Fazldeen v State of New South Wales

[2025] NSWDC 41

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Fazldeen v State of New South Wales [2025] NSWDC 41

Hearing dates:

24-27 February 2025

Date of orders:

7 March 2025

Decision date:

07 March 2025

Jurisdiction:

Civil

Before:

Newlinds SC DCJ

Decision:

(1)   The Plaintiff’s claim is dismissed.

(2)   Judgment for the Defendant.

(3)   The Plaintiff is to pay the Defendant’s costs of the proceedings.

Catchwords:

NEGLIGENCE – Duty of care owed by school to a school student – Civil Liability Act – Formulation of risk of harm – Alleged inappropriate sexual relationship between 16-year-old school student and 22-year-old teacher’s aide/administrative assistant – State alleged to be liable – Failure of other staff at school to report rumours to principal – Finding that sexual relationship did not occur – Observations as to breach of duty, causation, and damages

EVIDENCE – Weight to be given to contested statements in business records when witnesses not called

Legislation Cited:

Crimes Act 1900 (NSW) s 73(3)(b) and (b1)

Civil Liability Act 2002 (NSW) s 5B

Evidence Act 1995 (NSW) s 69

Cases Cited:

Briginshaw v Briginshaw (1938) 60 CLR 336

Category:

Principal judgment

Parties:

Jordon Fazldeen (Plaintiff)
State of New South Wales (Defendant)

Representation:

Counsel:
G Smith (Plaintiff)
K Doherty (Plaintiff)
A Williams (Defendant)

Solicitors:
Beilby Poulden Costello (Plaintiff)
Makinson D’apice (Defendant)

File Number(s):

2023/208198

Publication restriction:

Nil

JUDGMENT

Introduction

1. On 26 May 2010, the Plaintiff, who was then 16 years of age, returned to his original school, Lightning Ridge Central School, part way through year 11. He was a young man who played in the local senior rugby league team. He was, in the context of 16-year-olds, sexually experienced.

2. Ms Maree Walford (“Ms Walford”) was then aged 22 years and was a casual employee of the School. She had worked there as a volunteer earlier in the year and commenced either as a “teacher's aide" or "administrative assistant", or both, on 4 May 2010. She was single.

3. Lightning Ridge is a small town. As might be expected, various members of the Plaintiff’s and Ms Walford's families knew each other. It seems clear enough that Ms Walford had met the Plaintiff earlier than May 2010. She remembered this at the time, but the Plaintiff did not. This is not surprising as Ms Walford is 6 years older than the Plaintiff.

4. The Plaintiff alleges that shortly after 26 May 2010, he had a relationship with Ms Walford, firstly of a sexual nature which quickly developed into a more meaningful, intense romantic relationship. The existence of that relationship, insofar as it is alleged to have been sexual or romantic, is denied by Ms Walford and is the threshold issue in this case.

5. The Plaintiff's evidence is that, at Ms Walford's insistence, they tried to keep the relationship secret, because Ms Walford told him that if they were found out she would get in trouble and, in particular, would “lose her job".

6. Ms Walford accepts that she and the Plaintiff were friends and spent some time outside school together. From time to time, she took the Plaintiff driving in her car (known locally as “lapping”), they saw each other at parties, at the football, at the hotel, and that they hugged as friends from time to time.

7. By September 2010, it is beyond doubt that salacious rumours, to the effect that some sort of inappropriate relationship existed between the Plaintiff and Ms Walford, were circulating throughout Lightning Ridge. By 3 September 2010, those rumours came to the attention of the principal of the School, Mr Tome, now Dr Tome. It was the Plaintiff’s mother who, on 3 September, brought them to his attention. She told him that the rumours were fact. Dr Tome reported the matter to those responsible for dealing with such issues within the Department of Education (“the Department”), and Ms Walford’s employment was terminated. At around this time, Ms Walford broke off the relationship. By 6 September 2010, an investigation conducted by people in the Department not associated with the School had commenced. Various people were interviewed as part of that investigation, two of whom gave evidence before me, being the Plaintiff's mother – Rhonda – and the Plaintiff’s sister – Hannah. Ms Walford wrote a letter to the investigators denying the allegation. She gave evidence to the same effect before me. None of the other people interviewed in the investigation gave evidence before me. I admitted as part of the evidence the Investigation Report as a business record. It contains transcripts of interviews people had with investigators. Despite being asked to do so, the Plaintiff declined to take part in the investigation.

8. The investigation identified no wrongdoing by Ms Walford, and she was exonerated. She has gone on to have a commendable career in education. She has taught at primary schools and in various institutions on various topics involving indigenous studies, including language, culture, and history.

9. The Plaintiff seeks damages against the State for psychiatric injuries he contends were caused by the relationship and in particular the trauma he suffered when it ended in September 2010.

10. On the Plaintiff's case, the sexual relationship was entirely and enthusiastically consensual. It took place at a time when he was 16 and Ms Walford was 22 and was employed at the School but was not a schoolteacher and had no direct or indeed indirect contact with the Plaintiff so as to teach him anything. To the extent that she was a teacher’s aide, she worked with kindergarten children.

11. The case as originally pleaded raised novel and difficult questions of law. The original claim included a plea that the alleged conduct of Ms Walford amounted to “sexual abuse" of the Plaintiff by Ms Walford for which the State was vicariously liable.

12. The proposition that the conduct was “sexual abuse” depended entirely on the premise that Ms Walford was something akin to a teacher at the School at the time and therefore, it was submitted that the question of consent fell away because the provisions of s 73(3)(b) and (b1) of the Crimes Act 1900 (NSW) (“Crimes Act”) are imposed onto the law of consent for the purpose of the tort of battery.

13. That submission confronted a number of apparent difficulties, not the least of which being that the Crimes Act was amended to include that particular section well after the events in question.

14. At the relevant time, the Crimes Act relevantly provided by s 73, that sexual intercourse with a child between 16 and 18 “under special care” could not legally occur even with consent, if relevantly “the offender is a schoolteacher, and a victim is a pupil of the offender”: s 73(3)(b) as it stood between 9 July 2010 to 9 September 2010.

15. Ms Walford was not, on any view of the evidence, a schoolteacher at the time. Rather, she was either a teacher’s aide in the kindergarten and/or some sort of administrative assistant in the office. Nor was she at any time any sort of teacher of the Plaintiff. In other words, he was never “her pupil”. Moreover, it does not follow as a matter of legal principle or logic that, because, by way of statute, consent is vitiated for the purpose of the criminal law in some circumstances, that same exception is grafted onto the civil law of intentional torts. I do not need to decide those issues because that aspect of the case was ultimately abandoned.

The claim

16. On the second day of the hearing, Mr G Smith, who appeared for the Plaintiff, abandoned the claim against the State based on the allegation that it was vicariously liable for the alleged “sexual abuse” or “battery” by Ms Walford of the Plaintiff, which left as the only issue for determination, a claim directly against the State for breach of duty of care. That case is not based on any vicarious liability of the State for any conduct of Ms Walford. It is a claim for breach of duty of care by the Department, based on an alleged failure to report “concerns” by various members of staff. That claim considerably developed and changed in substance from the way it was originally pleaded to the time it was finally articulated in an Amended Statement of Claim and final submissions.

17. In essence, the claim is that, at the time, the Department had in place a Code of Conduct (“the Code”) which was binding as a matter of policy and employment contract on all people employed at the School. It governed the conduct of employees of the School.

18. As might be expected, that Code expressly prohibited any sort of sexual relationship between any such person and a pupil at the school. In particular:

”9.3 You must not have a sexual relationship with a school student. It is irrelevant whether the relationship is homosexual or heterosexual, consensual or non-consensual or condoned by parents or caregivers.”

19. The Plaintiff's case is that Dr Tome ought to have been aware of the rumours earlier than he was, and therefore ought to have either terminated Ms Walford and put in place the investigation procedure that was ultimately carried out, or at least “had a word” to Ms Walford, which would have caused her to bring the relationship to an end. Either way, the consequence would have been an end to the relationship between Ms Walford and the Plaintiff at an earlier point in time than in fact it ended, which, so the argument goes, would have meant that the Plaintiff would not have suffered the psychological harm that the evidence establishes he suffered as a result of the trauma he experienced when the relationship in fact came to an end.

20. Relevantly, the Code provides:

“REPORTING SUSPECTED WRONGDOING

64. Reporting suspected wrongdoing

64.1 Staff should report any suspected risk of harm to children or young persons to the relevant principal or Executive Officer (i.e. officer in charge of the establishment) who must report the matter to the Department of Community Services (DoCS).

64.2 When a member of staff has concerns about suspected risk of harm to children or young persons relating to the actions of another member of staff, they should report the matter to the Employee Performance and Conduct Directorate, and if appropriate in terms of policy Handling Allegations against Department of Education and Training Employees in the Area of Child Protection, also report the matter in accordance with section 64.1.”

21. The Plaintiff relies on this provision and contends that, as various staff members were aware of the rumours (branded as “suspicions of risk of harm” or “concern”), they should have reported those rumours to Dr Tome. The State is said to be liable for their failure to do so.

22. Another way the Plaintiff puts the case is that it is contended that students at the School should have been taught that, if they become aware of the possibility of any inappropriate sexual relationship between a staff member and a student, that they should bring those matters to the attention of the School authorities, in particular the principal.

23. The Plaintiff's case is that the students were not told and encouraged to take such steps.

24. This aspect of the case falls away at the most fundamental level because I can identify no evidence one way or the other as to what students were or were not taught or told to do in this regard.

The issues

25. These reasons deal with the matter by answering the following questions:

1. Was there a sexual relationship between the Plaintiff and Ms Walford as alleged or at all?

2. What is the relevant risk of harm for the purpose of the Civil Liability Act 2002 (NSW) (“CLA”)?

3. Did any failure of any staff member of the School to act cause the principal's conduct to be delayed in a way that amounted to a breach of any duty of care to take reasonable steps to avoid that risk of harm?

4. Has it been demonstrated that, if Dr Tome had acted earlier, the outcome for the Plaintiff would have been any different?

5. What is the quantum of the Plaintiff's damages, if any?

26. Dealing with those questions in turn.

Was there a sexual relationship?

27. Mr Smith made it clear that essential to the Plaintiff’s case is a finding of fact that there was a sexual relationship between the Plaintiff and Ms Walford. As pleaded, it is described as “an inappropriate sexual relationship”. I do not think the adjective “inappropriate” adds anything to the notion of a sexual relationship, other than it being between a school student and a member of staff at the School, which therefore ought to have been reported.

The evidence

The Plaintiff’s evidence

28. The primary witness on behalf of the Plaintiff was, of course, the Plaintiff himself.

29. He gave evidence to the effect that the first meaningful interaction he can recall with Ms Walford was shortly after he returned from a boarding school in Dubbo in May 2010. It was after a football game, at the local hotel. He was somewhat of a local football star, having played in both the under 17s and the open teams that day. He said that Ms Walford approached him and was vivacious, flirtatious, and invited him to go to a party where she was going later that night and to meet her there. He was going to the party in any event and said he would see her there.

30. He says that when he got to that party, Ms Walford was waiting for him outside. They flirted, he got drunk, and very late in the evening at about 4am, she suggested they go elsewhere. He took her back to his house where his mother was either out or asleep, they had sex in his bedroom, and she left before dawn, having exchanged phone numbers. He knew she worked at the School and assumed she was a teacher, but none of their conversations that night touched on her work or her role at the School.

31. The Plaintiff’s case is that he enthusiastically participated in the sex. He found Ms Walford extremely attractive. He was keen to pursue the relationship further, and they thereafter regularly spoke on the phone, texted each other, and went for drives. His evidence is they met up at various locations where they would, amongst other things, have sex. He became extremely attached to her and described his feelings for her as “love” or to use his words “I was head over heels for her, I was like a mad hornet". Exactly when the relationship reached the point of “love”, “head over heels”, or “mad hornet” stages is not at all clear.

32. The Plaintiff says that Ms Walford was always very anxious to keep their relationship secret, because she made it clear to him that her understanding was that she would lose her job if they were found out. At the same time, somewhat inconsistently, neither of them had any difficulties driving around town “lapping” in the same car in full view of people and, when seeing someone that they knew, for example the Plaintiff’s sister Hannah, pulling over to the side of the road to speak to them.

33. Rumours started to circulate. It is not at all clear when this happened. As the rumours increased, the Plaintiff says that Ms Walford got more and more anxious and worried that they would be found out.

34. The Plaintiff says that, at some point, his mother confronted him about the rumours and that he expressly denied to her that there was any such relationship and told her in any event to “mind her own business".

35. He says that he was extremely upset when Ms Walford broke off the relationship with him in September. He thinks she did this prior to her finding out about the investigation. If that is right, it must have been within days of the investigation starting. The Plaintiff says that, after she lost her job, Ms Walford rang him and told him that it was all his fault that had happened, and this made him feel guilty.

36. The Plaintiff has had a very difficult life since then. Shortly after the event, the subject of this case, he took to heavily using marijuana, which over time progressed to addiction to various illicit substances, culminating in heroin. I will deal with this progression in detail when I come to the question of damages. However, for present purposes, it is sufficient to say that, since year 11, the Plaintiff has been a heavy user of drugs and alcohol, has spent significant periods of time in gaol, and has no history of employment to speak of. His case essentially is that all of this is a consequence of the alleged negligence of the School in failing to stop or bring the relationship with Ms Walford to an end earlier than, and in circumstances other than, it in fact ended.

37. In assessing the Plaintiff’s evidence, it is important to recognise that he was giving evidence about matters some 15 years ago, through the lens of that heavy illicit drug and alcohol use and significant gaol time.

38. The Plaintiff had some learning difficulties at school and is not particularly articulate. Nonetheless, despite some irritation when answering some questions which he seemed to think were unnecessary when it came to his fundamental evidence, that is that there was a significant sexual relationship between him and Ms Walford from sometime in May until sometime in September 2010, he was clear and unshaken in cross-examination.

39. Judged by reference to his demeanour, there was no apparent indicia of lack of credibility. However, objectively, there were a number of matters which, in my mind, cast doubt as to his credibility and/or the reliability of his evidence.

40. First, it is of some significance that the Plaintiff’s memory of events when the original Statement of Claim was filed and the basis upon which he gave histories to the relevant doctors, is that there was a point in time when his memory was that the sexual relationship lasted for about 12 months and commenced in year 10, which is, on any view of it, wrong in both respects.

41. Second, the Plaintiff's evidence was inconsistent with the evidence of his mother in a significant respect. The Plaintiff emphatically denies that he made any statement to his mother which could amount to an admission that he was in a sexual relationship with Ms Walford. On the other hand, the Plaintiff's mother gave evidence that it was the Plaintiff who, upon questioning by her, confessed to the relationship. The Plaintiff’s counsel relies on that statement to the mother as evidence corroborating the Plaintiff’s evidence, even though the Plaintiff is adamant he made no such statement.

42. The fact that the Plaintiff's memory as to the length of time the relationship lasted was originally significantly erroneous is to my mind not, on its own, particularly significant when assessing either his credit or reliability. The fact is, on his evidence, there was an intense romantic/sexual relationship, which on the objective evidence lasted for about three months. At a point in time, his memory may well have been that the period was 12 months. As to the discrepancy between his evidence and his mother’s evidence, that has more significance. It is clear that one of them has either an inaccurate or false memory as to an important conversation, but it is impossible for me to identify which one. This casts considerable doubt as to the reliability of both of them.

43. Third, there is one aspect of the Plaintiff's overall narrative which I found implausible. As I have said, his evidence is that part of the regular activities between himself and Ms Walford during the period of the alleged relationship was they would go for drives around town in her car. This is known locally as “lapping", which I understand to mean that people drive around Lightning Ridge in their cars, stopping to talk to people they know, and being seen by anyone out on the streets or in their cars. Whilst contending that he and Ms Walford went for such drives regularly and from time to time did stop and talk to people they saw on the side of the road – for example the Plaintiff’s sister – he also contends that, during the whole of this period, Ms Walford was significantly and increasingly concerned about being found out and anxious to keep the relationship a secret. It strikes me that the conduct of regularly and openly going for drives around town together is entirely inconsistent with any concern Ms Walford may have had about being caught.

28. This aspect of the Plaintiff's narrative I found implausible, and it casts doubt as to his evidence as a whole.

29. Fourth, the Plaintiff emphatically denied being asked to participate in the investigation. That is contrary to notes in the Department file and defies common sense. I do not consider this aspect of his evidence to have been truthful, which causes me to doubt his reliability and credibility.

30. Fifth, the Plaintiff’s evidence that, not only did he not participate in the investigation because he was not asked, but that he actually did not know about it at all, is utterly implausible in light of the fact that his mother, sister, and many other members of the community were interviewed. I do not think he was honest in that evidence, which again casts doubt on his reliability and/or credibility.

31. Finally, He was also lacking in candour, at best, when questioned in cross-examination about past firearms offences.

The Plaintiff’s mother’s evidence

48. The Plaintiff’s mother’s evidence, in part, contradicted the Plaintiff's evidence, in that she alleges before me and did so in a more contemporaneous interview she gave in the investigation, that the Plaintiff made statements to her when confronted by her with the allegation that he was involved in a sexual relationship with Ms Walford, in particular they were using appropriate contraception. The Plaintiff says this did not occur. They were both as emphatic as the other about their respective positions.

49. The Plaintiff's mother gave all of her evidence in a very emphatic, bordering on aggressive, manner. She is clearly very angry with Ms Walford and considers Ms Walford has done the wrong thing by her son. In her own mind, she is convinced that Ms Walford “groomed" the Plaintiff, so as to lure him into the sexual relationship. She explained to me that such conduct is very common in indigenous communities and occurred here. Yet, there was nothing in her evidence as to what she actually knows about the detail of any events that would justify a rational conclusion that there was grooming involved. If one accepts the Plaintiff's evidence, there was no grooming at all. The Plaintiff and Ms Walford, according to him, had sex on the first significant occasion that they got to know each other.

50. I found the mother's evidence to be given in a very strident manner which, albeit perhaps understandable from the perspective of an angry mother, made me have some doubt as to her reliability. Perhaps more importantly, I have already identified the significant discrepancy between the Plaintiff's evidence and the mother's evidence as to any admission made by the Plaintiff to his mother at the time.

51. There is another important aspect of the mother's evidence which is inconsistent with other evidence in the case. That is, she firmly and clearly denied being the person who had made the complaint to the School about the alleged relationship. Yet that evidence is directly contradicted by Dr Tome, the principal, who gave equally clear, and I found compelling, evidence that it was most definitely the Plaintiff's mother who complained to him and that he has a clear recollection of the phone call. I accept Dr Tome’s evidence generally and particularly where it contradicts the Plaintiff’s mother.

52. I think such a step would have been a significant matter at the time for the Plaintiff’s mother and find it close to impossible to believe that she has no memory of it and accordingly am satisfied that she was not being truthful when she gave the evidence that it was not her who reported the matter to the School.

53. I have concluded that it would not be safe to rely on the Plaintiff’s mother's evidence, which means I do not accept there was any admission by the Plaintiff to her, during the relevant period, of any sexual relationship with Ms Walford.

The Plaintiff’s sister’s evidence

54. The Plaintiff’s sister – Hannah – gave evidence to the effect that she was well aware of various rumours around town. I found Hannah to be a straightforward and honest witness who did not in any way seek to overstate or exaggerate any of the evidence she gave, which I accept.

55. However, it really was no more than evidence of the fact that there was a point in time between May 2010 and September 2010 when rumours were circulating in Lightning Ridge as to an inappropriate relationship between Ms Walford and the Plaintiff.

Dr Tome’s evidence

56. Dr Tome was called by the State. He was at the time an extremely experienced teacher, deputy principal, and principal who had worked for many decades in many schools, often disadvantaged schools, throughout New South Wales.

57. He presented as a very intelligent, conscientious, and careful man who would have been very good at his job.

58. I accept his evidence, and in particular accept his evidence where it contradicts the Plaintiff's mother’s. I also accept his evidence that the first he had any inkling of any suggestion of an inappropriate relationship was sometime on 3 September 2010, when the Plaintiff's mother told him of her concerns.

59. Thereafter, he immediately brought the matter to the attention of those above him in the hierarchy at the Department, on their advice terminated Ms Walford's employment, and participated in the investigation. He clearly was a man who was engaged with the community of Lightning Ridge generally, and in particular, with the teachers, staff, and students at the School. I think the fact that the rumours had not reached his ears prior to 3 September is significant.

The Employee Performance and Conduct Investigation

60. As to the Department investigation, it concluded that there was no evidence of any wrongdoing at all by Ms Walford. In other words, it concluded that the alleged sexual relationship had not been demonstrated to the satisfaction of those conducting the enquiry.

61. Of course, that conclusion was arrived at without the benefit of any input from the Plaintiff.

62. As well as interviewing the Plaintiff's mother and his sister, various other people were interviewed, which included:

Hannah Fazldeen on 14/10/2010

Dayle Murray on 15/10/2010

Brenda McBride on 14/10/2010

Patricia Finne on 15/10/2010

Rhonda Ashby on 14/10/2010

Louella Archbold on 15/10/2010

Jennifer Walford on 14/10/2010

Sophia Brown on 15/10/2010

Rhonda Walford on 15/10/2010

Rhonda Fazldeen on 15/10/2010

63. Of the various transcripts of interviews conducted by the investigators of the above people, Mr Smith relies on the following.

64. Ms Walford's sister – Sofia Brown – who at the time was employed by the School as a learning support officer.

65. When asked to clarify the nature of the friendship or relationship between the Plaintiff and Ms Walford, Ms Brown responded:

“As far as I know, there was something and it ceased”.

66. When asked when it ceased, Ms Brown responded:

“I’m not too sure. Like I said before too, it was very hush-hush. Me and Jennifer were saying who’s this boyfriend; I hope you’re not going out with some of these fellows around, rah, rah, that and that and then it went quiet and this come up about it again.”

67. I do not think these statements by Ms Brown take the matter any further than the rumours and gossip. The statement does not place this alleged conversation in time and Ms Walford denied the conversation occurred. I am not satisfied it occurred. In any event, it is equivocal at best.

68. Brenda McBride, who is Ms Walford's cousin, was also interviewed. She worked at the School as an indigenous education worker.

69. When asked about a conversation she may have had with Ms Walford, warning her about potential consequences of being in a relationship with a student, Ms McBride responded:

“Well she said she was in a relationship with him and I told her to back off and I thought that happened.”

70. She later stated that she had seen them driving together and that it was after seeing them, that she had a conversation with Ms Walford. In her interview she stated:

“And that’s all I said to her. ‘Look stay away from him, you know I said because you can’t do it, you’re working at the school and he’s going to school’ and that was it. It didn’t know if theys [sic] were going together or not but I seen there was two of them in the car and you know well you put two and two together in this town, you know.”

71. When questioned about when Ms McBride saw the Plaintiff and Ms Walford, she responded:

“No going back months, months. About four or five months ago it might be more.”

72. As the interview took place on 14 October 2010, this would place the sighting of Ms Walford and the Plaintiff in the car around May or June 2010, very much in the early stages of the relationship.

73. The conversation between Ms McBride and Ms Walford, if it happened, probably occurred “about two months after” seeing them together, probably sometime in August.

74. When asked her opinion on what was happening, she responded:

“Okay, you think something’s happening like I know myself like you know something might happen or something like they might be together and that’s when I said to her it’s not right because she working and he’s a student here so it was just my opinion you know to think to said that to her and that’s what I did.”

75. Ms Walford denied this conversation took place at all.

76. The following exchange then took place between the investigator and Ms McBride:

Investigator: “There is something that made you think that it’s not normal?”

McBride: “Yeah.”

Investigator: “It’s not normal, it’s not just people driving in the car?”

McBride: “Yes, that’s right.”

Investigator: “There is something happening here?”

McBride: “Yeah, well when I seen them like driving around together. I thought well Maree’s been single you know and Jordon he’s a nice looking guy and whatever you know I thought well something might have been going on …”

77. Ms Walford’s other sister – Jennifer – was also interviewed. She stated that she became aware of allegations of a relationship between her sister and the Plaintiff in around April or May, and that she heard those rumours from within her “friend group, family group”. Again, I do not think that evidence does anything more than confirm that rumours were circulating.

78. Mr Smith relies in particular on what Ms McBride said to make good his case for breach of duty of care by the School.

79. His submission is that she had identified that something was going on between the two of them, which she did not consider “normal" and reasoned, because the Plaintiff was a “nice-looking guy" and Ms Walford was “single" at the time, that “something might have been going on".

80. In relation to the statements relied upon by Ms Brown and Jennifer Walford, I think they can be pretty easily put to one side. They rise no higher than confirmation of the fact that there were rumours circulating within Lightning Ridge at the time, concerning the Plaintiff and Ms Walford.

81. Ms McBride’s statements do suggest her subjective state of mind at some point in time was that there was something inappropriate going on. She seems to have based that opinion on some observations as to what they were doing when driving in Ms Walford's car and no doubt the rumours. Ms McBride of course did not give any evidence before me so the best I have is the written word. In context, it is clear from all of the statements of the many people interviewed during the investigation, but also from the evidence before me, that there were rumours circulating around the town. I cannot help but think it is more probable than not that Ms McBride's conclusion that something untoward was going on was coloured by those rumours. It is also very difficult to discern at what point in time she started to think something inappropriate might be going on.

82. The only objective facts that emerge from the transcript of her interview upon which such a conclusion could be based, were first, that they were driving around in Ms Walford’s car, second, that the Plaintiff was a good-looking young man, and third, that Ms Walford was single. I also infer that she heard the gossip. She did make a comment that there was something that made her think that something was “not normal", yet her agreement to that proposition was an agreement to a question put to her by the investigator in a leading way. No effort was made to tease out what it was that caused her to conclude it was “not normal".

83. Importantly, it was not until sometime in August that she says she confronted Ms Walford with the rumours.

84. The question arises as to what weight, if any, I should give the various transcripts of interviews contained within the Investigation Report, in circumstances where the party seeking to rely on the statements as evidence of something more than that they were statements made by potential witnesses at the time, needs to be considered. I admitted the Investigation Report over the objection of Mr A Williams, who appears for the State, because I was satisfied it fell within the business records exception to hearsay in the Evidence Act 1995 (NSW) (s 69). However, the weight to be given to such statements remains a question for me.

85. As Ms McBride, Ms Brown, and Jennifer Walford are direct relatives of Ms Walford, it seems difficult to conclude that they are obviously “in the camp" of the Plaintiff and are much more likely to be “in the camp of" Ms Walford, which for all intents and purposes would mean the Defendant in these proceedings. However, it is it is clear from a large body of evidence that the consequences of Ms Walford losing her job in 2010 as a result of the complaint made to Dr Tome by the Plaintiff's mother is that there have been many fallings out between people in Lightning Ridge who used to be friends, including relatives within the various families. There is no direct evidence as to what the current relationship of Ms Brown and Jennifer Walford is to either the Plaintiff or Ms Walford. Ms McBride was a staff member at the School with Ms Walford but is described in the Investigation file as a “staff informant”, so she appears an unlikely candidate to be “in the camp” of Ms Walford and would seem to be a more natural witness for the State.

86. As for the State, the case developed, to say the least, throughout the hearing. It is fair to say that the State did not have proper notice of the way it was finally put until the commencement of final submissions. In those circumstances, there cannot be said to be any failure by the State to call witnesses to rebut the proposition that those witnesses held concerns at particular points in time, which they ought to have reported.

87. I conclude that there is no inference to be drawn against either party because they did not call any of these people as witnesses in their case. However, that does leave the evidence in a very unsatisfactory state, with me being asked by the Plaintiff to infer from a series of questions and answers that would never be acceptable in a Court room, very significant facts over and above what individual people’s states of mind were at the time.

88. I have decided that I am prepared to give some weight to the evidence contained in the transcripts within the material but consider that I should only accept the evidence as evidence of high-level states of mind or opinions held by those people at points in time. This makes it close to impossible to determine the level of any concern they may have had at any given time and to place those points in time with any degree of certainty. I am not prepared to accept that the conversations Ms Brown and Ms McBride said they had with Ms Walford in fact occurred, in circumstances where Ms Walford gave sworn evidence that they did not.

Ms Walford’s evidence

89. The State called Ms Walford. Her evidence was to the following effect.

90. She grew up in Lightning Ridge, moved away, but then returned as a young woman, having spent some time at university.

91. In 2010, she took a voluntary role at the School, and when a temporary position became available in May 2010, she applied for the role and was given it.

92. The role was twofold, it mostly involved working in the office, but on one day a week involved being a teacher’s assistant working with teachers involved with kindergarten and very young children in the primary section of the School.

93. She said that she knew the Plaintiff's family and that some of her siblings were very good friends with some of the Plaintiff's siblings. She recalled meeting the Plaintiff when he was young, but they had no significant friendship.

94. She recalls seeing the Plaintiff at the club one evening after she commenced working at the School, but they had no significant interaction.

95. She does recall an evening at the hotel after a football game where she saw and spoke to the Plaintiff. They discussed the fact that they were both going to a party later. Later that night, she saw him at the party where they talked. She denied any sexual activity on that evening.

96. She accepts that they exchanged phone numbers and thereafter they kept in touch by text and phone calls and from time to time would see each other at parties, football matches, and at the hotel. She also gave him lifts in her car around town and engaged in the common practice in Lightning Ridge, known as “lapping".

97. She says that she was friends with the Plaintiff. She accepts that she may have hugged him from time to time in public and perhaps had her arm around him but denies any sexual conduct at the level of kissing or anything more serious.

98. After the investigation, she worked for a while in the hotel, then moved away from Lightning Ridge, has studied primary school teaching, and thereafter has worked in a teaching and educational context, in particular concerning indigenous language, culture, and history.

99. Ms Walford is clearly extremely well respected and regarded within the community. Dr Tome thought very highly of her at the time, and it is clear that she has gone on to assume some sort of respected leadership role in her community. She has worked in education with children for 15 years since 2010 with no complaints.

100. Ms Walford presented as an extremely impressive young woman. She gave her evidence in a forthright manner and made many concessions which might be seen to have been against her interest, in particular her concessions as to hugs and having her arm around the Plaintiff.

101. There were no apparent inconsistencies in any of her evidence. I found her a credible and reliable witness.

Resolution – What occurred?

102. It is common ground that Ms Walford and the Plaintiff were friendly during the period from May 2010 to September 2010 and interacted at various social events, including parties, football matches, and nights at the hotel, as well as from time to time going for drives in Ms Walford's car.

103. All of that is, of course, consistent with rumours developing and circulating in a small town to the effect that something inappropriate was going on. The Plaintiff was a young and good-looking star of the football team and Ms Walford was an attractive woman. They were both single. There is no doubt that such rumours were circulating. However, precisely when those rumours started is not clear, but certainly by the time the matter came to Dr Tome's attention in early September 2010, the rumours were plentiful and salacious.

104. Courts do not decide cases based on rumour or scuttlebutt. A rumour does not prove that the thing, the subject of the rumour, is fact. Some rumours do turn out to be fact, but many more do not.

105. There is a direct clash between the evidence of the Plaintiff and Ms Walford. It is not possible, on the question of whether they had an intense sexual relationship over a period of months, that one of them has forgotten or mistakenly recalls such a relationship. One of them must be being untruthful. The question for me is which one. If I am not sure, then the Plaintiff, who bears the onus of proof, will fail to prove this essential fact.

106. A finding of such a sexual relationship against Ms Walford would be a very serious matter. It objectively would have been in serious breach of the Code, which was part of her employment relationship.

102. On the Plaintiff's evidence, Ms Walford most certainly knew at the time that it was the wrong thing to do and that she would lose her job if found out.

103. It follows that I should take care in making such a serious finding against Ms Walford. This does not mean that I apply a standard other than the balance of probabilities but based on observations in cases such as Briginshaw v Briginshaw (1938) 60 CLR 336, I should approach the matter with a general presumption that someone in Ms Walford's position would not have behaved in the way alleged.

104. Mr Smith submits that the Plaintiff gave his evidence in a forthright and candid manner and that he was clearly attempting to answer questions as best he could.

105. I think that overstates things. It is true that he was forthright, but I am not convinced he was always attempting to answer questions as best he could, even taking into account the from time to time he clearly became confused and frustrated with some of the questions. His answer about his involvement in gun-related crime was obviously non-responsive and lacked candour. His evidence as to why he was not involved in the investigation was, in my opinion, untruthful. His evidence about why he and Ms Walford were out driving regularly in plain sight whilst at the same time trying to keep the relationship a secret is implausible. The contradiction between his and his mother’s evidence casts doubt on the reliability of both of them because I cannot resolve which one of them is being inaccurate.

106. Mr Smith submits that the Plaintiff's evidence was corroborated by his mother's and sister’s evidence, together with other documentary evidence contained within the investigation file. I think the high point of that evidence is the Plaintiff's mother’s evidence which I have already discussed. The significant difficulty with that evidence is that it is entirely in conflict with emphatic evidence of the Plaintiff. He denies that he made any admission of any sexual relationship to his mother or anyone else. His mother is equally emphatic to the contrary. It is of course possible that the Plaintiff has forgotten that admission, but I think that is unlikely as it would have been a significant conversation. It is also possible that his mother has misremembered a conversation where she confronted the Plaintiff with the rumours and asked about contraception and got an equivocal answer, which she now remembers as an admission. Teenage boys giving equivocal answers to parents is not unusual. People mishearing or misremembering what they already assume to be fact is also not unusual. If the Plaintiff’s mother had already decided the rumours were true, her memory of what she thinks was said may well be coloured by some form of confirmation bias. I do not accept the Plaintiff made an admission of the sexual relationship to his mother or anyone else.

107. Mr Smith relies on the medical evidence, which is no more than a history given by the Plaintiff to the various doctors, which history I should record is, in a significant respect, inconsistent with his evidence. In the same way as the pleading originally alleged the relationship went on for 12 months and commenced when the Plaintiff was in year 10, so the history to the doctors contains the same inconsistencies. In any event, I do not think the fact that the Plaintiff gave a history to doctors for the purpose of medicolegal reports adds anything to the evidence to similar effect he gave before me.

108. The rest of the evidence, such as it is, proves no more than the rumours.

109. Finally, Mr Smith pointed out that Ms Walford “had every reason to deny the existence of the relationship" because she still works in the education field as a qualified teacher and other things and obviously a finding to the effect of an inappropriate sexual relationship with a pupil at a school she previously taught at, would almost certainly bring to an end her career.

110. However, the same sort of thing can be said about any person being accused of serious wrongdoing in any type of litigation. They may well have every reason to deny the allegation, but that may be because the allegation is false, or it may be because they are seeking to protect their own interests. I do not think that sort of analysis really takes the matter any further. It involves circular reasoning and assumes the person is lying as its starting point. This of course is a logical fallacy. It would be equally open for the State to point out that the Plaintiff has every reason to make up the existence of the relationship. Such a submission, if made, would be equally unhelpful.

111. Mr Williams submits as follows:

“43. The plaintiff is a witness of little credit. His reliability is all you would expect from a prisoner with years of drug abuse behind him. He was not able to provide any meaningful detail of his working life of education.

44. There is a substantial distinction between his clear view of himself as a man at 16 (playing football with the men, sexually experienced, drinking, attending licensed premises, including after hours) and his claimed retrospective view that he was just a child in 2010.

45. Further, the Court would reject his claims that he did not know there was an investigation and that he did not engage in any illegal drug use until after the end of his claimed relationship with MW.

46. No important finding of fact could be based on the evidence of the plaintiff.

47. The plaintiff's sister, Hannah, is a pathetic figure, who should not have been called and who adds little or nothing to the relevant considerations. She properly acknowledged that what she knew was gossip and that when she saw the plaintiff and MW in a car together there was nothing hidden about it, with them pulling over to speak with her.

48. The plaintiff's mother clearly has some lasting hostility to MW. It is not for the defendant to prove the origins of that hostility, but it is clear that:

a) Notwithstanding her denials, it was her that initiated the complaint against MW.

b) That her hostility to MW was such that she was willing to refer to MW to a stranger as a cunt.

…

50. Dr Tome was a most impressive witness, accepting the limits of his knowledge. He was an experienced educator and leader of schools all over the state, both as Deputy Principal and Principal. He is not of or from Lightning Ridge, and while working there he was spending time away from Lightning Ridge.

…

56. Ms Walford was also an impressive witness. Her sworn evidence would be accepted, chiefly as to the fact that there was no intimate relationship between her and the plaintiff. She did not attempt to distance herself from the plaintiff entirely, accepting that they had a social relationship at the relevant time. The context of the following the Rugby League team is rather different as between that given by the plaintiff and that given by MW. On the plaintiff’s account she was travelling to games to see him, a position that does not accord with her claimed desire for confidentiality and discretion. On MW’s account she was a supporter of the local team, which included people she had grown up with. The latter account is more credible and cogent.

57. MW has had years of blameless work in education, all of it in an era of close regulation and scrutiny of teachers. The Court would place significant weight on that fact.

58. The Court would place little weight on the transcripts of investigators interviews with witnesses not called. Even then, they do little but repeat rumours. They contain no direct account of anyone who has seen sexual contact between MW and the plaintiff.”

117. I have already analysed the evidence of the Plaintiff's mother and sister and the weight I am prepared to give the transcripts from the investigations.

118. I do not accept that the Plaintiff’s sister was a pathetic figure. I do not think that submission was fair or appropriate, but I do accept the submission that her evidence added nothing to the case, albeit I felt that she gave it honestly.

119. I have taken into account, when assessing the Plaintiff's mother’s evidence, that her evidence is inconsistent with both the Plaintiff’s and the evidence of Dr Tome in important aspects. I have also taken into account the considerable hostility she obviously feels towards Ms Walford.

120. I have already said that, notwithstanding the difficult life he has had, the Plaintiff presented, on the central issue, as a credible witness. However, on other issues he was untruthful and some of his evidence is implausible.

121. As to credibility, Ms Walford presented honestly and candidly. It is true that she has led a blameless life both before and since the alleged events in the education sector, which, I think, allows me to consider that the conduct she is alleged to have taken part in is less likely to have occurred because it is out of character.

122. I find it entirely irreconcilable that Ms Walford was apparently very concerned to keep the relationship secret, whilst at the same time happy to drive openly around town with the Plaintiff, stopping to talk to acquaintances. I do consider the Plaintiff was dishonest as to why he was not involved in the investigation and the possession of a gun.

123. The Plaintiff bears the onus of proof. Having considered the matter carefully, I find myself not persuaded to any level of satisfaction that could be described as more probable than not that there was a sexual relationship between Ms Walford and the Plaintiff as alleged or at all.

124. There is just too much doubt in the Plaintiff's case and compelling evidence in the shape of Ms Walford's evidence to allow me to conclude on the balance of probabilities that there was a sexual relationship between the Plaintiff and Ms Walford as alleged. Whilst it is not necessary to go this far, I am satisfied that the alleged sexual relationship probably did not happen.

125. On any view of the pleadings, that is the end of the Plaintiff's case, but against the prospect that I may be wrong, I will deal with the balance of the claim shortly.

The relevant risk of harm

126. The way the case was ultimately put was based in negligence and it is accepted that the CLA applies. It is therefore necessary to identify a risk of harm and then judge a failure to take reasonable steps by reference to that risk of harm.

127. As pleaded, the risk of harm is set out at [18] of the Statement of Claim, as follows:

“18. The risk of harm against which the Defendant was required to take reasonable precautions to guard against materialising, was the risk that the Plaintiff might suffer psychological injury in the event he had an inappropriate sexual relationship with a staff member at the School.”

128. I accept that is the appropriate risk of harm.

Breach of duty

129. The failure to take reasonable precautions against that risk of harm was finally particularised as follows:

“22. The sexual abuse, injury and harm to the Plaintiff were caused by breaches of duty of care owed by the Defendant.

Particulars of Breach of Duty

a. Failing to institute and maintain a system where the Plaintiff and students were encouraged to report abuse (including sexual abuse) inappropriate sexual relationships between students and staff members and misconduct.

b. Failing to remove Ms Walford from situations where she was able to have abusive personal sexual or intimate contact with the Plaintiff.

c. Failing to make enquiries, or any adequate enquiries, as to Ms Walford's suitability to work with students.

d. Failing to remove Ms Walford from the School.

e. Failing to supervise or adequately supervise the Plaintiff.

f. Failing to supervise or adequately supervise Ms Walford.

g. Failing to supervise or adequately supervise the staff, agents, and/or other employees at the School.

h. Failing to supervise or adequately supervise the students, including the Plaintiff at the School.

i. Failing to restrict staff, agents and/or other employees from having unsupervised contact with the Plaintiff.

j. Failing to instruct staff, agents, and / or other employees Ms Walford to not enter any inappropriate sexual relationships with sexually assault children at the School, including the Plaintiff.

k. Failing to institute or maintain a system of mandatory reporting of child abuse or suspected child abuse.

l. Failing to institute and maintain a program to educate children at the School in relation to their right to be free from sexual contact and other abuse and to report any sexual contact abuse to an appropriate designated person or persons, or alternatively, to their parents or police.

m. Failing to take any steps, or any necessary and adequate steps, to keep the Plaintiff from being physically and sexually abused, or from being in fear of being physically and sexually abused.

n. Failing to institute and maintain a Code of Conduct and implementation document directing employees of the Defendant from having a sexual or intimate relationship with any student and to not engage in any sexual conduct toward any student.

o. Failing to ensure that Ms Walford was trained in and made aware of the abovementioned Code of Conduct and implementation document.

p. Failing to ensure that Ms Walford underwent child protection training and/or working with children training.

q. Failing to direct Ms Walford not to have a sexual or intimate relationship with any student at the school, including the Plaintiff.

r. Failing to direct Ms Walford not to engage in any sexual conduct with any student at the school, including the Plaintiff.

s. Failing to act on evidence or rumours that there was, or may have been, an inappropriate sexual relationship between the Plaintiff and Ms Walford.

t. Staff members failing to report evidence or rumours that there was, or may have been, an inappropriate sexual relationship between the Plaintiff and Ms Walford.”

130. Dealing first with the allegation that children at the School were not taught to report inappropriate conduct, I am not satisfied that the School failed to institute and maintain a system where the Plaintiff and students were encouraged to report inappropriate sexual relationships between students and staff members and misconduct. There is just no evidence in support of that allegation.

131. I am also not satisfied that there was a failure to make enquiries as to Ms Walford suitability to work with students. The evidence is that she completed all of the “working with children" paperwork. In any event, there is no evidence as to any aspect of Ms Walford's character that made her unsuitable to work with students.

132. As to any failure to supervise, or adequately supervise, Ms Walford. There is no evidence of any such failure.

133. As to failure to instruct Ms Walford to not enter any inappropriate sexual relationships with children at the School, I find that Ms Walford did not receive formal training as to the Code until August, to the effect that such conduct was not acceptable. Acting reasonably, the School ought to have ensured that happened sooner. However, this does not go anywhere because, on the Plaintiff's own case, Ms Walford knew that a sexual relationship with a student of the School was against the rules. Mr Smith submits if she had been trained, she would not only have known such conduct was against the rules, she would have understood why it was wrong. I do not accept that submission. My assessment of Ms Walford’s character is that she knew and understood at the time that the reason such relationships were against the Department’s policy was in large part because of possible damage to students. The contrary was not put to her in cross-examination.

134. The case really comes down to an alleged failure by Ms McBride and perhaps Ms Brown, to act on rumours or suspicions that there was or may have been an inappropriate sexual relationship between the Plaintiff and Ms Walford, and to bring them to Dr Tome's attention. The Plaintiff assumes that non-compliance with the Code constitutes a failure to take reasonable precautions to avoid the risk of harm. That assumption may not necessarily be correct. I proceed on the basis that it is without deciding the matter, which was not the subject of submissions by either party.

135. The difficulty with this aspect of the case is, whilst it is true that there were rumours, the level of rumour that would justify a report of such a matter would have to be something that was based on some rational piece of objective evidence, rather than rumours and scuttlebutt. The consequence of such a report was likely to be the immediate termination of Ms Walford and the implementation of an investigation into her conduct. In other words, these reports within the Department are taken extremely seriously and have dire consequences.

136. I am not satisfied that such rumours as came to staff member’s attention were at such a level so as to justify a report. If Ms McBride had formed a subjective view to the effect that “well something might have been going on", this state of mind perhaps existed in early August.

137. By reference to the Code, and in particular Clauses 6.3 and 6.4 which I have already set out, Mr Smith submits that Ms McBride’s state of mind was such that she had identified a “possible risk of harm" as described in Clause 6.3 or she had “concerns about the inappropriate actions of any other employee that involve children", as described in Clause 6.4, and therefore she had a positive obligation under the Code to bring those concerns to the attention of Dr Tome.

138. I do not think it is as simple as that. There are levels of “concerns" or “possibilities". They are both words of expansive and elastic meaning, involving a continuum from no concern or possibility to extreme concern and something just short of probability.

139. I consider the Code, especially in the context of a small town, needs to be construed with some degree of practical common sense. Anything is possible and therefore Clause 6.3 must be qualified by some concept of reasonableness and the same can be said about the notion of concerns for the purpose of Clause 6.4.

140. I am not satisfied that the level of concern that Ms McBride held was to the level required by the Code for her to mandatorily report it. Nor do I consider it would have been reasonable for her to have done so, so as to amount to a failure to take reasonable precautions against the risk of harm.

141. What Ms McBride says she actually did, is sometime in about August, she confronted Ms Walford with her suspicions and, according to her, Ms Walford made some admissions to her. Ms Walford was cross-examined as to that conversation, and she emphatically denied any such conversation happened at all. In circumstances where Ms McBride was not called, and the Defendant had no notice of the case being put upon the basis that it is now being put at the time the matter was prepared for hearing, I am not prepared to do anything other than accept Ms Walford's denial of that conversation. However, if I were to accept that evidence, it seems to me that, if Ms McBride held concerns to the level required by the Code to bring the matter to someone in authority's attention, she reached that level on her own statements sometime in August when she says she confronted Ms Walford with it. That was only a matter of weeks before Dr Tome terminated Ms Walford's employment and therefore, would have made no difference at all to the outcome.

What was the consequence of any delay?/Has it been demonstrated that, if Dr Tome had acted earlier, the outcome for the Plaintiff would have been different?

142. The question then becomes, if I am wrong in that there was a sexual relationship together with a breach of duty of care as alleged by the Plaintiff, whether that breach caused any loss or damage to the Plaintiff.

143. The damages allegedly suffered by the Plaintiff are summarised by the respective experts in this matter, Dr Christopher Cocks for the Plaintiff and Dr Justine Shelley for the Defendant.

144. In their joint report they say as follows:

“1. Do you consider that the plaintiff now has, or at any time in the past has had, a recognisable psychiatric illness or injury within the meaning of DSM-5 (collectively “condition”), and if so, please state each condition with which you diagnosed the plaintiff and the likely date of onset?

The experts agree that Mr Fazldeen has a substance use disorder and no longer fulfils the criteria for major depression disorder. Dr Schelle considered Dr Cocks' view that Mr Fazldeen did not have behaviour to the degree he that would fulfil a diagnosis of conduct disorder and thus a diagnosis of antisocial personality disorder in adulthood is not appropriate.

The experts agree that a substance use disorder, the psychiatric illness within the meaning of DSM-5 and (mild) intellectual disability.

2. For each condition you diagnosed in answer to question 1, please provide your opinion as to:

a. the date or time of onset of the condition;

b. the duration of the condition; and

c. when, if at all, the condition resolved.

The experts agree the substance use disorder developed in the context of the alleged sexual abuse and that has continued since that time and is unresolved.

With regard to the learning disorder, that's a lifelong condition that is pre-existing to the abuse and continues.”

…

The experts agree the alleged sexual abuse was the substantial or material cause to the substance use disorder but there are other stresses that pre-date and postdate the alleged sexual abuse that could contribute. It is very difficult to get drawn into percentages regarding apportionment in these matters.

The experts agree the specific learning disorder predates the interactions between Mr Fazldeen and Maree Walford. It may have put him at higher risk of being assaulted making him more vulnerable.

…

The experts agree that Mr Fazldeen would not have developed a substance use disorder at the stage he did, with it commencing soon after the relationship breakdown with Maree Walford, however, it is possible that this disorder may have developed in later life due to his peer associations.”

145. Dr Shelley put it this way in her report:

“I believe that the origin of his substance use condition relates the alleged abuse. Mr Fazldeen used substances to deal with his sadness over losing Ms Walford and his guilt that he may have adversely affected her career.”

146. The submission for the Plaintiff is that, if only Dr Tome had activated the investigation process and/or bought the matter to Ms Walford's attention at an earlier point in time, which he would have if the rumours had been brought to his attention, then the relationship would have been broken off by Ms Walford earlier and, so the submission goes, the Plaintiff would not have suffered the psychological injuries he claims.

147. There are a number of significant obstacles to this submission being accepted. The first is the Plaintiff cannot identify with any precision when, at an earlier stage of the relationship, this ought to have happened. The proposition was it would have happened “within a matter of weeks" of the relationship starting. However, there is no reliable evidence as to when the rumours were circulating and what level of rumour was being discussed from time to time, let alone what actually came to Ms McBride’s notice. As I have said, even if I were to act on Ms McBride’s statement, she did not have sufficient concern to raise them with Ms Walford until sometime in August.

148. The clear impression I got from the Plaintiff’s evidence was that, from the first night he had sex with Ms Walford, he was “hooked" and/or “head over heels". If it was not love at first sight, I think he became very attached to her very quickly. Dr Shelley was emphatic that, in her view, the Plaintiff was extremely attached to Ms Walford from very early on in the relationship and thus the consequences of a breakup earlier than it occurred would have been precisely the same as the outcome which the Plaintiff has suffered.

149. Dr Cocks' evidence was a little more nuanced, as was Mr Smith's submissions on behalf of the Plaintiff.

150. He submits, and Dr Cocks’ evidence supports this, that an ingredient in the damage being caused to the Plaintiff was not just the relationship being broken off when it was, it also includes the fact that, after it was broken off, Ms Walford rang him and told him that it was all his fault that she was in trouble and had lost her job.

151. Mr Smith says that the counterfactual ought to be found to be; if someone like Ms McBride had brought the matter to Dr Tome’s attention earlier in the piece as nothing more than inappropriately driving around in the vehicle and some level of suspicion, Dr Tome would not have reported the matter to the Department, but rather would have had a “quiet word" to Ms Walford, which would have made her aware that people were noticing and that she may well get caught out. Thus, she would have brought the relationship to an end without accusing the Plaintiff of being the cause of her losing her job, and so the argument goes, the Plaintiff would not have been damaged, but rather would have moved on from a sad end to an exciting love affair like many other 16-year-olds. This chain of causation, it seems to me, involves a number of steps and large doses of speculation upon speculation.

152. Dr Cocks accepted that the question of how attached the Plaintiff was at any point in time is important to the questions of causation and damage. As I have said, I think the Plaintiff was extremely attached from very early on in the relationship. Moreover, what Dr Tome would have done in this counterfactual is by no means clear. He did say that “driving around in motor vehicles together" was something that he did not consider to be a “hanging offence”. However, it is impossible to know what other information might have come to Dr Tome’s attention if someone had acted earlier and it is quite clear that Departmental policy – as opposed to Dr Tome’s approach – would have been, if any credible suspicion existed, to terminate Ms Walford earlier than in fact occurred, in which event, it is highly likely that Ms Walford would have behaved in the same way and blamed the Plaintiff, which would, in my opinion on the medical evidence, have caused exactly the same damage.

153. I have concluded that, even if I am wrong on the questions of whether there was a sexual relationship and a breach of duty of care, I am not satisfied that any damages claimed by the Plaintiff were a consequence of that breach of duty. They are, on the evidence, in part a consequence of the sexual relationship in the sense that it brought forward in time any damages, but the sexual relationship itself is not the consequence of any breach of duty by the School. The most likely counterfactual to my mind is that the breakup/dismissal and allegation that it was all the Plaintiff’s fault would have happened in any event, but at a slightly earlier point in time.

Damages

154. In light of my findings as to liability and causation, I will deal with damages very shortly.

155. The evidence of both experts is that the Plaintiff has a substance abuse disorder, which came on as a consequence of the breakup with Ms Walford.

156. That substance abuse started with the use of marijuana, which became heavier and over a period of about 10 years has progressed through most of the known illicit drugs available in our society to culminate with heroin.

157. The Plaintiff has also spent significant time in gaol during that period and has effectively no work history to speak of at all.

158. Whilst Dr Shelley was confident that the cause of the substance abuse disorder and the substance abuse itself was triggered by the breakup, she also considered that it was likely that the Plaintiff would have developed a substance abuse disorder in any event but at a later point in time. Dr Cocks was not so sure about that. He conceded it was a possibility. I consider it to be probable.

159. The damages claimed by the Plaintiff are governed by the CLA.

160. The Plaintiff claims 30% of the worst case, aggravated and exemplary damages, some future out-of-pocket loss, and significant amounts for past and future economic loss.

161. If I am wrong as to liability, I would proceed upon the basis that the loss to the Plaintiff was the bringing forward of his substance abuse disorder and use of drugs. How much earlier that came on is very difficult to assess.

162. Doing the best I can, I would allow 15% of the worst case, together with a “buffer” for past economic loss of $100,000, which buffer includes an amount for out-of-pocket expenses. I would not allow any amount for the future because I consider the problems the Plaintiff has encountered would have occurred at some point in any event.

163. In light of the findings I have made, it really is not possible for me to sensibly assess the claims for aggravated and exemplary damages. As the case is no longer a claim for any intentional tort, but rather a claim in negligence, such heads of damages probably fall away. However, if they do not, I do not think it would be helpful or appropriate for me to speculate as to what contrary findings of fact ought to have been made so as to assess those aspects of the claim in any sensible way. On the facts, I have found that no one within the Department acted in any way other than honestly and reasonably.

Orders

164. For those reasons, my orders are:

1. The Plaintiff’s claim is dismissed.

2. Judgment for the Defendant.

3. The Plaintiff is to pay the Defendant’s costs of the proceedings.

**********

Amendments

13 March 2025 - Changes made to paras [1] and [2].

Decision last updated: 13 March 2025