Clancy v Plaintiffs A, B, C and D; Bird v Plaintiffs A, B, C and D

[2022] NSWCA 119

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Clancy v Plaintiffs A, B, C and D; Bird v Plaintiffs A, B, C and D [2022] NSWCA 119

Hearing dates:

16, 17, 18, 21 June 2021, 19 July 2021

Date of orders:

06 July 2022

Decision date:

06 July 2022

Before:

Bell CJ, Gleeson JA, Brereton JA

Decision:

In proceedings 2020/310603 and proceedings 2020/311015 (Ms Clancy, Little Pigeon and Mr Bird’s appeals against A and B):

1.   appeals allowed with costs;

2.   set aside the orders of the primary judge;

3.   in lieu thereof, order that proceedings 2013/375445 be dismissed with costs.

In proceedings 2020/310609 and 2020/310590 (Ms Clancy and Little Pigeon’s appeals against C and D):

1.   appeals allowed with costs;

2.   set aside the orders of the primary judge;

3.   in lieu thereof, order that:

(a)   proceedings 2013/375437 and 2020/65223 against the Second Defendant (Ms Clancy) be dismissed with costs;

(b)   proceedings 2013/375437 and 2020/65223 against the Third Defendant (Little Pigeon) be dismissed other than in respect of the claims against Little Pigeon based upon vicarious liability, with those claims to be remitted to be determined by a judge other than the primary judge with costs of the proceedings at first instance to be costs in the cause;

4.   grant C and D a certificate under the Suitors’ Fund Act 1951 (NSW).

In proceedings 2020/311016 and 2020/311017 (Mr Bird’s appeals against C and D):

1.   appeals allowed with costs;

2.   set aside the orders of the primary judge;

3.   in lieu thereof, order that:

(a)   proceedings 2013/375437 and 2020/65223 against Mr Bird be remitted to be determined by a judge other than the primary judge with costs of the proceedings at first instance to be costs in the cause;

4.   grant C and D a certificate under the Suitors’ Fund Act 1951 (NSW).

Catchwords:

APPEALS – appeal by rehearing – functions of appellate court – orders on appeal – new trial – where appellate court has found error – court should resolve issue in order to avoid economic and emotional costs of re-trial to extent possible – torts – trespass to the person – battery – sexual assault against children – allegations attracting Briginshaw principles – where resolution of issue depends on questions of credibility of defendant – where plaintiffs entitled to test evidence and impugn credibility – whether appellate court should order a new trial

EVIDENCE – admissions – civil proceedings – torts – trespass to the person – battery – sexual assault against children – where defendant participated in recorded interview with police – where certain answers given in that interview said to constitute admissions to inappropriate sexual dealing with children – where tendency for inappropriate sexual dealing with children alleged against defendant – where Briginshaw principles applied – reliance not to be placed upon indirect inferences of slender and exiguous proof – whether defendant made admissions as found by the primary judge

EVIDENCE – admissions – civil proceedings – torts – negligence – admissibility against co-defendant – common purpose – s 87(1)(c) of the Evidence Act 1995 (NSW) – where admissions to inappropriate sexual dealing with children said to have been made by defendant during police interview sought to be admitted in claim of negligence against co-defendant – where no express authorisation to make admissions on co-defendant’s behalf – where common purpose required to exist as at time the impugned admissions were made – where co-defendant learned of occasion of alleged admissions after the fact – whether alleged admissions were admissible against co-defendant

EVIDENCE – hearsay – exceptions – witness unavailable – within the meaning of cl 4(1)(f) of pt 2 of the Dictionary in the Evidence Act 1995 (NSW) – where that definition properly encompasses the issue and service of a subpoena – where no subpoena had been served on the relevant witness – where the determination of the unavailability of a witness does not involve the exercise of direction – whether witness was unavailable to give evidence so as to render hearsay of disclosures admissible as tendency evidence

EVIDENCE – standard of proof – civil cases – torts – trespass to the person – battery – sexual assault against children – at childcare centre – allegations of such gravity as to attract Briginshaw principles – s 140(2) of the Evidence Act 1995 (NSW) – where plaintiffs relied on substantial body of tendency evidence as to inappropriate sexual dealing with children – where certain witnesses as to tendency unable to be cross-examined – whether tendency evidence was admissible against defendant – where trial occurred some 10 years after events in question – whether allegations established to the requisite standard

EVIDENCE – tendency evidence – civil proceedings – tendency rule – significant probative value – where evidence taken at its highest individually or cumulatively must strongly support existence of tendency asserted – where tendency must strongly support proof of material fact in issue – where distinction to be drawn between admissibility of tendency evidence and its use – where use of tendency evidence must have regard to Briginshaw principles

EVIDENCE – tendency evidence – civil proceedings – torts – trespass to the person – battery – sexual assault against children – where plaintiffs relied upon substantial body of tendency evidence as to inappropriate sexual dealing with children – including disclosures of plaintiffs and two other children and certain answers given by defendant in police interview – where tendency evidence required to be of significant probative value of tendency – where tendency required to strongly support proof of material fact in issue – where some of the tendency evidence marked by inconsistency and unreliability – where certain witnesses as to tendency not able to be cross-examined – whether tendency evidence was admissible against defendant – where admissibility of one piece of tendency evidence affects probative value of all others and of asserted tendency – where judge’s reliance on one piece of tendency evidence unable to be separated from remainder of tendency evidence

NEGLIGENCE – duty of care – owed by corporate licensee of childcare centre and its director to attendees of centre – where volunteer alleged to have committed sexual assaults against children at the centre – where regulation required volunteer to be “accompanied” by member of primary contact staff when in the presence of children – where that regulation required no more than that children not to be under supervision of volunteer alone – where no internal complaints made regarding conduct of volunteer – where policies and procedures of childcare centre substantially in accordance with regulation – whether licensee and director breached duty of care

NEGLIGENCE – vicarious liability – employer and employee – where employer was corporate licensee of childcare centre – whether director of licensee also vicariously liable for conduct of employee – principle of dual vicarious liability not adopted in the common law of Australia

NEGLIGENCE – damages – economic loss – earning capacity – future economic loss – by way of a buffer – requires compliance with s 13 of the Civil Liability Act 2002 (NSW) – where assumptions on which buffer is based must be stated – where identical buffers awarded to different plaintiffs – whether proper account taken of plaintiffs’ particular circumstances

TORTS – general principles – damages – trespass against the person – battery – sexual assault – against child – damages awarded to child and parent – for future economic loss – by way of a buffer – requires compliance with s 13 of the Civil Liability Act 2002 (NSW) – where assumptions on which buffer is based must be stated – where identical buffers awarded to different plaintiffs – whether proper account taken of plaintiffs’ particular circumstances

TORTS – trespass to the person – battery – sexual assault – against two children – at childcare centre – by defendant volunteer – alleged that defendant kissed one child with open mouth and pulled down child’s pants – alleged that defendant tickled other child on underwear – defendant alleged to have tendency for inappropriate sexual dealing with children – substantial body of tendency evidence admitted – including disclosures of plaintiffs and two other children and certain answers given by defendant in police interview – whether certain tendency evidence was admissible against defendant – where certain witnesses unable to be cross-examined – where trial occurred some 10 years after events in question – whether claims established to the requisite standard per s 140(2) of the Evidence Act 1995 (NSW)

WORDS AND PHRASES – “accompanied” – Children’s Services Regulation 2004 (NSW), cl 57(b)

Legislation Cited:

Children and Young Persons (Care and Protection) Act 1998 (NSW) s 27

Children’s Services Regulation 2004 (NSW) cll 51, 57, 58, 104, Dictionary

Civil Liability Act 2002 (NSW) ss 13, 15(2), 16, 32

Evidence Act 1995 (NSW) ss 63, 87(1), 97, 135(a), 136, 140(2), Dictionary pt 2 cl 4

Suitors’ Fund Act 1951 (NSW)

Uniform Civil Procedure Rules 2005 (NSW) r 10.12

Cases Cited:

Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244; (2012) 61 MVR 443

Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419

Andelman v R (2013) 38 VR 659; [2013] VSCA 25

Australian Competition and Consumer Commission v Mayo International Pty Ltd (1998) 85 FCR 327

Avopiling Pty Ltd v Bosevski (2018) 98 NSWLR 171; [2018] NSWCA 146

Bannister v Walton (1993) 30 NSWLR 699

Bazley v Curry [1999] 2 SCR 534

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34

Bryant v The Queen (2011) 205 A Crim R 531; [2011] NSWCCA 26

Burton v Brooks [2011] NSWCA 175

Commissioner of the Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501; [1997] HCA 3

Day v The Ocean Beach Hotel Shellharbour Pty Ltd (2013) 85 NSWLR 335; [2013] NSWCA 250

Deatons Pty Ltd v Flew (1949) 79 CLR 370; [1949] HCA 60

Elomar v The Queen (2014) 300 FLR 323; [2014] NSWCCA 303

Fegan by her tutor Rozenauers v Lane Cove House Pty Ltd [2007] NSWCA 88

Gersbach v Gersbach [2018] NSWSC 1685

Gordon v Truong [2014] NSWCA 97; (2014) 66 MVR 241

Gray v Motor Accident Commission (1998) 196 CLR 1; [1998] HCA 70

Higgins v R [2020] NSWCCA 149

Hollis v Vabu Pty Ltd (2001) 207 CLR 21; [2001] HCA 44

House v The King (1936) 55 CLR 499; [1936] HCA 40

Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20

IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14

Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd (No 4) [2006] NSWSC 90

Lamb v Cotogno (1987) 164 CLR 1; [1987] HCA 47

Longhurst v Hunt [2004] NSWCA 91; (2004) 42 MVR 267

M v M (1988) 166 CLR 69; [1988] HCA 68

Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20

Mindshare Communications Ltd v Orleans Investments Pty Ltd [2007] NSWSC 976

Nadinic v Drinkwater (2017) 94 NSWLR 518; [2017] NSWCA 114

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170; [1992] HCA 66

New South Wales v Hathaway [2010] NSWCA 184

New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4

Oceanic Crest Shipping Company v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626; [1986] HCA 34

Penrith City Council v Parks [2004] NSWCA 201

Prince Alfred College Incorporated v ADC (2016) 258 CLR 134; [2016] HCA 37

R v Alchin (2006) 200 FLR 204; [2006] ACTSC 53

R v Basanovic (No 4) [2015] NSWSC 1100

R v Dolding (2018) 100 NSWLR 314; [2018] NSWCCA 127

R v Suteski (2002) 128 A Crim R 275; [2002] NSWSC 218

Rabay v Bristow [2005] NSWCA 199

Roo-Roofing Pty Ltd v Commonwealth (Ruling No 2) [2018] VSC 219

Saba v Plumb (2018) 97 NSWLR 278; [2018] NSWCA 60

Seafood Imports Pty Ltd v ANL Singapore Pte Ltd (No 1) [2009] FCA 435

Sorbello v South Western Sydney Local Health Network [2016] NSWSC 863

Sretenovic v Reed [2009] NSWCA 280

Taylor v R [2020] NSWCCA 355

Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd (2009) 258 ALR 598; [2009] NSWSC 769

Varmedja v Varmedja [2008] NSWCA 177

Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd [2006] QB 510; [2006] 2 WLR 428; [2005] 4 All ER 1181

White v Johnston (2015) 87 NSWLR 779; [2015] NSWCA 18

Whitlam v Australian Securities and Investments Commission (2003) 57 NSWLR 559; [2003] NSWCA 183

WK v SR (1997) 22 Fam LR 592

Category:

Principal judgment

Parties:

In proceedings 2020/310603

Lisa Maree Clancy (First Appellant)
Little Pigeon Pty Ltd t/as Footprints Childcare Centre (Second Appellant)
Plaintiff A (First Respondent)
Plaintiff B (Second Respondent)
Rodney Raymond Bird (Third Respondent)
In proceedings 2020/310609

Lisa Maree Clancy (First Appellant)
Little Pigeon Pty Ltd t/as Footprints Childcare Centre (Second Appellant)
Plaintiff C (First Respondent)
Rodney Raymond Bird (Second Respondent)

In proceedings 2020/310590

Lisa Maree Clancy (First Appellant)
Little Pigeon Pty Ltd t/as Footprints Childcare Centre (Second Appellant)
Plaintiff D (First Respondent)
Rodney Raymond Bird (Second Respondent)

In proceedings 2020/311015

Rodney Raymond Bird (Appellant)
Plaintiff A (First Respondent)
Plaintiff B (Second Respondent)
Lisa Maree Clancy (Third Respondent)
Little Pigeon Pty Ltd t/as Footprints Childcare Centre (Fourth Respondent)

In proceedings 2020/311016

Rodney Raymond Bird (Appellant)
Plaintiff C (First Respondent)
Lisa Maree Clancy (Second Respondent)
Little Pigeon Pty Ltd t/as Footprints Childcare Centre (Third Respondent)

In proceedings 2020/311017

Rodney Raymond Bird (Appellant)
Plaintiff D (First Respondent)
Lisa Maree Clancy (Second Respondent)
Little Pigeon Pty Ltd t/as Footprints Childcare Centre (Third Respondent)

Representation:

Counsel:

M J Windsor SC with A Horvath and R McEwen
(Ms Clancy and Little Pigeon)
D J Hooke SC with H Chiu (Mr Bird)
C T Barry QC with M Tanevski and M Hamdan (Plaintiffs A, B, C and D)

Solicitors:

Norton Rose Fulbright (Ms Clancy and Little Pigeon)
Moray & Agnew (Mr Bird)
Shine Lawyers (Plaintiffs A, B, C and D)

File Number(s):

2020/310603; 2020/310609; 2020/310590; 2020/311015; 2020/311016; 2020/311017

Publication restriction:

Non-publication order regarding the names of each of Plaintiffs A, B, C and D in these proceedings, together with the names of Child 1 and Child 2, and their respective parents.

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law

Citation:

[2010] NSWSC 1379

Date of Decision:

9 October 2020

Before:

Schmidt AJ

File Number(s):

2013/375445; 2013/375437; 2020/65223

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 9 October 2020, damages were awarded to four parties (referred to by the pseudonyms A, B, C and D; collectively the Respondents) in the sums of $1,008,378.55; $465,000; $508,677.71 and $455,000 respectively against Ms Lisa Maree Clancy (Ms Clancy), Little Pigeon Pty Ltd (Little Pigeon) t/as Footprints Childcare Centre (Footprints) and Mr Rodney Raymond Bird (Mr Bird). Ms Clancy, Little Pigeon and Mr Bird are collectively referred to as the Appellants. The Respondents’ damages arose from what the primary judge found were sexual assaults committed by Mr Bird against B and D at Footprints between 2008 and 2010.

Little Pigeon was the licensee of Footprints. Ms Clancy held 99% of the shares in Little Pigeon and was its director, whilst her father, Mr Bird, held the remaining 1% of shares, worked at Footprints as a cook, occupational health and safety officer and first aid officer, and performed maintenance works at the Centre. B and D were very young children who attended Footprints between 2008 and 2010. A was the mother of C, and B was the mother of D. Another two very young children (Child 1 and Child 2) attended Footprints at the relevant time and, although they were not parties to the underlying proceedings, gave evidence which was received and relied upon by the primary judge.

On 10 November 2010, Child 1 disclosed to her mother that Mr Bird had engaged in inappropriate conduct of a sexual nature at Footprints. The following day, Child 1 was interviewed by police and repeated those disclosures. On that same day, Mr Bird was also interviewed by police and arrested on suspicion of the sexual assault of Child 1. The primary judge held that Mr Bird made various admissions to inappropriate sexual conduct during his interview with police on 11 November 2010, including that he had kissed children at Footprints and had put his hand down Child 1’s pants. The investigations and notifications precipitated by Child 1’s disclosures and Mr Bird’s arrest resulted in Child 2, B and D making similar disclosures to their respective mothers and to the police during recorded interviews which occurred up until January 2012.

Criminal charges were laid against Mr Bird in relation to Child 1, B and another child, although none of those charges were pursued to trial. The underlying proceedings were thereafter commenced by A, B, C and D against the Appellants, alleging that Mr Bird had sexually assaulted B and D at Footprints and that A and C had also suffered compensable loss.

On the Respondents’ case at first instance, Mr Bird’s “admissions” in his police interview and the evidence of Child 1, Child 2, B (as to D’s claim) and D (as to B’s claim) respectively demonstrated a tendency, pursuant to s 97 of the Evidence Act 1995 (NSW), for Mr Bird to have “inappropriate sexual dealings with children in his care”. The primary judge admitted that body of evidence mutatis mutandis as tendency evidence in the proceedings brought by each of the Respondents respectively.

None of Child 1, Child 2 (and her mother), B or D was cross-examined, although audio-visual recordings and transcripts of their police interviews were in evidence. In respect of Child 1, the primary judge held that she was “unavailable to give evidence” for the purposes of s 63 of the Evidence Act. A transcript of Mr Bird’s police interview was in evidence, and Mr Bird was cross-examined before the primary judge. It was not in dispute that Mr Bird had physical contact with the children at Footprints. Whether that contact was of a sexual nature was, however, strenuously contested, and denied by Mr Bird in cross-examination.

The primary judge held that Mr Bird had repeatedly kissed B, including with an open mouth, and pulled down her pants whilst at Footprints. In relation to D, the primary judge accepted as true D’s disclosures that Mr Bird had tickled her on her underwear, over her objection, and touched her tummy. In addition to the body of tendency evidence, the primary judge reached these conclusions in reliance upon the evidence of B and D on their own claims, the evidence of A and C as to perceived changes in the behaviour of their children and adverse findings as to the credibility of Mr Bird and Ms Clancy.

The primary judge also held that Little Pigeon and Ms Clancy were vicariously liable for Mr Bird’s conduct, on the basis that Mr Bird was an “employee” at Footprints, and had therefore breached a duty of care owed to all of the Respondents. Ms Clancy and Little Pigeon were also held directly liable to each of the Respondents in negligence, on the basis that they had failed to ensure that Mr Bird was “accompanied” by primary contact staff when in the presence of children at Footprints, in accordance with Little Pigeon’s internal policies as well as cl 57 of the Children’s Services Regulation 2004 (NSW) (the Regulation). It was held that, if they had done so, then the sexual assaults of B and D would not have occurred or would have been reported. Little Pigeon was additionally held liable to A and C for breach of contract.

The Appellants appealed almost every aspect of the primary judge’s decision as to both liability and damages, including a significant number of material factual findings. It was not in contention on appeal that the allegations levelled against Mr Bird were of such gravity as to attract the application of the principles in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34, as reflected in s 140(2) of the Evidence Act (the Briginshaw standard).

The principal issues on appeal were:

1. whether the disclosures of Child 1 should have been admitted as tendency evidence (Child 1’s evidence);

2. whether the alleged “admissions” in Mr Bird’s police interview should have been admitted as tendency evidence (Mr Bird’s admissions);

3. whether Mr Bird’s alleged “admissions” were admissible against Ms Clancy (vicarious admissions);

4. whether the primary judge erred in concluding that the disclosures by B were established to the Briginshaw standard (B’s disclosures);

5. whether the primary judge erred in concluding that the disclosures made by Child 2 were established to the Briginshaw standard, so as to support the tendency asserted in support of D’s claim (Child 2’s disclosures);

6. whether the primary judge erred in concluding that the disclosures by D were established to the Briginshaw standard (D’s disclosures);

7. whether Ms Clancy and Little Pigeon were directly liable in negligence (negligence);

8. whether Ms Clancy was vicariously liable for Mr Bird’s acts (vicarious liability); and

9. whether the primary judge erred in assessing the damages to be awarded to C and D (C and D’s damages).

The Court held (Bell CJ, Gleeson and Brereton JJA), allowing the appeals, setting aside the orders of the primary judge, dismissing the proceedings brought by A and B, and remitting the proceedings brought by C and D to the Common Law Division to be determined by a judge other than the primary judge.

As to Child 1’s evidence

1. The primary judge erred in concluding that Child 1 was unavailable to give evidence within the meaning of cl 4(1)(f) of pt 2 of the Dictionary in the Evidence Act, and therefore in admitting her disclosures as tendency evidence. Clause 4(1)(f), in contemplating reasonable steps to “secure the attendance” of a witness, properly encompasses the issue and service of a subpoena. It followed that by failing to issue or serve a subpoena on Child 1, the Respondents had not taken “all reasonable steps” to secure her attendance. Further, there was no evidence that Child 1 was psychologically adversely affected by her disclosures: [74].

Mindshare Communications Ltd v Orleans Investments Pty Ltd [2007] NSWSC 976; Seafood Imports Pty Ltd v ANL Singapore Pte Ltd (No 1) [2009] FCA 435; Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd (2009) 258 ALR 598; [2009] NSWSC 769; R v Suteski (2002) 128 A Crim R 275; [2002] NSWSC 218; R v Alchin (2006) 200 FLR 204; [2006] ACTSC 53; R v Basanovic (No 4) [2015] NSWSC 1100; Roo-Roofing Pty Ltd v Commonwealth (Ruling No 2) [2018] VSC 219, cited with approval.

2. The determination of whether a witness is “unavailable” within the terms of cl 4(1)(f) does not involve the exercise of a discretion. It properly involves the evaluative application of a test: [73].

Longhurst v Hunt [2004] NSWCA 91; (2004) 42 MVR 267, disapproved.

3. Child 1’s evidence should not have been admitted or used as tendency evidence to support B and D’s claims: [75].

As to Mr Bird’s admissions

4. The answers given by Mr Bird in his police interview on 11 November 2010 should not have been admitted as evidence in support of a tendency for Mr Bird to have “inappropriate sexual dealing with children in his care”. Mr Bird did not admit in the interview to “kissing the children” nor putting his hand down Child 1’s pants, contrary to the primary judge’s findings. In respect of the alleged admission to kissing, no such tendency was asserted, such that the primary judge’s affirmative conclusion relied upon an “indirect inference” of “slender and exiguous proof”. Regarding the alleged admission to putting his hand down Child 1’s pants, no such admission was made: [88], [92], [103], [105].

Commissioner of the Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501; [1997] HCA 3; Bannister v Walton (1993) 30 NSWLR 699; Whitlam v Australian Securities and Investments Commission (2003) 57 NSWLR 559; [2003] NSWCA 183; Nadinic v Drinkwater (2017) 94 NSWLR 518; [2017] NSWCA 114; Saba v Plumb (2018) 97 NSWLR 278; [2018] NSWCA 60, cited.

As to vicarious admissions

5. In the absence of any express authorisation for Mr Bird to make admissions on Ms Clancy’s behalf, and in circumstances where Ms Clancy learned of the charges against her father after his police interview, Mr Bird’s alleged “admissions” were not admissible against Ms Clancy. Section 87(1)(c) of the Evidence Act required the identification of the existence of a “common purpose” at the time that the impugned admissions were made. Those admissions could not have been made “in furtherance of” a common purpose which had not yet come into existence: [114]–[116].

Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd (No 4) [2006] NSWSC 90; R v Dolding (2018) 100 NSWLR 314; [2018] NSWCCA 127; Higgins v R [2020] NSWCCA 149, applied.

As to B’s disclosures

6. The primary judge erred in concluding that B’s disclosures were established to the Briginshaw standard. The evidence given by B was brittle and, of itself, insufficiently reliable or secure to meet the degree of satisfaction required by s 140(2) of the Evidence Act in relation to such serious allegations against Mr Bird. This deficit of reliability and security was not overcome by the other matters relied upon by the primary judge, including the evidence of A (B’s mother), the reliability of which was itself called into question by the primary judge. It followed that B’s claim (and A’s related claim) should have been dismissed and that B’s evidence could not be relied upon as tendency evidence to support D’s claim: [136], [147], [153].

As to Child 2’s disclosures

7. The primary judge erred in concluding that Child 2’s disclosures were sustained to the Briginshaw standard, such that they were an unreliable basis for supporting the tendency asserted in support of D’s claim. Those disclosures were marked by inconsistency, which was reinforced by the inability to cross-examine Child 2, and the inadmissibility of the body of cross-tendency evidence relied upon in relation to it: [178]–[179].

Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20; IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14, applied.

As to D’s disclosures

8. As with B’s claim, the primary judge’s reasoning was vitiated by the wrongful admission of Child 1’s evidence and the erroneous characterisation of Mr Bird’s “admissions”. In addition, it drew upon the evidence of B and Child 2 as evidence of tendency. In those circumstances, the appeal against the award of damages to C and D had to be upheld: [162]–[163], [183]–[184].

9. A majority of the Court considered that it was not in a position to determine whether D’s disclosures were established to the requisite standard, because this question would be affected by considerations of credibility. It followed that C and D’s claims must be remitted to the Common Law Division for determination by a judge other than the primary judge: [182]–[184].

As to negligence

10. The requirement, in cl 57 of the Regulation, that a volunteer be “accompanied” when in the presence of children is directed to the supervision and care of children, rather than the supervision of volunteers. Thus, when a volunteer is in the presence of children, a member of the primary contact staff must also be in their presence. This means no more than that children are not to be under the supervision of a volunteer alone. The primary judge therefore erred in construing cl 57 as requiring that a primary contact staff member be “alongside” Mr Bird: [209]–[210].

11. The primary judge erred in concluding that there was insufficient supervision of Mr Bird’s contact with children at Footprints, having regard to the substantial body of unchallenged evidence of Little Pigeon’s policies and procedures, and the lack of any internal complaints regarding Mr Bird’s conduct. It followed that Ms Clancy and Little Pigeon were not directly liable to the Respondents in negligence: [223]–[224].

As to vicarious liability

12. On a fair reading of the primary judge’s reasons, her Honour did not find that Ms Clancy was vicariously liable for Mr Bird’s conduct at Footprints. In any event, there was no sound reason for imputing vicarious liability to Ms Clancy in circumstances where Little Pigeon’s status as Mr Bird’s employer was a well-established basis for its vicarious liability: [196], [199].

13. The principle of dual vicarious liability has not been adopted in the common law of Australia: [197]–[198].

Oceanic Crest Shipping Company v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626; [1986] HCA 34; Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd [2006] QB 510; Day v The Ocean Beach Hotel Shellharbour Pty Ltd (2013) 85 NSWLR 335; [2013] NSWCA 250, discussed.

As to C and D’s damages

14. The primary judge’s assessment of C’s damages for future economic loss, by way of a buffer, could not be sustained on the evidence. It was non-compliant with s 13 of the Civil Liability Act 2002 (NSW), which expressly requires the statement of the assumptions on which the buffer is based, and did not take proper account of C’s particular circumstances: [277].

Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244; (2012) 61 MVR 443; Penrith City Council v Parks [2004] NSWCA 201; Sretenovic v Reed [2009] NSWCA 280; Burton v Brooks [2011] NSWCA 175, discussed.

15. The primary judge’s assessment of D’s damages for non-economic loss was out of proportion to the injury she apparently suffered, and should fall for re-assessment on any re-trial. As to damages for future economic loss, D’s buffer was assessed on a basis which did not accord with s 13 of the Civil Liability Act, nor did it translate readily to the evidence of her particular circumstances: [293], [296].

Discussion

16. Of the principles governing the formulation of a tendency and the admissibility of tendency evidence under s 97 of the Evidence Act: [35]–[42].

Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20; Bryant v The Queen (2011) 205 A Crim R 531; [2011] NSWCCA 26; Andelman v R (2013) 38 VR 659; [2013] VSCA 25; Elomar v The Queen (2014) 300 FLR 323; [2014] NSWCCA 303; White v Johnston (2015) 87 NSWLR 779; [2015] NSWCA 18; Taylor v R [2020] NSWCCA 355; IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14, referred to.

Judgment

1. THE COURT:

Introduction

The six appeals before the Court, argued over five days, arise from a judgment of Schmidt AJ (the primary judge) in which her Honour awarded damages to each of the four Respondents (referred to by the pseudonyms A, B, C and D) in the sums of $1,008,378.55, $465,000, $508,677.71 and $455,000 respectively against each of the Defendants (who are the Appellants in this Court). Those damages arose from what her Honour found were sexual assaults committed by Mr Rodney Raymond Bird (Mr Bird) against B and D at a childcare centre between 2008 and 2010: Plaintiff A and B v Bird; Plaintiff C v Bird; Plaintiff D v Bird [2020] NSWSC 1379 (the primary judgment or PJ). The Defendants were Ms Lisa Maree Clancy (Ms Clancy), Little Pigeon Pty Ltd (Little Pigeon) t/as Footprints Childcare Centre (Footprints) and Mr Bird who was Ms Clancy’s father.

2. It must be stated at the outset that these appeals raised a vast array of issues of both considerable complexity and acute sensitivity, given the nature of the allegations and their gravity. One cannot gainsay the impact that the allegations and their litigation has had on all concerned in the proceedings including very young children, their parents as well as the Appellants who were the subject of serious allegations and findings made by the primary judge.

3. The primary judge and all counsel, both at first instance and on appeal, were properly conscious of the sensitivity of the subject matter of the events in dispute and the potential psychological and emotional impacts that the litigation of the events in question could have on all concerned.

4. Footprints was the trading name of a childcare centre, the licensee of which was Little Pigeon. Ms Clancy was the 99% shareholder of Little Pigeon. The remaining 1% shareholder was her father, Mr Bird, although he described himself in a statement to the police in late 2010 as a “silent partner” in the business. Ms Clancy was the director of Little Pigeon and Mr Bird worked at Footprints as a cook, occupational health and safety officer, first aid officer and maintenance person. Whether or not he was an employee of Footprints or simply a volunteer was an issue in the proceedings. It was of particular relevance to questions of vicarious liability at first instance.

5. B and D were young children who attended Footprints between 2008 and 2010, at the time of the events giving rise to these proceedings. A and C are the mothers of B and D respectively.

6. Child 1 and Child 2, who were not parties to the underlying proceedings but whose evidence was received by the primary judge as tendency evidence, admitted pursuant to s 97 of the Evidence Act 1995 (NSW), were also very young children who attended Footprints at the relevant time. B’s evidence was also relied on as tendency evidence for the purposes of D’s claim and vice versa.

7. Each of Child 1, Child 2, B and D made a series of disclosures to their mothers and then to the police in the period following 11 November 2010, when Child 1 was first interviewed by the police. [1] The police had been contacted by Child 1’s mother following disclosures made to her at home on the previous day. Mr Bird was also interviewed and arrested on suspicion of the sexual assault of Child 1 on 11 November 2010.

   1. Blue 3/1032.

8. The investigations precipitated by Child 1’s disclosures resulted in disclosures by the other children and ultimately led to criminal charges being laid against Mr Bird in relation to Child 1, B and another child. The Director of Public Prosecutions (DPP) did not ultimately pursue any of these charges to trial.

9. Various sets of proceedings were commenced by A, B and C against the Appellants in 2013. D, the mother of C, commenced separate proceedings in 2020. All of the proceedings were heard together over a two-week period in September 2020.

10. Broadly speaking, it was alleged in the various sets of proceedings that B and D were assaulted by Mr Bird at, with one exception, unspecified times between 2008 and 2010 whilst attending Footprints. It was not in contest that Mr Bird had physical contact with the children at Footprints, which extended to them jumping up on him, sitting on his lap and him picking them up or patting them as a mode of comfort. What was in issue, however, and what was strenuously contested was whether Mr Bird’s physical contact with the children was of a sexual nature as alleged in the pleadings. The primary judge found that it was, as summarised at [12] and [13] below.

11. For various reasons, none of B, D Child 1 or Child 2 could be cross-examined, although all were interviewed by the police and filmed recordings of their interviews were in evidence, as was an electronic record of interview (ERISP) between Mr Bird and the police on 11 November 2010. Mr Bird gave evidence, as did Ms Clancy and a number of former employees at Footprints. A and C also gave evidence, as did the mother of Child 1. The mother of Child 2 gave evidence by way of written statement, but she was not cross-examined.

12. The primary judge found that Mr Bird had repeatedly kissed B, including with an open mouth, and pulled down her pants during her time at Footprints. [2]

    2. PJ [326].

13. In relation to D, the primary judge accepted as true disclosures by D that:

1. Mr Bird tickled her on her underwear; [3]

2. Mr Bird touched her on her tummy; [4] and

3. she did not like it when Mr Bird tickled her. [5]

   3. PJ [407(1)–(6)].

   4. PJ [407(15)].

   5. PJ [407(23)].

14. The primary judge reached her conclusions as to what Mr Bird had done by reference to: the disclosures each of B, D, Child 1 and Child 2 had made to the police, admitted mutatis mutandis as tendency evidence in the claims of B and D (and the corresponding claims of their respective mothers); the disclosures each child had made to their mothers; their mothers’ perceptions of changes in the behaviour of the children; and various admissions which her Honour held Mr Bird to have made in the police interview on 11 November 2010 in relation to Child 1. Her Honour also expressed adverse views as to the credibility of both Mr Bird and Ms Clancy (as well as in relation to A, who was B’s mother). As such, her Honour rejected Mr Bird’s denials in relation to the specific allegations made on behalf of B and D as well as the disclosures of Child 1 and Child 2.

15. In forming an adverse view of Mr Bird’s credit, the primary judge rejected as implausible his evidence, given under cross-examination, that he did not understand what he was being asked in his police interview. Further, the primary judge was unimpressed by Mr Bird’s attempts in cross-examination to distance himself from the answers he gave to the police. Her Honour also rejected Mr Bird’s evidence that, at the time of his police interview, he considered that there was something wrong with touching a child on the buttocks, holding that it “was plainly not what Mr Bird believed when he was working at the centre or at the time of his admissions” in the police interview. [6] Her Honour was thus satisfied that “considerable parts of Mr Bird’s evidence were not honestly given” and that “overall, his evidence had to be approached with considerable caution”. [7]

    6. PJ [172].

    7. PJ [173].

16. On the other hand, the primary judge held that:[8]

“I have concluded that Mr Bird gave police an accurate account of his conduct which at the time he considered to have been entirely appropriate because, as he explained, he was treating children at the centre as if they were his grandchildren. He then said that the acts which he described reflected what he did to his grandkids and he did not then think, for example, that a scrunch on the backside was ‘a bad thing’.”

8. PJ [170].

17. The primary judge’s adverse view of Mr Bird’s credit was not, however, based solely on her Honour’s assessment of his evidence, nor inconsistency regarding his state of mind or beliefs, as presented in the witness box. It was also affected by the view which her Honour took of what she considered to be an attempt by Mr Bird and Ms Clancy to dissipate his assets after the commencement of proceedings. [9] As shall be seen, her Honour’s analysis in this respect was the subject of a strong attack which constituted a discrete ground of appeal.

    9. See PJ [129].

18. The primary judge, having found that B and D had been the subject of sexual assaults by Mr Bird, went on to hold that Little Pigeon was vicariously liable for those assaults. This involved the primary judge making a finding that Mr Bird was an employee of Little Pigeon, it having been contended that he was only a volunteer. It is not clear from the terms of the primary judgment whether her Honour also held that Ms Clancy, in addition to Little Pigeon, was vicariously liable for her father’s acts. The Plaintiffs (Respondents in this Court) maintain that she did.

19. The primary judge also held that Little Pigeon and Ms Clancy breached a duty of care which they owed to all of the Plaintiffs, i.e. the very young children and their mothers; that Little Pigeon was additionally liable for breach of contract in respect of the care of B and D; and that A, B, C and D had each suffered loss and damage in various respects. The primary judge’s awards of damages to B and D included sums for exemplary damages.

20. An overview of the damages awarded to the Plaintiffs is set out at [225] and following below.

The appeals

21. The Defendants (the Appellants in this Court) have appealed on almost every aspect of the primary judgment as to both liability and damages. They have also challenged a significant number of the primary judge’s factual findings on material issues, including her Honour’s findings in relation to the nature and extent of admissions made by Mr Bird in the November 2010 police interview.

21. Other material factual findings under challenge included those in relation to Child 1, whose evidence in the form of transcripts of interviews with police was admitted and relied upon as part of the tendency evidence.

22. Little Pigeon and Ms Clancy were represented on appeal by Mr M Windsor SC, Ms A Horvath and Ms R McEwen. Mr Bird was represented on appeal by Mr D Hooke SC and Mr H Chiu. A, B, C and D were represented by Mr C Barry QC, Mr M Tanevski and Ms M Hamdan.

The complex nature of the proceedings and key issues on appeal

24. There were, and are, numerous features of the proceedings which contributed to their complexity and gave rise to the multiplicity of issues with which the primary judge needed to deal. Those issues remain alive on appeal.

25. One such feature related to the fact that B and D had no memory of the events in question, which occurred more than 10 years before the trial when they were aged between three and four years. Thus, although available, they could not be cross-examined in the sense that it was accepted that there would be no utility in doing so. The same was the case with Child 2. [10] Child 1 was in a slightly different category, her evidence being admitted over objection on the basis that, in the trial judge’s assessment, Child 1 was “not available” within the meaning of s 63 of the Evidence Act. [11]

    10. PJ [43].

    11. PJ [63]–[84].

26. Putting that matter to one side for the moment, the consequence was that all of the primary evidence in support of the alleged interferences with B, D, Child 1 and Child 2 was unable to be tested by cross-examination. That evidence was also non-specific as to time and, to some extent, as to place. These considerations, which were understandable given the age of the children at the relevant time, were nonetheless somewhat problematic in circumstances where the allegations against Mr Bird were of particular gravity and the Briginshaw standard, as reflected in the terms of s 140(2) of the Evidence Act, applied: see also Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170; [1992] HCA 66; Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [61], where it was said that “ [i]t is well accepted that the test to be applied under s140(2)(c) is the Briginshaw test”; and New South Wales v Hathaway [2010] NSWCA 184 at [263], where it was said that in a case involving allegations of serious misconduct with grave consequences, “clear or cogent or strict proof” [12] is required.

    12. (Emphasis in original).

27. In Briginshaw v Briginshaw (1938) 60 CLR 336 at 362; [1938] HCA 34 (Briginshaw), a case involving a charge of adultery, Dixon J said that:

“In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences”,

and (at 368–369) that:

“[u]pon an issue of adultery in a matrimonial cause the importance and gravity of the question make it impossible to be reasonably satisfied of the truth of the allegation without the exercise of caution and unless the proofs survive a careful scrutiny and appear precise and not loose and inexact. Further, circumstantial evidence cannot satisfy a sound judgment of a state of facts if it is susceptible of some other not improbable explanation. But if the proofs adduced, when subjected to these tests, satisfy the tribunal of fact that the adultery alleged was committed, it should so find.”

In the same case at 350, Rich J had said:

“In a serious matter like a charge of adultery the satisfaction of a just and prudent mind cannot be produced by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion.” 

28. Justice Dixon’s observations in Briginshaw were referred to with approval by the High Court in M v M (1988) 166 CLR 69 at 76; [1988] HCA 68, in the context of an allegation of sexual abuse. There, the Court said that Dixon J’s “remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute.” In WK v SR (1997) 22 Fam LR 592 at [26], in the context of allegations of sexual abuse of children, the Full Court of the Family Court said that the central evidence of a child in that case needed to be “very carefully evaluated” and (at [47]) that:

“In children's matters under Pt VII of the Family Law Act, where the issue is a child's contact or residence with a significant person in his or her life, the grave consequences of a finding of sexual abuse cannot be overstated. Accordingly, before trial judges find themselves impelled to make a positive finding of sexual abuse, as opposed to a finding of unacceptable risk, the standard of proof they are required to apply must be towards the strictest end of the civil spectrum as set out in Briginshaw and s 140 of the Evidence Act 1995 (Cth). Inexact proofs, indefinite testimony, or indirect inferences are insufficient to ground a finding of abuse.”

29. The primary judge was alive to the forensic challenges presented by the fact that neither of B and D (nor Child 1 and Child 2) was able to be cross-examined. Her Honour observed that:[13]

“Because B and D had no memory of what had happened, they could not be cross examined. In this case that did not preclude evidence of their disclosures being received. Given the gravity of Mr Bird’s alleged acts it was thus necessary to pay very close attention to what they had each disclosed, in light of all of the other evidence, to determine whether the plaintiffs had satisfied the obligation to prove their cases, on the balance of probabilities.” (emphasis added)

13. PJ [13].

30. The primary judge was correct to say that it was “necessary to pay very close attention” to what each of B and D (as well as Child 1 and Child 2) had disclosed. It was also necessary to pay close attention to:

1. the timing and sequence of the respective disclosures, i.e. when they were made relative to the events in question, and in which of the various interviews each child participated in specific disclosures were made (in some cases, for example, initial interviews did not result in disclosures of any inappropriate conduct of a sexual nature by Mr Bird);

2. how and to whom those disclosures were made, i.e. whether they were prompted or ideas were suggested to the children; and

3. any inconsistencies in the disclosures, either internally or over time (noting that all of the children other than Child D were interviewed on more than one occasion by police in the Joint Investigation Response Team, a tri-agency program also comprising members of the Department of Communities and Justice and New South Wales Health (JIRT)).

31. This called for a close analysis of the evidence of each of the children. The primary judge did this and, in so doing, at least in relation to D, drew in part on the expert evidence of an Associate Professor Quadrio (a forensic and child psychiatrist), whose report was admitted subject to a limitation under s 136 of the Evidence Act, which limited its use to the Plaintiffs’ claims for damages. [14] Associate Professor Quadrio was cross-examined and, whilst her evidence elicited under cross-examination was not subject to any limitation, the primary judge’s use of and reliance on her evidence in relation to B and D’s original disclosures was inconsistent with the s 136 ruling. This is a matter of quite legitimate complaint by the Appellants.

    14. See PJ [404]–[406].

32. Another apparent complexity (and difficulty) in relation to s 136 flowed from what is recorded at PJ [34]–[36]. There, the primary judge said that:

“34 When the final hearing commenced the admissibility of A and C’s evidence about the disclosures which B and D had made to them and the admissibility of B and D’s police statements, under either s63 or s64 of the Evidence Act, remained in issue.

35   Statements made by B and D had been served. There was then no issue that neither still had a memory of what had happened to them while at Footprints. B and D were thus not finally required for cross-examination.

36   After argument it was also finally conceded that A and C’s disputed evidence was admissible under s64(3) of the Evidence Act, because B and D were both to be called to give evidence. Consent orders under s136 were made, limiting the disclosures to evidence of what was said, rather than as evidence of the truth of what was said.” (emphasis added)

33. Paragraph 36 of the judgment is problematic for a number of reasons, not least of which is that, as was common ground and contrary to what was said by the primary judge, no s 136 order was ever in fact made in respect of the evidence of A and C in relation to the disclosures made to them by B and D respectively. The paragraph is also problematic because it is clear from her Honour’s reasons that her Honour did not in fact treat A and C’s evidence as subject to limitation of the kind described. Rather, the primary judge relied upon it to support the veracity of B and D’s allegations. [15] This was not in error as, although B and D did not actually enter the witness box, they were nonetheless “available”, they were “called” (in the sense that their statements were tendered) and they could have been, but were not, required for cross-examination. In those circumstances, their previous representations, of which evidence was given by their respective mothers and contained in their police statements, were admissible under s 64(3) of the Evidence Act.

    15. See, for example, PJ [122].

34. The next complexity arose because of the fact that the evidence of B, Child 1 and Child 2 was admitted and relied on as tendency evidence in respect of the allegations made by D, as were what were described as Mr Bird’s admissions in relation to Child 1. Similarly, the evidence of Child 1, Child 2 and D, and Mr Bird’s admissions, were admitted as tendency evidence in support of the allegations made by B. The primary judge said that she had considered whether the disclosures made by B and D were truthful “in light of all of the other evidence”. [16]

    16. See PJ [13], quoted at [29] above.

35. A tendency notice said to be issued pursuant to s 97(1)(a) of the Evidence Act (the Tendency Notice) purported to describe the tendency arising from the evidence of Child 1, Child 2, B and D (together with two other children whose evidence was not ultimately adduced) “as to”:

“a)   The location; the sexual abuse occurred at the childcare premises.

b)   The timing; the sexual abuse occurred during the course of the business’ operation.

c)   The sexual abuse happened in circumstances where no other adults were present.

d)   The sexual abuse happened when Mr Bird was in a supervisory role and the children were in his care.

e)   The victims were female and of a similar age.

f)   Similarities in the sexual abuse.”

36. As a statement of tendency derived from the evidence identified therein, the Tendency Notice was sub-optimal. It did not in truth identify or articulate any tendency, leaving the party put on notice to seek to understand what was being asserted.

37. The requirement under the Evidence Act for notice of the asserted tendency to be provided is not a mere formality. It serves to give the party in respect of whom the tendency is asserted fair notice of the tendency that is sought to be established. That tendency needs to be articulated with clarity and precision because it supplies the framework for the Court’s determination of whether the evidence will, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value. [17]

    17. Bryant v The Queen (2011) 205 A Crim R 531; [2011] NSWCCA 26 at [50]–[51]; Andelman v R (2013) 38 VR 659; [2013] VSCA 25 at [73]–[75]; Elomar v The Queen (2014) 300 FLR 323; [2014] NSWCCA 303 at [348]; White v Johnston (2015) 87 NSWLR 779; [2015] NSWCA 18 at [139]; Taylor v R [2020] NSWCCA 355 at [122(i)].

38. As the High Court has explained in Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 at [41] (Hughes), to have significant probative value, the evidence sought to be adduced must strongly support (whether by itself or having regard to other evidence adduced or to be adduced) the existence of the tendency asserted, and that tendency must strongly support the proof of a material fact in issue.

39. In oral address before the primary judge, senior counsel for the Plaintiffs formulated the tendency as a “sexual interest in young children, and in particular in young female children”. [18] This was in turn different to the tendency said to be manifested by Mr Bird’s alleged “admissions” in relation to Child 1, namely a “tendency for inappropriate sexual dealing with children in his care”. [19] The Tendency Notice in this respect described the admissions as disclosing a tendency to:

    18. Black 1/259.

    19. Orange 267.

“a)   pat children's bottoms;

b)   cuddle children in his care;

c)   permit children to show their chests and vaginas;

d)   rub children's bare stomachs;

e)   sit children on his lap;

f)   rub children underneath their shirt;

g)   massage children and massage the lower part of their stomach;

h)   pat, squeeze and ‘scrunch’ children's bottoms;

i)   unintentionally touching child's vagina; and,

j)   put his hand down in front of child's underwear.”

40. Although, for the purposes of admissibility and determination as to whether the tendency evidence relied upon is of significant probative value within the meaning of s 97 of the Evidence Act, it is to be assumed that the evidence will be accepted as correct,[20] that does not mean that, for the purposes of its ultimate use by the trier of fact, the evidence or aspects of the evidence adduced as tendency evidence must be accepted. Acceptance of the tendency evidence relied upon by the Plaintiffs needed to have regard to Briginshaw principles because of the nature of what was being claimed in that evidence. If the evidence should not have been accepted taking into account Briginshaw, then it could not be used to support the tendency asserted either by itself or in conjunction with other evidence.

    20. IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at [44], [52] (IMM).

41. For present purposes, if the evidence of any of the other children which was relied upon as part of the tendency evidence in support of the allegations made by B or D should not have been accepted, or, as is put with regard to Child 1, should not have been admitted in the first place, that will necessarily impact whether the tendency was supported or supportable by the tendency evidence that remained.

42. So, too, with the evidence said to be derived from the alleged admissions. The analysis required was, first, to consider whether Mr Bird’s answers in his police interview amounted to admissions which demonstrated each of the tendencies as set out at [39] above. Secondly, if they did, it was necessary to consider whether each particular tendency established an overarching tendency for “inappropriate sexual dealing”. Thirdly and finally, there was to be consideration of whether that tendency in turn strongly suggested that the specific allegation in respect of which the tendency evidence was being deployed in fact occurred.

43. Although we will return to this in more detail below, a number of the matters referred to in [39] above are simply not strongly suggestive of a tendency for inappropriate sexual dealing with children, for example, cuddling them, patting their backs or tummies, sitting them on one’s lap or unintentionally touching their genitalia. Whilst “putting his hand down in front of [a] child’s underwear” undoubtedly would be suggestive of such a tendency, as shall be seen, Mr Bird made no admission of that kind in his police interview.

44. The primary judge gave particular prominence to the evidence of Child 1, and there is no doubt that on its face it was very damaging to Mr Bird. It was Child 1’s complaint that had led to his arrest and interview with the police on 11 November 2010. Child 1 had been interviewed by the police on the same day, having made disclosures to her mother on the previous day about her interactions with Mr Bird. Child 1’s evidence was considered by the primary judge at PJ [348]–[376], with extensive portions set out over several pages at PJ [352]–[362] and [369]–[370].

45. The primary judge found that Child 1 had been sexually assaulted by Mr Bird in the ways she had disclosed in her police interview. [21] Child 1’s evidence was also referred to and relied upon by the primary judge in reaching her conclusions that the claims made by B and D were sustained. [22] It was also relied upon for the purposes of the admission of the other tendency evidence. Thus, the primary judge said:[23]

“That there were issues as to the children’s understanding of the concepts of truth and lies at the time they made their disclosures and that they could not be cross-examined did not detract from the conclusion that having regard to other evidence adduced or to be adduced, the disputed evidence did have significant probative value and was thus admissible as tendency evidence.” (emphasis added)

21. See PJ [376].

22. See, for example, PJ [333], [394], [407(27)].

23. PJ [112].

46. The admissibility of Child 1’s evidence was hotly contested. It was ultimately admitted by the primary judge for the reasons supplied at PJ [63]–[84]. That reasoning, and the admission of Child 1’s evidence, are the subject of several grounds of appeal which are dealt with at [58]–[79] below. It was common ground that part of that reasoning was flawed insofar as the primary judge mistakenly attributed to Child 1 evidence as to Child 2’s state of mental health and the impact upon Child 2 of the matters she disclosed, as well as the attitude of Child 2’s mother to Child 2 giving evidence. This is also considered at [63]–[65] and [71] below and is one of the challenged factual findings to which we have already made reference.

47. If Child 1’s evidence was wrongly admitted (and for the reasons given later in this judgment, we consider that it was), then it could not have been used as part of the body of evidence relied upon in support of the asserted tendency, which was the only basis upon which it was admitted. But it plainly was so used and thus impaired the reasoning process.

48. It is also difficult to assess the extent (if any) to which the admission of Child 1’s evidence and the evidence of B (if it should not have been accepted), for example, may have influenced the primary judge’s adverse assessment of Mr Bird’s credibility, including her Honour’s rejection of his denials in cross-examination.

49. The adverse assessment of Mr Bird’s credit was also affected by a matter the primary judge described as relevant to her assessment of both Mr Bird and Ms Clancy’s credit, namely a breach by Mr Bird of an inter partes undertaking to the Plaintiffs. This has been touched upon at [17] above. According to her Honour:[24]

“it was relevant to take into account that the evidence established that Mr Bird, with the assistance of Ms Clancy, breached an undertaking not to dissipate his assets, pending resolution of these proceedings. It appears that proceeds of the sale of his house have been used to fund the defence.”

24. PJ [129].

50. Contrary to the primary judge’s view, which was not elaborated on beyond PJ [129], we do not agree that this matter was relevant and, when the short facts are considered, the matter her Honour was evidently referring to in fact shows Ms Clancy and Mr Bird in a positive light. It is convenient to provide a short explanation, at this juncture, for this conclusion.

51. On 7 April 2015, the Plaintiffs’ solicitors wrote to Garling & Co Lawyers (which then represented Mr Bird) stating: [25]

“Given that these proceedings are brought against your client personally, we require an undertaking from him that he will not remove or dispose of any assets, including real property, prior to the hearing of this matter. Would you please provide us with this undertaking within 7 days.

If your client refuses to provide this undertaking we will need to consider retaining an order under Part 25.11 of the UCPR.”

By letter dated 29 April 2015, Garling & Co Lawyers confirmed an undertaking by Mr Bird to that effect. The letter was signed by Mr Matthew Garling.

25. Blue 3/1186.

52. More than three years later, by email dated 18 July 2018, Ms Clancy wrote to Mr Garling stating that:

“We are preparing our house for sale and I just want to check that there is no legal reason why we can not sell with this matter still continuing?

We want to be sure we have more than enough funds to defend Rod.”

Mr Garling responded to this email shortly thereafter stating that there was “[n]o legal reason why you can[’]t sell your house, it is up to you and Rod.” [26] It is plain that Mr Garling had overlooked or forgotten about his letter of 29 April 2015 when giving his advice to Ms Clancy on the morning of 18 July 2018.

26. Blue 3/1187.

53. Whilst that was unfortunate, it is extremely difficult to see how this sequence of correspondence could redound to the discredit of either Mr Bird or Ms Clancy. Indeed, to the contrary, it shows a consciousness on Ms Clancy’s part of an issue as to whether the house could be sold whilst the proceedings were ongoing. This is why she sought legal advice, and it bespeaks a consciousness of wanting to act lawfully and properly. The fact that the legal advice was not correct should not have told against the credit of either Ms Clancy or Mr Bird, contrary to what was suggested in PJ [129].

54. Enough has been said on this point to highlight the complexities thrown up by the proceedings and the interrelationships between various matters. It is convenient at this point to summarise our principal conclusions before dealing with each matter individually.

Summary of key conclusions on appeal

55. For the reasons set out in the body of this judgment, we are of the view that:

1. the primary judge erred in admitting Child 1’s evidence;

2. Child 1’s evidence was an important component of the corpus of tendency evidence relied upon by the primary judge;

3. the primary judge also erred in greatly overstating the extent of the admissions made by Mr Bird in his police interview on 11 November 2010 in the context of her analysis as to whether the disclosures by B and D in relation to Mr Bird’s contact with them should be accepted. In particular, her Honour was wrong to have held that Mr Bird admitted to:

1. kissing children; and

2. putting his hand down the front of Child 1’s pants;

4. putting to one side the wrongful admission of Child 1’s evidence and the overstatement of Mr Bird’s admissions, the primary judge erred in concluding that the disclosure by B that Mr Bird had pulled down her pants was made out, bearing in mind s 140(2) of the Evidence Act. That disclosure, which supplied a key element of the primary judge’s conclusions in relation to B (see [12] above), was not only untested and untestable but was strongly undermined by inconsistencies and apparent retractions in B’s interviews with the authorities in 2011;

5. especially in light of the Briginshaw standard, A and B’s claims could not be sustained in light of the evidence that should have been excluded, the related problematic nature of the tendency findings, the proper characterisation of the so-called “admissions” and the unreliability of and inconsistencies in the disclosures made by B. The judgments in favour of A and B should be set aside and their claims dismissed;

6. in respect of the claims by C and D, the wrongful admission of Child 1’s evidence, the wrongful acceptance of B’s disclosures as true and the reliance placed upon them as tendency evidence, and the overstatement of Mr Bird’s admissions meant that the only evidence potentially available to support the asserted tendency of Mr Bird was the evidence of Child 2;

7. Child 2’s evidence was not sufficiently probative to support the asserted tendency and thus to support D’s claim;

8. by reason of the primary judge’s errors as noted above, the judgments in favour of C and D against Mr Bird, Ms Clancy and Little Pigeon must be set aside;

9. unlike A and B’s claims, C and D’s claims against Mr Bird, Ms Clancy and Little Pigeon should not be dismissed. There should be a new trial of these claims, although there would be obvious merit in the parties engaging in a mediation in an attempt to resolve them;

10. if, and to the extent that, the primary judge found that Ms Clancy, together with Little Pigeon, was vicariously liable for Mr Bird’s conduct (a matter that is not wholly clear on the primary judgment), Ms Clancy’s appeal in that respect should be upheld in any event; and

11. the primary judge’s conclusion that Ms Clancy and Little Pigeon were directly liable in negligence should also be set aside.

56. These conclusions mean that the appeals in relation to the findings of liability against Mr Bird, Ms Clancy and Little Pigeon and the awards of damages in favour of A, B, C and D must succeed.

Structure of balance of reasons

57. The balance of these reasons adopts the following structure:

1. should Child 1’s evidence have been admitted?

2. significance of the wrongful admission of the evidence of Child 1;

3. errors in findings as to Mr Bird’s admissions;

4. admissibility of Mr Bird’s admissions against Ms Clancy and Little Pigeon;

5. did the primary judge err in her conclusion that the disclosures by B were made out and thus that Mr Bird committed assault, battery, sexual assault and/or trespass upon B?

6. did the primary judge err in her conclusion that the disclosures by D were made out and thus that Mr Bird committed assault, battery, sexual assault and/or trespass upon D?

7. did the primary judge err in concluding that disclosures made by Child 2 were established to the Briginshaw standard?

8. should there be a re-trial of D’s claim (and C’s related claim) or should those claims be dismissed?

9. taking stock;

10. vicarious liability;

11. liability of Ms Clancy and Little Pigeon;

12. overview of damages awarded; and

13. attacks on various aspects of damages awarded.

Should Child 1’s evidence have been admitted?

58. The tendency evidence insofar as it comprised the evidence of Child 1 was admitted over the strenuous objection of the Defendants. Child 1’s evidence was strongly adverse to Mr Bird in terms of the disclosures it contained.

59. The admission of Child 1’s evidence is a ground of appeal common to all of the Appellants and is expressed as an error in the primary judge’s finding that Child 1 was unavailable to give evidence. This ground of appeal turns on the proper construction and application of s 63 of the Evidence Act and the definition of “unavailability” in cl 4 of pt 2 of the Dictionary in the Evidence Act. It is also affected by what the Appellants assert (and the Respondents accept) was a significant factual error made by the primary judge in relation to Child 1 and the impact of Mr Bird’s alleged interference with her. [27]

    27. See [46] above.

60. The background to the admission of Child 1’s evidence is as follows.

61. The Tendency Notice served by the Plaintiffs gave notice of their intention to adduce evidence of disclosures made by six children, including B and D, to prove an alleged tendency of Mr Bird “for inappropriate sexual dealing with children in his care”. [28] Although the Notice referred to information provided by four children in addition to the two Plaintiffs, ultimately only Child 1 and Child 2 were relied on. No statement of Child 1 or Child 2 was served and, apart from the Tendency Notice, there was no indication that they would be called as witnesses until shortly before the trial, when it was indicated that it was proposed to issue a subpoena to Child 1 requiring her to give evidence. The Defendants objected that it was too late, and the application for leave to serve the subpoena (which was required because it was late) was not pressed. However, the primary judge did not foreclose the issue of a subpoena to Child 1. [29]

    28. PJ [92].

    29. Black 1/36W–38F, 47R–48K, 250T–X; cf, T 137.35–40.

62. The primary judge admitted hearsay evidence of disclosures made by Child 1 to her mother and in her recorded police interviews, pursuant to s 63 of the Evidence Act, on the basis that Child 1 was relevantly “unavailable” to give evidence. Her Honour gave short reasons for this in the course of the hearing, as follows: [30]

“I have, again, decided that the objections can’t be upheld and I will give reasons for that in due course when giving judgment. Just for the moment, let me say this, the evidence of Ms Buchanan does suggest from something that the mother said to her at one point that the child may have some memory of what happened to her, but that in terms of the definition of unavailability, there’s a distinction drawn between reasonable steps to secure attendance and reasonable steps to compel attendance and I don’t think you can approach the construction of the legislative scheme in such a way that leads to the conclusion that reasonable steps to secure attendance must include steps to compel attendance and, hence, I think the objection can’t be upheld. Yes.”

30. Black 1/250.

63. As her Honour there foreshadowed, more elaborate reasons were provided in the primary judgment. In essence, they were that the combination of the evidence of Child 1’s mother and that of a psychiatrist, Associate Professor Quadrio, established that: Child 1 was psychologically affected by the events about which she would be asked if required to give evidence, such that she may well be re-traumatised by the experience; that her mother would do everything in her power to prevent Child 1 giving evidence; and that Child 1 had no memory of the relevant events (which finding was founded on her mother’s evidence that she had not spoken about them for nine years).

64. The primary judge dealt with the matter at PJ [37]–[84] and in particular at [63]–[84]. At PJ [63]–[68], her Honour said:

“63   The position in relation to the disputed evidence about child 1’s disclosures was different.

64   It was not accepted that it was admissible, there being no evidence from child 1 that she had no memory of what had happened to her at Footprints and no evidence from any medical expert about adverse consequences of calling her to give evidence.

65   To establish that child 1 was unavailable, the plaintiffs relied on her mother’s evidence, that of their solicitor Ms Buchanan and an opinion of Associate Professor Quadrio, an expert who had provided reports in relation to B.

66   Child 1 was aged 4 at the time of her first disclosures in 2010 and 5 when last interviewed by police. Whether she still has any memory of what happened is not clear.

67   Ms Buchanan described the steps taken to call evidence from child 1. Amongst other things her mother initially told Ms Buchanan that she did not wish child 1 to be involved in the proceedings, because there had been long lasting impacts from what had happened and she did not want child 1 traumatised further; that child 1 had mental health issues; and that she was undergoing counselling for trauma, stress, anxiety and depression.

68   In August 2020 the mother also told Ms Buchanan that child 1’s therapist had advised that if child 1 was given free rein, all she would talk about was what had happened to her at Footprints. Thus she still would not permit child 1 to be involved in any way. This advice suggested that child 1 did have some memory of the events.” (emphasis added)

65. The parts of the above paragraphs which have been emphasised found no support whatsoever in the evidence and, as noted above, were accepted by senior counsel for the Respondents to be erroneous. The primary judge appears to have conflated evidence in relation to Child 2 with evidence in relation to Child 1. The error was also illustrated by reason of the evidence of Child 1’s mother, given through the Respondents’ solicitor, that Child 1 had not spoken of Footprints or what had occurred there for the nine years prior to 2020. [31]

    31. Blue 3/951.

66. Clause 4 of pt 2 of the Dictionary in the Evidence Act defines the circumstances in which a person is unavailable to give evidence, as follows:

“4   Unavailability of persons

(1)   For the purposes of this Act, a person is taken not to be available to give evidence about a fact if—

(a)   the person is dead, or

(b) the person is, for any reason other than the application of section 16 (Competence and compellability: judges and jurors), not competent to give the evidence, or

(c)   the person is mentally or physically unable to give the evidence and it is not reasonably practicable to overcome that inability, or

(d)   it would be unlawful for the person to give the evidence, or

(e)   a provision of this Act prohibits the evidence being given, or

(f)   all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or secure his or her attendance, but without success, or

(g)   all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success.

(2)   In all other cases the person is taken to be available to give evidence about the fact.”

67. In holding that Child 1 was not available to give evidence, the primary judge took the view that cl 4(1)(f), insofar as it refers to securing the attendance of a witness, does not refer to compelling the attendance of a witness by subpoena, which her Honour considered was the subject of cl 4(1)(g). Indeed, her Honour misquoted cl 4(1)(g) as if it referred to “compelling attendance”, when in fact it refers to “compel[ling] the person to give the evidence”, stating:[32]

“The definition of ‘unavailable’ draws a distinction between ‘reasonable steps to secure attendance’ and ‘reasonable steps to compel attendance’: paragraphs (f) and (g) of the definition. It follows that the legislative scheme does not envisage that to establish that reasonable steps have been taken to secure attendance, that it must be shown that steps to compel attendance have been taken.”

32. PJ [76].

68. However, cl 4(1)(f), in referring to “securing the attendance of the person”, is concerned with steps taken to get the witness to court physically (or remotely), while cl 4(1)(g), in referring to “compel[ling] the person to give the evidence”, is concerned with steps taken to compel answers from the witness once their attendance at court has been secured. [33] It follows that her Honour applied an incorrect test.

    33. While this interpretation is clear on textual consideration, it is also supported by authority: see Mindshare Communications Ltd v Orleans Investments Pty Ltd [2007] NSWSC 976 at [14]–[18]; Seafood Imports Pty Ltd v ANL Singapore Pte Ltd (No 1) [2009] FCA 435 at [13]; Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd (2009) 258 ALR 598; [2009] NSWSC 769 at [11]; R v Suteski (2002) 128 A Crim R 275; [2002] NSWSC 218 at [13]–[19]; R v Alchin (2006) 200 FLR 204; [2006] ACTSC 53 at [2]–[5].

69. Reasonable steps to secure the attendance of a witness, where the whereabouts of the witness are known, will, at least usually, involve the issue of a subpoena to attend. [34] In the case of a child, a subpoena can be served on the child’s parent. [35] In the present case, nothing was done to secure Child 1’s attendance, beyond asking her mother. The fact that the mother stated that she would resist any subpoena to compel Child 1 to attend does not demonstrate that it is not a reasonable step to serve a subpoena. It was not for the Plaintiffs to determine whether the risk to Child 1’s health and welfare was such as to render it unreasonable for her to be required by subpoena to attend court to give evidence. That was a matter for the Court.

    34. R v Basanovic (No 4) [2015] NSWSC 1100 at [23]–[25]; Roo-Roofing Pty Ltd v Commonwealth (Ruling No 2) [2018] VSC 219.

    35. Uniform Civil Procedure Rules 2005 (NSW), r 10.12(5).

70. Her Honour considered that the risk to Child 1’s health rendered it unreasonable to compel her to attend, such that Child 1 was “unavailable” to give evidence. [36] However, the fact that giving evidence may be detrimental to a witness’ psychological health and welfare does not render the witness unavailable within the meaning of s 63 of the Evidence Act. While her Honour speculated that, had a subpoena been issued, an application to set it aside might have been supported by psychiatric evidence and therefore succeeded, [37] that could not be foretold and the Defendants were entitled to be heard in respect of any such application.

    36. PJ [67]–[68].

    37. PJ [72]–[73].

71. Moreover, as already observed, insofar as her Honour supposed that there was evidence, either from the mother or from a psychiatrist, that Child 1 was psychologically adversely affected by the relevant events, her Honour was in error. There was no such evidence. In this respect, her Honour appears to have confused evidence relating to Child 2 with Child 1. [38]

    38. See PJ [67]–[68].

72. The Respondents submitted that the primary judge’s conclusion that Child 1 was unavailable was a discretionary judgment, to which the well-known strictures of House v The King (1936) 55 CLR 499; [1936] HCA 40 applied; for this proposition, the judgment of this Court in Longhurst v Hunt [39] was cited. In that case, Stein AJA appears to have proceeded on the basis that satisfaction of the criteria in cl 4(1)(f) involved a discretionary judgment to which House v The King applied. [40] However, that was not the sole basis of his Honour’s decision that the trial judge in that case had not erred in rejecting certain evidence under s 63 of the Evidence Act, as it was held that its rejection was also supported under s 135(a). [41] Justice Sheller does not appear to have shared the view of Stein AJA in respect of cl 4(1)(f). [42] Justice Santow agreed with the judgment of Stein AJA, but did not expressly address the question. [43] The view of Stein AJA that the application of cl 4(1)(f) involved a discretionary judgment was not essential to the outcome.

    39. [2004] NSWCA 91; (2004) 42 MVR 267.

    40. Ibid at [43].

    41. Ibid at [34], [45]–[50].

    42. Ibid at [1].

    43. Ibid at [9].

73. There is nothing discretionary about a conclusion that a witness is unavailable within the definition in cl 4(1)(f). The question is whether the circumstances satisfy a test. Although evaluation may be required, no exercise of discretion is involved. The constraints on appellate intervention imposed by House v The King are not applicable.

74. It follows that her Honour erred in holding that Child 1 was unavailable to give evidence, and thus in admitting the hearsay evidence of her disclosures to her mother and to police. There was legal error in the conclusion that cl 4(1)(f), insofar as it refers to reasonable steps to “secure the attendance” of a witness, did not refer to compelling the attendance of a witness by subpoena; there was factual error in finding that there was evidence that Child 1 was psychologically adversely affected by the relevant events; and there was an erroneous conclusion that all reasonable steps had been taken by the Plaintiffs to secure Child 1’s attendance, when no more had been done than an inquiry made of her mother who was understandably protective and resistant and, critically, no subpoena had been served. The Respondents were entitled to choose not to compel Child 1 to give evidence. But if they so chose, they could not then have the benefit of hearsay of her disclosures on the basis that she was unavailable.

75. The Respondents submitted that such errors were not material, as if Child 1 had no recollection of the relevant events, then there was no point in requiring her to give evidence and risk re-traumatisation. However, the evidence that she had no recollection amounted to no more than her mother’s belief to that effect, derived only from the circumstance that she had not spoken about the relevant events for nine years. On the other hand, the disclosures attributed to Child 1 were perhaps the most specific and compelling of those made by all four children. Her disclosures alone were the subject of the ERISP of Mr Bird. The significance to the proceedings of the evidence of Child 1’s disclosures was, therefore, very great. Evidence of the disclosures of Child 1 ought not to have been admitted.

706   Mr Bird’s figure was calculated on the basis that up until the 2013 tax year when C’s net income dropped to $13,905, there had been no loss and that her earnings in the years that followed were lower than her 2012 earnings of almost $50,000, for 5 years until 2018, when they became $62,503. That was said to have resulted in total loss of earnings over 5 years, of $75,209, that being the difference between an assumed total income of $250,000 over that period, less what C actually earned, in total $174,791.

707   Thus the $75,209 figure, it was submitted, should form the basis of the calculation of a buffer. It was accepted, however that the calculation proceeded on the assumption that between 2012 and 2017, C’s income would not have increased beyond $50,000. It also assumed that without the career interruptions she had repeatedly suffered, C would have earned no more than she actually earned in the years since 2018.

708   I can see no basis in the evidence for these assumptions. They do not accord with how C’s income increased either before 2012, or from 2018. Had she not been injured as she was, I am satisfied that it is also likely that her income would have increased beyond $50,000 after 2012, as it did after 2018.

709   The accountant’s report explains the basis upon which the calculations relied on were made. They were not challenged by evidence, nor addressed in submissions. That being so I am satisfied that the damages claimed must be awarded.” (emphasis added)

218. PJ [703]–[709].

254. The errors alleged to have been made by the primary judge in awarding damages to C for past economic loss were said to flow almost entirely from her Honour’s reliance upon a report by a forensic accountant (the Vincents Report) which purported to quantify that head of loss.

255. In summary, Ms Horvath (for Ms Clancy and Little Pigeon, her submissions being adopted by counsel for Mr Bird) contended that “the basis on which [the primary judge awarded those damages] was factually, completely erroneous, because the material on which her Honour relied didn’t support the conclusion reached”. [219] That the Vincents Report formed a critical part of the relevant material was made clear by the primary judge at PJ [709].

     219. T 220.46.

256. The principal error alleged by Ms Horvath was the primary judge’s “projection forward” of the figures in the Vincents Report, absent any explanation as to the mechanics of such a projection and in circumstances where the Report was “prepared in 2014 [and] … did not have regard to C’s earnings to 2020, which were in evidence”. [220]

     220. Orange 37 at [74].

257. Ms Horvath summarised the evidence of C’s annual income as disclosing that “by 2018 it was at $80,000, 2019, $98,000, and 2020, $109,000, which was all a fairly significant increase over her salary in the 2010 to 2012 period”. [221] These figures were to be contrasted with Notices of Assessment issued to C by the Australian Taxation Office for the years ended 30 June 2010 to 30 June 2017 (excluding 30 June 2015), which respectively disclosed annual taxable income of $49,933; $55,505; $61,354; $13,905; $50,820; $29,604; and $49,574. [222]

     221. T 218.19.

     222. Blue 1/402–408.

258. In order fully to understand the primary judge’s process of reasoning to a quantum of $225,333.50, the relevant portion of the schedule of damages put forward by C at trial is reproduced as follows: [223]

“(a)  As per the Amended Statement of Particulars and the Forensic Accountant report, between 30 November 2010 and 31 December 2012 (109 weeks) a net loss of $137 per week is claimed, totalling $14,933

(b)   As per the Amended Statement of Particulars and the Forensic Accountant report, between 1 January 2013 and 1 August 2013 (30 weeks) a net loss of $1448.39 is claimed, totalling $43,451.70

(c)   As per the Amended Statement of Particulars and the Plaintiff’s evidence, between 2 August 2013 and 17 March 2020 (345 weeks) a net loss of $450 per week is claimed, totalling $155,250.

(d)   In addition, the Plaintiff was required to use her sick leave and annual leave at Ross Beaton as a result of her subject injuries including 19 sick days ($6,350.75) and at least 16 annual leave days ($5,348), totalling $11,698.75

$225,333.50”. (emphasis added)

223. Black 2/750–751.

259. In respect of paragraph (c) in the schedule of damages, C deposed that she estimated “the weekly net loss to [her] income as being approximately $450 per week”. [224] It was put to Ms Horvath that the quantum of damages awarded to C “coincide[d] broadly with a calculation of the $450 figure by the number of weeks involved”. [225]

     224. Blue 1/285 at [70].

     225. T 220.40.

260. C’s income was increasing between 2010 and 2012, no doubt with her growing experience. It increased in increments of approximately $5000 per annum. It increased in 2019 and 2020 by increments of $18,000 and $11,000 respectively. There were years following the charging of Mr Bird in which C took extended leave and her annual income dropped significantly as a result.

261. The figure of $155,250, in paragraph (c) of the extract from the schedule of damages, is simply the result of the multiplication of $450 in estimated weekly lost income by 345 weeks between August 2013 and March 2020. That calculation was undertaken in 2014, when the Vincents Report was prepared. If C had continued to work without the impact of the events the subject of these proceedings, it is likely that her annual income would have continued to rise by increments of at least $5000 per year and maybe more, as her experience between 2018 and 2020 suggested. On that basis, her salary by 2018 would have been closer to $90,000 per annum than $80,000. Although the reasoning in respect of this head of loss is sparse, the awarded quantum of damages, on the assumption of liability, was open to the primary judge.

262. C was also awarded a buffer against future economic loss in the sum of $111,000. The primary judge reached that conclusion for the following reasons: [226]

“712   $150,000 was claimed as a buffer and the defendants contended that nothing could be awarded.

713   Given that no past economic loss was claimed after 17 March 2020 and what was disclosed in C’s last tax return, it was the defence case that no ongoing loss in the future was established.

714   Section 13 is again relevant to assessment of damages for future economic loss …

715   C has recovered sufficiently to be working full time, but also performing work that exposes her to triggering events, which she cannot leave for good reason. I am thus satisfied that C’s future economic loss must be assessed on the basis that the evidence also establishes in her case that there is also a real risk that given the nature of her injury, her work and what it exposes her to, that her capacity to perform that work will also at times in the future be adversely affected.

716   Contrary to C’s situation before she was so significantly damaged by Mr Bird’s acts, given the nature of her still ongoing ill health, her guarded prognosis and vulnerability to exacerbation of that condition, she must also be awarded a buffer, which I also assess at $111,000.” (emphasis added)

226. PJ [712]–[716].

263. The Appellants’ overarching challenge to the buffer awarded to C for future economic loss was advanced on the basis that “it doesn’t at all accord with s 13 [of the Civil Liability Act]; doesn’t state the assumptions; doesn’t explain really at all why her Honour reached the conclusion that C ought be awarded a buffer of $111,000”. [227]

     227. T 233.35.

264. The principles governing the award of buffers for future economic loss are not controversial and were not put in issue in the parties’ respective submissions. In Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244; (2012) 61 MVR 443, Basten JA summarised those principles as follows (at [33]–[38]):

“33   The calculation of economic loss, whether in the past or for the future, involves a comparison between the actual circumstances of the claimant, as a result of the accident, and the circumstances which would probably have continued or come to pass but for the accident … the Court must also consider whether such a loss might have occurred independently of the accident.

…

35   The conventional approach to such an exercise is to assess the earning capacity of the claimant in monetary terms prior to the accident (usually on the basis of net weekly or annual earnings) and, where there is evidence of unemployment or employment at a reduced income thereafter, to assess the quantum of the difference up to the date of hearing (past economic loss) and to project the calculation into the future (future economic loss). The latter exercise will, again conventionally, be discounted by 15% on account of vicissitudes.

36   Such calculations produce precise figures, often resulting in awards expressed in dollars and cents. However, such precision is fallacious. Varying degrees of uncertainty will attend the hypothetical aspects of the calculation, rendering any degree of precision misleading.

37   Additionally, with respect to future economic loss, the exercise requires a discounting of the calculation in order to achieve a present monetary value for the assessed loss which, it is assumed, will accrue steadily over the remaining working life of the claimant.

38   Under the general law, it has long been accepted that, at least in some cases, the assessment will involve such a degree of speculation as to render a calculation by the conventional techniques inappropriate. In those cases, a lump sum is awarded by way of ‘buffer’, the court being satisfied on the probabilities that a loss will be suffered or, indeed, has been suffered.”

265. Also relevant to the award of buffers for future economic loss is s 13 of the Civil Liability Act, which provides that:

“(1)   A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant’s most likely future circumstances but for the injury.

(2)   When a court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury.

(3)   If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.”

266. At the time of the hearing at first instance, C was employed as a Senior Consultant with the firm Insight Consulting, a role which involved “working with families who are dealing with trauma”. She was earning “approximately $1,337.00 net per week”, compared to net weekly salaries of $1206.00 in 2010 and $1210.00 in 2017. [228] Although the primary judge accepted that “C has recovered sufficiently to be working full time”, her Honour reasoned that it was appropriate to award the buffer as C’s employment would “expose her to triggering events” which would, in turn, adversely affect her capacity to perform in that employment. [229]

     228. Blue 1/286.

     229. PJ [715].

267. On the Appellants’ argument, the finding as to C’s recovery was entirely incompatible with the buffer as awarded. It was said that if the primary judge had properly undertaken the exercise contemplated by s 13 of the Civil Liability Act, it would have become evident that “from at least financial year 2018, C had significantly recovered from her condition and was working at a high capacity”. [230] This was said to be supported further by the fact that on the pleadings, C’s claim for past economic loss did not extend beyond 17 March 2020. [231]

     230. T 233.28.

     231. PJ [715].

268. It was the Appellants’ case that the primary judge had reached these purportedly incompatible findings in reliance upon the expert evidence of Dr Stephen Allnutt, a consultant psychiatrist, who participated in an expert conclave with Dr Selwyn Smith on 25 August and 1 September 2020. During that conclave, both psychiatrists diagnosed C with an “adjustment disorder”, although Dr Allnutt considered that it was chronic. It was agreed that C also lived with a generalised anxiety disorder and an alcohol use disorder.

269. As to the effect of that prognosis upon C’s future earning capacity, the following answers were given: [232]

     232. Blue 5/1851–1852.

“E.   What is [Plaintiff C’s] prognosis?

DR SMITH:   I am of the opinion that her prognosis, particularly with early resolution of this matter, is good.

DR ALLNUTT:   Given the persistent symptoms many years after the index injury the prognosis is guarded for the foreseeable future.

…

F.   Has Plaintiff C’s earning capacity been diminished as a result of any psychiatric illness that you have identified.

DR SMITH:   Her earning capacity has not been diminished as a result of any psychiatric illness.

DR ALLNUTT:   Her performance at work was impacted by difficulties with concentration, anxiety which affects her pace of work and need to take time off, which results in lost income.

G.   If so, what is the prognosis for her return to an undiminished earning capacity?

DR SMITH:   Her prognosis for return to a[n] undiminished earning capacity is good.

DR ALLNUTT:   The prognosis is dependent on her recovery. Given that her prognosis is guarded for recovery for the foreseeable future, the return to undiminished earning capacity is guarded for the future.” (emphasis added)

270. The Appellants contended that this body of expert evidence provided an insufficient basis for the award of C’s buffer on three bases. First, C’s Income Tax Return for the financial year ended 30 June 2020 disclosed total income in the sum of $98,390.00, [233] while a payslip received during the subsequent financial year stated that C’s annual salary was to be $109,999.97. [234] Those figures significantly exceeded her pre-injury earnings.

     233. Blue 5/1883.

     234. Blue 5/1890.

271. Secondly, in his oral evidence, Dr Allnutt responded to a question from the primary judge as to C’s prognosis by stating that it was “guardedly positive”. [235] This was in contrast to his answer in conclave that the prognosis was “guarded for the foreseeable future”.

     235. Black 2/493.

272. Thirdly, the buffer awarded to C was precisely the same as the buffer awarded to A, notwithstanding: a 14-year difference in their respective ages, and therefore in the expected durations of their future working lives; the fact that C earned a higher income than A; and that “on the evidence, [C] seems to have a more optimistic prognosis”. [236] Mr Barry submitted that the apparently coincidental parity of the buffers awarded to A and C was not unilaterally demonstrative of error in the primary judge’s assessment of them, [237] following this exchange in argument on the appeals: [238]

     236. T 234.7.

     237. T 264.50.

     238. T 263–264.

“BELL P:   [Dr Allnutt] is dealing with plaintiff C, and he’s saying that plaintiff C … is guardedly positive, by way of contrast to plaintiff A. Now, it’s very odd that you get the same buffer for plaintiff A and plaintiff C, in circumstances where plaintiff A, Allnutt’s evidence is more pessimistic, i.e. a higher potential for interruption to her earning capacity, and she’s got more than twice the number of years in which she can continue to work.

GLEESON JA:   $5 an hour; it’s material.

BELL P:   $5 an hour less, and presumably, partly reflecting comparative levels of experience, especially given what you’ve said about A’s greater qualifications.

BARRY:   The primary judge had the advantage of seeing and hearing both witnesses, and presumably took a view in relation to that advantage.

BELL P:   It’s not something that really can be invoked on an economic loss claim, can it? … Assessments of economic loss really don’t depend on demeanour.

BARRY:   It can depend upon an assessment made in relation to how the judge believes that the witness is coping with the disabilities from which they are suffering.

BELL P:   That’s why we’ve got expert evidence in the area, isn’t it, because it’s outside the judge’s expertise? The difficulty on this head of damages is the one of – the identical figures don’t instil one with any confidence as to the basis on which they’ve been arrived at, because there are all sorts of reasons why they should’ve have been very different, by reference to the very evidence you’ve taken us to. That’s the difficulty.

…

BRERETON JA: Exactly, and isn’t what was required – going back to what the President put to your earlier about s 13, if her Honour had found ‘Well, I think it’s probable that over the remainder of her working life, plaintiff A will have periods totally roughly a year over the remaining 29 years that she won’t be able to work, and on that basis I allow a year’s salary.’ Now, that would make perfect sense and be unimpugnable, and that would comply with s 13 by showing the basis of her future circumstances, or the assumptions as to her future circumstances, that founded it. But in the absence of something like that, it’s just impossible to see how these figures would arise, isn’t it?

BARRY:   It’s not impossible, but if one can look at what the capacity to earn is, working out how many hours a week a person might be likely to lose, work out a percentage in terms of the weekly salary in relation to that particular person’s earnings, but some judges do it in terms of a 5 per cent or 10 per cent diminution [of] earning capacity and then work that out over a period of the balance of a person’s working life to come up with the kind of buffers that arise in this case. There are a numerous ways in which the task can be undertaken, but at the end of the day it’s a question of whether the figure is correct or incorrect or whether the figure is appellably [sic] wrong. Our submission is [that] it isn’t.”

273. The reference by Brereton JA to s 13 of the Civil Liability Act (see [265] above) picked up the contention that the primary judge’s assessment of buffers for future economic loss fell short of the analysis and reasoning required by that section. [239] Mr Barry’s response was that, although her Honour may not have followed the process set out by s 13 word-for-word, this did not amount to a failure to undertake the relevant exercise, and that strict compliance with the statutory language was not necessary for the award of a buffer.

     239. T 259.33; see, also, [263] above.

274. Mr Barry relied upon a number of decisions of this Court as authority for the proposition that a buffer may be awarded otherwise than in accordance with s 13, namely Penrith City Council v Parks [2004] NSWCA 201 (Penrith); Sretenovic v Reed [2009] NSWCA 280 (Sretenovic); and Burton v Brooks [2011] NSWCA 175.

275. Reliance on these authorities was misplaced. Although they stand as authority for the propositions that “[it] is appropriate to award damages by way of a buffer, including … where damages are to be determined pursuant to the Civil Liability Act, when the impact of the injury upon … exercising earning capacity after injury is difficult to determine”; [240] and that the determination of the difference between earning capacity prior to injury and earning capacity thereafter cannot be determined “otherwise than by the broad approach of a buffer”, [241] the award of a “buffer” does not displace the operation and requirements of s 13 of the Civil Liability Act.

     240. Sretenovic at [81].

     241. Sretenovic at [81]; Penrith at [3]–[5].

276. In Penrith, Giles JA accepted that even in the context of awarding a buffer, s 13 required the statement of “the assumptions as to exercising earning capacity before injury”. [242] So too, in Sretenovic, McColl JA (with whom Beazley JA agreed) made reference to the requirements set out in s 13 of the Civil Liability Act in holding that the primary judge in that matter had erred in formulating a buffer for future economic loss.

     242. Penrith at [5].

273. In our view, the primary judge’s assessment of C’s damages for future economic loss in the sum of $111,000, by way of a buffer, cannot be sustained. Not only was it non-compliant with the requirements of s 13 of the Civil Liability Act, which are directed to supplying some meaningful and transparent basis for the award of damages for future economic loss but, perhaps even more significantly, the fact that the damages awarded for this head of loss were identical to those awarded to A reinforces the perception that the figure of $111,000 was not calculated by reference to the particular circumstances of C.

274. In any re-assessment of damages on remittal, the buffer awarded by the primary judge could not be relied upon and would need to be re-calculated. On the evidence before the primary judge, if any buffer were to be awarded at all, it would a very modest figure.

275. Finally, in relation to future out-of-pocket expenses, C was awarded $52,828.61 as follows: [243]

“(a)   2x weekly consultation with a psychologist for 12 months at a cost of $300 per consultation = $31,200.00.

(b)   Monthly consultations with a psychiatrist for a period of 12 months at a cost of $300 per consultation = $3,600.00

(c)   Quarterly consultations with a general practitioner at a cost of $80 per consultation continuing for remainder of life expectancy = $5,328.61

(d)   The sum of $45 per month for the cost of anti-depressant medication for the next 5 years = $2,700.00

(e)   Buffer in sum of $10,000 to cover the costs of consultations with psychologist and psychiatrist on an as needs basis for remainder of life expectancy

$52,828.61”. (emphasis added)

243. Black 2/749.

280. It was accepted that the formulation of these figures relied heavily upon an expert report prepared by Dr Allnutt on 20 July 2018. [244]

     244. Blue 5/1780.

281. The claim for “2x weekly” consultations with the psychologist, that is, two consultations each week, was asserted to be in error on the basis of a misapprehension of the evidence of Dr Allnutt. The Appellants contended that Dr Allnutt had in fact recommended fortnightly consultations with a psychologist, that is, one consultation every two weeks, such that the quantum stood to be reduced by 75%.

282. As a further result of this error, on the Appellants’ case, a proportionate reduction of the buffer claimed by (and awarded to) C was required. Such a reduction was also said to flow from a separate misapprehension of Dr Allnutt’s evidence as recommending quarterly consultations with a general practitioner, where the Appellants contended for a notional buffer in the sum of $320. [245]

     245. Black 2/750.

283. It was conceded, on behalf of C, that the schedule of damages “included a misinterpretation of Dr Allnutt’s recommendation” as to the frequency of psychology sessions. However, that concession was limited to a reading of Dr Allnutt’s statement as recommending weekly (cf, fortnightly) sessions for 12 months. It was also conceded, consequently, that the relevant buffer “ought to be reduced by 50%”.

284. These concessions resulted in the re-calculation of C’s damages for future out-of-pocket expenses in the sum of $32,228 (as opposed to $52,828.61).

Damages awarded to D

285. The damages awarded to D are summarised at [245]–[249] above.

286. D was awarded exemplary damages in the sum of $70,000. Consistent with our observations in respect of an equivalent award of exemplary damages to B (see [250] above), such an award, and its quantum, was bound up with and will depend, at least in part, upon the nature and extent of any sexual assaults found to have been committed by Mr Bird against D. That is a matter that can only be resolved by the judge who will determine the question of Mr Bird’s liability (if any) to D. Without pre-empting any such consideration, it is difficult to see how, on the evidence, exemplary damages could be awarded against Little Pigeon and Ms Clancy (as opposed to Mr Bird) in any direct claims against them in tort or contract.

287. The Appellants also contended that the award of damages to D for non-economic loss ($260,000) was “beyond the reasonable range” and that the award of a buffer of $100,000 for future economic loss was “wholly speculative”.

288. In respect of the award of $260,000 for non-economic loss, the primary judge’s reasoning was as follows: [246]

“730  $400,000 was claimed. Mr Bird contended $25,000 would be awarded and the other defendants $50,000.

731   The harm which D suffered, pain and suffering and aggravated damages for injury to the [sic] her feelings caused by insult, humiliation and the like, must also be taken into account in her case, in the way that I explained in B’s case.

732   It is difficult to compare the seriousness of Mr Bird’s assaults on B and D, but fortunately all that D suffered before she recovered to her present position, does not seem to have been quite as serious as all that B suffered. D has also fortunately proven to be resilient enabling her also to recover well from the serious injury Mr Bird caused her.

733   Still the evidence established that D suffered a very serious injury for a child as young as her, one which she would not have suffered, but for his assaults.

734   I am satisfied that this must also result in a damages award which includes a component of aggravated damages.

735   Had D not recovered as well as she has, that award would have had to be greater. But account must also be taken of what D continues to risk during the remainder of her life, as the result of what Mr Bird did to her when she was such a young child.

736   I have thus concluded that D must be awarded damages of $260,000.”

246. PJ [730]–[736].

289. In response to these findings, the Appellants highlighted the following answers as agreed at the expert conclave between Dr John Kasinathan and Associate Professor Michael Robertson, consultant child and adolescent psychiatrists, in relation to D on 31 August 2020: [247]

     247. Blue 5/1936–1937.

“a.   Please identify the psychiatric disorder (including if relevant how it has changed from time to time);

Both experts agree the psychiatric disorder is likely post traumatic stress disorder previously.

b.   Please identify any other stressors, intervening events, circumstances, or pre-existing conditions which impacted upon any [sic] the development of the psychiatric disorder

Both experts agree that at age 9 the plaintiff experienced transient exacerbation of her symptoms likely attributable to her mother’s contributions to the Royal Commission.

c.   Has it continued to effect [sic] Plaintiff D? If so, how?

Both experts agree there was no evident psychopathology at the time of their examination and that Plaintiff D was following a normative trajectory.

d.   Does Plaintiff D currently require treatment for a psychiatric condition? If so, please specify the recommended treatment and (to the extent that you can) please identify costs.

Both experts agree there was no current treatment required.

Both experts agree that Plaintiff D should undergo a process of regular monitoring of her mental health. This could be through her general practitioner (GP) on an annual basis unless a more urgent need arose through emerging psychological distress, behavioural disturbance, or declining peer relationships or academic performance, in which case more specialist review might be needed.

The experts agree it is difficult to estimate what this cost might be given the ‘known unknown’ of the situation.” (emphasis added)

290. D’s school reports were argued to be entirely consistent with the joint opinion of Dr Kasinathan and Associate Professor Robertson, such that she was a “happy and very confident student who was rarely absent from school”. [248]

     248. T 244.18.

291. The Appellants also attacked the primary judge’s statement that “injury to … her feelings caused by insult, humiliation and the like, must also be taken into account in her case”,[249] in circumstances where D had no recollection as to what had occurred.

     249. PJ [731].

292. In response, Mr Barry emphasised the “quasi-discretionary” [250] nature of a general damages award and that this attracted a higher standard of appellate review which was not engaged by the primary judge’s assessment, particularly where such damages ought to “compensate for the particular manner in which the particular tort was committed”. [251]

     250. T 270.32.

     251. T 270.15.

293. The primary judge’s reasoning in support of this award of damages does not explain the basis for the inclusion of a component of aggravated damages, nor does it indicate what portion of the sum was awarded for that component. It also sits uncomfortably with the joint expert conclave report as to D’s disposition and normative trajectory. In our opinion, the quantum awarded for this head of loss was out of proportion to the injury apparently suffered by D. It should fall for re-assessment on any re-trial.

294. The primary judge’s reasoning in respect of the award of damages for future economic loss and superannuation to D was very brief: [252]

“740   A buffer of $30,000 was claimed for future out of pocket expenses and a buffer of $200,000 for general diminution of D’s earning capacity. Mr Bird contended that nothing should be awarded and the other defendants argued $25,000 would be awarded in respect of both future economic loss and future out of pocket expenses.

741   For similar reasons to those given in relation to B, I am also satisfied that given the nature of the injury which D suffered, her resulting susceptibility to further injury and the retriggering of her condition during the milestones in her life, I am satisfied that there must also be buffers awarded for these heads of damage of $25,000 for future out of pocket expenses and $100,000 for future economic loss and superannuation.”

252. PJ [740]–[741].

295. The $100,000 awarded for future economic loss and superannuation was the same amount as was awarded to B. The observations made above at [277] bear repeating in this regard. The primary judge’s reasoning to the award of the identical amount of damages to B was as follows: [253]

“678   The plaintiffs’ case was that a buffer had to be awarded, taking into account that B was a child and that what the future would hold for her was not known. That buffer should account for the risk which the psychiatrists discussed might arise over the course of a long working life ahead of her, B now being aged some 13 years that her injury would at times deteriorate.

679   Given the nature of the injury which B suffered, her resulting susceptibility to further injury and the retriggering of her condition during the milestones in her life, I am satisfied that there must be buffers awarded for these heads of damage of $25,0000 for future out of pocket expenses and $100,000 for future economic loss and superannuation.”

253. PJ [678]–[679].

296. This reasoning does not satisfy the requirements of s 13 of the Civil Liability Act. The assumptions upon which the buffer was assessed are not specified and resulted in a rolled-up and global figure which does not translate readily to the case of D, whose susceptibility to further injury was assessed very differently to B’s and made the corresponding amounts for damages by way of an identical buffer for each quite problematic.

297. This is not to say that D was not entitled to a buffer for future economic loss, but that the assessment of a buffer in the sum of $100,000 was not satisfactory, both as to the opaque manner of its computation and its lack of an evident relationship to the evidence led in support of D’s claim for such damages.

298. In this respect, it suffices to note that during their joint conclave, Dr Kasinathan and Associate Professor Robertson agreed that D had developed post-traumatic stress disorder and subsequently agreed upon the following conclusions: [254]

     254. Blue 5/1937.

“e.   What is Plaintiff D’s prognosis?

Acknowledging the risk posed by child sexual abuse to later mental health, both experts agree at present the prognosis was favourable.

f.   Please identify whether (and to what extent) the plaintiff’s ability to study and/or work in the future has or is likely to be affected by the Abuse.

Both experts did not see any current evidence of impaired academic function and no realistic expectation of impaired work capacity.

g.   Please identify whether (and to what extent), the Plaintiff is susceptible to re-lapse(s) or re-traumatization in the future, by reason of the Abuse?

Both experts agree there is theoretical risk of revictimization in any survivor of childhood sexual abuse, however, there was no current evidence of any concerns in this regard.

h.   Please identify whether Plaintiff D is likely to require treatment for a psychiatric condition in the future, by reason of the Abuse.

Both experts agree were Plaintiff D to experience a relapse, though they feel this would be unlikely, it is possible, she would require treatment for the re-emergence of post traumatic stress disorder or related conditions.

i.   Please identify some of the short term effects of child sexual abuse and whether the plaintiff describes experiencing some of these?

Both experts agree the plaintiff experienced symptoms of childhood post traumatic stress disorder, which is a recognised typical short term and ongoing effect of childhood sexual abuse.

j.   Please comment on what some of the long term effects of child sexual abuse are and whether this impacts Plaintiff D’s prognosis.

Both experts acknowledge extensive scientific literature in the area linking childhood sexual abuse with an array of psychopathological disturbances and substance use, as well as vulnerabilities to sexual revictimization and heightened risk of physical health problems. None of these appear to be an immediate concern in the case of Plaintiff D’s overall state of health, however should be kept in mind by any future healthcare provider.” (emphasis added)

299. This evidence suggests that there was little, if any, need for a buffer to be awarded to D for future economic loss.

Final orders

300. In proceedings 2020/310603 and proceedings 2020/311015 (Ms Clancy, Little Pigeon and Mr Bird’s appeals against A and B), the following orders should be made:

1. appeals allowed with costs;

2. set aside the orders of the primary judge;

3. in lieu thereof, order that proceedings 2013/375445 be dismissed with costs.

301. In proceedings 2020/310609 and 2020/310590 (Ms Clancy and Little Pigeon’s appeals against C and D), the following orders should be made:

1. appeals allowed with costs;

2. set aside the orders of the primary judge;

3. in lieu thereof, order that:

1. proceedings 2013/375437 and 2020/65223 against the Second Defendant (Ms Clancy) be dismissed with costs;

2. proceedings 2013/375437 and 2020/65223 against the Third Defendant (Little Pigeon) be dismissed other than in respect of the claims against Little Pigeon based upon vicarious liability, with those claims to be remitted to be determined by a judge other than the primary judge with costs of the proceedings at first instance to be costs in the cause;

4. grant C and D a certificate under the Suitors’ Fund Act 1951 (NSW).

302. In proceedings 2020/311016 and 2020/311017 (Mr Bird’s appeals against C and D), the following orders should be made:

1. appeals allowed with costs;

2. set aside the orders of the primary judge;

3. in lieu thereof, order that:

1. proceedings 2013/375437 and 2020/65223 against Mr Bird be remitted to be determined by a judge other than the primary judge with costs of the proceedings at first instance to be costs in the cause;

4. grant C and D a certificate under the Suitors’ Fund Act 1951 (NSW).

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Endnotes

Decision last updated: 06 July 2022