S v Corporation of the Synod of the Diocese of Brisbane

06122001 D.17 T37/VL M/T TWB3/2001 (Wilson J)

SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION

WILSON J

No 72 of 2000

[2001] QSC 473

S Plaintiff

and

THE CORPORATION OF THE SYNOD OF THE

DIOCESE OF BRISBANE Defendant

TOOWOOMBA

..DATE 06/12/2001

SUMMING-UP

HER HONOUR SUMMED UP TO THE JURY FROM 4.01 P.M.:

Well, ladies and gentlemen, it is now my task to sum up the case that has been before you. The plaintiff's claim is for damages, both compensatory damages and exemplary damages. It is based on allegations of negligence by the defendant and those for whose conduct it is alleged to be responsible, and assault by Mr Guy for which the defendant is alleged to be responsible.

I will come to the details of the case and the evidence in due course. But I want to begin by mentioning some general matters that are of great importance and which you should bear in mind throughout your deliberations.

First of all, your function and mine are quite different.

My task is, as it has been all along, to ensure that the trial is conducted according to law and to direct you on the law that you will have to apply in coming to your decision. What I say

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about the law, you must take as correct. If I am wrong, I will be put right by a higher Court, you can be sure of that, but for present purposes, you must accept it.

You, on the other hand, are the only judges of the facts. You have to decide what evidence you are going to accept and then you have to apply the law, as I will explain it to you, to the facts as you find them to be. During the course of this summing-up I may comment on the facts if I think it will assist you, but always remember you are not obliged to accept any view I appear to be expressing in relation to the facts. If you disagree with any view I express in relation to the facts, disregard it. If I fail to mention evidence which you think is important, you must take that evidence into account. If I seem to stress evidence you think is unimportant, disregard the fact that I have given it emphasis. The assessment of matters of fact is for you and it is for you alone.

Now, you have a list of questions that you have to answer. Each of those questions represents an issue in the case, and on each of those questions the onus of proof lies on the plaintiff. I will come back to a more detailed discussion of the questions in due course, but I want to make it clear at the outset that it is the plaintiff who bears the onus of proof in relation to each of those issues.

This is a civil case and so the standard of proof is one of probability.

When you are deciding whether such and such an event occurred in the past, the question is, has that event been proved on the balance of probabilities? Is it more probable than not that the event occurred? For an event which allegedly occurred in the past, you adopt an all or nothing approach. Either it has been proved on the balance of probabilities or it has not.

But what of events which are not alleged to have actually happened in the past, but which are hypothetical events or future events relevant to the assessment of damages? Hypothetical events are events that might or might not have happened in the past. For example, it is said that had the plaintiff not been abused by Mr Guy, she would have completed her secondary schooling satisfactorily and gone on to tertiary study. It is said that because she was abused she was unable to complete her eduction and so she suffered a loss of earning capacity. Future events are in a similar category. For example, it is said that because she was injured she will be unable to do work of the class she would otherwise have been able to do, and that she should be compensated for a future loss of earning capacity.

When you are considering such alleged hypothetical events and future events, you don't adopt an all or nothing approach. What you have to do is to assess the degree of probability of the happening of those hypothetical or future events. Unless the chance of a hypothetical event's having happened or of something's happening in the future is so low as to be speculative, then you take account of the degree of probability of its having happened, or that it would happen in the future. So, say you assess a loss under one head at $10,000, and that's dependent upon proof of a hypothetical or a future event, but you think, well, there's only a 30 per cent chance of that happening, then you're going to scale back your $10,000 accordingly.

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Your answers to the questions on this sheet have to be unanimous, whether they be yes or no, as in the case of the answers to questions 1, 2, 3 and, if you come to it, number 8, or an assessment of a sum of money, as in the case of the other questions. The point I'm making is that it must be a unanimous decision. You can't bring in a majority answer. You have to all be of the same mind in answering the question.

In answering the questions, you must decide solely on the facts admitted on the pleadings or before the Court, and on the evidence that's been placed before you in this trial.

If you've heard, or read, or otherwise found out anything about this case, or the people who've figured in it, outside the courtroom, you must exclude that information from your consideration. You must have regard only to the evidence which has been put before you since the case began. So, you have to disregard any information that you may have received about the matters in issue, or about the plaintiff, or the defendant, or about sexual abuse of children generally, from any other source, or in any other way. For example, disregard anything you've read in the newspapers, heard on the radio, seen on TV, found out by surfing the internet.

You have to disregard anything you may have heard of the reputation of the plaintiff or of any of the witnesses or of the Prep School or of the defendant, the Corporation of the Synod of the Diocese of Brisbane. That is, anything that you've heard outside this case.

You also have to put aside any questions of prejudice or sympathy. You mustn't allow any views that you may hold or any experiences you may have had in relation, for example, to the sexual abuse of children, or religion or private schools, to colour your approach to the facts of this case.

You've been given copies of the statement of claim and the defence. These are formal legal documents that have been referred to as "the pleadings". In the statement of claim, the plaintiff sets out the facts she alleges. Then in the defence, the defendant specifies which of them it admits and which of them it denies, and it alleges any further facts on which it relies. Insofar as the defendant has admitted certain facts that have been alleged by the plaintiff, then the plaintiff's relieved of the obligation of proving them. But otherwise you have to treat what's in the pleadings as mere allegations of fact - not as evidence. It's up to the party making an allegation of fact in the statement of claim or in the defence to lead evidence to prove that allegation.

You can take as proved the matters that have been admitted formally before the Court and I have a note of four of them. The first, on the first day of the trial Ms Dalton for the defendant admitted that in the middle part of 1990 the plaintiff was repeatedly subjected to assaults of a sexual nature perpetrated upon her by Kevin George Guy which included fully undressing her, fondling her breasts and genitals, digital penetration of her vagina and forcing her to fondle his penis.

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It was admitted that Mr Guy committed suicide on the morning of 18 December 1990.

Then on questions of damages, it was admitted that the plaintiff has incurred special damages

(or out of pocket expenses) in the sum of $10,873.60.

And, it was admitted that the commercial cost of providing gratuitous care or care that has in fact been provided gratuitously both in the pre-trial period and any that might be provided into the future, should be assessed at $12.50 an hour. I'll come back to the significance of that tomorrow.

I've said that you have to be concerned with the evidence. What is the evidence? It clearly includes the oral testimony - the evidence you heard the witnesses give, on oath, in the

witness box and by telephone. It includes the exhibits which have been tendered before the Court - you will have these in the jury room when you're deliberating. It includes the statement from Mrs Love (the woman from the secretarial agency) which was read to you and which counsel agreed should form part of the evidence.

But, there are things that have gone on in Court which don't amount to evidence. Suggestions put to witnesses by the barristers are not themselves evidence. The evidence lies not in the question but in the witness's answer to the question. Let me give you a simple example. Suppose one of the Barristers had said to one of the witnesses: You were wearing a green dress, weren't you? The statement in the question that the dress was green would not be evidence that it was green, but the evidence would be found in the witness's answer to that question: Yes, it was green. No, it was blue, or whatever.

What the Barristers said to you when they opened their respective cases and what they've said to you by way of address in the last two days are not evidence. What I'm saying to you now

is not evidence. By all means take account of what they said to you when you're deliberating;

take account of what I'm saying, but the extent to which you do so is a matter for you.

The Barristers have given you various schedules relating to the calculation of damages. Those schedules are not evidence, they're simply summaries of the Barristers' submissions to you.

What you have to be concerned with is the credibility of the evidence and its reliability. It's a matter for you whether you accept the whole of a witness's evidence or part of it or none of it. Use your commonsense. Use your experience of the world. You can take account of the demeanour of a witness, the way a witness answers questions. You can take account of the likelihood of a witness's evidence being correct. You can consider whether the evidence of one witness seems reliable or likely when you compare it with the evidence of some other

witness which you've decided to accept. You can consider whether witnesses have good memories. There are lots of factors which you can take into account in assessing credibility.

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Some of the evidence has been from experts; doctors, a psychologist, an educationalist. Expert evidence, like all other evidence, is for you to assess. There's nothing magical about the fact that it came from experts. An expert is allowed to express a professional opinion based on facts that have been put to him or her. Those facts have to be proved before the opinion has any potential worth. But assuming that the factual foundation for an opinion is established, it's then up to you whether you accept the opinion that's been expressed or part of it or none of it.

The weight that you give to particular evidence is also a matter for you. You might choose to give some evidence a lot of weight; to give other evidence some weight, but not much. There might be some evidence to which on its own you would attach little weight but it may nevertheless be relevant when it's taken in conjunction with all of the other evidence, or some of it.

At times, what a witness says in Court differs from what he or she has said on some other occasion. Insofar as there may be inconsistencies in any witness's account it's for you to weigh the effect of the inconsistencies. You may think there is a satisfactory explanation, an innocent one, perhaps a faulty memory. On the other hand, you may think that one of the statements involved an intentional falsehood. You have to be aware of inconsistencies and discrepancies. When you find them, you have to evaluate the evidence carefully in the light of other evidence.

In addition to facts that are proved directly by the evidence, you may also draw inferences from facts which you find to be proved. What do I mean by that? If you're satisfied that a certain thing happened, it may be right to infer that something else happened. That's the process of drawing inferences from proved facts. Let's take a simple example. Suppose

when you went to sleep last night it hadn't been raining. When you got up this morning, there was rain water lying about. You could draw the inference that it had rained overnight. There is a logical rational connection between the facts you know and the conclusion you draw.

Ladies and gentlemen, this case is not about whether Mr Guy abused the plaintiff. That's been admitted. What this case is about is whether the defendant should be held responsible for that abuse.

You shouldn't trouble yourselves with questions of breach of contract. Rather, you should give attention to whether there was a failure to take reasonable care of the plaintiff while she was a boarder at the Prep School.

That's as far as I'm going to take matters this afternoon, ladies and gentlemen. Tomorrow morning, I'll move on to tell you about the law of negligence, to tell you about the law regarding an employer's responsibility for the actions of his or her employee and to tell you about the assessment of damages. But to draw today's proceedings to a close at this point. We'll commence again at 9.30 tomorrow morning.

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THE JURY RETIRED AT 4.21 P.M.

THE COURT ADJOURNED AT 4.22 P.M. TILL 9.30 A.M. THE FOLLOWING DAY

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DATE 07/12/2001

..DAY 18

THE COURT RESUMED AT 9.32 A.M.

HER HONOUR: Good morning, ladies and gentlemen. Good morning, everyone.

HER HONOUR CONTINUED SUMMING UP TO THE JURY FROM 9.32 A.M.: I'm going to begin this morning by telling you something about the law of negligence. In principle, there are a number of things which a plaintiff has to prove before he or she may recover damages for negligence. He or she has to prove first, that the defendant owed him or her a duty of care. Secondly, that the defendant breached that duty by failing to take reasonable care. And, thirdly, that the defendant's breach of duty caused the injury or damage that he or she suffered. And, if a plaintiff succeeds in proving each of those elements, then his or her action will succeed.

Well, I'll turn first to a duty of care. A duty of care is owed only if the person alleged to owe the duty ought reasonably to foresee that his, her or its conduct may be not unlikely to cause loss or damage to a class of persons of which the plaintiff is one.

A plaintiff doesn't have to show that the precise manner in which his injuries were sustained was reasonably foreseeable. It's enough that a consequence of the same general character as that which occurred affecting a class of persons of which the plaintiff was one was reasonably foreseeable as a consequence.

Well, the next question is that of the standard of care and whether a breach of the duty of care has been established. A plaintiff has to prove that the alleged wrongdoer failed to take reasonable care in the circumstances by failing to do what the reasonable person would have done or by doing what the reasonable person would not have done.

So, first of all you have to decide whether a reasonable person in the alleged wrongdoer's position would have foreseen that his conduct might pose a risk of injury to the plaintiff or to a class of persons including the plaintiff. So, in this case a risk of injury to the plaintiff or to the boarding students including the plaintiff.

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The law says that a risk of injury is reasonably foreseeable if it's not far fetched and fanciful. Reasonable foreseeability of risk is a question of fact. It's one which you have to judge in all the circumstances that prevailed at the time of the act or acts in question.

A plaintiff doesn't have to show that the precise way in which his injury occurred was reasonably foreseeable. All he has to prove is that the risk of a consequence of the same general character as that which occurred was reasonably foreseeable.

Then you have to consider what the reasonable person would have done by way of response to this reasonably foreseeable risk of injury. In determining what precautions the reasonable person would take against a reasonably foreseeable risk you have to take account of a number of factors including the magnitude of the risk; the degree of probability of its happening; the expense, difficulty and inconvenience of taking alleviating action; and any other conflicting responsibilities that the alleged wrongdoer may have had.

You have to weigh the magnitude and the probability of the risk against the practicability of precautions against it. The law doesn't require a defendant to take expensive or difficult precautions against a risk that's unlikely to occur, but it usually does require precautions which require little difficulty or expense even if the risk is unlikely to occur.

Now, let's turn to the facts of this case. Broadly, there are two ways in which the defendant may be liable for negligence. The first way is what I'll call primary liability, that is if it, the defendant, breached a duty of care which it, the defendant, owed to the plaintiff - I'll come back to that. That's the primary way.

The second way I'll call vicarious liability, and you've heard that expression before in the case. If any of its employees acting within the scope of their employment breached a duty of care which they owed to the plaintiff, then the defendant, as their employer, would be vicariously liable for that breach. So, it might primarily be a duty which the defendant itself owed and which it breached, or vicariously it would be liable if one of its employees had a duty of care and breached that duty.

Let's look first at the issue of primary liability. If you look at your list of questions, question

1, parts (a) and (b) relates to this issue of primary liability. The defendant ran the school and its boarding houses. It clearly owed the plaintiff, who was a boarder in year 7, a duty of care. That much is conceded.

It had obligations which it could not fulfil simply by appointing apparently competent people to do so on its behalf. That's not to say that it had an absolute obligation to guarantee the safety and well-being of the plaintiff, or that it had an absolute obligation to guarantee that she wouldn't be assaulted by Mr Guy. No, its duty didn't go that far. Its duty was to take reasonable steps to prevent her from being harmed, and it would be primarily liable only if it failed to take reasonable care to prevent her from being harmed.

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Now, you've all got copies of the statement of claim and the respects in which it's alleged that the defendant, itself, failed to take reasonable care are set out in paragraph 14. There are subparagraphs (a) through to (n). Each one is a respect in which it's alleged that the defendant failed to take reasonable care.

I'll just remind you, those are simply the allegations. What you have to do is to consider the evidence that's been put before you and to determine whether one or more of those allegations has been proved on the balance of probabilities.

Question 2 on your list of questions, 2(a) and 2(b), deals with this second issue of vicarious liability. Whether there was negligence on the part of one or more employees of the defendant for which the defendant should be responsible, in law, as the employer.

Again, the respects in which it is alleged that employees were negligent are contained in the statement of claim, and you will find them in paragraph 14AA. I repeat, those are simply the allegations. It's up to the plaintiff to make out one or more of those allegations on the balance of probabilities.

When you're considering this question of a failure to exercise reasonable care, both when you're considering the question of the failure by the defendant itself to do so, and when you're considering the question of the failure by one or more of its employees to do so, you must consider only the period up to and including 9 November 1990, that is, the period up to when the abuse ceased.

You may be critical of the defendant's conduct after that. That may go to the question of exemplary damages, something I'll come to later, but it doesn't go to the issue of liability for negligence, whether it be primary liability or vicarious liability.

Mr Myers has submitted to you that Mr Brewster, the headmaster, knew or ought to have known of what he called inappropriate behaviour on the part of Mr Guy towards female students, including the plaintiff. He submitted that you will find this conduct was openly displayed from 1989; that Mr Brewster's own observations were inadequate; and that his appreciation of the significance of what he saw or must have seen was itself inadequate.

He submitted to you that Mr Brewster failed to recognise or to recognise and act on complaints, and he's referred you first to D's having come to him in early 1990 with gossip about Mr Guy kissing E. Now, Mr Brewster said he had no recollection of that. It's up to you to decide whether you accept that she did go to him with that story, and what you make of it and what you make of the response that she said he made.

Next, he's drawn your attention to the expression of concern by the nurses in the middle of the year, and to their evidence of how Mr Brewster responded, and on the other hand to his evidence.

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Thirdly, there was the complaint by D and her mother about Mr Guy's touching the inside of her thigh when he told her that she shouldn't shave her legs. Again, you have to consider on the one hand the evidence of D and her mother as to how that complaint was made, and how Mr Brewster responded to it. You have to consider his version, and you have to consider what he did after D and her mother had gone (going to Mr Guy, accepting Mr Guy's explanation) and you have to consider the adequacy of how he responded in the circumstances.

Ms Dalton stressed to you that what people saw before 9 November and that what they reported to Mr Brewster were vague and ambiguous. Sr Munro and Mrs Adermann said they didn't see anything sinister. As I've said, Mr Brewster said he had no recollection of D's first report about Mr Guy kissing E. There is evidence that it was in D's nature to embellish stories, and she admitted having falsely said that she'd seen the E incident.

Ms Dalton submitted to you that, given the nature of the complaints made to him, Mr

Brewster's response was quite reasonable.

Well, ladies and gentlemen, it's for you to decide whether Mr Guy did demonstrate inappropriate behaviour towards the female students - that's behaviour sufficiently untoward to be a warning sign - and it's for you to determine if he did, whether Mr Brewster knew or ought to have known about it and the adequacy of his response to it.

It's for you to decide whether complaints were made to Mr Brewster and whether he responded adequately to them. Did he do enough to investigate? Was he remiss in accepting Mr Guy's explanations? You have to determine and evaluate those questions.

If you find that Mr Guy did act inappropriately in the sense I've described, that's in a sufficiently untoward way to be a warning sign, and if you find that Mr Brewster knew or ought to have known about it, then there are two ways in which you could find that there was negligence for which the defendant would be responsible.

This is the first way: If you find that Mr Brewster's knowledge was, in fact, the defendant's knowledge, the knowledge of the Synod, and that the defendant should have taken proper precautions, but didn't, then its omission to do so was negligent. That's the first way.

The second way of looking at it is this: If you take the view, well, Mr Brewster was simply an employee of the Synod. You might find that it was part of his job to report these matters to the Synod and to take proper precautions, and that he failed to do so, and in those circumstances, the defendant would be vicariously liable for his omission. The defendant, as his employer, would be responsible for his omission.

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So, there are two ways in which omission by Mr Brewster could result in findings of negligence against the defendant.

Well, let's look at Mr Brewster's position in this hierarchy. As you've been told numerous times, the defendant is a corporation: The Corporation of the Synod of the Diocese of Brisbane. It's not a natural person like you and me, and you may well be wondering how these issues of reasonable foreseeability and knowledge can apply to a corporation.

A corporation can only act through natural persons. In any corporation, there'll be some people with such a high degree of authority and control that they really constitute its directing mind or will - so that their acts and their knowledge are the acts and knowledge of the corporation itself rather than those of employees, servants or agents for which the corporation as employer may be responsible.

Let's take an example quite divorced from the present case. The acts and the knowledge of the board of directors of a large public company, perhaps even those of its general manager and senior managers under him, are the acts and knowledge of the company itself. But the acts and knowledge of a sheet-metal worker on the factory floor are merely the acts and knowledge of an employee for which the company may be responsible.

In the present case, the defendant, this corporate body, owned and operated the school. Running schools was just one of its undertakings, and the Prep School was just one of the schools it ran. The archbishop was the most senior officer of the defendant. The defendant employed Dr Coman to be the head of its schools division.

Mr Brewster was appointed by the archbishop-in-council, that is he was appointed by the archbishop acting with the advice of a consultative council.

It was Mr Brewster who was immediately responsible for the running of the school. He had the power to hire and fire staff. He had to report to a school council, a council which had been appointed by the Synod - by the defendant. Just so there's no confusion, that was quite a different council from the council that's talked about when the archbishop was acting in council. They're different advisory bodies.

So you have to think, if Mr Brewster, if his position was such that he was part of the governing mind or will of the defendant, then, as a matter of law, his acts, his knowledge were the acts and knowledge of the defendant.

On the other hand, if you conclude that he was so far down the chain of command that he wasn't part of this governing mind or will, but simply an employee, albeit one with a very responsible position as the headmaster of the school, then you couldn't conclude that because he knew or ought to have known something, the defendant itself knew or ought to have

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known it. You couldn't conclude that because he as the headmaster, ought to have done something and didn't the defendant itself ought to and didn't.

Needless to say, you could conclude that he breached a duty of care which he owed and that the defendant, as his employer, is responsible for that breach. In other words, if he wasn't part of this directing mind or will of the Corporation, any breach was a breach on his part, and insofar as your finding of a breach of duty of care turned just on Mr Brewster, you would have to answer, no, to 1 (a) - primary liability - but yes to 2 (a) - vicarious liability.

But don't let me confuse you. The issues of negligence are much wider than that. They're much wider than simply what was known or ought to have been known. And I remind you of paragraphs 14 and 14AA of the statement of claim. Paragraph 14: that's the one with subparagraphs (a) through to (n) dealing with primary liability. Broadly, what that alleges is

a failure to have adequate systems in place and to implement or police adequate systems. As a matter of law, the defendant was obliged to have in place proper systems to ensure that reasonable care was taken of the boarders, including the plaintiff. And as a matter of law, it was obliged to implement those systems and to police compliance with them.

Paedophiles act clandestinely. That's a fact of life. The defendant was obliged to have in place and to police compliance with systems which took account of the possibility of there being a paedophile lurking about. It was not obliged to have systems which absolutely guaranteed the safety of the plaintiff. That may well have been an impossibility. But it was obliged to have systems which, in all the circumstances, would ensure that reasonable care was taken of her.

Mr Myers has taken you through the particulars in paragraph 14 of the statement of claim and the evidence that he relies on to establish them at some length. I won't go back over all that ground.

Suffice to say, if you find that one or more of them has been made out on the balance of probabilities, then you'll find that the defendant breached its primary, non-delegable duty of care to the plaintiff. In other words, if you find, for example, that the system for ensuring that the plaintiff couldn't escape undetected from Arnott House at night was inadequate, or that

the procedures adopted in the selection of staff such as Mr Guy were inadequate, then you'll answer, yes, to question 1 (a).

I should make it clear that there was no law which would have prevented the defendant from refusing to employ a single man in the position of senior resident master.

Now, I'll come to paragraph 14AA. That alleges that various employees of the defendant were negligent in failing to do various things that it was their job to do.

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I've already dealt with Mr Brewster, so I'll come to Mrs Adermann. It's alleged that she failed to make adequate bed checks. You will remember the evidence. The last bed check was about 10 o'clock at night; then she relied on the intercom. And you'll remember that there was one intercom on the floor where the plaintiff slept somewhere near the shower room, and you'll remember your visit to the school and the layout of that floor.

You'll also remember the evidence that the meetings with Mr Guy were arranged to take place, effectively, after the last bed check; about 10 o'clock at night. So you have to ask yourself whether it was good enough for the house mother to go to bed at 10 o'clock and make no further checks. In all the circumstances, you have to weigh that up one way or the other.

Then it's alleged that she failed to report matters of concern; that she failed to request investigations. Well, you'll remember her evidence that she said she saw nothing sinister. But on her evidence, she had seen enough to give her serious concerns, and her explanation for not reporting it to Mr Brewster was that he would've made her feel a troublemaker. And you have to ask yourselves, if her concerns were serious enough, was that a good enough excuse? Consider what she saw. Consider all the circumstances.

It would be open to you to conclude that her failure to take up those concerns with Mr Brewster, however difficult she may have found it to do so, was remiss of her - remiss to the point of being a breach of duty of care to the plaintiff. It's a matter for you to evaluate.

If she was negligent in the sense I've been trying to explain, that is, if she failed to do something which it was part of her job to do, then the defendant would be vicariously liable for her neglect.

I come to Sisters Munro and Fitzgerald. It's alleged that they failed to request reasonable investigations of their earlier report. You'll remember the conflict between their evidence

and that of Mr Brewster as to what went on at their meeting in the school hospital. Again, it's for you to consider. Did they adequately voice their concerns? If they didn't, were they so remiss as to be negligent, to breach a duty of care that they owed to the boarders, including the plaintiff?

You also have to consider whether they may have adequately voiced their concerns, but it was Mr Brewster who didn't appreciate the significance of what they were saying. This is an aspect of whether he was so remiss in the performance of his duties as to be negligent.

Again, if these people didn't do something which it was their job to do, and in failing to do it, breached a duty of care to the plaintiff, the defendant, as their employer, would be responsible for that negligence.

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Finally, there's Mr Guy. His conduct was deliberate, and as a matter of law, it shouldn't be classified as negligence, but as assault, and I'll come later to the question of whether the defendant, as his employer, should be held responsible in law for that intentional wrongdoing.

The plaintiff must prove, on the balance of probabilities, that the wrongdoer's negligence caused or materially contributed to the injury or damage that she suffered.

Questions 1(b) and 2(b) ask whether she suffered loss or damage as a result of the breach of duty of care owed by the defendant, in the case of question 1, or by an employee of the defendant, in question 2.

What they go to is the existence of a causal link between default on the part of the defendant and/or its employees on the one hand, and Guy's abuse of the plaintiff and the damage she suffered on the other.

It's a principle of law that the mere fact of a breach of a duty of care doesn't entitle a plaintiff to damages. The plaintiff has to show that she suffered loss or damage as a result of that breach. She has to show that the breach caused or materially contributed to the damage she suffered.

You should use your commonsense and your experience of the world in deciding whether such a cause and effect relation has been established on the balance of probabilities.

You might consider what breach or breaches have you found. When did these occur? When did the abuse take place? Did the abuse result from a breach of the duty of care owed by the defendant or that owed by one or more of its employees? Has the plaintiff suffered loss or damage as a result? Those are the sorts of things that you take account of. Apply your commonsense and your experience in working out whether there is this causal link, and if you find that there is, then assuming that you've answered, "Yes" to 1(a) your answer to 1(b) will be, "Yes." Assuming you've answered "Yes" to 2(a), your answer to 2(b) will be "Yes."

Now, I'm going to come to the question of whether the defendant, as Mr Guy's employer, should be held responsible, vicariously liable, for the sexual assaults which he committed.

When I'm looking at this question, I'm not concerned with whether there was fault or a breach of duty by the defendant, the employer, and you should accept that Mr Guy's conduct was itself wrongful, that he breached a legal as well as a moral obligation to the plaintiff. But the issue is whether the defendant, as his employer, should be held responsible in law for what he did.

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Well, clearly his conduct wasn't something he was authorised to do. What you have to consider is whether it was so closely connected with acts which he was authorised to do as to be within the scope of his employment.

Now, there are two extremes. On the one hand you might find it was conduct incidental to his employment, in the sense that it was so connected with authorised conduct as to be a way, albeit an improper way, of doing something that he was employed to do. That's on the one hand.

The other extreme is that it was an independent and a personal act not connected with or incidental in any way to work he was expressly or impliedly authorised to do. In other words, that it was the very opposite of what he was employed to do.

Where should the dividing line be drawn? Well, each case has to be decided on its own facts, and ultimately where to draw that dividing line is a question of fact for you, the jury.

Begin by asking yourselves, "What was it that Mr Guy was employed to do?" You should adopt a broad approach. Don't dissect the task into its component parts. Consider it in the context of the defendant, the employer's undertaking to provide the plaintiff with the education, care and supervision which a boarding school offers to boarding students.

Consider what aspects of that duty the defendant had entrusted to Mr Guy. You recall he had overall responsibility for the conduct of the boarding houses, both girls and boys, and for the residential care of the students, including the plaintiff.

There are various factors that you can take into account in deciding whether what Guy did can properly be regarded as a way of carrying out the work which the defendant authorised him to do, even though a wrongful way of doing it. None of them is going to be decisive by itself, but when you consider all of them, and maybe some other factors, you will come to your conclusion.

Mr Guy's conduct may well have been criminal; it probably was, but it would be possible, for example, for an employer to be liable for fraud by an employee.

Let's take an example. Suppose you've got a firm of solicitors, which has on its staff a managing clerk, and that clerk is entrusted with the business of one of the clients, and he persuades the client to transfer property to him, and disposes of it to his own advantage. The employer could be liable; liable because the client had been invited by the firm, by the employer, to deal with the managing clerk, so that there was a sufficiently close connection between what the clerk was employed to do and what he did, even though it was fraudulent. So, that's a situation in which an employer could be liable.

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You can consider the fact that what Mr Guy did was, impliedly at least, prohibited or forbidden by the defendant, but then you have to say, "Well, was this prohibition a limitation on the scope of the employment or was it a limitation on conduct within the scope of that employment?"

Let's take another example. Think of a milkman. It's his job to deliver milk to households in a certain district. He's told by his employer that he mustn't take anyone else along for the ride, but he does so, and the milkman's negligent in his driving. As a result, his passenger's injured.

His employer could well be liable - liable because when it happened, the milkman was doing what he was employed to do. He was doing his rounds delivering the milk, acting within the scope of his employment even though he was doing something that had been expressly forbidden. In those circumstances, there'd be a sufficiently close connection to make the employer liable.

Another factor you should consider is that the employment provided the opportunity for Mr

Guy to abuse the plaintiff. Now, that's a factor, but not one in itself which would be decisive. Let's take another example. Let's think of a barmaid throwing a glass of beer in a customer's face. Let's assume she does it by way of a completely unprovoked assault. She's not in charge of the bar. The manager of the hotel is. She's not authorised to maintain order. That's someone else's job. The mere fact that being there gave her the opportunity to throw the

glass of beer in the customer's face wouldn't be enough to make the employer liable. It would have to go further and be shown that the employment materially increased the risk that such a wrong would occur.

Another factor you can consider is that what Mr Guy did, he did exclusively for his own gratification. The employer got no benefit out of it. It wouldn't be enough to exclude liability, but it's a factor which you weigh in the balance.

You should also consider the extent to which Mr Guy had power or authority over the plaintiff. He was the senior resident master. She was a little girl of 12 or 13. You should consider how vulnerable she was to that power.

So it's a question of evaluating the closeness of the connection between what Mr Guy was employed to do and what he did. Where you draw the dividing line is ultimately up to you.

Question 3 (b) asks whether the plaintiff suffered loss or damage as a result of the assaults by Mr Guy. You may have little difficulty in finding that she did, but that loss or damage will sound in damages against the defendant only if it's vicariously liable for those assaults.

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Now, I'm going to come to the question of damages. The plaintiff's claiming two sorts of damages: compensatory damages and exemplary damages. You should consider the compensatory damages first and quantify any amount you're going to award as compensatory damages before you turn your attention to exemplary damages.

Well, I'll look at compensatory damages. If the plaintiff has persuaded you, on the balance of probabilities, that she suffered injury caused by the defendant's negligence or negligence of its employees for which it's responsible, or that she suffered injury caused by the assaults and that the defendant is responsible for those assaults, then she's entitled to be compensated by payment of a sum of money which in law is referred to as compensatory damages.

There are some basic principles which underlie any award for damages for personal injuries, and I'll just briefly tell you those.

The first is this: if the plaintiff's injury was caused by such negligence or assault then she should be awarded such a sum of money as will as nearly as possible put her in the same position as if she hadn't sustained the injury.

Secondly, the damages have to be awarded in a lump sum. The Court cannot order the defendant to make periodic payments to the plaintiff.

Thirdly, the lump sum is awarded once and forever. If the plaintiff's condition worsens, she can't come back to Court and ask for more. Conversely, if her condition improves, the defendant can't come back to Court and ask for some of the money back.

Fourthly, the Court's not concerned with the way in which the plaintiff uses the sum awarded. She's free to do with it whatever she likes.

And fifthly, the burden of proving the loss or injury for which she seeks damages lies on her. Now, if you look at your question, question number 4, the answer to that should be a sum of mo ney. It'll be one total amount of compensatory damages, but in arriving at that one total amount, you should consider various heads of damage, various topics. And under each head, you should consider the loss up until the trial and the future loss. Mr Myers gave you a summary sheet where you can write these component parts when you're working out the total. The first head is general damages for pain and suffering and loss of the amenities of life.

This is designed to compensate her for pain and suffering that she's felt in the past and that she'll feel in the future as a result of her injuries. And the loss of amenities part is to compensate her for any continuing disability that she suffers as a result of those injuries - disability past and future.

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It goes without saying, ladies and gentlemen, that no sum of money can compensate for personal injury, but that's the only form of compensation which the Court can award. Psychological and psychiatric injury sounds in damages just as physical injury does. You can take into account the type of child the plaintiff was before she was abused by Mr Guy and the type of adolescent and young adult she subsequently became. You can take account of common experience that adolescents and young adults, even those who haven't been abused, often go through various phases and can be difficult to cope with. You can take account of the expert opinions that the plaintiff is suffering post-traumatic stress disorder, a recognised psychiatric condition, and the expert opinions as to her prognosis. You can take account of the recurrence of the symptoms of that disorder and the evidence as to the likelihood of future occurrences. You should take account of how she may feel as a result of all this.

There's expert evidence before you of a link between sexual abuse as a child and difficulties in subsequent relationships. There's evidence of a link between sexual abuse, post-traumatic stress disorder and ongoing abuse of alcohol, abuse of marijuana.

There's evidence that those with post-traumatic stress disorder can suffer difficulties with future relationships, including being a mother.

So all of those things have to be taken into account when you're assessing what sum you would allow for pain and suffering and loss of the amenities of life.

The next head of damage is impairment of earning capacity. The plaintiff claims that her earning capacity in the past has been impaired as a result of her injury and that it will continue to be impaired in the future. In principle, what you have to do is to compare her pre-injury earning capacity with her post-injury earning capacity, and in broad terms, your assessment of damages under this head represents the difference.

So what would her capacity have been but for the accident? What has it been and what will it be? But for the injury what has it been and what will it be after the injury?

The plaintiff was only a child when the injuries occurred. In forming a view as to her earning capacity, but for the abuse, you can take into account her school achievements before she went to Prep, her personality, her interests, any career aspirations she'd expressed. Consider her family background. Consider what her brother and sister have done with their lives. Neither completed secondary schooling, but they've gone on to worthy lives. The brother finished Year 10 and then went to an agricultural college and he's now working on the family property. The sister has lived in a country town. She married young, has children. She's done some secretarial work. You can consider the range of occupations followed by the plaintiff's classmates. D is working in administration. P is an account manager for an internet service provider. K and E are articled law clerks. And you'll know from your own experience of life that in any class of school pupils, there's a range of abilities, there's a range

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of personalities, there's a range of ambitions and there'll be a range of what they do with their future lives.

The plaintiff is still a very young woman. She said that she'd like to marry one day and have children. You may think that she would always have wanted to do that and you may think that that would in any event have resulted at least some time out of the paid work force while she raised her children. Remember that what she's to be compensated for is loss of earning capacity to the extent that she would have exercised that capacity, but for the injury. In other words, she's not to be compensated by reference to a notional income for periods when she would have been out of the work force in any event.

Another thing you have to take account of in assessing damages for loss of earning capacity is the vicissitudes of life - the ups and downs generally experienced, such as illness that may have occurred in any event, periods of unemployment that may have occurred in any event. She may have had a job had she not been injured and been put off by her employer. These are things that might tend to lead you to discount her claim. On the other side of the equation, there might be things that would lead you to increase it. For example, she might have had a job which resulted in a tremendous promotion and her earning more money than she would otherwise have expected.

So you take account of all of these things. And of course you have to take account of any residual earning capacity that she still has. You've heard that for several years she's been working at Spotlight. She's in a permanent part time position now working 25 hours a week and she said that if the work were available she'd like to work more. There's the possibility of her doing a secretarial course. You've heard the costs that would be involved and the potential earnings of a secretary. There was the possibility that she might have gone to university. She might have done some business course and become a stock broker. Consider all the evidence and whether you think that was a realistic possibility or whether it was pie in the sky. You also have to take account of relapses of the symptoms of post-traumatic stress disorder, of the evidence of Drs McIntyre, Gray and Reddan and that of Mrs Conolly, and the effect that that can be expected to have on her dependability as an employee and thus on her future earning capacity.

In assessing damages for the impairment of earning capacity, the Court takes account of the earnings or possible earnings of the plaintiff after the deduction of income tax. So you don't look at the gross income figure, but the figure after tax when you're deliberating on this aspect of the case.

When you're considering past loss of earning capacity, both

Ms Dalton and Mr Myers have asked you to assume that but for the abuse, the plaintiff wouldn't have entered the work force until the year 2000.

They are agreed that if she undertook tertiary study, HECS fees of $9,600 would be payable. Ms Dalton brought these to account in her calculation of past loss of earning capacity and Mr

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Myers in his calculation of future loss of earning capacity. But they are to be brought into account.

So far as past loss of earning capacity is concerned, what you must do is to assess what she would have earned but for the abuse and what she has in fact earned. And her past loss of earning capacity will be represented by the difference, if any, between what she would have earned and what she has in fact earned.

When you come to future losses, there's the question of discounting. This may sound very complicated, but really what it comes down to is this. The plaintiff is receiving a lump sum now for losses that in some instances won't be suffered until a long time into the future. That gives her an advantage, because she is able, if she wishes, to invest the money and get interest on it - money that is really intended to compensate her for something that hasn't happened

yet. So that's one reason for discounting. There are other factors to take into account in arriving at the appropriate method of discounting. For instance, there is the question of inflation. It may be that the losses she suffers in the future will cost her more because of the effect of inflation. So in the end, the Courts have had to work out certain rules for balancing up these factors. And actuarial figures have been devised to provide a solution to the factors and that's why you've been given that table of multipliers by Mr Myers.

Now, the way you work out a future loss is this. Decide on the weekly loss, the weekly figure. Decide on the number of years over which she'll suffer that loss. Then go to the column in those tables that's headed five percent. We call those the five percent tables. Select the relevant number of years and multiply the weekly loss by the figure in the five percent column which appears against that number of years. Then if you think it's necessary, adjust the figure up or down according to the vicissitudes of life; illness, unemployment, redundancy, promotions et cetera.

These assessments can't be precise. They are assessments that you have to make as well as you can on the facts that are before you. You're not in a position to know the future, but you have to do the best you can on the evidence that's before you.

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There is the question of loss of superannuation contributions. You probably know that under Commonwealth legislation, employers are obliged to make superannuation contributions in respect of their employees and the amount of the compulsory contribution is assessed as a percentage of the employee's earnings. In the year ended 30 June 2000, it was 7 per cent percent of gross weekly wages. Between 1 July 2000 and 30 June 2002, 8 per cent. Thereafter, it's to be 9 per cent.

Then there are other complicating factors. Income tax would have to be paid on the earnings of the superannuation fund. It would have to be paid again when the employee took a benefit from the fund.

All this could make the assessment of the loss of employer's contribution very complicated, so the Courts have worked out what seems to be a fair and relatively easy way of assessing the loss.

What you should do is this: start with the net weekly loss of wages up to trial. Take 8 per cent of that as the pretrial loss.

Then go to the net weekly loss of wages in the future and take 9 per cent of that as the future loss.

I'll come now to the plaintiff's need for care, a need which has been met gratuitously; without any payment by her. It's been met by A.

You've heard evidence of symptoms which she says recur. You've heard medical evidence that some of these such as urinary tract infections really couldn't be put down to post- traumatic stress disorder. But some of them could be.

You've heard evidence of what A has done for her, and it's up to you, using, again, your commonsense and your experience, to assess realistically what he's done and how long it would have taken him to do it.

Now, insofar as she's had recurrent periods of being unwell that are related to the post- traumatic stress disorder, and insofar as at those times she's needed care, she's entitled to be compensated for that need. It's her need for the services that gives her the right to damages even though the services haven't been paid for. The extent of the need doesn't necessarily equate with the level of services actually provided, and that's where you use your commonsense in evaluating the situation. But how do you quantify that loss? How do you award damages for such a need? Well, the Courts have said that what you do is this: your look to the commercial cost of providing similar services. Now, that's the significance of the agreement between Ms Dalton and Mr Myers that the commercial cost of those services, both in the past and in the future is $12.50 an hour. So the assessment of this part of the claim is

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not determined by reference to the actual cost to the plaintiff or by reference to wages that have been forgone by A in providing the services. The way it's done is to assess the plaintiff's need for the services and to use the commercial cost of similar services as the reasonable value of those services.

Insofar as she may need those services in the future, you have to work out the number of hours per week that she will, on average, need them and the number of years over which she will need them. You work out the weekly loss by applying the number of hours per week by

$12.50. Then you go back to that table of multipliers Mr Myers gave you and for this purpose you look at the 3 per cent column. It's beside the 5 per cent. Select the number of years. Multiply the weekly loss by the figure that's in the 3 per cent column against the number of years you've decided on and the result will be the present value of her future need for those services.

The next heading in Mr Myers' summary is special damages expenses. Now, these are out-

of-pocket expenses and it's agreed between the two sides that the amount there is $10,873.60. Then there's provision for future medical and like expenses. Mr Myers has taken you to the evidence of Mrs Conolly and Dr Reddan that the plaintiff needs ongoing treatment. There are going to be treatment costs and costs of travelling to attend treatment sessions.

If you are satisfied that she would benefit from further treatment, then you'll have to make an allowance for those costs. I don't suggest that you should add together the costs of the treatment recommended by Mrs Conolly and the costs of that recommended by Dr Reddan, because they're really alternatives.

What you should allow is what you think is reasonable on your assessment of the evidence. You may be puzzled by questions 5, 6 and 7 which ask you about the past component - the pretrial component - of certain losses. Well, I'll tell you why that's being asked. That's being asked because if you come back with an award of damages, it's then going to be up to the Court to work out interest on that part of the damages which relates to the pretrial period and that's why you're being asked how much you've allowed for the pretrial period.

There's one more big topic to cover and that's exemplary damages.

I'm conscious that you've been listening very attentively for over an hour and this must be fairly heavy going, so I'm going to give you a break now for a quarter of an hour. Then I'll come back and deal with exemplary damages, and give you a few general directions, and then you'll be going out to consider your answers.

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THE JURY RETIRED AT 10.40 A.M.

THE COURT ADJOURNED AT 10.41 A.M

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THE JURY RETURNED AT 11.05 A.M.

HER HONOUR: Ladies and gentlemen, I have just received a note from the jury. I'll deal with that in a moment and I'll deal with exemplary damages in a moment. Before I do, there

are three things that I just want to clarify arising out of what I said to you before the morning tea break. You will remember that I talked to you at some length about Mr Brewster's position and whether his acts and his knowledge were to be regarded as the acts and knowledge of the defendant itself or merely those an employee for which the employer was responsible, and I talked about various factors that you could take into account in deciding which it was.

Well, I omitted to specifically draw attention to the canon, the church law, which enabled the defendant to delegate certain powers, certain of its powers, and also to draw your attention to Mr Brewster's letter of appointment which is Exhibit 41 and that sets out what authority he had. So take that into account when determining that question.

The second thing that I want to clarify is something that I said about whether the defendant as the employer could be found vicariously liable for the sexual assaults. You'll remember this was a question of whether they should be seen as within the scope of employment as a way of carrying out the employment, albeit an improper way or as the other extreme, the very opposite of what he was employed to do, and I said there has to be a dividing line and where you draw it is for you.

Well, I just want to go over a bit of ground there. What you have to consider is, what was he employed to do? What was his job? What did that involve? What did he do - and you know what he did? Was that so closely connected with what he was employed to do that it should be seen as a way, albeit an improper way, of what he was employed to do, or should it be seen as the very opposite of what he was employed to do. That's the question you have to consider.

Then the third thing I want to clarify is something I said about past economic loss (past loss of earning capacity). You will remember I said essentially you look at what would she have earned but for the abuse, and what has she earned but for the abuse, and prima facie the difference is the past loss of earning capacity. Well, when you're looking at what she had in fact earned, take account of everything she's earned since the abuse, not just what she's earned since the year 2000, because you'll remember that both counsel - both barristers approached it on the basis that she would have gone to university and wouldn't have - or she would have undertaken some tertiary study and wouldn't have entered the paid work force until 2000.

Well, that's not what happened, so you take account of what actually happened and what actually happened when she started earning before then. So take account of all the earnings before then. Do you understand?

Now, I have a question from the jury. It's in two parts. I'll read it out. Exemplary damages - how does the jury know if damages for the Guy incident have not been paid before many

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times? I would have thought it may be possible for counsel to reach agreement on the answer to that.

MR MYERS: Yes, the answer to that question is no, your Honour. It's agreed on that.

MS DALTON: Yes, your Honour.

HER HONOUR: So do you understand? Damages have not been paid before for the Guy incident, and that's agreed. The second question is headed trial expenses, who pays these? Well, it's a matter for the Court to determine at the end of the day. We wait and see who wins the case. The usual rule of law is that the loser pays the winner's costs. It won't be all of them, but it's worked out according to a scale that's laid down in the law. But we can't determine it in advance. We have to wait and see who wins the case and then it'll be a question on which I expect both barristers will make submissions to me and I'll have to make a ruling. But you shouldn't take that into account at this stage. I'll have that note placed with the papers and marked for identification. It will be "HH", I think.

MARKED "HH" FOR IDENTIFICATION

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Now, I'll come to exemplary damages. As you know, the plaintiff's claiming exemplary damages as well as compensatory damages. Exemplary damages are sometimes called punitive damages. They're damages intended to punish a wrongdoer and to deter others from similar conduct. Mere disapproval of behaviour can't lead to an award of exemplary damages. There's got to be a lot more than that. What there has to be is your assessment that there was conduct amounting to conscious wrongdoing in a cruel and shameful disregard of the plaintiff's rights or amounting to such indifference towards her plight that it's deserving of punishment. And if you're satisfied of that, then, subject to all the other things I'm about to tell you, it would be open to you to award exemplary damages as well as compensatory damages.

The object of exemplary damages is to punish the wrongdoer, but it's to punish him for conduct associated with the plaintiff in the sense that the plaintiff was the victim of it. She may not have known of the particular conduct, but she, rather than someone else, must have been the victim of it.

Exemplary damages may be awarded for the conduct which constituted the legal wrong - in this case, for the conduct up to 9 November 1990, and also for conduct after that - in this case, the way in which the defendant dealt with the abuse of the plaintiff after it came to light and the way in which it's behaved in the litigation. And remember, this litigation wasn't started until about 12 months ago, so it's from about 12 months ago up until the conclusion of the trial.

In relation to the period up to 9 November, you have to consider both the conduct of the defendant itself - and that's that primary liability issue that I've been talking about - and also that of its employees - the vicarious liability issue. But in relation to the period after 9

November, it's principally the conduct of the defendant itself you have to consider because

Mr Brewster was reporting to his superiors and he was acting on their instructions.

Both barristers have carefully taken you through the evidence of how things were handled after 9 November, and I'm not going to go through it all again. You won't need to be reminded that sexual abuse of children is surely one of the most appalling examples of deviant behaviour, with the potential to wreck young lives. Allegations of that type of abuse must be taken seriously and thoroughly investigated. Complainants must be treated with respect and sensitivity, and genuine victims of sexual abuse usually need substantial support and assistance to deal with what's happened to them. But, equally, don't lose sight of the fact that allegations of sexual abuse are sometimes falsely made, with potentially catastrophic effects on reputations and careers. The defendant should have maintained a proper balance between these competing considerations until adequate investigations had been completed. Whether it did so is for you to determine. Whether its conduct in the weeks immediately following 9 November and/or its conduct in the ensuing 11 years amounted to such conscious wrongdoing in cruel, shameful disregard of the plaintiff's rights or such indifference to her plight as to be deserving of punishment is for you to assess.

You might find that one or more of the employees of the defendant acted shamefully. It may be that had those employees been sued, you would've thought it proper to award exemplary damages against them. It doesn't necessarily follow that because it's their employer who's

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been sued and who's legally responsible for their negligence that you should award exemplary damages against the defendant employer. For this purpose, you can consider the position of the employer separately from that of an employee. You have to consider all the circumstances. For example, was the reprehensible conduct of the employee a failure to do something positive, or was it something he actually did? One factor which may be relevant but not necessarily decisive to the question of whether to award exemplary damages against the employer is whether the employer in some way encouraged or incited the reprehensible conduct of its employees.

It's the plaintiff who bears the onus of satisfying you of these matters on the balance of probabilities. The allegations are very serious, and if made out, they may have the serious consequence of an award of exemplary damages. It follows that you should examine any disputes of fact very carefully before making findings favourable to the plaintiff.

Consider the amount that you've decided to award for compensatory damages. You may think that having to pay that amount is, in itself, sufficient punishment. It'll only be if you think that the compensatory damages are insufficient punishment that you may award something extra by way of exemplary damages. What you would have to decide would be what extra sum you should award so that when it was added to the compensatory damages, the total sum represented adequate punishment.

It wouldn't be necessary that there be any particular mathematical relationship between the compensatory damages and the amount for exemplary damages. For example, it wouldn't be necessary that the amount awarded for one category of damage be so many times that award for the other, or that it be any particular percentage of the other.

But, ladies and gentlemen, it is the law that you should exercise restraint in deciding on any amount to be awarded for exemplary damages. You may have heard about enormous sums being awarded for exemplary damages in the United States. Well, whatever they may do there, you have to apply the law of this country, and the law of this country is that you must exercise restraint and be conscious of the dangers of excessive awards.

And, finally, in deciding whether to award exemplary damages, and if so, how much to award, you can take account of the defendant's capacity to pay.

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Now, you are about to retire to consider these matters. You can take the exhibits into the jury room as I have said. Obviously you're going to have to discuss the case amongst yourselves, but you must not discuss it with anyone else before you return to Court with your answers.

If you require further assistance during your deliberations you're quite entitled to ask for it. You may wish a direction on a point of law. You might wish to be reminded of some of the evidence. If that situation arises, let the Bailiff know there's something on which you want assistance. Don't tell him what it is. It may help if you write it down, as you have with questions to date. The Court will reassemble, and through your speaker you can tell me what the problem is, and I'll do my best to answer it.

As I've already said, your answers must be unanimous.

Unless you answer "yes" to 1(a) and (b) and/or to 2(a) and (b), and/or to 3(a) and (b) there's no need to answer the following questions about damages. If you do come to damages, unless you answer "yes" to eight, there's no need to answer nine.

When you have agreed on your answers, tell the Bailiff that you've agreed but don't tell him what the answers are. Wait until you're back in Court for that purpose.

When you return my Associate will ask you: "Members of the jury, are you agreed on your verdict?" And, if your speaker answers "yes", my Associate will then ask you: "Have you answered the questions before you?" If your speaker answers "yes", my Associate will then ask for your answer to each question and you will respond through your speaker.

After your speaker has answered all the questions, he or she should hand the sheet of paper on which the answers have been written to my Associate. My Associate will then ask: "So says your speaker, so say you all?" And, at that point you'll collectively confirm that the answers are unanimous.

One more thing. In a jury trial it's often the case that after the Judge has finished summing up and the jury has retired, one of the barristers thinks, or they both think, that the Judge has given insufficient attention to matters or that a certain statement needs clarifying. If that happens when you go out, I expect that Counsel will raise the matters with me. If necessary, you'll be brought back into Court promptly and I'll endeavour to answer the question.

Before you retire, I'll ask my Associate to swear in the Bailiff.

BAILIFF SWORN

HER HONOUR: Ladies and gentlemen, please retire and consider your answers. The exhibits, but not those marked for identification are to go with the jury.

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THE JURY RETIRED AT 11.24 A.M. TIME: 2.49 P.M.

HER HONOUR: Mr Bailiff, has the jury reached a decision?

BAILIFF: Yes, thank you, your Honour.

HER HONOUR: Would you bring in the jury, please?

THE JURY RETURNED AT 2.50 P.M., HAVING ANSWERED THE QUESTIONS AS FOLLOWS:

ASSOCIATE: Members of the jury, are you agreed upon your verdict?

SPEAKER: Yes.

ASSOCIATE: Have you answered the questions before you?

SPEAKER: Yes.

Questions for the jury:

Q:1(a) Did the defendant fail to take reasonable care of the plaintiff while she was a boarder at the Toowoomba Preparatory School?

A: Yes

Q: 1(b) Did the plaintiff suffer loss or damage as a result of that failure? A: Yes

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Q:2(a) Did any of the defendant's employees fail to take reasonable care of the plaintiff while she was a boarder at the Toowoomba Preparatory School?

A: Yes

Q: 2(b) Did the plaintiff suffer loss or damage as a result of that failure? A: Yes

Q:3(a) Is the defendant vicariously liable to the plaintiff for the assaults on her by Guy?

A: Yes

Q: 3(b) Did the plaintiff suffer loss or damage as a result of those assaults? A: Yes

Q:4 How much should the defendant pay to the plaintiff by way of compensatory damages?

A: $415,000

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07122001 D.18 T10/KK M/T TWB1,2/2001 (Wilson J)

Q: 5 How much of the total sum you have specified in answer to question 4
is for damages for past pain and suffering? A: $80,000

Q: 6 How much of the total sum you have specified in answer to question 4
is for damages for past loss of earning capacity? A: $14,000

Q: 7 How much of the total sum you have specified in answer to question 4
is for damages for past need for care gratuitously provided?

A: Nil

Q:8 Should the defendant pay the plaintiffexemplary damages as well as compensatory damages?

A: Yes

Q:9 How much should the defendant pay to the plaintiff by way of exemplary damages?

A: $400,000

ASSOCIATE: So says your speaker, so say you all?

SPEAKER: Yes.

HER HONOUR: Ladies and gentlemen of the jury, I want to thank you very much and most sincerely for your attention to this case over the last four weeks and for determining these questions as representatives of the community. I know that serving on the jury has been a great inconvenience to you but it's a very important public duty and it's one that you fulfilled very diligently. Thank you, very much. You're free to go now. You won't be required any further. Thank you.

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

WILSON J

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07122001 D.18 T10/KK M/T TWB1,2/2001 (Wilson J)

No 72 of 2000

S Plaintiff

and

THE CORPORATION OF THE SYNOD OF THE

DIOCESE OF BRISBANE Defendant

TOOWOOMBA

..DATE 07/12/2001

JUDGMENT

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06122001 D.17 T37/VL M/T TWB3/2001 (Wilson J)

HER HONOUR: I order that judgment be entered for the plaintiff against the defendant in the sum of $834,800. I order the defendant to pay the plaintiff's costs of and incidental to the proceeding including reserved costs, if any, such costs to be assessed on the standard basis.

3 SUMMING-UP

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[2001] QSC 473

6 December 2001