BYM v The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane (No 2
[2024] QSC 106
•30 May 2024
SUPREME COURT OF QUEENSLAND
CITATION: BYM v The Corporation of The Trustees of The Roman Catholic Archdiocese of Brisbane (No 2) [2024] QSC 106 PARTIES: BYM (plaintiff) v
THE CORPORATION OF THE TRUSTEES OF THE
ROMAN CATHOLIC ARCHDIOCESE OF BRISBANE
TRADING AS BRISBANE CATHOLIC EDUCATION
ABN 49 991 006 857(defendant) FILE NO/S: [REDACTED] DIVISION: Trial Division PROCEEDING: Trial ORIGINATING Supreme Court at Brisbane COURT: DELIVERED ON: 30 May 2024 DELIVERED AT: Brisbane HEARING DATES: 27 November 2023 to 6 December 2023 JUDGE: Williams J ORDERS:
1. The plaintiff’s claim is dismissed. 2. The parties be heard further in relation to costs. 3.
The parties are provided with a confidential not to be published version of the reasons and are to agree a Schedule identifying any further information to be redacted in a version of the reasons to be published, to be emailed to the Associate to Williams J, by 13 June 2024.
CATCHWORDS:
TORTS – VICARIOUS LIABILITY – NON-DELEGABLE DUTY – NEGLIGENCE – allegations of child sexual abuse on school grounds – where the plaintiff claims damages for
psychiatric injury from an alleged assault on the basis of vicarious liability and/or negligence – where the alleged assault constitutes a serious criminal offence against a child – whether the assault occurred as alleged – whether the
defendant is at law vicariously liable for the conduct of alleged perpetrator – whether the alleged perpetrator was acting in the course of his employment – whether the assault, if found to
have occurred, has a sufficiently strong connection with the employment – whether the alleged perpetrator was placed in a position of authority, power and trust such that he was able to achieve a substantial degree of intimacy – whether on the balance of probabilities the defendant breached the non- delegable duty of care to exercise reasonable care for the safety of the plaintiff as a student
EVIDENCE – civil standard of proof – approach to assessment of credibility – burden of proof to the Briginshaw standard –
where a key issue in dispute is whether the alleged assault occurred as alleged or at all – where the key issues concern the credit and reliability of the plaintiff and other witnesses –
where there is a substantial period of delay between the alleged assault and the trial – whether the necessary degree of satisfaction is reached in respect of the plaintiff’s claim raising
serious allegations of assault Criminal Code Act 1899 (Qld), s 245 Bird v DP [2023] VSCA 66
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA
34BYM v The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane (No 1) [2023] QSC 298
CCIG Investments Pty Ltd v Schokman (2023) 97 ALJR 551;
[2023] HCA 21
Double v Salvation Army (Victoria) Property Trust [2023]
VSC 452
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Gersbach v Gersbach [2018] NSWSC 1685GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857; [2023] HCA 32
Jones v Sutherland Shire Council [1979] NSWLR 206
Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60
M v M (1988) 166 CLR 69; [1988] HCA 68
Nguyen v Cosmopolitan Homes (NSW) Pty Ltd [2008]
NSWCA 246
Prince Alfred College Inc v ADC (2016) 258 CLR 134;
[2016] HCA 37
Watson v Foxman (1995) 49 NSWLR 315
Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980]
HCA 12COUNSEL:
Mr G Mullins KC and Ms C Campbell for the plaintiff Mr R J Douglas KC and Mr K Howe for the defendant
SOLICITORS:
Maurice Blackburn Lawyers for the plaintiff MinterEllison Gold Coast for the defendant Ms R Drew of Holding Redlich for CD (witness)
The plaintiff claims damages for an alleged assault on the basis of vicarious liability of and/or negligence by the defendant, together with interest and costs. The defendant denies liability.
At the commencement of the trial, both liability and quantum were in issue. During the trial, an agreement was reached in respect of quantum only.
The plaintiff suffers from a significant psychiatric condition and that is not in dispute.
The central issue is whether the assault occurred as alleged by the plaintiff and, if so, is the defendant liable for the injury caused to the plaintiff on one or both of the identified bases.
Non-publication order
On 6 December 2023, orders were made including as follows:
“(2) Subject to:
(a) the exceptions in s 194(2) of the Child Protection Act; and (b) further order of the Court, identifying information (as defined in s 194(4) of the Child
Protection Act) about the plaintiff must not be published.
(3) Subject to:
(a) publication or disclosure for the purposes of conducting this proceeding and any appeal; (b) publication or disclosure for the purpose of an investigation into a complaint made by or on behalf of the plaintiff to the Queensland Police Service; (c) publication or disclosure required or authorised by law; and (d) further order of the Court, the name of, and other information which may identify, the person described as CD in the Further Amended Statement of Claim, and
who was a witness at the trial, must not be published or disclosed.”
(Non-publication Order)
The reasons for making these orders were delivered ex tempore on 6 December 2023 and published at BYM v The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane (No 1) [2023] QSC 298.
Accordingly, these reasons are prepared on the basis that a version of the reasons is publicly available in accordance with the principles of open justice, but identified parts are redacted pursuant to the Non-publication Order in place.
Issues in dispute
The parties have agreed the issues in dispute, as follows:
(a) Issue 1 - whether the alleged assault occurred as alleged or at all. (b)
Issue 2 - whether the defendant is at law vicariously liable for the conduct of CD.
(c)
Issue 3 - whether CD was acting in the course of his employment and whether as a matter of law the defendant is liable.
(d)
Issue 4 - the nature and extent of any duty of care owed by the defendant to the plaintiff.
(e) Issue 5 - whether the defendant had breached any duty of care.
During the trial, the parties agreed causation and the assessment of damages. Accordingly, issues 6, 7, 8 and 9 do not need to be further considered, namely:
(a) Issue 6 - The nature and extent of damages, of and including: (i) Past and future economic loss;
(ii) Past and future care and assistance;
(iii) Past expenses;
(iv) Future expenses.
(b) Issue 7 - Whether any alleged injuries relate to the alleged assault. (c)
Issue 8 - What injury or injuries, if the alleged abuse occurred, are attributable to the alleged assault.
(d)
Issue 9 - If the alleged assault occurred as alleged or at all, what loss or otherwise the plaintiff has suffered as a consequence.
Matters not in dispute
Prior to trial, the parties also agreed certain matters that are not in dispute, namely:
(a) The plaintiff: (i) Is a female:
(ii) Was born on [REDACTED] and is now aged 33 years;
(iii) Was enrolled in and attended EF,[1] a school in the State of Queensland, (the School) in 1999 for the compulsory education of the plaintiff as required by the Education (General Provisions) Act 1989 (Qld).
[1] [REDACTED].
(b) The defendant:
(i) Is an entity capable of being sued; (ii)
Operated multiple schools within the Archdiocese of Brisbane and employed teachers, cleaners, groundskeepers and other staff to work within those schools;
(iii) At all material times, owned and operated the School. (c) During the 1999 school year, the plaintiff’s classroom teacher was [REDACTED].[2]
[2] Now [REDACTED].
(d) CD:
(i) Is a male; (ii) Was born on [REDACTED] and is now aged [REDACTED] years; (iii) Was employed by the defendant at the School in 1999. (e) The nature and extent of the plaintiff’s general damages. (f) The plaintiff has complied with the pre-court procedures and requirements of the Personal Injuries Proceedings Act 2002 (Qld).
During the trial, the parties agreed that if the alleged assault occurred, causation and assessment of damages are agreed at $1 million.[3]
Plaintiff’s pleadings and witnesses
[3] T6.2.12-15; Plaintiff’s closing submissions at [12], page 3; Defendant’s amended closing submissions
The Further Amended Statement of Claim dated 6 December 2023 (FASOC) sets out the material facts relied upon by the plaintiff in respect of her claim. The Amended
Reply dated 12 December 2022 (Amended Reply) joins issue with the defendant’s
amended pleading.
The following witnesses gave evidence as part of the plaintiff’s case in respect of
liability:
(a) The plaintiff; (b) [REDACTED], the plaintiff’s sister; (c) [REDACTED], the plaintiff’s mother; (d) [REDACTED], the plaintiff’s father; and (e) [REDACTED], the plaintiff’s brother.
Dr Joseph Mathew, psychiatrist, and Mr Stephen Hoey, occupational therapist, also gave evidence in respect of causation and quantum. Some of this evidence remains relevant to liability.
Defendant’s pleading and witnesses
The Amended Defence dated 4 November 2022 (Amended Defence) sets out the
matters relied upon by the defendant in defence of the plaintiff’s claim.
The defendant called the following witnesses in defence of the plaintiff’s claim:
(a) [REDACTED], referred to as CD, the alleged perpetrator; (b) [REDACTED], a student at the School during the relevant period; (c) [REDACTED], a teacher at the School during the relevant period; (d) [REDACTED],[4] the plaintiff’s teacher; (e) [REDACTED], [REDACTED] of the School, during the relevant period; (f) [REDACTED], counsellor of the School, during the relevant period; and (g) [REDACTED], [REDACTED] of the School, during the relevant period. [4] While the plaintiff’s teacher was known as [REDACTED] at the time of the alleged assault, for ease
Dr Benjamin Duke, psychiatrist, gave evidence in respect of causation and damages. Some of this evidence may remain relevant to liability.
Nature of the claim
The nature of the plaintiff’s claim is that on a school day in 1999, the plaintiff
obtained permission from her teacher to leave the classroom to go to the toilet. The
plaintiff left the classroom unaccompanied and entered one of the girls’ toilet blocks
at the School.
The plaintiff alleges that while she was in one of the toilet cubicles, CD entered that toilet cubicle and assaulted her, including digital and penile penetration.
The plaintiff did not complain about the alleged assault immediately after the event. In 2017, the plaintiff disclosed the alleged assault to her mother. Subsequently, the
plaintiff made a “partial” disclosure to a psychologist, Ms Daile Martin.
The plaintiff claims that the defendant is vicariously liable for the alleged assault by CD and/or directly liable for breach of a duty of care owed by the defendant to the plaintiff as a result of the alleged assault by CD.
Standard of proof given the nature of the claim
It is not contentious that these are civil proceedings and:
[5] (1938) 60 CLR 336.
[6] (1988) 166 CLR 69.
(a) the plaintiff bears the persuasive onus of proof on all issues; and (b) given the nature of the claim, the higher evidentiary standard as articulated in Briginshaw v Briginshaw,[5] and as more recently explained in M v M,[6] is required to be satisfied.
This is a case where the Court is faced with two versions of events: the plaintiff’s
version and CD’s version. Ultimately, the evaluation of that evidence is critical to
the consideration of the issues in dispute, particularly Issue 1.
The plaintiff submits that the Court should approach the evidence by reference to the factors identified by Sir Richard Eggleston in the textbook Evidence, Proof and Probability.[7] Those factors are typically taken into account by judges in assessing witness credibility and include:
[7] Richard Eggleston, Evidence, Proof and Probability (Weidenfeld and Nicolson, 2nd ed, 1983). Referred to by Ferguson CJ and Maxwell P in the Victorian Court of Appeal decision in Pell v The Queen [2019] VSCA 186 at [56].
(a) Inherent consistency of the story; (b) Consistency with other witnesses; (c) Consistency with undisputed facts; (d) The credit of the witness; (e) Observation of the witness; and (f) The inherent probability, or improbability, of the story.
The defendant contends that it is appropriate to consider the authorities in more detail to ascertain what is required to satisfy the higher evidentiary standard. Given the
critical nature of the evidence and the serious nature of the plaintiff’s allegations, it
is appropriate to specifically consider the guidance provided by the relevant
authorities.
The starting point is the case of Briginshaw v Briginshaw[8] where the High Court considered the standard of proof in divorce proceedings on the ground of adultery. The case at first instance depended entirely on evidence of conversations, with no evidence in writing.
[8] (1938) 60 CLR 336.
Dixon J’s reasons for judgment state the relevant principle:
“But reasonable satisfaction is not a state of mind that is attained or
established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such
matters “reasonable satisfaction” should not be produced by inexact
proofs, indefinite testimony, or indirect inferences”.[9]
[9] At 362.
Dixon J went on later in the reasons to state:
“This does not mean that some standard of persuasion is fixed
intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained. When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better
opinion, the same as upon other civil issues … But, consistently with
this opinion, weight is given to the presumption of innocence and
exactness of proof is expected.”[10]
[10] At 362-363.
The High Court in M v M[11] considered the issue in the context of Family Court child custody or access proceedings in which an allegation of sexual abuse was raised. The Court,[12] in a joint judgment, concluded:
“In considering an allegation of sexual abuse, the court should not
make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to
the factors mentioned in Briginshaw v Briginshaw”.[13]
[11] (1988) 166 CLR 69.
[12] Mason CJ, Brennan J, Dawson J, Toohey J and Gaudron J.
[13] At 76.
After quoting Dixon J,[14] the Court observed that the remarks had “a direct application
to an allegation that a parent [had] sexually abused a child, an allegation which is
often easy to make, but difficult to refute.”[15] Their Honours went on:
“No doubt there will be some cases in which the court is able to come
to a positive finding that the allegation is well founded… There will
be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be many cases, such as the present case, in which the court cannot
confidently make a finding that sexual abuse has taken place.”
[14] The passage is quoted at [28] above.
[15] At 77.
These principles were more recently considered by Garling J in Gersbach v Gersbach[16] where his Honour commented that:
[16] [2018] NSWSC 1685.
“[7] Having regard to contemporaneous events and knowledge about the occurrence in the community and in family settings of child sexual abuse, it would not be appropriate to categorise accounts of such conduct as being inherently unlikely, as Dixon J did in 1938.”
The reasons for judgment in Gersbach v Gersbach are an example of the trial judge
needing to carefully analyse all of the relevant evidence to resolve the “evidentiary
differences”. Garling J observed:
“[393]
It would be an unsatisfactory basis for the resolution of these proceedings for the Court to simply prefer one account over
another solely on the basis of a witness’s demeanour whilst giving evidence. A careful observation of each of the lay witnesses whilst they were giving evidence, particularly the
plaintiff, the defendant and [the plaintiff’s mother], showed that the experience of giving evidence was itself traumatic. … To resolve the evidentiary differences, it is appropriate to proceed by analysis of the evidence, including reference to the surrounding context, and all other relevant matters and circumstances. It is appropriate to search for and identify any corroboration which may exist, or may be expected to
exist.”
After undertaking this approach, Garling J concluded that he could not accept the
plaintiff’s evidence as establishing on the balance of probabilities the alleged sexual
and physical abuse. An “integral part” of that conclusion was his inability to conclude
that the defendant or the plaintiff’s mother were intentionally lying in their
evidence.[17]
[17] See [394] and [395]. The evidence of denying the conduct which constituted serious criminal conduct
In Fox v Percy,[18] the majority of the High Court[19] recognised the move away from
reliance on demeanour as an indicator of truth or falsehood based on “scientific
research”. Their Honours observed:“Considerations such as these have encouraged judges, both at trial
and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where
those principles are seen as critical.”[20]
[18] (2003) 214 CLR 118.
[19] Gleeson CJ, Gummow and Kirby JJ.
[20] At [31].
Some practical guidance to the resolution of the type of evidentiary differences which arise in this case is also obtained from the High Court decision in GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore.[21] Whilst that case considered factors relevant to a permanent stay to prevent an abuse of process, the Court[22] did consider fairness[23] of a trial, particularly in the context of the removal of the relevant limitation period for claims in respect of child sexual abuse.[24]
[21] (2023) 97 ALJR 857; [2023] HCA 32.
[22] Kiefel CJ, Gageler J (as the Chief Justice then was) and Jagot J.
[23] Or in particular, unfairness.
[24] In that case, by s 6A of the Limitation Act 1969 (NSW).
The majority of the High Court recognised that the adversarial system requires a
plaintiff to prove its case and that “the gravity of the fact sought to be proved is
relevant to ‘the degree of persuasion of the mind according to the balance of
probabilities’.[25]”[26]
[25] Rejfek v McElroy (1965) 112 CLR 517 at 521.
[26] Whether at common law or pursuant to s 140(2)(c) of the Evidence Act 1995 (NSW): GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857; [2023] HCA 32 at [57].
Further:
“[b]y this approach, the common law, in accepting but one standard of
proof in civil cases (the balance of probabilities), ensures that ‘the
degree of satisfaction for which the civil standard of proof calls may
vary according to the gravity of the fact to be proved’[27].”[28]
[27] Rejfek v McElroy (1965) 112 CLR 517 at 521, citing, amongst other cases, Briginshaw v Briginshaw (1938) 60 CLR 336 at 362.
[28] GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857; [2023] HCA 32 at [57].
Particularly relevant to the current context are the comments of the majority of the High Court as follows:
“[59] Common law courts have developed techniques addressing the problems in civil trials associated with the recollection of events which occurred long in the past. For example, the warning which Longman v The Queen[29] said may be required in a criminal trial involving events in the distant past has a civil law equivalent. Watson v Foxman is frequently cited because of its continuing importance in identifying that ordinary human
[29] (1989) 168 CLR 79.
experience exposes that human memory is ‘fallible for a variety
of reasons, and ordinarily the degree of fallibility increases with
the passage of time’.[30]
[30] (1995) 49 NSWLR 315 at 319.
[60] A court is not bound to accept uncontradicted evidence. Uncontradicted evidence may not be accepted for any number of reasons including its inherent implausibility, its objective unlikelihood given other evidence, or the trier of fact simply not
reaching the state of ‘actual persuasion’ which is required
before a fact may be found[31]. ‘To satisfy an onus of proof on the
[31] Briginshaw v Briginshaw (1938) 60 CLR 336 at 361.
balance of probabilities is not simply a matter of asking whether the evidence supporting that conclusion has greater weight than
any opposing evidence … It is perfectly possible for there to be
a scrap of evidence that favours one contention, and no countervailing evidence, but for the judge to not regard the scrap of evidence as enough to persuade him or her that the contention
is correct.’[32] The evidence must ‘give rise to a reasonable and
definite inference’ to enable a factual finding to be made;
mere conjecture based on ‘conflicting inferences of equal
degrees of probability’ is insufficient[33]. As Dixon CJ said in
Jones v Dunkel[34], the law:
‘does not authorise a court to choose between guesses,
where the possibilities are not unlimited, on the ground that one guess seems more likely than another or the others. The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be
satisfied’.” (emphasis added in bold)
[32] Brown v New South Wales Trustee and Guardian (2012) 10 ASTLR 164 at 176 [51].
[33] Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5.
[34] (1959) 101 CLR 298 at 305.
The defendant, in particular, relies on the passage in bold in respect of the current case.
A consideration of the comments in Watson v Foxman and Longman v The Queen illustrates how trial judges seek to manage the issue of evidence concerning events which occurred years before.
Watson v Foxman concerned civil proceedings for misleading or deceptive conduct alleged to arise from words spoken in a conversation. The issue arose as to the required level of satisfaction for the Court to find that the words were misleading.
McLelland CJ in Equity observed:
“… human memory of what was said in a conversation is fallible for
a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.
Each element of the cause of action must be proved to the reasonable
satisfaction of the court, which means that the court ‘must feel an
actual persuasion of its occurrence or existence’. Such satisfaction is ‘not … attained or established independently of the nature and
consequence of the fact or facts to be proved’ including the
‘seriousness of an allegation made, the inherent likelihood of an
occurrence of a given description, or the gravity of the consequences
flowing from a particular finding’: Helton v Allen (1940) 63 CLR 691
at 712.”[35][35] Watson v Foxman (1995) 49 NSWLR 315 at 319.
In that case, his Honour observed that “serious difficulties of proof” may arise where
a party is seeking to rely on spoken words to found a cause of action where there is
no “reliable contemporaneous record or other satisfactory corroboration”. That was
found to be so in that case and consequently the required level of persuasion was not
met.
Longman v The Queen was a criminal case and included consideration on appeal whether a general direction was required to be given to the jury where there was a long delay in the prosecution of the alleged offending. The appeal was allowed, and a new trial was ordered as a result of the fairness of the trial being impaired as a result of the failure of the trial judge to give a warning to the jury. Factors including the delay in the prosecution of more than 20 years, the nature of the allegations, the age of the complainant at the time of the alleged events and the absence of complaint were significant considerations.[36] In the circumstances, a warning was required by the general law.[37]
[36] Longman v The Queen (1989) 168 CLR 79 at 91.
[37] In contrast to the specific requirement that had been abolished.
McHugh J relevantly observed:
“The fallibility of human recollection and the effect of imagination,
emotion, prejudice and suggestion on the capacity to “remember” is
well documented. The longer the period between an “event” and its
recall, the greater the margin for error. Interference with a person’s ability to “remember” may also arise from talking or reading about or
experiencing other events of a similar nature or from the person’s own
thinking or recalling. Recollection of events which occurred in childhood is particularly susceptible to error and is also subject to the possibility that it may not even be genuine: Hunter, Memory, rev ed (1964), pp 269-70.
No matter how honest the recollection of the complainant in this case, the long period of delay between her formal complaint and the occurrence of the alleged events raised a significant question as to whether her recollection could be acted upon safely. The likelihood of error was increased by the circumstances in which the complainant
said the incidents occurred… Experience derived from forensic
contests, experimental psychology and autobiography demonstrates only too clearly how utterly false the recollections of honest witnesses
can be…”.[38]
[38] At 107-8.
The defendant contends that, consistent with the High Court reasoning in GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore,[39] where there has been a long delay between the alleged occurrence of the event and the trial (particularly such as here where there is no limitation period imposed by statute), the
Court is obliged to subject the plaintiff’s evidence to scrutiny, more so than in the
usual case.
[39] (2023) 97 ALJR 857; [2023] HCA 32.
The defendant refers to the recent decision of Double v Salvation Army (Victoria) Property Trust[40] as an example of the considerations relevant to a claim involving historical abuse. It is submitted that there are a number of similarities to the current claim.
[40] [2023] VSC 452.
O’Meara J considered the principles from the relevant authorities, many of which
have already been referred to in these reasons. His Honour also noted that:
“[74] In addition to the question of the applicable standard of proof, of course, it must be borne in mind that the burden of proof in respect of the matters alleged rests upon the plaintiff. In that regard, there can be cases in which the trier of fact is left in doubt such that the only just conclusion is that the burden of
proof has not been discharged.”
After an in-depth review of the evidence, his Honour concluded:
“[306] As I have indicated, as a matter of …. binding authority, I am required to be satisfied that the plaintiff has proved her case on the balance of probabilities. In that regard –
(a)
I am required to take into account, among other things, the gravity of the matters she alleges; and
(b) I must feel an ‘actual persuasion’ as to the occurrence of those matters before they can be accepted to be
proved.
[307] In the present instance, I have no such feeling of persuasion, and cannot be satisfied of the occurrence of the alleged events of grooming and abuse.
[308] In the circumstances, on the essential issue from which the determination of all other issues in the proceeding must
follow, the plaintiff’s claim must fail.”
As to what is meant by something being “probable”, the defendant refers to the
observations of Mahoney JA in Jones v Sutherland Shire Council.[41] Something is
“probable” where the decision maker has “the appropriate degree of confidence in its
existence or correctness, based on or judged according to reason”.[42] Mahoney JA
observed:
“It is in this sense that ‘probability’ is used in determining whether a
particular proposition of fact should be accepted for the purpose of litigation. It was, in my opinion, to this that Dixon J referred in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361. In referring to
what constituted proof of a fact, his Honour said: ‘… the tribunal must
feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison
of probabilities independently of any belief in its reality.’”
[41] [1979] NSWLR 206 at 227.
[42] At 227-8.
The defendant also points to the comments of McDougall J[43] in Nguyen v Cosmopolitan Homes (NSW) Pty Ltd[44] as relevant, namely:
[43] With McColl and Bell JJA agreeing.
[44] [2008] NSWCA 246.
“[55] The position may be summarised as follows:
(1)
A finding that a fact exists (or existed) requires that the evidence induce, in the mind of the fact-finder, an actual persuasion that the fact does (or at the relevant time did) exist;
(2)
Where on the whole of the evidence such a feeling of actual persuasion is induced, so that the fact-finder finds
that the probabilities of the fact’s existence are greater than the possibilities of its non-existence, the burden of
proof on the balance of probabilities may be satisfied;(3)
Where circumstantial evidence is relied upon, it is not in general necessary that all reasonable hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found; and
(4) A rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of
probabilities, as to the existence of the fact in issue.”
The approaches contended for by the plaintiff and the defendant are in practical terms the same as they both require consideration of the usual jurisprudential techniques. It is necessary to analyse all of the evidence and to consider whether on all of the
evidence the necessary degree of satisfaction is reached in respect of the plaintiff’s
claim raising serious allegations of assault.
The Court is to look at the entirety of the evidence, including:
(a) Considering “contemporary materials, objectively established facts and the apparent logic of events”;[45] and
[45] Fox v Percy (2003) 214 CLR 118 at [31].
(b) Other evidence, including that of the alleged perpetrator.
Further, in the particular circumstances, the analysis is to be undertaken mindful of:
(a) the substantial period of delay between the alleged assault and the trial; and (b) the alleged assault constitutes a serious criminal offence against a child.
The key issues in this proceeding concern the credit and reliability of the plaintiff and other witnesses and ultimately whether the plaintiff has discharged the onus on her of proving, on the balance of probabilities, that the alleged assault occurred.
Issue 1 - whether the alleged assault occurred as alleged or at all
It is necessary to consider the evidence relied upon by the plaintiff and the defendant in relation to the first issue of whether the assault occurred as alleged or at all.
Plaintiff’s case
The plaintiff alleges an “assault and battery”[46] at common law. In Queensland, the
accepted practice is to adopt the definition of assault in s 245 of the Criminal Code Act 1899 (Qld) in a civil action for assault or battery.[47] Accordingly, the criminal definition of assault is relevant but on the civil standard of proof, namely on the balance of probabilities.
[46] The relevant common law factors are intentionally creating in another person an apprehension of imminent harmful or offensive contact, and if the threat is carried out: see Fleming on Torts 11th Ed at [2.70].
[47] Origliasso v Vitale [1952] St R Qd 211; Grehan v Kann [1948] QWN 40; King v Crowe [1942] St R Qd 288.
Relevantly, s 245 of the Criminal Code (Qld) states as follows:
“245 Definition of assault
(1) A person who strikes, touches, or moves, or otherwise applies force of any kind to, the person of another, either directly or indirectly, without the other person’s consent, or with the other person’s consent if the consent is obtained by fraud, or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without the other person’s consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect the person’s purpose, is said to assault that other person, and the act is called an assault. (2) In this section— applies force includes the case of applying heat, light, electrical force, gas, odour, or any other substance or thing whatever if applied in such a degree as to cause injury or personal discomfort.”[48] [48] The issue of consent does not arise on the alleged facts. Further, the defence of provocation under s 269 of the Criminal Code (Qld) may be available but does not arise for consideration in the current circumstances.
The plaintiff’s position is that, if the plaintiff’s evidence is accepted, then an assault
is proven on the balance of probabilities. The issue then becomes, whether the
defendant is liable for the assault.Plaintiff’s evidence
At a high level, the plaintiff’s evidence can be summarised as follows:
(a) On a school day in 1999, the plaintiff obtained permission to leave class to attend the toilet. (b) She left the classroom unaccompanied and entered the toilet. (c) CD followed her into the toilet and assaulted her. (d) The plaintiff did not complain about the assault immediately after the event. (e) The plaintiff felt guilty and ashamed. (f) The plaintiff felt frightened of CD and frightened of what might happen if she did complain. (g) The plaintiff changed after the assault, including cutting her hair short, no longer wearing frilly clothes, withdrawing from friendships, particularly with boys, and she did not go to the same toilets again.
Chronologically, the plaintiff completed primary school in [REDACTED] and moved to [REDACTED] for high school in [REDACTED]. By this time, the plaintiff had put on weight and was socially withdrawn. This made making new friends difficult and she experienced bullying. Ultimately, the plaintiff was home schooled.
The plaintiff also relies on the evidence of the plaintiff’s mother who was concerned
about the plaintiff. The plaintiff’s mother organised for the plaintiff to be seen by a psychologist, Ms Amy Howie, in 2013. Further, the plaintiff’s mother organised the
plaintiff to attend a psychologist, Ms Hayley Quinn, during 2014 and 2015. The plaintiff did not disclose to either of the psychologists any issues relating to the abuse but focused on family related issues.
The plaintiff disclosed the abuse to her mother accidentally in 2017 during the course of an argument. The plaintiff had intended to keep the assault a secret.
The plaintiff’s mother organised for the plaintiff to see a further psychologist, Ms
Daile Martin, to whom the plaintiff “partially” disclosed the abuse.
The plaintiff’s evidence is that the partial disclosure occurred as the plaintiff was
afraid she would be judged and did not feel confident she could disclose completely
to Ms Martin.
It is necessary to consider the plaintiff’s evidence in detail, and also the evidence of
the other witnesses called on behalf of the plaintiff.
The plaintiff was born in [REDACTED] and was 33 years of age at trial. She currently lives with her parents and her sister at the family home.[49]
[49] T1.36.22-31.
The plaintiff gave evidence, including as follows:
(a) In her first few years at school, she loved schoolwork and liked learning. (b) She had friends and played both soccer and handball.[50] (c) She had a Baby Spice doll she liked[51] and also loved “frilly floral dresses”, anything pink and “really girly”.[52] (d) Her hair was really long and she was proud of her hair.[53] [50] T1.41.27-47.
[51] T1.43.6-8.
[52] T1.43.15-18.
[53] T1.43.20-23.
The plaintiff described the circumstances of her alleged sexual assault in oral
evidence.[54] The plaintiff’s written submissions state “it is unnecessary to repeat the
details of the events in these submissions.”[55] Unfortunately, in these reasons it is
necessary to not only repeat the details, but also to engage with the detail as part of the required analysis.[54] T1.48.26 to T1.50.46.
[55] Plaintiff’s closing submissions at [19], page 4.
The plaintiff gave evidence that she was wearing her day dress, socks, and black Mary Jane shoes.[56] She asked permission of her teacher, [REDACTED], to go to the toilet.
The plaintiff recalls [REDACTED] saying “yes” to her request and adding “just be quick”.[57]
[56] T1.46.20-21.
[57] T1.46.23-28.
The plaintiff gave evidence that she left the classroom and went around the front side of the classrooms to head towards the toilet block. To get to the toilet block from the classroom, the plaintiff gave evidence that she had to walk past at least two other classrooms, the art room on the other side of the walkway, and then there was a turn where the building split and there were more classrooms further on. She also had to walk past the garden.
The plaintiff’s evidence was that as she approached the garden and on the approach
to the toilet block, she saw CD coming out of the staff toilet. She said, “good morning” and he said “good morning” back. After that, she went straight into the
toilet block.
The plaintiff’s recollection of the girl’s toilet block (on the side that she went into)
was that there were approximately four cubicles and the first one or two were locked
as a result of other children locking them “for fun”.
The plaintiff gave evidence that other students would lock the doors and then slide out underneath the cubicle doors, leaving them locked. The plaintiff has a particular recollection that one or two of the toilet doors were locked on that day, so she thinks she went into the last cubicle.
The plaintiff’s evidence was she went into the cubicle and closed the door behind her
and locked it.
The plaintiff gave very specific evidence of the lock on the toilet cubicle door being a semi-circle shape with a dent in it and showing whether it was vacant or occupied.
She described them as “kind of dodgy” where they could be pressed in and opened.
Specifically, the plaintiff’s evidence was “you would, like, press them in and sort of,
like, move it across, so it would, like, spin to be either locked or unlocked.”[58]
[58] T1.47.41-49.
The plaintiff reiterated “like, if you were able to push it in the right spot, you could
push it and twist it.”[59]
[59] T1.48.2-3.
In relation to what the lock looked like from inside the toilet cubicle, the plaintiff gave evidence as follows:
“It was like a big clunky box, and it had the metal lock part that would
go through the metal loop on the other side of the door. And it was a
twist - I don’t know how to explain it. It was like a rectangle twist, and as you would move it, the lock would come in and out … sort of like
a slide.”[60]
[60] T1.48.5-10.
Further, the plaintiff indicated that she locked the door as “if you don’t lock them,
they would just, like, fall open.”[61]
[61] T1.48.12-13.
The plaintiff gave evidence that she went into the cubicle, made sure the seat was clean and that there was toilet paper, pulled down her underwear and sat on the toilet.
Further, as she was “finishing up” she heard someone coming into the “actual
room”.[62]
[62] T1.48.26-28.
In relation to specifically what she recalls hearing, the plaintiff’s evidence was:
“we had, like, these little - little tiles on the floor. And, like, you know,
hard plastic wheels from I think it might have been his little trolley thing that had cleaning products on it - I could [hear] it - like, click,
click, click, click, click, click and - over the tiles, …”[63]
[63] T1.48.31-34.
The plaintiff gave evidence that the trolley she was referring to was the trolley that she had seen CD with when he was coming out of the staff toilet/the disabled toilet.
In relation to who she thought it was when she heard the noise, the plaintiff’s evidence
was:
“I wasn’t entirely sure who I thought it might have been. I assumed,
because of the sound of the wheels, it would have been CD, but I didn’t
think anything of it, because, like, he was a staff member. He would
clean the bathrooms. He’d always seemed nice to me in the past.”[64]
[64] T1.48.42-46.
In respect of what happened next, the plaintiff gave evidence that she almost had her underwear pulled back up when the cubicle door opened, and CD pushed his way in.
Further, she heard “rattling” and she said “someone’s in here. Like, I’m in here.”[65]
[65] T1.49.2-3.
The plaintiff gave evidence that:
“I thought he might’ve thought that the - because of all the doors that
would lock, and the kids would slide under, I thought he - maybe he thought it was just another empty stall that had been locked by one of
the other kids.”[66]
[66] T1.49.3-6.
In respect of the opening of the toilet door, the plaintiff’s evidence was that it was “a really tight squeeze” but as she was fairly small it would “tap against [her] knees, but
it could open past [her]”.[67]
[67] T1.49.9-10.
The plaintiff’s evidence of the events from that point was as follows:
(a) When CD came into the stall, he “sort of sat [her] back onto the seat”. (b) She was panicking at this point and said something like “you - you can’t be in here. You can’t look at that.”
(c) CD said something like “it’s all right. I’m an adult. I just need to check something.”
(d)
The plaintiff thought CD “might’ve been talking about the actual stall or something.” She was confused.
(e)
The plaintiff could not figure out why he was in there because he could have waited until she was out.
(f) CD then reached under her dress, and she tried to cover herself at that point. (g)
CD was touching the plaintiff on her vagina. She told him not to. She told him he was hurting her. The plaintiff told him to stop.[68]
(h)
Next, the plaintiff said that CD started getting angry, telling her to be quiet, telling her that no one was allowed to know about what was happening because she should not be letting it happen and she was going to be the one in trouble if anyone found out about it.
[68] The plaintiff originally said she said, “please stop that”, then acknowledged she probably did not say
(i) The plaintiff indicated that she believed CD because he was an adult.
(j) Further, her parents had told her no one was allowed to look at or touch her and she did think that she would get in trouble if anyone else found out.[69] (k) When CD first touched her, he asked if she liked it. She said, “no, you’re hurting me.” His fingers against her were hurting her, his hands were rough, [69] T1.49.28-33.
and he was rough.[70]
[70] T1.49.35-39.
(l) Initially CD had put his fingers against her vagina and eventually put his fingers inside of her. That hurt. Her evidence was that his nails were rough, and his fingers were rough. When asked further about this, the plaintiff’s evidence was “to begin with, one. I think he put a second one inside after. And that’s when it
did really start to hurt.”[71]
[71] T1.49.45-47.
(m) CD kept telling her to be quiet as she told him that it hurt. He asked if she was enjoying it. The plaintiff indicated that she did not. It was painful and scary. (n) CD “took his fingers out” and he started to undo his pants. He pulled down his pants and wanted her to look at his penis, but she did not want to. She knew
she wasn’t allowed to look at other peoples’ “privates” so she looked away as
quickly as she could.[72]
[72] T1.50.4-7.
(o) Next CD was “kind of touching himself a bit before he started rubbing himself against me.” That is, he was “rubbing his penis against [her] vagina”.[73]
[73] T1.50.9-12.
(p) She was really scared at that point. Further, she does not “know how long he did that for”, but after a while, he “actually pushed his … penis into … [her] vagina.”[74]
[74] T1.50.13-15.
(q) The plaintiff’s evidence was that she was terrified and it “really, really hurt”. (r) CD kept telling her that it was her fault. He said words to the effect of “good kids stay in class while class was on. No one can find out about it”, he said “it’s
our secret”.[75]
[75] T1.50.20-22.
(s)
Further, she was told that if she got him in trouble then she would be in trouble too, that her parents would send her to foster care, and no one would ever want
to be friends with a “dirty girl”. That no one could ever love a “dirty kid.”[76]
[76] T1.50.20-24.
(t) She did not “know how long that went on for, but he pulled himself back out of me, and he was still touching himself. He wanted me to touch him as well,
and I didn’t want to, but I did.”[77]
[77] T1.50.26-28.
(u) CD was angry and the plaintiff’s evidence was that she did not want to make him any angrier than he was.[78]
[78] T1.50.28-29.
(v) She touched him and that she did not know how long that went on for. Then eventually, CD pulled his pants up, reminded her not to tell anyone and left.
(w) The plaintiff does not know how long she was out of class for, but CD said to her that if she was asked why she had gone for so long to tell [REDACTED] that she had “bad constipation” and that if she had blood on her underwear, that
she had wiped too hard.[79]
(x) The plaintiff recalled seeing blood on the toilet seat and as she was cleaning herself up there was blood on her vagina and on the toilet paper.[80]
[79] T1.50.39-42.
[80] T1.50.44-46.
The plaintiff’s evidence was that after the assault, the plaintiff went back to “class as
quickly as [she] could.”[81] She said that she saw CD leaving the toilet block but did
not watch where he was going as she did not want to watch.
[81] T1.51.36-40.
The plaintiff’s evidence was also that she did not use the toilets on that side of the
toilet block again. She did use the toilets on the other side of the toilet block, which were closer to [REDACTED] office. The plaintiff would use the toilets on the other
side in an emergency if she could not “hold it”. If she could not use the toilets on the
other side of the toilet block, she just would not use any toilet.[82] As a consequence of this, when the plaintiff got into higher grades, she would have to be sent home from school early sometimes if she was menstruating and she could not use the other toilet.[83]
[82] T1.52.2-8.
[83] T1.52.10-13.
The plaintiff also described an incident when she wet herself at a parent/teacher interview when she was unable to go into the toilets on the other side of the toilet block and she did not know where CD was.[84]
[84] T1.52.15-21.
On occasion, the toilets near [REDACTED] office were padlocked shut during the day.[85]
[85] T1.52.23-26.
Following the events in 1999, the plaintiff’s evidence was that a lot changed over
time. She cut her hair short in what she described as “really gross sort of short, boyish
bob cut”.[86] She described that she did this as she did not want to be looked at, so she
could “just sort of blend into the background” and so that she was as “boring and
boyish” as she could be.[87]
[86] T1.52.28-31.
[87] T1.52.33-34.
Further, soon after the events in 1999, the plaintiff gave evidence that she went through puberty, and it was distressing to her to develop breasts and to get more
shape. She “didn’t want to sort of be seen”.[88] Further, she stopped “hanging out with
a lot of the kids”, stopped playing soccer with the boys altogether, stopped bringing
toys to school and withdrew a lot.[89]
[88] T1.52.36-39.
[89] T1.52.37-41.
Academically, the plaintiff’s evidence was that she still did “pretty okay”. She felt
safe in the classroom because there were other students there and the teacher was there. She liked study and learning. It was outside the classroom where she started
getting “anxious or self-conscious”.[90]
[90] T1.52.44-47.
In respect of her teachers, the plaintiff had female teachers for the balance of her time at the School. She did not have a male teacher until high school.
The plaintiff also described how her dress changed. She stopped wearing cute little frilly socks and black shoes and would wear blue converse sneakers with her dress
instead. Further, she had a pair of men’s board shorts in “fluoro orange”, and she
would wear them under her dress so that they were a bit visible beneath her dress.[91]
[91] T1.53.4-9.
The board shorts had both Velcro and a lace tie at the front, so they were hard to get on and off. She reasoned that if she had trouble getting them on or off, that no one else could get them on and off as they were tight around the waist when they were done up.[92] The plaintiff wore the orange fluoro boardshorts to school under her uniform.
[92] T1.53.11-14.
The plaintiff gave evidence that her mother hated the boardshorts and tried to replace
them with normal bike shorts that could not be seen. But the plaintiff “wanted them to sort of be seen”. She explained that is why she went for the men’s boardshorts,
because “they were that bit longer.”[93]
[93] T1.53.20-23.
The plaintiff did not tell anyone about the assault, neither when she went back to class immediately after, nor in the days that followed.
The plaintiff’s evidence was that when she went back to class she was on autopilot,
and scared but did not want to make a scene as she thought she would get into trouble. She tried to pretend to be as normal as she could when she got back to class and to keep it together and get through the day.[94]
[94] T1.53.25-34.
She was scared of others finding out what happened and CD saying something. She believed that she would be the one to get into trouble as he was a grown up.[95]
[95] T1.53.36-39.
Further, the plaintiff did not tell anybody at home what had happened as she did not want to go to foster care, did not want to be adopted out and did not want to get into trouble for letting someone do what had happened.[96]
[96] T1.53.43-45.
The plaintiff felt, and continues to feel, awful and described how she lives with feeling dirty and worthless and gross. She feels she is not worth people loving her and feels like she did something wrong.[97]
[97] T1.53.47 to T2.54.1.
Specifically, the plaintiff did not tell her parents as she was afraid and ashamed that she let it happen. She did not want them to get mad and did not want to go to foster
care. She did not want to be considered a “dirty kid that let this man do that to [her]”.[98]
[98] T1.54.3-7.
The plaintiff described how at the time of the assault she did not know anything about sexual behaviour or sexual conduct. There was no discussion at the School, and no discussion at home until she was older.
In relation to the fear of going into foster care, she was aware of the experience of
children in foster care, as her neighbours were “foster kids” and her mother helped
look after them for a period of time.
The plaintiff finished primary school at the School and then went onto high school. She went to [REDACTED], starting in year 8. She did not have a good experience at [REDACTED] as it was a new school, and it was much further away from home. She did not interact with other students and was bullied.[99]
[99] T1.54.26-46.
The plaintiff explained in evidence that she was bullied as she was a “strange, quiet,
withdrawn kid, because [she] was chubby at that point”.[100] Further, the plaintiff
[100] T1.54.48-49.
explained that she gained weight through overeating, and she did not want to be
around boys.[109] Further, the plaintiff gave evidence that at high school she had a male physical education (PE) teacher and for the year and a half she was there she only did approximately two PE classes as she did not want to wear the PE uniform of shorts and a t-shirt. She wore her school uniform with a long skirt or the boxer shorts under her uniform, so she did not have to participate.[101]
[101] T1.55.5-10.
[110] The plaintiff said that she did not want her body being looked at and felt uncomfortable wearing the PE uniform.
Whilst she was at high school, during lunchtime she would just sit in the library, read, draw and go on one of the computers.[102]
[102] T1.55.16-18.
The plaintiff said that this just made matters worse as she was seen as a “weird recluse
kid”.[103]
[103] T1.55.21-22.
The bullying at high school included physical bullying and ultimately the plaintiff did not want to go to school. She would say that she had a migraine or had a bad upset stomach so she would not need to go to school. The plaintiff also said that sometimes she got so anxious and worked up that she would physically vomit, and she would cry a lot.[104]
[104] T1.55.30-35.
The plaintiff commenced home schooling approximately halfway through grade 9 and completed grade 10.[105]
[105] T1.55.37-43.
When the plaintiff was approximately in her late teens, the plaintiff gave evidence that her mother suggested that she see a counsellor or a psychologist because her anxiety and depression were pretty bad.[106]
[106] T1.55.47 to T2.56.2.
The plaintiff first saw her GP, Dr Jacovou. The plaintiff discussed with Dr Jacovou being on a mental health plan to see a psychologist. The plaintiff did not discuss with Dr Jacovou what happened in 1999.[107]
[107] T1.56.4-11.
The plaintiff explained that Dr Jacovou had been her GP since she was a baby and part of her was scared that Dr Jacovou would tell her parents or Dr Jacovou would think less of her.
When asked what she told Dr Jacovou, the plaintiff’s evidence was “depression, anxiety, any family issue I could dig up at the time”.[108]
[108] T1.56.17-18.
[119] Dr Jacovou was also treating the plaintiff at the time for a gynaecological issue resulting in pain and heavy menstrual bleeding.[109]
[109] T1.56.20-26.
[120] In 2013, the plaintiff did see a psychologist, Ms Amy Howie. The plaintiff had
discussions with Ms Howie about “having anxiety and depression”.[110]
[110] T1.56.28-31.
[121] The plaintiff did not tell Ms Howie about what happened in 1999. The plaintiff explained that whilst Ms Howie seemed like a nice person, she did not really feel comfortable with her.[111]
[111] T1.56.33-36.
When asked why she did not tell Ms Howie about the events in 1999, the plaintiff indicated that she did not feel comfortable and that she was not ready to talk about it. At the time, there was a lot of shame, embarrassment and she did not know how to put it into words.[112]
[112] T1.56.38-41.
In 2014/2015, the plaintiff saw another psychologist, Ms Hayley Quinn. Again, the
plaintiff had discussions with her about “depression and anxiety”. The plaintiff did
not tell Ms Quinn about the assault in 1999.[113]
[113] T1.56.43-48.
When asked why she did not tell Ms Quinn about the assault, the plaintiff explained
that Ms Quinn was a “lovely human being but she didn’t feel comfortable talking
about it”. Further, it is something that is “really hard still to even talk about”.[114]
[114] T1.57.1-3.
The plaintiff indicated that she told Ms Quinn about “every single argument I ever
had with my parents. Everything was their fault. I remember being mad at them
because I didn’t want to actually go and see her, but at that point my anxiety and my
depression especially was really bad. I was in the throes of self-harming and whatnot.
So they really pushed going and seeing her specifically”.[115]
[115] T1.57.5-10.
At this time, the plaintiff was self-harming by cutting herself. This started when she was approximately 16, but she has not done it for a while.[116]
[116] T1.57.12-18.
The plaintiff gave evidence of having a “complete meltdown” while she was in the
shower. Everything became heavy and she had a series of “back-to-back, fully-blown flashbacks and panic attack”. Further, she broke down in the shower, felt vulnerable
and exposed and dirty. The plaintiff explained that it got to a point that she could not
“carry this by [herself] anymore”.[117]
[117] T1.57.33-39.
The plaintiff gave evidence that she was washing her hair when it happened, and it just hit her. She panicked and got out of the shower as fast as she could.[118]
[118] T1.57.41-49.
Following this incident, she went and locked herself away.[119]
[119] T1.58.1-2.
Around this time, the plaintiff gave evidence that she was “getting under their skin”
and being aggressive and irritable. She wanted her family to just leave her alone.[120]
[120] T1.58.4-7.
The plaintiff had an argument with her mother. She remembers planning her mum’s birthday with her sister and things “unravelled”. She started arguing with them and
snapped at her mother.
When her mother demanded to know what was wrong with her and why she was acting like this, the plaintiff gave evidence that she reached breaking point and snapped. She told her mother what had happened to her very vaguely. She now cannot remember the exact words.[121]
[121] T1.58.9-17.
The plaintiff gave evidence that her mother reacted by being quiet and she thought her mother did not know how to respond. The plaintiff felt that her mother was mad
or disappointed but that her mother did seem concerned. The plaintiff’s mother
wanted to help and suggested an appointment with Dr Jacovou to see another
psychologist.[122][122] T1.58.19-23.
The plaintiff gave evidence that her mother wanted her to go to the police at first. However, the plaintiff was, and still is, scared to. Further, the plaintiff explained that
she never wanted to tell anybody and wanted to “take it to her grave.” However, it
just came out.[123]
[123] T1.58.25-30.
The plaintiff did go to Dr Jacovou to get some assistance and she was referred to Ms Daile Martin, psychologist. The plaintiff did discuss her mental health with Ms Martin.
The plaintiff’s evidence was that she “partially” told Ms Martin about the assault in
1999. The plaintiff indicated that she went to the appointment with the full intention
of telling Ms Martin everything but choked. She could not bring herself to “spit it all
out”.[124][124] T1.58.42-45.
[136] The plaintiff’s evidence was that she had seen Ms Martin’s notes about “partial
memories” and did not agree with this. The plaintiff explained that she had full
memories and that it was a false statement to describe them as partial memories.[125]
[125] T1.59.2-5.
The plaintiff further explained that when she spoke with Ms Martin she was trying to
“feel it out” and whether she could tell her everything. She explained that it was hard
to talk about it still and scary to talk about. This is particularly so when you are
“locked in a room by yourself with someone”.[126]
[126] T1.59.9-12.
The first occasion when the plaintiff explained what had happened in 1999 was when she was yelling at her mum. Then, it was recorded on paper when she saw Ms Martin.[127]
[127] T1.59.16-17.
The plaintiff gave evidence as to her employment after school. As quantum has been settled, this is no longer relevant to that issue. However, it is relevant to consider in respect of the wider issues of consistency of evidence.
The plaintiff worked at [REDACTED] after she left school, particularly as a retail assistant. She did layby work, but also some other work including at the cosmetic counter and at the front registers. She was employed as casual and initially got consistent work. The plaintiff worked at the [REDACTED] store and enjoyed the layby work. This involved her working by herself with infrequent interaction with other staff. She did have to deal with customers.
Interacting with male colleagues or male customers made her anxious.[128]
[128] T1.59.19-49.
The plaintiff gave evidence of an incident in [REDACTED] when she was working at the registers at the front of the store. A customer came through that had a nosebleed and sneezed blood everywhere. She panicked as she had open cuts on her hands and
her first thought was “panic mode”.[129]
[129] T1.60.6-12.
Her supervisor said to brush it off with a tissue and keep working and she became anxious. After that, she moved mostly to the layby area and perhaps one shift on the cosmetics counter.[130]
[130] T1.60.14-27.
The plaintiff also gave evidence about another incident in approximately Christmas [REDACTED] at the [REDACTED].
On that day, the plaintiff was working at the cosmetics counter, and it was very busy. It was close to Christmas and customers had been sent down to her register from the front registers. She was in the middle of serving a customer when someone knocked a snow globe and it smashed on the floor, with water on the floor as a result.[131]
[131] T1.60.29-39.
The plaintiff gave evidence that there was a direction to go immediately and clean up, but also a direction if you are signed into your register and you were in the middle of serving someone, you were not allowed to leave your register. As she was there by
herself at the time, she made what she describes as a “bad judgment call” and tried to
quickly finish serving. An older women slipped in the water and broke her leg.[132]
[132] T1.60.41-48.
The plaintiff did not see the incident as it was on the other side of a display, but she did tend to the older woman immediately after. This was very stressful, and the plaintiff felt terrible as she was not sure what she was supposed to do.[133]
[133] T1.61.1-7.
After that incident she was “super anxious” about going back to [REDACTED] and
took time off to get her anxiety under control. She spoke to one of her managers about
taking that time off and the manager was okay with it.[149] However, when she got back to work, different employees came up to her and indicated that they had heard that she was having an emotional breakdown in the carpark. This devastated the plaintiff. She had difficulty going to work after that.[134]
[134] T1.61.10-21.
Following a period of trying different duties, including cleaning up after the store was closed, the plaintiff ceased working at [REDACTED] in around 2015. Eventually she was let go from [REDACTED].[135]
[135] T1.61.23-33.
The plaintiff had undertaken a course in nail art and also a Certificate III in Education Support through TAFE.
The plaintiff gave evidence that she wanted to be a teachers’ aide. When she was
younger, she wanted to be a primary school teacher, and when her aunt started doing
a teachers’ aid course, the plaintiff’s mother encouraged her to do it with her aunt.[136]
[136] T1.61.35-49.
The plaintiff completed the teachers’ aide course and then was required to complete
100 hours of vocational placement. She undertook the vocational placement at [REDACTED]. It was a little school and she loved it. All the teachers were lovely women.[137]
[137] T1.62.2-12.
After qualifying, the plaintiff obtained casual teacher aide work at [REDACTED] State School in about 2019. She enjoyed the work there in two separate prep classrooms with two women.[138]
[138] T1.62.15-22.
This was paid work, but she did not continue with that work. The plaintiff gave evidence that she did not continue with that work because close to the end of term she
crossed paths with the groundskeeper, and he greeted her. She “just panicked, and
after that term finished, [she] didn’t go back”.[139][139] T1.62.26-32.
She has not worked since that time.[140]
[140] T1.62.34.
In 2020, she enrolled in a Bachelor of Arts but did not continue with that. After the COVID restrictions, classes were returning to campus, and she did not feel as comfortable with her classes.[141]
[141] T1.62.39-43.
For the purposes of the proceeding, the plaintiff was examined by two psychiatrists, Dr Joseph Mathew and Dr Benjamin Duke. The plaintiff visited each psychiatrist once for the purposes of the reports prepared by Dr Mathew and Dr Duke.
The plaintiff gave evidence that she felt extremely uncomfortable with Dr Mathew. However, Dr Duke was not as intimidating, but she still felt uncomfortable being locked in a room with him. The plaintiff gave evidence that she felt she probably clammed up a lot in respect of both psychiatrists.[142]
[142] T1.67.25-46.
[160] The plaintiff also gave evidence on two matters of particular relevance to the
plaintiff’s case:
(a)
The plaintiff recalls being given instruction from her teachers to treat staff members with respect and also, if you are asked to do something, to do it.[143] The plaintiff gave evidence that she saw CD most days and would greet him
[143] T1.68.12-21.
by saying “good morning” or “good afternoon”.[144]
[144] T1.44.39-43.
(b) If students picked up rubbish through lunchtime and showed CD, he would give the students a Zooper Dooper, being an ice block. The plaintiff did not want to pick up rubbish as she was a bit of a “germophobe”. However, a few
of her friends used to pick up rubbish and get an ice block.[145]
[145] T1.45.1-30.
In relation to CD, the plaintiff gave evidence that he used to wear shorts, work boots and t-shirts with collars.[146]
[146] T1.45.32-36.
The plaintiff submits that the Court should find that the plaintiff was a reliable and credible witness, and the Court should accept her evidence that the assault occurred as described by the plaintiff.
Other witnesses
In support of this conclusion, the plaintiff also relies on evidence from other witnesses
called as part of the plaintiff’s case.
It is submitted that the evidence given by the plaintiff’s sister, mother, father and
brother all broadly support the allegations and history described by the plaintiff.
In respect of the plaintiff’s sister, [REDACTED], she also attended the School for a
period while the plaintiff was there.[147]
[147] T3.30.3-4.
[166] The plaintiff’s sister recalled the plaintiff as a child being “very girly, fun and
outgoing”. She also recalls playing sports with the plaintiff. She also recalls having a
Spice Girls doll that they would play with.[148]
[148] T3.32.38-46.
The plaintiff’s sister also gave evidence that the plaintiff changed completely “out of
nowhere”. This included the plaintiff dressing more “boyish”, cutting her hair, and
gaining weight.[149]
[149] T3.32.48 to T3.33.9.
As to the plaintiff currently, the plaintiff’s sister gave evidence that the plaintiff hides
in her room most the time and sticks to herself as much as she can.[150]
[150] T3.34.8-10.
The plaintiff’s sister gave evidence that she recalled being offered a Zooper Dooper
from CD on one occasion in exchange for picking up rubbish.[151]
[151] T3.35.47 to T3.36.44.
The plaintiff’s sister also gave evidence that if she received instruction or direction
from a teacher or a staff member, she would be required to follow it.[152]
[152] T3.37.27-34.
[REDACTED], the plaintiff’s mother, also gave evidence. The plaintiff’s mother gave evidence that the plaintiff as a child was carefree, happy, skippy and “dancey”,
a beautiful little girl.[153]
[153] T3.53.32-36.
The plaintiff’s mother also gave evidence that she noticed a change in the plaintiff.
The changes included the plaintiff cutting her hair, which had previously been down to her waist, to neck length. Also, the plaintiff started wearing shorts underneath her uniforms and was withdrawn. In effect, the plaintiff was the total opposite to what she had been previously.[154]
[154] T3.54.32-38.
[173] In relation to the assault, the plaintiff’s mother gave evidence that the plaintiff
disclosed the assault to her when the plaintiff was 16 or 17. In the lead-up to this
disclosure, the plaintiff’s mother had said to the plaintiff that she could not go on like
this. The plaintiff told her mother that something had happened to her, that she had
been sexually assaulted. The plaintiff’s mother gave evidence that she wanted the
plaintiff to go to the police.[155]
[155] T3.59.32 to T3.60.45.
The plaintiff’s mother recommended that the plaintiff undertake further treatment and
Dr Jacovou also encouraged the plaintiff to have more counselling.[156]
[156] T3.60.44 to T3.61.5.
[REDACTED], the plaintiff’s father, gave evidence that for years when he worked
as a tradie, he drank alcohol and would get drunk.[157] He also conceded that he could be loud and obnoxious after drinking.[158] Further, he accepted that he might have punched a hole in the wall here and there, but he said he never laid a hand on his kids.[159]
[157] T3.106.23-33.
[158] T3.107.2.
[159] T3.107.29-34.
The plaintiff’s father gave evidence that, over the years, he had had arguments with
his wife, as they had been together for a long time.[160]
[160] T3.107.47.
The plaintiff’s father also gave evidence that the plaintiff was happy-go-lucky as a
young child.[161] Further, his evidence was he did notice a change in the plaintiff and
that she became very reclusive and kept to herself.[162][161] T3.109.11-12.
[162] T3.109.19-32.
[178] The plaintiff’s brother, [REDACTED], also gave evidence that he had a great
relationship with his father but had noticed arguments between his mother and father
a couple of times a year.[163][163] T4.46.22 to T4.47.20.
The plaintiff’s brother recalled the plaintiff at preschool age being obsessed with Care
Bears, including singing and dancing in the loungeroom with the Care Bears’ video.
He also recalled the plaintiff wearing “little girl’s clothes”.[164][164] T4.48.25-38.
The plaintiff’s brother also gave evidence that he noticed a change in the plaintiff in
that she was not the same and was angry or sad.[165]
[165] T4.48.44 to T4.49.2.
Psychologists and Psychiatrists
The evidence and the submissions on behalf of the plaintiff also deal with the issue of failure to disclose the assault to treating psychologists and, the failure to disclose relevant family history to the psychiatrists who prepared reports for the proceeding.
In respect of the failure to disclose the circumstances of the assault to Ms Howie and Ms Quinn, and the failure to disclose fully to Ms Martin, the plaintiff submits that this is explained in the evidence. That is:
(a) The plaintiff did not disclose the assault to Ms Howie because she did not feel comfortable and was not ready to talk.[166] (b) The plaintiff did not disclose the assault to Ms Quinn as she did not feel comfortable talking about it and it is still hard to talk about.[167] (c) The plaintiff failed to provide complete disclosure to Ms Martin as she was trying to feel out whether she could tell her everything. The plaintiff also gave evidence that it was scary to talk about and it was really hard.[168] Further, she had a complete memory of the events at the time, but she was not sufficiently confident in her relationship with Ms Martin to make full disclosure. [166] T1.56.38-41.
[167] T1.57.1-3.
[168] T1.59.4-12.
The plaintiff also submits that the evidence of Dr Duke supports this position in that it is not uncommon for psychiatrists to observe that survivors of sexual abuse do not always disclose their abuse at an earlier time for the reasons similar to those put forward by the plaintiff in evidence.[169]
[169] T6.23.21-37.
Ultimately, the plaintiff contends that the failures to disclose to Ms Howie and Ms Quinn, and the partial disclosure to Ms Martin, should not be regarded as forming the basis for a finding that the plaintiff is an unreliable historian.
The plaintiff’s submissions also address matters that arise for consideration in light
of the plaintiff’s failure to disclose to Dr Mathew and Dr Duke. This is in answer to
a submission by the defendant that the failure to disclose the extent of her family problems and historical bullying to the psychiatrists supports the plaintiff being unreliable as a historian or deliberately dishonest.
[186] It is submitted that the plaintiff may not have disclosed the full details of her
“dysfunctional” family history in part due to her difficulty engaging with males.
The difficulties the plaintiff had in interacting with the psychiatrists included her raising these difficulties with Dr Mathew at the time of her interview.[170]
[170] Exhibit 1, tab 4, page 38.
Further, the plaintiff submits that the failure to disclose the full history of the family’s
dysfunction to Dr Mathew needs to be considered in light of the broader disclosure to Dr Duke, where the plaintiff did report her mother had a history of anxiety, her father had a past history of alcohol abuse, one of her brothers had a history of alcohol abuse and her other brother had a past history of illicit drug use.[171]
[171] Report of Dr Duke, 29 October 2019, Exhibit 1, tab 1, page 5.
It is submitted that if the plaintiff was deliberately withholding information from the psychiatrist, it would be inconsistent to withhold more information from Dr Mathew than Dr Duke where she had already disclosed a broader history of family dysfunction.
The plaintiff also submits that the evidence of other members of the plaintiff’s family
suggests that the complaints made to Ms Howie, Ms Quinn and Ms Martin were likely to be exaggerations of her circumstances. That is, the plaintiff found it easier to talk
about “exaggerated” problems at home being the source of her distress rather than
taking about the real cause of that distress.
The plaintiff’s submissions also engage with the evidence of CD in respect of the allegations made by the plaintiff. The plaintiff’s submissions acknowledge that the
evidence of CD was supported in part by the evidence of [REDACTED], [REDACTED], [REDACTED], [REDACTED], [REDACTED] and [REDACTED].
[192] The plaintiff’s submissions address a few particular aspects of CD’s evidence,
including:
(a) CD was employed as a cleaner and “never ever” undertook cleaning duties. (b) The locks on the toilet doors and whether they could be opened from the outside. (c) CD did not hand out Zooper Doopers to students as a reward for collecting rubbish.
The plaintiff submits that despite the emphatic statement that he never undertook cleaning duties, CD did admit he may have undertaken cleaning duties from time to time, particularly if [REDACTED] was away.[172]
[172] T5.42.25-49; T5.43.18-25.
[194] The plaintiff accepts that CD’s primary role was as groundsman. However, it is
submitted he may have performed some occasional cleaning duties and, also
performed maintenance from time to time.[173][173] T6.81.8-39 per [REDACTED].
The plaintiff also relies on CD being regularly in the vicinity of the toilet block where the alleged event occurred as the shed from which he conducted his groundsman activities was in the same building.[174]
[174] T7.6.28-38 per [REDACTED].
In respect of the locks on the toilet cubicle doors, the plaintiff notes:
(a) The evidence of CD that the toilet doors could only be opened by organising a small child to slide under the door and unlock the door, unscrewing the lock or breaking the door with a crowbar or other instrument. (b) Other defence witnesses gave evidence that they were unaware that the locks could be opened from the outside and did not see any person do so. (c) Later in cross-examination, CD conceded that the third option, breaking the door open, had never been used. [197] When asked about whether he observed a teacher using a key to gain sufficient
traction to shift the lock, CD answered, “I don’t think it’d be very hard to do”.[175]
[175] T5.53.11. See further discussion of this evidence at [208] to [211] below.
In relation to the Zooper Doopers, CD acknowledged that this would be an activity that might be disapproved of by the principal.
factually there is some dispute as to CD’s specific role. CD undertook work as a
groundsman, that is uncontentious. The plaintiff alleges he was also a cleaner: this
is denied by the defendant and by CD in his evidence at the trial.
The scope of CD’s employment is relevant for determining what is in the “course” of
his employment.
The plaintiff contends that the work that was to be undertaken by CD included, from
time to time, work in the children’s toilets. Further, the plaintiff contends there was
no express written regulation of those duties and consequently the informal
restrictions referred to in evidence could be “bypassed”.
The plaintiff also submits that the factors of “authority, power, trust and control” were
present as follows:
(a)
Students were instructed to treat CD and other staff with respect and to follow instructions, including ancillary staff.[259]
(b)
CD had regular interaction with children at the School in an informal way, including children greeting CD as he walked around the pathways.[260]
(c) CD had access to the children’s toilets, including entering the toilets from time [259] Plaintiff at T1.68.12-21 and [REDACTED] at T6.61.47 to T6.62.16.
[260] CD admitted this at T5.59.4-8.
to time following a staff member investigating the toilets were empty and the
staff member standing outside.[261]
[261] CD’s evidence at T5.19.37-49.
(d) CD was regularly in the vicinity of the children’s toilet block.[262] (e) It was not unusual to see CD in and around the toilets and entering the toilets while the plaintiff was in there.[263] (f) CD had authority, power, trust and control over the plaintiff. [262] [REDACTED] at T7.6.28-38.
[263] Plaintiff’s closing submissions at [83](e), page 16. This is a contentious summary of the evidence.
It is in these circumstances that the plaintiff contends that the performance of CD’s role gave him the “occasion” for the wrongful act and CD took advantage of his
position with respect to the plaintiff.
The plaintiff’s position is that this is sufficient to conclude that the wrongful act was
committed in the course of, or scope of, employment and the defendant is thereby
vicariously liable for CD’s wrongful act.
If the assault is found to have occurred, the defendant contends that:
(a)
The sexual assault was not in the course of the employment of CD as groundsman or at all.
(b) The plaintiff would need to demonstrate that the defendant placed CD in a “position of … intimacy” with the plaintiff in order for the criminal act to be
the subject of vicarious liability.[264]
[264] Prince Alfred College Inc v ADC (2016) 258 CLR 134 at 160 [84].
(c) The evidence does not satisfy the test. (d) CD undertook groundskeeping and property management, including some maintenance, for the School. (e) The extent of CD’s contact with students, of which the defendant knew or ought to have known, was during morning tea and lunch breaks when CD was walking in the vicinity of students. This was the extent of his interaction and proximity with students at the School, including the plaintiff.
(f) CD was not a boarding master, class teacher, teachers’ aide, principal, sub- principal, sports teacher, school counsellor or similar, which have the
hallmarks of prospective intimacy with a student/child.(g)
An opportunistic entering of the toilets resulting in an assault would not be an act in the course of employment. Further, such circumstances would not entail the requisite intimacy required by the authorities.
[344] There is evidence that CD’s role was documented in the early stages of his
employment as a cleaner with a toilet allowance for the purposes of the structure of his pay.[265] The consistent evidence, apart from the evidence of the plaintiff and the
[265] Exhibit 1, tab 30, page 656.
plaintiff’s sister, is that CD did not fulfil the role of cleaner.
CD did accept he did some maintenance work and also emptied bins when necessary, but did not use a mop and bucket.[266]
[266] T5.24.30-42; T5.28.26-38; T5.43.18-25.
Given my finding in respect of the evidence in respect of Issue 1, I find that CD’s role
was as a groundsman, and he did not fulfil general cleaning duties.
Further, I find that the course of CD’s employment did not place him in a position of
intimacy with students, and in particular the plaintiff.
The course of CD’s employment may have resulted in some interaction with students,
but this was not at the level akin to a boarding master, class teacher, teachers’ aide,
principal, sub-principal, sports teacher or school counsellor.
Whilst CD was a member of staff and an adult at the School, he did not have in the
course of his employment any particular “authority, power, trust, control and the
ability to achieve intimacy”.[350] Considering whether CD had “authority, power, trust, control and the ability to achieve intimacy” in the context of all of the evidence, there is no basis to conclude
that the plaintiff was placed at peculiar or increased risk of assault.
The evidence of the plaintiff and her sister in relation to the Zooper Dooper ice blocks, even if it is accepted, does not place CD in the necessary position of intimacy. The evidence about students greeting CD, and CD greeting them in response, also does not place CD in the necessary position of intimacy or that he had the necessary
“authority, power, trust [or] control”.
While CD’s “shed” may have been proximate to the toilet block, that also does not
give rise to the necessary position of intimacy. At best it could possibly provide the
“opportunity” but not the “occasion”, as discussed in the authorities.
Accordingly, if the alleged assault is found to have occurred, the evidence does not establish that CD was acting in the course of his employment and was placed in a
position of “authority, power and trust … such that he was able to achieve a
substantial degree of intimacy” with the plaintiff.
Consequently, if the alleged assault is found to have occurred, the defendant would not be vicariously liable for the alleged assault.
Issue 4 - the nature and extent of any duty of care owed by the defendant to the plaintiff
Despite the conclusion reached in respect of Issue 1, it is still necessary to consider Issue 4 and make findings in case I am wrong and the matter proceeds to an appeal.
[356] The plaintiff contends that the defendant is further or alternatively liable for negligence on the basis of a breach of a direct duty of care owed by the defendant to the plaintiff as a student of the School operated by the defendant.
It is not contentious that:
(a) the defendant owed the plaintiff a duty to exercise reasonable care for the safety and welfare of the plaintiff and other students at the School from foreseeable risk of injury.[267] (b) the duty of care is a non-delegable duty of care.[268] (c) the Civil Liability Act 2002 (Qld) does not apply to the plaintiff’s claim. [267] FASOC at [8] and Amended Defence at [51].
[268] FASOC at [9] and Amended Defence at [51] and [52]. However, the defendant goes on to contend that the duty does not extend to a duty to prevent intentional or criminal activities.
The defendant accepts that a duty of care was owed by the defendant, being a non- delegable obligation to exercise reasonable care for the safety of the plaintiff as a student, in respect of the foreseeable risk of her suffering psychiatric injury from assault on the School campus.
[359] Accordingly, if the alleged assault is found to have occurred, it is necessary to consider whether in the circumstances the defendant breached the duty to exercise reasonable care for the safety and welfare of the plaintiff and other students at the School from foreseeable risk of injury.
Issue 5 - whether the defendant had breached any duty of care
Despite the conclusion reached in respect of Issue 1, it is still necessary to consider Issue 5 and make findings in case I am wrong and the matter proceeds to an appeal.
The plaintiff contends that:
(a) The common law test for breach of a duty of reasonable care is that as summarised by Mason J in Wyong Shire Council v Shirt.[269] (b) It was reasonably foreseeable that the plaintiff may suffer physical harm or sexual abuse by persons within the employment of the defendant as: [269] (1980) 146 CLR 40 at [47].
(i) The plaintiff was a child of primary school age and vulnerable by reason of her age.
(ii) The defendant knew that there were sexual predators who were employed by it, working at schools operated by it.
(iii) If the plaintiff was left unsupervised or unaccompanied during the course of a school day, she was vulnerable to being physically or sexually abused by the defendant.
(c) The defendant was in breach of its duty of care to the plaintiff by:
(i) Permitting the plaintiff to go to the toilets on her own and unaccompanied during the course of class time in an ordinary school day. (ii) Failing to prohibit students from going to the toilet or walking about the School unaccompanied during the course of the School day while classes were being conducted. (iii) Failing to give instructions to teachers employed by the defendant that students were not to leave class to attend the toilet or to otherwise walk about the School unless they were accompanied by another student or an adult. (iv) Failing to undertake an appropriate risk assessment to determine the risks associated with permitting students to walk about the School during class time unsupervised and unaccompanied. (v) Failing to create, implement and enforce written policies relating to the circumstances in which a child could leave the classroom and to publish those instructions to both students and teachers to ensure that students and teachers understood the circumstances in which a child could leave a classroom during class time unaccompanied and unsupervised.
Further, the plaintiff submits that:
(a)
A reasonable response to the risk was to only allow a child to leave the classroom with another child or teacher. The expense, difficulty and inconvenience of this response was minimal.
(b) The failure to undertake a risk assessment also breached the defendant’s duty of care. No formal assessment of risk or written policy was considered or put
in place, despite changing circumstances in other schools.
If the assault is found to have occurred, the defendant contends that:
(a)
A duty of care was owed to the plaintiff as a student of the School, and the duty was a non-delegable obligation to exercise reasonable care for the safety of the plaintiff as a student, in respect of the foreseeable risk of her suffering psychiatric injury from assault on the School campus.
(b)
There is an absence of, or at the highest a paucity of, evidence of breach of the duty by the defendant, by its School staff failing to act in a manner in which a reasonable person in their position would do.
(c)
No expert evidence was called by the plaintiff of the practices a reasonable person would have adopted.
(d) The plaintiff’s pleaded assertion that there had been “paedophiles” working in schools operated by the defendant was admitted. However, the plaintiff did not
adduce any evidence to take the issue further.
(e)
There is no basis to conclude that the defendant was negligent on the basis there were paedophiles, particularly where there was no suggestion that they were known to the defendant at the time.
(f)
At most there is support for the need to protect children from the risk of abuse by staff, which was recognised in the policies adopted by the defendant, which are in evidence.
(g) The plaintiff’s case appears to be that at the School at least Grade 3 students ought not to have been permitted to go to the toilet without being accompanied
by another child. However,
(i)
There is no independent evidence of such practice being in place or that it was reasonable for it to be adopted.
(ii)
There is evidence that there was not such a practice at the time and it was not a common practice in the approximately 24 years since the alleged assault.[270]
[270] [REDACTED] T6.42.31 to T6.43.11; [REDACTED] T6.83.41-42; [REDACTED] T7.42.19-24.
In the Exhibit 1 bundle of documents[271] there are a number of policies adopted by the defendant. These were not challenged and there was no evidence that these were unreasonable or inappropriate. This also needs to be considered in the context that the alleged assault, if it is found to have occurred, occurred in 1999. It is not appropriate to consider the policies with the mindset of current thinking or requirements.
[271] Exhibit 1, tabs 37-39, pages 784-1338.
The policies in place were directed at the general risk of sexual abuse of children by staff. There is no evidence to find that there was any known or particular risk of paedophiles as contended by the plaintiff.
In respect of whether a Grade 3 student ought not to have been permitted to go to the toilet without being accompanied by another child breached the duty of care, again, there is not much evidence in relation to this.
The plaintiff questioned some of the defendant’s witnesses in cross-examination but
did not lead any positive evidence to establish that requiring a Grade 3 student[272] to be accompanied by another student when going to the toilet from class was a practice at the relevant time or that it was reasonable.
[272] At least.
The evidence of [REDACTED], [REDACTED] and [REDACTED], which I have accepted, was that there was no such practice in 1999.
[369] The evidence of [REDACTED] was that the plaintiff had been in her class in [REDACTED].[273] In respect of her Grade 3 students requesting to go to the toilet during class time, [REDACTED] gave evidence that her approach in 1999 was:
[273] T6.34.15-17.
(a) To consider whether the request was from a student trying to get out of work. (b)
If the student genuinely needed to go to the toilet, to allow the students to go to the toilet but to monitor the time of how long they had been gone.[274] Usually this would only be about three to five minutes.[275]
(c) Sometimes if two students needed to go they may go together, but sometimes [274] T6.38.42-45.
[275] T6.38.47-48.
it was just one “so long as they were quick and back.”[276]
[276] T6.42.31-34.
[REDACTED] acknowledged that “now it is recommended to send them in pairs”[277]
[277] T6.42.37.
and also that “each school might have its separate policy”.[278] In her experience, it
[278] T6.43.13-14.
has only been the last few years that students have been sent in pairs.[279]
[279] T6.43.16-18.
Given that the class was a [REDACTED], [REDACTED] also gave evidence under cross-examination that in 1999 at the School she would consider the age of the student in deciding how to deal with the request of the student to go to the toilet. For example, [REDACTED].[280]
[280] T6.47.40-42.
But also, in relation to Grade 3 students, she would have to “pick and choose” who
would “not be silly” while they were allowed out of the classroom.[281] That is, she
[281] T6.47.45-48.
would make a decision on a case-by-case basis, particularly in a [REDACTED],
including whether she would allow a student to go to the toilet on their own.[282][282] T6.48.1-4.
The plaintiff refers to a failure to undertake a risk assessment. While there is no evidence that a formal written risk assessment was undertaken by the defendant, the evidence of [REDACTED] was that she in effect did a form of risk assessment in deciding whether to allow a student, including in particular a Grade 3 student, to go to the toilet alone during class time.
If the alleged assault is found to have occurred, considering all of the evidence, the plaintiff has not established on the balance of probabilities:
(a) that the defendant breached the non-delegable duty of care; and (b) that the defendant failed to exercise reasonable care for the safety of the plaintiff as a student, in respect of the foreseeable risk of her suffering psychiatric injury from assault on the School grounds. Orders
In light of the conclusion reached in respect of Issue 1, the plaintiff’s claim must fail.
Accordingly, the appropriate orders are:
1. The plaintiff’s claim is dismissed. 2. The parties be heard further in relation to costs. 3.
The parties are provided with a confidential not to be published version of the reasons and are to agree a Schedule identifying any further information to be redacted in a version of the reasons to be published, to be emailed to the Associate to Williams J by 13 June 2024.
Annexure A
Extracts of cross-examination of plaintiff regarding the alleged assault:
(a) T3.10.1-48 (emphasis added): Thank you. And, apparently, he seemed to have - sorry, I withdraw that. Were you conscious of [CD] being outside the door of the toilet before he opened it?---Yeah. You could hear his boots on the tiles.
I beg your pardon?---You could hear his boots as he walked.
All right. And did you see his boots under the - through the gap under
the toilet door before he entered?---I don’t recall.
In any event, it was a short time?---It was a short time.
Thank you. Now, was [CD], to your recollection, quite a tall, well- built man?---He was taller, like, I thought he was tall at the time being - - -
Sure - - -?---a kid so I took him as being tall.
He wasn’t a small man by any means, was he?---Back then I didn’t
think so. No.
No. Thinking back, he wasn’t a man small in stature, as it were?---No.
Do you agree with that?---Yes.
You’re saying yes?---Yes. Sorry.
Thank you. The cubicles, they’re children’s cubicles, are they?---They
were - they weren’t like the preschool toilets, where they were really,
like, low. They were normal-sized toilets.
And was the cubicle the same size or smaller than the cubicles that you might see in public toilets or something like that?---They were about the same size.
Okay?---They were just standard.
They were slightly smaller, weren’t they?---They were about standard.
I thought that they were standard.
After [CD], you say, came into your cubicle, did he leave the door
open, or did he shut it?---I don’t think he could get the door closed.
All right. Did he leave the door open, or did he shut it?---It was
open.
All right. So your best recollection is it was left open by [CD]; is
that correct?---Yes.
So that being the case, then at any time, had anyone else entered
the girls’ toilets, they would have readily seen [CD] standing in or
about the doorway or just inside the doorway of your open
cubicle; isn’t that so?---If I was lucky enough for that to happen,
yes, they would have.
(b) T3.11.26-49 (emphasis added): It must have been very cramped in the cubicle, as the assault
proceeded?---It was. That’s - I couldn’t get out past him. That’s - - -
Did you remain seated at all times during the assault?---Not the whole time. He sat me back down, but there was times when I would try and
get up, so I wasn’t a consistent seated - - -
When the various - sorry, during - I’ll start again. I withdraw that. During all aspects of the assault about which you’re giving evidence
continued, were you seated?---There were periods where I was seated.
Well, were there points in time during the assault when you weren’t
seated?---There were times when I tried to get up. Yes.
So was it only times when you tried to get up that you weren’t seated?-
--He was a big man. I was scared of - - -
Would you - - -?---- - - him, so I would - - -
Would you please focus on my questions. Were the only times that
you weren’t seated during the assault that he perpetrated when - was
when you tried to get up?---Yes.
Do you remember how many times you tried to get up?---No.
(c) T3.12.1-49 (emphasis added): When you tried to get up, do you say that he pushed you back down?-
--Yes.So is it the case that as soon as you tried to get up at any point, he would push you back down immediately?---Yes.
Is it correct then that for almost the entirety of the assault which ensued that you were seated on the toilet seat?---The majority, yes. Well, almost the entirety?---I just said yes, the majority.
You’ve given evidence of the various sexual acts that occurred,
haven’t you?---Yes.
Right. And one of those sexual acts was you say that he - and I’m
sorry if I distress you - he placed his penis inside of you; is that
correct?---Yes.So were you seated on the toilet seat when that sexual act occurred?---Yes.
That must have been very physically difficult, as a physical act, to occur, I suggest to you?---It was very cramped. I would assume that the whole thing would have been hard.
The whole thing would have been a - - -?---Would have been difficult. It was a small room - - -
Right?--- - - - to begin with as well. So - - -
Well, how was he - I’m sorry to ask you about these things, but it’s
your allegation that I have to deal with. Do you understand that?---
Yeah.All right. We’ll get through it. How did he physically go about placing
his penis into your vagina, with you seated on the seat?---Yeah. I’m sorry. There’s - I don’t want to even have to ask this, but how do you
mean?
Well, it - you are seated. I’ll withdraw and start again briefly. You
have told her Honour as I understand it that when the event occurred whereby [CD] placed his penis into your vagina, that you were seated on the seat?---Yeah.
Is that correct or incorrect?---No, that was - yes.
Is that correct?---Yes.
Thank you. And in order for him to undertake such an act, it would have been necessary for him to place himself in a position whereby he could physically undertake that act. Do you agree with that?---Yes.
Well, did he seem to encounter some physical difficulty in doing that?-
--Yes.How did he - what was his stance in order to undertake that act upon you while you
(d) T3.13.1-49 (emphasis added): are sitting on the toilet seat?---He got as close as he could. He was -
bent his knees.I’m sorry. I can’t hear the witness?---Sorry. He - - -
Just take your time. Have a glass of water. Well, I - we’ll need an
answer to that question. Take your time?---He was - he got in very, very close. And I guess he bent his knees to sort of get closer to my height. So - - -
I need to take you through this, I’m sorry - - -?---Yeah, I know. I know.
- - - subject to her Honour’s direction?---I understand. I’m sorry.
Sorry.
That’s all right. Take your time?---So I guess, as I said, he got in close
and sort of - it was extremely uncomfortable for I would say both of
us, because he had to sort of bend down.Again, I’m sorry to distress you, but I need to ask you these questions
if I may?---I understand.
And we’ll get through it. You at the time, on your evidence, were a
grade 3 girl; correct?---Yes.
And you were prepubescent; correct?--Yes. average size for the - for any other grade 3 girl?---I was average to small.
Thank you. All right. I’m just going on the basis of your photograph
that’s in your school photo. Thank you. So you were, on your
evidence, an average-sized nine year old girl; correct?---Yes.
And is it fair to say that having regard to your recollection, your - in your prepubescent state, your vagina was quite tight; is that correct?---Yes.
And indeed it was relative to your age at the time; is that not so?-
--Yes.
And you’ve already given evidence, haven’t you, that you were seated
on the toilet seat; correct?---Yes.
And is it also your evidence that [CD] had pushed you back on the toilet seat; correct?---He pushed me back down onto it. Yes.
It’s also your evidence that [CD] was not a man of small stature but at
least average stature; is that not so?---I guess.
Is it the case that at all time, to your recollection, that [CD] remained standing?---Standing, crouching.
If he was crouching, he would need to crouch in front of the toilet
- - -?---Like - - -(e) T3.14.1-5 (emphasis added): - - - wouldn’t he?---Yeah. Yes. Yes, like, bending.
If he was crouching in front of the toilet, his penis couldn’t get
anywhere near your vagina.
(f) T3.17.29-49: Now, I want to ask you just a couple more questions, if I may, about what you allege about [CD] in a cubicle, okay?---Okay.
Now, is it correct to say - I’m sorry. I want to ask you questions about
his physical positioning or stance at any time, if I may, please. Do you
understand that?---Yes.Do you understand that?---Yes.
Thank you. Now, is it correct to say that at various times, he was standing?---At some points he was standing. Yes.
All right. And is it correct to say at other points, he was squatting?---
Sort of, like, leaning.Well, was he not squatting?---Not full but close to the ground squatting. No.
Are you - when you say he was lean - you said lean or leaning, I’m not
sure, did you mean to convey by that that at other points in time while
standing, he was leaning forward?---He was leaning bent.Was he bent at 90 degrees, was he bent at some less - something less than 90.
T3.18.1-27:
degrees?---It would be less cause he was able to get close.
Do you understand when I say 90 degrees, if one’s erect, it’s zero
degrees and if he’s bent such that he bends over at the waist fully, such
that his upper body is horizontal, that that’s 90 degrees? Do you
understand what’s meant by that?---Yes.
That’s your understanding of it?---Yes.
Well, on your evidence, at various times, was he standing erect at zero degrees?---There were times when he was. Yes.
And at other times, was he leaning at some angle between zero degrees and 90 degrees?---Yes.
All right. But with his legs straight still in a standing - - -?---Bent - - -
- - - position?---Bent. Bent.
Bent?---Bent.
All right. Bent in the sense that he’s - he had a break at the knees such
that he was - his knees were protruding forward?---Yes.
Okay. But still standing?---Still standing.
Now, at any time, did he squat down on his haunches?---As in, all the way, like, full - - -
(g) T3.18.29-48: Yes?--- - - - squat.
Squat down in the sense that if I am in a standing position and whilst still remaining on my feet, I go down such that my knees protrude
forward and my thighs are sitting close to my calves. That’s what I
mean by squat. Do you understand what’s meant - - -?---Yeah.
Is that your understanding of squatting?---Yes.
Okay. At any time, did he squat?---He didn’t come to a full heels-to-
his-backside squat but he would - he did squat.
Okay. So it wasn’t a full squat but some partial squat?---Yes.
So he’s still on his feet?---He’s still on his feet.
And in this - adopting - sorry. Did he adopt any other stance apart from
those two 45 stances that you’ve described?---He leaned over me.
I beg your pardon?---He would lean over me.
T3.19.1-22:
He lent over you? And did he lean over you while he was still on his feet?---Yes.
But with his legs straight?---I can’t remember the position of his legs.
And all this time, you were sitting on the toilet seat?---If I wasn’t
trying to get up, yes.
And were you back on the toilet seat, that is, with your back towards
the - either the cistern or the back wall?---No. I was - I don’t want to
say how I was sort of - as I was sitting, pulled closer to him than I was
to the back.When he adopted this incomplete squat which you described a short time ago, was he located in front of you?---Yes. All right. And was he located in front of the nearest portion of the toilet to him ?---Yes. But he was in a partial squat; is that right?---Partial. Yes. So was it the case that the front of his two knees were still short of the nearest portion of the toilet? That is, they didn’t come up to the nearest portion of the toilet?---No. He would have his knees sort of on either
side of where I was.
at [9], page 11.
of reference, these reasons will refer to the plaintiff’s teacher as [REDACTED], being the name under
which the witness gave evidence.
could not be explained by “forgetfulness or some other innocent reason”. For the plaintiff to succeed,
Garling J concluded that he must be satisfied that intentionally false evidence was given by the
defendant and the plaintiff’s mother, and he was not so satisfied.
please and that she probably was not being that polite. See T1.49.26-27.
also goes to the plaintiff’s credit.
0
17
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