Greenwood v Department of Education - [2025] NSWSC 969

Supreme Court

New South Wales

Medium Neutral Citation: Greenwood v Department of Education [2025] NSWSC 969
Hearing dates: 8, 9, 11, 14, 15 and 18 October 2024
Date of orders: 28 August 2025
Decision date: 28 August 2025
Jurisdiction: Common Law
Before: Rothman J
Decision:
(1)   Judgment for the defendant.
(2)   The plaintiff shall pay the defendant’s costs of and incidental to the proceedings.
(3)   Any party may make application for a special order as to costs within 7 days of the publication of this judgment. Such application may be made by email to the Associate to Justice Rothman and the application may be no more than 5 pages, excluding any document, not otherwise in evidence, on which the application relies. Any party affected by any proposed special order may reply within 14 days of the application under the same conditions.
(4)   Otherwise, the proceedings are dismissed.

Catchwords:
NEGLIGENCE — non-delegable duty of care — school — historical sex abuse — Deputy Principal — whether plaintiff was abused — whether plaintiff was abused by Deputy Principal — onus and standard of proof — abuse found to have occurred by an executive staff member at the school — Court not satisfied that Deputy Principal perpetrated the abuse on the balance of probabilities
NEGLIGENCE — vicarious liability — employer and employee — unnecessary to deal with as State breached duty of care

Legislation Cited:
Civil Liability Act 2002 (NSW), s 16
Civil Procedure Act 2005 (NSW), s 100

Cases Cited:
Briginshaw v Briginshaw (1938) 60 CLR 366; [1938] HCA 34
Carr v Baker (1936) 36 SR (NSW) 301
Fabre v Arenales (1992) 27 NSWLR 437
Geyer v Downs (1977) 138 CLR 91; [1977] HCA 64
Henderson v Queensland (2014) 255 CLR 1; [2014] HCA 52
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170; [1992] HCA 66
PP v DD (No 2) [2021] NSWSC 1312
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20
State of New South Wales v T2 (by his tutor T1) [2025] NSWCA 165
The Commonwealth v Introvigne (1982) 150 CLR 258; [1982] HCA 40
TNT Management Pty Ltd v Brooks (1979) 53 ALJR 267
West v Government Insurance Office (NSW) (1981) 148 CLR 62; [1981] HCA 38

Texts Cited:
Cohen Dr L J, The Probable and the Provable, Clarendon Press, Oxford (1977)
Hodgson D, Probability: The Logic of the Law – A Response, 15 Oxford JLS 51
Shafer G, A Mathematical Theory of Evidence, Princeton (1976)
Tillers P & Green E, Probability and Inference in the Law of Evidence; The Uses and Limits of Bayesianism, Kluwer Academic Publishers, London (1988)
Tyree A, Probability Theory and the Law of Evidence, (1984) 8 Crim LJ 224

Category: Principal judgment
Parties: Jamie Greenwood (Plaintiff)
Department of Education (Defendant)
Representation:
Counsel:
E G Romaniuk SC / J B Masur (Plaintiff)
D Lloyd SC / C Robertson (Defendant)
Solicitors:
BPC Law (Plaintiff)
Moray & Agnew (Defendant)

File Number(s): 2022/00382008
Publication restriction: N/A

JUDGMENT

HIS HONOUR: The plaintiff sues the State of New South Wales (hereinafter “the State”) seeking damages for a cause of action in negligence and/or because the State is vicariously liable for injuries the plaintiff alleges arose as a consequence of historical sex abuse. The allegation is that the plaintiff was sexually abused at Forster Public School (hereinafter “the School”) by the then Deputy Principal.
The State, which is the defendant in the proceedings, denies that the abuse occurred and, if it were to have occurred, denies that it was negligent and also that it is vicariously liable for the conduct in question. The alleged perpetrator of the abuse is not a party to the proceedings but gave evidence in the proceedings.
The plaintiff attended the School from 1985 until 1992, and the Deputy Principal was employed at the School between February 1988 and April 1992 as a teacher and Deputy Principal. The plaintiff alleges in the Statement of Claim that abuse occurred in approximately 1989 and 1990, when the plaintiff was in Year 3 and/or Year 4 at the School. The issues in dispute, apart from the legal questions, are issues associated with facts that occurred over 30 years ago. The Deputy Principal, who was called to give evidence by the State, denied the allegations.

Evidence

The parties have provided the Court with a list of issues and agreed facts. While any attempt to reach common ground on facts is appreciated and of utility, the facts agreed between necessarily the parties do not deal with any of the issues in dispute and are of only limited utility.
To some extent a timeframe is provided and there is agreement on some formal issues such as the dates of birth, enrolment and leaving the School, the dates on which the Deputy Principal was engaged at the School and the date on which he left the School. There are also dates agreed between the parties as to the timeframe of the alleged abuse, the death of the plaintiff’s father and periods in which the plaintiff, seemingly as a consequence of his psychological condition, spent in prison. It is unnecessary to extract the agreed facts.
Otherwise, all the evidence was adduced in chief by way of a statement and, thereafter, was subject, where sought, to cross-examination.

The plaintiff

The plaintiff was born on 31 March 1980 in Forster. His father passed away in 2019 and he has two siblings, an older sister and older brother. The brother passed away in November 2022.
The plaintiff described his childhood as happy in the earlier years during which he was very physically active and enjoyed football and bodyboarding. He learnt to play the guitar at 13 years, and his football was at such a standard that he was accepted into the development squad for the Newcastle Knights rugby league team at the age of 12.
As a youngster, the plaintiff desired to have a career in professional rugby league or professional bodyboarding, and/or play the guitar in a band. He attended primary school at Forster Public School from kindergarten to Year 6 and attended high school at Forster High School. He left high school some time in Year 10 as a result of difficulties with alcohol and substance abuse.
The plaintiff did not obtain a school certificate and instead started work as a concreter with his father. His parents separated when the plaintiff was 17 years of age.
The plaintiff married and he described his marriage, in the early years, as “loving and supporting”. The couple had four children, and the plaintiff continued work as a concreter providing financial stability. They purchased a restaurant and owned their own home, with a mortgage.
The plaintiff separated from his wife in 2019 after 14 years of marriage. The plaintiff attributes the breakdown to his inability to cope with the death of his father, which resulted in a relapse of his alcohol and substance abuse. He now has very limited contact with his children who live with their mother, except for the eldest who lives with the maternal grandmother.
When not in custody, the plaintiff lives with his mother or sister and, at the time of making the statement, was living with his sister.
The plaintiff asserts that when he was in Year 5 at Forster Public School, he was sexually abused by the Deputy Principal. He was approximately 11 years old at the time.
The plaintiff describes in his statement that, prior to the abuse, the Deputy Principal was very nice to him and would play sport with him at school and sometimes provide him with frozen yoghurt and fruit balls. The plaintiff came to like and trust the Deputy Principal.
The children at the School used to call the Deputy Principal “Jaffa”, which, according to the plaintiff, was as a result of the redness in the Deputy Principal’s face when he became angry. The plaintiff described the physical attributes of the Deputy Principal.
The plaintiff also described being placed on detention for many minor things and gave examples such as “wearing the wrong-coloured socks”. The plaintiff asserted that the Deputy Principal would threaten to use the cane on him and that he was the only student on these detentions. The detentions, according to the plaintiff, took place in the Deputy Principal’s office.
The sexual abuse, which was said to occur during the detentions, would consist of the Deputy Principal forcing the plaintiff to touch his genitals and to masturbate him until he ejaculated. The Deputy Principal would place his hands down the plaintiff’s pants and fondle the plaintiff’s buttocks and anally penetrate the plaintiff with his finger.
The plaintiff also described some occasions when the Deputy Principal was said to have forced the plaintiff over his desk and attempted to penetrate the plaintiff anally with his penis. This last-mentioned conduct caused the plaintiff extreme pain which lasted for hours after it concluded. There were times that the plaintiff would go home to find blood in his underwear when this occurred.
In the statement of 14 June 2023 (hereinafter “the first statement”), the plaintiff stated that the abuse occurred approximately ten times and lasted between 10 and 15 minutes on each occasion. The plaintiff testified to the fact that when the abuse took place, he felt very scared and that the Deputy Principal threatened him by telling him that he would be caned badly if he told anyone about the abuse. The plaintiff maintained that he did not tell anyone about it, because he did not want the abuse to get any worse than it already was.
The plaintiff testified to the effect that the abuse stopped after an occasion in the storeroom (in evidence explained as attached to or in a demountable building), when the plaintiff punched the Deputy Principal in the stomach and ran away from school. The plaintiff ran to his sister’s house, and, after that, the abuse did not happen again, at least in part because the Deputy Principal moved to a different school.
The plaintiff described the effects of the abuse on his life thereafter. The plaintiff experienced flashbacks and nightmares about the Deputy Principal and what he was doing to him. The plaintiff struggled to attend school; he started truanting so he could avoid seeing the Deputy Principal; and this had a negative impact on the plaintiff’s academic performance.
The plaintiff testified to the fact that he lost all trust in authority figures and felt very anxious when he was not at home with his parents. The plaintiff stopped attending sport camps and lost all interest in rugby league and bodysurfing.
When he was 13 years of age, the plaintiff started to abuse marijuana in order, he says, to cope with his feelings about the abuse. A sister of one of his friends provided him with the marijuana, which helped to numb the feelings of fear and distress.
When the plaintiff was 15 years of age, he started to abuse alcohol to cope with his feelings and would drink enough to numb himself to them. He obtained the alcohol by having his friends buy it for him, because they looked older, and from stealing it from his parents’ fridge.
The plaintiff maintained that when he started high school his poor behaviour continued, and he would stay at school for physical education classes but otherwise would find ways to truant. When he truanted, he would go to the beach and smoke marijuana.
The plaintiff was unable to complete high school. The plaintiff puts this down to his truanting, problems with his teachers and substance abuse. He did not want to be at school.
The plaintiff agreed to work with his father and working with his father made him feel safe and provided him with some stability. The abuse, the plaintiff says, caused him to feel very angry. Because of that and because he never developed proper anger management skills, he resolved issues with others with physical fights. In turn, this caused the plaintiff to struggle in all his relationships and lose many friends.
He tried to shut the abuse away and did not tell anybody about it.
When his father passed away, the plaintiff suffered a breakdown, and all of the past feelings returned to the surface. The plaintiff felt unsafe again and felt that he could not trust anyone. He recommenced abusing alcohol and would drink a carton of beer daily.
At 18 years, the plaintiff attempted to end his life by an overdose of tablets. He struggled with his parents’ separation and did not cope well. The plaintiff was abusing marijuana and alcohol at the time, and he felt worthless.
At or about this time, the plaintiff’s older brother informed him that their aunt had been sexually abusing him. This re-excited feelings about the abuse that happened to the plaintiff, and he could no longer cope. His only safety net was his family which he felt was now broken and he was alone.
In 2019, the plaintiff separated from his wife. Although he described their relationship as very “loving and supportive” at times, he felt that his feelings about the abuse haunted the relationship. He experienced extreme trust issues with his wife throughout his marriage and suffered a breakdown when his paranoia became real and he caught his wife being unfaithful to him. This caused him great distress. Consequently, to cope with his feelings, he started abusing alcohol and marijuana even more. Again, feelings relating to the abuse resurfaced and he felt let down once more.
Two years after the abuse, the plaintiff was diagnosed with ADHD, anxiety and depression. The diagnosis came from a child psychiatrist in Taree and the plaintiff was prescribed Ritalin but never took the medication.
In late 2018, the plaintiff was diagnosed with depression and anxiety. His father-in-law, who was a general practitioner, diagnosed him after raising with the plaintiff concerns about his mental health. The plaintiff was prescribed sertraline and mirtazapine. The plaintiff remains on both medications.
The plaintiff has struggled to obtain medical assistance. While he has made appointments with psychologists and counsellors, he has failed to attend because of his anxiety and because he was scarred. In custody, he received medical treatment through the Justice Health Network but did not disclose to them the abuse that he had experienced. Nor did he disclose the abuse to other medical practitioners.
As earlier stated, the plaintiff left school before the school certificate, at the age of 16 years and started working with his father as a concreter. The father operated a successful concreting business. When the plaintiff was 24 years, he obtained an ABN and was earning approximately $1,800 per week after tax. With overtime, he could earn up to $2,500 per week after tax.
As already stated, the plaintiff lost all trust in and respect for authority and started to commit criminal offences. At the age of 14 years, he was charged with break and enter. He had broken into a teacher’s classroom to steal marijuana.
His offending increased both in quantity and seriousness as his drug and alcohol abuse increased. This was particularly so after the breakdown of his marriage and the death of his father.
The plaintiff has been convicted of a number of offences including assault, contravening domestic violence orders, drug offences, driving related offences, reckless wounding, stalking and intimating. Some of the offending has been towards the new partner of his ex-wife with whom he has had many confrontations. The plaintiff has been gaoled approximately seven times and for a total period of approximately four years.
Currently, according to the first statement, the plaintiff is mostly anxious and irritable. His anxiety has not improved at all since the abuse, and he manages it sometimes through the use of alcohol and illicit substances. The plaintiff feels overwhelmed by a sense of worthlessness and hopelessness.
The plaintiff describes himself as “destructive”. He bottles his feelings up and then explodes. Even on days that are generally good, he may turn and either commence crying or lose his temper. He dwells on the abuse a lot, at least a couple of times per week. He worries about his future and his relationship with his children; continues to experience flashbacks and nightmares about the Deputy Principal and the abuse; wakes up in the night with sweats and experiences palpitations; and, on account of his sleep difficulties, is always tired and more readily becomes irritated.
The plaintiff struggles to concentrate, and he forgets simple things like where he left belongings. At the time of the first statement, the plaintiff was abstaining from alcohol but consuming medicinal marijuana on a daily basis and describes that as the only thing that “makes [him] feel at peace”.
The plaintiff compiled a further evidentiary statement on 24 September 2024 in response to the statements adduced on behalf of the defendant. Apart from expressing surprise that neither Mr nor Mrs McLean remembered him, the plaintiff described the events at school after its commencement. There would be a morning muster during which the Deputy Principal would check the uniforms and single out students that were incorrectly attired. The Deputy Principal would write down their names and sometimes place them on detention.
The plaintiff described where the school detention took place, being in a room near the school staffroom. He said there would usually be a teacher supervising detention and other children present. On a few occasions, the Deputy Principal would single him out and remove him from the general detention and take him to his office to supervise the plaintiff for detention in his office alone.
The plaintiff described where the Deputy Principal’s office was in the administrative building and that detention with the Deputy Principal would occur at lunchtime, during which time the door to the Deputy Principal’s office would be shut. There was a window facing the carpark from the office which had blinds that were always shut. Because it was lunchtime, the plaintiff suggested there were less people in the administration building than would otherwise be the case.
The reference to the storeroom in which at least one of the occasions was said to have occurred, was not in the administration building; it was in a demountable classroom, which was the usual classroom in which the plaintiff’s regular teacher taught him.
The plaintiff also clarified that the Deputy Principal did not use the cane but threatened to use it and the threat made the plaintiff fearful of him. Apparently, there were canes at the school in the Principal’s office, but the plaintiff never saw them utilised.
The plaintiff also clarified that he could not precisely recall the number of times that abuse occurred and that his recollection when dealing with his solicitors was that it happened on ten to twenty occasions because that is how it felt. It certainly happened on the plaintiff’s view at least five or six times.
He also testified that he would be sent to the Deputy Principal’s office when his classroom teacher could not control his behaviour, which occurred regularly for conduct such as not paying attention, talking or distracting other students or not doing homework.
The plaintiff does not recall being held back from school but recounted that his mother recalled the Deputy Principal holding him back on at least one occasion.
The plaintiff also clarified that the frozen yoghurt and fruit balls that were given to him by the Deputy Principal were available at the canteen and the Deputy Principal kept a bag of fruit balls in his office. The Deputy Principal did not abuse the plaintiff at every detention, according to the plaintiff. The Deputy Principal did not give yoghurt and/or fruit balls when he was on a detention in which abuse occurred but, rather on those detentions in which abuse did not occur.
In cross-examination, the plaintiff clarified that he recalled the abuse occurring when he was in Year 5, in 1991, when he was 11 years. He also clarified that he was on detention with other students and the Deputy Principal would “drag him out” and take the plaintiff to the Deputy Principal’s office. Further, his classroom teacher would often send him to the Deputy Principal for detention. On those occasions he went to the Deputy Principal’s office by himself.

According to the plaintiff, 1991 was the only year in which the abuse occurred.
The plaintiff clarified that the detentions of which he spoke occurred in the Deputy Principal’s office and that he was the only person, other than the Deputy Principal, present at the time. He also clarified that his classroom teacher would, towards the lunchtime break, send him to the Deputy Principal’s office, for a lunchtime detention.^[1]
1. Tcpt, 8/10/24, p 30, ln 36-37.
The plaintiff answered questions concerning a statement made to the psychiatrist commissioned by the State and the plaintiff accepted that at one stage he became convinced that his classroom teacher was “setting [him] up” with the Deputy Principal because he was sent to detention with such frequency. The plaintiff’s recollection is that he was sent to the Deputy Principal’s office on many occasions, probably once or twice a fortnight, but it depended.
The plaintiff also referred to a third manner in which he came to be in the Deputy Principal’s office. The first was when he was given detention by the Deputy Principal directly and the second was when the classroom teacher sent him to the Deputy Principal’s office. The third was when the plaintiff was given a general detention and the Deputy Principal would come into the room in which the detention was being held and remove him from that room and take him to the office.
On the plaintiff’s recollection, the third manner happened twice, and the abuse occurred between five and ten times. When asked about an estimation of twenty times used by the plaintiff, the plaintiff made clear that he had not said it happened on twenty occasions. Rather, he had said it felt like it had happened twenty times. The plaintiff does not recall who would send him to a detention in the “detention room”.
The plaintiff was cross-examined as to certain inconsistency between his evidence and notes recorded by the State’s commissioned psychiatrist for these proceedings, which the plaintiff explained as probably being the psychiatrist’s misunderstanding of what he had said. The plaintiff was adamant that the Deputy Principal ejaculated on him, not in him, and that he bled from what he had understood had been penetration by fingers or an attempted penetration by the Deputy Principal’s penis. He was asked about the time that he spent, when abused, in the Deputy Principal’s office and estimated that it was at least ten minutes but up to fifteen minutes.
When the plaintiff was in the Deputy Principal’s office for detention, but not on an occasion when he was abused, the time he spent in the office was less than ten minutes. Sometimes, it may have been less than five minutes.
On questioning about his statement that he began truanting after the abuse, the plaintiff stated that he was unaware how and from where that statement had come. The plaintiff said that he truanted in high school, not in primary school. He was trying to stay away from school, but his mother would not allow him to stay home sick.
The plaintiff also clarified that the Deputy Principal did not play sport with the students. Rather, he watched the sport played by the students. The plaintiff suggested that he had requested a change to correct the original statement, but it had not been made.
Otherwise, the plaintiff denied a number of propositions put to him reflecting the version of events or conduct to which the Deputy Principal had attested or would attest, and which were contained in his statements. There are exceptions to those denials. For example, when asked about the timing of what was said by the plaintiff to be gifts of fruit balls and yoghurt and whether that occurred only between abuse at detentions or before the abuse had started, the plaintiff conceded that much of his timing is “a big blur”.^[2]
2. Tcpt, 8/10/24, p 46, ln 41 (transcribed as “blow”).
Nevertheless, the plaintiff agreed that he was saying that the frozen yoghurt and fruit balls were given to him by the Deputy Principal at a time before any incident of abuse had occurred. The times before any incident of abuse at which the Deputy Principal gave the plaintiff sweets, the plaintiff was on detention and in the Deputy Principal’s room.
Further, the plaintiff clarified that every time he was in the Deputy Principal’s office, he was not necessarily on detention. The Deputy Principal may have called or taken the plaintiff into his office when the plaintiff was doing office duties, such as obtaining duplicates or other activities that needed attendance at the administration block.
The questions in cross-examination put to the plaintiff that he had not mentioned being in the Deputy Principal’s office for a purpose/reason other than detention in either one of his statements or at any time earlier in his oral evidence, and that he was making it up. The plaintiff denied that he was fabricating the evidence.
The plaintiff maintained that he served some of his detention in the staffroom in the administration block, which he entered from the path and turned right.
The plaintiff was cross-examined about his alleged absences in Year 5. It was put to the plaintiff that he had twenty-one absences in Year 3 and three absences in Year 4. The plaintiff had no recollection of those issues.
It was also put to the plaintiff that his behavioural alterations occurred in Year 4, which the plaintiff denied. It was suggested that the plaintiff’s behaviour became worse in Year 4 and his then teacher made an enquiry of his mother about whether issues were occurring at home to explain the plaintiff’s changed behaviour.
The plaintiff denied that his behaviour became worse in Year 4 and was adamant that his misbehaviour commenced in Year 5. The plaintiff also denied that he had an almost perfect attendance record in Year 5.
The plaintiff was cross-examined in relation to his alcohol and drug abuse and whether he could manage to maintain a full work capacity. Further, the plaintiff was questioned about his capacity to obtain work at a large development in Forster, in Western Australia and in Indonesia, which he was unable to take because of his incarceration.
The plaintiff was questioned about statements made to psychologists and/or counsellors relating to the stress under which he was suffering, which excluded the allegations he is making in these proceedings. The plaintiff explained the omission on the basis that, at the time the statements were made to counsellors and/or psychologists, he had not disclosed the sexual abuse at school to anyone.
The plaintiff had also informed a Correctional Services Officer that his mental health was “good”. Nevertheless, as pointed out by the plaintiff, the plaintiff was still on medication for his mental health.
The plaintiff was asked about the inconsistency in his opinion about his mental health between that which he told the Corrective Services Officer and that which he told a doctor qualified for the purposes of these proceedings within a short period of time. It was suggested to the plaintiff that his statement to the medical practitioner qualified for the purposes of these proceedings was for the purpose of assisting his case against the State and that which was said to the Corrective Services Officer was the truth and he had no mental difficulties.
The plaintiff was taken to a later interview in prison, some three months before he was due to be paroled in April 2023, by which time he had disclosed to his solicitors the conduct alleged in these proceedings, in which he told a Corrective Services Officer that his mental health was the best it had been and/or “good”. The plaintiff explained that issues of sexual abuse as a child were not issues that one would ever disclose to a Corrective Services Officer.
It was suggested to the plaintiff that he had been earning $100,000 per year and had not filed tax returns. The plaintiff denied earning that sort of money but accepted that there were years for which he did not file tax returns and testified to the fact that he was currently in discussions with the Australian Taxation Office and they had sent him an estimated tax liability of $5,600 for, what he thought, were all the years for which he had not filed a return.
Other traumas occurred during the course of the plaintiff’s life. Mention has already been made of the separation of his parents and the illness and death of his father. When the plaintiff was 13 years, his best friend at the time died tragically and in 2015, his cousin committed suicide. In 2016, he had another close friend who died. When asked about the impact of these events, the plaintiff testified that the death of his best friend when the plaintiff was 13 years “hit hard”; they were very close, and the plaintiff named his eldest son after his friend.
The plaintiff was also asked about a program conducted by the School and entitled “Listen to Children Week”, in which posters were displayed around the School promoting the idea of teachers listening to children. The plaintiff did not recall the program, but he did accept that he knew, when he was at school, that if he had a problem with a teacher, he could raise it with other members of the teaching staff. He knew that he could, but he never did.
The questioning returned to the incidence of sexual abuse and the version of such incidence given by the plaintiff to his solicitors. To the best of his recollection, the plaintiff told his solicitor, on the first occasion, that he was abused at least at some point of time, up to two or three times a week for six months.
When it was put to the plaintiff that the Deputy Principal never “filled in” for his classroom teacher, the plaintiff maintained that, whether or not the Deputy Principal was filling in, at the time of the last attempt at abuse, he was teaching in the classroom.
In re-examination, the plaintiff explained that he did not inform the Correctional Services Officers of his past sexual abuse because he did not trust them.
He also clarified an area where detention was served which was adjacent to the staffroom on a seat outside the building and abutting the wall.

Lorraine Burke

The plaintiff’s mother gave evidence as to the birth of her three children in 1968, 1971 and the plaintiff in 1980. Her then husband was a concreter and operated his own successful business and she became a stay-at-home mother after the children were born. The family moved to Forster in 1978.
The plaintiff was a very happy and social child until he was about 10 years old. He was very popular at school, started playing soccer, but eventually moved to rugby league.
When the plaintiff was 10 years old, his class teacher, Ms Henry, telephoned Ms Burke and asked her whether anything unusual was taking place at home, because the plaintiff was misbehaving in class and his behaviour was out of character. Ms Henry asked, “[w]as he going through something?”. Ms Burke answered that it may be because of the relationship with the plaintiff’s father, because she otherwise was unaware of any reason for any misbehaviour.
During this time the plaintiff became very empathetic, taking on the problems of others and trying to solve them. He seemed to want to protect everyone.
The plaintiff and Ms Burke became very close during this period, but he did not inform Ms Burke of anything that was troubling him or going on of a personal nature. The plaintiff was not, to the knowledge of Ms Burke, bullied by other students.
Ms Burke noticed more drastic changes when the plaintiff turned 12 years. He was extremely good at rugby league and was the captain of his team for two years consecutively. Suddenly, he no longer wanted to play and would not share with Ms Burke the reasons.
On one occasion, the plaintiff and Ms Burke went to Penrith for a tryout. The plaintiff seemed to be on edge, which Ms Burke assumed was nerves. He played poorly for the first few games, which Ms Burke could not believe because he had never played like that before. After one of the games, the plaintiff came to Ms Burke and said, “I will not play for the State; I am not going to Queensland to play”. Ms Burke was shocked by the statement and decision but informed the plaintiff that if he did not want to represent New South Wales, it was okay.
However, Ms Burke attested to the fact that the plaintiff no longer wanted to play locally either. The plaintiff apparently continued playing for the rest of the year and then stopped playing the sport altogether.
Matters became worse when the plaintiff commenced high school. Around his thirteenth birthday, according to Ms Burke, the plaintiff and a friend broke into a schoolteacher’s home to steal marijuana and she became aware that the plaintiff was abusing substances at this point.
At or about the same time, the plaintiff started verbally abusing Ms Burke and she felt that something was going on and asked him accordingly.
About the time the plaintiff turned 14, Ms Burke recalls that a number of his previous friends had disappeared from the scene and the plaintiff started socialising with boys a few years older than him. When Ms Burke asked what he was doing, the plaintiff would become angry and would often punch walls. He became resentful and their relationship deteriorated. Soon after that he left school and started working with his father.
While the plaintiff was at primary school, on one day, Ms Burke received a message from the school that the plaintiff was being kept back after school by the Deputy Principal. Ms Burke was angry when she received that message.
When Ms Burke arrived at the school, there was one lady waiting in reception and another lady standing behind the front desk. Ms Burke spoke to the lady at the reception and then waited to see the Deputy Principal.
The Deputy Principal’s office was directly in front of where Ms Burke was sitting and the door to the office was closed. Ms Burke could not see inside. The Deputy Principal opened the door, came out to greet Ms Burke and led her into his office. The Deputy Principal closed the door behind them.
Ms Burke felt that the Deputy Principal acted arrogantly and as though he was superior. She questioned the Deputy Principal as to why the plaintiff had been kept back after school and he responded that the plaintiff and another two boys had been bullying another student. If the seating on which Ms Burke waited for the meeting were, as stated, directly in front of the office, then it would seem that the office was that of the Principal, not the Deputy Principal.
Ms Burke recalls that the plaintiff was extremely angry after she had picked him up and she enquired as to what had happened, but the plaintiff did not tell her anything and remained silent. Ms Burke does not recall any other incidents where she was notified of the plaintiff’s misbehaviour in the primary school.
In cross-examination Ms Burke clarified that the telephone call from Ms Henry occurred when the plaintiff was about 10 years old and the incident with bullying occurred approximately 18 months after that. She was adamant that she had been called into school after hours and saw the Deputy Principal, notwithstanding that he was going to say there was no time when such an event occurred. Ms Burke was also adamant that the plaintiff was held back by the Deputy Principal after school.
In re-examination, Ms Burke clarified that, even though the plaintiff’s behaviour settled when he was 10, it did not remain that way and when the plaintiff was 11 years, everything started to change and the plaintiff became very quiet and angry. His mood alternated between his previous “happy self” and a very different person which was not consistent with his prior demeanour. He became moody.
Notwithstanding requests, the plaintiff did not talk to Ms Burke about it, but in April or May of the year after, he became very different and did not want to play football anymore. He had been chosen to play representative football and was captain of his team and she insisted that he finish the season. On enquiry as to the reasons why he did not want to play representative football, the plaintiff said he did not “want to be billeted”.
At home he became moody and aggressive, but Ms Burke was very firm with him, although loving. However, when he turned 13 years and went to high school he became a very different child. The plaintiff became abusive, swore at Ms Burke, would not take any notice of her, and that is when he broke into the teacher’s home. The plaintiff also started truanting.
Ms Burke, in answer to a question in re-examination, said that there may have been occasions when the plaintiff did not want to go to school but she cannot recall any and they would not have been occurring often.

Leanne Greenwood

The plaintiff’s sister, Leanne Greenwood, testified. As with the previous and later witnesses, her evidence-in-chief was by tendering a statement, which in the case of Ms Greenwood was crafted on 27 May 2024.
Ms Greenwood worked in customer service when younger, then gave birth to her three children and stayed at home until they were old enough, which was about 2007. At that time, she commenced work as a teachers’ aide at Forster Public School in which position she was employed for about eight years.
In about 2015, she commenced work as a disability support worker and is now in a managerial position.
Ms Greenwood first learnt that her brother, the plaintiff, was sexually abused when he told her about a year before her statement was drafted. The information shocked her. However, upon reflection, Ms Greenwood considered that the information was consistent with the changes that happened to the plaintiff in his mood, attitude and life.
Ms Greenwood recalled that her brother became a very angry young boy at the age of 12 or 13 years. Prior to this time, he was very calm, easy going, sociable and happy. While not living at home at the time, she does recall the plaintiff speaking to their mother abusively on many occasions and being very shocked by the change.
Ms Greenwood was also shocked at the plaintiff’s decision to quit rugby league. The plaintiff was very passionate about the sport, and she could never understand why he had so dramatically changed. At the time, the family was very confused and concerned about the plaintiff’s change of heart.
Ms Greenwood recalled the plaintiff starting to smoke marijuana at about 13 or 14 years of age and his friends had changed.
The plaintiff’s behaviour improved somewhat after he started working with their father, but he always remained a very angry person and has always struggled with his substance abuse.
Ms Greenwood attended Forster Public School as a student nine years prior to the plaintiff attending the school. The Deputy Principal, Mr McLean, about whom the plaintiff complains, was not a teacher or Deputy Principal at the time of Ms Greenwood’s attendance. Nor was he at the school when Ms Greenwood worked there as a teachers’ aide.
During her time at the school as a student, the Deputy Principal’s office was located next to the Principal’s office and the doors would sometimes be closed. If closed, there was no view inside the office and, if the doors were not closed, there was a view inside the Deputy Principal’s office only.
In cross-examination, Ms Greenwood clarified that, when the plaintiff was 10, Ms Greenwood was at home, but she left when she was 19 and was not living at home when the plaintiff was 12 or 13. Ms Greenwood is approximately nine years older than the plaintiff.

Robert Avard

Mr Robert Avard was a friend of the plaintiff and spent some time at school with him, although he was born a year earlier than the plaintiff. It seems because of the relative age of the plaintiff, the plaintiff repeated Year 2 and their school life separated at that time. Nevertheless, Mr Avard attended Forster Public School from kindergarten to Year 6 and then attended Forster High School, leaving in Year 10 to do a carpentry apprenticeship. After working as a carpenter and then shopfitter for a joinery company, Mr Avard completed a bridging course at the University of Newcastle and ultimately graduated and became a teacher at the Great Lakes College, Tuncurry Campus.

The friendship between Mr Avard and the plaintiff waxed and waned. Even though the plaintiff was a school year below him when Mr Avard was in Year 6, they interacted in the grounds of the school and, because the plaintiff was bigger than most others, the plaintiff dominated in social settings and in football. He was, according to Mr Avard, a happy kid.
Mr Avard’s recollection is that, in his late primary years, the plaintiff personally changed and became “darker”. The plaintiff became a lot angrier. According to Mr Avard, this was not normal “teenage angst”; it was deeper and darker. His anger was very extreme.
Although the plaintiff loved football, he abruptly became a “loner” and, after primary school, only wanted to be alone. He lost the will and motivation to compete in sports.
The plaintiff consumed marijuana more than any of the other boys in his teenage years. Mr Avard lost contact with the plaintiff towards the end of his teenage years. He moved away and did not have contact with the plaintiff through the breakdown of his marriage and his incarceration. In 2015, Mr Avard returned to Forster and reunited with the plaintiff about 18 months prior to crafting his statement, which was September 2024.
Mr Avard described his first encounter with the Deputy Principal who reacted to a student who was fidgeting in class. The Deputy Principal’s face became bright red, and he took hold of a metal (according to the statement) ruler and approached the student’s desk. He slammed the ruler very hard on the desk in front of the student. It made a very loud sound, and the Deputy Principal started screaming into the student’s face. At the time, Mr Avard said he was horrified and remembered it clearly.
Mr Avard’s impression of the Deputy Principal was that he was a bully. He saw many negative interactions between the Deputy Principal and other students. One of them was the plaintiff.
He said the Deputy Principal was always yelling at students. The Deputy Principal often grabbed students by the shirt and dragged them around, and on one occasion, Mr Avard observed the Deputy Principal drag the student into the administration building. The Deputy Principal became red in the face from anger and his nickname at the school was “Jaffa”.
There was a detention system at Forster Public School, but Mr Avard does not recall the specifics. The administration building was not particularly busy, but Mr Avard used to wait there for his grandmother (a witness called by the State), who worked at the school. He observed the Principal’s office door shut on a number of occasions.
The plaintiff was regularly placed on detention and regularly in trouble from teachers.
Mr Avard recalls one afternoon at school when the plaintiff told him that he had punched the Deputy Principal in the stomach.
While the plaintiff has mentioned abuse that happened to him at school, he has not opened up completely and Mr Avard has not pushed him to do so and will wait until he is ready. He said the plaintiff has been very emotional of late, compared to the person he remembered growing up and seemed to be more emotional instead of angry. When Mr Avard tried to get him to open up, the plaintiff became very teary.
In primary school, Mr Avard and the plaintiff played football together. The plaintiff played in an older grade of football outside of school because he was a really good player. Because of that interaction, Mr Avard interacted with the plaintiff when the plaintiff was in Year 6 and Mr Avard was already at high school.
The change in behaviour to which Mr Avard referred as being in late primary school was not able to be refined as to whether it was in Year 4, 5 or 6. Mr Avard simply could not recall.
Mr Avard observed the plaintiff misbehaving at school and noticed that he was regularly on detention.
In observing, as summarised above, that the plaintiff’s personality changed beyond normal teenage angst, Mr Avard said he was reaching a conclusion, reflecting as an adult, on that which Mr Avard observed as a child.
Mr Avard was adamant that the incident in which the Deputy Principal came into the classroom and slammed a ruler on the desk making a loud sound occurred, but he said the ruler was wooden, not metal.
Mr Avard maintained in cross-examination that which had otherwise been the subject of his evidence and, at least to some extent, explained the reasoning for it. In re-examination, Mr Avard provided an example of an interaction with the Deputy Principal after Mr Avard had left primary school, when he was about 14 or 15 years of age. The interaction involved Mr Avard and another person his age, who called the Deputy Principal “Jaffa”, to which the Deputy Principal reacted angrily and aggressively, running towards the boys. The Deputy Principal, once more, went red in the face and Mr Avard said to him, “that’s why we call you Jaffa”.

Scott Adams

Mr Adams attended Forster Public School until Year 6 and was for the last few years of his primary school education in the same year as the plaintiff. He also attended Forster High School with the plaintiff, but Mr Adams completed high school.
Mr Adams was, for a few years, best friends with the plaintiff. During primary school, there were periods when the plaintiff would spend a few nights per week and every weekend at Mr Adams’ place. They would surf and fish and generally have a good time. They remained best friends until about Year 6. At that point it changed. While they were still friends, they were not as close.
In about Year 6, the plaintiff and Mr Adams went along different paths. The plaintiff engaged in behaviours with which Mr Adams was uncomfortable and in which he did not wish to participate. The plaintiff started smoking marijuana, in hindsight, somewhat prematurely. Mr Adams felt like it happened abruptly; one second, they were best friends and then suddenly they were both interested in different things. In high school, the plaintiff was mixing in a different crowd.
Mr Adams and the plaintiff have remained in contact but are no longer close. During at least some of the time that Mr Adams was at the primary school, Mr McLean was the Deputy Principal. Mr Adams remembered him as “a very angry man” who would “become bright red often”. Mr Adams called him “Jaffa”.
The Deputy Principal was “super-aggressive and angry” when he spoke to students. Mr Adams remembered one specific occasion when he ran past the Deputy Principal’s office and the Deputy Principal stuck his head over the window and yelled very aggressively at him. He does not recall the specifics of what was said.
The Deputy Principal was far more aggressive than the other teachers and “very uncontrolled in his delivery of discipline”. Mr Adams described his outbursts as “not random”. They usually occurred when the Deputy Principal was in the process of disciplining someone.
Mr Adams recalls there being a detention process at Forster Public School and he had definitely been on detention on a few occasions. When he was on detention, Mr Adams was sent to the Principal’s or Deputy Principal’s office. He had been in the Deputy Principal’s office for detention on at least one occasion and likely more. Mr Adams does not recall whether the doors were shut during detention.
Mr Adams would attend at the administration building whenever he was sent to see the Principal or Deputy Principal and that would usually be for discipline related reasons. He would not describe the administration section of the school as “busy”.
In cross-examination, Mr Adams accepted that his memory of the events that occurred in 1987 and following was hazy, but the haziness related to timeframes. Some of the issues were able to be remembered clearly. Mr Adams was definitely on detention for disciplinary action, whether it was called detention or whether they were all detentions or some detentions he would not be able to specify.
While there were times when Mr Adams was taken to the Principal’s or Deputy Principal’s office by a teacher, he spent times, for disciplinary action, with the Principal or Deputy Principal alone, i.e. just Mr Adams and the Principal or Deputy Principal respectively.

Neil McLean

Mr McLean was the Deputy Principal against whom the allegations in these proceedings have been made. The State called him as a witness; he is not a party to the proceedings.
At the time of providing his first of two statements, he was 72 years of age, having been born in 1951. He completed teacher training at Lismore College of Advanced Education from 1971 to 1972 and began teaching at Blaxcell Street Public School in 1973. He is married and has been since 1 September 1973.
In 1977, Mr McLean moved to Wedemeyer Public School, Greystanes. In 1979, he was assessed for placement on a promotions list and commenced in a consultant position in April 1980. During his time as a consultant, he was awarded Primary List Two and was appointed to a primary principal position at Yetman Public School commencing in 1983. This was a teaching principal position.
In 1986 following a further assessment process, Mr McLean was appointed to the Primary List Three which led to his appointment as Deputy Principal at Forster Public School in 1988. His wife, who was also witness in these proceedings, was a teacher at Forster Public School at the same time, and during that period his two children were students at the school.
Between 1989 and 1990, Mr McLean applied for assessment and placement on Primary List Four, the assessment for which commenced on 5 June 1989. It occurred at Forster Public School which had 700 students, which later grew to 800 students.
The assessment was a 4-day intensive program which was a 360-degree assessment, but without students being involved. It involved interviews with the teaching executive at Forster, classroom teachers, teacher aides, the Aboriginal Education Officer and others.
There were staff meetings associated with the assessment and some parents were involved in a P&C meeting attended by the P&C executives and regular staff. A number of parents in the wider community were engaged in the process.
The process was described by Mr McLean as rigorous, and its details were provided in the first statement. There was a follow-up invitation to meet with the Regional Director in Newcastle as part of the procedure for merit selection.
According to Mr McLean there was, during this process, no concerns expressed about student welfare or school management practice. Nor was there identified any inappropriate behaviour.
Mr McLean testified that there has “never been a concern raised with regard to any allegations of the type raised in the allegations put to [him] here, during [his] entire 40 years of teaching and leadership service, in any schools in which [he] worked”.^[3]
3. Exh CB 1, p 44, [32].
After his successful assessment, Mr McLean was appointed to Tuncurry Public School in 1992, where he remained Principal for the next 20 or so years. He described those 20 years as “invigorating”. He became Secretary and President of the Local District NSW Primary Principal Council.
As stated, Mr McLean denied the allegations made against him in these proceedings. He described those allegations as being inconsistent with his “established integrity as a local citizen who has lived in Forster for 34 years and as Tuncurry Public School Principal”. He believes that if there were any concerns about his professionalism, integrity or conduct, it would have been brought to light during the course of the assessments for promotions.
Mr McLean described his introduction of a number of policies and programs at Forster Public School and the introduction of a new curriculum and syllabus.
As to his relationship with the plaintiff, he testified that when the name of the plaintiff was put to him by his lawyers, he recalled the name but struggled to remember what the plaintiff was like. His wife, according to Mr McLean, recalled the plaintiff. He was told by his wife that his daughter was in the same school grade as the plaintiff.
Mr McLean denied each of the allegations of sexual misconduct.
As to the circumstances of his office, Mr McLean described the office as part of the administration section of the school and attested to the fact that, as he understood it, administration staff had a direct view from the counter to his office door. He also described the office as having a window to the carpark and the blind was always open. The evidence corroborated that the administration staff had a direct view from their counter of the Deputy Principal’s door.^[4]
4. Exh C.
The “foyer area” and building provided the main thoroughfare and access for entering and exiting the school administration area, which was on a split level, and was used for parents, staff and students conveying messages between classrooms and administration staff. Children sat in the foyer waiting for parents.
Mr McLean testified that the office doors were “only closed when the cleaners had finished attending to the area for the day”. This is an issue of some contention. Mr McLean also testified that there “was an open-door practise [sic] and policy which meant school staff could view and scan the whole area”.^[5]
5. Exh CB 1, p 49, [70].
The administration area was described as a focus [sic] point and it included the reception for parents, students and visitors, the offices of the Principal, Assistant Principal and Deputy Principal, a reading support teacher resource room, a sick bay, staff sign-on book, a duplicating room, an area for the Aboriginal Education Learning Support Officer, shared administration, teacher’s staffroom and teachers’ toilets.^[6]
6. Ibid, at [71].
A bench was located outside the administration block and under cover, which was not attached to the staffroom and was used to place students who needed “thinking time” regarding their behaviour. The behaviour of children was generally managed by teachers but there were times when executive staff intervention was needed.
Mr McLean described the administration area as a “hive of activity”. There were times when intervention of the Executive Staff was required, and students would be referred by the relevant staff member or the children would be taken by their class teacher to the Deputy Principal or Principal.
Mr McLean, in relation to the treatment of students, said this:

“Children were spoken to kindly and asked if they understood the reason for their visit and asked to explain their behaviour. We made every effort to make sure children felt that they were listened to. Often children needed to be given a quiet space to settle down in order to calmly discuss the inappropriate behaviour and appropriate plan including time out. It was a very caring and respectful school culture.”^[7]
7. Exh CB 1, p 50, [76].

According to Mr McLean, the safety and wellbeing of all students and staff was ensured and treated in accordance with school policies and the Department of Education Student Welfare Policy. There were 47 staff at Forster Public School and during the List 4 School inspection appraisal in June 1989, there was an examination of the Student Welfare Policy and the implementation of it. These, according to Mr McLean, were found to meet guidelines and there were no negative comments.
According to Mr McLean he had difficulty preparing the answer to the allegations because of their nature and they made him “sick to the stomach”. It caused him to have “a sense of disbelief and betrayal” and caused him significant anxiety. Apart from the relevance of those aspects to credit, it is not clear to what issue in the proceedings they go.
Following the witness statement of 24 October 2023, on 22 August 2024 Mr McLean complied a second witness statement. Mr McLean is now retired.
The later statement, after summarising some aspects of the earlier statement, refers to the layout of the administration building and attests to the fact that there was an administrative staff member in the reception area to greet people coming into the school and to answer telephones. Mr McLean testified that one could “see into my office from the stairs leading up to the staffroom”.
As earlier mentioned, the administration building was split level, and the staffroom and toilets were on the upper level of the building. The upper level was the level on which the sign-in book for teachers was placed. Notwithstanding the comment to which earlier reference has been made as to the open-door practice, the practice was described in different terms in the second or later statement.
In oral evidence, Mr McLean described the second statement as having “clarified or corrected” that which was described in paragraph [70]. Nevertheless, it is clear from the second statement at paragraph [16],^[8] that there were times when the office doors were closed.
8. Exh CB 1, p 56, [16].
Mr McLean described his own approach as one in which his door would never be shut “if [he] were one on one with a student”. He purported to describe that practice as being followed by other staff, on his understanding, but it is not clarified how one would ever get to such an understanding other than by being told by the other staff. The terms of any such conversation and how the topic arose are not in evidence. Nor would someone who observed a closed door be aware of who, if anyone, was inside.
Mr McLean also described a practice in which staff and parents would often appear at his doorway unannounced and he would make himself available to people. But this was when the door was open, which is, in terms of the issues in this matter, unhelpful or non-probative.
There is a description of the storeroom in the administration building, it seems on the basis of a misunderstanding of some evidence or allegation relating to the storeroom to which the plaintiff referred in the incident in which the plaintiff punched, on his allegation, Mr McLean. However, properly understood, the allegation of the plaintiff was related to a storeroom in a demountable classroom.
Mr McLean in his statement seems to differentiate between “time out” and detention and such time out was, according to Mr McLean, never served in someone’s office. Further, all discipline took place within school hours and Mr McLean attests to the fact that the school “never kept students back after school as they had to catch buses or otherwise get home from school”.^[9]
9. Exh CB 1, p 57, [25].
Typically, Mr McLean would return home from school with his wife and children according to his evidence.
In the second statement, Mr McLean reiterated that he does not remember the plaintiff. Nor did he remember the plaintiff being sent to him by Ms Nixon, his class teacher in Year 5.
Mr McLean denied having ever met with Ms Burke in the circumstances described by her and summarised in these reasons. Mr McLean said he has “no collection of ever having spoken to, left a message for, or met [the] mother and students were not kept back after school”.
It is, according to Mr McLean, “also highly unlikely that [he] would have been at school after about 3.20pm in the afternoon as [he] would have left the school grounds together with [his] wife and two children”. He also denied the events depicted and summarised already, relating to the out-of-school reference to him as “Jaffa”.
In oral evidence, apart from seeking to reconcile the different descriptions of the open-door policy given differently in each of the statements, the defendant relied upon the two statements and was cross-examined. The cross-examination ranged over some detail, such as that the Forster Public School had 47 teaching staff of whom there were 43 usually teaching, and the others were relief staff.
There were 600 to 800 students over the period 1988 to 1991. Over and above the teaching staff, there were four or five non-teaching administration or support staff. There was a general assistant at the school, but staff such as cleaners would come in at an appropriate time in the morning and after school had closed in the afternoon. The cleaners, for example, were not present while students were at the school.

There were three to four classes per stream (year level) at the school, with about 90 to 100 students per stream.
The administration building was not the usual entry point for students – it was generally for visitors, although staff may use it depending upon the direction from which they were coming, and children would enter only for the purpose of bringing a note or something similar. Students bringing a note from a teacher, according to Mr McLean, would always be accompanied by another student unless there were good reason or an emergency.
However, according to Mr McLean, if a student were required to attend the administrative building for disciplinary purposes, then if there were subsequent days during that punishment or time out, the student could arrive on their own. Detention, as distinct from time out, was usually imposed as a step above time out, but in terms of the manner in which it was exercised, it was more a label than a difference in structure.
Time out and detention could be undertaken in the seating fixed outside the staffroom and outside the administration block. Occasionally, seats that were in the foyer, outside the staffroom, could be used for the student to sit and serve time out or detention. Demountable classrooms were not used for detention, nor were students placed in one of the corners of the staffroom.
Detention was not noted on the student’s record unless a counsellor were involved, which was not the usual course. In part, this was not put on the record in order not to label the student with a record of bad behaviour. Time out and detention, other than when involving a counsellor, were not subject to formal strict guidelines.
Mr McLean denied that “isolation” was utilised at Forster Public School, because it was not a high school or it consisted only of Year K-6 classes. Isolation, as drafted in departmental documents, referred to a more severe punishment applicable to older students.
Nevertheless, questions were asked concerning isolation and compliance with policies for punishment. During the course of this questioning, it became clear that isolation was an available punishment, which required a teacher’s emotional neutrality and was not a frivolous punishment – it was a serious occasion and accorded, at least in many respects, with that which Mr McLean described as detention.
If out of class isolation were imposed at Forster Public School, it would occur in the administration building. There were vacant rooms at lunch time and recess, which were not designated detention rooms, that could be used by the student or students and teacher for the purpose of detention.
Mr McLean’s role at the school involved the discipline of children, which included placing students on time-out or detention. Mr McLean was, from time to time, involved in out of class isolation of students, which required the students to be located in the seating in the foyer area.
He was never involved in out of class isolation with a student in a classroom. Nor was Mr McLean involved in detention with a student or students that took place in a classroom.
Further, Mr McLean denied ever having occasion to be involved in a detention of a student in his office. When asked whether there was an occasion to have the plaintiff in his office for any purpose, Mr McLean initially said he did not recall anything like that and then corrected it to say no he did not.^[10]
10. Tcpt, 11/10/24, p 224, ln 21.
Initially, Mr McLean said there was never a time when there was a student and teacher involved in a disciplinary matter, or a matter of student welfare, on their own in a room. He was asked whether, in that statement, he had meant “without the door being open” and he responded the door was open, meaning it was “always” open.
Asked to clarify the answers given, Mr McLean said, “there was never the door shut with a student in the office”. The clarification was, in effect, a different answer to the answer given first to the question. Properly understood, the effect of the clarification was that there could be a student and teacher involved in the discipline or student welfare issue on their own in a room, but then the door was open.^[11]
11. Tcpt, 11/10/24, p 224, ln 23-41.
Mr McLean explained that the policy of never having the door shut with a student in the office was implemented so that students felt safe, because they needed to feel safe rather than intimidated. His answer went on to explain that it is “very, very easy to intimidate a child” and that teachers were aware to “switch on their student welfare knowledge and understandings” and not put themselves or the child in a compromising position.
Asked how it would be compromising for a teacher, Mr McLean explained that because the child would be intimidated, she or he may report it to a parent, but they would probably be “too scared to take it to … their classroom teacher”. In those circumstances, it would come back to the school, and it would be found that the teacher has not followed expectations of safe student welfare processes. Mr McLean said that the policy was universally applied without exception and there were no occasions where a door would be shut with a student and staff member in that room.
Nevertheless, Mr McLean suggested that it was possible that his and other doors were closed from time to time, but according to Mr McLean, while on some occasions the door was closed, on most occasions it was open. No one ever queried or quizzed Mr McLean when his door was shut.
Mr Mclean was in a position of known authority over the school students, and he could exert power over them, although, according to Mr McLean, he did not like that description. Mr McLean also accepted that he was in a position of trust in relation to the students. As such, if Mr McLean were to direct a student to serve time-out, the student would comply.
Mr McLean was asked whether, if he were to have directed a student to attend the administration building, he would expect the student to comply with a request. Mr McLean answered the question by qualifying it in suggesting that he would expect that only “if it were a reasonable request”. When asked to clarify when a direction to a student to go to the administration building would not be a reasonable request, Mr McLean avoided answering the question. Ultimately, Mr McLean agreed that his invariable experience at the School was that if he were to direct a child to go somewhere, the child would go.
Mr McLean described his office. The door was on the western wall at or near the southern wall and swung inwards towards the southern wall. There was a window on the eastern wall and the desk and Mr McLean’s desk chair were against the northern wall and Mr McLean sat facing north. There were two “lounge” chairs against the southern wall. Mr McLean sketched the layout of his office.^[12]
12. Exh B, previously marked MFI 2.
Questions as to the line of sight from the reception area drew the response from Mr McLean that people could see into the office. Initially, as earlier stated, he asserted that people on the stairs or walking down the stairs could see into his office and people at the reception area/counter could see into his office.
However, a proper examination of Exhibits C and D discloses that persons on the stairs could only see a small part of the southern wall of Mr McLean’s office, assuming the door was open, and a person at the reception counter would have very limited sight of Mr McLean’s office, when the door was open, as would persons standing in the foyer area of the duplicating room.
Assuming the Deputy Principal’s office door was open, sight of the desk would be limited to people standing east of the door to the principal’s office in an area marked by part of a triangle formed by the western wall of the Deputy Principal's office and the office to its south, the northern wall of the Principal's office, east of the doorway and the hypotenuse from the doorway of the Principal’s office and the northern extremity of the Deputy Principal’s office. Even in that very small triangle, there could be no view of the Deputy Principal’s office if one were located too close to the western wall of the office of Assistant Principal (being the office to the south of the Deputy Principal’s office).
Mr McLean vehemently denied any conduct alleged in relation to sexual abuse against the plaintiff and could not recall any interaction with the plaintiff. Notwithstanding his lack of recollection, the evidence of Mr McLean was that he denied ever having Mr Greenwood in his office and he denied any interaction with him or knowing him.
Mr McLean accepted that, as a senior member of the school executive, the staff would not question him being involved in the detention of a student at the school, unless they were involved in the detention decision, but also accepted that if he took a student into his office for any purpose, he did not know if they would say anything.
One of the questions and answers bears repeating:

“Q: I want to suggest to you that if you took a student into your office for any purpose given your senior role in the school, the staff would not question your conduct in relation to that student?
A: I don’t think they would see me – if I was taking a child, and I wasn’t, I don’t – they’d notice, I suppose, but they wouldn’t – I don’t know if they would say anything.”

Mr McLean accepted, towards the end of the cross-examination, that it was possible that detention in the form of out of class isolation took place at the school by a teacher taking a child and sitting them at the front or in the corner of the classroom for a few moments, but it was not noted as a detention. Such a thing could have happened in any of the classrooms, including the demountable classrooms. It would not have happened in the staffroom.
Lastly, Mr McLean denied yelling at students, other than in a situation where he was calling across a playground; he denied there was an occasion when he smacked a metre long wooden ruler on a student’s desk when visiting a classroom; and he denied ever physically dragging a student by holding their upper arm. Mr McLean denied ever being punched in the stomach by the plaintiff and had no recollection of an occasion which required the plaintiff’s mother to attend school after hours.
In re-examination, Mr McLean testified that he was unaware of any complaint having been made against him by a student, a parent or another staff member. While the answer to each of those questions was in the negative, I assume the answer did not include the complaints made in the current proceedings. He also gave evidence about friendly contact out of hours with students in the area and with their parents. Mr McLean suggested that approximately five thousand students have come under his care, although I accept that as a rough estimate.

Kayleen Stewart

Kayleen Stewart was a person who worked in the administration office at Forster Public School, initially as a casual and then from 1989 as a permanent. After the relevant timing of these events, Ms Stewart became office manager and retired at the end of 2014. Ms Stewart described the administration building and the personnel working in it. She also attested to the “open door policy” operating throughout the school.
She noted exceptions to the policy, such as if there were a private parent meeting. In her experience, there was never a child and an adult alone in a room with the door closed. On occasion, Ms Stewart was requested to sit in a meeting in a room to avoid the adult and child being in the room together.
One of the administrative staff would be in the office by 8:30am and one would remain there from that time until between 3:30pm and 4:00pm. There was always someone, sometimes three people, in the main administration area at any given time.
Ms Stewart testified that there was no corporal punishment in the early 1990s, such punishment having been abandoned before Ms Stewart’s arrival at Forster Public School in 1984. Ms Stewart does not recall whether there was detention but described the situation where a student had “really misbehaved” and being required to sit in the foyer area in the administration building. Nevertheless, Ms Stewart testified that there was no detention conducted in the administration building.
Ms Stewart described Mr McLean’s interactions with students as “unremarkable”. She described Mr McLean as “a bit of a disciplinarian but not over the top”. She had never observed a student in his office on detention and described some teachers as a lot stricter than he was.
She also testified that she had never seen Mr McLean take a student into the storeroom. Nor did she ever see him giving students frozen yoghurt or fruit balls. The first that Ms Stewart heard of the allegations made by the plaintiff were in these proceedings.
No one explained to Ms Stewart why there was an open-door policy and what it was intended to protect. She suggested that it would be common knowledge that it would be a safeguard for everybody. In that regard, Ms Stewart suggested that it was a safeguard against “inappropriate things” happening.
When she attended such meetings with students, the doors were still open and the subject matter of such proceedings could be a range of matters, including discipline but not necessarily a serious matter. In the relevant years, Ms Stewart would have been called into such a meeting on very few occasions, but perhaps a few times a year.
If Ms Stewart had seen the doors of the executive staff offices closed, she would assume that there was a meeting occurring and that everything was in order. If she had seen Mr McLean’s door closed, she would not make an issue of it because she would assume that everything was in order.
The reception counter was about two metres (and on the plan shows six foot three inches) and above the reception counter was a glass panel, half of which opened. The counter was about three and a half to four foot high. The opening part of the glass panel was at its northern end, and it was usually left open. After being shown the plan, Ms Stewart agreed that one could not see the Deputy Principal’s room from the duplicating room and had an obstructed view of the Deputy Principal’s door from the reception counter, except from some parts of the reception counter.

Mary McLean

The State called Mary McLean, the wife of the Deputy Principal and a person who, during the relevant period, taught in the Infants Department of the School. During her teaching years, being the relevant period for the complaint, Ms McLean would attend at the administration building several times each day. She would enter the school through that building, sign in and sign out and do her duplicating.
She would also go to the administration building, because she went to the staffroom at recess and at lunch when she was not on playground duty. Ms McLean was rostered on playground duty about three times a week for part of lunch or recess.
Ms McLean would usually meet her husband, the Deputy Principal, in his office after school and they would usually travel home together with their children, who were students at the school. In her evidence, she described the administration building.
Ms McLean does not recall whether the school had a formal policy regarding detention. As a matter of practice, teachers dealt with student behaviour for the most part. If additional support was needed, they would speak to the executive teacher or the Assistant Principal whom she described as being, in 1991, Len Chapman and Bob Woolbank, respectively. It was only if the behaviour was particularly serious that the Deputy Principal or the Principal would become involved.
Ms McLean does not recall a specific detention room, but teachers may have put their students on detention in their own classroom.
She remembers the plaintiff as being a troublesome child from her time on playground duty. He was also in their daughter’s year at school.
When she went to the staffroom at recess or lunch, she generally saw her husband.
There was no discussion about an open-door policy when she commenced at the School, and she would describe it as a practice rather than a policy.
Ms McLean was generally not in the administration building during school hours, but when she was there, she never saw the door closed. Nevertheless, she would not be surprised if other people had seen doors shut from time to time.
Ms McLean does not recall any staff telling her that it was an open-door policy; it was just a practice, and Ms McLean could not see any reason to have doors shut. She had been told that her husband was the first person who reminded people that doors should be left open and she understood that the practice was that the door would remain open unless there were good reasons to have it closed.
Ms McLean does not recall the school having a formal policy as to detention. The distinction between “time out” and “detention” became more noted in the late nineties but was not drawn, to Ms McLean’s recollection, in the 1980s.
Detention, in Ms McLean’s view, is a harsher word. The term detention was not commonly utilised.
She denied that Mr McLean would be detained after school without her, although there were occasionally staff meetings. Part of the reason for that is there were outside school lessons that their children needed to attend.
Ms McLean does not recall a single occasion where her husband would have to stay after class ended, for the purpose of doing school associated work. Ms McLean also denied that Mr McLean ever kept a student after school. It is not absolutely clear how Ms McLean would be aware of that circumstance, unless the practice of returning home was universally applicable, which it was not, or except as informed by Mr McLean.
Ms McLean remembered the plaintiff as being boisterous and vigorous and breaking rules when playing football in the playground. She recalls him being pulled up often for dangerous play in the grounds of the school. She never referred him to the Principal and cannot say whether other teachers did. She was not asked whether the plaintiff was referred to the Deputy Principal.

Judith Ridgway

Ms Ridgway’s evidence-in-chief was by way of her statement.^[13] Ms Ridgway retired from teaching in 1995 and was the Assistant Principal for Year K to Year 2 from 1981 through to 1993, when she was appointed Deputy Principal together with another.
13. Exh CB 1, p 106A and following.
She refers to the witness statement of Mr Avard, which is already summarised in these reasons. She remembered Mr Avard but did not recall teaching him although she identifies the class photograph from 1987 as her Year 2 class in which Mr Avard was recognised.
Ms Ridgway does not recall the incident which Mr Avard described in which Mr McLean banged a ruler on the desk. She does not recall Mr McLean ever coming into her classroom and, in Year 2, which was 1987, Mr McLean had not yet started at the school. In 1987, Bob Woolbank was the Deputy Principal.
When Ms Ridgway was at the school and Assistant Principal, there was a practice or policy of “open doors”, meaning that the office doors were open and people could go in at any time. It was not written down anywhere in the school’s procedures or guidelines.
She remembered Mr Avard when he was a student in her class. She remembered the plaintiff’s name but does not remember him in her class.
She described the time out system and it being applicable to Years 3 to 6 students. If there was a problem, the teacher might send them to stand outside the Principal’s office and that was an accepted practice to remove them from the situation for a while. The teacher would send the student to the administration office to stand outside the Principal’s office.

However, the other departmental witnesses would not know, and, at the same time, the other departmental witnesses did not give evidence that the plaintiff was not put on detention on a regular basis.
The evidence of the plaintiff and Mr Avard was provided by statement. There is no issue of the State not having the opportunity to adduce evidence or to explain evidence put against it. If the evidence were to have existed, the State was in a position to be able to adduce it.
Similarly, the circumstance that other people would, from time to time, enter Mr McLean’s office is a neutral circumstance. There is no suggestion that such persons would enter his office when the door was closed.
The other material criticised by the State is insignificant in the findings of fact. It is necessary to deal with the tendency evidence in more detail than has previously been discussed.
The Court admitted the tendency evidence. But the tendency evidence proves that the Mr McLean acted aggressively, angrily, to raise his voice excessively, to act in a way that intimidated students and to become red in his face from anger. Such evidence includes the evidence of grabbing a student by the shirt, smacking the desk with a wooden ruler, and yelling. However, even though each of those tendencies is proved by the evidence admitted, in my view it does not prove that Mr McLean committed the acts of assault by engaging in sexual abuse.
While it is impermissible, given the lack of notice, to take into account any tendency evidence to the contrary, the absence of any alleged conduct in relation to any other person, including any other child, might, to the contrary, suggest a tendency not to engage in the conduct that has been alleged. Notwithstanding the absence of notice and the inability to take into account such a factor, the good character of Mr McLean, otherwise in evidence before the Court, is a factor in the determination of the fundamental issues involved in these proceedings.
I do not accept the submission of the State that it is essential that a teacher or executive staff member have a prior history associated with abuse of children in order for the State (or more practically, the Department) to be aware of the risk and to take measures to ameliorate or obviate the risk. I have already discussed the awareness of the Department to the risk and the risk does not depend upon allegations of prior conduct with other students.
As has been submitted and as is clear from the evidence before the Court, some steps were taken by the Department and, necessarily, the State to seek to deal with the risk. First, the risk was discussed at Teachers’ College in the training of teaching staff. Secondly, there was a legislative requirement (if that be a step by the School) which required mandatory reporting as a result of the legislation and there was a program for child protection in place across public schools.
Further steps were taken. There was a student welfare policy in place and, while not policed, there was the open-door practice.
The State relies upon child protection training to which Ms Purbrick attested. Mention has already been made of the training at Teachers’ College. However, the evidence of Ms Purbrick was unhelpful to the State in these proceedings.
Ms Purbrick made it clear that she received no education as to behaviours that might be relevant to ascertaining victims or perpetrators, but she received some training on the mandatory reporting and the like when she commenced employment at the high school. That was some time after she was employed at the School and after the period relevant to these proceedings.
The circumstance that there was an open-door practice is a factor upon which the State relies to show that it took reasonable measures to alleviate, ameliorate or obviate the risk that was apparent and known to the State. However, once the practice is applied “in general” and not universally or not policed, the practice does not ameliorate the risk to which it is directed (assuming for present purposes it is directed at that risk).
Once it is known by staff, or relevant staff, that a closed door will not excite questions or interference, the so-called “open-door practice” is of no effect on ameliorating the risk or seeking to deal with it in any meaningful way. The reliance by the State on the open-door practice is misplaced in this respect and points significantly to the awareness of the risk and the failure to deal with it in a manner that overcomes the risk. Further, it points to the circumstance that a very simple, cost-free step or steps were available to the State to deal with the risk. Further, students and parents should have been informed of a policy that prohibited one-on-one meetings between staff and a student, as suggested was the situation later than the currently relevant period, and a procedure for reporting abuse and/or inappropriate conduct implemented and published.
Having found a breach of the duty of care, it is unnecessary to deal with the claim in vicarious liability. The evidence has been summarised and conclusions of fact recited. If it is ultimately necessary to deal with vicarious liability, sufficient findings have been made to allow that to occur.
There are some issues which have not been determined. Given the Court’s findings on the timing of the abuse, whether Ms Nixon sent the plaintiff to the Deputy Principal is not a relevant aspect of the findings.
Nevertheless, if the Court, as presently constituted, is wrong about the finding in relation to timing, it should be pointed out that the perception of the plaintiff that he was sent on numerous occasions to the Deputy Principal, to the extent that he considered he may have been “set up”, is part of the difference in perception between forced conduct that is problematic and which is associated with trauma and unpleasantness. If, as the evidence has suggested, the abuse was as seldom as six times, then if Ms Nixon sent the plaintiff to the Deputy Principal on two occasions, those occasions would have been significant in the scheme of the abuse.
The detention was, despite some misunderstanding during the course of questioning, a situation where, before lunch, the plaintiff was sent to the Deputy Principal when lunch occurred. There were three sets of seating that are relevant: one had a child facing north and was outside the administration building with the back abutting the staffroom; another was in the foyer, opposite the entrance and almost opposite the Principal’s office; and the third was outside the staffroom with the back of the seating abutting the staff toilets which required the child to face east on the upper level of the administration building. It seems from the evidence that the “detention” of the plaintiff was served in the last-mentioned seating or the first-mentioned seating, rather than the seating in the foyer.
I make it clear that I draw no distinction between “detention” and “time out”. While much attention was paid during questioning to the distinction, from the perspective of a student and, to a lesser extent, from the perspective of a teacher, the difference was semantic. In only one respect was it significant, a formal detention was noted on the record of the student. That which the plaintiff describes as detention, and that which Mr Avard and Mr Scott describe in that way, were, it seems, a period of time-out.
It is clear from the evidence of Ms McLean that the plaintiff was a “problem” child who was the subject of punishment and, in particular, time out. Ms McLean remembers the plaintiff in that respect and her memory of the plaintiff, despite the circumstance that she taught in the Infants Department, makes even more unbelievable the failure of Mr McLean to remember him. The plaintiff was in the same class as their child.
As to causation, upon which the State makes submissions, the psychiatric evidence establishes the damage caused by the sexual abuse. There is no reason to doubt the accuracy of the reports of each of the psychiatrists in that respect.

Liability

Despite these findings the Court needs still to determine the issues of liability and, to the extent that liability is determined against the State, and even if it were not, to assess damages. The State owes a non-delegable duty of care to take reasonable precautions to prevent a foreseeable and not insignificant risk of harm.^[32] The State admits such but denies that it has breached the duty imposed. The Court of Appeal has recently summarised the duty of care and said:

“The duty of care owed by a school has tended to be expressed in terms encompassing a broad range of risks of injury. That reflects the fact that ‘[c]hildren stand in need of care and supervision and this their parents cannot effectively provide when their children are attending school’ (Geyer v Downs (1977) 138 CLR 91 at 93; [1977] HCA 64). It also reflects the myriad risks which may arise in connection with schooling. Children ‘need protection from their environment, from others and from themselves’: Trustees of Roman Catholic Church, Archdiocese of Sydney v Kondrajian [2001] NSWCA 308 at [55].”^[33]
32. Geyer v Downs (1977) 138 CLR 91 at 93; [1977] HCA 64.
33. State of New South Wales v T2 (by his tutor T1) [2025] NSWCA 165 at [63] (Kirk JA, with whom Bell CJ and Price AJA agreed).

In Introvigne,^[34] the High Court said:

“The primary duty of care owed by a school authority extends to the provision of the staff and resources necessary to discharge the duty to the pupil which it undertakes by accepting him (sic). That duty is no less than the duty of the schoolmaster (sic), who is bound to take reasonable steps to protect the pupil against risks of injury which should reasonably have been foreseen.”^[35]
34. The Commonwealth v Introvigne (1982) 150 CLR 258; [1982] HCA 40.
35. Ibid, at 280 (Brennan J).

As described by the High Court in Introvigne, the duty is one similar to that owed by a hospital to a patient and goes beyond “mere vicarious liability for the acts and omissions of its servants”.^[36]
36. Ibid, at 271 (Mason J).
There are two major reasons why the State denies liability. First, it denies that the abuse occurred. The Court has already dealt with that issue. Secondly, the State submits that, because the duty of care was limited to avoiding a reasonably foreseeable and not insignificant risk of harm, it is not liable because the risk was not foreseeable.
It is impermissible and unnecessary for the Court to utilise hindsight on the foreseeability of a risk of injury arising from sexual abuse by staff. The evidence before the Court is that the State had already foreseen such risk.
The risk was the subject of discussion and instruction at the Teachers’ College, according to the evidence before the Court, before these incidents occurred. Further, on the evidence before the Court, the staff at the School foresaw possible injury arising from inappropriate conduct inflicted on a student.
Such conduct could be any kind of physical harm. It might include the infliction of corporal punishment, which, by that time, had been prohibited; and, in accordance with that which was foreseen and taught at the Teachers’ College, could have included sexual abuse.
The risk of harm was foreseeable and required reasonable steps to overcome it.
There are a number of steps that could have been taken, each of which would have been reasonable, to obviate the risk of such foreseeable harm. First, the “open-door practice” could have been strictly enforced, with no closed-door meetings occurring. Secondly, as was mentioned in the course of the proceedings, the State (or its agent) could have enforced strictly a policy and/or practice in which no student was alone with a staff member.
Obviously, in classes, there were a significant number of students present. Where a meeting occurred, on the evidence before the Court, there was, on occasion, a situation where staff members required another staff member to be present.
However, on the evidence before the Court, such rule was not strictly enforced. Nor did the State inform either students or parents that no staff member was entitled to meet with a student in a closed environment without another staff member or other students being present. Further, publication to parents and students of such a policy, together with procedures for reporting breaches, were reasonable steps not taken by the School which would have ameliorated, if not eliminated, the risk and, at least, from a potential perpetrator’s perspective, served as a deterrent to offending.
Any one of those reasonable measures, being measures some of which were, from time to time, implemented but not universally enforced, could have been undertaken and the subject of policy direction by the State. Each such measure would have been a reasonable precaution for the risk foreseen by the State and more likely than not prevented the injuries suffered by the plaintiff.
Moreover, the risk is considerable in that, if it were to manifest, as I have found it did, the damage is extremely significant. Thus, even in the absence of a tendency by a particular teacher, where there are reasonable steps available to avoid the risk by any teacher, those steps should have been undertaken.

Damages

I turn then to the question of damages. Because of the essential agreement between the experts, I do not need to summarise the opinions expressed by each of the psychiatrists.
Each of them considers that the sexual abuse is the cause of the plaintiff’s PTSD and that the other traumatic events (if they be traumatic) suffered by the plaintiff were not a substantial cause or a contributing cause to the chronic PTSD suffered by the plaintiff.
If there were any other event that may have caused PTSD, it was the potential and actual separation of his parents. Yet, despite the potential separation and his absence from school in Year 3, each of the psychiatrists consider that the plaintiff did not suffer from any pre-existing psychiatric condition, i.e. prior to the abuse, and that it is most unlikely that the plaintiff would have suffered PTSD or substance use disorder had the abuse not occurred.
In those circumstances, it is unnecessary to seek to disentangle different causes. There is, in the findings I have made, no basis for a discount for contingencies that is substantially more than would otherwise be applied.
Whatever be the view that a reasonable person would take of the kind of abuse inflicted on the plaintiff, such abhorrence is not the measure of damage. It is not the gravity or frequency or severity of the sexual assaults that is measured. That which is measured is the effect on the plaintiff.^[37]
37. PP v DD (No 2) [2021] NSWSC 1312 at [54] (Cavanagh J).
Thus, the Court assesses the damage to and hurt felt by the plaintiff, the psychiatric effect on the plaintiff and the impact on the plaintiff’s life, including, when dealing with loss of income, the effect on the plaintiff’s income.
Not unusually in the case of sexual abuse, the PTSD suffered by the plaintiff is chronic; it will subsist for the life of the plaintiff and has existed and affected the plaintiff over the past 30 odd years. It has caused, on the expert evidence, his substance abuse, anti-social activities and consequential incarceration. On the evidence, it has also affected his personal life, including his relationship with his wife, as she then was, and his children.
Assessing damage in accordance with the provisions of the Civil Liability Act 2002 (NSW) requires the Court to assess general (or non-economic) damages in accordance with section 16. This requires the Court to be satisfied that the severity of the non-economic loss is at least 15 percent of the most extreme case and, if 15 percent loss or more, but not a loss of the most extreme case, in accordance with a percentage of non-economic loss prescribed by the legislature.
The damage suffered by the plaintiff is severe and more than 15 percent of the most extreme case, but it is not the most extreme case, notwithstanding that the injury will last for the rest of the plaintiff’s life and the severity of the psychiatric conditions under which he will suffer for that time. The maximum amount of general damages, which, as stated, may be awarded only in the “most extreme case”, is prescribed to be $693,500.
I have had regard to the comparable awards and, assuming for present purposes the State is liable, would have awarded $375,000 for general damages. The $375,000 comprises $250,000 for past damages and $125,000 for future damage. In my view, the future damage will be lessened because, I assume, the plaintiff, having now aired his history and having been made aware of his conditions, will seek and obtain treatment.
Because I am basing the cause of action on negligence and not on vicarious liability, no interest will be awarded on the general damages. If interest were payable on the general damages, because of liability arising as a result of vicarious liability, I would, pursuant to s 100 of the Civil Procedure Act 2005 (NSW), award interest prior to judgment by applying half of the average rate of interest over the significant period since the abuse occurred to the past component of general damages. That rate would be 2.5 percent.
Turning to economic loss, I accept the evidence of the plaintiff that he was capable of earning approximately $2,800 per week. The damages would require the awarding of a significant buffer, because the precise calculation of damage would be impossible. Account must also be taken of the cyclical and itinerant nature of construction work. From such a calculation, the Court must subtract actual earnings in the past and the estimate of future earnings, regardless of the damage.
It must be remembered that the assessment of economic loss is an assessment of the loss of earning capacity, not the loss of earnings, and absolute precision is therefore not required. For those reasons, I would accept the calculation of past economic loss and future economic loss submitted by the plaintiff and, as a consequence, the interest on past economic loss and the awarding of past superannuation calculated by the plaintiff.
I would not award exemplary damages. I do not consider the conduct of the State to warrant punishment, and I include the conduct of the proceedings in that assessment. Again, I have not considered vicarious liability in this respect.

Conclusion

I have determined that the plaintiff was abused. It is most likely that the abuse occurred at the School, but I consider that the evidence does not satisfy the Court that it is more probable than not that it occurred when the plaintiff was in Year 5. Rather, it seems more likely than not that the abuse occurred in the first term of Year 6. It certainly occurred between the end of the football season in the plaintiff’s Year 5 and the beginning of the football season in Year 6.
If I were required to choose between the abuse having been perpetrated by Mr McLean and any other individual, I would, on the evidence before me, consider that Mr McLean is the more likely perpetrator. However, I cannot be satisfied, even on the balance of probabilities, that Mr McLean perpetrated the abuse.
As already stated, the exercise that the Court is undertaking is not an exercise in Bayesian probability. While I have divided the decision making in a way that may resemble such a stepped binary approach, I have done so because it is, in my view, the best way of dealing with the difficult issue of whether the satisfaction is one that is more probable than not.
Even if one were to utilise a Bayesian approach, the result would be the same. The certainty of the subsidiary facts after the Court is satisfied on the balance of probabilities results in the probability of Mr McLean being the perpetrator as 1 – P(X), where P(X) is the probability of any one of the other persons being the perpetrator. In the absence of an evaluative process (which is one of the reasons Bayesian Probability is impermissible), the combined probability of the other two Executive staff members being a perpetrator would be 0.67 and the probability of Mr McLean being the perpetrator is less than 0.5.^[38]
38. Probability is measured between 0.0 and 1.0, where 1.0 is certainty that an event has or will occur. The probability of any one of a number of events occurring is calculated by adding the probability of each, and the probability of all events occurring is calculated by multiplying the probability of each.

One of the reasons the above arithmetic analysis is impermissible is that it involves no evaluation of the real probability other than its arithmetic value. Notwithstanding the approach of Murphy J,^[39] an evaluation is required, and simple arithmetic probability will not suffice.
39. TNT Management Pty Ltd v Brooks (1979) 53 ALJR 267 at 270; West v Government Insurance Office (NSW) (1981) 148 CLR 62; [1981] HCA 38 at CLR 70.
In evaluative terms, based on the evidence before the Court, the probability of the perpetrator being Mr McLean is greater than each other possibility on its own but I am not satisfied that it is greater than 0.5, in that I cannot be satisfied that it is more probable than not, or more probable than all the other possibilities together.
In other words, I consider that the plaintiff has been abused, and I am satisfied that the abuse occurred on the basis that I am satisfied more probably than not that it occurred. I am not dealing with a criminal proceeding.
If I were required to choose between whether to believe the plaintiff or Mr McLean as to whether Mr McLean perpetrated the abuse, I would be satisfied that the plaintiff’s version is more probable. The difficulty is that there are other possibilities.
If the plaintiff were abused after the first term of Year 6, it would not have been Mr McLean. While there is no evidence suggesting another perpetrator, I have regard to the care that one must take in being satisfied that a person who is otherwise without blemish committed such heinous assaults.
It may be that, because of the dislike of Mr McLean by the plaintiff and others, time has blurred the identity of the perpetrator in the mind of the plaintiff. If one were guessing as to possibilities, it could have been the football coach. However, I have determined that the abuse occurred at the School by an Executive staff member.
The existence of other possibilities has influenced my determination that, despite my view that the plaintiff’s version is more believable than Mr McLean’s version, I cannot be satisfied that the plaintiff’s version in terms of the identity of the perpetrator occurred more probably than not. While I accept the punching incident, the corroborative evidence refers to “the Deputy Principal”, which may not at the time have been Mr McLean.
I am also mindful that, given my conclusion as to timing, the State has been denied the ability to adduce evidence from the plaintiff’s Year 6 teacher or any other teacher other than the Year 5 teacher who gave evidence. Nor has the State been required to adduce evidence from any other Deputy Principal or Executive staff member, one of whom at least is deceased.
I have not been required to determine whether the abuse occurred at school through a perpetrator other than and including Mr McLean. If I were required so to do, the result would have been very different. In this sense, the outcome results in an unfairness.
I have concluded that the plaintiff was abused at the School by a senior member of staff during the plaintiff’s Year 6. Such a finding would involve questions of the same kind relating to the State’s liability. The Court can only deal with the issues pleaded and I have already remarked that the pleaded case confined the State to issues in Year 5 and to Mr McLean as perpetrator.
There is a very strong case for liability on my findings, although such findings, as stated, do not account for evidence that may have otherwise been adduced by the State. Nevertheless, there is a strong case for some compensation from the defendant for the plaintiff arising from the abuse and the findings of liability. However, such an issue does not arise for determination by the Court in these proceedings.
For these reasons, the Court makes the following orders:

Judgment for the defendant.

The plaintiff shall pay the defendant’s costs of and incidental to the proceedings.

Any party may make application for a special order as to costs within 7 days of the publication of this judgment. Such application may be made by email to the Associate to Justice Rothman and the application may be no more than 5 pages, excluding any document, not otherwise in evidence, on which the application relies. Any party affected by any proposed special order may reply within 14 days of the application under the same conditions.

Otherwise, the proceedings are dismissed.

**********

Endnotes

Decision last updated: 28 August 2025

Medium Neutral Citation:	Greenwood v Department of Education [2025] NSWSC 969
Hearing dates:	8, 9, 11, 14, 15 and 18 October 2024
Date of orders:	28 August 2025
Decision date:	28 August 2025
Jurisdiction:	Common Law
Before:	Rothman J
Decision:	(1) Judgment for the defendant. (2) The plaintiff shall pay the defendant’s costs of and incidental to the proceedings. (3) Any party may make application for a special order as to costs within 7 days of the publication of this judgment. Such application may be made by email to the Associate to Justice Rothman and the application may be no more than 5 pages, excluding any document, not otherwise in evidence, on which the application relies. Any party affected by any proposed special order may reply within 14 days of the application under the same conditions. (4) Otherwise, the proceedings are dismissed.
Catchwords:	NEGLIGENCE — non-delegable duty of care — school — historical sex abuse — Deputy Principal — whether plaintiff was abused — whether plaintiff was abused by Deputy Principal — onus and standard of proof — abuse found to have occurred by an executive staff member at the school — Court not satisfied that Deputy Principal perpetrated the abuse on the balance of probabilities NEGLIGENCE — vicarious liability — employer and employee — unnecessary to deal with as State breached duty of care
Legislation Cited:	Civil Liability Act 2002 (NSW), s 16 Civil Procedure Act 2005 (NSW), s 100
Cases Cited:	Briginshaw v Briginshaw (1938) 60 CLR 366; [1938] HCA 34 Carr v Baker (1936) 36 SR (NSW) 301 Fabre v Arenales (1992) 27 NSWLR 437 Geyer v Downs (1977) 138 CLR 91; [1977] HCA 64 Henderson v Queensland (2014) 255 CLR 1; [2014] HCA 52 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170; [1992] HCA 66 PP v DD (No 2) [2021] NSWSC 1312 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20 State of New South Wales v T2 (by his tutor T1) [2025] NSWCA 165 The Commonwealth v Introvigne (1982) 150 CLR 258; [1982] HCA 40 TNT Management Pty Ltd v Brooks (1979) 53 ALJR 267 West v Government Insurance Office (NSW) (1981) 148 CLR 62; [1981] HCA 38
Texts Cited:	Cohen Dr L J, The Probable and the Provable, Clarendon Press, Oxford (1977) Hodgson D, Probability: The Logic of the Law – A Response, 15 Oxford JLS 51 Shafer G, A Mathematical Theory of Evidence, Princeton (1976) Tillers P & Green E, Probability and Inference in the Law of Evidence; The Uses and Limits of Bayesianism, Kluwer Academic Publishers, London (1988) Tyree A, Probability Theory and the Law of Evidence, (1984) 8 Crim LJ 224
Category:	Principal judgment
Parties:	Jamie Greenwood (Plaintiff) Department of Education (Defendant)
Representation:	Counsel: E G Romaniuk SC / J B Masur (Plaintiff) D Lloyd SC / C Robertson (Defendant) Solicitors: BPC Law (Plaintiff) Moray & Agnew (Defendant)
File Number(s):	2022/00382008
Publication restriction:	N/A