Munting v Pollard
[2024] TASSC 30
•17 June 2024
[2024] TASSC 30
| COURT: | SUPREME COURT OF TASMANIA |
| CITATION: | Munting v Pollard [2024] TASSC 30 |
| PARTIES: | MUNTING, Katrina Faye |
| v | |
| POLLARD, Marcus | |
| THE STATE OF TASMANIA | |
| FILE NO/S: | 2270/2021 |
| DELIVERED ON: | 17 June 2024 |
| DELIVERED AT: | Hobart |
| HEARING DATE/S: | 20 – 24, 29 March; 12 April 2023 (Written submissions – 17, 24 April 2023) |
| JUDGMENT OF: | Porter AJ |
| CATCHWORDS: |
Damages – Generally – Exemplary, punitive, aggravated and like damages – Exemplary damages – Action for damages for sexual abuse – Where defendant had been substantially punished in criminal proceedings – Discretion to award exemplary damages in an unusual case – Defendant's conduct after abuse ended and
of civil proceedings justified an award of exemplary damages.
Gray v Motor Accident Commission [1998] HCA 70, 196 CLR 1, considered.
Cheng v Farjudi [2016] NSWCA 316, 93 NSWLR 95, followed.
Aust Dig Damages [1010]
Damages – Assessment of damages in tort – Generally – Limits on recovery of damages – Causation – Other cases and matters – Action for damages for sexual abuse when a high school student – Claim for loss of earning capacity where plaintiff chose less rewarding career than would otherwise have been available – Opted for teaching role motivated by desire to protect children – Decision not directly attributable to later diagnosed PTSD but where developing psychological symptoms present – Chain of causation unbroken –
Claim allowed.
Medlin v State Government Insurance Commission [1995] HCA 5, 182 CLR 1; Hirst v Nominal Defendant
[2005] QCA 65, 2 Qd R 133, applied.
Aust Dig Damages [1074]
Damages – Assessment of damages in tort – Personal injury – Other heads of damages – Gratuitous care – Civil liability legislation modifications – Civil Liability Act 2002 allowed damages for gratuitous services subject to a threshold – Where previous legislation prevented award if the plaintiff had not paid or was not liable to pay for services – Previous legislation repealed – Effect of repeal on claim where Civil Liability Act did not apply to plaintiff's action – Plaintiff entitled to award.
Aust Dig Damages [1140]
Damages – Particular awards of general damages – Tasmania – Sexual abuse of female high school student by teacher over a period of about 18 months – Emotional and psychological harm including complex PTSD –
Award of $275,000 including aggravated damages.
Aust Dig Damages [1173]
Statutes – Acts of Parliament – Repeal – Effect – Revival of common law – Legislative provision prevented an award of damages for gratuitous services where plaintiff had not paid or was not liable to pay for such
services – Where that provision repealed by amendment to Civil Liability Act 2002 which allowed damages for gratuitous services subject to a threshold – Effect of repeal on claim where Civil Liability Act did not apply to plaintiff's action – Right to damages for gratuitous services at common law revived.
Common Law Miscellaneous Actions Act 1986, s 5
Civil Liability Amendment Act 2005
Civil Liability Act 2002, s 28B
Acts Interpretation Act 1931, ss 4(1), 16(1)
Majeau Carrying Co Pty Ltd v Coastal Rutile Ltd (1973) 129 CLR 48; R v Gallagher (1986) 41 SASR 73,
considered.
Aust Dig Statutes [1153]
REPRESENTATION:
Counsel:
Plaintiff: K Read SC, C Dockray State of Tasmania: K Cuthbertson SC, K Hodgson
Solicitors:
Plaintiff: Fitzgerald & Browne State of Tasmania: Office of the Solicitor-General
| Judgment Number: | [2024] TASSC 30 |
| Number of paragraphs: | 342 |
Serial No 30/2024 File No 2270/2021
KATRINA FAYE MUNTING v MARCUS POLLARD and THE STATE OF
TASMANIA
| REASONS FOR JUDGMENT | PORTER AJ 17 June 2024 |
| Introduction |
1 This is an action for damages for personal injuries. The plaintiff, Katrina Munting (then Katrina Bolton), was a student at Rose Bay High School (the School) from 1996 to December 1999. The School is a State run secondary institution. The first defendant, Marcus Pollard (Pollard) was employed as a teacher by the third defendant, the State of Tasmania, through the auspices of the Education Department.
2 The plaintiff sues the first defendant for damages for intentional torts of battery, and both defendants in negligence. The causes of action are said to arise from the sexual abuse of the plaintiff by Pollard from mid-1998 until about August 1999. The writ was issued on 11 November 2021, but s 5B of the Limitation Act 1974, which commenced on 1 July 2018, enables actions for damages for personal injury to a person arising from or related to the sexual abuse of the person when the person was a minor, to be brought at any time irrespective of when the cause of action accrued.
3 Shortly before the trial was due to start, Pollard filed a notice of party acting in person, having up until then been represented by a firm of solicitors. The notice was accompanied by a message that he did not want to participate in the trial. When the action was called on for hearing, he was called but did not appear. Rodney Radford, the School principal at the relevant time, was named as the second defendant in the action, but on the morning the trial started the plaintiff successfully sought leave to discontinue the action against him. He remains a person of critical interest in the proceedings.
4 The claim against Pollard is for compensatory damages including aggravated damages, and for exemplary damages. The State concedes and accepts that it is vicariously liable for Pollard's tortious conduct. On that basis, the State is jointly liable for the compensatory and aggravated damages, but not for any award of exemplary damages based on Pollard's conduct.
5 There is a further pleaded basis of the State's liability; that is, apart from its vicarious liability for Pollards conduct. In that regard, there is an issue about the pleadings and about how the plaintiff's case was ultimately framed. Irrespective of the basis of any further liability, for reasons I will later explain, it will only give rise to an additional liability for aggravated damages not based on Pollard's conduct. The plaintiff does not claim exemplary damages from the State. The issue of the State's further liability also arises in the context of a notice of contribution served by the State on Pollard.
The abuse by Pollard
6 The plaintiff's evidence satisfies me of the following. She was in grade nine when the abuse began. Pollard was in his early 40's while the plaintiff was 14 years old at the beginning; her date of birth is 21 July 1983. She was an excellent student academically, and actively involved in many aspects of student life. Pollard first had contact with the plaintiff during grade nine. She had a particular interest in science, a subject that he taught. They began to have increased contact in relation to two science courses in particular. With one, she required extra help which Pollard provided. During this time, they were in close physical proximity and he would intermittently rest his arm against hers.
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7 The plaintiff was suffering from significant acne and the medication she used would cause significant side effects, including nausea. On occasions she would need to leave the class and go to the "home room". That room also served as a teachers' office that was shared by Pollard. On occasions, Pollard would be in the office when she went in, and they would discuss her future and her anxieties about maintaining her high level of academic prowess. On one occasion, Pollard began massaging her shoulders and then on a subsequent occasion, as she went to leave, he kissed her on the lips. This was early in 1998.
8 After that incident of kissing, Pollard and the plaintiff continued to meet up and talk; sometimes they would talk over the telephone. Often they would meet in the school photography dark room and the frequency of those meetings increased two or three times a week. During these meetings, each of
about 30 minutes in length – they would hold each other and kiss. Pollard touched the plaintiff over her
clothing on various parts of her body including her legs, thighs, buttocks and breasts. Later during these meetings, Pollard touched her under her bra and later again, went on to touch her genitalia and on
occasions, penetrated her vagina with his finger.
9 Later in 1998, in about September, both the plaintiff and Pollard went on a school camping trip to Maria Island. During this trip, the plaintiff got up during the night and went to Pollard's tent. They kissed and cuddled for a period before the plaintiff left and went back to her own tent. During the summer holidays of that year, the end of 1998 into 1999, the plaintiff and Pollard arranged to meet at the school. He then drove her to his home at an outer beach suburb, having picked her up near the school and instructed her to lay on the floor in the back of the car to avoid detection. At his home, they went to the bedroom where various acts of sexual abuse occurred, including him touching her vagina and genitalia before penetrating her vagina with his fingers. After an hour or so he drove her back to school.
10 This pattern of behaviour continued until some point during late August 1999. The plaintiff says that during a class another of the plaintiff's teachers at the School, Mr Greg Sawyer, "confronted" her about her contact with Pollard. It is described in the pleadings and argument as the "rebuke". (I will continue to call it that, although it may be an overstatement.) There is a dispute about the fact of this and I will return to the issue. For present purposes, it need only be noted that it was shortly after this that the plaintiff ended all unnecessary contact with Pollard despite his subsequent attempts to pursue her. Questions arise about what was known or ought to have been known at that time, at least by Mr Radford. The plaintiff left the School at the end of 1999.
11 In circumstances to which I need to return, on any view of things in February 2000 the abuse was specifically brought to Mr Radford's attention and then to the attention of senior management of the Department. Shortly after, Pollard was effectively suspended and he resigned from the Department on 17 April 2000. Tasmania Police was not then notified and no complaint was made to police until November 2018, when the plaintiff made a statement and an investigation was commenced. Pollard was charged with one count of persistent sexual abuse of a young person. He pleaded guilty but disputed the facts. On 27 October 2020, after a hearing at which the plaintiff gave evidence, Blow CJ found all the alleged facts made out, and sentenced Pollard to three years' imprisonment with parole eligibility of one half.
The case against Pollard
12 While the plaintiff alleges "sexual assaults and battery" all of the particularly relevant conduct involves instances of the tort of battery. In his defence, Pollard admits some physical contact which amounted to batteries but denies the entirety of the allegations. I am satisfied by the plaintiff's evidence that the particulars of sexual assaults and battery as alleged against Pollard in par 12 of the further amended statement of claim dated 20 March 2023 (the statement of claim) are made out. Those particulars encapsulate the facts set out above.
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13 The plaintiff has also pleaded a duty on the part of Pollard to take reasonable care for her safety, with particular obligations to refrain from physical contact and sexual conduct, said to arise by virtue of that duty. Pollard has admitted a bare duty of care based on the teacher/student relationship, and that his admitted conduct was in breach of that duty. However, the State accepts that all of the alleged conduct said to amount to assaults and battery of the plaintiff occurred and constitutes a breach of Pollard's duty. I find that Pollard breached the admitted duty on the basis of those facts as I have outlined them.
14 The plaintiff also alleges a breach of the duty by engaging in "grooming" the plaintiff to facilitate his sexual misconduct. Pollard pleads a denial. The particulars of grooming allege that Pollard:
arranged clandestine meetings, including in the School's photography dark room, invited and encouraged the plaintiff to contact him, including by telephone, by telling her as he
passed her on the School premises, to call him that night or to ring him, communicated with the plaintiff in secret by telephone calls with her, paid special attention to the plaintiff and making her the object of his attention and affection, shared secrets with the plaintiff. 15 As is acknowledged in the pleading, these things seem to be more conduct directly associated with or facilitative of the sexual misconduct itself, rather than "grooming" in the sense that the word has acquired; that is conduct preparatory for sexual abuse. In any event, I would accept that the content of the basic duty would extend to refraining from such conduct. I find those particulars made out as facts and I find that Pollard also breached his duty of care by virtue of those matters. The State did not argue the contrary.
16 Additionally, the plaintiff alleges that Pollard engaged in "retributive and vengeful behaviour" towards her after she put to an end to the unlawful relationship. Pollard has denied both the content of the basic duty in relation to such conduct, and the pleaded facts. This behaviour is particularised as involving "passive aggression" towards her, including making disparaging comments to her, making snide comments about her to other staff within her hearing, "scoffing" at her as he walked past and throwing small objects in her direction in the classroom. The plaintiff's evidence satisfies me that these things occurred, although the extent of any particular form of such behaviour, or the overall extent, was not addressed in evidence.
17 There are also two further particulars of this behaviour; namely that at the end of 1999, Pollard both marked down his assessment of the plaintiff's attitude in the science class he taught, and marked her down in his assessment of her level of achievement in Organic Chemistry. As I understand it, the State accepts the facts of these matters but argues that the conduct does not amount to a breach of Pollard's duty of care. Senior counsel for the plaintiff described those two particulars as "inconsequential" but as they were not abandoned I should deal with them.
18 First, in relation to the mark as to "attitude", the evidence establishes that this related to the report in July 1999 at which time, the plaintiff confirmed the abuse was ongoing. It follows that it is not made out as a particular of retributive and vengeful behaviour. Second, in relation to the "mark down" in the level of achievement in Organic Chemistry, the evidence of the plaintiff was that she received a rating "Satisfactory" in the subject. I infer I am being asked to draw the inference that due to her other higher ratings, this was a "mark down".
19 In any event, the plaintiff acknowledged in cross-examination that she, among a number of other students, refused to submit a final assessment task for the year, despite a warning from Pollard to the whole class that if it was not submitted, they would fail. She, along with others, did not submit the
4 No 30/2024
task. Although the plaintiff seemed reluctant to acknowledge that the overall result was not surprising in light of this failure, I am not satisfied that it is properly characterised as retributive and vengeful behaviour on the part of Pollard.
20 I find that Pollard breached his duty of care by engaging in retributive and vengeful behaviour following the end of the sexual misconduct as alleged, apart from those two particulars I have discussed.
21 The cause of action is complete in relation to the intentional torts and I find that harm was caused by Pollard's breaches of duty. Accordingly, the plaintiff is entitled to an award of damages as against him. As I have noted, there is a claim against him for compensatory damages including aggravated damages, and exemplary damages. It follows that, in light of the unequivocal position of the State as to its vicarious liability, the plaintiff is entitled to an award of damages against it.[1] But that will not include exemplary damages based on Pollard's conduct.
The further case against the State
[1] On the first day of the hearing, the plaintiff asked that judgment be entered against the State, apparently on this basis;
22 As noted, the plaintiff maintains a case against the State in relation to a liability separate from its liability for Pollard's conduct. It is important to note that the position finally adopted by the plaintiff is that any liability in the State beyond that for Pollard's conduct, however that liability might arise,
would only be for aggravated damages. That is because the plaintiff alleges that the State is liable – one way or another – by way of a making a material contribution to harm suffered, primarily economic loss,
for which Pollard would also be liable. The State would be already liable for damages for that harm by virtue of its vicarious liability. However, such a further liability may also affect the State's claim for indemnity against Pollard.
23 In terms of the separate case against the State, I need to discuss the pleadings. Regrettably, this discussion has to be of some length given the way in which the case evolved. I need to determine, as a preliminary point, the question of how the plaintiff's case should be approached.
24 First, by way of further background, the evidence is that after the rebuke, any question of Pollard's misconduct was not raised, by anyone, in any relevant way, until February 2000. There is a factual dispute of some proportions about what then happened. Danny Munting, the plaintiff's now husband and then boyfriend, gave evidence that after he had been told the events by the plaintiff, he went to the School alone and spoke to Mr Radford. Mr Radford's evidence, for which there are some corroboration, was that both the plaintiff and Danny Munting came to see him. There is a dispute about whether or not Mr Radford made any reference, direct or oblique, to the rebuke.
25 As to the pleadings, I note that the final version of the statement of claim was drafted in contemplation of the discontinuance against Mr Radford. Much of the pleading that directly concerned him was removed, including the prayer for relief seeking damages, aggravated damages and exemplary damages. The amendments were formally made on the morning the trial commenced. The State was given leave to amend its defence in accordance with a document that was handed up.[2]
[2] The amended defence is dated 19 March 2023; no doubt having been prepared in response to a draft supplied in advance by the plaintiff's solicitors.
26 In examining the statement of claim, in some respects it is necessary to work backwards. The critical pleadings are contained in pars 41 and 43. Paragraph 41 states that the plaintiff brings the action
5 No 30/2024
against the State pursuant to the Crown Proceedings Act 1993 "in respect of the acts, omissions and conduct of [its] officers, employees and agents." (Paragraph 42 is the pleading which deals with the State's asserted liability "for the acts of" Pollard.) Paragraph 43 alleges that the State "is liable in negligence and/or breach of duty for the acts of Radford as alleged in par [38] hereof in circumstances where he was an employee of the third defendant with statutory responsibility for staff and students of the school". [My emphasis]
27 The source and content of the duty allegedly owed by Mr Radford is contained in par 33. That alleges that by reason of the duties imposed on Radford by the Education Act 1994, he was obliged when he became aware, or ought to have become aware, "of an inappropriate or unlawful relationship between the plaintiff and Pollard" he was obliged to do certain things. Those things were, to:
"(a) Investigate the relationship; (b) Report [Pollard] to the police and to the Secretary of the Department of Education; (c) Ensure, if the plaintiff was to be spoken to by a school staff member … , it would be done with care and sensitivity; (d) Inform the plaintiff's parents of the relationship… ; (e) Immediately suspend [Pollard] from teaching at the school; (f) … ensure the plaintiff was protected from acts of victimisation and revenge by [Pollard]; (g) Offer the plaintiff counselling; (h) Ensure that [Pollard], if he was permitted to remain at the school as a teacher, did not teach the plaintiff or have any contact with her."
28 As amended shortly after the trial ended, par 38 alleged that Mr Radford breached his duty to the plaintiff before about July/August 1999 and to February 2000 in the following ways:[3]
[3] The words "and to February 2000" were added in the circumstances discussed later in these reasons.
"(a) Failing to prevent the first defendant's grooming of the plaintiff; (b) Failing to take reasonable steps to prevent the sexual assault and battery of the plaintiff…; (c) Failing to supervise or adequately supervise the first defendant; (d) Failing to supervise or adequately supervise the plaintiff; (e)
Failing to have any system in place or an adequate system in place for students or staff to complain about perceived or actual misconduct, including sexual assault and/or grooming of students by teachers at the school;
(f)
Failing to take appropriate steps to investigate, or adequately investigate, the activities of the first defendant when they came to Radford's attention;
(g)
Failing to refer the first defendant's conduct to the police and to the Minister for Education and to the Secretary of the Department of Education for review of his Tasmanian Teacher's Certificate; and
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(h) Failing to put in place any measures or any appropriate measures for the supervision of the plaintiff whilst attending a school camp."
29 As can be seen, there is a lack of correlation between the alleged particulars of Radford's "obligation" arising from his duties imposed by the Education Act as set out in par 33 of the statement of claim, and the ways in which he has said to have breached that "duty" as set out in par 38. Some aspects are alleged but not said to have been breached, and the converse exists. Five pleaded aspects of the obligation are not said to have been breached or not complied with, while six alleged failures or omissions relate to unpleaded aspects of the obligation.
The plaintiff's case in opening
30 I need to outline how the plaintiff's case against the State, otherwise than in relation to its vicarious liability for Pollard's conduct, was developed. In addressing the amendments to the statement of claim, senior counsel for the plaintiff, Mr Read SC, said the effect was to remove Radford as a defendant, but to retain the vicarious liability against the State in respect of Mr Radford's conduct. Before dealing with the application to amend the State's defence senior counsel for the State, Ms Cuthbertson SC, sought clarification about the intent of par 43 of the statement of claim, noting it was said to be a pleading of vicarious liability, but that it could be interpreted as one of the State's direct liability.
31 In response, Mr Read said the pleading was that the State was liable for the acts of Radford; adding "whether that is a direct liability or vicarious liability it really does not matter. There is a liability". Very shortly after those exchanges, in opening the plaintiff's case Mr Read said the plaintiff alleges "that the State is not only vicariously liable for Pollard's actions but is also liable by reason of the negligence of its former employees, Sawyer and Radford." At this stage, I need to say something about Mr Sawyer. Paragraph 3 of the statement of claim asserts that at all material times Greg Sawyer was a teacher employed at the School. By way of pars 19 and 20 it is alleged that in about late August 1999 he "confronted the plaintiff during a class and rebuked her for what he described as the amount of time she was spending with [Pollard]."
32 The rebuke is alleged to have significantly distressed the plaintiff and she ran out of the class in tears: par 21. However, as is evident, there is no pleading that Mr Sawyer breached any duty of care owed to the plaintiff, and no pleading that the State is vicariously liable for any breach on his part. The State admits the employment of Mr Sawyer but "does not admit" pars 19 and 20. It is common ground that Mr Sawyer has since died, although I was not told when that happened.
33 Reverting to the pleadings, the next relevant event in the trial is that in the State's reply to the plaintiff's opening, Ms Cuthbertson again raised the question of the ambiguity of the pleading in terms of a direct liability. She noted the suggestion in the plaintiff's opening that the liability was "akin to a vicarious liability pleading in respect of Mr Radford, [with] no mention of Mr Sawyer." Ms Cuthbertson said it was Mr Radford who was the person referred to in the plaintiff's pleadings as having breached his duty of care.
34 At that point it seemed tolerably clear that the plaintiff’s case against the State was first, one of vicarious liability for Pollard’s tortious conduct, and second – leaving aside the late oral inclusion of
Mr Sawyer – one of vicarious liability for Mr Radford's negligence. That is to say, in all respects the
State's liability seemed to be put as a "true vicarious liability", as discussed and explained by Edelman and Steward JJ in CCIG Investments Pty Ltd v Schokman [2023] HCA 21, 97 ALJR 551 at [59]-[69].
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Such a liability involves attributed liability for a breach of duty resting on another and broken by that other.[4]
The case as finally argued
[4] In its context, Mr Read's reference to "direct liability" was indeed ambiguous. On one view, if analysed, it might have
35 The State was first to make closing submissions. It was here that a reference to the State's non- delegable duty as a school authority first emerged. Although accepting the existence of such a duty, counsel re-asserted that the plaintiff's case was ostensibly one of liability for Mr Radford's "failures to act".
36 Notwithstanding all that had gone before, in closing submissions the plaintiff squarely put that the State had breached its non-delegable duty of care, and noted the distinction between a vicarious liability and the breach of such a duty. Mr Dockray referred to what Gleeson CJ said in New South Wales v Lepore [2003] HCA 4, 212 CLR 511 at [2]. There, his Honour referred to the legal responsibilities of a school authority as including a duty to take reasonable care for the safety of pupils; noting there may be cases in which sexual abuse is related to a failure to take such care. His Honour proceeded to give instances in which that might be the case. This type of duty of care is explained in CCIG Investments (above) at [70]-[81].
37 It seems to have been assumed that the pleadings contained in pars 30, 32, 33, 38 and 43 of the statement of claim were sufficient to support a case on that basis. The alteration, or at least the expansion, to a breach of the State's non-delegable duty was accompanied by an expansion of the identified people said to have been involved in such a breach. In this respect, the breach was said to arise from the omissions and failures following Mr Sawyer's rebuke, "but more particularly following the disclosure by Danny Munting of the abuse to Mr Radford in February 2000."
38 In terms of relevant evidence, as earlier noted, the plaintiff gave evidence about the rebuke. Danny Munting gave evidence about conversations he had both with Mr Radford in February 2000 and, a short time later, with Mr Radford and Keith Scott, the Department's "Grievances and Investigations Officer". The State called Mr Radford to give evidence, along with the School's assistant principal at the time, Ian Smith, and Elizabeth Preece, then an administration officer at the School.
39 In closing, the breach of the State's duty was said to fall into two parts. The first is that the State, through Mr Radford and others, failed to act when it knew or ought to have known that Pollard's suspicious conduct was suggestive of an inappropriate relationship, at which time Mr Radford, Mr Smith, Mr Sawyer and Ms Devitt "had obligations, which they failed to comply with, under the Maltreatment Procedures. "Maltreatment Procedures" is a short-hand reference to a document entitled "Procedures Regarding the Alleged Maltreatment of Students by Employees of the Department of
Education and the Arts" – March 1996. I will refer to them as "the Procedures".
40 The plaintiff argued that the facts that relate to the "first part" of the State's breach of its duty
of care include:
Radford, Smith, Sawyer and Devitt, or some of them, knew or ought to have known that the
relationship between Pollard and the plaintiff was suspicious. Mr Sawyer's actions in relation to the rebuke was inadequate and insensitive, and not in
compliance with the "clear guidelines" set out in the Procedures.8 No 30/2024
Notwithstanding that Mr Radford was aware, or should have been aware, of the "inappropriate relationship" the plaintiff was put in Pollard's science class in term three of 1999, without any further or adequate investigation. 41 The second part of the alleged duty is that once formal disclosure occurred in February 2000, Mr Radford had obligations under the Child Protection Act 1974 and the Procedures, as did Keith Scott and the Department Secretary, Dr Martyn Forrest. In response, the State pointed out that the conduct of those two was not the subject of any pleading, nor were alleged breaches of the Child Protection Act.
42 It is also worth tracing the pursuit of the claim for aggravated damages against the State. Such demands are claimed in the present statement of claim – as they were in the previous version dated 22 November 2021 – although the particulars of claim dated 5 September 2022 are silent on the issue, at
least as against the State[5]. In closing submissions, the plaintiff articulated a claim for aggravated damages against the State. This claim was based on the conduct of Messrs Radford, Smith and Sawyer and Ms Devitt which was argued as giving rise to a breach on the part of the State. It also extended to the conduct of Mr Scott and Dr Forrest and in fact goes far beyond that to 2019.
[5] In the particulars, there are claims for aggravated damages against Pollard on specified bases but not for exemplary damages, notwithstanding they are claimed in the statement of claim and in closing submissions.
43 What is said to have occurred at that time to give rise to aggravated damages is "the treatment
of [the plaintiff]…when she wrote on at least seven occasions between 25 March 2019 and 30 June 2019
to the then Minister for Education, the Hon Jeremy Rockliff, requesting a meeting to discuss what happened to her" and she did not receive any response. That correspondence was contained in an agreed bundle of documents tendered without formal proof.
44 At the commencement of the plaintiff's closing, Mr Dockray sought an amendment to par 38 by inserting the words "and to February – March 2000" after "July – August 1999". I ultimately allowed
that amendment but the point is that the plaintiff did not seek any other amendments, even in the face
of the State's submissions on the pleadings issue.45 After closing submissions, I reserved both the question of the amendment and judgment generally. About two weeks later, I reconvened the court and allowed the amendment. When the parties were notified of the date for that to occur, I invited further submissions on some questions concerning pars 33 and 38 of the statement of claim; in particular, how the duties pleaded in par 33 was said to arise by virtue of the Education Act 1994, and how the breaches alleged in par 38 correlated to the plea of duties, bearing in mind the plaintiff's argument about the two aspects of the duty referred to above.
46 After I had ruled on the amendment, counsel made further submissions. In the course of dealing with the Education Act point, Mr Dockray submitted that were I not to be satisfied that Mr Radford knew or ought to have known of the situation giving rise to a risk of harm, the breach could still be made out on the basis of a failure "by the School" during 1999. That involved actual or imputed knowledge by others within the school. (In the course of these submissions, counsel abandoned reliance on the Child Protection Act.) In response, the State submitted that the plaintiff's case, as pleaded, rested only on Mr Radford's actual or imputed knowledge and his conduct.
47 Because of additional questions I raised about some issues of causation, the parties were given leave to file further written submissions. In her submissions the plaintiff put an argument under the heading "the State's Direct Liability". The submissions contain reference to both Mr Radford and "the upper echelons of the Department". I do not need to set out the detail.
48 The State's further submissions contain the following:
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"[A] from the Third Defendants vicarious liability for Pollard's tortious conduct, its liability has been confined by the Plaintiff to its derivative liability for the conduct of Mr Radford only. Alleged failures by others in the employ of the Third Defendant or
acting on its behalf or not pleaded as a basis for the Third Defendant's liability…"
49 That is where the argument rests. The plaintiff did not respond in any way to this plain repudiation of the plaintiff's venture into the area of "direct liability", that being the type of liability referred to in New South Wales v Lepore (above) and explained in CCIG Investments (above). The plaintiff has not made any further application to amend the pleadings. It is in that environment that any further liability of the State has to be determined.
The case to be considered
50 It is trite law that pleadings are not an exercise in themselves, but a means to the ultimate attainment of justice between the parties: see for instance Banque Commerciale SA (In Liq) v Akhil Holdings Ltd (1990) 169 CLR 279 at 286-287, 293. In Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd [2008] NSWCA 206, 73 NSWLR 653, Ipp JA discussed a number of relevant authorities including Gould v Mount Oxide Mines Ltd (In Liq) (1916) 22 CLR 490 at 517, Banque Commerciale SA (above), Dare v Pulham (1982) 148 CLR 658 at 664 and White v Overland
[2001] FCA 1333 per Allsop J at [4]. At [424] his Honour said: "The following propositions may be extracted from these authorities:
(a) The rule that, in general, relief is confined to that available on the pleadings secures
a party's right to a basic requirement of procedural fairness.(b) Apart from cases where the parties choose to disregard the pleadings and to fight the case on additional issues chosen at the trial, the relief that may be granted to a party must be founded on the pleadings.
(c) It may be that, in a clear case, mere acquiescence by one party in a course adopted by the other will be sufficient to ground an inference that the parties have chosen a different basis to the pleaded issues for the determination of their respective rights and liabilities
(d) Acquiescence giving rise to a departure from the pleadings may arise from a failure
to object to evidence that raises fresh issues – it is in this sense that “cases are
determined on the evidence, not the pleadings”.
(e) While cases are to be decided upon a basis that embraces the “real controversy”
between the parties, the real controversy has to be determined in accordance with the
principles stated."
51 More recently, the Full Court of the Federal Court in Thomson v STX Pan Ocean Co Ltd [2012] FCAFC 15 at [13], said (omitting some references):
"It is well-established that the main purposes of pleadings are to give notice to the other party of the case it has to meet, to avoid surprise to that party, to define the issues at trial, to thereby allow only relevant evidence to be admitted at trial and for the trial to be conducted efficiently within permissible bounds. However, it is also well-established that pleadings are not an end in themselves, instead they are a means to the ultimate attainment of justice between the parties to litigation. For these reasons, the courts do not, at least in the current era, take an unduly technical or restrictive approach to pleadings such that, among other things, a party is strictly bound to the literal meaning of the case it has pleaded. The introduction of case management has, in part, been responsible for this change in approach. Even before the widespread use of case management, the High Court reflected this approach in decisions such as Leotta v
Public Transport Commission (NSW) (1976) 50 ALJR 666 (at 668–669) per Stephen,
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Mason and Jacobs JJ and Water Board v Moustakas (1988) 180 CLR 491 (at 497) per
Mason CJ and Wilson, Brennan and Dawson JJ."
52 I consider it abundantly plain from the pleadings that the case alleged is one relating to the negligence of Radford for which the State is vicariously liable. There is no pleading at that raises the State's non-delegable duty as a school authority through the agency of the Education Department, or otherwise. As I have demonstrated, the case against the State in relation to a non-delegable duty evolved over the course of the trial. It finally emerged with any real clarity in closing submissions.
53 The State's conduct of the proceedings cannot be construed as acquiescence. This is not a case in which the parties have conducted the case in mutual disregard of the pleadings and on issues they otherwise chose, nor is it a case of taking an overly literal or technical view of the pleadings. In my view, as the State argues, the plaintiff should be confined to her pleadings.
54 Accordingly, I do not need to examine the ways in which anybody other than Mr Radford is said to have been in breach of obligations under the Maltreatment Procedures or more generally negligent. The only issue is whether Mr Radford was negligent as alleged, and thus whether the State is vicariously liable for his acts or omissions. The conduct of Mr Smith in relation to the rebuke was, and remains, relevant to the question of the actual or imputed knowledge of Mr Radford. He is the only other State employee whose conduct falls to be considered, but it is to be considered only on the basis I have outlined.
55 I should say that even if I am wrong in taking that view, because of issues of breach and causation, as will become apparent the outcome of the plaintiff's case would not be any different.
56 What I have outlined to this point is unfortunately not the end of the difficulties created by the pleadings. First, as pleaded and as finally argued, Mr Radford's duty is said to arise solely from the provisions of the Education Act and from the Procedures. The statement of claim does not contain an allegation of a common law duty of care owed by him of the plaintiff which, of course, very plainly existed. I am not able to comprehend why the case was framed in that way. Ultimately, it is of no great moment because the State accepted that Mr Radford owed a common law duty of care, the content of which, for the purposes of this case, would not seem to be materially different.
57 However, some mention should be made about the way the plaintiff's case was framed and its consequences. Counsel for the plaintiff placed reliance on s 23 of the Education Act. Relevantly, that provides as follows:
"Functions and powers of principals
(1) The principal of a State school has the following functions: (a)
to ensure that the curriculum, teaching practice, assessment and reporting procedures at the school are consistent with any instructions issued by the Secretary;
(b) to carry out the day-to-day management of the school, students and staff; (c)
to prepare the plans, budgets and reports for the school as required by the Secretary;
(d) to implement policies in accordance with the school charter. (2) ….
(3) The principal of a State school may do anything necessary or convenient to
perform his or her functions.
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(4) …"
58 The plaintiff says the phrase "management of students" in ss 1(b) "impliedly, if not expressly" includes the pastoral care of students and the supervision and management of staff. The plaintiff argues that the duties asserted in par 33 of the statement of claim are all derived from s 23(1)(a) or (b), or subs (3). A similar argument is put in relation to compliance with the Procedures, even though those Procedures are not the subject of any pleading, nor is there any mechanism for their promulgation contained in the Education Act.
59 The alleged duty to report Pollard to the authorities is said to arise from the words "reporting
procedures at the school … consistent with instructions issued by the Secretary." As to this, the State
submits that this reference has to be put in the overall context of the Act. In that respect, there is s 33 which is contained in a division entitled "Educational instruction" and is headed "Curriculum, assessment and reporting". Section 33(2) provides that "the Secretary may issue instructions in respect of any matter relating to the curriculum, teaching practice, homework, assessment and reporting procedures at a State school." Not without merit is the State's argument that the reference to "reporting procedures" in s 23(1)(a) is to be read in both its immediate and wider context and does not extend to reporting the misconduct of teachers.
60 In the event the Education Act does not supply a source of duty to comply with the Procedures, the plaintiff relies on Mr Radford's contractual obligation to "observe all acts and other lawful directions that relate to his functions and responsibilities." Such an obligation was not pleaded.
61 The plaintiff advanced no argument as to why, as a matter of principle, any breach of the Education Act or of the Procedures would give rise to an entitlement to damages. This just seems to have been assumed without any thought being given to the point. However, the question must arise as to whether, as a matter of construction, s 23 creates duties, the breach of which gives rise to an entitlement to damages. The approach to such a question is discussed in cases such as O'Connor v S P Bray Ltd (1937) 56 CLR 464, Byrne v Australian Airlines Ltd (1995) 185 CLR 410, Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59, 200 CLR 1 and Stuart v Kirkland-Veenstra [2009] HCA 15, 237 CLR 215.
62 Alternatively, assuming relevant duties are created under the Education Act, there is a question as to the extent to which non-compliance may be taking as prima facie or persuasive evidence of negligence: see for instance Sibley v Kais (1967) 118 CLR 424 at 427, Ridis v Strata Plan 10308 [2005] NSWCA 246, 63 NSWLR 449 at 65; Leighton Contractors Pty Ltd v Fox [2009] HCA 35, 240 CLR 1 at [49].This also arises, possibly to a greater extent, in relation to asserted non-compliance with the Procedures. But none of this was argued.
63 The difficulties created for the plaintiff's case by reliance on the Education Act and the Procedures is highlighted by a point made by the State. It is that if Radford neither knew nor ought to have known of a relevant state of affairs before February 2000, then at that stage the plaintiff was not a student at a school of which he was principal. The plaintiff's response to this point was to rely on the common law duty of care which, of course, is not pleaded.
64 The plaintiff's case is essentially one of Mr Radford having failed to act when he knew or ought to have known of the inappropriate relationship. However, pars 38 (a) to (e) inclusive of the statement of claim[6] were not pressed, so that failure to act involves a failure to properly investigate the relationship, to ensure that there was no contact between the two, and to report Pollard's misconduct to police or to
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[6] Those paragraphs are set out in par [31] above.
ensure it was reported to police. That last failure is also said to have occurred once formal disclosure
was made in February 2000.65 One aspect of that case presents some difficulty when examining the pleadings. There is a pleaded obligation to ensure that Pollard, if he was permitted to remain at the school, did not teach the plaintiff or have any contact with her. The failure to ensure that did not happen is not pleaded as a breach of duty in par 38, but it was argued as part of the "first part" of the breach of the State's duty, a breach which is said to have materially contributed to harm suffered. There is evidence from the plaintiff about what happened to her relevant to this issue. The State's case is that Mr Radford did not know of, nor had any cause to suspect until February 2000, misconduct by Pollard towards the plaintiff. In the circumstances of the conduct of the case, I do not think it unfair to include this aspect in the consideration of the claim.
66 In all of this, given the way the case was ultimately argued, I will approach it on the basis that, as is clear and as the State accepts, Mr Radford owed a common law duty of care to the plaintiff, and determine questions on that basis but with an eye to the way in which any relevant obligations under the Education Act or, more particularly, the Procedures might govern the content of that duty and hence the question of breach.
The Civil Liability Act 2002
67 Before going on, I need to mention the Civil Liability Act (the CLA). The case was argued by the parties on the basis of the "non-application" of that Act. That position needs some analysis. If the plaintiff's causes of actions accrued before 4 July 2003, by virtue of s 4(3) of the Act, relevant Parts of that Act do not apply to this case. They are Parts 6 (except s 12), 7 and 8 (to the extent that it has any work to do). If any cause of action accrued after that date, s 3B(1)(a) needs to be considered.[7] That provides that the Act "does not apply to or in respect of civil liability in respect of an intentional act that is done with the intent to cause injury or death or is that of sexual assault or any other sexual misconduct;
…"
[7] Section 3B has no application to a cause of action that accrued before that date: see s 12 of the Civil Liability Amendment Act 2003.
68 There is no doubt that the plaintiff's causes of action against Pollard accrued before 4 July 2003. That is also the case in relation to the action against the State, to the extent it is based on its vicarious liability for Pollard's actions. To the extent that any other cause of action against the State accrued after 4 July 2003, the meaning of s 3B(1)(a) needs to be considered. If the case is one of vicarious liability for intentional acts, s 3B(1)(a) applies: Zorom Enterprises Pty Ltd v Zabow [2007] 106, 71 NSWLR 354 at [6]-[14].
69 If the cause of action is one of negligence for failing to prevent intentional acts of another, the provision does not apply, because negligently failing to take such steps does not fall within its scope: State of New South Wales v Bujdoso [2007] NSWCCA 4, 69 NSWLR 302 at [66].[8] As the first scenario does not arise in this case, s 3B(1)(a) has no operation, and the Act would apply. As argued, the second scenario does not arise either. However, given the way the case was framed, and on the evidence, I am satisfied that all argued causes of action against the State subsumed within these proceedings accrued before 4 July 2023, making s 4(3) of the Act applicable.
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What Rodney Radford knew or ought to have known
[8] The Court (Basten JA, Hodgson and Ipp JJA agreeing) said the words "in respect of" should be understood as referring to the liability of the person who did the intentional act, not a person whose liability derives from their negligent conduct where the risk against which they should take precautions is the intentional act of another.
70 By way of background it is relevant that both Pollard and Radford were on various forms of
leave during the relevant period. Pollard was on leave for the whole of December 1998 – Term 3 ended on 17 December 1998 – and on sick leave for an extended period between 22 April 1999 and the end of
Term 2 on 3 September 1999. He would have returned to work at the start of Term 3 on 20 September
1999.71 Mr Radford was on leave from 2 October 1998 to the end of the school year, and then from the
beginning of Term 1 in 1999 – 9 February 1999 – until after the Easter break when school resumed on
13 April 1999. He was again on leave for the whole of December 1999, with school finishing on 16
December.72 I have already outlined the general frequency and location of the abusive conduct. Further relevant evidence of the plaintiff is as follows. The homeroom/teachers' office that was used by Pollard was shared by Denise Devitt. The so-called photographic darkroom was used only for a store room and was customarily locked, with Pollard having a key. That room was on the first floor and was quite close to a set of stairs close to the bottom of which Pollard would customarily park his car. The contact between the two that took place when Pollard was on leave was pre-arranged by telephone call. He would drive his car to his customary parking space and the meetings would take place in the darkroom.
73 The layout of the school was such that in order to get to his parking space, Pollard had to drive through the main entrance, make a 90 degree left hand turn and effectively drive past the main entrance and a number of downstairs classrooms. That route took him past the administration area which include the offices of the principal and deputy principal and the main reception area.
74 In cross-examination, the plaintiff agreed that during the periods when Pollard was on leave, the frequency of contact decreased to about weekly, with no physical contact during school holidays apart from the trip to his home mentioned earlier. She agreed that the darkroom was not only an underutilised space but was in a part of the school "where there was very little traffic", being very much out of the way. The plaintiff also agreed that Pollard was adept that ensuring their meetings were secret.
The Sawyer rebuke
75 The rebuke is relevant to the determination of the present issue. The plaintiff described Mr Sawyer as a senior teacher, who ran a peer support program of which the plaintiff was the group co- ordinator. The object of that program was to have the year 10 students assist those in year 7 adjust and assimilate. He had a particular interest in building that program and he, along with the teachers was perceived by the plaintiff as being interested in student welfare.
76 The plaintiff said that towards the end of Term 2 in 1999, she was in a class taught by Mr Sawyer. The class was in the library, basically at one end, with the students at tables of six. Mr Sawyer came over to her, she was sitting amongst her friends and working. He asked if he could speak to her. She got up and followed him to a set of low chairs about in the middle of the library but about ten metres away from the group. He gestured for her to sit down. She said at that time she did not believe that anybody knew of inappropriate contact on Pollard's part.
77 The plaintiff's evidence continued:
"So he gestured for me to sit down. He sat on my right, he said to me, 'it has been
noticed you and – it has been noticed that you and Mr Pollard are spending time
together, and that is not normal', to which the floor could have just swallowed me whole. I was gobsmacked that someone knew. So the moment he finished that statement,I didn't give a rebuttal. I burst into tears and ran out of the library."
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78 She said that she went straight to the girls' toilets a short distance away and "bawled my eyes out" because she thought she was about to get into a lot of trouble. A female friend, Jess, came in to comfort her but the plaintiff did not tell her what had happened. She returned to the classroom, still very upset but trying hard not to show it. Nothing further was said to her at all although, as I have noted, it was after that, that the plaintiff stopped seeing Pollard despite his persistence. As I earlier alluded to, Pollard was the plaintiff's teacher for science in Term 3 of 1999. I will return to the effect this had on her.
79 Senior counsel for the State put to the plaintiff in cross-examination that the conversation with Mr Sawyer did not happen. The plaintiff disagreed, but did agree she did not tell Pollard that she had been spoken to by Mr Sawyer.
80 In his evidence, Mr Radford confirmed that Mr Sawyer administered the peer support program and, as well as being the head of the social sciences area, he was grade supervisor and involved in the schools pastoral care program. He described him as a "singularly impressive man of great integrity,
thorough, compassionate, caring but did not really stand for people trying to do something that was
incorrect that was foolish". He said that Mr Sawyer was a teacher that he was immensely proud to call
a colleague.81 As far as working closely with other staff was concerned, Mr Radford said there were numerous meetings every week with a separate senior staff meeting on another morning. There were daily briefings and a weekly broader staff meeting once a week after school and there were specialised professional development activities that ran at various times. But he was quite insistent in his evidence that the first he knew of any suggestion of misconduct by Pollard in relation to the plaintiff was in February 2000.
The February 2000 meeting
82 The plaintiff's case is that only Danny Munting went to see Mr Radford to speak to him about Pollard's abuse. The State's case, through the evidence of Mr Radford, is that both Danny Munting and the plaintiff went to see him. The plaintiff and Danny Munting first met in year seven, 1996. They were friends through high school and in late 1999, she said, "they went on a date". Their relationship grew very gradually particularly when it came to the early forms of intimacy. Of course, they later married. In any event, the plaintiff said it was in early 2000 that she told Danny about the abuse. Their relationship had reached the point where she felt she was harbouring a significant lie and he had a right to know. Additionally, two of her friends were Danny's sisters and were still at the school with Pollard. She felt she should try to protect his sisters from the same fate.
83 In his evidence, Mr Munting said that they were a few months into their relationship when they were having a conversation at his parents' house; he got the sense that something was wrong and ultimately the plaintiff disclosed that she had been sexually assaulted while at school by Pollard. He said that the plaintiff was very upset and to him, as an 18 year old, it was a very confronting conversation. He said that the plaintiff was reluctant to give detail. They talked at great length about what he could do and what they needed to do together. Over a number of hours he was finally able to convince her "that he needed to take it further". He told the plaintiff he was going to go and see Mr Radford and tell him the brief details that had been revealed to him at that point. The plaintiff was "not
particularly thrilled" about that, and although content that he was going to do it, "… she was devastated
that someone else was going to find out".
84 The next day he drove to the School. He does not remember whether he made an appointment or he just turned up. He said that he has a memory of being in Mr Radford's office; he remembers sitting looking at the door with Mr Radford at an angle to his left. He does not remember the exact words he
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used but conveyed the notion that the plaintiff had been sexually assaulted by Pollard at school on
multiple occasions.85 His evidence continued as follows:
"And when you told Radford that, what was his response?......He was, obviously, concerned. We had a conversation and now, the exact wording of the conversation I
don't remember. I do remember the conversation – I remember distinctly that in the conversation there was mention of that they had had some concerns, that there’d been
some noticings. Now, as to who 'they' were, I have no idea. I can draw conclusions
from that, and at the time, I didn’t draw conclusions because I was 18 and that just,
sort of, slipped through to the keeper, unfortunately. So, they had some concerns that
– there had been a conversation that Greg Sawyer had been asked to have a
conversation with Katrina, with some concerns and that Denise Devitt, who was also a science teacher, had also been asked to have a conversation with Pollard about some
concerns. Now, at 18, I didn't – it didn’t occur to me any – to push that point."
86 He was asked to arrange for the plaintiff to write a statement to go to the Department. (That statement, addressed to Keith Scott and dated 29 February 2000, is in evidence.)
87 In cross-examination, Mr Munting denied that the plaintiff had gone with him to the meeting. He agreed that he probably spoke to Ms Preece at the administration area on the way into the meeting. He does not recall whether or not Mr Radford asked if whether the plaintiff's parents knew, but could not rule that out. As to a suggested mention by Mr Radford that Rosny College be contacted to provide some support if the plaintiff wanted it, he agreed there was some mention of support for the plaintiff at the College but he was not sure that it was at that meeting.
88 Mr Munting did not agree with the suggestion that Mr Radford made no comment to the effect that they had had "some concerns" or there had been "noticings", but agreed he did not mention that comment to police when he spoke to them much later about the meeting.
89 The plaintiff steadfastly denied that she was with Danny at the meeting. She said that she was not with him when it was reported, that Danny went to see Radford; she did not. When it was further put that she did attend with Danny to report the matter she said, "No, I did not. I did not sit in that office. I have not sat in that office, ever."
90 Mr Radford's evidence is as follows. He was alerted to the fact that Danny Munting and Katrina Bolton were at the reception desk of the office and wished to see him. He was "immensely pleased" to meet them and believed that the meeting was to be a social and a casual one. He said that the pair came in, sat down, and then the plaintiff alerted him to the fact that she had been abused by Pollard. He said he was shocked by the allegations and asked the plaintiff if her parents knew. He was told that they did. He does not remember all of the details of what was then discussed but they did speak about what support the plaintiff felt she may need and what she would like him to do. When asked whether he had had any concerns about his contact and his interactions with the plaintiff, he said that he had not, and that no one had raised any such issues with him at any time.
91 He told both Katrina and Danny that he would deal with the issue immediately as soon as they left. After they left he went to the nearby office of Ian Smith, the assistant principal and asked if he was aware of the allegations. Mr Smith's reaction was one of shock and disbelief.
92 Mr Radford told Mr Smith that he was going back into his office, saying "I am going to ring Bill Turner, the Bowen Superintendent, and alert him to what has happened.". He did that straight away. His evidence continued:
"And what did Bill Turner ask you or tell you?... Bill Turner asked me if – asked me to
go through all of the allegations – all of the comments that Katrina had made … He
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asked me to give me a chronology of what had happened during the interview. He then asked me did I believe the voracity of the claims that had been made and I assured him that I did
And what did he advise you to do?... He asked me if I had contacted the parents and were they aware of the situation I indicated then, yes,
….
What did he then – ?......He then said that we needed – I think he used the word ‘we’,
meaning the department as well as Bowen and Rose Bay, he said we needed to tread carefully, we needed to do this properly. He said, 'Your next step as principal is to get in touch with the Education Department's grievances officer in the human services area
– human resources area and let him know of this situation and let him deal with it.'
And who was the person that he told you to – ?......The person that had that role was
Keith Scott.
Now, he told you you should contact Keith Scott?......Yes.
What else did he tell you to do – sorry, what did you do then?......I – perhaps if I can just go back one step. He – he told me that the – that the department Bowen and the
grievances people would deal with the broader, overall, overarching legal issues."
93 Mr Radford said he then rang Keith Scott and alerted him to the situation.
94 I have set this out at some length because it later became common ground that Bill Turner, who was the district superintendent for a period of time, resigned with effect from 23 April 1999, some ten months before the time at which this meeting took place.
95 In cross-examination, Mr Radford agreed that he did not seek the details of the sexual abuse of which he was advised at the meeting because he felt that he did not need to, he did not need to know the finer details. He felt he needed to keep his response under wraps while he was talking to Katrina and Danny. He was asked about his response to the revelations. He agreed that it was a requirement of the Procedures that if he had reasonable grounds to suspect a genuine case of maltreatment, he should immediately contact his district superintendent. He was asked if he remembered if whether it was Bill
Turner he contacted. He said, "I believe that it was Bill Turner. Look, I – I am certain it was Bill Turner."
The following exchange then occurred:
"But you don’t know whether he was your District Superintendent or not? … Schools
were such a busy place that most teachers and administrators didn’t really have time
to focus on the ladders of promotion and position within the department.
I will put the question to you again. You are not certain that Bill Turner was your
District Superintendent at that time, are you? … I cannot recollect with 100 per cent
certainty no."
96 It was later specifically put to Mr Radford that Bill Turner had stopped working for the Department in April 1999, to which he replied that it may well be true.
97 Ian Smith's evidence was as follows. When asked to describe Greg Sawyer, he expressed views which reflected those of Mr Radford; he was a very genuine and empathetic man, who, when the need arose acted in the assistant principal role. Issues or concerns in relation to students were handled very much between the three of them; they operated as a very close team.
98 When asked about his recollection in February 2000 relating to the plaintiff, he said:
"I recall very distinctly, firstly seeing the Danny’s car come down the drive in front of
my office. And I recall that very easily because it was a car that was quite distinctive,
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I knew it. … I knew who it belonged to, and it wasn't until sometime later, not a long
time, that Rod came into my office. I have never seen him so shaken or distraught, he wasn't that kind of man but he was very distraught with what had been revealed to him by the visit of Katrina and Danny and he related to me what had happened and we talked briefly about what we should do and I think we both then went back to his office
and he rang Bill Turner, who was the district superintendent."
99 Mr Smith went on to say that he and Mr Radford left his office and went into Radford's office, where he (Radford) rang Bill Turner. He is not sure whether Mr Radford first asked the office manager "to get Bill on the line or whether he rang him directly, I suspect he rang him directly." He said that he would have been present when Mr Radford spoke to Bill Turner, although he could only hear one side of the conversation. The upshot of that conversation was that a meeting was arranged and Keith Scott was to be involved.
100 In cross-examination it was put to him that there was no call to Bill Turner because he had retired in 1999. He said the call was made to the District office, and he assumed it was to Bill Tuner. He remembered Mr Turner being the District Superintendent and being replaced by a female but he could not think who that was. He said, "My memory is faded. I assumed it was Bill. It was an assumption on my part." It seems clear from Mr Smith's evidence that he did not actually see the plaintiff on that particular day. It was put to him that she was not in Danny's car that he had seen drive in; he said, "I would not have a clue".
101 The last witness for the State was Elizabeth Preece. In February 2000, Ms Preece had an administrative role at the school. She attended at the front counter, managed incoming calls, student records and was essentially secretary to the principal and the assistant principal, as well as doing work for other teachers. She said that she recalled both Danny and Katrina coming into the school in February 2000, and asking to see Mr Radford. She said they went to his office, had a meeting with him for a while and then left. She does not think they had an appointment. After they had left, Mr Radford told her there had been an accusation against Pollard, and that was really all of her involvement at that stage. She said she had no knowledge or concerns of misconduct by Pollard towards any of the students.
102 Lastly, I record the fact that neither party called Denise Devitt, and I was given no explanation about her availability or lack of it.
Discussion
103 One of the keys, if not the critical one, to this present issue of knowledge is whether, when told of the abuse of the plaintiff by Pollard, Mr Radford told Danny Munting that there had been some "concerns", and that staff had been asked to speak separately to each person. The question of who was at the meeting is relevant to credibility, and I will deal with that now.
104 In my view it is very highly unlikely that the plaintiff and Mr Munting would be deliberately untruthful about whether the plaintiff was at the meeting. There is nothing to be gained by saying she was not there, when she was. Further, in the circumstances it is not something that either person, particularly perhaps the plaintiff, is likely to forget. Objectively, it seems to me unlikely that she was there. There is evidence she was reluctant that Danny speak to Mr Radford. The plaintiff said that after the report was made, she was exceptionally scared to do anything about taking it further; she was exceptionally scared, frightened and very ashamed. She did not want people to know. She said she was mortified and did not want to speak to anybody about it. The only reason she spoke up was because she saw Danny's sisters as potentially Pollard's next victims. There is no reason to reject this evidence.
105 The plaintiff and Mr Munting have much more reason to recall the events than do Mr Radford, Mr Smith and Ms Preece. On the face of things, they had no particular reason to recall the detail of what happened on a day in February 2000, and until at least 2018 when the police investigation commenced.
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I am not at all confident that their recollections have not faded considerably and they are not simply reconstructing, or that their recollections have not been moulded by subsequent events.
106 There is particular reason to doubt the accuracy of the recollection of both Radford and Smith. They were both prepared to confidentially assert that it was Bill Turner who was immediately contacted after the meeting but both were reasonably quick to reconsider when it was put to them that he was not in that position at the time. Apart perhaps from a preliminary comment from Mr Radford, neither ultimately had the confidence in their recollection to challenge the proposition that Bill Turner was not the District Superintendent. I accept Ms Preece as an honest witness, but I think her recollection of events has been tainted or subconsciously modified.
107 I find the plaintiff was not present at the meeting.
108 The next step in this process is looking at whether or not the rebuke occurred. I am satisfied that it is more likely than not that the incident did take place as described by the plaintiff. That description is different from what might be expected if the plaintiff were untruthfully suggesting knowledge of a concerning relationship on the part of some staff members; it appears less likely to be fabricated.
109 I am conscious that the evidence about this comes from one source – the plaintiff – and it is not
possible for her to be directly contradicted due to the unavailability of Mr Sawyer. However, the plaintiff revealed the name of her friend, Jess, who comforted her, and a number of other students were not far away at the time of the incident. The availability or otherwise of Jess was not the subject of any discussion, nor was her absence the subject of any criticism.
110 What was the subject of adverse comment by the State was the admitted omission by the plaintiff of any reference to the rebuke, from her statement to Keith Scott. The plaintiff's explanation was that it was only partial disclosure. She said she felt at the time that if she brought in "another aspect", she would have to admit to a greater level of seriousness of what had been happening and the
period of time at which it happened; "so, …, I chose to leave it out."
111 The following exchange then occurred:
"Okay. I mean, it concerns you now what – and it certainly concerned you when you
first went to police – what had – this conversation with Mr Sawyer. But it didn't concern
you then. Is that the case?...... Did it not concern me, as a 16 year old child –Well, did it not concern you that a staff member had behaved in that way towards
you?...... As a child, the relative weighting of his conversation versus the sexual abuse
I had endured, they were very different.They were polar opposites, really. Well, they weren’t polar opposites, they were – paled into insignificance. Is that right?...... Not into insignificance. But not enough to get me
in more trouble.You wouldn't have got into trouble by telling them that a staff member had raised it with you at an earlier occasion, would you?...... My perception, at the time, any of it, it was all shameful. Didn’t matter what part it was."
112 I do not think this explanation is inherently unlikely. What must be remembered is the age of the plaintiff at the time and what she had recently endured over a prolonged period.
113 All of that returns the discussion to the question I posed at the beginning of this part; did Mr Radford mention that he had some concerns? I find that he did. I prefer the evidence of Mr Munting to that of Mr Radford. My finding as to the absence of the plaintiff, and Mr Radford's evidence about Bill
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Turner raise significant doubts about the accuracy of his recollection of what passed between Danny
Munting and him.114 It necessarily follows from a finding that the comment about "concerns" was made to Danny Munting that Mr Radford knew or ought to have known that the relationship between the plaintiff and Pollard was more than an orthodox teacher/student relationship, at least to the extent that it warranted investigation. In coming to this view, I take into account the evidence of both Radford and Smith concerning the close-working nature of the senior teaching group of which Mr Sawyer was a member, and the evidence about the high level of care and dedication possessed by him.
115 On the whole of the evidence, I cannot be satisfied that in August 1999 Mr Radford knew or ought to have known that what was going on between Pollard and the plaintiff was, in fact sexual abuse. But as I have said, I am satisfied that he ought to have known that the relationship involved, in general terms, a potential risk of harm to the plaintiff, and that he ought to have responded by taking such reasonable steps as were dictated by the circumstances. As far as the February 2000 disclosure to Mr Radford is concerned, on anybody's view of things, he then knew that Pollard had sexually abused the plaintiff, although he did not have the full detail.
Breach of duty?
116 That Mr Radford had a common law duty to take reasonable steps in the circumstances is
uncontroversial. The essential case against the State – bearing in mind I have limited it to vicarious liability for Mr Radford's conduct – is breach of duty by, in effect, failing to report the matter to police,
or at least to a level of authority that would have ensured a report to police. Coupled with that, may well be the pleaded duty to properly investigate Pollard's activities when concerns first arose about his conduct.
117 In addition, there is the somewhat problematic breach of duty issue I earlier identified. It will be recalled that a pleaded duty is one to ensure that if Pollard was permitted to remain at the School he did not teach the plaintiff, but that no corresponding breach is pleaded. That notwithstanding, in closing, counsel made a claim for aggravated damages against the State based on that conduct. The facts of the matter are, of course, not in dispute. I will deal with that issue first. Breaches of duty by failing to prevent Pollard's grooming of the plaintiff and his sexual assault and battery of her, and by failing to supervise both people are pleaded, but these were not argued at all, and I will ignore them.
118 Before going on, because of the issues in this case, it is worth recalling the seminal statement of Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 per Mason J at 47; "the negligence calculus". In deciding whether there has been a breach of the duty of care the first question is whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If so, it is then to be determined what a reasonable person would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have
119 The plaintiff does not pursue any suggestion that Mr Radford knew or ought to have known of sexual abuse at any significant time before the rebuke. Accordingly, I will start with the situation in August 1999. I have already said that Mr Radford had constructive knowledge of a relationship that posed a foreseeable risk of harm. In my view, Mr Radford ought to have known at least what Mr Sawyer seems to have known or understood. As to that, I do not think Mr Sawyer's words can be taken as any level of knowledge of or reasonable suspicion about actual sexual abuse. That is not the only inference reasonably open.
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120 It may well have been that Mr Sawyer was going to ask some questions of the plaintiff about the true nature of the relationship, but was prevented from doing so by the plaintiff's reaction and disappearance into the toilet. He obviously thought that the matter was not something that he wanted to or needed to pursue, at least with the plaintiff.
121 There is at least one other alternative scenario which may have excited "concerns" and prompted him to speak to the plaintiff. It is well understood that a "teacher's pet" situation, not involving sexual or overt emotional abuse, can be harmful to the student. It can ultimately lead to emotional upheaval, feelings of betrayal and the antipathy of fellow students. As I have noted, Mr Sawyer did not see it necessary to pursue the matter with the plaintiff. There is no evidence that Pollard was spoken to. The plaintiff was not asked what she would have said if Mr Sawyer had persisted at some point, or if further more formal inquiries made.
122 However, on that factual basis alone, in light of the plaintiff's reaction I am satisfied that in order to guard against a foreseeable risk of harmful contact with Pollard, a reasonable person in the position of school principal would have ensured that Pollard did not teach the plaintiff in third term. As the facts were later made known, that would not have completely put an end to his contact with the plaintiff, but it would have reduced her stress and anxiety, and provided much less scope for his vindictiveness. The plaintiff gave evidence that there were two other scientist teachers who worked as team. The science class was divided into four groups and they rotated through the different teachers according to the particular subject matter of being taught at particular times. The State did not call any evidence as to the impracticability of making appropriate arrangements. On the basis that Mr Radford ought to have been aware of a type of relationship that involved a risk of harm, a reasonable response would have been to ensure as little sanctioned contact as possible. I find there was a breach of duty in that respect.
123 That brings me to the much more prominent and controversial issue of the failure to report the matter to police in August 1999 or later in February 2000. In the circumstances, I need to say something about establishing a breach of duty. A duty is discharged by the exercise of reasonable care, which is a factual question. That question is what a reasonable person would have done in the circumstances.
124 The inquiry is a prospective one, and it is wrong to reason backwards by asking what reasonable steps would have prevented the risk of injury materialising, and holding a person liable because those steps were not taken. See Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42, 234 CLR 330 per Gummow J at [18], [49]-[50]; Rosenberg v Percival [2001] HCA 18, 205 CLR 434 per Gleeson CJ at 16; Vairy v Wyong Shire Council [2005] HCA 62, 223 CLR 422 per Hayne J at [126]-[128], [160].
125 In Vairy at [124], Hayne J said:
"Again, because the inquiry is prospective, it would be wrong to focus exclusively upon the particular way in which the accident that has happened came about. In an action in which a plaintiff claims damages for personal injury it is inevitable that much attention
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caused only by negligence.[21] However, the terms of reference of the Review confined it to an inquiry into the application, effectiveness and operation of common law principles applied in negligence, and developing and evaluating principle options to limit liability and quantum of awards for damages. Hence the Ipp Report is limited in context to the law of negligence only.
[21] See Civil Liability Act 2002 (NSW), s 15, Civil Liability Act 2003 (Qld), s 59, Civil Liability Act 1936 (SA), s 58; Civil
290 In my view, a Parliamentary intention to deprive those classes of plaintiffs who I have identified
of an entitlement to damages for gratuitous care – unlimited though that may be under the common law
– is not sensibly discernible. When enacting the Civil Liability Amendment Act 2005, Parliament must
be taken to have been aware of the situation it created by the 2003 and 2004 amendments. The clearly evident intention as it appears to me, was to restore damages for gratuitous services, but for those to whom Part 7 of the CLA applied, the entitlement was subject to the threshold provided for in s 28B(2).
291 To use the words of s 4(1)(b), of the Acts Interpretation Act, the interpretation which s 16 would give to the repeal of the CLMA Act is inconsistent with the legislative context. An intention to the contrary to the application of s 16 comes by way of necessary implication from the general character of the legislation. I hold that as matter of law, the plaintiff is entitled to claim damages for gratuitous services.
The evidence
292 According to the plaintiff, up until late 2018-early 2019, the division of labour between her and her husband in terms of cooking, housework etc was 50:50. That changed in about February 2019. She said her mental health had declined to a point that she was not functioning as well in a whole range of areas "including being a good wife, mother, housekeeper, everything." The change in responsibility has evolved over time and seems to have settled to its present pattern in 2022. She said that Mr Munting does most of the cleaning and thought that overall the domestic chores were now 80:20. Over the years they have employed a cleaner at the rate of $20 per hour. In cross-examination, while appearing to agree with the proposition stated in the particulars that Mr Munting did 100 per cent of the shopping, the plaintiff said she sometimes gets things from the shop as required during the week.
293 Mr Munting's evidence was a little clearer. He said that up to 2018, domestic work was shared on a 50:50 basis, but it changed very soon after the plaintiff reported the abuse to police. He said that her mental health started to go downhill and she was quite quickly less able to function. He said that he had taken over the cooking, cleaning and washing although the plaintiff still does some work outside because she appears to find it beneficial. When asked to estimate the number of hours that he had increased his workload by, he said it would easily be eight or nine hours a week. He was not cross- examined about this.
294 The claim is at the rate $20 per hour. As far as past loss is concerned, I think it fair to allow eight hours per week for the period 1 February 2019 to date. That is a period of about 278 weeks, which amounts to $44,480. The plaintiff claims that weekly allowance for the rest of her life. That is simply not supportable on the evidence. In my view, an allowance at the full rate but only for two years is fair. That will take into account probable gradual improvement over a longer period. The discounted amount is $16,210, making the total award under this head close enough to $60,700, which sum I allow.
Non-economic loss – pain and suffering, aggravated damages
295 I have already set out the nature of the physical acts committed by Pollard, the circumstances in which the abuse was revealed, the plaintiff's emotions at the time and the significant psychological
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suffering including the symptoms of complex PTSD suffered since then. Mr Munting spoke of the high
levels of the plaintiff's emotional turmoil and the distress, including suicidal ideation and tendencies.296 Because of the breach of duty on the part of Mr Radford that I have found to have occurred, and because of the claim against the State for aggravated damages, it is necessary to explain what happened to the plaintiff after the rebuke, and during the time in which Pollard taught her in the third term of 1999.
297 After refusing to be involved with Pollard any more, he wrote her letters which he put in her locker. They made her upset. She said that she felt "disgusting, dirty, naughty, distraught, scared". After reading them she tore them into tiny pieces and put them in a bin. She did not give any evidence about the contents of the letters, but counsel asserted they contained declarations of love and the need to see her, and questioning about what he had done wrong and why she would not see him. The plaintiff said that after a time of her refusing to be involved with him, Pollard became dismissive of her and then vindictive. She tried to avoid him as much as possible.
298 When she was asked how things were for her during the time he taught her, she responded as
follows:
"Three hours a week of hell. I had to sit in his room like nothing had happened, listen
to him teach, that was fine. Listen to his banter with the other students. Listen to his banter with the lab technician, some of which, this banter, I felt was directed at me.Those – no-one else in the room would have known that those – what those comments really meant but I did. I wanted – I wanted to shrink away and die is the wrong word, but I – I didn’t want to be there. I – yeah, just stick the knife in and twist it one more time, eh? Why not? The – those – those comments were controlling. It was – it was
like he was trying to keep me quiet and make me out to be the bad guy. 'Look how much we do for these students, we do so much for them and they give us so little back, you
know, students of the past were so grateful for all we – for what we do for them.'
Innocuous to everyone else but for me."
299 Pollard's sexual abuse has had a very significant adverse impact on the plaintiff's life. The course of conduct involved the plaintiff deceiving her family and engaging in secretive tactics. Some of the conduct involved digital penetration. She felt trapped and afraid. As noted, the plaintiff started to develop disturbances to her mental health shortly after the abuse ended. She has terrible psychological problems and endured a great deal of mental anguish which manifests itself in various ways. For instance, she starts to cry when trying to talk to students about issues surrounding consent. All of this has been with her since she has been 14 years old. She has had a particular difficult time in recent years with detailing the abuse to police, and the subsequent criminal and other proceedings. She will have a difficult period in the next few years, and will never be completely free of the consequences of Pollards' intentional torts and negligence.
300 The plaintiff has managed her family and work life with fortitude, something for which she should not be disadvantaged in this context. Positives in her life are that she has a happy marriage with a very supportive husband. She is able to engage in activities such as running, pilates and has some involvement with the Scout movement. All of that said, the emotional and psychological pain has been and will be considerable. I note the plaintiff has used all her sick leave entitlements. They accumulate and do not exhaust annually. Some allowance needs to be made for the chance of unpaid sick leave.
301 Aggravated damages may be awarded to a plaintiff who suffers increased distress as a result of the manner in which a defendant behaves when committing a wrong, or thereafter. The qualification is that the conduct must be of a type that increased the plaintiff's suffering. They are compensatory in nature, being awarded to the plaintiff's feelings caused by insult, humiliation and the like: Lamb v Cotogno (1987) 164 CLR 1. The more insulting or reprehensible a defendant's conduct, the greater the
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indignity which the plaintiff suffers and the greater hurt to feelings (Uren v John Fairfax and Sons Pty
Ltd (above).302 As to Pollard's conduct, there is good reason to make an award of aggravated damages. The whole course of tortious conduct, including his attempting to pursue the relationship and his vindictive conduct after the plaintiff put an end to what had been going on, involved a breach of trust. There were individual breaches of trust on the occasion of each incident of abuse: ZAB v ZWM [2021] TASSC 64 at [121]. The State accepts that its vicarious liability for Pollard's conduct extends to liability to this form of damages.
303 Having regards to all the circumstances, I assess compensatory damages including aggravated damages in the sum of $275,000.
304 I will now deal with the separate claim for aggravated damages against the State. This only arises from the State's vicarious lability for the breach of duty I found to have occurred on the part of Mr Radford. To recap, I found that he ought to have known that the relationship was something more than an appropriate teacher/student relationship and ought to have ensured that Pollard did not teach the plaintiff in third term. The plaintiff's case amounts to an assertion of concurrent wrongdoing materially contributing to indivisible harm caused in the aftermath of the sexual abuse. The plaintiff was required to endure Pollard as a teacher for a period of approximately three months.
305 An award is justified but the aim of an award is to compensate, not to punish. The assessment is made from the point of view of the plaintiff. The focus is not of so much on the conduct of the defendant, as is the case when considering exemplary damages. I think such awards should not be niggardly but compensatory damages as such for injured feelings need to be taken into account. In this case, the breach giving rise to the claim must be put in the overall context of the plaintiff's claim. I consider the breach to involve a reckless indifference to the plaintiff's welfare. I will allow $15,000.
Exemplary damages
306 It will be recalled this claim is only made in relation to Pollard. Exemplary damages are awarded as a form of punishment; to deter repetition of reprehensible conduct and a mark of a court's disapproval of such conduct. They may be awarded for a tort committed in circumstances involving deliberate acts, being intentional or in reckless disregard of a plaintiff's interests. In summary, the objects of the award may include condemnation, admonition, and expression of strong disapproval.
307 The plaintiff seeks exemplary damages based on the conduct of the litigation. The plaintiff relies on the case of Cheng v Farjudi [2016] NSWCA 316, 93 NSWLR 95 for the proposition that relevant "contumelious" conduct can continue include after criminal punishment has been inflicted and can be constituted by ongoing denial of the same conduct, and requiring the plaintiff to prove the conduct at trial. The submission calls for an examination of the principles involved.
308 The starting point for the discussion is Gray v Motor Accident Commission [1998] HCA 70, 196, CLR 1. At [40], the plurality (Gleeson CJ, McHugh, Gummow and Hayne JJ) held that where the criminal law has been bought to bear on a wrongdoing and substantial punishment inflicted, exemplary damages may not be awarded. Their Honours explained that this was because the infliction of substantial punishment for what is substantially the same conduct as the conduct which is the subject of civil proceedings, is a bar to an award.
309 At [41]-[43] their Honours went on to explain that there are two reasons in principle why that
is so:
"Where, as here, the criminal law has been brought to bear upon the wrongdoer and substantial punishment inflicted, we consider that exemplary damages may not be awarded. We say 'may not' because we consider that the infliction of substantial
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punishment for what is substantially the same conduct as the conduct which is the subject of the civil proceeding is a bar to the award; the decision is not one that is reached as a matter of discretion dependent upon the facts and circumstances in each particular case.
There are at least two reasons in principle why that is so.
First, the purposes for the awarding of exemplary damages have been wholly met if substantial punishment is exacted by the criminal law. The offender is punished; others are deterred. There is, then, no occasion for their award.
Secondly, considerations of double punishment would otherwise arise."
310 Their Honours went on to acknowledge and discuss the difficulties that may arise in relation to determining what is "substantial punishment" but said the relevant questions did not fall for decision in the case. At [46], their Honours said:
"At first sight … if criminal charges, alleging the same conduct as alleged in a civil
proceeding have been brought and proved, it would be a most unusual case in which it was open to a civil court to conclude that the outcome of those criminal proceedings did not take sufficient account of the need to punish the offender to deter others from like conduct."
311 In reaching the conclusion expressed, their Honours noted that the conclusion they reached was consistent with Watts v Leitch [1973] TAS SR 16. That was a decision of Nettlefold J in which his Honour declined to make an award of exemplary damages on the basis that the defendant had already been punished in criminal proceedings, and to punish him again would be to punish him twice for the one act. At 24, his Honour said "I should assume that the punishment was appropriate having regard the facts before the Court." (In that case was an action for damages for assault. The defendant had been convicted of wounding and fined $75.)
312 I should also refer to the judgment of Blow CJ in ZAB v ZWM (above), a case of damages for sexual abuse, his Honour noted that the defendant had been punished by means of a conviction and a sentence of imprisonment, the length of which his Honour did not note. Referring to both Gray and Watts v Leitch, his Honour said:
"Because substantial punishment has been inflicted … for substantially the same
conduct as that which is the subject of this action, the exemplary damages could not be
awarded".
313 In Cheng at [57]-[70], Beazley P, (Ward JA and Harrison J agreeing), discussed at some length the judgments in Gray. Her Honour went on to discuss two decisions of the New South Wales Court of Appeal which "point to the availability of exemplary damages, notwithstanding the criminal proceedings had been taken in respect of the same conduct"[22]. After further discussion, at [87] her Honour said:
"Accordingly, the position in Australia is that exemplary damages may not be awarded where substantial criminal punishment has been imposed. However, the High Court in Gray did not preclude an award of exemplary damages where something other than substantial punishment was imposed, and in accordance with the authorities in this Court exemplary damages may be awarded in some circumstances notwithstanding that a criminal sanction has been imposed." [Original emphasis]
[22] Niven v SS [2006] NSWCA 338 and Whitbread v Rail Corporation of NSW [2011] NSWCA 130.
314 Her Honour went on to consider the penalty that had been imposed on the defendant in that case. For an assault, a conviction had been recorded and was made the subject of good behaviour bond
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for a period of twelve months. At [105], her Honour declared she was not prepared to find that a conviction recorded in the imposition of a bond was not a substantial penalty. The question then became whether the case was "an unusual case" in the sense used by the plurality in Gray at [46]. At [107] her Honour concluded:
"Because I have not been prepared to find that the penalty imposed was not substantial, the question that arises is whether exemplary damages ought to have been awarded for some unusual reason. In this case that can only be, if at all, because of the manner in which the appellant conducted the litigation."[23] [My emphasis].
[23] The appellant/defendant in that case denied on oath the assault and pleaded that he had only pleaded guilty as a matter
315 Hence, the imposition of criminal punishment is not an absolute bar to an award, but one cannot be made where substantial punishment has been imposed unless there is some unusual reason. That can exist because of the conduct of the litigation. (I have not been able to find any later case on this point although I note an award of exemplary damages made in Shalhoub v State of New South Wales [2017]
NSWDC 363 included – in reliance on Cheng – consideration of denials that required the plaintiff "to
engage in a lengthy trial that vindicated his rights": see [1181].) Although technically not binding, as a decision of an intermediate court of appeal in another State, Cheng is highly persuasive and I will follow it. I accept that because of the conduct relied on, this is one of the unusual cases in which exemplary damages can be awarded where there has been substantial punishment.
316 The plaintiff relies on the pleadings. Pollard's defence was filed in response to a statement of claim dated 9 November 2021. As does the current statement of claim, the particulars of assaults and battery are contained in par 12. The defence makes limited omissions of physical contact. They are, massaging the plaintiff's shoulders at school on one occasion, kissing her on the lips on several occasions at the School, kissing and running his hands over her body and putting his hands under her top and touching her breasts while on Maria Island, and running his hands down her side and rubbing against her on one occasion at the School.
317 By letter of 14 November 2022, Pollard's then solicitors wrote making formal admissions that such admitted conduct constituted batteries, that such batteries caused harm, and that he breached his duty of care by reasonably admitted conduct. The defence contains a denial of an unlawful or inappropriate relationship. As a result, a substantial part of the plaintiff's case remained in issue. The admissions made generally accord with the position Pollard took in the criminal proceedings in which, or course, adverse findings were made in the sense the sentencing judge was satisfied beyond reasonable doubt of the plaintiff's allegations beyond that which Pollard admitted. The defence was pleaded in spite of those findings.
318 In evidence, the plaintiff said she suffered considerable anxiety in the preparation for this trial; in particular having to return to the School carpark caused her significant distress. As earlier noted, shortly before the trial was due to start, Pollard gave notice that he would not be participating in the trial. The plaintiff said that she suffered mixed emotions as a result. She was angry because she felt he should be present at the trial, listening to her evidence and to make him accountable for what he did, but she also felt relief that she would not need to see him. As to when the trial commenced and Pollard was called, the plaintiff said:
"I watched that door and was absolutely mortified because I still thought that he would turn up I was still scared that man was still going to walk through the door even though
rationally I had been told that he wouldn’t."
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319 In Cheng at [112], it was made clear that putting a plaintiff to proof as to damages is a different thing in terms of consequence, to taking an unreasonable position in relation to liability and showing serious disregard for a plaintiff's interest in that respect. In this case, I take into account that until the last minute, at least, the plaintiff was in event any pursuing a claim against Mr Radford, and in fact pursued the case against the State. Those things required preparation, and for her to give evidence as to the sexual abuse. However, the fact of Pollards continued denials and their emotional effect remain.
320 Counsel for the plaintiff did not mention the retributive and vindictive behaviour in this context but it seems to me to be relevant. The sentencing judge's comments on passing sentence do not contain reference to this conduct, and it can be concluded that it was not taken as evidence of a lack of remorse or was in any other way taken into account in the sentencing process. Given the existence of substantial punishment for the sexual abuse, I think an amount of $25,000 is an appropriate sum to satisfy the objectives of exemplary damages in relation to the relevant conduct.
| Interest | |
| 321 | In the particulars of claim the plaintiff seeks interest on lost income and superannuation pursuant to s 35A of the Supreme Court Civil Procedure Act 1932. In closing submissions this was expanded to include interest on a percentage of the damages awarded for non-economic loss. The State does not disagree that interest could be awarded in respect of those amounts. |
| 322 | Section 35A did not commence until 9 September 2019. It operates retrospectively in that it enables a discretionary award of interest at a rate not exceeding the prescribed rate for the whole or any part of the period commencing on the day on which the cause of action arose and ending on the day on which the judgment is entered. The prescribed rate is to be found in r 5A of the Supreme Court Rules 2000 (SCR). The prescribed rate for a calendar year, or for part of a calendar year, is a rate equal to 4% plus the most recent cash rate published by the Reserve Bank of Australia as at 1 January and 1 July each year. |
| 323 | The issue of whether an award of interest should be made for any period before the commencement date of s 35A was considered in Dann v Port Sorell Bowls Club Inc (No 2) [2020] TASSC 53 (Wood J), Public Trustee as Administrator of the Estate of Matthew Leonard v Atileo [2023] TASSC 33 (a decision of mine) and Steen v Trustees of the Diocese of Tasmania [2024] TASSC 3 (Brett J). As a matter of general approach, the view commonly taken in those cases was that there is general unfairness in calculating interest on a period before the commencement of the section, although it remained a matter of discretion. Authorities relied on included Simonius v Vischer [1979] 2 NSWLR 322, Aussems v Commonwealth of Australia [2005] NSWSC 217 and Nella v Kingia Pty Ltd [1989] FCA 201. |
| 324 | In each case, interest was not awarded before the commencement date but, of course, different considerations arose in each case. The writs in Dann and Atileo were filed before the commencement date, while that in Steen was filed after that date but it involved an application to set aside a previous settlement which was enabled by s 5C of the Limitation Act, introduced at the same time as s 5B. In any |
| event, in ZAB v ZWM (above) – a case involved in damages for childhood sexual abuse – Blow CJ did | |
| not mention the question of retrospectivity, but considered the inability of the plaintiff to commence proceedings until changes in the law permitted that to occur, was the critical fact in the exercise of discretion in that case. At [92] his Honour noted that when proceedings were instituted, pre-judgment interest could not be claimed. | |
| 325 | In closing submissions, neither the plaintiff nor the State made reference to any issue of unfairness arising from an award commencing before the commencement date of the section. Having regard to the State's position on the issue, and to the approach taken by Blow CJ in ZAB and taking into |
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account the circumstances of this case, I think it is appropriate to take the same course as his Honour
did in that case.326 As to the rate, the plaintiff has supplied a list of the relevant RBA cash rates from January 2005 to that which applied at the start of 2023. There have been two relevant increases since then; from 3.1% to 4.1% in June 2023, and to 4.35% in December 2023. The plaintiff proposes to take the average and to add that to the 4% referred to in SCR r 5A. The State's calculations were essentially directed to a loss over a three year period.
327 Whatever interest rate is used, it can be at best only a rough guide as to the value of the plaintiff's loss during the relevant period: MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657 at 664. The plaintiff is awarded interest because he or she has been deprived of the use of money, not because they have foregone investment opportunities: Gogic at 666. There is nothing in the facts of this case that warrant any refined or specifically tailored approach. I accept the plaintiff's proposal to apply an average of the rates for the relevant period to the particular amounts concerned, but I need to settle on the rate to be applied.
328 The average prescribed interest rate for the relevant period is 3.15%. The higher interest rates came at the very start and at the end of the period under consideration. Over more recent years until more recently, when the plaintiff would have been earning higher amounts, the interest rates were historically low. Because the loss of earnings occurs progressively during a particular period, it is customary to apply the interest rate to the total and divide by two or alternatively halve the interest rate; the result is the same: see Cullen v Trappell (1980) 146 CLR at 19 and Grincelis v House [2000] HCA 42, 201 CLR 321 at [22].
329 Except in the case of ZAB, in which the precise calculations in each of the Tasmanian cases mentioned above, except Atileo, the rate of 4% was adopted. In Atileo, I settled on 3%. These outcomes reflect a conservative approach to the determination of the rate pursuant to SCR r 5A. Of course, each case has its individual characteristics. In my view, given the period involved and the various rates across that period, a rate of 4.5% is appropriate. On one half of the past loss of $379,600, that rate per annum from 1 July 2005 to date is about $162,000, and I order that amount be paid.
330 In terms of non-economic loss, the plaintiff submits it is appropriate to award 25% in respect of the 25 years since the start of the sexual abuse. Reliance is placed on the approach taken by Blow CJ in ZAB. In that case, having awarded $300,000 for non-economic loss including aggravated damages, his Honour at [126], said that he considered a modest award of interest was appropriate, and settled on a figure of 75 per cent of that amount as referrable to the period from the first incident of sexual abuse to the date of judgment. His Honour noted that it was a period of well over 30 years, and that it was necessary to bear in the mind the harm that was suffered "in long distant years, intermediate years, and recent years".
331 In this case, the defendant does not dispute the percentage adopted by the plaintiff of 25 per cent, but notes the plaintiff's submission involves the application of that percentage to the entirety of the relevant award. That observation is correct. Having regard to the plaintiff's age when the abuse occurred, her present age and life expectancy, and the history of her symptomology, along with assessing the possibilities and probabilities of what might occur in the future, I think the amount on which interest should be paid is one half of the award. Twenty five per cent of that figure is $34,375 and there will be an order accordingly.
332 That leaves interest on the aggravated damages awarded against the State. Looking at the case overall, and the basis of the modest sum awarded as a result, I decline to make an order for interest.
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Summary
333 The following is a summary of the awards made.
Loss of earning capacity (past and future) $1,379,600 Superannuation (past and future) $165,550 Interest on past aspect of loss of earning capacity $162,000 Past medical expenses $24,370 Future medical expenses $28,000 Griffiths v Kerkemeyer damages (past and future) $60,700 Pain and suffering, aggravated damages $275,000 Interest on pain and suffering, aggravated damages $34,375 Aggravated damages against the State $15,000 Exemplary damages against Pollard $25,000 TOTAL $2,169,595
The State's notice of contribution
334 Pursuant to s 3 of the Wrongs Act 1954, the State has filed a notice seeking an indemnity from Pollard to the extent of the total amount the plaintiff may recover, or such part as may be found just and equitable. The claim is based on the ground that Pollard "engaged in criminal acts and/or intentional torts" against the plaintiff and/or was negligent, and wholly caused or contributed to any loss or damage suffered by the plaintiff. By way of particulars, the State relies on the plaintiff's pleadings as against Pollard.
335 Section 3(1)(c) of the Wrongs Act provides that in proceedings for contribution, the amount that is recoverable from the person shall be such an amount as may be found by the court to be just and equitable, having regard to the extent of that person's responsibility for the damage, and, for the purpose of the section, the court has power to exempt a person from liability to make contribution, or to direct that the contribution to be recovered from the person shall amount to a complete indemnity.
336 The exercise in apportioning liability between co-defendants involves the same considerations that arise in relation to an allegation of the plaintiff's contributory negligence. The approach is set out in the well-known case of Podrebersek v Australian Iron and Steel Pty Ltd (1985) 69 ALR 529 at 532- 3. It reflects the wording of the provision. The making of an apportionment of respective shares in responsibility for damage involves a comparison both of culpability; that is, of a degree of departure from the standard of care of the reasonable man and of the relevant importance of the acts of the parties in causing the damage.
"It is the whole of the conduct of each negligent party in relation to the circumstances of the acts in which must be subjected to comparative examinations. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the
relevant importance of the acts of the parties in causing the damage will be of little, if
any importance." [My emphasis]58 No 30/2024
337 Just and equitable contribution requires a consideration of culpability in the sense of the degree of departure by each dependent of the applicable standard of care, and the relevant importance of the acts or admissions of each in causing the damage. The essence of the exercise is the requirement that the conduct of the tort be subjected to a comparative examination: Shuttleworth v Morris [2020] VSC 143 at [23].
338 The State's liability as a tortfeasor primarily arises by way of its vicarious liability for Pollard's misconduct. As an employer it is entitled to seek indemnity from its employee. Lister v Romford Ice Co [1959] AC 573, has not been abrogated in this State. It is also liable for the modest sum representing aggravated damages, which liability arises by way of vicarious liability for Radford's inaction. The State does not seek contribution or indemnity from him.
339 In Shuttleworth (above) at [33] Forbes J said:
"Contribution amounting to a complete indemnity might be appropriate in
circumstances where one joint tortfeasor has a liability without blame – such as a purely vicarious liability by reason of the relationship between tortfeasors-. … However where
there is a direct liability, the comparative exercise required for apportionment will rarely lead to a result that a just and fair contribution amounts to a complete indemnity."
340 In this case, the State has not been found to have any direct liability. In the circumstances, I do not see any proper reason the State should be not be entitled to a full indemnity in respect of the total award of damages excluding the sum I have specifically awarded against it in respect of aggravated damages.
341 In conclusion, I note that Pollard filed notices of contribution or indemnity against both Radford and the State. Of course Pollard did not appear at all, and is to be taken as not appearing to defend the plaintiff's claim, to be heard in relation to damages, or to pursue his notices of contribution. As those notices are outstanding and they have no merit, they will be dismissed.
| Orders |
342 I make the following orders:
(1) Judgment be entered for the plaintiff against the first defendant, Marcus Pollard, and the third
defendant, the State of Tasmania, in the sum of $2,129,595.*
(2) Judgment be entered for the plaintiff against the first defendant in the sum of $25,000.
(3) Judgment be entered for the plaintiff against the third defendant in the sum of $15,000.
(4) The third defendant be fully indemnified by the first defendant in respect of the judgment the subject
of order (1).(5) The claims made for contribution in the notices of contribution of the first defendant dated 20
September 2022 are dismissed.
*Note
On 24 June 2024, acting by way of SCR r 435(a) and with the agreement of the solicitors for the plaintiff and the third defendant, I varied the amount in order no (1) to this amount from a lower figure. At the same time, I also published these revised reasons. The variation was made after the plaintiff's solicitors, pursuant to leave I had granted to make submissions on such matters, correctly pointed out an omission I had made in relation to the calculation of interest on past loss of income.
or at least that is how it appears to have been understood. Somewhat laxly in hindsight, I agreed, and ordered judgment accordingly. On later reflection I saw that this had the potential of creating great difficulties for both parties. Correspondence was sent to the parties detailing my concerns and indicating I was prepared to set aside the judgment of my own motion. Both parties agreed it was the appropriate course, and on 2 November 2023, that judgment was set aside.
appeared that what was being referred to was a primary liability, rather than a derivative liability, based on the attributions of acts arising from the principles of agency: see CCIG Investments at [55]-[58], [65]-[66]. As to that, I note the pleading of liability for the acts of Pollard and of Radford.
conduct. Accordingly, because of its vicarious liability for the conduct of Pollard and Radford, the State is liable for the
whole of any proven loss.
a teacher so that she might be able to protect other children from experiencing the trauma she suffered… .But for the
abuse, it is unlikely that the plaintiff would have commenced a career as a secondary school teacher. It is likely she
would have had the capacity to carry on various careers that attract a significantly higher income. … [I]t is likely the
plaintiff would have completed her PhD over three or four years [but] she may still have pursued a career as a chemist
or chemical scientist without a PhD following her Honours year in 2005."
'intellectual energy' which…resulted from the plaintiff's injuries had caused some diminution of his earning capacity."
examined in a number of cases involving different legal contexts: see for instance Air Manymak v Jeffs [2006] NTCA 12 at [61]; Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82, 223 FCR 334; Gratax Pty Ltd v TD & C Pty Ltd [2013] QCA 385; Metro Waterloo Pty Ltd v HWL Ebsworth Lawyers[2022] QCA 195 at [105]-[111].
UTAS, and the particular PhD opportunity would not have arisen.
year is used in lieu of actual earnings to the date of trial.
by the person as a result of injuries to that person caused by the negligence of another person, but that, by subs (2), such damages are not recoverable unless the services have been provided, or are likely to be provided, for more than six hours per week for more than six consecutive months.
Liability Act 2002 (WA), s 112.
of convenience.
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