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

This case involved appeals by Ms Clancy and Mr Bird against findings made by a primary judge concerning allegations of sexual assault against children at a childcare centre. The plaintiffs, identified as A, B, C, and D, brought claims in battery and negligence. The primary judge had found that certain tendency evidence, including disclosures by the plaintiffs and answers given by Mr Bird in a police interview, was admissible and established the asserted tendency to the standard required by *Briginshaw v Briginshaw*, thereby supporting the plaintiffs' claims. The appeals concerned the admissibility and weight of this evidence, as well as findings of negligence and the assessment of damages.

The appellate court was required to determine several key legal issues. These included whether the primary judge erred in admitting certain disclosures by the plaintiffs as tendency evidence, particularly when some witnesses were unavailable for cross-examination. The court also had to consider the admissibility of Mr Bird's alleged admissions in his police interview, both as tendency evidence against him and as vicarious admissions against Ms Clancy. Furthermore, the court needed to assess whether the primary judge correctly applied the *Briginshaw* standard of proof to the tendency evidence and whether the claims of negligence against Ms Clancy and her company, Little Pigeon, were established. Finally, the court was asked to review the assessment of damages awarded to plaintiffs C and D.

The Court of Appeal allowed the appeals, setting aside the primary judge's orders. The court found that the primary judge had erred in admitting and relying upon certain tendency evidence, particularly where witnesses were unavailable for cross-examination and the evidence was marked by inconsistency and unreliability. The court held that the admissibility of one piece of tendency evidence could affect the probative value of others, and that the judge's reliance on specific evidence could not be separated from the remainder. Consequently, the court concluded that the plaintiffs' claims, particularly those based on the admitted tendency evidence, had not been established to the requisite standard.

In consequence of these findings, the appeals by Ms Clancy and Mr Bird were allowed with costs. The orders of the primary judge were set aside. In Ms Clancy's and Little Pigeon's appeals against C and D, the proceedings against Ms Clancy were dismissed with costs, and proceedings against Little Pigeon were dismissed except for claims based on vicarious liability, which were remitted for redetermination. In Mr Bird's appeals against C and D, his proceedings were remitted for redetermination. Certificates under the Suitors’ Fund Act 1951 (NSW) were granted to C and D in relation to their appeals.