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

Supreme Court

New South Wales

Medium Neutral Citation: Plaintiff A and B v Bird; Plaintiff C v Bird; Plaintiff D v Bird [2020] NSWSC 1379
Hearing dates: 7 September 2020 – 21 September 2020
Decision date: 09 October 2020
Jurisdiction: Common Law
Before: Schmidt AJ
Decision:
Verdicts for A, B, C and D
The parties should file proposed orders, including as to costs, within 14 days

Catchwords:
TORTS — intentional torts — personal injury — historic sexual abuse of children being cared for at a childcare centre — whether assaults occurred
TORTS —vicarious liability —volunteers — whether first defendant a volunteer or employee
NEGLIGENCE — whether duty to children breached — whether reasonable steps to avoid risk of harm to children could have been taken — compliance with regulatory requirements — whether child protection policy in operation — whether supervision was adequate
NEGLIGENCE — whether duty owed to mothers of child plaintiffs –– nature of psychological injuries suffered — whether duty breached — whether causation established
EVIDENCE — admissions — whether made with authority and so admissible under s87 of the Evidence Act 1995
EVIDENCE — admissibility — whether child unavailable to give evidence — s63 Evidence Act and Dictionary definition of unavailable
EVIDENCE — tendency evidence — admissibility of children’s disclosures and defendant’s admissions — probative value of tendency evidence
EVIDENCE — civil standard of proof — nature of the burden of proof under s140 of the Evidence Act
EVIDENCE — witness evidence — evidence of children’s disclosures — reliability of evidence where children were not cross-examined

Legislation Cited:
Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 209, 210
Children Services Regulation 2004 (NSW), regs 15, 25, 51–54, 56–58, 61, 64–66, 74, 85, 88, 104, 111, 117,118
Civil Liability Act 2002 (NSW), ss 3, 5D, 5E, 6E–6H, 13, 15, 21, 27, 31–33
Evidence Act 1995 (NSW), ss 12, 13, 55, 59, 61–64, 67, 81, 87, 97, 100, 101, 135, 136, 140, 192A
Evidence Regulation 2015 (NSW) (rep), reg 5

Cases Cited:
Ainsworth v Burden [2005] NSWCA 174
Annetts v Australian Stations Pty Ltd (2000) 23 WAR 35; [2000] WASCA 357
Avopiling Pty Ltd v Bosevski; Avopiling Pty Ltd v The Workers Compensation Nominal Insurer [2018] NSWCA 146
Barclays Bank plc v Various Claimants [2020] UKSC 13
Bowles v The State of Western Australia [2011] WASCA 191
BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Catholic Child Welfare Society v Various Claimants [2013] 2 AC 1; [2012] UKSC 56
Commonwealth v Helicopter Resources Pty Ltd [2020] HCA 16; (2020) 94 ALJR 466
Cox v Ministry of Justice [2016] AC 660; [2016] UKSC 10
Cox v State of New South Wales (2007) 71 NSWLR 225; [2007] NSWSC 471
DSN v Blackpool Football Club Ltd [2020] EWHC 595 (QB)
Dyldam Developments Pty Limited v Jones [2008] NSWCA 56
Gersbach v Gersbach [2018] NSWSC 1685
Geyer v Downs (1977) 138 CLR 91; [1977] HCA 64
Gordon v Truong [2014] NSWCA 97
Gray v Motor Accident Commission (1998) 196 CLR 1; [1998] HCA 70
Hollis v Vabu Pty Ltd (2001) 207 CLR 21; [2001] HCA 44
Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 106 FCR 51; [2000] FCA 1886
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Lamb v Cotogno (1987) 164 CLR 1; [1987] HCA 47
M v M (1988) 166 CLR 69; [1988] HCA 68
Malecv JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20
Merton & Merton [2007] FamCA 1350
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 CLR 445; [1992] HCA 66
New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4
Optus Administration Pty Ltd v Wright by his tutor Wright (2017) 94 NSWLR 229; [2017] NSWCA 21
Ordukaya v Hicks [2000] NSWCA 180
Palmer v Dolman [2005] NSWCA 361
Plaintiff A & B v Bird [2016] NSWSC 997
Plaintiff A v Bird [2020] NSWSC 1145
Prince Alfred College Incorporated v ADC (2016) 258 CLR 134; [2016] HCA 37
Public Transport Commission (NSW) v J Murray-More (NSW) Pty Ltd (1975) 132 CLR 336; [1975] HCA 28
R v Chief Constable of Devon and Cornwall, Ex parte Central Electricity Generating Board [1982] QB 458
R v Suteski (2002) 56 NSWLR 182; [2002] NSWCCA 509
Rabay v Bristow [2005] NSWCA 199
Re W [2004] FamCA 768; (2004) 32 Fam LR 249
RHG Mortgage Limited v Ianni [2015] NSWCA 56
Richards v Victoria [1969] VR 136
Rixon v Star City Pty Ltd (Formerly Sydney Harbour Casino Pty Ltd) (2001) 53 NSWLR 98; [2001] NSWCA 265
Roman Catholic Church Trustees for the Diocese of Canberra and Goulburn v Hadba (2005); 221 CLR 161; [2005] HCA 31
Sampco Pty Ltd v Wurth [2015] NSWCA 117
Sophie Fegan by her tutor Inga Rozenauers v Lane Cove House Pty Limited [2007] NSWCA 88
Sorbello v South Western Sydney Local Health Network; Sultan v South Western Sydney Local Health Network [2016] NSWSC 863
State of New South Wales v Riley (2003) 57 NSWLR 496; [2003] NSWCA 208
Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35
The Queen v Dennis Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40
Varmedja v Varmedja [2008] NSWCA 177
White Constructions (ACT) Pty Ltd (In liq) v White [2005] NSWCA 173
Withyman v State of New South Wales [2013] NSWCA 10
Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485; [1995] HCA 53

Texts Cited:
RFV Heuston and RA Buckley, Salmond on Torts (Sweet and Maxwell, 17th ed, 1977)

Category: Principal judgment
Parties: A (1st Plaintiff)
B (2nd Plaintiff)
C (3rd Plaintiff)
D (4th Plaintiff)
Rodney Raymond Bird (1st Defendant)
Lisa Maree Clancy (2nd Defendant)
Little Pigeon T/As Footprints Childcare Centre (3rd Defendant)
Representation: Counsel:
C Barry QC with M Tanevski and M Hamdan (1st, 2nd, 3rd and 4th Plaintiffs)
C Heazlewood (1st Defendant)
A Horvath with R McEwen (2nd and 3rd Defendants)
Solicitors:
Shine Lawyers (1st, 2nd, 3rd and 4th Plaintiffs)
EMP Michael (1st Defendant)
Norton Rose Fullbright (2nd and 3rd Defendants)

File Number(s): 2013/375445; 2013/375437; 2020/65223

Judgment

Little Pigeon Pty Ltd owned the Footprints childcare centre which B and D attended between 2008 and late 2010 when they were removed after Mr Bird, who worked at the centre and was a 1% shareholder of the company, was arrested and charged with two offences involving another child who had made disclosures about him. Ms Clancy, Mr Bird’s daughter, owned 99% of Little Pigeon’s shares. Little Pigeon Pty Ltd was also the licensee of the centre.
B and D and other children later also made disclosures about Mr Bird. While police investigations resulted in further criminal charges being laid against him in relation to B and another child, none were laid in relation to D. The DPP finally did not pursue any of the charges to trial.
In these proceedings the plaintiffs seek damages for Mr Bird’s alleged assaults of B and D and also claim that Little Pigeon and Ms Clancy are not only vicariously liable for his acts, but that they were all also negligent.
A and C, who are B and D’s mothers respectively also pursue claims for breach of contract, given Little Pigeon’s alleged failures to provide quality childcare; retain adequately trained staff to work at the centre; follow relevant and necessary procedures required to be followed by such centres; and to ensure that the children were safe and appropriately cared for, while under its control and supervision.
Compensatory, aggravated and exemplary damages are sought.

Issues

There was no issue that B and D were owed a duty of care: New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4.
That a duty was also owed to A and C and that the alleged assaults, negligence and breach of contract had occurred were denied, as was any vicarious liability for Mr Bird’s acts, given that on the defence case he was a volunteer and not an employee.
The parties agreed many of the relevant facts and identified what was not in issue to include that, given the age of the children, they cannot have consented to any sexual acts and that neither B nor D could remember what happened to them at Footprints.

Issues

Liability

When the hearing commenced the issues identified included:

Whether the assaults occurred;

Whether Mr Bird was Little Pigeon’s employee;

Whether Mr Bird had unsupervised access to or the opportunity to interact with B or D, out of sight of carers employed by Little Pigeon;

Whether Ms Clancy or the carers were aware of Mr Bird having such access or opportunity;

Whether either Little Pigeon or Ms Clancy are vicariously liable for any assault proven;

Whether Little Pigeon or Ms Clancy breached the duty of care which they owed B and D;

Whether Little Pigeon or Ms Clancy owed a duty of care to A and C and whether it was breached;

Causation;

Whether there had been any breach of contract;

Whether A or C sustained a recognised psychiatric illness as a result of Mr Bird’s assaults;

The admissibility of:

Representations made by B and D to their mothers and others about what Mr Bird had done to them;

Admissions made by Mr Bird in his police interviews;

Tendency evidence;

The credibility and reliability of various witnesses.

Some issues fell away. In final submissions whether the pleaded risk of abuse had been established; what precautions a reasonable person in Little Pigeon and Ms Clancy’s position would have taken to guard against the pleaded risk and what precautions were taken to guard against the risk, all remained in issue.

Damages

On damages, as well as quantum in respect of claims for non-economic loss, past loss of earnings, future economic loss, out of pocket expenses and future domestic assistance, the issues included:

The real effect of the alleged assaults on the plaintiffs;

Whether the Civil Liability Act 2002 or the common law applies to the assessment of damages in the cases of Little Pigeon and Ms Clancy, if they are found to be vicariously liable for Mr Bird’s assaults;

Whether the plaintiffs are entitled to aggravated or exemplary damages.

Some measure of agreement on damages was finally reached.

Conclusion

Because B and D had no memory of what had happened, they could not be cross examined. In this case that did not preclude evidence of their disclosures being received. Given the gravity of Mr Bird’s alleged acts it was thus necessary to pay very close attention to what they had each disclosed, in light of all of the other evidence, to determine whether the plaintiffs had satisfied the obligation to prove their cases, on the balance of probabilities.
For the reasons which follow I have concluded that the plaintiffs have each proven their cases and that orders must thus be made in their favour.

Mr Bird’s admissions

The starting point for these conclusions is Mr Bird’s admissions.
After his arrest Mr Bird gave a recorded police interview in which he made numerous admissions about his access to and interaction with children at the centre, particularly in relation to child 1, who was the subject of the charges laid against him. What he recounted involved various types of inappropriate conduct.
Early in the interview, when asked about child 1, Mr Bird acknowledged that on arrest he had been told that the reason was for allegations of indecent assault upon child 1 and he said that he knew her. He also said, amongst many other things, that he had rubbed child 1’s back or patted her bottom, which he volunteered “may be what people could classify as assault.”
Section 55 of the Evidence Act1995 (NSW) provides that evidence that is relevant is evidence that “if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.”
Hearsay is dealt with in s59(1), providing that “Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.” There are various exceptions, including under s81 in relation to admissions, defined in the Dictionary to the Evidence Act to mean:

“a previous representation that is—
(a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding), and
(b) adverse to the person’s interest in the outcome of the proceeding.”

There was finally no issue that Mr Bird’s admissions were thus admissible against him, but in issue remained whether they were admissible against either Ms Clancy or Little Pigeon and whether they could be relied on as tendency evidence.
Section 87 of the Evidence Act provides:

87 Admissions made with authority
(1) For the purpose of determining whether a previous representation made by a person is also taken to be an admission by a party, the court is to admit the representation if it is reasonably open to find that—
(a) when the representation was made, the person had authority to make statements on behalf of the party in relation to the matter with respect to which the representation was made, or
(b) when the representation was made, the person was an employee of the party, or had authority otherwise to act for the party, and the representation related to a matter within the scope of the person’s employment or authority, or
(c) the representation was made by the person in furtherance of a common purpose (whether lawful or not) that the person had with the party or one or more persons including the party.

(2) For the purposes of this section, the hearsay rule does not apply to a previous representation made by a person that tends to prove—
(a) that the person had authority to make statements on behalf of another person in relation to a matter, or
(b) that the person was an employee of another person or had authority otherwise to act for another person, or
(c) the scope of the person’s employment or authority.

The evidence established that not only was Mr Bird a shareholder of Little Pigeon, but that it had sought and obtained approval for him to be involved in the operation and management of the Centre, when its licence application was made. In his police interview Mr Bird said that he was a silent partner in the business and described in detail his interactions with children at the centre, who he said he treated as if they were his grandchildren.
It follows that the hearsay rule did not apply to what Mr Bird said in the interview, which tended to prove the scope of his employment or authority: s87(2)(c).
Light was also shed on the extent of Mr Bird’s authority to make statements on behalf of Little Pigeon by documents which it published. In a 2010 information document, while Mr Bird was described to be a volunteer he was also held out to be involved in the management of the centre, being the playground supervisor and having responsibility for cooking, OHS and maintenance. This explains Little Pigeon’s concession, finally, that Mr Bird’s admissions were also admissible against it.
Whether they were admissible against Ms Clancy still remained in issue.
Authority to make a statement may be express or implied from the circumstances and need not be actual or ostensible: Commonwealth v Helicopter Resources Pty Ltd [2020] HCA 16; (2020) 94 ALJR 466.
Ms Clancy was not only Little Pigeon’s 99% shareholder and its controlling mind, on her evidence she had the regulatory responsibilities of both the licensee and of the centre’s authorised supervisor from the time Ms Hillman resigned from that position in late 2008, until Ms Kasim was appointed to the position in October 2010. It was Ms Clancy who sought approval in 2008 for Mr Bird to be involved in the management of the centre; who directed Mr Bird to conduct himself with affection towards the children, as if he were their grandfather; and who, it may be inferred, was the author of the documents in which Mr Bird’s role in the centre was disclosed to be as part of its management team.
In all of those circumstances I am also satisfied that Mr Bird’s admissions were admissible against Ms Clancy. Even if Mr Bird did not have express authority to make statements about his role on her behalf, Mr Bird and Ms Clancy clearly had a common purpose in defending the charges which had been laid against Mr Bird: s87(1)(c).
That conclusion rests not only on their joint ownership of Little Pigeon, but also from the unpaid work which he performed for it, which Ms Clancy agreed supported its business and it follows, the profits it generated, which it may be inferred they shared. Ms Clancy’s communications to parents about Mr Bird’s arrest and the ongoing operation of the centre, shortly after Mr Bird made his admissions, also establish their common purpose in him successfully defending the charges, given their significance to the continued successful operation of the centre.
The evidence establishes that Ms Clancy not only supported Mr Bird in his defence of those charges, but communicated to parents about that defence about the support which he enjoyed from her and other staff and her belief that they were both the victim of a vendetta. That communication followed enquiries from parents, including A, and children such as B and D being withheld or withdrawn from the centre.
In the result I am satisfied that Mr Bird’s admissions were also admissible against Ms Clancy.

Admission and use of the children’s prior representations

In 2015 advance orders had been sought by the plaintiffs under s192A of the Evidence Act about the admissibility of evidence of B and D’s disclosures about Mr Bird in 2010 and 2011 to their mothers; their electronically recorded police interviews; and the disclosures which the four other children had made about Mr Bird in their police interviews.
RS Hulme AJ refused to make those orders, taking the view that given all that lay in issue between the parties about the disputed evidence, it would be inappropriate to rule on admissibility prior to trial: Plaintiff A & B v Bird [2016] NSWSC 997.

B and D

When the final hearing commenced the admissibility of A and C’s evidence about the disclosures which B and D had made to them and the admissibility of B and D’s police statements, under either s63 or s64 of the Evidence Act, remained in issue.
Statements made by B and D had been served. There was then no issue that neither still had a memory of what had happened to them while at Footprints. B and D were thus not finally required for cross-examination.
After argument it was also finally conceded that A and C’s disputed evidence was admissible under s64(3) of the Evidence Act, because B and D were both to be called to give evidence. Consent orders under s136 were made, limiting the disclosures to evidence of what was said, rather than as evidence of the truth of what was said.

The other four children

While evidence in relation to four other children were considered by RS Hulme AJ, the plaintiffs finally relied on only on the disclosures made by child 1 and child 2. The admissibility of the evidence about their disclosures remained in issue.
There was no question that the prior representations made by child 1 and child 2 were relevant to what was in issue: s55. Or that the disputed evidence involved hearsay, which is not admissible in civil proceedings subject to the exceptions which include those provided in ss63 and 64: s59. They provide:

63 Exception: civil proceedings if maker not available
(1) This section applies in a civil proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.
(2) The hearsay rule does not apply to—
(a) evidence of the representation that is given by a person who saw, heard or otherwise perceived the representation being made, or
(b) a document so far as it contains the representation, or another representation to which it is reasonably necessary to refer in order to understand the representation.

64 Exception: civil proceedings if maker available

(1) This section applies in a civil proceeding if a person who made a previous representation is available to give evidence about an asserted fact.
(2) The hearsay rule does not apply to—
(a) evidence of the representation that is given by a person who saw, heard or otherwise perceived the representation being made, or
(b) a document so far as it contains the representation, or another representation to which it is reasonably necessary to refer in order to understand the representation,
if it would cause undue expense or undue delay, or would not be reasonably practicable, to call the person who made the representation to give evidence.

(3) If the person who made the representation has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by—
(a) that person, or
(b) a person who saw, heard or otherwise perceived the representation being made.

(4) A document containing a representation to which subsection (3) applies must not be tendered before the conclusion of the examination in chief of the person who made the representation, unless the court gives leave.

A “representation” is defined in the Dictionary to the Evidence Act to include an express or implied oral representation, as well as one to be inferred from conduct.
Section 62 limits the application of ss 63 and 64 to first hand hearsay. That is a previous representation made “by a person who had personal knowledge of an asserted fact”, based on something he or she “saw, heard or otherwise perceived other than a previous representation made by another person about the fact”: s62(2). There was also no issue that the representations in issue were first hand hearsay.
Section 61 also limits s63, precluding admission of a previous representation to prove an asserted fact, if the person who made it was, when the representation was made, not competent to give evidence about the fact because of s13. Section 12 provides that every person is competent to give evidence, except as otherwise provided. Section 13 does not have an age limit, relevantly providing:

13 Competence: lack of capacity
(1) A person is not competent to give evidence about a fact if, for any reason (including a mental, intellectual or physical disability)—
(a) the person does not have the capacity to understand a question about the fact, or
(b) the person does not have the capacity to give an answer that can be understood to a question about the fact, and that incapacity cannot be overcome.

In issue was thus whether child 1 and child 2’s disclosures were admissible under either s63 or s64. That also depended on the concept of “unavailability”, which is dealt with in clause 4 of Part 2 of the Dictionary to the Evidence Act. It relevantly provides:

4 Unavailability of persons
(1) For the purposes of this Act, a person is taken not to be available to give evidence about a fact if—
(a) the person is dead, or
(b) the person is, for any reason other than the application of section 16 (Competence and compellability: judges and jurors), not competent to give the evidence, or
(c) the person is mentally or physically unable to give the evidence and it is not reasonably practicable to overcome that inability.
..
(f) all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or secure his or her attendance, but without success, or
(g) all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success.

Child 2

The issue as to the admissibility of the evidence about child 2 was resolved by service of a letter from a psychologist, which the defendants accepted established that child 2 was not available to give evidence. That letter is not in evidence.
An application was then, however, pressed under s135 of the Evidence Act for the exclusion of the disputed evidence on the basis that its probative value was substantially outweighed by the danger that it might be unfairly prejudicial to the defendants. That was in issue.
“Probative value” of evidence is defined in Part 1 of the Dictionary to the Evidence Act to mean “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue”.
There was no issue as to the probative value of the evidence, but the defence case was that it was unfairly prejudicial, given the procedural history of these proceedings and the result of forensic decisions which they had earlier made.
The relevant history included that the proceedings were commenced in 2013; the plaintiffs had served s67 notices in 2015, which identified the basis upon which they then relied to establish the admissibility of the disputed evidence; RS Hulme AJ’s decision that admissibility of this evidence could not be determined before trial, given all that lay in issue; orders made as to when evidence had to be served in 2019; Garling J’s August 2020 decision about the plaintiff’s application for leave to serve further evidence, which went to establish the unavailability of child 1 and child 2: Plaintiff A v Bird [2020] NSWSC 1145; as well as the plaintiffs’ foreshadowed application on the first day of the hearing, for leave to serve subpoenas to give evidence on the children, an application which was opposed and finally not made.
The defence case was that in those circumstances, unfair prejudice would result from the admission of the disputed evidence, because of their forensic decision not to investigate child 2’s medical and counselling history, in the way that they had investigated A and B’s history. That decision was the result of the view taken that on the evidence served, the plaintiffs would not be able to establish that child 2 was not available to give evidence. In the result, now to admit the disputed evidence would be unfairly prejudicial.
I concluded that while the Court had a discretion under s135 to refuse to admit the evidence it could not, in the circumstances, be justly exercised.
In coming to that conclusion I raised the possibility of an adjournment to undertake the investigation into the child’s history, but that was opposed by the defence, given its cost and all that would be involved in such an investigation.
It had to be accepted that such an investigation might be both time consuming and costly. But that made it apparent that the forensic decision not to pursue such an investigation in relation to child 2 must have been made long before the proceedings before Garling J in August 2020.
It had been known since 2015 that the plaintiffs sought to rely on the disputed evidence as tendency evidence. The view taken when the plaintiffs’ evidence was served, according to the timetable fixed, was that they would not thereby be able to establish the admissibility of child 2’s disclosures under ss 63 or 64. The result was the decision that no investigation into child 2’s medical and counselling history would be undertaken. But there can then have been no certainty that the disputed evidence would not be admitted at trial. That was a risk which the defendants chose to take.
When the s67 notices were served in 2015, the defendants had been put on notice of the basis on which unavailability of the children was then sought to be established. Given that RS Hulme AJ refused to rule on admissibility; the children’s ages at the time of their disclosures and police interviews; the time likely to elapse before trial; the nature of what it was claimed Mr Bird had done to the children; and what was then relied on to establish unavailability, which included expert opinions, when the decision not to investigate child 2’s history was made, there was still a real possibility that at trial further evidence would be relied on about what had happened to the children after 2015.
That materialised when evidence from the mothers was served in 2019 and when in 2020, Garling J gave leave to lead further evidence. That still left the parties disputing the question of child 2’s unavailability, but the dispute was resolved with the provision of a further medical opinion on the fourth day of the hearing. In this case, such an outcome was always a possibility, as was that the issue of admissibility would be decided against the defendants, if it had to be resolved by the Court.
It follows that in earlier deciding not to investigate child 2’s history, the defendants chose to take the risk that this outcome would not eventuate, even though there was always a real possibility that it would.
In those circumstances the conclusion that the probative value of the disputed evidence about child 2 was substantially outweighed by the danger that it might be unfairly prejudicial to the defendants, could not be accepted.
The procedural history relied on did not establish such prejudice. This was not a case where the plaintiff’s conduct had reduced the defendants’ capacity to undertake the investigations which they complained they had decided not to pursue. That was rather the result of their own forensic decisions, decisions persisted in even though the investigation conducted into the history of B had produced information that at one point she resiled from a serious disclosure she had made about Mr Bird, after which the charges laid against him in relation to her were not pursued.
The defendants complained that an investigation into child 2’s history might have also revealed such relevant information. But nothing which the plaintiffs did prevented, or reduced their capacity to pursue such enquiries and what was learned in the investigation into B can only have underscored the potential importance of an investigation into child 2 being pursued.
As discussed in Dyldam Developments Pty Limited v Jones [2008] NSWCA 56 at [94], “Although the discretionary power is engaged, it may nevertheless be open to the Court to admit the evidence, for example because the party resisting admission has failed to take reasonable steps itself to avoid the prejudice.” Here it would have not only been open, but reasonable for the defendants to investigate child 2’s history and there was nothing which precluded them from doing so.
Unlike Dyldam Developments, here it was not established that the plaintiffs had been derelict in compliance with their obligations. They had issued s67 notices and sought a pre-trial ruling on admissibility, which was resisted. Prior to trial they had served evidence in relation to child 2 and when it was appreciated that further evidence might be required to establish her unavailability, they sought leave to serve further evidence, which was granted.
A psychologist’s report which led to an acceptance that child 2 was not available was later served. Undoubtedly it may have been preferable if the report had been served earlier, but its date and the opinion there expressed which resolved this issue were not revealed to the Court.
That this may have had adverse evidentiary consequences for the defendants was the result of forensic decisions they had earlier made, not the plaintiffs’ dereliction. In the result the defendants’ decisions could not establish that the probative value of the disputed evidence was substantially outweighed by the danger that it might be unfairly prejudicial to them.

Child 1

The position in relation to the disputed evidence about child 1’s disclosures was different.
It was not accepted that it was admissible, there being no evidence from child 1 that she had no memory of what had happened to her at Footprints and no evidence from any medical expert about adverse consequences of calling her to give evidence.
To establish that child 1 was unavailable, the plaintiffs relied on her mother’s evidence, that of their solicitor Ms Buchanan and an opinion of Associate Professor Quadrio, an expert who had provided reports in relation to B.
Child 1 was aged 4 at the time of her first disclosures in 2010 and 5 when last interviewed by police. Whether she still has any memory of what happened is not clear.
Ms Buchanan described the steps taken to call evidence from child 1. Amongst other things her mother initially told Ms Buchanan that she did not wish child 1 to be involved in the proceedings, because there had been long lasting impacts from what had happened and she did not want child 1 traumatised further; that child 1 had mental health issues; and that she was undergoing counselling for trauma, stress, anxiety and depression.
In August 2020 the mother also told Ms Buchanan that child 1’s therapist had advised that if child 1 was given free rein, all she would talk about was what had happened to her at Footprints. Thus she still would not permit child 1 to be involved in any way. This advice suggested that child 1 did have some memory of the events.
On 7 September 2020 child 1’s mother told Ms Buchanan, however, that she had not spoken to child 1 about Footprints in nine years. To the best of her knowledge, child 1 did not remember anything and she did not want child 1’s memories triggered. Accordingly, she would do everything she could to stop child 1 giving evidence; that she would not allow it to happen; and that she would even get arrested.
On 9 September 2020 when asked if child 1 would provide a statement confirming that she did not remember, her mother again said that to the best of her knowledge child 1 did not remember. She also refused to speak to child 1 about this, because she did not want to bring up any memories, or harm her.
In the result the plaintiff’s application that the disputed evidence was admissible was pressed under s63 and paragraph (f) of the definition of unavailability of persons in Pt 2 clause 4 of the Dictionary of the Evidence Act.
On the evidence I was satisfied that child 1 was unavailable.
The only other obvious step which the plaintiffs could have taken to lead evidence from child 1 was to have issued a subpoena, which on the evidence her mother would have resisted. Perhaps on such an application evidence might have been led from child 1’s therapist, to establish the trauma child 1 had suffered and that giving evidence about these matters would further harm her. If such evidence was led, there is a real likelihood that the subpoena would be set aside.
But no subpoena was issued and there was no evidence from the therapist and so what had to be resolved was whether all reasonable steps had been taken by the plaintiffs to secure child 1’s attendance, but without success. The defendants contended that to establish this, the plaintiffs had to either subpoena child 1, or lead expert evidence of the kind provided in relation to child 2.
I was satisfied that this could not be accepted.
The definition of “unavailable” draws a distinction between “reasonable steps to secure attendance” and “reasonable steps to compel attendance”: paragraphs (f) and (g) of the definition. It follows that the legislative scheme does not envisage that to establish that reasonable steps have been taken to secure attendance, that it must be shown that steps to compel attendance have been taken.
In any event, as I have explained, the evidence established that any attempt to compel attendance would also have been resisted.
While the situation which arose in Cox v State of New South Wales (2007) 71 NSWLR 225; [2007] NSWSC 471 was relied on by the plaintiffs, it was not really of assistance in the case of child 1. There an 18 year old was pursuing damages for injuries suffered at school where he was bullied when aged six and seven. Put in issue was whether he was competent to give evidence about various acts, given that he had no memory of them. Simpson J held that he was not available to give evidence about those acts and that what he had told his mother about them at the time, was admissible under s63. Her Honour observed that because he had no memory of the acts in question, he could give no rational reply to any question about them and so he was unavailable to give evidence about them: at [16].
That conclusion was arrived at, however, before s13 was amended in 2009 and the definition of unavailability of persons in clause 4 of the Dictionary to the Evidence Act was amended in 2010, to take their current form.
In construing legislation one relevant consideration is the consequences of the competing interpretations. Especially when two meanings are open, “it is proper to adopt that meaning that will avoid consequences that appear irrational and unjust”: Public Transport Commission (NSW) v J Murray-More (NSW) Pty Ltd (1975) 132 CLR 336 at [350]; [1975] HCA 28.
I consider that in enacting these provisions of the Evidence Act in their present form, the Legislature did not intend that the consequences of the passage of time, which make it impossible or even very difficult for a person to give evidence about what occurred to them when they were very young, would make inadmissible reports which they had made at the time that those events occurred, to their mothers and police.
That is why the objections to the evidence about the other children fell away.
In all of the circumstances established by the evidence I concluded that “all reasonable steps” had been taken to secure child 1’s attendance to give evidence. The plaintiffs could not have compelled child 1 either to be examined by an expert, or to attend to give evidence, without order of the Court. Ms Buchanan’s evidence thus established that the steps taken to pursue the child’s attendance were reasonable. That any other reasonable step could have been pursued, was simply not apparent.
In the result I was satisfied that child 1 was unavailable and the disputed evidence was admitted.

Why the tendency evidence was admissible

The admissibility of Mr Bird’s admissions and the four children’s disclosures as tendency evidence also remained in issue. It was for the following reasons that I concluded that they were admissible.
Section 97(1) of the Evidence Act provides:

97 The tendency rule
(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless—
(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence, and
(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

In submissions it was explained for the plaintiffs that what was sought to be established by the disputed evidence was that Mr Bird had a sexual interest in young children, which he had acted on. The s97 notices specified the acts relied on to establish Mr Bird’s alleged tendency and if there was any deficiency in the notice, the discretion given by s100 of the Evidence Act not to require a notice to be given, should be exercised.
The defence case was that the s97 notices were deficient and what was relied on did not establish the tendency submitted.
Again this issue required consideration of “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue”. As explained in IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 in assessing this it had to be assumed that the evidence would be accepted, that is, that it was both credible and reliable. It also had to be taken at its highest: at [47].
The term “significant probative value” is not defined in the Act. As explained in Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 at [16].

“Tendency evidence will have significant probative value if it could rationally affect the assessment of the probability of the existence of a fact in issue to a significant extent. The trier of fact reasons from satisfaction that a person has a tendency to have a particular state of mind, or to act in a particular way, to the likelihood that the person had the particular state of mind, or acted in the particular way, on the occasion in issue. The capacity of tendency evidence to be influential to proof of an issue on the balance of probability in civil proceedings may differ from the capacity of the same evidence to prove an issue beyond reasonable doubt in criminal proceedings. The starting point in either case requires identifying the tendency and the fact or facts in issue which it is adduced to prove. The facts in issue in a criminal proceeding are those which establish the elements of the offence.”

The alleged tendency was notified by three s97 notices given in 2015 in relatively similar terms. The facts in issue that the tendency was adduced to prove was that Mr Bird had assaulted B and D in the way alleged. Then Regulation 5 of the Evidence Regulation 2015 (NSW) relevantly required that:

5 Notice of tendency evidence
(1) A notice given under section 97 (1) (a) of the Act (a notice of tendency evidence) must be given in accordance with the requirements of this clause.
(2) A notice of tendency evidence must state:
(a) the substance of the evidence to which the notice relates, and
(b) if that evidence consists of, or includes, evidence of the conduct of a person, particulars of:
(i) the date, time, place and circumstances at or in which the conduct occurred, and
(ii) the name of each person who saw, heard or otherwise perceived the conduct, and
(iii) in a civil proceeding—the address of each person so named, so far as it is known to the notifying party.

The tendency notices for A and B, for example, referred at 1.1 to “the tendency contained in Mr Bird’s ERISP”, with the answers he gave which were relied on identified in 1.2. and 1.3, by reference to particular acts:

“1.2 The Plaintiffs rely on the answers to the following questions:
a) 79 and 174 (admission that pats child’s bottom);
b) 82 (admission to cuddling children in his care);
c) 83-102, 272 (admission that girls come up and flash “winkie” and lift up shirts);
d) 106-113 (admission that Child 1 showed her vagina);
e) 175-176 (admission to rubbing bare tummy);
f) 186 (admission to have children sit on his lap);
g) 186,191,195 (admission to rubbing children underneath their shirt);
h) 197 (admission to cuddling children);
i) 211, 218 (admission to giving Child 1 massages and massages lower part of tummy);
j) 221-222 (admission to patting Child 1’s “butt or scrunched her butt” and “squeeze” bottom);
k) 226 (admission to unintentionally touching vagina);
l) 234, 271 (admission to massaging child’s “top, right or her bum and then scrunched her bum”;
m) 243 (admission to putting hand down there [in front of child’s underwear]);
n) 248-261, 274 (admission that nothing wrong with giving a child in his care a massage); and,
o) 302 (admission that rubbed Child 1’s tummy, squeezed her bottom and massaged her).

1.2 Particulars of the conduct are within the knowledge of the first defendant and are provided in the record of interview.
1.3 The conduct is an admission by the first defendant that proves a tendency of the first defendant for inappropriate sexual dealing with children in his care. It demonstrates a tendency to:
a) pat children’s bottoms;
b) cuddle children in his care;
c) permit children to show their chests and vaginas;
d) rub children’s bare stomachs;
e) sit children on his lap;
f) rub children underneath their shirt;
g) massage children and massage the lower part of their stomach;
h) pat, squeeze and “scrunch” children’s bottoms;
i) unintentionally touching child’s vagina; and,
j) put his hand down in front of child’s underwear.”

At 2.1 – 2.2 of this notice it was further notified:

“2.1 The Plaintiff’s give notice under s 97(1)(a) that the Plaintiffs intend to rely on the disclosures made by the six children (to police and their parents) to prove that Mr Bird had a tendency to act in a particular way. The tendency is as to:
a) The location; the sexual abuse occurred at the childcare premises.
b) The timing; the sexual abuse occurred during the course of the business operation.
c) The sexual abuse happened in circumstances where no other adults were present.
d) The sexual abuse happened when Mr Bird was in a supervisory role and the children were in his care.
e) The victims were female and of a similar age.
f) Similarities in the sexual abuse.

2.2 Particulars of the date, time, place and circumstances are set out in documents 3-29. In addition, the indictment presented in the criminal proceedings is relied upon and can be produced upon request.”

Attached to the notice were documents which included the statements made to police by A, C and the mothers of the other children, as well as the children’s police interviews. These documents identified the particular acts which each child had disclosed, including Mr Bird touching some of them on the vagina, massaging and patting them and kissing, including with an open mouth on the lips. There was no issue that such acts could involve inappropriate sexual dealing, apart from one occasion when Mr Bird kissed B on the forehead in A’s presence.
The probative value of the disputed evidence thus lay in its capacity to support the credibility of B and D’s accounts: IMM at [62]. There was no suggestion in this case of any risk of joint concoction.
The acts which D, child 1 and child 2 disclosed had various similarities. They did not disclose kissing or Mr Bird pulling their pants down, acts which B disclosed. All of those acts had to be considered in light of the acts Mr Bird admitted, including touching child 1 and other children in various ways, which included kissing; massaging on the neck, shoulders and back; touching and scrunching their bottoms; touching them on the skin under their clothes, including low on the tummy; and even having had contact, albeit he said inadvertent, with their genitals. There was no issue that some of these acts could have involved inappropriate sexual dealing.
Mr Bird also gave an account of how he dealt generally with children at the centre, in the affectionate way that he described, treating them he said as he would his own grandchildren. His admissions thus not only supported the credibility of the disclosures which D, child 1 and child 2 had made, but also those of B.
It followed that the defence case that the notices given were inadequate could not be accepted. There is no rigid formula specified by the Evidence Act which needs to be adopted, to identify the acts sought to be relied on in a s97 notice: The Queen v Dennis Bauer(a pseudonym) (2018) 266 CLR 56; [2018] HCA 40 at [84].
It is the nature and substance of what is sought to be advanced which must be identified in the notice, by reference to the documents which are sought to be tendered. There can have been no misunderstanding about which parts of Mr Bird’s admissions, or the acts which the children had each disclosed to their mothers and/or police, on which the plaintiffs sought to rely, as establishing his tendency to act in the particular ways notified.
The notice requirement may also be dispensed with under s100 and if that were necessary, given what had been notified, in the circumstances I have discussed I would have exercised that discretion. But I was satisfied that was unnecessary, because the notices given were not inadequate.
In assessing the probative value of the disputed tendency evidence, what had to be considered was the strength of the inferences which could be drawn from the evidence about Mr Bird’s tendency to act in the particular ways notified and the extent to which that tendency increased the likelihood that the alleged assaults of B and D did, or did not occur: Hughes at [41] and JacaraPty Ltd v Perpetual Trustees WA Ltd (2000) 106 FCR 51; [2000] FCA 1886 at [76].
The fact that the acts relied on were not identical was not fatal to the conclusion that the disputed evidence had significant probative value. A tendency expressed with particularity will more likely be significant: Hughes at [64]. But similarity in conduct is not a pre-condition to admission: Hughes [37]-[39].
In assessing the admissibility of the disputed evidence, account also had to be taken of other relevant evidence, which included that of A and C. Contrary to the defence case, that required consideration of evidence which went beyond what was contained in their police statements: Hughes at [40]. A’s evidence that she had seen Mr Bird kiss B on the forehead, although that was also in issue, was thus relevant, as was the evidence about his role at the centre; the access which this gave him to children who attended; and how he conducted himself towards those children.
Mr Bird was aged in his 60’s when he made his admissions. He then disclosed that he was a silent partner in the business who had been working every day at the centre as a volunteer, since it was acquired by Little Pigeon. There he not only had daily access to children, but the opportunity to interact with those who had made the disclosures, both inside the centre and in the yard, where the children said the acts they disclosed had occurred. There was no issue that his work was not then confined only to that of a cook, maintenance man and the person responsible for OHS, but he also played in the yard with children and interacted with them inside, in the various ways he and other witnesses described.
In Bauer it was explained that in the context of a multiple-complainant sexual offences case, assessing whether evidence that the accused has committed a sexual offence against one complainant is significantly probative of the accused having committed a sexual offence against another complainant, involves “the logic of probability reasoning”: at [58].
For evidence of offending against one complainant to be significantly probative of offending against another, there must be some feature which links the offending together. The mere fact that an accused has committed an offence against one complainant is ordinarily not significantly probative of the accused having committed an offence against another complainant, but if there is some common feature “of or about” the offending, “it may demonstrate a tendency to act in a particular way, proof of which increases the likelihood that the account of the offence under consideration is true”: at [58].
Reference was made in Bauer to Hughes to illustrate this. Hughes involved multiple complainants, who each alleged that the accused had committed one or more sexual offences against her when she was a child. But there were significant differences in kind and circumstance between the alleged offences. It was held by majority that taken as a whole “the evidence of each alleged sexual offence and uncharged act demonstrated a common feature that a man of mature years had a sexual interest in female children under 16 years of age and a tendency to act upon it by committing sexual offences against them opportunistically in circumstances which entailed a high risk of detection”. It was concluded that the significance of this common feature was such that the evidence of the offences and uncharged acts relied on had significant probative value, in proof of each other charged offence: Bauer at [59].
In this case the plaintiffs relied on the disputed acts which the four young children, when aged 2, 3 and 4, had disclosed to their mothers and police, together with Mr Bird’s own admissions about his acts towards children at the centre, to establish his tendency to act in the notified ways. That Mr Bird had access to all four children at the centre; that its operation was highly regulated and that its policies did not permit staff to be alone with children, were thus relevant linkages.
There were similarities and differences between what each child had disclosed. But a common feature was that each child’s disclosure involved Mr Bird, a man of mature years, touching them opportunistically in sexually inappropriate ways at times when his actions at this highly regulated workplace entailed a very high risk of detection.
It was these features which I accepted made the disputed evidence significantly probative of Mr Bird having assaulted B and D, in the ways they had disclosed.
In coming to that conclusion it was also relevant that the restriction on the receipt of tendency evidence imposed by s101 in criminal proceedings, when tendency evidence is sought to be adduced about a defendant by the prosecution, does not apply to civil proceedings. Thus the plaintiffs did not need to establish that the probative value of the disputed evidence outweighed the danger of unfair prejudice to the defendants.
That there were issues as to the children’s understanding of the concepts of truth and lies at the time they made their disclosures and that they could not be cross-examined did not detract from the conclusion that having regard to other evidence adduced or to be adduced, the disputed evidence did have significant probative value and was thus admissible as tendency evidence.
Those issues have to be taken into account, however, in resolving whether the plaintiffs have met the onus which falls upon them to establish on the balance of probabilities that the assaults which the children disclosed in fact occurred.

Limitation under s136 of the Evidence Act

It was also the defence case that if admitted, the use to which the tendency evidence could be put should be limited under s136, because there was a danger that admitting the evidence might be unfairly prejudicial to Mr Bird. That submission was not advanced in relation to his own admissions.
Section 136 provides:

136 General discretion to limit use of evidence
The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might—
(a) be unfairly prejudicial to a party, or
(b) be misleading or confusing.

The unfair prejudice pointed to was the defendants’ inability to cross-examine the children.
The section is not concerned with prejudice that results from the receipt of evidence tending to establish the case of the party tendering it. It is rather concerned with prejudice which is unfair to the other party, because there is a real risk that the evidence will be misused in some unfair way: Ainsworth v Burden [2005] NSWCA 174 at [99].
What the suggested unfair prejudice of the evidence was is not entirely clear to me.
In Ordukaya v Hicks [2000] NSWCA 180, evidence had also been admitted under s64 and the prejudice which resulted from the inability to cross examine, thus also arose to be considered. It was held that the resulting prejudice was not “unfair to the point of outweighing material of high probative value” and that it was unnecessary to decide whether exclusion was confined to situations where the evidence had been obtained by unfair means or had “a tendency wrongly to excite the fact finder’s emotions and is of little probative value” at [39].
An example of where the discretion to limit use of a document under s136 was exercised as to belief about the matters recorded is provided in White Constructions (ACT) Pty Limited (In liq) v White [2005] NSWCA 173. There it was found to be justified for reasons which included that the identity of the person who wrote the note was not proved; there was no evidence about the source of the information contained in the note; it was not clear whether the note recorded facts or opinions; there was no evidence of relevant personal knowledge of the matters contained in the note; and no evidence that the person was not available to be called and no explanation tendered for not calling him: at [239]-[240].
The circumstances here were quite different.
There is no question about who made the disclosures and there is not only evidence of what the children told their mothers and police, but an audio-visual recording of their police statements. There is also no issue about why the children, who were very young when they made their disclosures, are not available. Their disclosures concern things which they each experienced when very young and were made in relatively close proximity to the events, but it seems that only one of them may have any memory still of what happened to them.
There is a balancing act involved in determining the use which can be made of the evidence, which requires consideration of things like the character of the evidence involved and the nature or strength of the potential prejudice to the defendant: R v Suteski (2002) 56 NSWLR 182; [2002] NSWCCA 509 at [127].
Undoubtedly there was a resulting prejudice for the defendants from the admission of the disputed evidence. But the bare fact that the children could not be cross examined about their disclosures did not establish unfair prejudice, especially given that their disclosures will have to be assessed in the light of the admissions which Mr Bird himself made at the time.
The question of what weight should be given to the disclosures will have to be determined in light of all the relevant evidence. That includes not only Mr Bird’s admissions, but that B later told her mother and a counsellor after he was charged that what she had said beforehand about him pulling her pants down, was untrue. Conclusions will also have to be reached as to what weight the tendency evidence should be given, given that the disclosures were made by such young children, who could not be cross-examined.
But given that this was a trial before a judge, rather than a jury, I was unable to reach the conclusion that there was a danger of unfair prejudice which would result from the admission of the evidence which required, as a matter of justice, that an order be made limiting the use of the evidence in the way that the defendants sought.

Credibility and reliability

In issue was the credibility and reliability of A, C, Mr Bird and Ms Clancy, as well as the reliability of the children’s disclosures, which I will deal with separately.
I am satisfied that there were issues as to the reliability of parts of the evidence of A, Mr Bird and Ms Clancy and as to the credibility of aspects of the evidence of both Mr Bird and Ms Clancy.
In their case it was relevant to take into account that the evidence established that Mr Bird, with the assistance of Ms Clancy, breached an undertaking not to dissipate his assets, pending resolution of these proceedings. It appears that proceeds of the sale of his house have been used to fund the defence.

Plaintiff A

A made her statement in March 2019 and gave evidence in September 2020, long after the events in 2009, 2010 and 2011 which she described. She is highly educated, working when B attended Footprints as a youth worker. She was then a mandatory notifier of suspected child abuse and trained in its detection, but there is no suggestion that she ever made a notification in relation to Footprints.
Some years before these events A had been treated for mental health issues. After B’s disclosures she came to believe that Mr Bird had assaulted B and afterwards suffered symptoms which required treatment. The psychiatric experts Dr Allnut and Dr Smith agreed that she had suffered a psychiatric injury, but could not agree what the nature of her condition was, either before or after these events, or her prognosis.
Even before B made her disclosures A had a concern about B’s welfare at Footprints. She gave written instructions in 2009 that male employees were not to change her nappy, explaining “I hope you understand that as a youth worker my education and experience tends to make me extra cautious.”
In 2009 A believed that it was inappropriate for Mr Bird to have kissed B on the forehead in greeting when she dropped her off at the Centre, about which she raised her concerns with Ms Clancy. Whether Mr Bird kissed B that day was in issue.
A also considered it inappropriate for Mr Bird to be sitting in the playground with children in his lap, or bouncing them on a beach ball, as she had observed repeatedly, but she did not raise any concerns about these activities.
In cross-examination A was a careful witness who could not recall a great deal about some matters which she was asked about, but who accepted that contemporaneous records accurately reflected things which she had said and done at the time.
A maintained in cross-examination that her statement recorded all of the occasions she had discussed Mr Bird with B, but she there made no reference to what B told her and a counsellor, Ms Ly, in September 2011 about having made up what she had earlier told A about Mr Bird having pulled her pants down.

In cross-examination A initially said she could not recall this, but agreed that she did not believe what B had said. She had also not believed B earlier, before Mr Bird was charged, when B said that it was Nat, a female childcare worker at Footprints who became her baby sitter, who had kissed her with an open mouth. Before this B had repeatedly said that Mr Bird had ‘spicy lips’. Later B said it was Mr Bird who had kissed her like this.
When she gave her evidence A still believed that Mr Bird had both kissed B and pulled her pants down.
It must be accepted that hearing that Mr Bird had been charged with offences against other children was distressing for A and that understandably, she then had real concerns that B may also have been assaulted, given what she had long been saying about Mr Bird.
In her cross-examination A said that immediately upon hearing of the charges she believed them to be true, because of her view about the honesty of children who made such complaints and because of the police decision to charge Mr Bird.
This caused A to accept the opportunity offered by police to have B interviewed by a counsellor. A was not satisfied with the counsellor’s advice that B had not said anything which raised any concern and she pursued her concerns in discussions with B.
B later made disclosures to A about Mr Bird having kissed her and on one occasion pulling her pants down, after which charges were also laid against him. This was also undoubtedly very distressing for A. A described later being “broken” by the DPP’s decision not to pursue criminal charges against Mr Bird. This followed B having told A and Ms Ly that Mr Bird had not pulled her pants down, as she had said before he was charged, because she wanted to trick C, and B being reinterviewed by police. In that interview B said he had only kissed her once. A also did not believe what B then said.
A had a sad history of abuse by her former partner and had suffered some mental health problems for which she had received various treatment, before these events. In her cross-examination A drew a distinction between being diagnosed by a psychiatrist to be suffering things like anxiety and depression and in the past having accepted treatment prescribed by her GP for symptoms involving anxiety and depression, for which she had sought treatment at times.
A’s case was that her health, ability to work and family life were also adversely affected by what Mr Bird had done to B. A’s evidence was that in the months after the DPP’s decision she began abusing drugs and alcohol to the point that there was strain on her marriage; she went to Ms Clancy’s home and caused damage there, which resulted in her being charged with a criminal offence, for which no conviction was finally entered; and she seriously injured herself on one occasion.
While A was able to pursue higher education at times after B’s disclosures, she was not able to complete her Master’s Degree. A also commenced these proceedings and appeared before the Royal Commission into Institutional Responses to Child Sexual Abuse.
That A’s prior history, as well as B’s disclosures, had an impact on her response to learning that Mr Bird had been charged; the disclosures B later made to her; her withdrawal of one of them; and the DPP’s decision was thus clearly possible. As was that her memory of some of these events had been affected.
In light of all of this evidence I am satisfied that there is a question as to the reliability of aspects of A’s evidence. This requires that her evidence about the events of 2010 and 2011 and their consequences; what she did and why; and what she later told psychiatrists who examined her, to be approached with some care.

Plaintiff C

There can also be no question as to how distressing C found the disclosures which her daughter D made to her about Mr Bird; the police investigation which led to her decision not to pursue charges against him, because of its impact on D; and later, the DPP’s decision not to pursue the criminal charges which were laid against Mr Bird.
At the time C took the view that it would be too detrimental to D to be involved in the pursuit of criminal charges against Mr Bird, given how adversely she had been affected.
C also required treatment for health issues which she suffered after D’s disclosures and even came to the conclusion that she had to leave her job. She agreed in cross-examination not only that her ex-partner disagreed with her response and considered that she had become obsessed with what had happened to D, but that she had in fact become obsessed.
C made her police statements in February and April of 2011 and her statement for these proceedings in March 2019. In March 2016 C had also given evidence before the Royal Commission into Institutional Responses to Child Sexual Abuse. What she then said was not in evidence, but she described this to have been a harrowing experience, involving months of preparation.
In cross-examination C gave an account of some disclosures later made to her by D, which she had not referred to in her statement or her police statements.
C said that she had relied on her solicitor to help her ensure that the important matters were contained in her statement and that the other disclosures she had referred to had been contained in her police statement. In fact she had dealt with C’s ongoing disclosures, which she described as a drip feed of “pieces of a horrifying puzzle”, in a letter attached to her April 2011 police statement.
In the result I did not have the types of reservations about the reliability of C’s evidence that I did about that of other witnesses.

Mr Bird

Having voluntarily given police a wide-ranging interview after he was arrested and charged with offences in relation to child 1, in which Mr Bird made numerous admissions contrary to his interests, given the charges laid against him, in these proceedings he swore a statement in which he simply denied the alleged assaults. There he gave no explanation at all of the contradictory and damaging admissions which he had earlier made.
Mr Bird told police about how he had acted towards the children, as he explained, as he would act towards his own grandchildren in ways that he saw no difficulty with at all.
His admissions included repeated descriptions about the various inappropriate ways in which he had touched children while working at the centre, including child 1. They included squeezing them on the bum in a manner which he said had probably involved an assault and which teachers were not permitted to engage in.
In cross-examination Mr Bird said repeatedly that the various acts which he had so admitted were untrue. Mr Bird then said that he understood that it was wrong to kiss children or touch them in the ways he had described in his police statement. But he could not explain at all why he had repeatedly volunteered to police acts which he apparently had never engaged in.
Mr Bird’s evidence included that he initially did not understand what he had been charged with, because he had not been given, or had not heard the name of the alleged victim on arrest; that he was in shock; and that he was confused. The interview was recorded. Contrary to his evidence, from what he said early in the interview it is apparent that he was aware from the outset that the charges concerned child 1.
There was no issue about the way that the interview was conducted. The questioning seemed entirely fair to Mr Bird. When being questioned about his conduct towards child 1 he evinced no confusion or lack of understanding of why he was being asked about her.
Mr Bird also did not seem to be shocked, confused or even much concerned about what he was being asked or had volunteered, until he was asked about having touched child 1 on the genitals.
It is thus impossible to accept the explanations Mr Bird gave in cross-examination for his admissions.
It is relevant that then he was vehement not only in his denials of having done what the children had disclosed, but also of the acts he had admitted. For example he then denied that he had touched child 1 “on the butt”. But when asked by police about her disclosure that he had “massaged her wee wee”, it was Mr Bird who had volunteered:

"No, no, that's not - I've maybe patted her butt or scrunched her butt, you know, like going clunk, clunk, but no"?

Mr Bird’s evidence was that while he could remember saying something to that effect to the police, he had no idea why he said it and he was not referring to patting child 1, or touching her below the waistline, or on her bottom, but was maybe referring to her back. He also could not remember having also said that he had massaged her “to the top right of her bum, and then scrunched her butt” and explained that he must then have been in a state of shock.
Mr Bird’s evidence was also that irrespective of having told police that he had "massaged her bum then scrunched her butt", he had not done that. But when asked whether what he had said in the police interview was untrue, his answer was “Possible”. His evidence was also:

“Q. Well, if you've said, “I massaged her, um, you know, you massage, you don't - maybe to the top right, her bum, and then scrunched her butt”, that statement that you made to the police interview, you say now, was untrue?
A. Well, I can't remember saying it. I was just in a state of shock. Yeah. I was trying to explain the unexplainable.
Q. Why would being in a state of shock produce the result that you talk about massaging a young child's bum or scrunching her butt? What would have being in a state of shock have to do with saying that?
A. I have no idea.
Q. Well, why did you say it?
A. I don't know.
Q. Perhaps you said it because it was true?
A. No, it was not.
Q. Being in a state of shock wouldn't prevent you from describing an activity such as massaging, would it?
A. I don't know.
Q. What was it about being in a state of shock which would affect the truth or otherwise of what you were saying to the police?
A. I have no idea.
…..
Q. Yes, I don't want you to be at any disadvantage. You said a little while ago, when I asked you why you gave that answer, you said it was because you may have been in a state of shock. What I'm trying to understand from you is what is it about being in a state of shock that makes you say things that are untrue?
A. I don't know. I don't know. No idea.
Q. Would it be the case that what you actually said was true, but you now wish to resile from it because you now appreciate the significance of having said, in the circumstances, that you'd massaged this child in the lower part of her body?
A. I've - I touched her back, but you're talking about her bottom.
Q. That's what you said. You said you massaged her bum and then scrunched her butt?
A. Yes, but it didn't happen.”

Later in the police interview after he had been asked about having touched child 1’s vagina, which he denied, Mr Bird again volunteered that he had squeezed her butt. When asked about this he said that was “something I wouldn’t do” and that while he had said it, “there’s no meaning to it”.
What Mr Bird admitted to police must be considered together with the evidence of other witnesses and documents which contradicted aspects of his evidence, including as to his role at the centre, the work which he performed there and the access to and interactions which he had with children there.
I am satisfied that Mr Bird’s evidence that he did not tell the truth in the answers which he gave on interview in 2010 cannot be accepted. I also do not accept that he did not initially understand that he was being asked, or that he was then confused or in a state of shock. Mr Bird’s evidence about what he told police was just implausible and must be rejected.
As I observed during the course of the final submissions advanced for Mr Bird, it was extraordinary that someone in his position, obviously an intelligent, capable person, given his role at the centre, what he said to police, how he conducted himself in the witness box and how he was able to understand and answer questions both on police interview and in cross-examination, would tell police a whole lot of lies about things which were clearly very important, given the offences with which he had been charged.
I have concluded that Mr Bird gave police an accurate account of his conduct which at the time he considered to have been entirely appropriate because, as he explained, he was treating children at the centre as if they were his grandchildren. He then said that the acts which he described reflected what he did to his grandkids and he did not then think, for example, that a scrunch on the backside was “a bad thing”.
But in these proceedings it was Mr Bird’s evidence that at the time that he made his admissions he considered that there was something wrong with touching a child on the buttocks. He also agreed that this was something that you wouldn’t do, because it was inappropriate, very bad, indecent and an affront to the child’s dignity, uncivilised, disgraceful and something to be ashamed of.
This evidence also cannot be accepted. That was plainly not what Mr Bird believed when he was working at the centre, or at the time of his admissions in 2010 and very much doubt that was what Mr Bird in fact believed.
I am thus satisfied that considerable parts of Mr Bird’s evidence were not honestly given. In the result, overall, his evidence had to be approached with very considerable caution.
Mr Bird’s interests and those of Ms Clancy and Little Pigeon were not entirely identical and so there was also an issue as to whose evidence would be preferred, in the case of conflict between he and Ms Clancy.
This was difficult to resolve, given that I am not satisfied that either of them were entirely honest witnesses. I will thus indicate whose evidence I have preferred on particular matters.

Ms Clancy

Aspects of Ms Clancy’s evidence were also contradicted by other evidence.
It is understandable that Ms Clancy was distressed by child 1’s disclosures about her father. She was overseas at the time that Mr Bird was arrested. In her later communications to parents about his arrest she referred to her belief that this was the result of a vendetta against her and Mr Bird. She also told police about this and agreed that was her belief in 2010, but she did not deal with this in her 2019 or 2020 statements.
The existence of such a vendetta or how it might have led to child 1’s disclosures was not put to child 1’s mother in cross-examination. What child 1’s mother was asked about were issues which had arisen about leaving her other children in the car when she dropped child 1 off. This had presumably resulted in the Department of Community Services, DOCS, notification Ms Clancy told police about, as well as an issue about child 1’s enrolment the following year.
When cross examined about what she said when interviewed by police after Mr Bird’s arrest, Ms Clancy agreed that while she told police that she believed that child 1’s disclosure was “a vendetta for a DOCS complaint about the family”, she also then said that “my biggest fear is that this little girl has suffered this but the wrong person has been blamed”. Again Ms Clancy did not deal with this in her statements in these proceedings.
Ms Clancy also did not there deal with Mr Bird’s police admissions, but she was cross examined about them. Her answers established that she considered some of the acts he had admitted to have been so inappropriate, that they should have been reported to her and to DOCS, given the requirements of the regulatory scheme under which the centre operated.
When cross examined Ms Clancy also initially agreed that if a child made an allegation such as child 1 had made, she would accept that the child was telling the truth and would want it investigated. That was consistent with what she had told police in 2010 about child 1’s disclosure, that she believed what the child had disclosed, had actually happened to her. What she did not then believe was that it could have been Mr Bird who had so abused her.
Ms Clancy also agreed that if more children made allegations of inappropriate behaviour, more investigation would be required.
After an adjournment to deal with a relevance objection to a further question about believing children who made such disclosures, Ms Clancy’s evidence changed. Then she said:

“Q. Mrs Clancy, just so you know where I’m asking you to go, you accept that if one three or four-year-old child makes a disclosure of being, in effect, sexually assaulted, that is a matter that you would take very seriously?
A. Yes.
Q. And you would accept that it was probably true?
A. No.
Q. If a second child made the same or a very similar allegation against the same person, would that make you more or less inclined to agree that the first allegation was probably true?
A. It wouldn’t affect it.
Q. If a third child made a disclosure along the same lines as the first child and the second child of a similar kind of sexual assault, would that make you more inclined to believe that the first allegation or disclosure was true?
A. No.
Q. If a fourth child made a similar disclosure in relation to a sexual assault - and we, of course, are talking about the same person, the same assailant in in such case - would that make you more inclined to think that the first disclosure was true?
A. No.
Q. Can you tell me why not?
A. You need an investigation.
Q. No, I’m not talking about investigations. You said, no, that if you got four relatively consistent disclosures by three-year-old children that they had been sexually assaulted by the one man, you said that that wouldn’t affect your consideration of whether the first allegation was true or not--
A. No.
Q. --I want to know why it wouldn’t affect it?
A. I don’t - there’s - that’s why we’re here, aren’t we? It’s a huge - it’s a huge area.
Q. At what stage would you have to come before you would come to the conclusion that the first allegation was probably true? Would you need three, four, five, six, maybe 20 or 30 children, before you would come to that view in your own mind or you would never come to that view?
A. No, I would never come to that view.
Q. Even if you had 30 children all sexually assaulted by the same man, in similar circumstances, that would never persuade you that the first disclosure was probably true?
A. No.
Q. That’s just nonsense, isn’t it?
A. No.
Q. Are you just saying whatever you think might assist in relation to your support of your father’s position in this case?
A. No.
Q. I suggest to you that’s exactly what you are doing?
A. No.”

I am satisfied that this evidence was just not honestly given.
What Ms Clancy said in cross-examination about some other matters also established that other answers which she gave were not given entirely in accordance with the requirements of her oath.
For example, Ms Clancy initially said in cross-examination that the centre had an authorised supervisor from the time she acquired the centre in late 2008. That was a regulatory requirement and relevant to what lay in issue. But it emerged from documents Ms Clancy was shown that her evidence was untrue. The former owner and authorised supervisor of the centre, Ms Hillman, resigned from that position soon after she sold the centre to Little Pigeon.
Also contrary to Ms Clancy’s evidence, other documents showed that Ms Kasim did not become the authorised supervisor in January 2009. That did not occur until October 2010, after approval of her appointment in May 2010. In fact the application for approval of Ms Kasim’s appointment to that position was only made in May 2009 and approval was delayed, because of problems with her qualifications.
This put in context Ms Clancy’s evidence that while the centre had no authorised supervisor, it was she who performed the authorised supervisor’s functions, as well as the functions of the licensee. I also was not satisfied that this evidence was true.

B’s psychiatric injury

B received counselling from a psychologist at the Sydney Children’s Hospital from age 5 to 8. Her records are in evidence.
Associate Professor Quadrio provided a June 2014 report, having seen B with her parents and reviewed documents now in evidence.
Then B reported still going to her parents’ bed 3 nights a week, but her nightmares and phobias having improved, and that she was no longer receiving counselling. A then reported that most of B’s symptoms had settled and that her behaviour was more manageable, although at times she still had problems coping, had meltdowns on which she got physically violent and extremely volatile moods. A’s husband gave a similar report.
B was highly anxious and so Associate Professor Quadrio did not see her separately to ask her about her disclosures. She considered that two years of preparation for the court hearing had prolonged her trauma. Accounts of her behaviour were typical of what is observed in children who have suffered sexual abuse.
She considered that B’s behavioural responses after her disclosures were entirely in keeping with the sequelae of sexual trauma. On balance Associate Professor Quadrio was satisfied that she had been sexually assaulted.
Associate Professor Quadrio considered that B was still displaying symptoms of the post traumatic stress disorder which she had suffered, as well as separation and phobic anxiety and depression. Because the process of disclosure and litigation often creates further trauma for such children, she considered that it was difficult to estimate how long B’s recovery might take.
There were positive prognostic factors such as B’s intelligence and supportive family, which meant she could be resilient, but there were risks that she would experience difficulties at critical developmental stages such as pregnancy, childbirth and when children were at a similar age to when she had been abused. The trauma caused to her family was also relevant to her prognosis.
Associate Professor Quadrio thus considered it to be important for access to treatment to continue during B’s formative years and during major milestones in her life, by psychologists and/or psychiatrists. If she suffered further symptoms or a relapse, she could require intensive therapy, as well as medication. Despite B’s good progress, including at school, she remained vulnerable to relapse.
Dr Kasinathan saw B in 2019 in the presence of her parents. He was given a history which accorded with the evidence and that which Associate Professor Quadrio was given, including as to her behaviours after her disclosures. By then B could not remember much of what her parents described and had no memory of Mr Bird, but she could remember massive tantrums when she would punch and kick holes in walls, and nightmares, which still sometimes occurred. B described her mood then to be good, with considerable academic achievement and a happy personal life.
Dr Kasinathan’s opinion was also that B had suffered post traumatic stress disorder, which was then in full remission. Her symptoms, which included anxiety and depressive symptoms, had completely resolved in the preceding two years. He considered that but for Mr Bird’s alleged inappropriate behaviour, she would not have developed post traumatic stress disorder, having had no pre-existing psychiatric condition.
Dr Kasinathan considered that B’s prognosis was highly favourable, there being no evidence of current or recent psychiatric impairment. She required no further treatment in the foreseeable future and there were no foreseeable mental health restrictions or limitations.
There was no challenge to this evidence.
On all of the evidence I am satisfied that B did suffer post traumatic stress disorder as the result of Mr Bird’s assaults, from which she has largely recovered. But the injury which Mr Bird caused has left her vulnerable to relapse.
No-one can predict how she might be affected by experiences which life will inevitably bring her, but her injury has made B vulnerable in a way that did not exist before Mr Bird assaulted her, which must be taken into account when damages are assessed.

Non-economic loss

$400,000 was claimed. Mr Bird contended $25,000 would be awarded and the other defendants $50,000.
Common law damages for intentional torts take into account the harm which the plaintiff has suffered as the result of the defendants’ conduct: Varmedja v Varmedja [2008] NSWCA 177 at [154]. They thus take into account pain and suffering: at [157].
Compensatory aggravated damages may also be awarded, if not included in the ordinary compensatory damages ordered: Lamb v Cotogno (1987) 164 CLR 1 at 8; [1987] HCA 47 and State of New South Wales v Riley (2003) 57 NSWLR 496; [2003] NSWCA 208 at [131]. In contrast to exemplary damages, they are awarded for injury to the plaintiffs feelings caused by insult, humiliation and the like.
The defence case was that the award, if there was one, would necessarily be very modest, given B’s full remission for at least the last two years, with no foreseeable mental health restrictions or limitations.
The plaintiffs’ case was that Mr Bird’s assaults on this very young child had resulted in both immediate and ongoing consequences, unpredictably over the course of her life. That her earliest sexual experiences had been at such a young age, at the hands of a 64 year-old man in a childcare centre, was submitted to have involved a very serious interference with the integrity of this young child, which could have serous ongoing consequences for her, which thus required a substantial award of compensatory damages.
I am satisfied that the defence case cannot be accepted. It pays insufficient attention to the horrible consequences of Mr Bird’s acts which B, while still a young child, had to endure for years afterwards, pain and suffering which she would not have had to experience, had he not injured her as he did.
B’s fears and anger, self-harm and violence towards others and her own possessions, her ongoing nightmares and how this all affected her relationships with other people, serious problems which persisted for years after Mr Bird’s abuse and which have left her vulnerable to further problems in the future, must result in a considerably larger damages award than the defendants conceded.
The resilience which has led B to the recovery Dr Kasinathan discussed was fortunate and must be taken into account. Had that not occurred the award of damages would have had to be greater. But account must also be taken of the risk which B continues to be exposed to during the remainder of her life, as the result of what Mr Bird did to her.
I am also satisfied that like in Gersbach the circumstances are such that B’s award must include a component of aggravated damages: Lamb at [8]. In that case $300,000 would have been awarded in circumstances of considerably graver sexual assault and where the injury suffered continued. But the circumstances here are different and the conclusions reached in Gersbach do not impose a limit on the damages which may be awarded in other cases.
It may not be overlooked that B is being compensated for the serious injury she was caused when such a young child while in the defendants’ care and control, at the childcare centre which they operated, where she should have been safe.
Having taken into account all of the evidence which I have discussed, I have concluded that B must be awarded damages of $270,000.

Exemplary Damages

$200,000 was claimed while Mr Bird’s case was that there would be no such damages and on Little Pigeon and Ms Clancy’s case, if there was an award it would not be more than the $50,000 discussed in Gersbach.
It was submitted for Mr Bird that exemplary damages would not be awarded in a case such as this, given that it was very young children who he had assaulted, who had no further recollection of the trauma. No authority had been found to support that submission. I am satisfied that it must be rejected, inconsistent as it is with what was decided in Gray.
The plaintiff’s case was advanced on the basis that protection of the most vulnerable at a child care centre required the Court to take a very strong view about tortious conduct by those working in, or responsible for looking after such very young children in such centres. That was particularly because in our society, large numbers of such children are now necessarily cared for in those centres.
It was also submitted that in a civilised society such as ours, the most important thing that the society can do is to protect its young children. Here an unqualified, untrained, unsupervised person had been put in a position where he was able to sexually assault little girls, while the supervisor spent her time in an office and no proper supervision of this person had been put in place.
A more important case for the Court to express its own view about such conduct was argued to be difficult to imagine. Thus the quantum of the damages awarded should send a “loud and clear” message about the standard of care expected by the law, when such young children are being cared for.
I am satisfied that B must be awarded exemplary damages, both in order to punish Mr Bird and to deter others, he not having been dealt with under the criminal law.
As I said at the time that Mr Bird’s submission was made, B’s youth when he assaulted her has resulted in her no longer having had a memory of what she disclosed. That is fortunate, but cannot place his conduct outside the class of cases in which exemplary damages ought to be awarded.
As discussed in Gray, such damages are awarded to punish wrongdoers and to deter others from such conscious wrongdoing, in contumelious disregard of other’s rights. B’s youth and how vulnerable it made her to Mr Bird’s predatory conduct, is precisely why he must be punished and others deterred.
The way in which Mr Bird abused his position of trust when he repeatedly assaulted her, in my view put that beyond argument.
In arriving at a figure I accept that regard must be paid to what was decided in Gersbach, notwithstanding that the circumstances there were considerably different, the allegations involving ongoing sexual abuse of a daughter by a father.
Gray requires both that the damages awarded punish Mr Bird and deter others from conduct of the kind which he pursued. Thus relevant is not only what Mr Bird did to B, but also how he abused the position of authority and trust in which he knew he had been placed by Little Pigeon and Ms Clancy, when they gave him access to B, while operating Footprints for their own profit.
In the pursuit of their profit they did not ensure that the regulatory regime was complied with, that the child protection policy was operating and Mr Bird was supervised as he needed to be, given the age of the children he was working with. Mr Bird was well aware of this and so was able to exploit their neglect, in order to assault B in the ways I have discussed.
It is he who must be punished for what he so did and others like him who must be dissuaded from so pursuing such opportunistic, damaging behaviour.
That is because there are many others now in Mr Bird’s position, given access to the youngest and most vulnerable members of our community, while they are being cared for in centres such as Footprints, where their parents must leave them, in order to work for the overall economic good of our society.
Deterrence is thus a very important aspect of this head of damage. That supports the conclusion that a substantial award of exemplary damages is required.
I have thus concluded that an amount of $70,000 should be awarded.

Future out of pocket expenses, Economic Loss & Superannuation

$30,000 was claimed for future out of pocket expenses and $200,000 for future economic loss and superannuation, by way of a buffer. Mr Bird contended that nothing would be awarded on these heads and the other defendants contended $25,000 would be awarded for future economic loss and out of pocket expenses.
The defence case was that these damages would be modest, because while it could be concluded that there may have been some diminution in B’s earning capacity, it had not presently resulted in any financial loss. Whether it would or might give rise to any loss in the future was also very unpredictable.
The plaintiffs’ case was that a buffer had to be awarded, taking into account that B was a child and that what the future would hold for her was not known. That buffer should account for the risk which the psychiatrists discussed might arise over the course of a long working life ahead of her, B now being aged some 13 years that her injury would at times deteriorate.
Given the nature of the injury which B suffered, her resulting susceptibility to further injury and the retriggering of her condition during the milestones in her life, I am satisfied that there must be buffers awarded for these heads of damage of $25,0000 for future out of pocket expenses and $100,000 for future economic loss and superannuation.

C’s damages

In total $824,732.80 plus costs, disbursements and interest was claimed. Mr Bird’s case was that no more than $88,014.10 would be awarded and the other defendants no more than $113,389.10.

C’s psychiatric injury

The evidence well established C’s devastation when D made her disclosures as she did, over time and the injury which resulted. C described how in 2011 she met a counsellor alone for some 8 months, so that she could understand what D was going through, before D had face to face counselling, in her presence.
Before this C had worked as a project officer and fundraising executive, before being promoted to the position of Project Manager, Major Gifts at a charity. She was working 4 days a week at the time of D’s disclosures. Afterwards she found it difficult to maintain her regular hours and resigned from her position after Mr Bird’s charges were dropped in 2012.
In 2012 C began receiving trauma therapy herself from a psychologist, which continued into 2013, as well as regularly seeing her GP for issues associated with the distress which she was experiencing. C agreed that after the no bill decision, she was angry, distressed and significantly emotionally affected.
After she resigned C was off work for some 6 months and then undertook some sporadic casual projects, before returning to work in August 2013, 20-30 hours per week. At times, however, she required periods of extended leave, or leave without pay, due to mental health issues, including before and after contributing to the Royal Commission into Institutional Responses to Child Sexual Abuse, associated with the trauma of dealing with that process. At that time D’s condition also deteriorated.
In 2014 C was referred to another psychologist, who treated her for a further 4 months. She also undertook physio sessions for about a year to help her manage pain and stress, which ceased because she could no longer afford that treatment.
In 2016 C began casual work as a consultant and in January she took a more permanent 4 day a week position as a senior consultant. She works with families dealing with trauma, which sometimes triggers her anxiety and trauma response. But she loves the work and has a lot of experience, which makes moving out of the industry difficult, as it could set her back even further
C was convinced that but for D’s abuse, and the setbacks which she suffered as a result, her income would now be significantly higher, because her career trajectory would not have been set back as it has been.
C was also adversely affected by her involvement in the Royal Commission, the trauma having then again been retriggered for her.
C had again been taking anti-anxiety medication since January of this year. But she said that she could not afford to pursue the treatment Dr Allnut had suggested she required.
Dr Allnut and Dr Smith both examined C, produced reports, discussed the differences in their opinions and produced a joint report, about which they gave concurrent evidence.
Dr Allnut and Dr Smith agreed that C did not have any pre-existing history of mental illness and that it was as the result of D’s disclosures and the ensuing events which I have discussed, that C developed a disorder.
Dr Allnut was of the opinion that C was suffering a chronic adjustment disorder and Dr Smith that she had an adjustment disorder with mixed depression and anxious mood. They agreed she also had an alcohol abuse disorder, which Dr Allnut observed she had used to treat her symptoms.
They did not identify other significant events or pre-existing conditions which had impacted the development of C’s disorders, although Dr Allnut observed that she had experienced financial stressors, given her multiple periods off work. Dr Smith observed that the litigation had been an ongoing stressor, as had the need to deal with matters of ongoing concern, which had a continuing effect upon her.
Dr Smith was more positive about C’s prognosis than Dr Allnut, who considered it guarded for the foreseeable future. Dr Smith considered it to be good, particularly with early resolution of the litigation.

Non-economic loss

$250,000 was claimed, again then about 38% of a most extreme case under the Civil Liability Act. Mr Bird contended $25,000 would be awarded and the other defendants 20% of a most extreme case ($23,000) or $25,000 general damages.
In C’s case I have concluded, given all that I have discussed, including as to her ongoing condition and prognosis, which I consider must be somewhat guarded, given all that she has suffered and what might retrigger her injury; her pursuit of a return to full time employment; and her ongoing vulnerability to exacerbation of her injury from her work, that her non-economic loss must be assessed at $96,000. That is 28% of a most extreme case under the Civil Liability Act.

Exemplary Damages

$100,000 was claimed and the defendants contended that nothing would be awarded.
For similar reasons to those I have given in relation to A, I am satisfied that there can be no award of exemplary damages in C’s case, because D must be awarded exemplary damages.

Past out of pocket expenses

$6,014.10 was finally agreed.

Future out of pocket expenses

$52,828.61 was claimed for psychologists and psychiatrists for 12 months and a buffer of $10,000 on a needs basis for life; quarterly GP consultations for life; and medication for 5 years. Mr Bird contended for $2,250 and the other defendants in the alternative for $9,330 based on Dr Smith’s opinions.
I am satisfied that the amounts claimed for psychologists, psychiatrists and medication must be awarded, because of the nature of C’s injury, the history of her required past treatment and the likelihood that she will have ongoing treatment needs. The award for GP consultations should be restricted to 5 years, in the same way as for medication.
I do not consider that there should be any other discounts, given the likelihood that C will have ongoing treatment needs which she will pursue, which she would not have required, but for her injury.

Past Economic Loss

$225,333.50 was claimed on the basis of an unchallenged forensic accountant’s report, or in the alternative a buffer. Mr Bird contended for a $50,000 buffer and the other defendants for a $75,000 buffer.
The $75,000 figure was submitted to reflect the impact of a number of other stressors on C, unrelated to B, such as the breakup of her relationships and problems with her son.
I do not accept that this is established by the evidence, which suggests that the interruptions to C’s career were the result of her reaction to D’s disclosures and their aftermath and the injury which she suffered as a result, not the other matters relied on by the defendants. I am satisfied that but for her injury, C would not have suffered the losses she established.

Mr Bird’s figure was calculated on the basis that up until the 2013 tax year when C’s net income dropped to $13,905, there had been no loss and that her earnings in the years that followed were lower than her 2012 earnings of almost $50,000, for 5 years until 2018, when they became $62,503. That was said to have resulted in total loss of earnings over 5 years, of $75,209, that being the difference between an assumed total income of $250,000 over that period, less what C actually earned, in total $174,791.
Thus the $75,209 figure, it was submitted, should form the basis of the calculation of a buffer. It was accepted, however that the calculation proceeded on the assumption that between 2012 and 2017, C’s income would not have increased beyond $50,000. It also assumed that without the career interruptions she had repeatedly suffered, C would have earned no more than she actually earned in the years since 2018.
I can see no basis in the evidence for these assumptions. They do not accord with how C’s income increased either before 2012, or from 2018. Had she not been injured as she was, I am satisfied that it is also likely that her income would have increased beyond $50,000 after 2012, as it did after 2018.
The accountant’s report explains the basis upon which the calculations relied on were made. They were not challenged by evidence, nor addressed in submissions. That being so I am satisfied that the damages claimed must be awarded.

Past Superannuation

$21,406.68 was claimed for past superannuation. Mr Bird contended $4,750 should be awarded and the other defendants $7,125.
Given my conclusion about past economic loss, it follows that the amount claimed must be awarded.

Future Economic Loss and Future Superannuation

$150,000 was claimed as a buffer and the defendants contended that nothing could be awarded.
Given that no past economic loss was claimed after 17 March 2020 and what was disclosed in C’s last tax return, it was the defence case that no ongoing loss in the future was established.
Section 13 is again relevant to assessment of damages for future economic loss, as are the authorities I discussed earlier.
C has recovered sufficiently to be working full time, but also performing work that exposes her to triggering events, which she cannot leave for good reason. I am thus satisfied that C’s future economic loss must be assessed on the basis that the evidence also establishes in her case that there is also a real risk that given the nature of her injury, her work and what it exposes her to, that her capacity to perform that work will also at times in the future be adversely affected.
Contrary to C’s situation before she was so significantly damaged by Mr Bird’s acts, given the nature of her still ongoing ill health, her guarded prognosis and vulnerability to exacerbation of that condition, she must also be awarded a buffer, which I also assess at $111,000.

D’s damages

In total $830,000 plus costs, disbursements and interest was claimed. Mr Bird’s case was that no more than $25,000 would be awarded and the other defendants no more than $85,000.

D’s psychiatric injury

C’s evidence was that after her disclosures D regressed. She had totally lost all capacity for emotional regulation, so her behaviour became extremely challenging. She was having emotional meltdowns time and time again, day after day. D had significant trouble leaving C for anything and wanted C to be with her 24 hours a day. It took C a long time to get D back to her kindergarten after the JIRT interview, whereas previously, she was incredibly happy and safe there. She agreed in cross examination that after 9 months of counselling she was back on track and had a good start at school, but D suffered other problems.
While C did not now accept that D had fully recovered, despite having said so in 2014, she considered that D was strong and resilient and had made a good transition to school. However she had been advised that with early childhood trauma, vulnerabilities meant that it was common for children to be retriggered back into trauma, particularly around developmental stages and so D’s counselling file would remain open until she was 18.
In fact D was retriggered into trauma by the Royal Commission into Institutional Responses to Child Sexual Abuse. A month or two after she had given evidence in 2016, her teachers noticed, with the result that the following day D was seen by a counsellor at the Child Protection Unit.
Both Dr Robertson and Dr Kasinathan assessed D in 2020, when she was aged 13. They were not called to give concurrent evidence.
Their reports referred to counselling records which recorded D having suffered nightmares and wanting to be constantly close to her mother, deterioration in her mental state and classroom behaviour at times and irrational fears about safety of others, after Mr Bird’s assaults.
In his report Dr Robertson referred to age at the time of victimisation being a significant prognostic factor, with younger age correlating with poorer long term outcomes. An analogy was drawn with asbestos exposure, where potentially catastrophic consequences may not be realised for many decades.
On the assumption that Mr Bird had abused D as she disclosed, in their joint report Dr Robertson and Dr Kasinathan agreed that she developed a diagnosable psychiatric disorder and was likely to have experienced transient exacerbation of her symptoms, likely attributable to her mother’s contributions to the Royal Commission. Fortunately, there was no evidence of psychopathology at the time of their examinations, when she was following a normative trajectory.
They also agreed while D did not require any current treatment, she did require a process of regular monitoring of her mental health, through her GP on an annual basis, unless a more urgent need arose as the result of emerging psychological distress, behavioural disturbance, or decline in her relationships or academic performance, when more specialist review could be required. The cost of this was difficult to assess.
Dr Robertson and Dr Kasinathan acknowledged the risk to later mental health which child sexual abuse posed, but considered that at present D's prognosis was favourable. There was no current impaired academic function and no realistic expectation of impaired work capacity.
There was a theoretical risk of re-victimisation, but no evidence of any current concerns. If D were to experience a relapse, it was possible that she would require treatment for the re-emergence of post traumatic stress disorder or related conditions.
They also agreed that D had experienced symptoms of childhood post traumatic stress disorder, a recognised typical short-term and ongoing effect of childhood sexual abuse. It was also recognised that childhood sexual abuse was linked to an array of psychopathological disturbances, substance use, vulnerabilities to sexual re-victimisation and heighted risk of physical health problems.
There was no immediate concern about her overall state of health, but her history had to be kept in mind by future health care workers.

Non-economic loss

$400,000 was claimed. Mr Bird contended $25,000 would be awarded and the other defendants $50,000.
The harm which D suffered, pain and suffering and aggravated damages for injury to the her feelings caused by insult, humiliation and the like, must also be taken into account in her case, in the way that I explained in B’s case.
It is difficult to compare the seriousness of Mr Bird’s assaults on B and D, but fortunately all that D suffered before she recovered to her present position, does not seem to have been quite as serious as all that B suffered. D has also fortunately proven to be resilient enabling her also to recover well from the serious injury Mr Bird caused her.
Still the evidence established that D suffered a very serious injury for a child as young as her, one which she would not have suffered, but for his assaults.
I am satisfied that this must also result in a damages award which includes a component of aggravated damages.
Had D not recovered as well as she has, that award would have had to be greater. But account must also be taken of what D continues to risk during the remainder of her life, as the result of what Mr Bird did to her when she was such a young child.
I have thus concluded that D must be awarded damages of $260,000.

Exemplary Damages

$200,000 was claimed while Mr Bird contended nothing should be awarded and the other defendants contended for the $10,000 discussed in Gersbach.
All the considerations which I have discussed in B’s case, apply equally to D and I will thus not repeat them.
Given the nature and seriousness of Mr Bird’s assaults on D and the need for both punishment and deterrence which also arises in her case, I am satisfied that she must also be awarded exemplary damages of $70,000.

Future out of pocket expenses, future economic loss & superannuation.

A buffer of $30,000 was claimed for future out of pocket expenses and a buffer of $200,000 for general diminution of D’s earning capacity. Mr Bird contended that nothing should be awarded and the other defendants argued $25,000 would be awarded in respect of both future economic loss and future out of pocket expenses.
For similar reasons to those given in relation to B, I am also satisfied that given the nature of the injury which D suffered, her resulting susceptibility to further injury and the retriggering of her condition during the milestones in her life, I am satisfied that there must also be buffers awarded for these heads of damage of $25,000 for future out of pocket expenses and $100,000 for future economic loss and superannuation.

Costs

The usual order as to costs is that costs as agreed or assessed follow the event. In each case that would be an order against the defendants.
In the event that the parties wish to be heard, they should approach within 14 days.

Orders

For the reasons given, verdicts must be entered against all defendants. The parties should file proposed orders, including as to costs, which reflect the conclusions which I have reached, within 14 days.

**********

Decision last updated: 09 October 2020

Medium Neutral Citation:	Plaintiff A and B v Bird; Plaintiff C v Bird; Plaintiff D v Bird [2020] NSWSC 1379
Hearing dates:	7 September 2020 – 21 September 2020
Decision date:	09 October 2020
Jurisdiction:	Common Law
Before:	Schmidt AJ
Decision:	Verdicts for A, B, C and D The parties should file proposed orders, including as to costs, within 14 days
Catchwords:	TORTS — intentional torts — personal injury — historic sexual abuse of children being cared for at a childcare centre — whether assaults occurred TORTS —vicarious liability —volunteers — whether first defendant a volunteer or employee NEGLIGENCE — whether duty to children breached — whether reasonable steps to avoid risk of harm to children could have been taken — compliance with regulatory requirements — whether child protection policy in operation — whether supervision was adequate NEGLIGENCE — whether duty owed to mothers of child plaintiffs –– nature of psychological injuries suffered — whether duty breached — whether causation established EVIDENCE — admissions — whether made with authority and so admissible under s87 of the Evidence Act 1995 EVIDENCE — admissibility — whether child unavailable to give evidence — s63 Evidence Act and Dictionary definition of unavailable EVIDENCE — tendency evidence — admissibility of children’s disclosures and defendant’s admissions — probative value of tendency evidence EVIDENCE — civil standard of proof — nature of the burden of proof under s140 of the Evidence Act EVIDENCE — witness evidence — evidence of children’s disclosures — reliability of evidence where children were not cross-examined
Legislation Cited:	Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 209, 210 Children Services Regulation 2004 (NSW), regs 15, 25, 51–54, 56–58, 61, 64–66, 74, 85, 88, 104, 111, 117,118 Civil Liability Act 2002 (NSW), ss 3, 5D, 5E, 6E–6H, 13, 15, 21, 27, 31–33 Evidence Act 1995 (NSW), ss 12, 13, 55, 59, 61–64, 67, 81, 87, 97, 100, 101, 135, 136, 140, 192A Evidence Regulation 2015 (NSW) (rep), reg 5
Cases Cited:	Ainsworth v Burden [2005] NSWCA 174 Annetts v Australian Stations Pty Ltd (2000) 23 WAR 35; [2000] WASCA 357 Avopiling Pty Ltd v Bosevski; Avopiling Pty Ltd v The Workers Compensation Nominal Insurer [2018] NSWCA 146 Barclays Bank plc v Various Claimants [2020] UKSC 13 Bowles v The State of Western Australia [2011] WASCA 191 BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Catholic Child Welfare Society v Various Claimants [2013] 2 AC 1; [2012] UKSC 56 Commonwealth v Helicopter Resources Pty Ltd [2020] HCA 16; (2020) 94 ALJR 466 Cox v Ministry of Justice [2016] AC 660; [2016] UKSC 10 Cox v State of New South Wales (2007) 71 NSWLR 225; [2007] NSWSC 471 DSN v Blackpool Football Club Ltd [2020] EWHC 595 (QB) Dyldam Developments Pty Limited v Jones [2008] NSWCA 56 Gersbach v Gersbach [2018] NSWSC 1685 Geyer v Downs (1977) 138 CLR 91; [1977] HCA 64 Gordon v Truong [2014] NSWCA 97 Gray v Motor Accident Commission (1998) 196 CLR 1; [1998] HCA 70 Hollis v Vabu Pty Ltd (2001) 207 CLR 21; [2001] HCA 44 Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 106 FCR 51; [2000] FCA 1886 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Lamb v Cotogno (1987) 164 CLR 1; [1987] HCA 47 M v M (1988) 166 CLR 69; [1988] HCA 68 Malecv JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20 Merton & Merton [2007] FamCA 1350 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 CLR 445; [1992] HCA 66 New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4 Optus Administration Pty Ltd v Wright by his tutor Wright (2017) 94 NSWLR 229; [2017] NSWCA 21 Ordukaya v Hicks [2000] NSWCA 180 Palmer v Dolman [2005] NSWCA 361 Plaintiff A & B v Bird [2016] NSWSC 997 Plaintiff A v Bird [2020] NSWSC 1145 Prince Alfred College Incorporated v ADC (2016) 258 CLR 134; [2016] HCA 37 Public Transport Commission (NSW) v J Murray-More (NSW) Pty Ltd (1975) 132 CLR 336; [1975] HCA 28 R v Chief Constable of Devon and Cornwall, Ex parte Central Electricity Generating Board [1982] QB 458 R v Suteski (2002) 56 NSWLR 182; [2002] NSWCCA 509 Rabay v Bristow [2005] NSWCA 199 Re W [2004] FamCA 768; (2004) 32 Fam LR 249 RHG Mortgage Limited v Ianni [2015] NSWCA 56 Richards v Victoria [1969] VR 136 Rixon v Star City Pty Ltd (Formerly Sydney Harbour Casino Pty Ltd) (2001) 53 NSWLR 98; [2001] NSWCA 265 Roman Catholic Church Trustees for the Diocese of Canberra and Goulburn v Hadba (2005); 221 CLR 161; [2005] HCA 31 Sampco Pty Ltd v Wurth [2015] NSWCA 117 Sophie Fegan by her tutor Inga Rozenauers v Lane Cove House Pty Limited [2007] NSWCA 88 Sorbello v South Western Sydney Local Health Network; Sultan v South Western Sydney Local Health Network [2016] NSWSC 863 State of New South Wales v Riley (2003) 57 NSWLR 496; [2003] NSWCA 208 Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35 The Queen v Dennis Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40 Varmedja v Varmedja [2008] NSWCA 177 White Constructions (ACT) Pty Ltd (In liq) v White [2005] NSWCA 173 Withyman v State of New South Wales [2013] NSWCA 10 Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485; [1995] HCA 53
Texts Cited:	RFV Heuston and RA Buckley, Salmond on Torts (Sweet and Maxwell, 17th ed, 1977)
Category:	Principal judgment
Parties:	A (1st Plaintiff) B (2nd Plaintiff) C (3rd Plaintiff) D (4th Plaintiff) Rodney Raymond Bird (1st Defendant) Lisa Maree Clancy (2nd Defendant) Little Pigeon T/As Footprints Childcare Centre (3rd Defendant)
Representation:	Counsel: C Barry QC with M Tanevski and M Hamdan (1st, 2nd, 3rd and 4th Plaintiffs) C Heazlewood (1st Defendant) A Horvath with R McEwen (2nd and 3rd Defendants) Solicitors: Shine Lawyers (1st, 2nd, 3rd and 4th Plaintiffs) EMP Michael (1st Defendant) Norton Rose Fullbright (2nd and 3rd Defendants)
File Number(s):	2013/375445; 2013/375437; 2020/65223