Cox v State of New South Wales - [2007] NSWSC 471

No judgment structure available for this case.

Reported Decision:
(2007) Aust Torts Reports 81-888

New South Wales

Supreme Court

CITATION: Cox v State of New South Wales [2007] NSWSC 471

HEARING DATE(S): 26 February 2007; 27 February 2007; 28 February 2007; 1 March 2007; 2 March 2007; 5 March 2007; 6 March 2007

JUDGMENT DATE :
14 May 2007

JURISDICTION: Common Law

JUDGMENT OF: Simpson J

DECISION: (1) Verdict for the plaintiff; (2) Defendant to pay the plaintiff’s costs of the proceedings; (3) Parties to bring in short minutes of order reflecting the findings and conclusions herein.

CATCHWORDS: TORT – NEGLIGENCE – personal injury – psychiatric/psychological harm – plaintiff bullied at primary school – reports of bullying to school authorities by plaintiff’s mother – severe anxiety symptoms – reliability of mother’s evidence – some discrepancies – no significance – duty of care – expert evidence – identification of psychiatric disability – causation – relevance of mother’s own psychiatric condition - DAMAGES – non-economic loss – economic loss – superannuation – discount for vicissitudes - EVIDENCE – hearsay – exceptions to hearsay rule – whether person who made representation is competent to give evidence of asserted fact – no recollection of asserted fact

LEGISLATION CITED: Civil Liability Act 2002 ss 5D, 31
Evidence Act 1995 ss 59, 63

CASES CITED: Geyer v Downs [1977] HCA 64; 138 CLR 91
Malec v J C Hutton Pty Ltd [1990] HCA 20; 169 CLR 638
March v E and M H Stramare Pty Ltd [1991] HCA 12; 171 CLR 506
Nader v Urban Transport Authority of NSW (1985) 2 NSWLR 501
Ramsay v Larsen [1964] HCA 40; 111 CLR 16
Richards v Victoria [1969] VR 136
Ruddock v Taylor [2003] NSWCA 262; 58 NSWLR 269
Trustees of the Roman Catholic Church for the Diocese of Canberra and Goulburn v Hadba [2005] HCA 31; 221 CLR 161
Williams v Eady (1893) 10 TLR 41

PARTIES: Benjamin Cox (Plaintiff)
State of New South Wales (Defendant)

FILE NUMBER(S): SC 20198/04

COUNSEL: D Wheelahan QC/P Biggins (Plaintiff)
R Sheldon (Defendant)

SOLICITORS: Whitelaw McDonald (Plaintiff)
Makinson d'Apice (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SIMPSON J

14 May 2007

20198/04 Benjamin Cox v State of New South Wales
JUDGMENT

1 HER HONOUR: In proceedings originally commenced in the District Court on 30 January 2003 the plaintiff, Benjamin Cox (now eighteen years of age), claims damages for personal injury he alleges he suffered (as a child, and continuing) as a consequence of the breach of a duty of care owed to him by agents of the defendant.

2 The circumstances of the claim are unusual, and may succinctly be stated as follows (although it will be necessary to set out, in more detail, what the plaintiff alleges, and the defendant’s response). The defendant is responsible for the conduct and administration of government schools in NSW. The plaintiff’s claim arises out of his enrolment in a government primary school in 1994 and 1995, as a small child (aged six and seven). He alleges that he was subjected, at the hands of an older student, to harassment and bullying; that the school authorities took no or inadequate steps to prevent the harassment and bullying, or to protect him from its effects; and that, as a consequence, he suffered and continues to suffer severe emotional, psychological and psychiatric injury.

3 There are significant complications. While it is accepted on behalf of the defendant that the plaintiff does suffer real and serious psychiatric and psychological dysfunction, it does not accept that it can be wholly, or even partly, attributed to the treatment he received at the hands of the older student; even less can it be attributed to any failure on the defendant’s part to intervene and prevent the conduct of the older student.

4 A short (and uncontroversial) history of the relevant events and circumstances is as follows. It will need to be expanded below. The plaintiff was born on 6 December 1988. In January 1994, at the age of five, he was enrolled in the Raymond Terrace Public School. His time there was unremarkable. In April of that year, his family having moved to a village called Woodberry, he was enrolled in the kindergarten class of the Woodberry Public School. There he was exposed to an older schoolboy, to whom I will refer as TH. Over a number of months in 1994, and into 1995, TH subjected the plaintiff to repeated harassment, with various incidents of bullying. On at least two occasions these incidents included physical assaults of a relatively serious nature. The plaintiff’s mother reported the events to the school authorities but the harassment and bullying continued. The plaintiff began to suffer from anxiety, with various symptoms to which I will refer in due course. Eventually, in September 1995, the plaintiff’s mother removed the plaintiff from the school. He was given psychiatric and psychological assessment and treatment.

5 At the beginning of the 1996 school year the plaintiff was enrolled in Year 1 in the Black Hill Public School, a small country school. There he experienced some anxiety but attended regularly.

6 In 2000, when the plaintiff was in Year 5, his family moved again, to Stroud. He was enrolled in the Stroud Public School. In 2001 the plaintiff was in Year 6 at that school. It became necessary for him to consider the selection of a high school for the following year. His anxiety condition re-emerged. He enrolled in the Dungog High School but attended for one day only. In March 2002 he was enrolled in Year 7 at the Gloucester High School, but experienced significant anxiety symptoms. His attendance was sporadic. In 2003 he was enrolled in a distance education programme conducted from Camden Haven High School, but, because of non-compliance with the work requirements, that enrolment was terminated at the end of the school year.

7 The plaintiff suffers from psychiatric conditions identified as Depression and Anxiety Disorder, Separation Anxiety Disorder, and Post-Traumatic Stress Disorder. These are unlikely to abate. He is unemployable and is in receipt of a disability pension.

8 It is the plaintiff’s case that his condition was precipitated by the conduct of TH, and that the Woodberry School authorities, for whose misfeasance the defendant is liable, in breach of this duty of care to him, failed to take any reasonable steps to protect him from that repeated harassment and bullying.

LIABILITY

9 Although the plaintiff gave evidence, the principal evidence in relation to events the foundation of the claim was given by his mother, Mrs Angela Cox. That was because the plaintiff has no recollection of the events in question. Mrs Cox was not a witness to the events; the evidence she gave in that respect was given from what she said had been told to her by the plaintiff from time to time. It was therefore hearsay evidence, prohibited by the hearsay rule contained in s59 of the Evidence Act 1995, unless subject to one of the exceptions that follow. This gave rise to an evidentiary issue – was the evidence admissible under any exception to the hearsay rule?

An evidentiary issue

10 It is useful to set out s59 in full. It is in the following terms:

“ 59 The hearsay rule—exclusion of hearsay evidence

asserted fact

11 The two relevant exceptions are contained in s63 and s64 of the Evidence Act. S63 applies in civil proceedings where the maker of the previous representation is not available to give evidence about an asserted fact. In those circumstances, by subs(2), the hearsay rule does not apply to:

“(a) oral evidence of the representation that is given by a person who saw, heard or otherwise perceived the representation being made …”

12 S64 applies in civil proceedings where the maker of the previous representation is available to give evidence about an asserted fact. In those circumstances, by subs(3):

13 At first blush, it would appear that the relevant section is s64: the previous representations about asserted facts were made (to his mother) by the plaintiff: that is, the plaintiff was, for the purposes of both sections, “the person who made the previous representation”. The plaintiff (apparently) was available to give evidence, and did in fact give evidence. However, the position is not as simple as that makes it appear. Part 2, clause 4 of the Dictionary to the Evidence Act clarifies the meaning of “unavailability of persons”. It provides:

14 “Competence” is further explained in s13, subs(3) of which provides:

“(3) A person who is incapable of giving a rational reply to a question about a fact is not competent to give evidence about the fact, but may be competent to give evidence about other facts.”

15 The debate between the parties concerned whether the plaintiff was, within the meaning of s13, competent to give evidence: that is, not evidence in general, but the evidence in question. That evidence concerns the treatment of the plaintiff by TH. When asked about the events the subject of the claim, the plaintiff responded that he had no recollection. Counsel who appeared for the defendant therefore argued that this was a rational reply and that it could not therefore be concluded that the plaintiff was not available to give evidence.

16 I concluded that this approach was erroneous. The “rational replies” that the plaintiff was able to give were not replies to questions about facts relevant to his claim, but were about facts relevant to his recollection. Once he replied that he had no recollection of the events, it had to be concluded that he was not capable of giving a rational reply to questions about those facts. That he was capable to giving rational replies to questions about his recollection is beside the point; the argument focussed upon the wrong fact. It is to be remembered that s63 applies where a person who made a previous representation is not available to give evidence about an asserted fact. The “asserted facts” are the assertions about what was done to him by TH. He was not able to give rational replies to questions about those asserted facts.

17 I therefore held that the plaintiff was relevantly unavailable to give evidence – that is, he was not available to give evidence about those asserted facts. Accordingly, the hearsay rule, by s63(2), does not apply to oral evidence of the representation given by a person who saw, heard or otherwise perceived the representation being made. On her evidence, the plaintiff’s mother, Mrs Cox, came into that category. Her evidence was therefore admissible.

The facts

18 Mrs Cox gave evidence that, when he attended the Raymond Terrace school the plaintiff: “… was doing really, really well, especially in sport”. After he transferred to the Woodberry School, she observed a change in his behaviour at home. He began to suffer headaches, experience nightmares, and his behaviour deteriorated. His schoolwork also deteriorated. He began refusing to attend school. She asked him to explain what was happening. Then she said:

“He told me that there had been a boy pinching things off him, schoolbooks, pencils, and he was shoving him into the walls at school, and he was scaring him.”

19 This was happening before school, at recess, and at lunchtime.

20 At the age of about 5 or 6 the plaintiff began playing football and this continued throughout the 1990s. Initially he played rugby league, but subsequently transferred to rugby union. He was, however, nervous before games, and refused to change in the change rooms or to use the toilets. He was taken to football, usually by his father, who was enthusiastic about his participation.

21 Mrs Cox said that on several occasions (in 1994) the plaintiff came home from school upset and crying. She spoke to a teacher at the school. She told the teacher what was happening. The teacher said that they would “keep an eye on Ben”.

22 Notwithstanding this, the plaintiff continued to be upset and to cry. He refused to sleep alone in his bedroom; he did not want to go out anywhere; he “just panicked” when his mother went out. He became clingy, like a toddler. His refusal to go to school escalated.

23 In February 1995 Mrs Cox had a further conversation, this time with the principal of the school, Ms Walmsley. Ms Walmsley knew that the perpetrator of the harassment was TH, and told Mrs Cox that TH suffered from Attention Deficit Disorder and that that could be the explanation for his conduct towards the plaintiff. She told Mrs Cox that they would try to keep the plaintiff and TH separate at school times.

24 At the beginning of the school year in 1995 the plaintiff still was reluctant to attend school. Mrs Cox persuaded him to do so. However, he experienced sleeplessness. Mrs Cox found it necessary to sleep with him in his room, and later had his sisters do so. She said:

“He just wasn’t the same boy that he used to be. He didn’t want to do anything, just cried all the time.”

25 Mrs Cox then recounted an occurrence of 23 February 1995. On that day she was telephoned by school authorities to advise of an incident. She went to the school. She found the plaintiff “shaking and crying” with red marks on the front of his neck and what looked like burn marks on the back of his neck. A teacher told her that a student had attempted to strangle the plaintiff with his hands and that Ben had actually “fallen onto the ground unconscious”.

26 Later in the day she spoke to the vice-principal (then Mr Valor) who told her that he would reprimand TH. Later still, she had a conversation with the plaintiff, who told her that TH had hurt him (the plaintiff) again, that TH had choked him. That night he was severely traumatised. He did not return to school for about two weeks. Mrs Cox took the plaintiff to see the local doctor, Dr Sprogis, at a practice the Cox family attended. She did this because of the sleeplessness and the marks on his neck, and also because she was concerned about the unconsciousness. She said nobody knew how long he had been unconscious.

27 Dr Sprogis examined the plaintiff and referred him to Dr Mark Selikowitz, a “Consultant Developmental Paediatrician”. The plaintiff did not attend school for “a couple of weeks” but then returned.

28 Following these events, Mrs Cox spoke to yet another member of the school staff, who again told her that TH suffered from Attention Deficit Disorder and postulated that condition as an explanation for his behaviour. He asked if the plaintiff had done anything to provoke the attack to which Mrs Cox replied in the negative.

29 Mrs Cox then spoke to two officers of the Department of Education, apparently administrative officers, one in Maitland and one in Newcastle. She recounted the strangulation incident and complained that the school authorities had not acted. Her evidence was that one of the officers, Mr Ian Wilson:

“… told me that bullying builds character and that he thought it was a good thing that Ben got bullied.”

30 A few weeks later Mrs Cox took the plaintiff to another doctor in the family practice, Dr Margot Woods. She did this because the plaintiff was not sleeping, he was crying all the time, and suffered from headaches and nightmares and he would not leave her alone, but clung to her. Dr Woods referred the plaintiff and his mother to Dr Tony Turnbull, a Wallsend psychiatrist.

31 Mrs Cox said that when it was time for the plaintiff to return to school after the February 23 incident, he was “absolutely petrified”. She persevered and persuaded him to return. However, his nightmares and headaches continued; he would not leave the house; his schoolwork continued to deteriorate. She said:

“Before he even went to school, he could write his name, by that stage, he couldn’t write his name. He had gone backwards. He couldn’t dress himself. He was just a total mess really.”

32 Some time in the first half of 1995, but after the 23 February incident, the plaintiff told her again:

“… that [TH] was scaring him, pushing him into the walls of the school as he walked past him, jumping out from behind buildings, including the school toilets, and scaring him so much that he couldn’t even use the toilets at the time.”

33 At this time Mrs Cox noticed that the plaintiff would not use any public toilets; he was frightened that somebody would hurt him, and jump out and scare him.

34 Mrs Cox spoke again to Mr Elliott, then the vice-principal. On this occasion she was told that TH’s parents would be required to come to the school and supervise TH during recess and before and after school. The evidence does not disclose that this in fact occurred.

35 The plaintiff developed a severe stutter. This manifested itself when anything to do with the school was raised. He also began to become panicky when out of the house. Mrs Cox took him to a speech therapist for assistance with the stuttering. Because of the deterioration in his schoolwork he was enrolled in a reading recovery programme.

36 In July 1995 Dr Woods referred the plaintiff to Dr Peter Donald, a paediatrician. This was because he was “really insecure”; “more or less housebound”; and continuing to experience nightmares and headaches.

37 Dr Donald at first considered that the plaintiff might be suffering from Attention Deficit Disorder and suggested medication. Mrs Cox was not happy with this suggestion and made an appointment with Dr Selikowitz, to whom she had earlier been referred by Dr Sprogis.

38 On an occasion at the end of July 1995 Mrs Cox picked up the plaintiff from school at about 3.00 pm. He was crying. He was very red. When Mrs Cox asked him what had happened he replied:

“The big boy has hurt me again.”

39 Mrs Cox walked with the plaintiff back into the school, and again saw the vice-principal, Mr Elliott. On this occasion Mr Elliott said that TH would be placed on detention, that a letter would be sent home by the school, and that one of his parents would be required to come to the school and supervise TH. Again, there was no evidence that this proposal had been implemented.

40 The plaintiff did not return to school then for approximately two weeks. When he did return Mrs Cox was telephoned by the school to tell her that the plaintiff had been in a fight. On 8 August she went to the school to find the plaintiff in the office, crying, his mouth bleeding. A lower tooth was missing and his lip was swollen and cut and bleeding. Mrs Cox said that, when asked what had happened, the plaintiff told her:

“… [TH] had tried to shove his jumper down his throat – like into his mouth.”

41 Mrs Cox spoke to Mr Elliott, and the principal, now Mrs Corben. They told her (again) that a letter would be sent home to TH's parents, and that TH would be placed on detention.

42 At this point the plaintiff refused to return to school. Mrs Cox reported the circumstances of the incident to the local police. She understood that a local constable visited TH’s parents at home. She said that, two days later, when the plaintiff had returned to school, TH accosted him, saying:

“It was funny how the police came to my house. And if they come again, I’ll threaten to kill you.”

43 In September of that year the plaintiff stopped attending school altogether. Mrs Cox had a conversation with Mrs Corben, to tell her that she was taking the plaintiff out of school, and why. She said that this was because the school could not provide a safe place for the plaintiff and that:

“… I had just basically had enough of it.”

“I am not going to submit my son to any more bullying and hurting.”

“You lose some kids and keep some.”

44 The plaintiff’s last day at Woodberry School was 20 September 1995.

45 Thereafter Mrs Cox attempted to find another suitable school for the plaintiff. She first tried a Catholic school at Tarro, but the plaintiff refused to leave the car. Although Mrs Cox was being assisted by a truancy officer at the Department of Education, she was unable to locate a suitable alternative school during the remainder of 1995. She contacted Mr Wilson again, who repeated that “bullying builds character”. At the beginning of 1996 she was offered a choice of schools, at some distance from her home. She selected the Black Hill Public School because it was a very small country school, 13 kilometres from her home. Because there was no public transport she was provided with a travelling allowance for transporting the plaintiff.

46 Initially, on his enrolment at Black Hill, the plaintiff refused to leave the car. It was not until two weeks had elapsed that, with the help of the principal, she was able to persuade the plaintiff to attend.

47 Thereafter the plaintiff settled well into the school and this continued over 1996, 1997, 1998, and 1999, when the plaintiff was in years 1, 2, 3, and 4 respectively.

48 Notwithstanding his adaptation to the school, the plaintiff continued to have nightmares. Nevertheless, Mrs Cox felt:

“… like I had my little boy back.”

49 In 2000 the plaintiff recommenced school at Black Hill but during that year the family moved to Stroud where the plaintiff was enrolled in the Stroud Public School. Although he suffered some anxiety he attended school and completed that year. In 2000 and 2001 he travelled, with a number of other pupils (including his sister) on excursions to the Blue Mountains, and to the south coast. Both involved overnight stays. Mrs Cox had some concerns about his capacity to cope and made special arrangements for him to have access to a phonecard. She thought he would not have been able to participate had his sister not also been involved.

50 2001 was the plaintiff’s last year of primary school. He attended the Stroud Public School. However, it became necessary for him to consider enrolment in a high school, and his anxiety symptoms returned. Mrs Cox said:

“He got frightened again, his headaches came back, the nightmares started. He just saw the high school as, like, the big people were going to hurt him again.”

51 She sought the assistance of Mr Holloway, the principal of the Stroud Public School, with the intention of obtaining extra help for the plaintiff’s transition to high school. This was not forthcoming. The plaintiff began refusing to attend school. Mrs Cox said:

“… he wanted nothing to do with high school, nothing whatsoever.”

52 In June 2001 the plaintiff was referred to Dr Tony Slowiaczek, a child psychiatrist. Dr Slowiaczek invited the plaintiff to write a letter expressing his feelings. This he did on the computer at home. It became Exhibit A in the trial.

53 Dr Slowiaczek recommended family assessment at an adolescent psychiatric unit called Rivendell.

54 Attempts to identify a suitable high school for the plaintiff continued. Eventually Mrs Cox selected the Dungog High School. He attended on the first day, but during the day he telephoned his mother in tears. She described him:

“He was just a mess again, crying and wanted me to come pick him up. He could hardly talk, he was totally gone.”

55 She said:

“He was exhausted, he was just totally exhausted and it was like having, like it almost reverted back to being like a little child … He was sooky and kept near me again, wouldn’t leave me alone.”

56 He never returned to that school. He was then enrolled in the Gloucester High School, which involved about an hour’s travel. His attendance was sporadic.

57 It was in March of that year that a family assessment at Rivendell took place. The plaintiff was offered a residential place, but flatly refused to participate.

58 His progress at Gloucester “was really really poor”. The plaintiff put no effort into his school work and showed no interest in anything to do with school.

59 In June 2002 Mrs Cox consulted a clinical psychologist, Malcolm Robertson, who suggested more psychiatric counselling.

60 In July Mrs Cox was invited to attend a meeting with a school counsellor and the year 7 adviser at Gloucester High School concerning the plaintiff’s absences from school, which were, by then, quite significant.

61 On the referral of Dr Woods, Mrs Cox took the plaintiff to yet another psychiatrist, Dr Miller, who prescribed medication and provided some counselling. At this time it was recommended (by whom is not clear) that the plaintiff undertake distance education and this was put into effect for a time. However, the plaintiff’s application to the tasks set was so poor that, at the end of 2003, his enrolment was discontinued.

62 A sustained attack was made upon both the reliability and credibility of Mrs Cox. Her evidence was subjected to minute scrutiny. In written submissions it was suggested that she demonstrated:

“… readiness to tailor her evidence to meet the emerging exigencies …”

“ … a tendency … to exaggerate.”

63 Generally, I reject these criticisms. That is not to say that Mrs Cox’s evidence was not without its difficulties. In particular, her recollection of the times and duration of the plaintiff’s absences from school, especially in 1994 and 1995, did not always accord with objective evidence drawn from school records. (I interpolate here that I was provided with a large bundle of documentation from the Woodberry Public School, including what appear to be class rolls. However, I was given no proposed or suggested interpretation of these documents and no guidance as to what was sought to be made of them.) It will be necessary, in a different segment of these reasons, to pay considerable attention to Mrs Cox’s own psychiatric difficulties. However, on the whole, I found her to be a credible witness, doing her best to recount distressing events more than a decade old. It is, in those circumstances, hardly surprising if there is some confusion about dates, sequences of events, or the details of conversations.

64 By way of illustration, one criticism made of Mrs Cox’s evidence concerned her account of having taken the plaintiff to see Dr Sprogis. In this she was characterised as “unreliable”. This was because at one point she suggested that the consultation followed closely upon the event that precipitated the consultation, the 23 February occasion when TH was said have attempted to strangle the plaintiff. She said:

“It would have been very close to the time that it happened. It even might have been that afternoon, I don’t know.”

65 In fact Dr Sprogis’ report states that he was consulted on 1 March 1995 – eight days after the incident. I do not regard this discrepancy on the part of Mrs Cox as of the slightest significance. The answer quoted above shows that she did not purport to have any certainty about the date of the consultation. Of far more importance was the confirmation afforded to her evidence by Dr Sprogis. His report states:

“I was consulted by Benjamin Cox on 1/3/95 for insomnia and anxiety on going to bed. The symptoms seem to follow an incident where he was choked by another child while at school one week previously.”

66 In this report, the essentials of what Mrs Cox recounted in her evidence were clearly supported. That is, Dr Sprogis’ notes demonstrate consistency between what he was then told and the evidence given in these proceedings by him. That is the case in respect of many other matters on which criticism was made of her evidence.

67 Despite the sustained attack upon Mrs Cox’s credibility and reliability, no submission was made that I should not accept that the plaintiff had been the subject of conduct and assaults of the type of which she gave evidence. It is of some significance that no witness was called on behalf of the defendant relevant either to the question of whether the conduct had occurred, or, perhaps more importantly, as to the reports Mrs Cox maintained she had made to the school.

68 Accordingly, although there were some discrepancies between her evidence and objectively determinable facts, I accept, in broad outline, that the plaintiff was subjected to harassment, bullying, and assault at the hands of TH, and that Mrs Cox made repeated attempts to have the school authorities intervene and control the conduct of TH, and prevent repetition of that conduct. Minor variations in detail do not affect that conclusion.

69 One issue of which much was sought to be made concerned whether or not, following the 23 February assault, the plaintiff had lost consciousness; and the related issue of what Mrs Cox said or believed about that.

70 I have already recorded Mrs Cox’s evidence on this matter: she was, plainly, recounting what she recalled having been told by a teacher at the school. She was not herself present at the time of the incident, and, by the time she arrived at the school, the plaintiff was certainly not unconscious. It is true that Dr Sprogis’ report made no mention of unconsciousness; a subsequent report of Dr Woods (from the same partnership, but who first saw the plaintiff on 14 March 1995) also mentioned the assault (described as “an attempted strangling by an older child at the school”) and added:

“There was no report of loss of consciousness at the time.”

71 On the question of the acceptability of Mrs Cox’s evidence, I find this to be of no significance. The plaintiff’s response to the events did not, in my opinion, depend upon whether there had been loss of consciousness. Nor does Mrs Cox’s credibility stand or fall on her perception or recollection of what had been said to her about that.

The relevant legal principles

72 That the defendant, through the Woodberry School authorities, owed a duty of care to the plaintiff cannot be seriously doubted. The nature of the duty has been considered on more than one occasion but, again, is not controversial. In Geyer v Downs [1977] HCA 64; 138 CLR 91, both Stephen J in his individual judgment, and Murphy and Aickin JJ, in their joint judgment, with which Mason and Jacobs JJ agreed, cited, with approval, passages from Richards v Victoria [1969] VR 136. Murphy and Aickin JJ excerpted that part of the judgment concerned with the content of the duty of care, as follows:

“The duty of care owed by [the teacher] required only that he take such measures as in all the circumstances were reasonable to prevent physical injury to [the pupil]. This duty not being one to ensure against injury, but to take reasonable care to prevent it, required no more than the taking of reasonable steps to protect the plaintiff against risks of injury which ex-hypothesi [the teacher] should reasonably have foreseen.”

73 The passage excerpted by Stephen J sought to explain the rationale for the duty, as follows:

“The reason underlying the imposition of the duty would appear to be the need of a child of immature age for protection against the conduct of others, or indeed of himself, which may cause him injury coupled with the fact that, during school hours, the child is beyond the control and protection of his parents and is placed under the control of the schoolmaster who is in a position to exercise authority over him and afford him, in the exercise of reasonable care, protection from injury.”

74 Stephen J said:

“The duty which a schoolmaster ows to his pupil arises from the relationship between them and its temporal ambit will be determined by the circumstances of the relationship on the particular occasion in question. Children stand in need of care and supervision and this their parents cannot effectively provide when their children are attending school; instead it is those then in charge of them, their teachers, who must provide it.”

“It is for schoolmasters and for those who employ them, whether government or private institutions, to provide facilities whereby the schoolmasterly duty can adequately be discharged during the period for which it is assumed. The schoolmaster’s ability or inability to discharge it will determine neither the existence of the duty nor of its temporal ambit but only whether or not the duty has been adequately performed. The temporal ambit of the duty will, therefore, depend not at all upon the schoolmaster’s ability, however derived, effectively to perform the duty but, rather, upon whether the particular circumstances of the occasion in question reveal that the relationship of schoolmaster and pupil was or was not then in existence. If it was, the duty will apply. It will be for the schoolmaster and those standing behind him to cut their coats according to the cloth, not assuming the relationship when unable to perform the duty which goes with it.”

75 Murphy and Aickin JJ also cited as “the classic formulation of the duty owed by a schoolmaster to a pupil” that drawn from Williams v Eady (1893) 10 TLR 41, in the following terms:

“ … The schoolmaster was bound to take such care of his boys as a careful father would take of his boys, and there could not be a better definition of the duty of a schoolmaster.”

76 This was restated by Kitto J in Ramsay v Larsen [1964] HCA 40; 111 CLR 16 in the following terms:

“The breach of duty which the plaintiff alleges is a failure to take such precautions for his safety on the occasion in question as a reasonable parent would have taken in the circumstances.”

77 The facts in Geyer v Downs scarcely bear upon the present case. That was a case in which a pupil was physically injured as a result of conduct on the part of another pupil, in the absence of any supervision on the part of the school authorities. But the statements of principle extracted are of general application.

78 Counsel for the defendant sought to draw comfort from a more recent decision of the High Court, Trustees of the Roman Catholic Church for the Diocese of Canberra and Goulburn v Hadba [2005] HCA 31; 221 CLR 161. That was a case involving physical injury to an eight year old. The injury was caused to the plaintiff while she participated in a legitimate recess activity, in the course of which two other students blatantly breached school rules and caused her injury. The High Court observed that, although the plaintiff’s case had been presented as “a res ipsa loquitur case”, it was not that kind of case at all. They held that, despite significant factors pointing in the opposite direction, it was open to the plaintiff to establish (if she could) a breach of the duty of care owed to her by the school authorities. But, their Honours held, if she were to do this, it was incumbent upon her to demonstrate that there was some system of supervision which was an alternative to that which the school was using at the time of the accident, which was free of the risk of which the plaintiff complained, and which was available in a practical, as distinct from a general or theoretical, sense.

79 In the present case, counsel who appeared for the defendant relied upon that passage and also another in which the Court said:

“[25] Nor is it reasonable to have a system in which children are observed during particular activities for every single moment of time - it is damaging to teacher-pupil relationships by removing even the slightest element of trust; it is likely to retard the development of responsibility in children, and it is likely to call for a great increase in the number of supervising teachers and in the costs of providing them.”

80 Reliance upon Hadba is misplaced. The circumstances of the two cases are vastly different. Here TH was not engaging in a legitimate activity in an illegitimate or unauthorised way. On each occasion, in varying degrees, he was engaging in activity which was (or should have been) forbidden. Nor was any incident isolated. The conduct was, in various ways, repeated. Had the school staff decided, after the reports made by Mrs Cox, to implement more rigorous supervision of TH, there could have been no complaint of damage to the trusting relationship between teacher and pupils. Moreover, the suggestions that TH suffered from Attention Deficit Disorder imply that the staff were well aware of his behavioural problems. Neither the statements, not the result, in Hadba offer any comfort to the defendant.

81 I interpolate that in Hadba at [6], in a passage in which the facts were recounted, the Court observed (and presumably regarded as having some significance) that there was no evidence that the two children who had broken school rules had created any disciplinary problems in the past or had any tendency to behave dangerously. By contrast, TH's propensities were known to the school authorities independently of anything brought to their attention by Mrs Cox; and even if that were not so, the school was thoroughly on notice after Mrs Cox’s repeated complaints about the behaviour of TH towards the plaintiff.

82 In [21] the Court also reminded itself that there was no evidence of any serious accident on the equipment in the past, no evidence of pupils having behaved as these pupils did, and there was evidence that the school had a well-known and enforced policy against that kind of behaviour.

83 That further diminishes the applicability of the observations in [25], in which the Court considered that trust between teachers and pupils was of some importance in the educational function. That, in Hadba, was a factor contraindicating increased supervision. It may be contrasted with the present case.

84 Hadba has little to say that bears upon the decision in the present case.

85 It was also submitted on behalf of the defendant that the plaintiff adduced no evidence “of witnesses” who observed any of the incidents; “of locations” where the incidents are alleged to have occurred; “of layout”; or “of signs of impending trouble”. This was said to be significant because there was an absence of evidence from which it could be inferred that the conduct of TH was observable by any of those in authority at the school. Again, this submission must be rejected. It ignores the evidence that the conduct of TH was expressly and repeatedly brought to the attention of various teachers, including at the highest level in the school. Unlike Hadba, this was not an isolated incident, which occurred unexpectedly, and which the school could not reasonably be expected to have foreseen. This conduct was conduct which was not only foreseeable, but of which the school had actual and repeated notice. As a consequence, it was necessary that the school take greater than normal steps to eliminate the bullying in this case. This was not a case of attempting to prevent something which may or may not have occurred; what was called for were steps that would eradicate a known course of conduct.

86 On the evidence I have already recorded, alone, I would have been prepared to find that the school authorities failed to exercise reasonable care to circumvent the attacks upon the plaintiff.

87 However, that is not all the evidence. Dr Keith Tronc provided an expert report and gave oral evidence.

88 Dr Tronc has been a primary school teacher and principal, a secondary school teacher, a teacher educator and Associate Professor of Education training both primary teachers and secondary teachers. His expertise is in the area of educational administration generally with special emphasis on issues of safety. He has written widely on educational issues.

89 In his report Dr Tronc dealt with the need for schools to implement effective anti-bullying programmes. He set out 23 specific items of “professional expectations and criteria” directed to the implementation of such programmes. I do not propose to set out the whole of his catalogue; it largely involves education of both staff and students; enforcement of strict policies; a management plan for eradicating bullying; the involvement of students as active participants in anti-bullying committees; and many variants and gradations of these.

90 Dr Tronc was not cross examined in such a way as to suggest that his approach was anything other than orthodox and conventional. It appears, to me, to make perfect sense. Moreover, no evidence was called on behalf of the defendant to suggest that any of these measures had been taken or considered at the Woodberry Public School. It is of some significance that it was clear that the defendant had itself taken expert advice and had been furnished with a report, but that no such report found its way into evidence.

91 Dr Tronc identified a series of deficiencies in supervision and in the school’s bullying prevention philosophy and methodology. He went so far as to express the view that, by reason of the persistence and seriousness of the assaults upon the plaintiff, TH ought to have been suspended from the school.

92 While I accept that the school had a delicate line to tread, it seems to me that there is considerable force in this view. Lurking in the background is the repeated suggestion that TH suffered from Attention Deficit Disorder. The defendant made no attempt to establish either that there was such a diagnosis, or even that the suggestion was reasonably based upon the observations of TH’s conduct, whether towards the plaintiff or otherwise. But it must be recognised that, if there were even a reasonably based suspicion of that diagnosis, then the school had a difficult task in balancing its duty to TH against its duty to the plaintiff. If that diagnosis were correct, suspension may not necessarily have been the correct approach, or, at least, the only correct approach.

93 But this is without real present significance; the fact is that the defendant made no attempt to explain the conduct of the school authorities or to show that they acted reasonably in all of the circumstances. And the evidence establishes to my satisfaction that the school’s responses to Mrs Cox’s repeated reports was dismally inadequate. The staff made no attempt to deal with a serious problem. In ignoring the behaviour of TH they grossly failed in their duty to the plaintiff.

94 Dr Tronc also criticised the school for failure to implement guidelines issued by the Department of Education for the management of critical incidents in schools. A “critical incident” is defined to include violence between students, or an assault upon a student. Two at least of the incidents may well have come within this definition. Dr Tronc commented upon a contrary view apparently contained in an expert’s report served by the defendant. This report was not evidence, and, apart from Dr Tronc’s response to it, I am in the dark as to its content. I do not find it necessary to enter into the debate, or to resolve the debate, as whether any of the assaults amounted to “a critical incident”.

95 In oral evidence, Dr Tronc expanded upon his answers, setting out where he considered the responses of the school to have been inadequate, and identifying what he considered would have been adequate or appropriate responses. For example, in relation to the 23 February incident (referred to in the evidence as the “choking” or “strangling” incident), Dr Tronc said:

“In my opinion an appropriate response would have been a fairly multi-faceted approach rather than mere reassurances of an oral nature. There should have been, in my view, conferences called with the parents of the alleged perpetrator of the bullying. In my view official reports should have been made to the Education Department by the school on the basis that such a serious incident as the causing of unconsciousness, that kind of assault is serious enough to constitute what is described as a critical incident in the New South Wales Department of Education’s policy at that time, and required witness statements and reports to go to the Education Department, so I would have thought that the school had an obligation to do that at the time.

It would have been more appropriate, or it would have been appropriate in my view for a good deal of communication to have occurred within the school so that all teachers were alerted to what had been alleged, and required to take special concern in observing the boy who had been named on a number of occasions as the perpetrator of the bullying. It would have been more appropriate to arrange for some sort of counselling of both boys, again in accordance with the Department of Education’s Critical Incidents Policy, where that is one of the fairly standard victim approaches that is recommended.

Certainly I am of the view, again in terms of the regime of sanctions which were then available in terms of behaviour management and disciplinary projects, that these incidents, particularly the repetitiveness of them and the seriousness of one or two of them, were enough to warrant suspension of the boy.”

96 In relation to the subsequent reports, up to the middle of 1995, Dr Tronc was of the view that the school response was insufficient and inappropriate; he would have expected for “something positive and active” to have been done, rather than the giving of mere reassurances. In relation to the July incident (the plaintiff being hit with a stick), Dr Tronc considered that the foreshadowed detention of TH was insufficient; that writing a letter to TH’s parents was one appropriate course of action; but that involving his parents in his supervision at the school was “totally inappropriate”.

97 Similarly, he considered that a response of detention and a letter to TH’s parents in relation to the incident of 8 August 1995 (attempting to stuff a jumper into the plaintiff’s mouth) was inadequate. He considered that the letter should have vigorously required TH’s parents to attend the school for a conference about his behaviour, and for some planning to take place about how best to protect the plaintiff. He considered that there should have been a good deal of communication with other members of staff so that teachers would be alert to the safety of the plaintiff and to scrutinise TH’s behaviour.

98 The approach taken on behalf of the defendant to Dr Tronc’s evidence, in cross examination, was somewhat disconcerting. In substance, the approach was that there was, in truth, nothing that the Woodberry School authorities could realistically have done to prevent the continued attacks. For example, Dr Tronc was asked if bullies are sometimes able to conceal their tendencies or behaviour; it was put to him that, on the assumption that TH had been spoken by police, and had continued to perpetrate the attacks, this suggested that he was “not easily deterred”; and, that being the case, that it was unlikely that he would be deterred by parallel action on the part of a teacher (it being implicit in the question that a teacher is a person of lesser authority and having fewer sanctions available than a policeman). Dr Tronc rejected the last part of the questioning; he placed some reliance on the fact that teachers are trained to deal with children and their discipline. The line of cross examination also overlooked the possibility of suspension of TH, or his removal from the school if he truly could not be controlled.

99 Considerable attention was also paid to the question of whether, on 23 February, the plaintiff had indeed lost consciousness. This was directed largely to the related question of whether the incident qualified as “a critical incident”. To my mind the issue is, at most, peripheral. Certainly, whether the plaintiff did lose consciousness, or did not, or whether it cannot be known, it is not determinative of any issue in the proceedings.

100 The evidence of Dr Tronc reinforces the view to which I would, in any event, have come. The school authorities responded quite inadequately to an escalating problem and failed to take such steps as were reasonably required to protect the plaintiff from the conduct of a plainly behaviourally disturbed older pupil.

101 Some gauge of the attitude of the school (and departmental) authorities is to be found in two items of evidence. These are the assertions (not denied) by Mr Wilson, on two occasions, that bullying builds character, and the remark by the school principal to the effect that some pupils would be lost to a school. These are revealing because they denote an attitude that does not suggest that any attention was paid to the amelioration of a serious situation.

102 The conclusion that the school authorities failed to discharge their duty of care to the plaintiff is therefore inevitable.

The plaintiff’s present condition

103 That the plaintiff now suffers from a severe psychiatric condition, to which various labels have been attached, and is unemployable, was the subject of general agreement.

104 Defining that condition need not occupy a great deal of this judgment.

105 The plaintiff has been the subject of intense scrutiny in a number of medical specialities. In a 2004 report to Centrelink, in respect of the plaintiff’s application for a disability pension, Dr Woods diagnosed major Depression/Anxiety, secondary to Post-Traumatic Stress Disorder, itself attributable to “severe bullying with near strangulation in primary school”. She described his current symptoms as “severe social phobia”, a “withdrawal from all activities involving contact with people outside the family”. In a section of her response to Centrelink’s questionnaire that directed her attention to the impact of the condition on the plaintiff’s ability to function, Dr Woods wrote:

106 In May 2003 Dr Leonard Lambeth, a psychiatrist, diagnosed moderate Depression, moderate Anxiety Disorder, Separation Anxiety Disorder and Asperger’s Disorder. Further investigation by Dr Geoffrey Rickarby, a psychiatrist specifically expert in Asperger’s Syndrome, excluded that disorder as a diagnosis. In April 2006 Dr Lambeth accepted the view of the expert better qualified in that respect, but adhered to the other diagnoses, and added to his list Post-Traumatic Stress Disorder.

107 Dr Rickarby examined the plaintiff at the request of another psychiatrist, Dr John Miller (from whom no report was in evidence). Dr Rickarby’s diagnoses were of Separation Anxiety Disorder and Developing Personality Disorder with criteria from both avoidant and schizoid criteria. He added that the Separation Anxiety Disorder was:

“… associated (with) School Refusal – eg to malign variety that destroys all normal development.”

108 Dr Lambeth found the plaintiff to be hyper-vigilant, unable to mix with children, unable to concentrate, and exhibiting great difficulty in separating from his mother. He noted avoidance, aggression and the need for ongoing treatment. He concluded the plaintiff would be:

“… extremely unlikely to be engaged in any remunerative employment.”

109 Dr Anthony Slowiaczek, a certified child psychiatrist, treated the plaintiff from June 2001. His most recent report is dated 28 February 2002, and was directed to the Rivendell Adolescent Unit, for the purposes of the family assessment to which I have already referred. Because Dr Slowiaczek’s reports are not recent, they are of limited assistance in evaluating the plaintiff’s present condition. However, Dr Slowiaczek gave oral evidence. It was then four to five years since he had seen the plaintiff. In June 2001 Dr Slowiaczek made a retrospective diagnosis of acute recurrence of Post-Traumatic Stress Disorder, precipitated by the need to select a high school for the following year.

110 Medical practitioners qualified on behalf of the defendant did not take issue with these diagnoses. In a report dated 28 July 2003, Dr Doron Samuell, who describes himself as a “clinical and forensic psychiatrist”, specified the plaintiff’s condition as severe Separation Anxiety Disorder. Although Dr Samuell provided several subsequent reports, he did not alter that opinion.

111 The plaintiff was also assessed, on behalf of the defendant, by Dr Anthony Milch, whose stationery describes him as a “child, family and adult psychiatrist”. Dr Milch provided an initial report, dated 3 November 2003, following his only personal assessment, which took place on 31 October 2003; and follow up reports, dated 26 October 2004, 30 March 2005, and 23 August 2005.

112 In his November 2003 report, Dr Milch found the plaintiff’s reported symptoms to have been consistent with acute Post-Traumatic Stress Disorder and Separation Anxiety Disorder, but did not find ongoing evidence of Post-Traumatic Stress Disorder. He rejected a hypothesis of Attention Deficit Hyperactivity Disorder. He considered the prognosis to be poor, that it was then unlikely (as has proved to be the case) that the plaintiff would complete formal education, and that he would be “significantly impaired” in employment. He did note some features of Asperger’s Disorder, but insufficient to qualify for a diagnosis, and he posited, as an alternative, evolving Personality Disorder with avoidant and schizoid features.

113 In his second report Dr Milch expressly adopted Dr Lambeth’s diagnosis of Separation Anxiety Disorder.

114 Although, as I have mentioned, different labels were attached to the plaintiff’s undoubted psychiatric disability, the differences in labelling do not appear to me to be of any major significance. Nor did the parties appear to attach any significance to the terminology of the diagnoses. No medical practitioner was cross-examined, either about the characterisation of the condition, nor about its existence, and nor about the severity. The true issue, as the parties recognised, concerned causation.

Causation

115 The plaintiff’s claim is governed by the provisions of the Civil Liability Act 2002. Part 1A of that Act is concerned with negligence; Division 3 with causation. Therein appears s5D, bearing the subtitle “General principles”. Subss(1) and (2) provide as follows:

“ 5D General principles

116 It has been said that the principles there embodied are in accord with the common law: Ruddock v Taylor [2003] NSWCA 262; 58 NSWLR 269 at [89] per Ipp JA.

117 The relevant “harm” for the purposes of s5D(1)(a) is the psychiatric condition and disability now suffered by the plaintiff. Subject to the application of subs(2), for the plaintiff to succeed, it is necessary that he establish that, but for one or more of the incidents of which he complains, he would not suffer the condition or conditions he now does.

118 Through their medical advisors, the parties attempted to explore, in great detail, the causes of the plaintiff’s condition. It is apparent (not surprisingly) that the medical advisors brought to this question a test of causation consistent with a medical approach. That is not identical to the legal approach. At times, the differential is apparent, and has the effect that some of the reports do not directly address the issue for determination. However, there is sufficient in the reports to reach a firm conclusion. It is convenient to begin with an analysis of the medical evidence called on behalf of the defendant.

119 A major focus of the analysis concerned the contribution, if any, made to the plaintiff’s present condition by what is accepted to be his mother’s psychiatric difficulties. She has a long history of depression, for which she has been treated, at times in hospital. There has also been depression diagnosed in other members of the family – the plaintiff’s father has suffered depression consequential upon workplace injury, and there are also reports (unconfirmed) of other relatives suffering from the same illness.

120 The defendant’s position on causation may be encapsulated as follows:

(i) even if the plaintiff did indeed suffer some trauma and/or anxiety at the time of the assaults and harassment in 1994 and 1995, his subsequent history of satisfactory school attendance, participation in school excursions and playing football demonstrates that the effect of the bullying came to an end shortly after he transferred to Black Hill Public School;

121 Dr Samuell, in his first report (28 July 2003), having referred to the various diagnoses, turned his attention specifically to the question of causation. Dr Samuell wrote:

“Children who develop separation anxiety will often develop this problem due to a constellation of factors. These include genetic predisposition, developmental factors and external events. In this case there are contributions from many sources.”

“In view of the nature of this current litigation, the core question of the impact that the earlier assault would have had on him is of course germane.

If the contemporaneous historical information that was provided to me is indeed accurate, it does support the contention that Ben experienced difficulties as a consequence of assaults by a fellow student.

It is now some time since those assaults occurred and I am not in a position to make a retrospective diagnosis of Post Traumatic Stress Disorder. I can say though that in my opinion the diagnosis of Post Traumatic Stress Disorder does not adequately account for Ben’s difficulties. The diagnosis is, at present, that of Separation Anxiety Disorder.

In my view the nature of Ben’s difficulties are (sic) likely to be at least bi-modal. In the first instance his exposure to the schoolyard problem was probably the cause of the school refusal, but in latter years, as an unremembered event, it has become the focus of misattribution due to the other factors I have described above.”

122 Dr Samuell concluded this report by writing:

“In summary, whilst I do accept that the events in 1994 and 1995 did contribute to the difficulties Ben experienced, other external, genetic and developmental factors are likely to have much greater explanatory value at present.”

123 Some time later Dr Samuell was asked a series of specific questions. Inter alia, he was asked to explain what he meant by “the focus of misattribution”. He replied that Mrs Cox attributes her son’s school refusal to the bullying and that, in his view, this was “a misattribution”. He wrote:

“The correct attribution of her son’s difficulties is more probably his relationship with his mother and his mother’s significant psychopathology.”

124 In that same report (dated 1 April 2005) Dr Samuell undertook an extensive examination of Mrs Cox’s developmental and psychiatric history. The source of his information is set out at the commencement of his report, and includes a large number of medical reports and hospital notes. Not all of these found their way separately into evidence. However, it was not suggested that Dr Samuell approached his examination of Mrs Cox’s condition on any false premise. He concluded that she suffered from an Anxiety Disorder and that her anxiety must be seen to have contributed significantly to the psychopathology in the plaintiff.

125 A key question directed to Dr Samuell is recorded in the transcript as follows:

“ … Specifically, is it likely that the plaintiff would be in the same position now if the alleged assault did not occur, that is, is it likely the plaintiff would have recovered from the bullying but for the over-enmeshed relationship with is (sic) mother?”

It is entirely possible

de facto

126 Dr Samuell was also asked, in the event that the additional material with which he had been provided caused him to vary his previously expressed opinions, to set out his then current opinion and the basis for the variation. He replied that he had not substantially altered his opinions. But he added:

“However, the role that Angela Cox has played in the evolution of her son’s difficulties cannot be understated. It seems to me more likely than not that Angela Cox may have both inadvertently caused and perpetuated her son’s separation anxiety resulting in a significant problem with school refusal. It is unclear in my mind now if the school assaults played any significant role in the evolution of the separation anxiety.”

127 In his final report, dated 20 April 2005, in response to a request for further clarification, Dr Samuell explained the last sentence of that answer. He wrote:

“My explicit meaning is that I do not know whether the assault has played any significant role in the evolution of the separation anxiety.”

128 Although Dr Samuell gave oral evidence, neither his examination in chief nor his cross examination threw any new light upon this issue.

129 Dr Milch also paid considerable attention in his reports to the issue of causation. In his first report (3 November 2003) he stated his opinion:

“… these symptoms and complaints are not referable solely or even primarily related to the incidents alleged to have occurred in 1994 and 1995.”

130 However, he added that:

“The alleged incidents were noted to have triggered substantive emotional and behavioural problems.”

“… [a]n enmeshed relationship … between Ben and his mother which had served to reinforce avoidant strategies.”

“7. The family history of psychiatric illness is likely to have played an exacerbating role with regard to the plaintiff’s current condition. Maternal depression will commonly amplify separation anxiety symptomatology and is often the primary aetiological factor. The father’s history of depression and injury has also had a substantive impact on the family functioning. The plaintiff also has a possible genetic predisposition resulting in depressive and anxiety symptomatology.”

131 In his next report (26 October 2004) Dr Milch referred to the report of a Dr Miller, a report which was not in evidence. Dr Milch commented upon, and in part disagreed with, the contents of that report. In particular, he questioned a statement which he described as “categorical” and which he extracted in his report as follows:

“Obviously it seems that the bullying this boy received at the commencement of kindergarten led him to being predisposed to ongoing anxiety about attending school which has been aggravated by an over enmeshed relationship with his mother.”

132 Dr Milch wrote that he agreed:

“… that bullying experienced at the commencement of kindergarten was a likely precipitating event to anxiety about attending school.”

133 On 30 March 2005 Dr Milch reported again in the following terms:

“1. In my assessment, it was my opinion that the psychiatric history of the plaintiff’s parents and in particular the plaintiff’s mother had had a significant impact upon the plaintiff’s own psychiatric condition. The document provided substantively supports this view and highlights the profound nature of such issues. Indeed, on the basis of the psychopathology described in this documentation it is my view that the psychiatric condition of the plaintiff’s mother alone would satisfactorily explain the plaintiff’s emotional and behavioural disturbance.”

134 Dr Milch then set out something of Mrs Cox’s psychiatric history and wrote:

“It is well recognised that such a level of parental psychopathology, with associated impairment in parenting capacity, and the associated recurrent periods of separation from the children are common aetiological factors in the development of and maintenance of Separation Anxiety Disorder and phobic avoidance strategies in vulnerable children. Both genetic and environmental factors will contribute to this vulnerability …

quite possible

highly likely

4. The enclosed subpoenaed documentation lead me to consolidate my opinion that the maternal psychopathology has been a primary factor in the development of the plaintiff’s emotional and behavioural disturbance and resultant disability and handicap.” (emphasis added)

135 On 23 August 2005 Dr Milch stated his opinion that the plaintiff’s condition is a complex one, with a range of contributing factors; in those circumstances he stated as his professional opinion that it would be inappropriate specifically to identify a single cause of the Separation Anxiety Disorder that he diagnosed and that to delineate a single cause of the disorder would be simplistic and incorrect. He restated this view on 27 September 2005.

136 In oral evidence Dr Milch was asked about the impact, if any, of the pre-existence of separation anxiety symptoms to his opinion. His answer was:

“The significance in this matter would be that the child was already vulnerable, had already experienced symptoms of separation anxiety and therefore would be more vulnerable to the impact of any additional stressors by nature of the underlying vulnerability. Separation anxiety is associated with both the experience of anxiety and avoidant behaviour. If that is present in the context of a trauma it is likely that the trauma will be more difficult to resolve.”

“… It was my assessment that there were many factors which had contributed to the development of Ben's substantive emotional and physical and behavioural vulnerableness which had continued and I was very concerned by his persistent anxiety symptoms and avoidant behaviour, all of which continue to magnify the problems. The issue with, the issues that I was concerned with in my report was that there were many factors in my assessment which had been germane to the development of this situation. Certainly the types of issues that were identified with regard to the mother's significant history of psychopathology is the type of context which, first of all, from genetic factors, and secondly from environmental factors, exposure to likely disorganised attachment, exposure to the recurrent experiences of separation and loss, exposure to the type of parenting strategies to manage issues as they came along, which would make Ben in this situation significantly vulnerable with or without a history of trauma. If trauma occurs in that context certainly it can significantly exacerbate that vulnerability. The way in which the vulnerability is then managed by the family is likely to have a profound impact upon the development and persistence of emotional or behavioural problems, and to consider the trauma on its own without consideration of these factors, from an assessment of a child and adolescent psychiatrist, it was my view that that was incorrect, that there were many factors which rendered Ben vulnerable and certainly in my experience I have seen the development of significant psychopathology where simply those factors alone have been evident without the history of trauma.”

137 Dr Milch said that he had understood from the history he had been given that the plaintiff had been vulnerable to stuttering and that the instances of bullying had precipitated an exacerbation.

138 When asked about the plaintiff’s avoidance of public toilets in the context of some instances of the bullying being said to have occurred in the vicinity of school toilets, Dr Milch proposed two possibilities: the first was that it was a direct consequence of the experience of bullying and was specific avoidance related to that; the second was that it was a manifestation of the plaintiff’s general experience of social anxiety. When pressed, he finally said:

“With regards to that, to that specific issue, certainly if there is a specific trauma that has resulted in specific behaviour, certainly it is more likely. As I indicated, there are other possibilities in this case, given his experience of anxiety and phobic avoidance in a range of circumstances. But certainly it is more likely that if there was a specific trauma associated with this, then that’s a specific response.”

139 Finally, Dr Milch accepted that, the plaintiff having been vulnerable, and having been exposed to the trauma, a psychiatric response was “certainly in part” caused by that trauma. He said:

“I would, I would agree with that proposition, however, it was caused by the trauma in the context of there being a range of other causal factors.”

140 I turn now to consider the medical evidence on this issue adduced on behalf of the plaintiff. Dr Lambeth, who, it will be remembered, diagnosed Depression, Anxiety Disorder, Separation Anxiety Disorder and (initially) Asperger’s Disorder, expressed the following opinion:

“… The depression and anxiety disorders are more probably than not the result of the constant harassment and assaults at the school, which occurred in 1994 and 1995. I have no doubt that there was almost certainly a Post Traumatic Stress Disorder arising from these assaults, but this is not something that is clinically evident at present. …

There is a history of depression in Benjamin’s mother. I do not think that this played a significant role in the aetiology of Benjamin’s disorders.

This is a young man who is now socially and educationally isolated, he is constantly anxious and afraid. He is, quite understandably, depressed and, in my opinion, it is more probable than not (indeed very highly probable) that this has resulted from the treatment he received early in his school year.”

141 Dr Lambeth repeated this opinion in a report of 11 November 2003. On 3 April 2006 Dr Lambeth reported again, apparently in response to a request for comment upon other medical reports. Specifically, this report is directed to the question of any cause of or contribution to the plaintiff’s condition by his mother’s condition. He accepted that it was “highly possible” that Mrs Cox’s history of depressive illness with possible abuse and chronic illness as a child, and the possibility of a variant of borderline personality disorder, would indicate a degree of genetic predisposition in the plaintiff. Depression in the plaintiff’s father was also an indicator of genetic predisposition in the plaintiff. He accepted that the plaintiff was “certainly vulnerable”.

142 He then added:

“However, vulnerability is not frank disorder. It would appear to me that Benjamin was a person at the time of the assaults upon him, who was very vulnerable to contracting some type of psychiatric illness, but the fact of the matter is that he was assaulted, and thereafter certainly appears to have deteriorated. Trauma is something it is very widely accepted that may cause psychological problems. …

I believe that one can view Benjamin as a child who at the time of the assaults upon him was very vulnerable, given the very high probability of a strong genetic history.

Benjamin may well at that time even have had the beginnings of an Anxiety Disorder, a Separation Anxiety Disorder, and even developing Personality Disorder.

Then he was assaulted. The question is whether this exacerbated pre-existing problems, and it most certainly did in my opinion. …

more probable than not

That being said, he was not a normal child, there was a genetic vulnerability, there may well have been subclinical disorders. Therefore the bullying impacted upon a person who was already at risk and any pre-existing problem was at very least exacerbated and prolonged.

I believe on the balance of probabilities

143 If anything, Dr Lambeth’s view was expressed more forcefully in evidence in chief. Dr Lambeth was specifically asked whether he had considered the question whether, had the bullying not occurred, and given the plaintiff’s undoubted genetic predisposition, he would have, eventually, come to the predicament in which he now finds himself. Dr Lambeth replied:

“… I considered that and I stated I believe that I don’t think he would have been. The bullying was the initiating factor. Now, we don’t know if there would have been some other episode later in his life that might have caused it. The fact is that this was the episode that caused the problem.”

144 In cross examination he was asked if there were any room for the view that the period of apparent relative calm between 1995 (sic – probably 1996) and 2001 evidenced “complete remission of any anxiety associated with the trauma”. Dr Lambeth replied in the negative.

145 Dr Lambeth was cross examined on the weight that ought to be given to evidence of the plaintiff’s condition and behaviour during that period – of satisfactory school attendance, participation in excursions, playing football. He declined to accept that the circumstances indicated that the plaintiff had recovered from the trauma of 1994 and 1995 and that his condition from 2002 represented, not a relapse or recurrence of the pre-existing condition, but, in reality, a new and different condition.

146 The evidence satisfies me that Dr Lambeth’s approach is to be preferred. It is wrong to characterise the period of “relative calm” between 1996 and 2001 as anything other than a partial subsidence of the plaintiff’s anxiety symptoms. He continued to manifest those symptoms, although to a lesser degree: he, throughout, refused to enter public toilets; he refused to change in the change rooms at football; he required extensive support during the school excursions.

147 That the symptoms flared up again on his contemplating high school is best explained by Dr Lambeth in his evidence in chief. He said:

“The incidents [which I take to mean various incidents of bullying] would lay down memories. This is typical of the way post-traumatic stress disorder is laid down and affects the brain. The memories are there and, of course, avoidance behaviour is what is necessary. Now, many people who have post-traumatic stress disorder, their avoidance behaviour is adaptive, so they adapt to their life by the use of avoidance. They are then able to live sometimes, for many years, a life in which there is no overt symptomology … We, therefore, know … that PTSD is essentially characterised by a delayed onset of symptoms in many, many cases.”

148 When properly examined the opinions of Dr Samuell and Dr Wilson do not exclude the 1994 and 1995 as a cause of the plaintiff’s present disability. They place far greater emphasis upon genetic and environmental factors, but (perhaps implicitly) recognise the impact of TH's behaviour.

149 On behalf of the defendant the following submission as to the application of s5D(1)(a) of the Civil Liability Act was made:

“93. s5D(1)(a) of the CLA introduces a test of causation which is different from the egg shell skull rule. The section requires, in the present case, that the Court be satisfied that the negligence was necessary to the development by the plaintiff of the conditions from which he suffers.

150 There are a number of flaws in this argument. Firstly, it misapprehends the relationship (if any) between s5D and the “egg shell skull rule”. The egg shell skull rule, as I understand it, makes a tortfeasor liable for injury caused by his or her tort, even where that injury is disproportionate (by reason of particular vulnerability in the plaintiff) to what might ordinarily be expected. It is not a rule of causation.

151 Secondly, the submission in para 94 overstates the evidence. Although the evidence was clear that the plaintiff was vulnerable, it did not go so far as to establish that that vulnerability “was apt to be uncovered by the ordinary stresses of life”. I would accept, as a matter of reality, that the plaintiff’s pre-existing vulnerability left him open to descent into periods of anxiety and depression. It did not establish that that vulnerability left him open to either the condition of Separation Anxiety Disorder or Post-Traumatic Stress Disorder.

152 Thirdly, this submission appears to assume that vulnerability in a plaintiff saves a tortfeasor from the consequences of his or her tort. That is not the effect of s5D.

153 Fourthly, the question relevant to causation is not whether or not the plaintiff would, in other circumstances and at some other time, have succumbed to his vulnerability and suffered some other psychiatric disorder. (That is a question which may be relevant to the assessment of damages, either on the principles stated in Malec v J C Hutton Pty Ltd [1990] HCA 20; 169 CLR 638 or in the assessment of the appropriate of any damages awarded by reason of vicissitudes.)

154 What s5D is directed to is the “particular harm” suffered by the plaintiff; and whether the negligence established was a necessary condition for the occurrence of that harm. (This, to my mind, is no more than a statutory formulation of the “but for” test that is familiar in tort law: see, for example, March v E and M H Stramare Pty Ltd [1991] HCA 12; 171 CLR 506; Nader v Urban Transport Authority of NSW (1985) 2 NSWLR 501 at 531, and the authorities there cited.)

155 The “particular harm” suffered by the plaintiff was the condition or conditions variously described by the psychiatric witnesses, as “Separation Anxiety Disorder”, “Post-Traumatic Stress Disorder”, and Depression. Having regard to the chain of events, and the evidence, that I accept, that during his period of partial respite, the plaintiff nevertheless continued to manifest symptoms of anxiety, related to the conduct of TH, I am satisfied that the negligence established was indeed was a necessary condition of the occurrence of that harm. It is not essential, for the purposes of s5D, that the negligence established the sole cause of the “particular harm”.

156 Accordingly, I am satisfied that the plaintiff has satisfied the causation test.

157 On behalf of the defendant, the following submission also was made:

“89. The ‘nature and conditions’ aspect of the allegations of bullying do not involve physical injury. In order to recover for any damage caused by this the plaintiff must prove that by virtue of it he suffers from a recognisable psychiatric illness: there is no evidence to support such a conclusion.”

158 A need to prove a recognisable psychiatric illness arises from s31 of the Civil Liability Act which provides:

Pure mental harm – liability only for recognised psychiatric illness

There is no liability to pay damages for pure mental harm resulting from negligence unless the harm consists of a recognised psychiatric illness.”

159 There is ample evidence, extracted above, that the plaintiff does suffer from a recognisable psychiatric illness. I reject the submission.

160 It follows that the plaintiff is entitled to an award of damages.

DAMAGES

161 The plaintiff claims damages under five heads:

(i) non-economic loss;

(ii) past economic loss;

(iii) future economic loss;

(iv) superannuation;

(v) out of pocket expenses.

Non-economic loss

162 The award of damages for non-economic loss is governed by s16 of the Civil Liability Act. No damages may be awarded under this head unless the severity of the non-economic loss is at least 15 percent of the most extreme case. A maximum amount is prescribed, but may be awarded only in a most extreme case. A table prescribes the amounts that may be awarded in respect of the non-economic loss, proportionate to the most extreme case, that is found.

163 The first task, then, is to determine whether the severity of the plaintiff’s non-economic loss is or is not at least 15 percent of a most extreme case.

164 I have no difficulty in finding that it is. His adolescence has been all but destroyed; his adulthood will not be any better. He will never know the satisfaction of employment. He will suffer anxiety and depression, almost certainly, for the rest of his life. He is unlikely to form any relationships, romantic or platonic. He has no friends and is unlikely to make any.

165 Given that his injury is, in effect, a whole of life injury, I accept, as proposed on his behalf, that the severity of his non-economic loss should be assessed as at 50 percent of a most extreme case.

Economic loss

166 Although the plaintiff’s injury dates back to 1995, when he was six, its real manifestation dates from 2001 or 2002. Because, at that time, he had established no pattern of employment, there is, of course, almost no direct evidence on which to base any real findings about what his employment would have been had he not suffered the injury. His father was, so far as the evidence discloses, a manual or unskilled worker, who suffered some injury at work, and some periods of unemployment. His mother, as set out above, suffered from psychiatric disabilities which largely excluded her from the workforce. I have already accepted that the plaintiff was vulnerable to similar periods of anxiety and depression, even without the negligence of the Woodberry School authorities.

167 The best I can do is to accept the proposition that damages for economic loss, both past and future, ought to be calculated in accordance with average weekly earnings.

Superannuation

168 It was proposed that an allowance of superannuation based upon 11 percent of the “net” ought to be made. No separate argument was addressed, by either party, to this. Subject to hearing any further submissions I would propose to accept this figure. Since it will be necessary for the parties to perform the calculations of damages, I will allow an opportunity for further argument in this respect.

Out of pocket expenses

169 No figure was provided in respect out of pocket expenses accumulated to date. It will be necessary for the parties to attempt to reach agreement on this issue.

Discount for vicissitudes

170 I have referred above to a potential impact of the plaintiff’s pre-existing vulnerability on the assessment of the discount to be made in respect of vicissitudes. This is not an easy question. I am satisfied that the allowance ought to be greater than the usual 15 percent. Counsel for the defendant proposed 30 percent. I will allow 25 percent.

171 The orders I make at present are:

(1) Verdict for the plaintiff;

(2) Defendant to pay the plaintiff’s costs of the proceedings;

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Citations

Cox v State of New South Wales [2007] NSWSC 471

Most Recent Citation

Tan v R [2008] NSWCCA 332

Cases Citing This Decision

12

Plaintiff A and B v Bird; Plaintiff C v Bird; Plaintiff D v Bird [2020] NSWSC 1379

Cases Cited

7

Statutory Material Cited

2

Geyer v Downs [1977] HCA 64

Ramsay v Larsen [1964] HCA 40

Roman Catholic Church Trustees for the Diocese of Canberra and Goulburn v Hadba [2005] HCA 31

CITATION:	Cox v State of New South Wales [2007] NSWSC 471
HEARING DATE(S):	26 February 2007; 27 February 2007; 28 February 2007; 1 March 2007; 2 March 2007; 5 March 2007; 6 March 2007
JUDGMENT DATE :	14 May 2007
JURISDICTION:	Common Law
JUDGMENT OF:	Simpson J
DECISION:	(1) Verdict for the plaintiff; (2) Defendant to pay the plaintiff’s costs of the proceedings; (3) Parties to bring in short minutes of order reflecting the findings and conclusions herein.
CATCHWORDS:	TORT – NEGLIGENCE – personal injury – psychiatric/psychological harm – plaintiff bullied at primary school – reports of bullying to school authorities by plaintiff’s mother – severe anxiety symptoms – reliability of mother’s evidence – some discrepancies – no significance – duty of care – expert evidence – identification of psychiatric disability – causation – relevance of mother’s own psychiatric condition - DAMAGES – non-economic loss – economic loss – superannuation – discount for vicissitudes - EVIDENCE – hearsay – exceptions to hearsay rule – whether person who made representation is competent to give evidence of asserted fact – no recollection of asserted fact
LEGISLATION CITED:	Civil Liability Act 2002 ss 5D, 31 Evidence Act 1995 ss 59, 63
CASES CITED:	Geyer v Downs [1977] HCA 64; 138 CLR 91 Malec v J C Hutton Pty Ltd [1990] HCA 20; 169 CLR 638 March v E and M H Stramare Pty Ltd [1991] HCA 12; 171 CLR 506 Nader v Urban Transport Authority of NSW (1985) 2 NSWLR 501 Ramsay v Larsen [1964] HCA 40; 111 CLR 16 Richards v Victoria [1969] VR 136 Ruddock v Taylor [2003] NSWCA 262; 58 NSWLR 269 Trustees of the Roman Catholic Church for the Diocese of Canberra and Goulburn v Hadba [2005] HCA 31; 221 CLR 161 Williams v Eady (1893) 10 TLR 41
PARTIES:	Benjamin Cox (Plaintiff) State of New South Wales (Defendant)
FILE NUMBER(S):	SC 20198/04
COUNSEL:	D Wheelahan QC/P Biggins (Plaintiff) R Sheldon (Defendant)
SOLICITORS:	Whitelaw McDonald (Plaintiff) Makinson d'Apice (Defendant)