State of New South Wales v Sticker

[2015] NSWCA 180

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v Sticker [2015] NSWCA 180

Hearing dates:

8 May 2015

Decision date:

01 July 2015

Before:

McColl JA at [1];
Gleeson JA at [2];
Leeming JA at [3]

Decision:

1. Order that the name of the appellant be corrected to “State of New South Wales”.

2. Appeal allowed.

3. Set aside the orders made on 17 April 2014.

4. The respondent to pay the appellant’s costs of the appeal, but be given, if otherwise qualified, a certificate under the Suitor’s Fund Act 1951 (NSW).

5. The parties are referred to court-annexed mediation. Such mediation is to occur by no later than 12 August 2015.

6. The parties are to attend upon the Registrar of the Equity Division of this Court forthwith to obtain a date for mediation.

7. After 12 August 2015 the matter, if unresolved at mediation, is remitted to the District Court for a new trial, such remitter to include determining the costs of the first trial before the primary judge.

Catchwords:

NEGLIGENCE - vicarious liability of State - teacher injured at school - young pupil with history of disruptive behaviour - challenges to trial judge’s findings of breach and causation - where primary judge failed to address all relevant documentary evidence - findings of breach and causation set aside - errors in assessment of damages - proceedings remitted for retrial

Legislation Cited:

Civil Liability Act 2002 (NSW), s 3B
Court Suppression and Non-publication Orders Act 2010 (NSW), s 8
Crown Proceedings Act 1988 (NSW), s 5
Suitor’s Fund Act 1951 (NSW)
Work Injury Management and Workers Compensation Act 1998 (NSW), s 318

Cases Cited:

Avery v Registrar of Births, Deaths and Marriages [2010] NSWCA 72
Czatyrko v Edith Cowan University [2005] HCA 14; 79 ALJR 839
Malec v J C Hutton Pty Ltd [1990] HCA 20; 169 CLR 638
March v E & M H Stramare Pty Ltd [1991] HCA 12; 171 CLR 506
Mouti v Nguyen [2015] NSWCA 93
Truffet v State of Queensland [1998] QCA 160

Category:

Principal judgment

Parties:

State of New South Wales (Appellant)
Jeanette Sticker (Respondent)

Representation:

Counsel:
P Morris SC, J Catsanos (Appellant)
R Sheldon SC, E Welsh (Respondent)

Solicitors:
BBW Lawyers (Appellant)
Federation Law (Respondent)

File Number(s):

2014/136532

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court

Citation:

[2014] NSWDC 37

Date of Decision:

17 April 2014

Before:

Levy SC DCJ

File Number(s):

2012/356133

Judgment

1. MCCOLL JA:  I agree with Leeming JA’s reasons and the orders his Honour proposes.

2. GLEESON JA:  I agree with Leeming JA.

3. LEEMING JA:  

Overview of factual background

4. Ms Jeanette Sticker was employed at all material times as a primary school teacher at the Bert Oldfield Public School in western Sydney. The school was relatively small. In 2008, it had a principal, three assistant principals (one of whom worked part-time) and 10 classes between kindergarten and year six, the majority of which were composite classes containing students from two years. Ms Sticker gave evidence that there were around 250 pupils at the school, and that over the years since 1995 during which she had been at the school there had been a high proportion of refugee children, initially from former Yugoslavia, but in 2007-2009 from parts of Africa.

5. In the first half of 2008, Ms Sticker had no class of her own, but instead taught a computer class two days a week and gave learning support in a variety of classes, depending upon what was needed at the time. In the second half of 2008, she was the Acting Principal while the Principal was on leave. She had applied for the job as Principal, but was not appointed. In 2009 she returned as Assistant Principal teaching a computer class and providing learning support.

6. On 18 March 2009, Ms Sticker suffered serious injury while at school. A workers’ injury claim form completed by her described what happened as follows:  

“Leading a child by the hand through a door. Child braced and pulled me back. Landing awkwardly with right hip pushing out.”

7. The child was then aged seven. His name is subject to an order made pursuant to s 8 of the Court Suppression and Non-publication Orders Act 2010 (NSW). Like the primary judge, I shall refer to him as “X”. He had two older siblings, and his older sister was also at the same primary school. X is of Liberian background and English is not his first language. He had a history of disruptive behaviour at the school. Indeed, he had been suspended on 27 February 2009, three weeks earlier. There was evidence that he had formerly lived in a refugee camp, and that he and his older siblings and their mother had been granted protection visas to live in Australia.

8. There was no dispute that Ms Sticker was seriously injured when she fell. Given the limited challenge made on appeal, it will not be necessary to summarise the details of the injury and its treatment in these reasons. It is sufficient to note that the primary judge found that her continuing symptoms included paraesthesia and numbness in her right leg laterally, numbness and persisting pains in her right foot, persisting pain in her right buttock and hip, persisting weakness in her right ankle, foot and toes, a right foot drop, a neurogenic bladder and a lumbar list. It was common ground that there was an adverse impact upon Ms Sticker’s earning capacity. She no longer works at the school, but in the private sector as an educational trainer, and for reduced hours due to disabilities flowing from her injury.

Overview of proceedings at first instance

9. Ms Sticker sued the State of New South Wales, pursuant to s 5 of the Crown Proceedings Act 1988 (NSW), for what she alleged was the tortious conduct of the school. The Statement of Claim named the defendant as “State of NSW (Department of Education and Communities)”. That was not inaccurate. However, the State’s defence and the judgment at first instance referred to “NSW Department of Education & Communities” as though that Department were a legal person capable of being sued. That is not so: see for example Avery v Registrar of Births, Deaths and Marriages [2010] NSWCA 72 at [122]-[134]. Especially where Ms Sticker had expressly relied upon s 5, the defendant, now the appellant, should be named “State of New South Wales”. I propose that an order to that effect be made correcting the record in this Court.

10. Ms Sticker’s pleaded case was that student X should have been assessed as unsuitable to attend the school either at the time of his enrolment, or “at the latest in June 2008 when ISTB funding was sought to assist with the management of his behaviour”. ISTB stands for “itinerant support teacher behaviour”. Speaking generally, a successful ISTB application would mean that an additional teacher would attend the school, once a week for ten weeks, to assist a disruptive student. Alternatively, it was alleged that ISTB funding should have been made available to prevent the escalation into acts of violence by X. The trial judge found that no ISTB support was given in the second half of 2008, although it was made available in early 2009. There was no challenge to those findings.

11. The primary judge was critical of the school’s response to the problems posed by X. Speaking generally, his Honour found that the child should have been either suspended or removed from the school, that those measures were reasonable and practical, viewing the matter prospectively and had that occurred, Ms Sticker would not have been injured on 18 March 2009. The appellant challenges those findings, while Ms Sticker, by notice of contention, seeks to expand the breaches of the school’s duty of care extending into 2009. The consequence is that it will be necessary to have close regard to the problems perceived to arise from X in the period preceding 18 March 2009.

12. The primary judge ordered a judgment in the amount of $689,294. The three largest components were $161,989 for past economic loss, $425,000 for future economic loss and $55,250 for future loss of superannuation. A significant contributor to those calculations was his Honour’s finding that, but for the injury, Ms Sticker would have been working as a Principal, rather than an Assistant Principal. His Honour also found that Ms Sticker would only be able to continue in employment for a further two to three years after the date of the trial, as a result of her injuries.

Issues on appeal

13. The State has appealed as of right. It challenges the findings of breach and causation (grounds 5 and 6), and alleges that the primary judge failed to give adequate reasons (ground 7). It also challenges the damages awarded, seeking to overturn the findings that Ms Sticker would have been working as a Principal, and would not continue working for longer than two to three years (grounds 8 - 11).

14. For her part, Ms Sticker has by way of notice of contention sought to defend the judgment in her favour by submitting that the primary judge ought to have accepted and adopted the expert opinion evidence of Dr Tronc (ground 1), and identified other breaches of duty which, so it is alleged, would have resulted in X not being at the school on 18 March 2009 (grounds 2 and 3).

15. The essential issues are fourfold. First and second, whether appellable error is shown in the primary judge’s determination of breach of duty and causation. If so, then the question arises whether this Court can determine the remaining issues, particularly Ms Sticker’s reliance on the evidence of Dr Tronc. The fourth and final issue is whether there is appellable error in the assessment of damages. I deal with the issues in that order.

Breach of duty and causation

Reasons of the primary judge on liability

16. The primary judge summarised, in a very long paragraph [31] extending over four single-spaced pages, 16 “documents of significance”, commencing with X’s Semester 1 Kindergarten report of 2007, and concluding with some handwritten notes dated 16 March 2009 as to X’s behaviour in class two days before the incident. His Honour then addressed the competing expert opinions of Dr Spicer (called by the State) and Dr Tronc (called by Ms Sticker), regarding them as “commentaries rather than true expert opinions”, and stating that he did “not regard any of the issues calling for decision to necessarily require a resolution of the expert opinions”. It will be necessary to return to the expert evidence below. For present purposes, it suffices to note that in the course of addressing the expert evidence, his Honour anticipated some of the findings contained in his Honour’s subsequent dispositive reasoning on liability. He said the following at [42]:

“… the school did too little too late, given the information the school must be taken to have had at its disposal, as is evident from the exhibits in the case, and as summarised in the series of sub-paragraphs at paragraph [31] above.”

17. His Honour added at [44]-[46] that:

“… the school's record keeping was incomplete and inadequate, which resulted in the Principal remaining incompletely aware of the history and the extent of the misbehaviour of ‘X’, and that the school policies on bullying control and expulsion procedures were not adequately implemented.

In view of the facts set out in the chronology extracted from the exhibits at paragraph [31] above, I find myself quite unable to accept the opinion of Dr Spicer, as expressed at the conclusion of the joint report, where she stated her belief that the school was a safe working environment: Exhibit ‘N’, page 6. For as long as ‘X’ remained a student at the school, the opposite was true.

I consider Dr Spicer’s comment at page 2 of the joint report, referring to the fact that ‘X’ was getting support, to be a superficial analysis. Support was not the issue. The risks posed by the presence of ‘X’ needed to be addressed because of his behaviour. It is that aspect of Dr Spicer’s opinion which persuades me the issues in this case should be decided on fact findings, and not upon the competing views of the experts on factual matters.”

18. It will be seen from the passages reproduced above that the summary of documents at [31] was material to this aspect of his Honour’s reasons.

19. His Honour addressed negligence at [76]-[97]. The State accepted that there was a non-delegable duty to take reasonable care to avoid exposing Ms Sticker to unnecessary risk of injury. His Honour found that there was a “compelling” conclusion that that duty had been breached, because of what had happened in the first half of 2008. His Honour dealt with that period of time at [82]-[86]:

“... on a prospective view, in May 2008, a high risk assessment was assigned to the behaviour of ‘X’ at the school. At that time it was already recorded that he had been hitting and kicking other children. He was no longer a toddler. His behaviour could therefore not be seen as benign having regard to his age, as Dr Spicer seemed to suggest.

‘X’ was 7 years old at that time. His behaviour was serious enough for a risk assessment to be undertaken. Unfortunately, nothing of significance was done to address the risks that were actually identified at that time.

Furthermore, the filing of student records at the school appeared to be deficient so that the records were not well co-ordinated and amenable to ready review to determine whether a pattern of behaviour was emerging that required a protective response in the interests of the safety of staff and students who were exposed to the potential risk of injury from such behaviour.

Instead, the response to the risk assessment was to put the problem off, and seek more support for ‘X’. That did not address his uncontrolled behaviour. At that time he was already receiving 10 hours of support each week. The suggestion that he needed 1 on 1 support should have flagged the urgent need for referral to at least a paediatrician at that stage, as the experts ultimately agreed.

It is clear on the evidence that because of his behaviour, the student by that time did not belong in a mainstream school. He clearly had special needs concerning the management of his behaviour and its underlying causes. The failure to act on these issues meant exposing students and staff to unnecessary risk.”

20. His Honour then dealt with the second semester of 2008 in a single paragraph, [87]:

“The Semester 2 note to the effect that ‘X’ was starting to recognise when he was losing control should not be seen as an encouraging sign because it was an isolated note without a broader context to indicate whether there was significant improvement that meant the earlier risk assessment could be downgraded. Someone should have been monitoring his behaviour in the interest of the safety of other students, at the very least. There was no evidence of this having occurred. Instead, the problem of the behaviour of ‘X’ was allowed to continue unchecked, and to worsen.”

21. The balance of his Honour’s conclusions on breach of duty were at [88]-[96]:

“The school was floundering in how to deal with ‘X’, as Exhibits ‘1’ and ‘F’ show. On 26 February 2009, nearly 3 weeks before the plaintiff was injured, ‘X’ was seen to represent an extreme danger to others. At the age of [7] years, he was not frightened to stand up to the teachers and to defy them. This was a sentinel sign that should have been acted upon promptly without allowing days or weeks to pass whilst the problem festered and the risk of injury to others went unaddressed.

The response of the school lacked immediacy for such a serious problem where students and staff remained at risk of serious injury in circumstances where the slightest trigger could precipitate the behaviours in question.

The school was too slow to take ‘X’ out of the mainstream school environment, as the chronology of documents events from 26 February 2009 onwards progressively demonstrates. A directed intervention was required in the interest of safety. This was not a theoretical consideration. ‘X’ had a proven capacity and tendency to cause harm to others. Instead of being removed from the school and placed where he could be properly supervised, he was allowed to remain where he was, exposing students and teachers to the unnecessary risk of injury.

The circumstances were foreseeably primed for someone to be injured, potentially seriously, and in unpredictable circumstances. The response of the school was incrementally inadequate as time went on.

The subsidiary question then arises as to what a reasonable response to the circumstances would have been, viewing the events prospectively, and not with the benefit of hindsight: Vairy v Wyong Shire Council, at [124] - [129].

In my view, the magnitude of the risk of injury to staff members, not just to other pupils, was a real and significant one, and the probability of associated serious harm was not remote but very real.

It was clear from the evidence that the defendant had the means of protecting the plaintiff from the unnecessary risk of injury of the kind she suffered. This could simply have been by the expedient means of suspending the child from school and finding alternative arrangements for his schooling, as in fact occurred successfully after the plaintiff was injured. The immediacy of that need in February and early March 2009 was escalating. It is no answer to say that the mother of ‘X’ was not available at relevant times. The school had access to mechanisms to address such problems.

The suspension or removal of ‘X’ from the school as a protective measure was reasonable, practical, and one that was within the defendant's capability to provide, as in fact occurred after the event. There is no basis from within the evidence to infer that the cost of such an intervention was either prohibitive or unreasonable in the circumstances.

I therefore find that the defendant was in breach of the duty owed to the plaintiff, and was negligent in failing to carry out basic steps to protect the plaintiff from exposure to the needless risk of injury that could have been avoided by the exercise of reasonable care.”

22. His Honour addressed causation at [97]:

“I also find that the plaintiff’s injury was relevantly caused by the failure of the defendant to act in a timely manner to protect the staff and students at the school from the violent, aggressive and anti-social behaviour of ‘X’ that was evident over a long period of time, during which the misbehaviour of ‘X’ remained uncontrolled, and prone to unpredictable flare-ups that defied rational analysis, and which in fact escalated and worsened.”

The improvement of X in the second half of 2008

23. Senior counsel for the appellant was critical of the summaries of documents relating to 2008 (items 2-7 in [31] of his Honour’s reasons). In particular, he was critical of the failure by the primary judge to address evidence that X’s behaviour had improved in the second half of 2008. In order to resolve that submission, it is necessary to necessary to recount the evidence relating to X’s behaviour in both the first and second semesters of 2008.

24. In February 2008, X was in a composite kindergarten/year one class of 20 students. His teacher wrote on an internal form, in boxes labelled “What concerns you most” and “Please describe the best things about this pupil”:

“[X] displays high levels of tiredness in class and is frequently not concentrating on learning tasks/activities. Occasionally has disruptive behaviours on playground.

Always willing to help with classroom jobs and has good sense of humour”

25. The documents demonstrated that in the first half of 2008, X was receiving 10 hours of learning support and teaching of English as a second language (“ESL”) every week, but still was having difficulty following playground and school rules. The School was aware that X and his family had been referred through STARTTS (Service for Treatment and Rehabilitation of Torture and Trauma Survivors) the previous year and that counselling was continuing.

26. In May 2008 a “Student behaviour analysis and prompt sheet” was completed, identifying a series of behaviours involving a risk of harm (including physical attacks and throwing projectiles), around 2 times a day, which were rated as “High Risk” and which had required first aid. The document identified a “Risk Management Plan Proforma” [sic] and had been prepared by another of the Assistant Principals. It identified seven measures to be imposed to manage the behaviour (including “Reward system”, “Stop Think Do Program” and “Supervised play”). The primary responsibility was placed on the ESL and class teachers, but the plan was to be communicated to all staff.

25. The same Assistant Principal completed an application in June 2008 for additional support. The form noted that X was receiving 10 hours of support already, “requires constant 1-1 teacher support and supervision to complete his work in all areas”, and said:

“Great difficulty following playground and school rules. Does not appear to be able to control himself, unaware that he has broken rules, hurt someone, etc. Always tired, going to bed very late, often eats his food before school, difficulty concentrating.

The school counsellor has placed the family on the priority list for STARTTS program due to settlement issues. Older sister has required ISTB and RSSSP funding. Often arrives at school very tired, falls asleep often. The school has tried to address all these issues with the family.”

28. It appears that no ISTB teacher was provided in 2008. That was Ms Sticker’s evidence in chief and was consistent with the staff sign-off sheets for 2008 and 2009: no ISTB teacher was recorded in the second half of 2008. An ISTB teacher (Chris Avent) did attend in 2009: on 18, 25 and 27 February, and 4 and 11 March 2009 (although not, as it happens, on 18 March 2009, the date of the incident). The four day suspension on 27 February 2009 occurred after X had been observed by that teacher.

29. As the appellant submits, the central difficulty with the reasoning of the primary judge in 2008 is that it neglects the evidence suggesting significant improvement in X’s behaviour in the second half of 2008. There are three indications of this.

30. First, there is the teacher comment on his semester two 2008 report:

“X is a happy and energetic student. X has needed less supervision than earlier in the year and now completes many of his tasks within the required time. … X plays and mixes well with other peers and would benefit from more interaction with others of the same age. He has been a pleasure to teach this year. Keep trying in Year 2!”

31. That report was not mentioned at all in the four page summary of relevant documents in the primary judge’s reasons in [31].

32. Indeed, the only document mentioned by the primary judge in [31] from semester two in 2008 was a report from a support teacher. As summarised in the judgment, it was described thus:

“In Semester 2 in 2008, the Support Teacher Report stated that ‘X’ was still having trouble remembering how to play nicely in the playground, and there was mention of him starting to recognise when he was losing control.”

33. What the document in fact said was:

“X is still having troubles remembering how to play nicely on the playground. He is starting to recognise when he is in control and so he will try to ask for help. We are working with him to develop coping strategies for the playground. Keep trying hard, X.”

34. Thus both of those documents refer in terms to an improvement in behaviour from the first half of the year.

35. Both of those documents were written with a view to their being read by X’s family. Senior counsel for the State acknowledged that “although one would try to put things with a positive spin, there’s no reason to believe that those comments are untrue, especially given the way they compare with the earlier report where all of these matters were of concern”. There is force in that submission, accepting as I do that report cards are not necessarily wholly reliable.

36. The third matter suggesting there had been a marked improvement in the second half of 2008 is the absence of internal documents directed to misbehaviour by X. In contrast with the first half of 2008 (and, as will be seen below, 2009), there are no internal documents reflecting behavioural issues in the classroom or on the playground. This is plainly a case where Ms Sticker has had access to the school’s internal documents, and tendered those disclosing disruptive behaviour. Further, although Ms Sticker was relieving as Principal in the second half of 2008, there is no reason to think that the level of document creation and retention for disruptive pupils was different in that period.

37. His Honour said that “[s]omeone should have been monitoring his behaviour in the interest of the safety of other students, at the very least” and “[t]here was no evidence of this having occurred”. What level of “monitoring” was called for was left unstated. Both of the reports for the second half of 2008 described improved behaviour, which indicates that two teachers were, at least to an extent, monitoring X. Moreover, the criticism by the primary judge was premised on X’s unsatisfactory behaviour continuing. Although his Honour concluded that “the problem of the behaviour of ‘X’ was allowed to continue unchecked, and to worsen”, there is no evidence at all that X’s behaviour worsened in the second half of 2008, and all available evidence is that it improved.

38. The inference to be drawn from the contemporaneous documents is that there were improvements in X’s behaviour following the risk management plan being put in place in May 2008. The primary judge did not rely on testimonial evidence to negate that inference. So far as I can see, there was none. His Honour simply drew a different conclusion, that the note from the support teacher was “an isolated note without a broader context”: at [87], reproduced above.

39. I cannot agree. His Honour’s view evidently rested upon the documentary record, but he appears not to have had regard to the second semester report at all. The documentary record discloses a significant difference between the first and second semesters in 2008, coinciding with the risk management plan.

40. Save for one thing, I am unable to conclude that the suspension or removal of X was reasonable or practical in 2008. If there was contrary documentary or direct testimonial evidence, neither the written nor the oral submissions of the respondent identified it. Indeed, while not abandoning written submissions in defence of the primary judge’s findings as to 2008, in substance the respondent did not seek in oral submissions to defend the failure by the primary judge to have regard to the evidence suggesting improved behaviour in the second half of 2008.

41. However, the respondent had served an expert report from Dr Tronc, to which no material objections were taken. He had extensive qualifications and background in teaching education at a tertiary level, but who, according to his curriculum vitae, last taught at a school in 1962, which is to say, 53 years ago. However, when this was clarified, he said that he last taught in a classroom environment with junior students of the age of X “probably in the late 80s”. He expressed the opinion that the State “failed to take early enough action, in transferring the assailant out of the mainstream school to an alternative special education setting”. The “assailant” to which Dr Tronc refers here and throughout his report is X, who in March 2009 had just turned 7. Dr Tronc’s opinion is problematic, not least because Dr Tronc was asked to assume that “[t]hroughout the period of the assailant’s enrolment between 2007 and March 2009, his behaviour was such that he was not suitable for enrolment in the said school and he should have been removed”.

42. Dr Tronc was cross-examined in relation to the apparent improvement in the second half of 2008. After expressing concern that report cards were not reliable, there was the following exchange:

“CATSANOS:  Dr Tronc, in relation to what you said about report cards, taking on board the nature of them as you perceive them, if you get report cards from a particular school, such as this, which show a certain type of comment which might be relatively positive, and then in a semester such as first semester of ’09, her comments are far more concerning, that’s consistent, isn’t it, with there being a deterioration in the behaviour in that semester compared to previous semesters?

WITNESS TRONC: No. In this particular case there was evidence from an early stage of various specialist and teachers using language such as extreme danger, grave concerns physical attacks upon other people, dangerous and unpredictable, and intentional bully to hurt other people, so I think the negativity and comments about danger and concern outweighed the positive comments.”

43. Although there is, with respect, force in the conclusion reached by the primary judge that Dr Tronc’s report was merely in the nature of a “commentary” on the documentation, the witness’ evidence went further. His Honour did not make findings on the opinions expressed by Dr Tronc, which were contradicted by the State’s expert. I return to this and the unresolved conflict in expert evidence below.

The policies for suspension and expulsion

44. The school had in place a policy governing the suspension of students:  “Suspension and Expulsion of School Students Procedures”, which was tendered at the trial but not mentioned by the primary judge. Unsurprisingly, the policy emphasises that suspension is a relatively extreme measure, and expulsion even more so. It states:

“Suspension is only one strategy within a school’s student welfare and discipline policies. It is most effective when it highlights the parent(s) or carer(s) responsibility for taking an active role, in partnership with the school, to modify the inappropriate behaviour of their child. The school and the government school system will work with parent(s) or carer(s) with a view to assisting a suspended student to rejoin the school community as quickly as possible.”

45. The policy distinguishes “Short Suspension” (which is for no more than four school days) and “Long Suspension” (for periods up to 20 school days). Short suspensions may be imposed for continued disobedience, or aggressive behaviour. A short suspension must be preceded by a formal disciplinary interview with the student, and a suspension resolution meeting arranged by the principal at the earliest opportunity.

46. The policy discloses a series of graduated sanctions. It states:

“If behaviour management programs and short suspensions have failed to resolve the issue of inappropriate behaviour, strategies such as further short suspensions, a longer suspension or alternative educational programs must be considered.

...

If short suspensions have not resolved the issue of inappropriate behaviour, or the misbehaviour is so serious as to warrant a long suspension, the principal may impose a long suspension … ”

47. The policy identifies that a long suspension may be imposed for physical violence, the possession or use of a prohibited weapon, firearm or knife, the possession or use of a suspected illegal substance, the use or threatened use of an implement as a weapon, serious criminal behaviour related to the school, and persistent misbehaviour.

48. Both short and long suspensions must be determined by the principal (or the acting principal), who must convene the suspension resolution meeting with the parent(s) or carer(s). Clause 7.3.2 provides:

“If parent(s) or carer(s) are unable or unwilling to attend a suspension resolution meeting, the principal should consider the individual merits of the case and attempt to ensure that the student is back at school on or before the concluding date of the suspension period. Where it is not possible to resolve a suspension by the due date, the school education director must be notified and alternative steps taken by the principal, in consultation with the school education director, to resolve the suspension and facilitate the student’s return to school. Clear documentation should be provided to the school education director indicating why the suspension cannot be resolved.”

49. A student may be expelled by the principal “in serious circumstances of misbehaviour”.

50. Save for one thing, I would be unable to conclude that X should have been suspended in the second half of 2008. Still less can I conclude that X should have been permanently removed from the school in the second half of 2008. So far as may be seen, viewing the matter prospectively, the steps put in place by the school were achieving their intended goals. True it is that X was not receiving ISTB services, although an application was made. However, it turned out that so far as X was concerned, those services were not necessary in the second half of 2008. They were provided in 2009, and in the absence of any separate application in the evidence, it may be inferred that that came about because of the application in June 2008.

51. However, Dr Tronc expressed the following opinion:

“[U]nder the suspension and expulsion procedures 2007 paragraph 6.1 and 6.2 require a principal mandatorily to suspend immediately any student who exhibits violence or makes threats of violence; other criteria for short suspension are given in the policy as use of objects as weapons, and interfering with the learning of other students and persistent disobedience – on this basis Dr Tronc argues that student X should have been suspended on frequent occasions prior to Feb 2009”.

52. In contrast, Dr Spicer “believes that suspension of refugee children should be treated differently”. The primary judge did not resolve the conflicting opinions.

The events of early 2009

53. In oral argument on the appeal, emphasis was given to what occurred in 2009.

54. In contrast with the second half of 2008, it was plain after the summer holidays that X’s behaviour had regressed. On 26 February 2009, the newly appointed Principal and three staff members met a woman working at STARTTS. The notes of that meeting included:

“… the teachers explained that his behaviour is worsening – he is an extreme danger in the classroom – he intentionally tries to hurt others”.

55. The note concluded:

“Teachers asked for any strategies as [X] is close to suspension and other children in the class are very frightened by him. ... she suggested what the teachers are already doing: modifying his work – giving him breaks – watching him on the playground – we do not have the resources needed for him at school.”

56. The primary judge described this as a “sentinel sign that should have been acted upon promptly without allowing days or weeks to pass whilst the problem festered and the risk of injury to others went unaddressed”: at [88].

57. Yet on the following day, X was suspended for four days. The primary judge does not, with respect, make any attempt to reconcile his criticisms of the school’s lack of prompt conduct with what in fact occurred the very next day.

58. The Principal, Ms Gledhill, met X’s mother and her niece on 27 February, and recorded this note:

“We explained his behaviour and how he was too violent to be at school – we tried to get her to understand that he could not control his actions – we asked that she go to her Doctor and ask for a referral to the paediatrician – [they] said that [X] does not obey his mother or older siblings – Mum sends him to bed, but he then goes into their bedrooms and disturbs their sleep – he finds it hard to get out of bed in the morning – Mum works in Nursing Home in Hornsby – ... it is very difficult to get a job in Blacktown in Nursing Homes because a lot of people want jobs there – [the mother] gets up at 3 am and leaves Y (older brother – 13 years old) to get the others up and on their way to school – she leaves their breakfast and lunch ready to go. She gets home by 3pm, but it has been my experience that she sometimes gets home later than that – I know that she has Bible Study and visits her friends – she does not drive.

[S]he was very upset about [X’s] behaviour and appeared embarrassed – she got teary when she said that she had to give up 4 days of work because she had no-one to look after him during his suspension – she said that she understood the importance of taking him to the doctor and saying that we are concerned about his inattention ... [X’s mother] will come to the school for a resolution meeting on 06.03.09.

[X’s mother] sent [X] to stay with her sister who lives in Doonside until Friday – so that [she] was able to go to work.”

59. X returned to school on 6 March 2009. Contrary to what she had said on the afternoon he was suspended, X’s mother did not attend the resolution meeting.

60. Prominence was given to three documents produced in the fortnight prior to the respondent’s injury. The first was a note was dated 6 March 2009, outlining a further risk management plan identifying a number of elimination or control measures (such as sitting at the front of the class, a time out area, visual cue cards and an individual carpet floor mat for him) to be undertaken by the class teacher, the ESL teacher, the support teacher and the ISTB teacher (who at that time was attending the school weekly). The document appears to have included boxes to be completed against the headings “Risk of injury to self from:”, “Risk of injury to other students from:” and “Risk of injury to staff from:”. The second and third boxes were completed similarly, identifying “Physical violence”, “harassment” and “Unpredictable behaviours” (the second box also included “Intimidation”. Both boxes then stated a purpose, triggers, and a time and place. The similarities may suggest that the purpose of the document was principally to identify elimination or control measures, rather than to assess risk. Whether or not that is the case, the second box assessed the risk as “High” while the third box, which was risk of injury to staff, did not contain any assessment of the risk.

61. The primary judge stated that the document noted that there was a risk of injury to staff in terms of physical violence, but did not mention that that risk was not assessed at all, as opposed to other boxes on the form where the assessment was either high or low.

62. The second was a handwritten note dated 11 March 2009, which recorded that X was not listening to teachers, running away, was “hitting classmates on the head with book” and arguing with the Principal. On a natural reading, which senior counsel for the State accepted (transcript, 8 May 2015) it suggested that X had been assessed as posing a high level of risk, twice a day, for incidents involving throwing projectiles or physical attacks, resulting in a need for first aid.

63. The third was a handwritten note prepared by the school counsellor dated 16 March 2009 (two days before the incident) which was reproduced in part by the primary judge. The note was in the following terms:

“Classroom observation

Approximately 85 percent off task

Deliberately being confrontational e.g. calling out, defying instructions, running in and out of the class at will. In general X was intent on disturbing the class and disrupting teachers’ lessons. He needed to be physically restrained.

At the changeover to library X refused point blank to cooperate.

At this point he was brought to the counsellor’s room where he calmed down and responded exceptionally well to some 1 on 1 counselling followed by an observed counselling session with an ISTB and the ESL teacher.

Discussions with the principal after the bell (> 3.00pm).”

64. The cross-examiner took Ms Gledhill to the first half of the document with an invitation to conclude that had this been brought to her attention, she would have suspended X. The primary judge followed a similar course. The portions of the document reproduced in [31] of his Honour’s reasons entirely omitted the second last point. The document bears a different complexion when read as a whole, including the calming down and responding exceptionally well to the counsellor and the counselling with the ISTB teacher and the ESL teacher.

65. That said, the note dated 11 March 2009 describes a child with serious behavioural problems, posing a risk to those around him.

The duty owed to Ms Sticker

66. The State owed a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. As the High Court said in Czatyrko v Edith Cowan University [2005] HCA 14; 79 ALJR 839 at [12]:

“If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards.”

67. What did the obligation to take reasonable care consistently with that duty involve in these circumstances? For the reasons already given, to the extent that his Honour relied on what occurred in 2008, the reasoning cannot stand, and I did not understand Ms Sticker seriously to submit to the contrary. What follows focusses on the events of 2009, which were at the forefront of oral submissions and Ms Sticker’s notice of contention.

68. The primary judge said at [94] (reproduced above) that the risk could have been addressed “by the expedient means of suspending the child from school and finding alternative arrangements for his schooling, as in fact occurred successfully after the plaintiff was injured”. His Honour said that “the school had access to mechanisms to address such problems”.

69. However, his Honour did not address the policy on suspensions and expulsions at all. Because his Honour did not address the four day suspension which had occurred on 27 February, his Honour did not address how the school was, realistically, to impose a further suspension without there having been an attempt to speak with X’s mother. The school Principal knew that to suspend X was likely to cause the same result as had occurred on 27 February, namely, that he would have to leave his family and reside with his aunt so that his mother could work. Moreover, what had proven successful in the previous year appears to have been time at school, permitting the strategies put in place to work.

70. What were the mechanisms to address such problems to which his Honour had referred? If they involved a paediatrician, the school lacked the ability to refer X without his mother’s consent, and the (new) Principal had seen X’s mother in February 2009 and recommended that a referral be obtained. It is difficult to see what more should have been done in 2009. There had indeed been a rapid response – suspension in the first weeks of 2009, with the new Principal and other staff attending upon X’s home and upon the STARTTS counsellor.

71. If there were some other mechanisms to which the school had access, then they were not stated by the primary judge. If the mechanism was to remove X to another school, it would have been necessary to make findings as to when and how that could occur (there was evidence that an application needed to be made, and a space found, which ultimately seems to be why X moved to a different school at the beginning of 2010, despite a disastrous history of suspensions throughout 2009). No such findings were made.

72. There is force in the submission advanced by the State that the risk of significant injury to an experienced teacher such as the respondent at the hands of the seven year old student X must be considered to have been slight and not one which required his urgent removal from the primary school. The position resembles that in Truffet v State of Queensland [1998] QCA 160, where an experienced teacher was injured by a young child, although there appears not to have been the same level of concern as there was in the present case prior to 18 March 2009.

Causation

73. Turing to causation, it was common ground that the Civil Liability Act 2002 (NSW) did not apply: s 3B(1)(f). It was necessary for Ms Sticker to prove that her injury had been caused or materially contributed to by negligence attributable to the State in accordance with the principles in March v E & M H Stramare Pty Ltd [1991] HCA 12; 171 CLR 506. In practical terms, that meant establishing one of two things. Either Ms Sticker had to demonstrate, to the civil standard, that some other course of conduct would more likely than not have moderated X’s behaviour, or else led to his being removed from the school.

74. Would earlier or different interventions have moderated the behaviour of X or removed him from the school? Whether the earlier provision of ISTB services would have assisted seems unlikely. For the reasons set out above, X’s behaviour appeared to improve in the second half of 2008, without additional ISTB support, and to worsen in early 2009, even though ISTB support was then being provided. Indeed, senior counsel for the respondent appeared to eschew reliance on the submission:

“SHELDON: Yes, but nothing [scil, no ISTB support] in 2008. Nothing from May 2008.

GLEESON JA: So what, your causation argument is that a delay in obtaining the ISTB teacher until 2009 is the cause of the injury?

SHELDON: No, your Honour.”

75. However, that is directly contradicted by the opinion of Dr Tronc:

“During the time between (at least) May 2008 and March 2009, when there was awareness of the risks posed by the assailant’s behaviour, there should have been additional funding for additional support. Such funding was applied for in June 2008, but despite the identified risks posed by the assailant’s continued presence in the school under the level of support then available, such funding was not improved.”

76. Dr Tronc concluded that “This was not one of those cases where increased supervision, or any supervision at all, would have made no difference.”

77. Instead, at the forefront of Ms Sticker’s oral submissions on appeal was that the earlier serious behaviour recorded in documents in February and March 2009 should have led to his being suspended such that he would not have been at school on 18 March 2009. At first the State contended that this diverged from the course taken at trial. When directed to the re-examination and further cross-examination and further re-examination of Ms Gledhill, that objection was withdrawn. Notwithstanding s 318 of the Work Injury Management and Workers Compensation Act 1998 (NSW), there was evidently departure from the pleaded case at the trial, but no point was taken at first instance or on appeal.

78. In re-examination, Ms Gledhill was asked the following:

“Q. You didn’t suspend him before the plaintiff had her injury on 18 March 2009; why was that?

A. Well, obviously I believe there were, you know, there wasn’t enough evidence for me because to suspend a child is an extreme measure, and there were other factors of consideration as well in terms of the management of that student in his classroom by the teachers, and the home environment, there were a number of factors that I took into consideration, and also in that classroom – in the school there were a number of very needy students, X was not the only student, not that – I mean his case we’re talking about today, and if I didn’t suspect a child I didn’t believe that it warranted a suspension, and that would have been because of extenuating circumstances.”

79. That evidence well captures the difficulty of the judgment required to be made, without the advantage of hindsight.

80. Further, because this went beyond the pleaded case advanced by Ms Sticker, it was not squarely supported by Dr Tronc’s report.

81. The subsequent history of X in 2009 is illustrative. X was suspended for two days in April, a further four days in June 2009, and a further four days in July 2009. He saw a paediatrician in April, with his mother, who diagnosed an attention deficit disorder and prescribed Dexamphetamine. He was suspended for 16 days from 28 August 2009, a further 2 days in October, 13 days in November, during which time he was approved for placement in a support class at Rouse Hill Public School for 2010.

82. In those circumstances, I am not persuaded that the judgment can be sustained by a finding that, but for a breach of duty, X should have been suspended for sooner and longer in 2009 with the result that he would not have been present at school on 18 March. It is plain from the policy on suspension, and the evidence of Ms Gledhill referred to above, that there was a degree of judgment to be exercised. Although the note dated 11 March 2009 suggests an extremely serious problem, the note made the following week on 16 March 2009 by the school counsellor recorded that “he responded exceptionally well to some 1 on 1 counselling followed by an observed counselling session with an ISTB and the ESL teacher”.

Conclusion on liability and breach

83. For those reasons, the reasons of the primary judge on liability and breach cannot stand, nor can the findings be supported by the notice of contention. There is material error in the findings of primary fact for the second half of 2008, leading to erroneous findings of breach. The attempt to sustain the conclusions by the events in 2009 cannot be made out on appeal.

84. But it does not follow that there should be a judgment in favour of the State.

The competing expert evidence

85. Both experts gave evidence in conclave, having prepared a document summarising their competing views which became Exhibit N. So far as I can see, the written reports were not formally tendered. However, exhibit N recorded that Dr Tronc saw no reason to change any of his views as a result of reviewing further evidence, and Dr Tronc’s report was included in the appeal papers, on the basis that it was to be treated as having been before the Court (indeed, as noted above, the primary judge made reference to it). I proceed on the same basis, noting that the status of Dr Tronc’s report was squarely raised by the first ground of the notice of contention, and the State did not contend that it had not been admitted into evidence.

86. To the contrary, senior counsel for the State confronted the difficulties arising on the appeal:

“McCOLL JA: Are you going to contend the court should decide which of these experts his Honour should have accepted? It doesn't emerge from your notice of appeal.

MORRIS: There is enormous difficulty with the expert case and our submission ultimately will be that your Honours can't decide on the basis of the experts or choosing between them. The only way your Honours can decide this case rather than remit it is to look at the available evidence and see if that available evidence, regardless of the expert case, gives the respondent enough or persuades your Honours that--

McCOLL JA: She may have had a case.

MORRIS: She may have had a case. ...

Unfortunately, it's a long process with this kind of case. Your Honours, ultimately we'll be submitting that there should have been a verdict for the defendant because the plaintiff did not make out her case on breach and a causation connection, but I could understand if your Honours came to the view that you couldn't be persuaded because of the conflicts in the evidence that weren't resolved by his Honour and his findings. What reasons there are at this point are not clear.”

87. For my part, I am sceptical of some of the opinions expressed by Dr Tronc, in part because of the assumptions he was asked to make, which seemed to compel the opinions offered, and in part because much of the reasoning is unarticulated. This may explain the approach adopted by the primary judge, to discount the evidence of both experts. However, in circumstances where those opinions were permitted to be adduced, and there are unresolved conflicts, and when neither party invited this Court to resolve them, I am not satisfied that Ms Sticker’s case is one which must necessarily have failed at trial. By the same token, I cannot accept Ms Sticker’s invitation by her notice of contention that Dr Tronc’s report should be adopted. Her senior counsel did not submit to the contrary.

88. Some of the matters left unresolved by the primary judge which were the subject of competing expert opinions have been noted above. They cannot be resolved on appeal. There must, regrettably, be a retrial, unless the parties can otherwise resolve their dispute.

Damages

89. Even though the judgment entered against the State must be set aside, the remaining grounds (grounds 8-11) should nevertheless be addressed.

90. There are errors in the approach taken by the primary judge to future economic loss. The first is textual. At [116], the primary judge said:

“Given that the plaintiff was in line for promotion and had acted in the capacity of Principal I consider that at the time of the accident her most likely circumstances, but for her injury, were that she would be working as a Principal. I therefore consider that the comparative earnings of a Principal are more reflective of her earning capacity.”

91. It was that reasoning which formed the basis of the calculations of both past and future economic loss. However, something has gone wrong with the language, because at the time of the accident, the respondent had resumed her position as Assistant Principal, having been relieving as Principal for the second half of 2008. In order to deduce what his Honour had intended to convey, it is appropriate to read the judgment as a whole. In the previous paragraph, his Honour had reproduced Ms Sticker’s approach to past economic loss, which drew a line at 1 July 2012, for which period there was agreement that her loss was calculated at the rate of an Assistant Principal. That previous paragraph reflected the fact that Ms Sticker had submitted that by 1 July 2012, she would have been promoted to the position of Principal. Inserting that date into the first sentence of the paragraph reproduced above would make sense.

92. But, even so read, the finding is problematic. All that was demonstrated was that Ms Sticker had been ranked second in one position she had applied for in the second half of 2008, and third in another position for which she had applied either before or after she had been relieving principal. There was no information about whether those schools were perceived as especially desirable or undesirable posts, or how many candidates had applied, or how many times she had applied and not been ranked.

93. Absent from the material supplied by Ms Sticker was any evidence of the number of positions as Principal which became available in the period. It was not said that this would have been impossible to do. It was simply said that “you would need to look at them, for every week let’s say, or every month, to be more reasonable about it, for the last five years to be able to determine what positions might have come up.” I would not regard that as too arduous a task in order to assess a component of a claim worth hundreds of thousands of dollars.

94. Moreover, it is plain that not every teacher who attains the position of Assistant Principal and who desires further promotion will ever become a Principal. It is far from clear that he or she will ever even be promoted to the intermediate position of Deputy Principal. As much appears to be close to self-evident from the fact that even a small school like Bert Oldfield had no fewer than three Assistant Principals.

95. In cross-examination, Ms Sticker gave evidence that she had made about four applications for promotion in 2008, and one in 2009. In all of those applications Ms Sticker was unsuccessful. There was not, so far as I can see, any attempt to reconcile the fact that only two rankings were produced by the Department at the request of Ms Sticker, and her evidence that she had made five unsuccessful applications for promotion. There are a number of possible explanations. One is that the documents were lost. Another is that only a small number of candidates was short-listed for interview, and Ms Sticker failed even to make the shortlist for three of the five positions for which she applied. There may be other explanations, although none, so far as I can see, would support the approach taken by the primary judge.

96. Ms Sticker submitted that once it was established that she was ranked second and third in two of her applications, it became a matter for the State to disprove that she would have been appointed at some point, for whatever reason, including that there were not enough positions that came up or there were better candidates. I disagree. The inferences available from those two documents were not nearly sufficient to discharge the burden she bore that promotion within three years was a practical certainty. To the contrary, they clearly establish that the respondent was unsuccessful in all five out of five applications she had made for promotion.

97. There were further problems with the reasoning of the primary judge. To her credit, Ms Sticker had found employment at a teaching college. His Honour pointed to the medical difficulties from which Ms Sticker suffered, and concluded that:

“The consequence of this is that the plaintiff will continue to be in pain and will be subject not only to the requirement of working lesser hours than full-time work, as is the case now, but there is the reasonable concern she holds, because of her pain and restrictions, that she cannot see how she can continue working after another 2 or 3 years.

In my view, the plaintiff's self-assessment is a reasonable one based on a commonsense view of her situation. She ought not be required to struggle to continue working where it is too difficult or painful for her to do so, or where by doing so, she might aggravate her condition. The duty to mitigate does not extend that far: Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1. I therefore consider that due regard must be had to the plaintiff's self-assessment as I do not consider her evidence to be exaggerated in that, or any other aspect.”

98. The statement that the respondent “cannot see how she can continue working after another 2 or 3 years” was a reference to her evidence in chief. She had suffered a flare-up in her back condition shortly before the trial, in February 2014. That was the context in which she gave this evidence:

“Q. With your back the way it is now, how long do you see yourself persisting with working with the problems that you’re having?

A. At the moment, two or three years.”

99. However, in cross-examination, she gave this evidence:

“Q. So far as you’re concerned, assuming the medical condition stays as it is, you’ll continue to work up until retirement age if you can?

A. Probably if I can. But if you’d asked me this two weeks ago when I had this flare-up I would have told you then I would have stopped working that week because it was so bad.

Q. I understand and if I would ask you this question in six months if the flare-up has resolved, you’ll say I’ll work to 67?

A. Probably. But I’ve got to see a specialist soon and then I’ll know.”

100. The primary judge did not refer to the concessions made in cross-examination. Accordingly, he made no finding about them, notwithstanding that they substantially detract from the evidence in chief on which he placed reliance.

101. There is a further problem with the methodology by which future economic loss was calculated. To explain it, it is necessary to turn to the parties’ submissions at the end of the trial, which contrast with his Honour’s approach.

102. The primary judge recorded that Ms Sticker claimed future economic loss of $402,815, reflecting a loss of earnings of $1,000 per week over 12 years until she was 67 less 15% for vicissitudes projected at a rate of 5%. The defendant contended for $130,915, by essentially the same calculation, but by reference to the current earnings of an Acting Principal, being $325 per week, and discounted by 15% for vicissitudes. On appeal, the State more realistically conceded that there was a chance that the respondent would be promoted to Principal, but challenged the finding that it was for practical purposes inevitable.

103. The only issue between the parties was the chance that Ms Sticker might become a Principal, which in effect was determined as “practically certain” for the purposes of Malec v J C Hutton Pty Ltd [1990] HCA 20; 169 CLR 638 at 643 by Ms Sticker, and very low so as to be negligible by the defendant. On appeal, in contrast, the State squarely acknowledged that some allowance must be made for the chance of promotion to Principal.

104. The primary judge performed a very different calculation from those advanced by the parties. He divided the 12 year period into the future into the initial three years and the concluding nine years. In the first three years, he applied a continuing loss of $462 per week, based on the current differential earnings projected at 5%, to yield $67,267. He did not discount that amount for vicissitudes. For the remaining nine years, he assumed that Ms Sticker would be a Principal, and that Ms Sticker would not be working at all, so as to produce a rate of $1696 net per week (or $88,200 per annum). He projected that amount over 9 years inflating it by 5% per annum and discounting 15% for vicissitudes, and then allowed for the 3 years deferral by multiplying by 0.864, to produce an amount of $473,430. The total future economic loss thereby calculated was $540,697.

100. However, his Honour did not use that figure. Instead, his Honour said that a further discount would be required to allow for the possibility that Ms Sticker might be able to continue working into the future, perhaps not full-time. He said that the “numerous variable imponderables involved” made it impossible to take the analysis further. His Honour accepted that the $540,697 figure needed to be discounted, but nevertheless was a “useful background guide”. He then adopted a wholly qualitative approach at [139]:

“Having considered the foregoing factors, in my view, the most appropriate way of compensating the plaintiff for her future loss of earning capacity, taking into account all of the positive and negative factors involved in such an exercise, is to assess a global discounted lump sum buffer to cover all aspect of her loss of earning capacity, namely an amount of $425,000.”

106. There are of course occasions where issues of assessment of damages are extremely difficult to quantify in a logical way. But that is not this case. Both parties advanced conventional methodologies to calculate future economic loss. His Honour disregarded both parties’ methodologies, and in effect chose a figure of $425,000 which was the direct result of no arithmetic calculation at all. Although I would not exclude the possibility that in a particular case there may be no alternative to an entirely qualitative approach, that was not necessary in the present case.

107. Even had breach and causation been established, I would conclude, contrary to the trial judge, that there was a chance falling well short of certainty that Ms Sticker would have been promoted. I would also conclude that there was a chance falling well short of certainty that the respondent would have ceased work within three years. However, I do not regard either of those chances as being able satisfactorily to be determined on the evidence in this Court. Since there must necessarily be a retrial on liability in any event, the appropriate course is for that further hearing to extend to all issues.

Orders

108. For those reasons, I propose that the appeal be allowed, the judgment set aside, and the matter remitted for determination in accordance with law. Ms Sticker, who sought to defend the orders made at first instance, should pay the costs of the appeal, but should have a certificate under the Suitor’s Fund Act 1951 (NSW) if otherwise entitled. The costs of the trial at first instance should be left to the judge who hears the remitted matter.

109. In Mouti v Nguyen [2015] NSWCA 93, where a retrial was ordered, this Court directed the parties to participate in a court-ordered mediation. Bergin CJ in Eq said at [103] that:

“The costs incurred to date both at trial and in this appeal together with the prospect of further costs of a further trial persuade me that the parties should proceed to mediation. The parties should see if they can, with the assistance of an independent mediator, reach a commercial settlement with which they are willing to live rather than continue on for further lengthy periods in what appears to be acrimonious and costly litigation. This Court has power to refer proceedings to mediation at any stage of the proceedings. I am satisfied that it is appropriate to do so at this stage, before the matter is remitted to the District Court for a new trial.”

110. The same considerations apply to these proceedings. The formal orders I propose are:

1. Order that the name of the appellant be corrected to “State of New South Wales”.

2. Appeal allowed.

3. Set aside the orders made on 17 April 2014.

4. The respondent to pay the appellant’s costs of the appeal, but be given, if otherwise qualified, a certificate under the Suitor’s Fund Act 1951 (NSW).

5. The parties are referred to court-annexed mediation. Such mediation is to occur by no later than 12 August 2015.

6. The parties are to attend upon the Registrar of the Equity Division of this Court forthwith to obtain a date for mediation.

7. After 12 August 2015 the matter, if unresolved at mediation, is remitted to the District Court for a new trial, such remitter to include determining the costs of the first trial before the primary judge.

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Decision last updated: 01 July 2015