, involving a lack of conscience et cetera, is obviously more likely, given the precipitant to react in that way, but from my perspective, given that the information that the information available to me, I have to draw the conclusion that the way that he reacted at that time towards Ms Blackburn was caused by the relationship and the break-up of the relationship. The fact that he had an underlying borderline or antisocial or both personality disorder is only the background on which the event happened, but it's not the primary cause of the assault, it seems unlikely that he would have assaulted Ms Blackburn without some form of precipitant, even though we know that he had a history of assaulting people, but it's impossible really to make a decision or to reach a conclusion that he would have assaulted her without the relationship breaking up. I'm not clear as to whether there'd been any assaults during the relationship." (T 1208.22)
The just quoted opinion of Dr Saxe is an important part of the plaintiff's case. However I think too much can be read into the doctor's words and I think, ultimately he is saying no more than that if the breakdown had not occurred then the assaults would also not have occurred. I think more important was his answer to this question that I asked him:- "Q. You don't suggest, do you, that when he beat up Ms Blackburn, he was doing so without control of himself, as opposed to - that was the way he expressed his outrage? A. Yes. It is not likely that he was not in control of himself from an organic point of view, no." (T 1206.16) The doctor also agreed that if there had been violence within the relationship he might modify his opinion, although I accept his answer was somewhat qualified (T 1209.8). There was some evidence to this effect from Ms Minato. She said Ms Blackburn had told her that the plaintiff had "… started to become more physical with her, more aggressive with her and that she - she said that she was becoming increasingly fearful for her safety and for the safety of her daughter." (T 413.38)
Ms Robilliard is a forensic psychologist of many years experience. She provided three reports (Exhibits C, D and V). She first met the plaintiff in response to a request from Legal Aid for a pre-sentence report prior to him being dealt with for the firearm offences in 2007. She saw him at the Silverwater Gaol on 15 December 2007. She also gave her evidence in both April and June but her evidence on the second occasion was limited.

[392]

I read to Ms Robilliard the forensic history that Dr De Saxe had taken. This was:- "Prior to meeting Ms Blackburn he had committed various petty crimes such as stealing from bottle shops and bashing people for money at Bathurst University. He used to pick on weak young university students who didn't know how to fight." (Exhibit B, page 5). Like me, Ms Robilliard disagreed with the adjective, "petty", and thought this behaviour, assuming it was true, was of concern in understanding the plaintiff's 'before and after' relationship actions. In fairness to Dr De Saxe, when he returned to give evidence on the second occasion, he said the described behaviour was incorrectly labelled as "petty'.
A good deal of cross examination, as well as a number of questions from me, centred on this sentence in Ms Robilliard's first report, at page 5, which she made after reading the plaintiff's interview with Mr Ray:- "David gave a very detailed graphic description of their encounters in the transcript referred to and it is undoubtedly true." It is obviously the last words that led to the questions. She said that this conclusion was derived in particular from the detail given by the plaintiff in the statement. She felt that a person of his limited intelligence would not normally be capable of recalling such a degree of detail. She also felt that his consistency in giving the description was important. She was not, however, able to point to any other document she had seen in which the descriptions were similar. She agreed with the possibility that he might have obtained the descriptions from viewing pornographic sites on the Internet. In his report Dr De Saxe recorded this: " Mr Withyman had his first sexual encounter at the age of 13 at a party. He had learnt about sex from movies, pornography, books and from other children and his brothers." (Exhibit B, page 3)
Ms Robilliard did agree that the plaintiff was a person likely to fantasise and she accepted, if only as a possibility, that the plaintiff may have been obsessed with Ms Blackburn and perhaps created the descriptions as part of his fantasy of life with her.

[464]

The "but for" test is regarded as having an important role in the resolution of the issue of causation, although more as a negative criterion than as a comprehensive test . The resolution of the question of causation has been said to involve the common sense idea of one matter being the cause of another. But it is also necessary to understand the purpose for making an inquiry about causation and that may require value judgments and policy choices. (Tabet v Gett [2010] HCA 12 at para. 111 ).
In case I am wrong about Section 3B of the CLA exempting Ms Blackburn's liability from the CLA, and in respect of the first defendant, Section 5D states, in part: "(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)." This provision was considered by McColl JA in Mobbs v Kain [2009] NSWCA 301, a case involving a child running into the side of a car. Her Honour said: "In my view his Honour did not identify the negligence which was "a necessary condition of the occurrence of the harm" and the respondent did not otherwise establish that any conduct on the second appellant's part caused the particular damage that the respondent suffered. Rather, as a matter of common sense, it was the respondent's dash across the road which caused the collision. " (Paragraph 110) Adapting her Honour's words to this case: "Rather, as a matter of common sense, it was" the plaintiff's own choice that caused the criminal activity.
Thus whether applying the common sense referred to in the High Court or by McColl JA in Mobbs, the answer is the same: The injuries to Ms Blackburn were caused by the plaintiff's actions. They were not caused by Ms Blackburn causing the plaintiff to injure her. I would also add the following: (a) I think it would be untenable as a matter of " policy choices " to categorise the assaults on Ms Blackburn as having been caused by her actions.

[469]

The primary duty of the school authority is, so to speak, antecedent to its employment of staff. The existence and nature of that duty do not depend upon the staffing arrangements which it makes; nor is the duty discharged or extinguished by making arrangements for the staffing of the school. Though the primary duty, so far as it requires supervision of the pupils, will ordinarily fall to be discharged by the teachers at a school, a school authority's liability for damage caused by a failure to provide supervision is founded on the school authority's failure to discharge a duty which it assumed when the child was enrolled and which is sustained by the continued acceptance of the child as a pupil. Of course, a teacher may be under a like duty to the child, but the teacher's duty is not determinative of the duty of the school authority." 395. In Richards v State of Victoria [1969] VR 136, Winneke CJ set out the duty of a school and teacher. I particularly note his comments about the age of a pupil and the need to protect a pupil against himself. The plaintiff here may have been 18, but his maturity far from reflected this milestone: "We are of opinion that it is now clearly established by authority that in general a schoolmaster owes to each of his pupils whilst under his control and supervision a duty to take reasonable care for the safety of the pupil. It is not, of course, a duty of insurance against harm but a duty to take reasonable care to avoid harm being suffered. As was said by Kitto, J, in Ramsay v Larsen (1964) 111 CLR 16, at p. 27; [1964] ALR 1121: "The breach of duty which the plaintiff alleges is a failure to take such precautions for his safety on the occasion in question as a reasonable parent would have taken in the circumstances. It is indisputable that in general a schoolmaster owes his pupil a duty of that order." The reason underlying the imposition of the duty would appear to be the need of a child of immature age for protection against the conduct of others, or indeed of himself, which may cause him injury coupled with the fact that, during school hours the child is beyond the control and protection of his parent and is placed under the control of the schoolmaster who is in a position to exercise authority over him and afford him, in the exercise of reasonable care, protection from injury " (Page 138). 396. The plaintiff was obviously a pupil accepted by the school until September 2003. Besides this basic fact there is an added element. Carenne was a special school and the pupils had special requirements. The obligation of the school must have included consideration of these requirements, which in the case of the plaintiff would have extended to consideration of his personality problems and vulnerability to influence from older people.

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