T2 (by his tutor T1) v State of New South Wales

[2024] NSWSC 1347

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

T2 (by his tutor T1) v State of New South Wales [2024] NSWSC 1347

Hearing dates:

25/09/2023 – 26/10/2023

Date of orders:

1 November 2024

Decision date:

25 October 2024

Jurisdiction:

Common Law

Before:

Harrison AsJ

Decision:

(1) The defendant to pay the plaintiff the sum of $1,754,040.15.

(2) By consent the defendant is to pay the plaintiff’s costs on an ordinary basis up until 17 October 2022 and then on an indemnity basis as from 18 October 2022

(3) The judgment sum, less any amount repayable to any person or body whether in respect of the Social Security Act 1991 (Cth), Health and Other Services (Compensation) Act 1995 (Cth) or otherwise, is to be paid into Court pending appointment of a financial manager for the plaintiff.

Catchwords:

NEGLIGENCE – Duty of care – school student - bullying – assault not on school premises – scope of duty – causation – after school hours – waiting for bus – pre-existing condition – assessment of damages – bullying – risk assessment – school supervision – causation – vulnerable students – bus duty – after school supervision – school office hours – damages

Legislation Cited:

Civil Liability Act2002 (NSW), ss 5B, 5C, 5D, 5E, 12, 13, 15 and 16

Civil Procedure Act 2005 (NSW), s 77

Crown Proceedings Act 1988 (NSW), ss 3(1) and 5

National Disability Insurance Scheme Act 2013 (Cth), s 106

Cases Cited:

Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem (2009) 239 CLR 420; [2009] HCA 48

Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244

Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479

Camkin v Bishop and another [1941] 2 All ER 713

Campton v Centennial Newstan Pty Ltd (No 2) [2014] NSWSC 1799

Coles Supermarkets Australia Pty Ltd v Haleluka [2012] NSWCA 343

Dell v Dalton (1991) 14 MVR 158; (1991) 23 NSWLR 528

Derrick v Cheung (2001) 181 ALR 301; [2001] HCA 48

Ferrcom Pty Ltd v Commercial Union Assurance Co of Australia Ltd (1993) 176 CLR 332

Furner v Jackson [2023] NSWSC 914

Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151

Gordon v Truong [2014] NSWCA 97

Graham v The State of New South Wales [2001] NSWCA 248

Hackshaw v Shaw (1984) 155 CLR 614

Jones v Bartlett (2000) 205 CLR 166

Jones v Dunkel (1959) 101 CLR 298

Kars v Kars [1996] HCA 37

Matthews v Dean (1990) 11 MVR 455; [1990] Aust Torts Reports 81-037

Mobbs v Kain (2009) 54 MVR 179; [2009] NSWCA 301

Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254

Nominal Defendant v Gardikiotis (1996) 186 CLR 49

Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [2015] NSWCA 253

Paul v Cooke (2013) 85 NSWLR 167; [2013] NSWCA 311

Phillis v Daly (1988) 15 NSWLR 65

Pietrobelli v Jewell Family Nominees Pty Ltd [2022] NSWSC 660

Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99

Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330

Sampco Pty Ltd v Wurth [2015] NSWCA 117

Shaw v Thomas [2010] NSWCA 169

Southgate v Waterford [1990] Aust Torts Reports 81-065; (1990) 21 NSWLR 427 at 440

State ofNew South Wales v Mikhael [2012] NSWCA 338

State of New South Wales v Moss (2000) 54 NSWLR 536

Sutherland Shire Council v Major [2015] NSWCA 243

Thornton v Sweeney [2011] NSWCA 244

Trustees of the Roman Catholic Archdiocese of Sydney v Kondrajian [2001] NSWCA 308

Wallace v Kam (2013) 250 CLR 375

Wright v Cheshire County Council (1952) 2 All ER 789

Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12

Youkhana v Di Veroli [2009] NSWSC 942

Zheng v Cai (2009) 239 CLR 446

Texts Cited:

Nil

Category:

Principal judgment

Parties:

T2 bht T1 (plaintiff by his mother)
State of New South Wales (defendant).

Representation:

Counsel:

J. Morris SC and M. Fraser (plaintiff)
N. Polin SC (defendant)

Solicitors:

Palazzolo & Associates Lawyers (plaintiff)
McCabes Lawyers (defendant)

File Number(s):

2020/270685

Publication restriction:

Nil

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 16 October 2017 shortly after the end of his school classes, the plaintiff, T2, a then-14-year-old school student was set upon by 12 fellow students in an attack that was unprovoked, violent and lengthy. By his tutor, T2 sues in negligence the State of New South Wales in its capacity as the person occupying and having the care, management and control of the school of which T2 and his attackers were students.

T2 alleged that defendant owed him a duty of care as a student and that it breached that duty of care by failing to effectively monitor students nearby to the school as they were going home, staff an administrative office shortly after school hours had concluded and properly risk manage a troublesome student (the instigator of the assault) before he be allowed to return to the school. T2 alleged that as a result of the defendant’s negligence, the assault upon him occurred and he suffered a deterioration in his mental state and exacerbation of his underlying psychiatric conditions, impairing his enjoyment of life and derailing his educational and vocational trajectory.

The defendant conceded that it owed T2 a duty of care, however it denied that it was liable for the assault that was occasioned because it argued that the duty neither extended beyond the confines of the school, nor lasted outside of school hours. It further denied any causative link between the alleged breach of the duty of care (should one exist) and the damages that T2 alleged he suffered.

Held, finding with the plaintiff:

1. The duty of care that a school owes to its students can extend beyond the confines of the school boundaries and outside of its operating hours.

2. The demands of the duty of care owed to school-aged children will change as they mature. However, the risks of some forms of harm can increase, rather than decrease over time. Accordingly, the duty of care to protect against certain forms of harm may increase over time.

3. The school owed a duty of care to vulnerable students such as those students who have physical or psychological issues, secondly, to keep students safe from being bullied and assaulted by other students, thirdly, to perform a proper risk assessment to school students who have been granted a long suspension before allowing them to return from that long suspension, fourthly, to keep the administrative office open at the end of day for a longer period so that students who find themselves in difficulty can seek help and safety there, finally, to provide supervision in and around the school for the safe passage of students for their journey to home from school.

4. Both legal and factual causation were established. The school breached its duty of care by failing to conduct a proper risk assessment of the instigating student before he was allowed to return to the school from a suspension for prior violence. There were no teachers on bus duty to act as a deterrent to misbehaviour or intervene when T2 was led away from the school’s vicinity. The school’s administration office was closed such that T2 could not seek refuge with staff when he attempted to. Any one or a combination of these omissions established factual causation as they enabled the assault on T2 to proceed in the manner in which it did and were a necessary condition to the assault occurring. The severity and multitude of the breaches justify a finding of legal causation. They were inconsistent with a primary duty of the school: to keep its students safe.

5. While T2 suffered from psychiatric disorders that limited his vocational trajectory even prior to the assault, the assault nevertheless worsened his condition such that his future prospects were further undermined. His level of autism spectrum disorder increased from between levels one and two to levels two and three.

6. It was appropriate to order damages for non-economic loss, future economic loss, past out-of-pocket expenses, future medical expenses and future attendant care. Because of the difficulty with making forward-looking assessments as to future prospects given T2’s young age and the uncertain effectiveness of future treatment, it was necessary to award damages on the basis of a buffer.

7. It was further necessary to order costs for the future management of funds, given T2’s relatively young age and psychiatric state.

TABLE OF CONTENTS

Background

The bus stop

The evidence

The pleading framework

Credibility of the parties

Evidence of T2

Evidence of Kathleen Seto – the principal

Long and short suspensions

Evidence of Krystal Fountis – the deputy principal

T2’s school records

XY’s prior bad behaviour

XY’s assault on 29 August 2017

T2’s pre-existing medical condition

The meeting at the school on 11 September 2017

Was a proper risk assessment conducted?

The saga of missing mobile phone

T2’s pleading – the assault

The bus stop

Were the teachers present for crossing/bus duty after school on the day of the assault?

Should a Jones v Dunkel inference be drawn against the two supervising head teachers?

The assault – 16 October 2017

CCTV footage and videos

T2’s statement to police dated 17 October 2017

Policy documents

Experts on liability: Dr Ikin and Mr Meaney

Liability - CLA

Duty, scope and breach of the duty of care

T2’s submissions

Causation

T2’s submissions

Defendant’s submissions

Consideration

After the assault

Evidence of Bradley – T2’s stepbrother

Evidence of Maddison – T2’s sister

Treating doctors and medico-legal expert reports

Medico-legal ENT specialists’ reports

Treating paediatricians

Levels of ASD

Damages

Medico-legal expert evidence of Drs Rikard-Bell and Samuell

Agreement in the joint expert report

Concurrent evidence

Statistical information

Non-economic loss

T2’s submissions

Defendant’s submissions

Past and future economic loss

Occupational therapists’ concurrent evidence

Dr Rossetto’s report

T2’s submissions

The defendant’s submissions

Past medical expenses

Future medical expenses

The defendant’s submissions

Attendant care

Past attendant care

The effect of the carer’s payment and allowance

T2’s submissions

The defendant’s submissions

Future attendant care

Ms Piebenga

T2’s comments concerning Ms Piebenga’s opinion

Joint Report of Ms Piebenga and Mr Byrnes dated 1 March 2023

The effect of the NDIS payments

The NDIS allocation assessed for T2 prior to the assault

T2’s submissions

Cost of future management of funds

T2’s submissions

The defendant’s submissions

A final issue

Costs

JUDGMENT

JUDGMENT

1. HER HONOUR: This is a difficult case where most issues are hotly contested. The plaintiff, a high school student, seeks damages for personal injury arising from an assault that occurred on 16 October 2017 (the assault), when the plaintiff was set upon by about 12 students shortly after he had finished school for the day. The assault was video recorded and posted to Instagram. It is in evidence. Both parties, as do I, acknowledge that the assault was appalling. However, that does not necessarily mean that the school is to be held liable for the assault.

2. The plaintiff will be referred to by a pseudonym, T2, because he was a minor at the time of the assault. T2 sues by his tutor, his mother. As the plaintiff has been given a pseudonym, so too should his mother. She will be known in this judgment as T1. The defendant is the State of New South Wales. The plaintiff was represented by J. Morris SC of counsel. The defendant was represented by N. Polin SC of counsel.

3. The parties relied on a joint court book comprising of nine volumes (Ex A). In addition, the defendant submitted a ‘tender bundle’ of documents (Ex 9).

4. At that time of the assault, T2 was a student at the Fairvale High School in western Sydney (the school). He sues the State of New South Wales pursuant to s 5 of the Crown Proceedings Act 1988 (NSW), as the occupier and person having the care, management and control of the school, for injuries inflicted on T2 while a student at the school. The instigator of the assault has been given a pseudonym, XY, as he was 14 years old at the time.

5. Sometime between 3:26pm and 4:00pm on 16 October 2017, T2 was assaulted by about 12 fellow students in a park near the school. He had been waiting for a bus at a stop near the school on Thorney Road when the events took place. To avoid the assault, he had gone back into the school grounds to seek help from the school office, but it was unattended. T2 then messaged his mother, who at 3:26pm attempted to call the school and warn it of the impending danger. Twice her phone call was diverted to an answering machine. T2 went back to the bus stop. When the bus had arrived and other students were boarding, T2 was led away by a group of other school students, including XY, to the park where the assault occurred.

6. These proceedings are governed by the Civil Liability Act2002 (NSW) (CLA). While the defendant acknowledges that it owed a duty of care to its students, it denies it has breached its duty of care owed to T2 on the basis that the assault occurred sometime after the end of the school day and because it occurred in a park that could not be supervised by any staff. In other words, the defendant admits a duty of care but denies the nature and scope of duty of care alleged. Most of the issues in these proceedings are fiercely disputed. In particular they are, firstly, the nature and scope of duty and breach of duty of care, secondly, causation and finally damages. These issues are complex and difficult.

7. The defendant denies that it is liable for the injuries and disabilities that T2 now experiences. The defendant claims there is no causal link between the assault and the injuries and disabilities suffered as alleged by T2.

Background

8. The common ground is that T2 was born on XXX 2002 and brings these proceedings by his tutor, his mother T1.

9. The defendant is the State of New South Wales, issued pursuant to s 5 of the Crown Proceedings Act 1988 (NSW).

10. At all material times the defendant occupied and had care, management and control of the school.

11. Around 2012, T2 was diagnosed with Asperger’s syndrome (as it was then known). Now this diagnosis has been reclassified as autism spectrum disorder (ASD). This judgment will use the latter term.

12. T2 attended the school from January 2015 until October 2017.

The bus stop

13. On 16 October 2017 T2 was assaulted after the end of the school day sometime between 3:26pm and 4:00pm.

14. From now on some of this narrative is not common ground. It is alleged by T2 that there was no teacher supervision provided to students as they dispersed at the end of this school day, notwithstanding Department of Education policies and the known violent tendencies of some students, in particular XY. This is disputed by the defendant. The defendant argued that two teachers were supervising the busses in the immediate vicinity of the school.

15. The supervision system at the school provided, in part, for the rostering of two head teachers to supervise the students as they left the gate of the school on Thorney Road, adjacent to the pedestrian crossing and bus stop. The roster for that week is set out in the defendant’s tender book (Ex 9 tab 5).

16. The defendant submitted that teachers would have had no reason to suspect any risk of harm to T2 even if a supervising teacher had observed him leaving the bus stop on the day of the assault.

17. While waiting for the bus on his way home from school, sometime after 3:04pm, T2 was approached by a male student, identified as ‘TJ’, and told that XY wanted to talk to him. T2 responded to the effect that he did not want to talk to XY. On hearing this, T2 was concerned so he decided to walk across the road back to the school office. The office was locked, and no one was present to assist him. T2 contacted his mother, advising her that he was about to be ‘bashed’. T2’s mother attempted to telephone the school twice but each time her call was diverted to a message bank. The bus arrived and T2 re-crossed the road, intending to board the bus. CCTV footage was shown in court of the assault, the attempted boarding of the bus and of the students escorting T2 towards the park. The footage did not capture the entirety of these events.

18. The first video depicts the students surrounding T2 as the bus makes its stop on Thorney Road. He is not visible, but several students can be seen positioning themselves between what appears to be T2 and the entrance of the bus in what seems like an attempt to prevent him from boarding (Ex A).

19. The second CCTV video was taken by a camera situated in a laneway connecting the bus stop with the park where the assault occurred. The assault took place at Endeavour Park. The school principal was aware of unrelated previous violence that had occurred at the park (T316 [5]). The CCTV footage depicts T2 and another student walking, seemingly peacefully, towards the park. The accompanying student had his arm loosely around T2’s neck. The pair were followed by 10 to 12 other students who were located approximately two to three metres behind them. Upon viewing this footage, the principal believed that the group of boys would have caused her concern and that she would have investigated the situation (T317 [15]).

20. The assault of T2 occurs in the final video. The footage was filmed on one of the student’s phones. T2 was spear tackled from behind. Once he was on the ground, several students proceeded to kick, punch and stomp on his head and various parts of his body. The assault was lengthy and violent. T2 was in a vulnerable position, defenceless against his attackers.

The evidence

21. T2 relied upon his evidentiary statements dated 10 June 2021 and 14 August 2023. He also gave evidence and was subject to cross examination. Both counsel during examination and cross-examination strived not to distress T2 by directly asking questions about the assault.

22. T2 further relied on evidentiary statements made by his mother dated 15 June 2021, 23 November 2022 and 14 August 2023; his sister, Maddison, dated 17 August 2023; his brother, Bradley, dated 3 February 2021; and his friend, Gavin Close, dated 24 August 2023. They all provided statements and were cross examined. As they mainly referred to T2’s life after the assault, these statements will be discussed later in this judgment.

23. While T2’s father prepared a statement, T2 did not want him to give evidence, hence it was not relied upon.

24. The defendant provided statements from Kathleen Seto, principal of the school (the principal), dated 4 February 2022 and 2 August 2023 and Krystal Fountis, deputy principal of the school (the deputy principal) dated 4 February 2022. They both gave evidence and were cross examined at length.

25. Both parties relied upon expert evidence on liability. T2 relied on Professor Kerri Ikin and her statements dated 21 October 2020 and 23 November 2021. The defendant relied on the two statements of Peter Meaney dated 28 February 2023 and 17 July 2023. The experts wrote a joint report on liability and gave concurrent evidence. When giving concurrent evidence, they agreed on many issues.

26. As to damages, each of the parties engaged occupational experts to provide expert evidence. T2 relied on a report prepared by Mr Christian Byrnes, dated 11 May 2021. This report included a domestic assistance assessment in relation to T2’s condition stemming from the assault. The defendant relied on the evidence of Ms Dawn Piebenga, who prepared a report dated 8 October 2021. Ms Piebenga’s report traversed substantially the same subject matter as that of Mr Byrnes. Mr Byrnes and Ms Piebenga also prepared an expert conclave report, which is dated 19 May 2023.

The pleading framework

27. In the amended statement of claim (ASC) filed on the 28 April 2021, T2 relevantly pleaded:

28. At all material times, the defendant knew the students assembling at bus stops adjacent to school grounds in the hour after the cessation of classes could be at risk of harm.

29. The risks of harm to students assembling at bus stops included:

1. Risk of collision with a motor vehicle;

2. Sexual predation of children;

3. Skylarking between students causing injury; and

4. Violence between students.

30. As such, at all material times, the defendant knew students assembling at bus stops in close proximity to the school after school classes should be supervised to control the risk of injury.

31. The risk of T2 being assaulted by other students was foreseeable by the defendant and not insignificant.

32. At all material times, the defendant was under a duty to take reasonable steps to prevent the foreseeable harm suffered by T2.

33. The duty of care owed by the defendant was non-delegable.

34. The defendant did not take the necessary precautions that a reasonable person in its position would have taken against the risk that a person in the position of T2 would be assaulted by other students in close proximity to the school.

35. As a result of the defendant’s negligence, T2 was injured, disabled and suffered loss and damage.

36. The defendant knew the presence of a supervising teacher at a bus stop after cessation of classes was a control mechanism to avoid violence, skylarking or other risks that may cause injury to students.

37. The principals of schools operated by the defendant had an obligation to provide a system to supervise students assembling at bus stops adjacent to or nearby the school for at least one hour after school had ended or until students had dispersed.

The defendant’s defence

38. The defendant firstly admitted that T2 left the school on the afternoon of 16 October 2017, secondly, that an incident occurred on 16 October 2017 in which T2 was assaulted by XY and several other individuals at some time after 3:26pm and finally admits that it owed a duty of care to T2 but denies the scope of the duty alleged.

39. The defendant denied that its duty of care extended to preventing incidents which took place after school hours and off school grounds and submitted that the assault occurred after school hours and out of school grounds. Secondly, it denied that it can be held responsible for the criminal acts of third parties: Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254.

Credibility of the parties

40. I carefully observed T2 and the other witnesses when they were giving evidence and being cross examined. This is not a case where any witness gave deliberately false evidence. The only findings necessary to make are, as to where the evidence is disputed, whose evidence is preferred and why.

41. T2’s mother supported her son’s case. The defendant put in issue the mother’s credibility as she did not mention the carer’s pension that she received for T2, the fact that T2 received a disability pension or the fact that she also had a carer herself, who is paid for by NDIS. It is correct that T1 did not tell the occupational therapist, Mr Byrnes, that she and T2 had received financial support from NDIS. However, she did not deny these supports when giving evidence. I make no adverse findings to her credibility on this basis.

42. I do not accept T2’s mother’s evidence where she said that the principal admitted on 11 September 2017 that the school had breached its duty of care. The principal denied that she did so, and I accept the principal’s evidence. It is my view from the tenor of the principal’s evidence that she was a truthful witness. I prefer her evidence over that of T1 in this regard. While T1 was mistaken about the school having claimed responsibility for breaching its duty of care, I accept that she, like all the witnesses, was giving evidence to the best of her recollection. It was truthful evidence.

43. During his police interview, T2 stated that while being led to the park he was placed in a headlock by another student (CB 20023). The defendant submitted that this was an exaggeration, pointing to the absence of any CCTV footage depicting a headlock. However, there was ample time during which the events were not captured on CCTV, such that the headlock could have occurred. The CCTV did not capture T2, XY and the other students for the whole duration of their walk down the pathway towards the park. T2 may have been put in a headlock during this period. Thus, no adverse inference as to T2’s credibility is drawn.

Evidence of T2

44. T2’s first evidentiary statement was dated 10 June 2021. It stated the following:

45. T2 was born on XXX 2002. He is now 21 years of age. At the time of the assault, he was 14 years old and residing with his mother and sister, Maddison. T2 has an older brother, Bradley, and a younger brother, Blayde. Bradley works for NDIS and is married with three children. Blayde was still in school at the time of the assault when he lived with T2’s father. T2’s parents separated when he was young.

46. While in primary school T2 struggled with school attendance and misbehaviour. He then went to live with his father for a period. His father was diligent about ensuring T2 went to school every day. T2 was sent to a ‘behaviour’ school named Verona for three days each week. T2’s attitude improved while attending Verona. He commenced high school at Fairvale because it was the closest school to his father’s residence.

47. T2 had been at the school for three years before he was assaulted. He did not know all of the school students who were involved in the assault. He believed some of the students were younger than him. He did, however, know XY, the instigator of the assault. In 2017 they were in the same English class. T2 confirmed that it was XY who assaulted him, and this was common ground (T172 [10]-[25]).

48. T2 did not recall any school policy about bullying. He said that he did not receive any counselling from the school counsellor. He said that fights would occur in the playground on occasion, but he was never involved in them. T2 recalled XY being involved in fights. He wondered why this was the case because, prior to the assault, XY had not been aggressive towards him.

49. T2 largely kept to himself at school. He had three friends, Gavin, Michael and Anton, all of whom played rugby league together, both at school and socially. During cross examination, T2 was asked about his friend, Gavin. He gave evidence that they were still friends and would play computer games online together (T176 [40]-[50], T177 [5]-[15]). Gavin gave evidence at the hearing, a subject returned to later in this judgment.

50. It is common ground that prior to the assault T2 had never claimed to have had any past issues or bullying with the instigator of the assault, XY.

Evidence of Kathleen Seto – the principal

51. The principal provided a witness statement dated 4 February 2022. In this statement, she addressed her interactions with T2 in her capacity as principal of the school. She gave evidence and was cross examined at length.

52. She stated that she had known T2 from the date of his enrolment on 30 January 2015. She recalled that he had several interactions with the head teacher for welfare, Ms Ethymiades, that were recorded in his school file. She specifically recalled the school being advised of the murder of T2’s grandfather. It has been reported, but not to the school, that prior to the assault T2 had witnessed a serious motorcycle accident. The principal also referred to T2’s particular needs at the school as he had been diagnosed with ASD.

53. The principal recalled that T2 had reported past allegations of bullying prior to the assault. She said that each time the school addressed these allegations through mediation with the alleged bullies and T2. She recalled that each time the bullies denied the allegations.

54. The principal was cross examined about the comments that T2’s mother had made regarding the school’s failure to extend a duty of care to her son. The principal denied making the comments and said:

“No, because that would be me failing, I wouldn’t say that.”

…

“That’d mean – the school is me – I’m the department, so that meant I would be saying that I failed, because we didn’t fail.” (T230 [6]-[10])

Long and short suspensions

55. The principal explained the processes that the school employed in respect of students serving long and short suspension for misbehaviour. She referred to her decision to suspend XY as a consequence of his continued misbehaviour and involvement in relation to a prior assault. The principal described the common practices that were implemented following XY’s suspension.

56. A letter was addressed to XY’s parents on 1 September 2017 requesting their assistance during the suspension period. A copy of the school’s rules was also sent, as well as schoolwork that was to be completed by XY during his suspension. A counsellor was arranged to meet with XY. Finally, a formal interview was conducted on 12 October 2017 with XY to discuss the reasons for his suspension and future pathways that should be adopted.

57. In cross examination, the principal and deputy principal outlined the protocols for reintegrating students back into the school after long suspensions. The principal was asked by T2’s counsel as to what documents and potential meetings were required to establish that a student serving a long suspension had shown remorse for their actions, and that their reintegration would not pose a threat to any other students at the school. She believed that the school had followed and applied the protocols correctly for XY and that XY had displayed throughout the process the analogous remorse and maturity required to be allowed back into the student population, but these decisions were made by the deputy principal.

58. The principal explained the difficulty with expelling students at her school.

“HER HONOUR: Because with the kicking and stomping on him, yes, it was just awful.

WITNESS: And that's - that's the reason he got expelled. And as you know, in public education, it is very hard to expel a student, nigh impossible. And I haven't been able to - I mean, I have not, in the years that I've been a - a principal expelled many kids, because where are they going to go? Where are they going to go? All right--

HER HONOUR: I've been thinking that all the time you've been in the box.

WITNESS: Sorry?

HER HONOUR: I've been thinking that all the time you've been in the witness box, and I've been thinking, what becomes of these kids?

WITNESS: And just for the record, I take many students that are expelled from private schools. That's an issue that needs to be addressed, but not by this Court. And therefore, the nature of this injury was so serious, and I felt very, very sorry for T2 and his family, his mother especially, and I did say sorry to her. And that's why we had the Department of Education person come and talk to her. But that boy got expelled, and I went to court on behalf of T2's family, as well.” (T275 [6]-[30]).

Evidence of Krystal Fountis – the deputy principal

59. Ms Krystal Fountis is one of four deputy principals at the school. This judgment will refer to her as the deputy principal. She provided an evidentiary statement dated 4 February 2022 and was cross examined at length.

60. During her tenure at the school, she had only had one or two interactions with T2, regarding minor behavioural issues. To her recollection, 6 September 2017 was the first time that she had become aware of him being the victim of bullying. This judgment shall return to her response to XY’s bullying of T2.

T2’s school records

61. Numerous school incident reports were tendered pertaining to T2’s behaviour prior to the assault.

62. The majority of the reports concern T2’s mother and her struggles convincing him to attend class. T2 is noted as regularly being absent from class.

63. Several incidents related to T2’s uniform and his aggression towards his teachers and peers. Incident report number XXX66 specifically referred to an outburst in English class where T2 threw a pen toward another student.

64. T2’s mother was asked in cross examination if she had any recollection of an incident involving T2 where he acted aggressively in class and threw a chair and a recycling bin across the room, reported as having occurred on 5 February 2014. She did not recall the incident. This was three years prior to the assault, seemingly at a time when T2 was residing with his father.

65. From July 2017 T2 reported bullying. He reported that students at the school threatened him, pushed him and called him names including “tomato face”.

66. It appears that T2 had attempted suicide on 9 October 2017.

67. He smashed his phone because his pants were too tight.

68. T2 was prescribed anti-depressants, but he did not take them, because they allegedly made him vomit. However, his mother said that when she tried to make him take the tablets, he would intentionally put his finger down his throat to make himself vomit.

69. Since the beginning of 2017 T2 had a large number of absences as he did not want to go to school. From first term 2017, T2 missed 26 days of school (T618). The occupational therapists agreed that these absences were substantially due to sick leave (T620 [20]-[39]; T621 [12]).

70. I accept that during his time at the school T2 was prone to aggression and lashed out.

XY’s prior bad behaviour

71. T2’s senior counsel submitted that while a student, XY, to the knowledge of the defendant, engaged in bullying and intimidation of other students.

72. On or about 2 March 2017, XY, in the company of another student, set upon a student named Kenny. XY lifted him from the ground and removed his shoes and socks.

XY’s assault on 29 August 2017

73. T2 submitted that in 2017, to the knowledge of the defendant, XY organised and led other students in physical assaults upon lone students.

74. On or about 29 August 2017 XY was in the company of two other students. XY assaulted one of the students (the second student) in an unprovoked attack. Fortunately, the second student escaped the attack. It was a physical altercation that occurred after school hours and outside of the school premises. XY assaulted the student because he would not provide XY with the address of another student.

75. When interviewed by the deputy principal XY told her that he was not remorseful about his attack on the student as the ‘bashing’ was deserved.

76. On or about 1 September 2017, J, a student at the school, identified XY as an ‘enforcer’, a person prepared to back up his friends with violence and intimidation.

77. As a result of attacks on other students and disobedience, XY was suspended from the school between:

1. 3 to 8 August 2017 inclusive, (the short suspension); and

2. 1 September to 12 October 2017 inclusive, (the long suspension).

78. After the assault of 29 August 2017 had taken place, the following recommendations were prescribed in a document titled ‘School Counsellor Suspension Report’ in relation to XY:

1. The student sees the school counsellor in order to discuss his current behaviour.

2. Student to be enrolled in the RAGE program.

3. Student to be encouraged to use appropriate resolution strategies when trying to resolve conflict matters.

4. A risk assessment be completed.

5. Student sees the counsellor to assist with emotional regulation for a few sessions.

6. Student to seek counselling for emotional regulation with an outside agency depending on the assessment/success of counselling at school. (CB 12549)

79. The defendant made the same recommendations for XY in relation to the assault of the 16 October 2017.

80. T2 submitted that by reason of the attack on 29 August 2017, the defendant knew that the strategies implemented as a result of this attack were inadequate to prevent XY from assaulting and bullying other students.

T2’s pre-existing medical condition

81. T2 had been diagnosed with ASD and oppositional defiant disorder (ODD) prior to the assault. He had a history of difficult and challenging behaviours. His school records, however, demonstrate that his behaviours settled and his conduct and ability to learn improved in periods of stability, consistency and engagement. For instance, his Miller Public School report for Second Semester 2008, included the comment:

“He has consistently applied himself and consequently his work is regularly among the best in the class.” (CB 10834)

82. Likewise, his Canley Heights Public School report for Second Semester 2014 included:

“It has been an absolute pleasure to teach T2 this year. I have enjoyed watching him develop from a negative young boy into a more confident young man who will give everything a go.” (CB 12420)

83. Up until mid-2017, T2 was doing well at Fairvale High School. An entry in the school records on 10 May 2017 noted:

“Behaviour support plan is no longer relevant due to insufficient evidence of behavioural issues recorded and referrals made. Only two negative incidents recorded in 2017, both on attendance.” (CB 12516)

84. T2 enjoyed going to school before the bullying started. He was fit, played a lot of sport, and had friends. He intended to complete Year 12 and then look for a job. He was interested in construction. His uncle Grant is a builder and would have given him a start. If that worked out, T2 could have gone to TAFE and obtained a trade certificate as a carpenter. T2’s father, Shayne, works as forklift driver. When T2’s brother, Bradley, left school, Shayne secured employment for him as a forklift driver. Shayne could have also found work for T2. After a protracted course involving surgical procedures and complications arising from infections, T2’s physical injuries have substantially recovered. However, T2 said that because of his psychological condition and his poor physical health as a consequence, these job opportunities are no longer open to him.

85. T2’s mother described the difficulties she faced getting her son to school. She explained that T2 was very quiet and hardly spoke, making it difficult for her to communicate with him and understand his frustrations.

86. In July 2017, T2 finally confided in her about his issues at school associated with bullying. T2’s mother described trying to contact the school and seek help regarding the bullying issues. She recalled that she had a meeting with the head teacher who had assured her that T2 would be safe.

87. T2’s mother did not believe that the school had a bullying policy and was unaware of any discipline problems from other students. She believed that the school had mishandled the situation, on the basis that the school principal had made the representation to her that “the school had failed in its duty of care to her son.” This so-called representation was denied to the principal (Evidentiary statement dated 15 June 2021).

88. T2 submitted that on or after September 2017, he was at risk of harm in the event the school did not take reasonable steps to prevent violence by students who were known to be violent to other students.

89. On 6 September 2017, T2’s mother contacted the school and advised them of T2’s complaints that two or three unknown students had been taunting her son.

The meeting at the school on 11 September 2017

90. On 11 September 2017, a meeting was held at the school to discuss T2’s issues with bullying and to identify the perpetrators. The meeting included the following participants: T2, his mother, his older brother, Shayne, as well as the deputy principal, the school counsellor and another teacher. T2 and his family were assured that, if T2 came back to school, he would be safe. These complaints did not involve XY.

91. On 11 September 2017, the deputy principal said that she first learnt the names of the bullies. She had no recollection of XY being identified. The students were identified, spoken to by the deputy principal and warned of the consequences of their conduct.

92. She did not recall if any other action were taken but she “assume[d]” that she would have followed protocol and informed teachers via email or through a staff meeting to be aware of any instances of misbehaviour related to those specific students.

93. The deputy principal believed that the bullying was an independent incident caused by a few students, who had previously displayed immaturity and poor social skills. She said that prior to the assault she had never observed or knew of any bullying that occurred between XY and T2. Her observation was correct.

90. The defendant submitted that all complaints made by T2’s mother to the school in or about September 2017 were appropriately addressed.

91. In the months before the attack, T2’s evidence was that he had been accused of taking a phone belonging to a friend of XY. T2 was bullied and became fearful of going to school. He told his mother about that bullying.

92. As set out earlier, XY was known as being an enforcer and someone who would enlist the assistance of other students to carry out attacks on lone students. At the time of the assault, XY had recently returned from a second suspension for violent conduct that year.

93. There was no evidence from anyone who witnessed the prior assault that had been committed by XY and had caused his long suspension. The only evidence of this assault was provided by the deputy principal. She was told of the assault and made records (CB 12539). She gave evidence that she could truly gauge the seriousness of the assault by what she was told. Her report was of a “scuffle”. When the events of the assault were read to her, she was of the view that there was one assault that occurred on a school student outside school grounds when a bystander witnessed it and scared XY off.

94. The deputy principal was asked in cross-examination about the ‘scuffle’ involving XY that had resulted in a long suspension. The deputy principal made the following statement regarding XY’s after school altercation.

“Q. You would not, in any term, seek to minimise the violence or the viciousness of the attack by describing this as a scuffle, would you?

A. No.

Q. It is far more serious than a scuffle, isn’t it?

A. Yes.

Q. The incident back in March 2017 where the socks and shoes were taken might be described as a scuffle. Would you agree?

A. I’d call it stupidity, but yep.

Q. It led to a scuffle. But this attack of XY upon [J] could not, on any view, be fairly described as a scuffle?

A. No, it was nasty.” (T80 [35]-[45])

99. The deputy principal gave evidence that it was a vicious attack warranting a long suspension and that the school had made efforts to ensure that XY (who had shown violent behavioural tendencies in the past) was fit to return to school.

100. At the end of the long suspension, the deputy principal explained that all required protocols were followed. XY was issued with a blue book, a book issued to students who have been reprimanded for misbehaviour (a copy of an unused blue book is in Ex 6). Students issued with a blue book were required to carry the book to each of their classes and present them to their teacher who in turn uses the book to log a rating for the student’s behaviour while in their class. The principal was unaware of the whereabouts of XY’s blue book. She stated that often students would lose the books ‘on purpose’ to avoid receiving a bad rating.

Was a proper risk assessment conducted?

101. The principal in cross-examination was asked whether a risk assessment report had been conducted for XY. The principal was unsure why the report was missing and believed that the deputy principal would have more information regarding the report and its status. The principal added that even in the absence of a risk assessment report, the school had taken adequate steps and precautions to mitigate any risks associated with XY’s return from long suspension.

102. So far as the assault on T2 that occurred 16 October 2017, the deputy principal gave evidence that the school only conducted one meeting, in which a ‘resolution’ had been achieved. She recalled that XY was subsequently asked to meet with the school counsellor before his return to school. However, she could not recall if the meeting took place. She explained that a report on XY would have been written by the school counsellor, but the report would not have been made available to her and would have stayed with the counsellor.

103. The deputy principal was taken to a document obtained from the school titled “School Counsellor Suspension Report – 2017” (CB 12549). That document required XY to see the school councillor to discuss his current behaviour and to assist with emotional regulation, enrol in the ‘RAGE’ program and for the school to complete a risk assessment.

104. Senior counsel for T2 cross examined the deputy principal on whether a long suspension resolution meeting had been conducted for XY. She answered that it was not a requirement and could have been addressed in the initial suspension meeting. She was then asked whether a risk assessment had been conducted for XY or if any of the counsellor’s requirements had been implemented. She had no recollection of XY being enrolled in the RAGE program or whether a risk assessment had been performed. The following evidence was given:

“MORRIS

Q. I want to suggest to you that without having the risk assessment, and without having made inquiries of the school counsellor, or the parents, or XY as to whether he’s been to the school counsellor, you couldn’t make a realistic assessment [o]f the risk this young man posed to other students when he returned to school, could you?

A. Well, I had the discussion with him when he returned. He was very different to how he was when he was suspended initially, which is not unusual because they’ve had time to think about what they’ve done when they’re suspended for a period of time.

Q. Is your answer then that you thought, based on your discussion with him, he would - he was suitable to return to school?

A. I guess so.

Q. That was in circumstances where the senior psychologist and school counsellor had recommended, can I suggest, very clear steps be taken during the suspension. Correct?

A. It doesn’t say that it should - these things should occur during the suspension.

Q. I want to suggest to you that they are suggesting steps be taken to actually more formally assess this student’s situation by skilled people. What do you say about that?

A. The counselling is more about helping him move forward.

Q. The counsellor is a school person. Correct?

A. Yes.

Q. Savita Rahim is a school person. Correct?

A. Yes.

Q. What they are suggesting is intervention by skilled people to address his behaviour and risk profile. Do you agree with that?

A. Yes.

Q. And yet, if we just look at the school records and the school notes, none of these steps took place, did they?

POLIN: I object to this, your Honour. If it’s suggested that there was no intervention by a skilled person at all, that’s simply not correct.

HER HONOUR: That’s right, it’s not correct.

MORRIS

Q. You could not be satisfied that this student had enrolled in the rage program, could you, on the day he returned to school?

A. I don’t recall.

Q. You couldn’t be satisfied, when he returned to school, that the student had returned to the school counsellor?

A. I don’t recall. He did see the counsellor to complete his report.

Q. Yeah, but not after that. Correct?

A. I don’t recall.

Q. And, of course, we didn’t have a risk assessment. In those circumstances, I want to suggest that you couldn’t make a relevant assessment of this fellow’s risk profile when he resumed school, could you?

A. As a teacher? Yes, I could.

Q. Is her Honour to understand that you based your assessment of his risk profile based on a conversation with him on the day of his return to school, rather than on any of this other material?

A. It all comes into context, and I spoke to him every day, because he would have to present his - the blue book to me, in any case.” (T396 [10]-[50]; 397 [5]-[20]).

105. The deputy principal also gave the following evidence:

“Q. You told us yesterday that upon his return to school other teachers would be notified. Correct?

A. Yep. Yes.

Q. The purpose of that would’ve been to enable those teachers to monitor and supervise him. Correct?

A. Correct.

Q. Those teachers, would they be given a, I think yesterday you said it could be oral, or it could be a written notification?

A. Yep.

Q. Do you have any note as to which teachers were in fact told, or are you just relying on the usual practise?

A. I couldn’t say, categorically, what exactly happened.

Q. They may have been notified, they may not have been notified?

A. No, they would’ve been told, but I can’t tell you how - I can’t remember how.

Q. What you’re saying is if the system was applied, they would’ve been told?

A. Yes.

Q. Would the teachers that were told include his class teachers?

A. Yes.

Q. Would you be responsible for that, or would you ask somebody else to arrange for that?

A. Well, the head teachers could tell them. Head teachers, learning and support could say, your advisors, head teacher welfare. We’re a team.

Q. If the system that was supposed to be applied was applied, they would be given notification. Correct?

A. They would have been aware of his return, and they would’ve seen the blue book which on the cover says, “returning from suspension”.

Q. What other information does the blue book contain, other than “returning from suspension”?

A. I guess it’s like a table, it’s got the period breakdown on the left as a column, the kids write their subjects, and there’s a score that the teachers give for conduct, work progress, homework, there’s another I can’t remember, and they can write something if they wish, or they can just sign. On the front cover it’s - I can’t remember the exact wording, but it’s things like, “I understand that I need to use the blue book and” you know, “behave” and things like that. But I can’t remember the exact - I couldn’t give you the word for word quotes.” (T400 [50]; T401 [10]-[40])

106. From this evidence, on the balance of probabilities a proper risk assessment of XY was not performed before XY was permitted to return to the school. This accords with the expert evidence that is referred to later in this judgment.

107. Finally, the deputy principal contended that despite the absence of any official documents to support XY’s return to school, she had conducted her own assessment of the situation and had deemed his return acceptable. She did so in her capacity as a teacher and based on her daily interactions with XY. While a risk assessment can contain several separate documents, on the balance of probabilities, no written risk assessment had been conducted during XY’s long suspension nor was there one when XY returned to school after the long suspension. It is more likely than not that arrangements were not made for XY to attend the RAGE program.

108. The deputy principal recalled that she had previously had interactions with XY on several occasions relating to behavioural issues, but not violent ones. XY had been placed in a learning support class to help him. He had been disciplined by the deputy principal on numerous occasions. She recalled that the first time XY had displayed real physical violence occurred on 29 August 2017. That display of real physical violence resulted in a long suspension.

109. It was her view that her previous interactions with XY had not indicated to her that XY was capable of physical violence. She did not believe that XY was adept enough to organise a premeditated attack involving numerous students. She believed XY was more impulsive and was more likely to follow a crowd than to be the instigator of a well-orchestrated assault.

110. Senior counsel for T2 asked the deputy principal to describe the seriousness of XY’s previous assault and the similarities of it to that of T2’s assault. She agreed the attack that had led to XY’s long suspension was serious and displayed a degree of viciousness and cowardness but did not agree that the attack was a precursor for XY’s subsequent behaviour. She opined that she could not predict future violent outburst from XY based on this previous assault.

111. However, she did agree that the assault that led to the long suspension had displayed XY’s potential for violent behaviour. The deputy principal was asked to comment on the procedures involved in suspending a student and then reintegrating back into the school. She explained that it was the school’s prerogative on whether to conduct a second interview, as well as whether to include the parents of the student, along with the required paperwork.

The saga of missing mobile phone

112. On 20 July 2017, T2 sat down in area of the school where many bags had been left by students. He later heard that a phone had been stolen from one of the bags. T2 recalled that XY and another student told a teacher that it had been taken by T2, but he denied he had anything to do with it. T2 recalled XY and another student having approached him multiple times to accuse him of taking the phone.

113. A few days later a sports teacher asked T2 if he had seen the phone or taken it, but he denied the allegation again. T2 felt angry that he had been accused of theft but also felt scared. A growing number of students would approach him daily, questioning him about the missing phone. T2 became fearful of school and stopped attending during that period. As is turned out, T2 was not involved in the missing phone incident.

114. To avoid attending classes T2 resorted to destroying his school shirts. The school had a strict uniform policy at the time that required all students to attend school in full uniform. However, the school replaced T2’s damaged shirts, and T2 was forced to re-attend his classes. The harassment from his fellow students continued for a few months until the assault took place.

T2’s pleading – the assault

115. In his amended statement of claim T2 pleads:

116. On 16 October 2017, between 3:00pm and 4:00pm there was no supervisor at the bus stop area adjacent to the school where students were collecting, waiting for a bus.

117. T2 left the school at about 3:05pm and assembled with other students at the bus stop at the front of the school for a bus.

118. While waiting, T2 was threatened by other students, including XY.

119. T2 moved back into the school grounds and at 3:26 p.m., sent a text message to his mother advising that he was about to be ‘bashed’.

120. Shortly thereafter the bus arrived. T2 moved towards the bus, intending to board it.

121. While T2 waited to board the bus, XY and other students grabbed him, preventing him from doing so.

122. T2’s mother attempted to contact staff at the school to seek their intervention to prevent T2 from being attacked.

123. At 3:26pm T2’s mother tried to contact any employee at the school. Her call was diverted so she left a message.

124. Again, at 3:28pm T2’s mother could not make telephone contact with the school. Her call was again diverted, so she left another message.

125. Between 3:00pm and 3:40pm there was no mechanism in place at the school whereby any person, including students or parents, could give any warning by telephone of an escalating episode of violence or other risk eventuating at the bus stop.

126. Shortly thereafter, T2 was attacked by four other students, including XY, and dragged down a laneway in view of the school office and into a nearby park.

127. At the park, T2 was set upon by about 12 students and repeatedly punched and kicked.

128. The risk that T2 would be assaulted by other students thereby causing injury, was foreseeable by the defendant and not insignificant.

129. The defendant was under a duty to take reasonable precautions to prevent persons including T2 from being exposed to a risk of serious harm. The duty of care owed by the defendant to T2 was non-delegable.

130. The defendant did not take the precautions that a reasonable person in its position would have taken against the risk that a person in the position of T2 would be assaulted by other students in close proximity to the school. Such precautions include:

1. Heeding information that T2 was being bullied and threatened by other students and acting on that information.

2. Heeding and acting on T2’s mother’s advice in September 2017 that students had bullied and pushed T2.

3. Not allowing XY to return to the school following a lengthy suspension for violence.

The bus stop

131. When giving evidence, T2 was asked to describe his journey home after school signalled at 3:04pm by the bell. His response was that he would usually have to wait approximately 30 minutes before the arrival of his bus at the bus stop. He had never seen any fights unfold at the bus stop. T2 said that, on occasion, teachers would walk out in the direction of the buses, but after the first couple of buses had left and the majority of students had been picked up by their parents, the teachers would leave (CB20047). The few kids that were left at the bus stop did not have any adult supervision.

Were the teachers present for crossing/bus duty after school on the day of the assault?

132. The next factual issue to be dealt with is whether the teachers were present at the bus stop on Thorney Road on the afternoon of the assault.

133. The principal described the after-school supervision in her statement. She described the procedures and practices that the school had adopted when conducting after school supervision. Of the 1400 students attending the school, only 70 students caught buses home. Three head teachers were rostered daily and tasked with supervising students’ departure from the school. Two of the head teachers were rostered to supervise the pedestrian crossing on Thorney Road, the site is about 20 metres from where the bus stop was located and where T2 caught his bus.

134. The school did not conduct “bus duty”. The teachers were only rostered to monitor the school crossing on Thorney Road (T48 [20]-[35]). According to the principal, the school’s sole responsibility was to ensure that students could cross the road in a safe and efficient manner. However, the principal conceded that the bus stop was very close to the school crossing, approximately 20 metres down the road and that she would expect a teacher on duty to keep “an eye out” (T352 [45]) for any possibilities of conflict at the bus stop.

135. Her evidence is that crossing duty was not a requirement of the NSW Department of Education. Rather, she introduced the policy as an extra precautionary measure with the intention of keeping her students safe. Her evidence in this regard is not entirely correct, as will be discussed later. She explained that the teachers were to conduct themselves in a similar manner to that of playground duty. They were required to be aware of their surroundings, move around actively and intervene if any issues arose. She further explained that the teachers were not required to spend a specific amount of time at the crossing and could use their discretion as to when they could leave, usually after most students had dispersed.

136. Due to her concern regarding XY’s prior long suspension and prior violence, the deputy principal’s evidence was that she would have followed protocol and informed teachers via email or through a staff meeting that they needed to be aware of any incidents of misbehaviour by XY. There were no emails in evidence to demonstrate that this was actually done.

137. The principal was cross examined by T2’s counsel with a focusing on whether Stephen Barbuto (Mr Barbuto) and Andrew Nguyen (Mr Nguyen), both senior teachers who were rostered on bus duty on the day of the assault, were actually present at the Thorney Road pedestrian crossing.

138. There was no contemporaneous evidence of whether Mr Nguyen and/or Mr Barbuto were actually present at the Thorney Road bus crossing duty on the day of the assault. The principal recalled speaking with Mr Barbuto the day after the assault. He confirmed to her that he had attended at the Thorney Road crossing and he had not witnessed any suspicious behaviour from the students. The principal accepted Mr Barbuto’s oral statement to her on the basis that he had been a teacher for over 30 years and was therefore well qualified to identify and address any situations of concern. The principal’s confidence in Mr Barbuto was the subject of cross examination:

“Morris

Q. Its entirely possible that Mr Barbuto gave you nothing more than an estimate. Do you agree?

A. No, I don’t, because Mr Barbuto is a very honest person, I’ve worked with him for a long time, he would have told me correctly the information. He’s also a maths teacher, so therefore, for him two and two makes four, he’s very accurate with numbers, so he would have been very accurate with his time.” (T565 [45]-[50]; T566 [5])

139. As to the principal’s actual knowledge about whether Mr Barbuto attended bus duty on the day of the assault, the following exchange took place:

“Morris

Q. Well, you didn’t go down to supervise them?

A. My office was near the bus stop, and if any – the head teachers know to go to the bus duty straightaway, like all duties, on time, and if someone’s not there, usually I’ll get a call to come, the head teacher administration checks on people on duty; I’d get a call. Mr Barbuto’s absent today – if he was absent that day, for example, someone else would’ve done that duty for him. So we have a system in place where staff that’s absent, someone will relieve – will do that duty.

Q. You see, you just called it bus duty, didn’t you?

A. Sorry?

Q. You just called it bus duty, didn’t you?

A. Did I? I’m not sure.

Q. That’s what you refer to it commonly as, don’t you; bus duty?

A. No, its playground duty generally.

Q. In describing the work to be done by Mr Barbuto, I want to suggest to you, you just referred to it as bus duty. Is that correct?

A. I can’t recall. Maybe. We’ll look at the dialogue.” (T244 [5]-[15])

140. From this exchange, the principal did refer to the supervision as “bus duty”. On the day of the assault, there was a staff meeting scheduled to take place at 3:15pm. All teachers were required to attend. The meeting was a presentation of “film pond”, a type of visual media used for learning purposes.

Should a Jones v Dunkel inference be drawn against the two supervising head teachers?

141. The system in part provided for the rostering of two head teachers to supervise the students when they left the gate of the school on Thorney Road, adjacent to the pedestrian crossing and bus stop. The roster for that week is contained in the court book at tab 5. The two rostered supervising head teachers on the day of the assault were Mr Barbuto and Mr Nguyen.

142. The principal gave evidence that that there was no specified time for the head teachers to finish their after-school crossing and bus duty. They were able to leave once most of the students had dispersed. She said that most students would disperse in approximately 10 minutes. The teachers rostered to the duty were instructed to use their professional judgment. They were to remain until most students had disbursed and they no longer perceived any issues (T236 [45]).

143. Senior counsel for the defendant submitted to the Court that a Jones v Dunkel (1959) 101 CLR 298 (Jones v Dunkel) inference was unnecessary because the two head teachers rostered on duty would not be in a position to provide any further information that could assist the Court in its findings. The school principal was probably the best person qualified to give expert evidence.

144. When the principal spoke to Mr Barbuto, he told her that he attended the staff meeting at about 3:25 to 3:30pm and he had not seen anything unusual outside that day (T233 [50]; T242 [45]).

145. However, T2’s evidence was that when he first went to the bus stop there was only himself and four others present. The principal said that if there had only been five students at the bus stop, she would not have reasonably expected for there to be still teachers present (T354 [40]).

146. I accept that the principal gave evidence that the CCTV footage of the view of the bus driver showed her nothing to suggest that she would have needed to intervene (T358 [40]). She observed that the bus in fact blocked the view of the bus stop from a position near the crossing (T357[1]). However, when the principal was shown the CCTV footage of the school students walking towards the park, she accepted that the image of the boys following T2 down towards the park would have been a reason for concern and that she would have intervened. It is my view from watching the two CCTV videos and taking into account the principal’s evidence, that if a supervising teacher had observed T2 leaving the bus stop it would have caused concern. Mr Meehan and Dr Ikin, expert witnesses, agree.

147. Neither Mr Barbuto nor Mr Andrew Nguyen prepared affidavits. Nor were they called by the defendant to give evidence. This was despite me having previously indicated to counsel that a Jones v Dunkel inference may be drawn if no evidence was given by the teachers.

“HER HONOUR

Q. All right. Just before you do that. There was Mr Nguyen, wasn’t it? And who was the other one?

A. Mr Barbuto.

Q. Barbuto. I’m just looking at the statements, they haven’t provided statements.

POLIN: No.

HER HONOUR

Q. Is that—

A. Well, they didn’t see anything, your Honour.

MORRS

Q. I’m sorry?

HER HONOUR

Q. They didn’t see anything – is what you answered. It’s just that otherwise it’s going to be – aren’t there going to be Jones v Dunkel.

POLIN: Your Honour, the evidence will come out about this and it will be quite clear what actually occurred and – so I don’t –

HER HONOUR: Okay. All right. I’ll wait and see. All right…” (T302 [18]-[46])

148. The two head teachers, Mr Barbuto and Mr Nguyen, were rostered for after school duty at the crossing on the day of the assault. Their statements would have assisted the Court as they would have seen what did or did not occur at the bus stop had they been there. I warned the defendant that I would probably draw a Jones v Dunkel inference due to the absence of their evidence if there was no satisfactory evidence as to why they were not called to give evidence (T302 [40]-[41]).

149. They were not called as witnesses over the remaining five days of the trial. No satisfactory explanation for their nonattendance has been provided. Therefore, in the exercise of my discretion, I draw a Jones v Dunkel inference that Mr Barbuto and Mr Nguyen’s evidence would not have assisted the defendant’s case.

The assault – 16 October 2017

150. T2’s evidence was that teachers would be on duty only some days and when they were there, they would only spend about 10 minutes supervising and would then leave. His evidence was that, prior to the assault on 16 October 2017, he did not mind waiting with other people at the bus stop, but after the assault now he finds it stressful waiting at bus stops with other people.

151. On 16 October 2017, the day of the assault, T2 initially had intended to go to the shops before the bus arrived, but he changed his mind. While at the bus stop a student came to him and said, “[XY] wants to talk to you” (CB 20047). T2 responded that he did not want to talk to him. T2 thought that this was still regarding the stolen phone.

152. Understandably, while in the witness box T2 did not want to discuss the details of the actual assault, for reasons explained by psychiatrist Dr Rickard-Bell, that I accept.

153. On that day, T2 had been told by XY that he was being “big” in English class after school had ended.

Yeah, so when did [XY] say that you were big in English class?

He didn't say it in English.

Oh, okay, when   - -

He just waited until after school.

Say it again, sorry?

He waited till after school.

Oh, okay, but you said that [XY] was calling you big because you weren't doing your work?

Yeah, but he said that after school. (CB 20015)

154. T2 was then informed of the impending assault by his friend ‘TJ’ at the bus stop about two minutes before the approximately 12 students arrived at the bus stop. (CB 20014). TJ had warned T2 that XY was looking for him and wanted to speak with him.

Oh, okay, and they've come over and then what's happened when they were walking towards you?

Oh, they were all walking because my friend just said, "[XY] wants to speak to you." I said, "Why, I did nothing wrong?" and they just came up to me and they crowded me.

Okay, so you said your friend said that [XY] wants to speak to you?

Yeah

Are you referring to [XY]?

No - oh, yeah, [XY].

Yep, okay. Which friend said that to you?

Oh, TJ. He's a mate.

TJ?

Yeah.

Do you know TJ's full name

[TJ](?).

[TJ]?

Yeah.

And what year is [TJ] in?

Year 9.

Year 9, okay, and does [TJ] go to the same school as you?

Yep.

Yep, and when did [TJ] tell you that [XY] wanted to speak to you?

Oh, before 3.30.

Before 3.30?

Yeah, when they came through the park.

Okay, so where were you when [TJ] told you that?

I was at the bus stop.

At the bus stop?

Yeah. (CB20013-20014)

CCTV footage and videos

155. A series of CCTV footage was recorded on the day of the assault on 16 October 2017. The CCTV entitled ‘Back of the bus footage’ ran from 3:28:23pm to 3:28:30pm. The bus videos were recorded between 3:27pm and 3:28pm. The CCTV entitled ‘Front of bus footage’ ran from 3:27:47pm to 3:28:23pm. The CCTV entitled ‘Inside door of bus’ ran from 3:27:53pm to 3:28:23pm. The CCTV entitled ‘Kambala Road footage’ ran from 2:55:18pm to 2:59:59pm. It is common ground that the timer of the Kambala Road footage was incorrect. It appears that this footage actually took place between 3:55pm to 3:59pm.

156. The first CCTV footage is of the bus stop taken from cameras mounted at the front, rear and within the bus. The footage shows a group of students congregating at the bus stop. It is unclear exactly where T2 is located. It appears that T2 has been backed onto a wire fence surrounded by a group of students. On viewing the CCTV footage in slow motion, nine students boarded the bus. There were also about 13 ither students standing outside the bus. No teachers were depicted in the CCTV footage.

157. In T2’s statement to the police dated 17 October 2017, he said that while he was waiting in line to board the bus he was grabbed by his bag and dragged down the alleyway (CB 20019). The officer asked him if he had managed to board the bus, T2 said “no” (CB 20020). When viewing the CCTV footage however, it is evident that the students prevented him from boarding the bus by standing in his way. They did not drag him out off the bus, nor did they drag him towards the alleyway.

158. In the second CCTV footage (captured by cameras in the alleyway), one of T2’s fellow students escorted him away from the bus stop with his arm wrapped around T2’s neck and shoulder while they walked side by side. Approximately two to three metres behind T2 and his escort was a group of school students who were following them down the alleyway. The alleyway is long. When giving evidence T2 was asked questions regarding this perceived threat and his compliance.

“MORRIS

Q. There's another question that I've got, and it's taking you to the day of the assault, all right. When you were taken down the laneway, okay. Did anybody say to you that you had to go down the laneway?

A. No

Q. So, you have said in one of your statements, "On the day of the assault I had to go with the others, or something would've happened to me". Is that something that somebody said to you, or is it the way you felt?

A. The way I felt.” (T170 [50]; T171 [1]-[5])

159. In his statement dated 14 August 2023, T2 stated that, “[o]n the day of the assault, I had to go with the others, or something would have happened to me” (CB 20054). Taking into the account of the evidence above, I accept that T2 was concerned that he was not safe, particularly because he was warned that XY wanted to speak to him. Students visible in the CCTV at the bus stop were also the instigators of the assault that would take place once they reached the park. T2 told the officers during his statement that the alleyway he was led down was approximately 10 metres down the road to the right of the bus stop, when one is facing the school.

160. The final video of the assault was filmed using a camera phone by another student present and filmed the assault as it was taking place. It was later uploaded to Instagram. The video depicts T2 and the escorting student of the group arriving at the park that was situated at the end of the alleyway. A student is then seen spear tackling T2 from behind, a dangerous act that is outlawed in both Rugby Union and Rugby League. The tackler lifts T2’s feet out from under him and throws him onto the ground so that T2 finds himself in a very vulnerable position. T2 places his hands out in front of him to break his fall, but he still lands with force face-down. At this point, he is lying on his back. The group of students then immediately surround T2 and begin to kick and punch him from all angles with force including on his torso, head and legs. T2 covered his face with his hands. The attackers inflict their violence en masse. The attackers take turns inflicting their violence. Others in the group spectate and encourage the attack. T2 is lying limp on the ground screaming. One of the students is recorded as saying “fucking oath lad, eshay” while the assault continues to escalate. This video makes very distressing viewing.

T2’s statement to police dated 17 October 2017

161. On 17 October 2017 at 5:38pm, the day after the assault, T2 made a statement at Fairfield Police Station. He was interviewed by Senior Constable Ryan Booker. The interview was conducted in the presence of T2’s brother, Bradley, and their mother. It was Senior Constable Ryan Booker who later located the footage of the assault on Instagram.

162. During the interview, T2 was asked questions by the police about the assault. He stated that, at the beginning, he was about to go to the shops. However, he changed his mind late and decided to go the bus stop instead (CB 20004). When the students initially approached T2 at the bus stop, he recalls leaving and going back across the road into the school. He tried to find a teacher at the school and its administrative office, but the office was closed. He went back across to the bus stop when he saw his bus was coming. When he tried to board the bus he was held back by the students. T2 recalled that, after the assault, the perpetrating students ran away down towards the river.

163. T2 stated that while he was waiting for the bus at the bus stop (CB 20014), his friend, referred to as ‘TJ’, walked past and notified him that XY wanted to speak to him. T2 said:

“Oh they were all walking because my friend just said, “XY wants to speak to you.” I said, “Why, I did nothing wrong?” and they just came up to me and they crowded me (CB 20013).

164. T2 then described what took place with the students while he was waiting at the bus stop. The police statement records as follows:

“I was waiting for the bus in the line- -

Yep?

Then they grabbed me by the bag and dragged me down the alleyway.” (CB 20019)

165. It is important to note that T2 never said to the police that the student pulled him off the bus, nor did he say that at the beginning of the walk down the alleyway he was being dragged. The video does not show the entirety of the walk down the alleyway.

166. T2 reiterated that when they reached the park by the river he was tackled from behind, before being kicked and punched while on the ground repeatedly by multiple students. T2 recognised two of the students from the total of approximately 12 who attacked him. They were XY and XZ. He saw them running away from the scene.

167. The principal’s response as to whether the school failed to provide adequate after-school supervision was that the school’s policy to provide three head teachers to conduct after-school supervision was adequate. Being a high school with more mature students, the standard of supervision required was a lower one to that of a primary school. The principal reiterated that there was no specified time requirement for after school duty. She opined that if teachers were required to wait until every child had dispersed, they may have been there until 5:00pm. At the time of the assault, the principal was not aware of any statutory or regulatory obligations from the department that required teachers to remain after school in a supervisory role until a specific designated time.

Policy documents

168. The principal’s evidence is that the crossing duty (including bus duty) was not a requirement of the NSW Department of Education and that it was a policy introduced by her as an extra precautionary one. That statement is not entirely correct.

169. A series of policy documents were tendered by T2 (Ex H, J, K). These policy documents are published by the NSW Department of Education address the scope of duty the school owes its students. The policy document titled “Duty of care to students”, last updated on 16 February 2023, outlines the kind of duty of care that exists regarding after school care. It reads,

“A school’s duty of care to students can extend beyond school premises, for example, on excursions or when students commence their journey home.

…

Duty of care doesn’t always stop at the bell or at the school gate.

…” (Ex H)

170. The policy document titled “Managing school road safety”, last updated on 1 September 2023, refers to the school’s obligations to provide and implement strategies that prevent bullying from occurring as well as the school’s requirement to provide a greater level of care towards vulnerable students, i.e., students with physical or mental health disabilities. The document additionally outlines that a duty of care will extend beyond the school gates as well as after school hours in “circumstances where there is a clear and close connection to the school” (Ex J).

171. The policy document entitled “Duty of care and behaviour management”, last updated on 13 June 2023, defines the duty of care as being the duty to take reasonable steps or care to avoid harm. The document reiterates that the duty can extend beyond the school gates and after the end of the school day.

172. In summary, these policy documents set out that the school’s duty of care extends beyond the school gate after the end of the school day, such as when students convene their journey home. Also, that the school’s obligations include preventing bullying from taking place as well, particularly in respect of vulnerable students, such as T2.

Experts on liability: Dr Ikin and Mr Meaney

173. T2 relied on the expert liability reports of Dr Ikin, an independent educational consultant, dated 21 October 2020 and 21 May 2021. The defendant relied upon the expert liability reports of Mr Meaney dated 15 February 2023 and 13 July 2023. Both experts wrote a joint report where they disagreed on most issues. When giving concurrent evidence and when Mr Meaney accurate factual evidence, they agreed on various important issues.

174. Dr Ikin is an independent educational consultant. She holds degrees in education at the bachelor, masters and doctoral level. She was a director of schools for six years and supervised 32 schools in NSW. She has extensive knowledge in school policies and practices, in addition to teacher / principal practices and student behaviour.

175. Dr Ikin stated in her report dated 21 October 2020 that the school, and specifically the principal, were responsible for the safe passage of all students to and from the school. She opined that when a bus stop or crossing are in close proximity to the school, teachers should be placed on duty before the start of school and after the end of classes to ensure that students arrive and leave in a safe and appropriate manner. This duty extends until all or most students had boarded their respective buses or had left the school by other means of travel at the end of the day.

176. Dr Ikin reiterated this view when she was giving concurrent evidence. She was adamant that the school had a responsibility to ensure that all students had boarded their buses safely (T546 [20]). In her report Dr Ikin references a Memorandum to Principals 97/165 dated 21 August 1997. Clause 2.4 of that document provides the following regarding after school supervision:

…

“Students must be supervised to safely leave the school grounds and commence their journey home. Students must be supervised if crossing roads adjacent to the school.

Students waiting for buses outside or near the school must be directly supervised. Principals must consider the numbers of students present, the age, maturity, any special needs and behaviour of the students, the number of exit sites and the danger from buses and normal traffic in determining an appropriate level of supervision.”

177. Dr Ikin also expressed concerns regarding the school’s failure to keep its offices staffed after the end of school for a longer period. It is Dr Ikin’s view that that this would have provided a point of contact for any students who felt unsafe or threatened after the end of school.

His mother, [T1], advised, “soon after the assault, during the first 12 months, [T2] was suicidal and had made two attempts. He had spoken about wanting to kill himself and had made plans.” She noted that this affected her sleep, and she would not leave him at home. She reported that although he is no longer suicidal, “he still won’t go out… but I am beyond the stage of having to watch him now. I can leave him for a maximum of two hours”. She also stated that after the assault, he had a period of nightmares, and he became very withdrawn and would not come out of his room. His personal hygiene deteriorated, and she had to prompt him, but she acknowledged that this would not have amounted to more than a few minutes a day. She had the court subpoena [regarding the assault case] “dropped” as she knew he was too traumatised to manage this. [T1] expressed that she felt the Department of Education had failed them and she did eventually receive an apology.

Comment: as [T2] no longer attends school, he has fewer routine tasks, such as catching a daily bus and sleeping at a reasonable hour. Poor sleep routine and habits may be contributing to his apathy to go out and schedule daily activities if he is sleeping into the day. Observing healthy sleep patterns is important for both physical and mental health, improving productivity and overall quality of life. Research has demonstrated that forming good habits is a central part of health. Crafting sustainable and beneficial routines makes healthy behaviours feel almost automatic, creating an ongoing process of positive reinforcement. On the flip side, bad habits can become engrained even as they cause negative consequences. Although [T1] stated, “he will not go out”, documentation noted that [T2] attended school in February 2018. [T1] advised in this assessment that [T2] goes to the hairdresser, and [T2] stated he attends the shops with his mother. [T2] has demonstrated capacity for attending school and accessing the community. Dr Rickard-Bell documented (23 December 2020), “I do believe [T2] would be able to act in his own best interests and to make an informed decision based on the facts and advice given to him. I believe he could convey instructions to his legal representatives. Yes. I believe he would be able to participate fully in legal proceedings.”

There was no documentation in the hospital or General Practitioner notes documenting [T2’s] panic attacks. The first mention of ‘panic’ was by Dr Polon on 17 August 2020. [T2] regularly consulted the hospital ENT clinic during 2017/2018, and there was no documentation of panic attacks, anxiety or suicidal ideation. Liverpool Hospital noted on two occasions that [T2] ‘looks well’. The behaviours that [T2] displayed in the ENT clinic pre-dated the assault. The first documentation of PTSD was by Dr Sundraingham on 16 March 2018.

[T2’s] reported suicide attempts or plans following the assault were not evident in any medical and school documentation that I reviewed from the year after the assault or beyond. A suicide attempt would be considered a relatively serious event and a reasonable expectation would be that [T2] or his mother would have attended for medical attention. His doctor would have needed “to gather information about the patient’s intent, plan, support system, and past medical/psychiatric history. [T2] would not have been allowed to leave the office until the doctor had thoroughly assessed” him. Before the assault, there was documentation in June 2011 and September 2017 that [T2] wanted to kill himself.

I note that [T1] has, on occasions, attended medical consultations concerning [T2] without him being present. If [T2] was non-compliant about seeking medical attention post suicide attempts, it would be reasonable that [T1] sought medical assistance on behalf of [T2] as she had in the past.

Based on the documented evidence, given [T2] demonstrated capacity for attending school, assessing the community, and lack of evidence relating to deteriorating mental health, including suicide, I do not support gratuitous assistance for additional supervision of T2 following the assault.” (CB 40099-40101)

562. Ms Piebenga covered education post-assault at [7.0]. She said,

“Post-assault, [T2] attended a new school (Ashcroft) and was offered an alternate, client-centred education program, as he had been offered at Verona in earlier years of his schooling before the assault. In most cases, ASD is a life-long condition, often severely affecting the quality of life of the patient and their family… though even today the recovery from the autism spectrum is an unlikely possibility, a timely psycho-educational intervention can significantly improve the level of autonomy reached by the individual and therefore favourably modify the outcome. Community support and social integration may be very important in improving outcomes for individuals with [ASD]. Given [T2’s] medical history, it is reasonable to expect that he would have required such support at some stage. I do not support additional tutoring for [T2] based on the injuries he sustained in the [assault].” (CB 40102)

563. Ms Piebenga addressed T2’s employment prospects at [8.0]. She said,

“Remaining out of school or work is counter-intuitive to [T2’s] recovery and has not resulted in further recovery. The evidence is compelling: ‘for most individuals, working improves general health and wellbeing and reduces psychological distress.’ However, in Australia, research indicates that the unemployment rate for autistic people is 31.6 per cent. This is three times the rate of people with a disability and almost six times that of people without a disability. More than half of unemployed autistic Australians (54%) had never held a paid job, despite often possessing the skills, qualifications and a strong desire to join the workforce. While I believe that the assault has genuinely impacted [T2], given [T2’s] medical and educational history, he would have required assistance to identify and locate suitable employment based on his ASD. It is beyond my expertise or the scope of this assessment to determine what [T2’s] capacity for employment was regardless of the assault, particularly his capacity for working with others and his level of communication given his diagnosis of ASD.” (CB 40103)

564. Ms Piebenga discussed periods of incapacity at [11.0]. She said,

“[T2] demonstrated periods of recovery. These included his capacity to attend Fairvale High School on 18 October 2017 (for one day). He was exempt from school for 44 days. Then from 15 December 2017 until 31 January 2018 or 6.86 weeks, [T2] was on school holidays and under the supervision of his periods during this time, regardless of the assault. He attended Ashcroft High School from February 2018. [T2] retained independence in personal care tasks and his pre-assault contribution of domestic tasks. [T1] stated she did provide prompts for self-care before the assault and that prompting continued.

Prior to and at the time of the assault, [T1] provided care above that provided to a 14 year old without [T2’s] diagnoses. This is evidenced by her receipt of a carers pension. I conclude that there was no additional gratuitous assistance provided to [T2] following the assault.” (CB 40106)

565. Ms Piebenga made the following recommendations at [12.0], [13.0] and [15.0],

“Due to [T2’s] age at the time of the assault, it is reasonable to support travel to and from medical and rehabilitation appointments that relate to the injuries he sustained in the [assault].

I support psychological assessment to determine if [T2] requires any intervention consequent to the assault.

I support a treatment program with either an OT or Psychologist with expertise in desensitising [T2’s] anxiety and thus enabling him to access the community independently. In addition, I support a driving assessment…”

…

I do not support Mr Byrnes’ recommendation of past gratuitous assistance based on [T2] having reduced memory, decision-making, and concentration, resulting in the need for prompting and assistance. [T2] did not sustain an injury that impacted his cognition.

Based on the documentation provided to me and my assessment of [T2’s] capacity to function after the assault, no additional gratuitous assistance is supported for past gratuitous assistance for personal care or domestic tasks as a result of the injuries sustained in the assault. [T2] retained the capacity to attend to personal care and domestic tasks with minimal prompting from his mother, as was the situation prior to the assault.”

…

Based on the documentation provided to me and my assessment of [T2’s] capacity to function after the assault, I do not support gratuitous or commercial assistance for future personal care and/or domestic tasks as a result of the injuries sustained in the assault.

[T2] is currently independent in managing his personal/self-care, to the level of his pre-assault functioning and he is participating in domestic tasks at a similar to that completed by his sister. His mother continues to perform many of the household domestic tasks although both she and [T2] admitted that he has the capacity to contribute to tasks now and in the future.

I note there is also a recommendation for the cost of life coaching and education tuition fees. Whist this may be appropriate and necessary, I do not consider it is consequent to the assault but rather to the multiple issues that [T2] was diagnosed with prior to his assault.” (CB 40106-40108)

566. I have already allowed for all of the above recommendations except the driving assessment under the heading ‘future medical expenses’.

T2’s comments concerning Ms Piebenga’s opinion

567. Ms Piebenga’s view was that the December 2016 Review of Carer Payment (Ex E) demonstrated that T1 was receiving payment for 24-hour care provided by her to T2 before the assault. As a simple matter of logic, Ms Piebenga inferred that T2 therefore did not receive any additional care from his mother after the assault. This approach is too reductionist to be of assistance. An examination of his daily routine and activities, as set out in the school records and by necessary implication of him attending school (see evidence of Mr Byrnes on 25 October 2023), demonstrates that T2 was nowhere near as dependant on his mother as of December 2016 as he was after the assault.

1. Ms Piebenga took a task-by-task approach and did not consider the need for protective supervision, prompting and encouragement. These are forms of attendant care within s 15B of the CLA.

2. In looking at the before and after picture, Ms Piebenga did not factor in age-appropriate activity. At the time of the assault, T2 was 14 years of age and dependent on his mother. There were a range of activities he would have performed by reason of his age. He is now almost 21 years of age, however his dependency on his mother is greater than it was immediately before the assault.

568. Mr Byrnes interviewed T2 and his mother and provided a detailed assessment of the nature and extent of care required by T2 since the assault.

569. The main component of the care claim is “protective attention and supervision”. This claim is advanced on the basis that before the assault, T2 could get himself to school and participate reasonably well and independently. After the assault, he could not effectively get to school and, given his age, injuries and underlying condition, he could not be left alone.

570. Following the assault, T2 stopped attending school. He was 14 years old at the time. The cessation of schooling placed an immediate burden on his mother. She was required to care for him during the hours he previously attended school. T2’s mother has done most of the housework, cooking and cleaning. She says T2 could do some housework but would need supervision. Currently, T2’s mother supervises his cooking, and takes him or otherwise accompanies him when he is shopping. She takes him to appointments, including with NDIS, waits for him and takes him home. She has shown him how to use an ATM. She is giving him driving lessons after he was unable to tolerate a driving instructor. Maddison confirmed that T2 gets his mother to do everything for him. In her opinion, if T2 were to undertake housework and cleaning, he would need reminding. Mr Byrnes noted a reluctance of T2 to shower.

Joint Report of Ms Piebenga and Mr Byrnes dated 1 March 2023

571. Both Ms Piebenga and Mr Byrnes agree that T2 had significant pre-existing (pre-assault) psychiatric health diagnoses of ASD and ODD.

572. The experts disagree about both T2’s pre-injury capacity and the impact of the assault on T2’s capacity following it. Both experts formed different opinions because they placed different weight on the documentation they were provided, and because they were given different information by T2.

573. Ms Piebenga acknowledged some of the medical experts considered the assault on 16 October 2017 likely exacerbated or aggravated the plaintiff's underlying condition. Whilst this may well be true, Ms Piebenga remained of the opinion that no additional gratuitous assistance was provided by his mother (or anybody else) in relation to the plaintiff's personal care, including the 'protective attention and supervision' recommended by Mr Byrnes. In particular (as noted in section 10, page 12 of Ms Piebenga's report):

“His mother, [T1], was his paid carer before the assault. This indicates that [T2] required a level of care over and above what could be expected because of his age due to his pre-existing diagnoses…

he had high-level behaviour support needs and difficulty with emotional regulation.

… any participation in ADLs required prompting from his mother. During my assessment, [T2] and [T1] reported retained capacity for all personal care and domestic tasks at [T2’s] pre-assault level of function. Although community based tasks were reported as dysfunctional, [T2] attended school, the shops and the hairdresser.” (CB 40106)

574. Ms Piebenga noted that Dr Sundrasingham completed a 'Review of Carer Payment and Carer Allowance — Medical Report' on 20 December 2016 in which it was documented that:

"[T2] is very uncontrollable. He is very aggressive. He is suicidal and has a fascination with knives. Has to have 24 hour care. No medications are helping, in any case he vomits all medication. He is very restless, he hits his head against the wall. He is very antisocial and avoids everyone including [unable to read]. His condition has not changed and will be present for his lifetime". (CB 60006)

575. It was noted that Dr Sundrasingham declared that T2 required “care 24 hours per day for his lifetime” (Ex E).

576. Ms Piebenga noted Dr Samuell's comment in relation to domestic tasks. Specifically, Dr Samuell documented on 5 July 2021 that the plaintiff "said that he cannot cook". He said that he has tried, but he is "horrible" and "can't follow a recipe". In contrast, T2 told Ms Piebenga that he "can use the deep fryer" and his mother added "he's really good with it". Dr Samuell also noted that the plaintiff "does some basic domestic chores, such as washing the dishes, cleaning and vacuuming". Dr Henricks (Vocational Psychologist, 1 October 2021) documented that the plaintiff "is able to catch public transport independently ... [noting however that] he prefers his own space and dislikes catching the bus when it is crowded” (CB 60006).

577. The defendant submitted that because Mr Byrnes had not been informed of T2 receiving the disability pension from NDIS and his mother receiving a carer’s payment for T2, Mr Byrnes’ assessment was based on inaccurate assumptions (T690 [5]-[10]).

578. The defendant challenged the past care claim on the bases that:

1. T2 had not established that care provided did not meet the threshold, and

2. “Being there” is not domestic assistance.

579. Ms Piebenga was sceptical about the extent to which the assault increased the supervisory care T2 required. She noted that, prior to the assault, T1 had applied to be a 24 hour per-day carer of T2 and that T1 was “very involved” in his care prior to the assault as well. She accepted that there was care provided to T2 following the assault but considered that the care provided “didn’t increase as a result of the assault” (T628 [38]-[47]).

580. Ms Piebenga considered that there would have been value in keeping T2 in the school system following the attack, even if on a reduced workload.

“MORRIS: Is what you're telling her Honour that in fact that what was required here from the time of this attack was some systems put in place to try and maintain [T2] in the education system, and then help him transition into some sort of vocation?

WITNESS PIEBENGA: I know this is harping on. But not just from the time of the attack. Because of the things that were going on for [T2] that predated the attack, and the attack, there would've been value in him having support to keep him in the school system. I was led to believe that he did actually continue at school though, which is different to--

MORRIS: He continued--

WITNESS PIEBENGA: In a reduced capacity.

MORRIS: He changed schools--

WITNESS PIEBENGA: Yeah.

MORRIS: --by put him into a standard class and found that difficult, and he ended up specialised--

WITNESS PIEBENGA: Yeah.

MORRIS: --limited teaching, I think two hours a day or something like--

WITNESS PIEBENGA: Two or three hours a day, yep.

MORRIS: Two to three hours a day.

WITNESS PIEBENGA: Yep.

MORRIS: That's in accordance with your--

WITNESS PIEBENGA: That's what I was led to believe too, yep. Yep.

MORRIS: And he disengaged from that.

WITNESS PIEBENGA: Yeah, okay. But yes, in answer to your question; yes, I believe it would've been in his best interests to stay in school in order to transition into employment.

MORRIS: But despite the fact that some support was given at the new school, he was unable to persist?

WITNESS PIEBENGA: Yeah. I - I didn't get a lot of documentation from that period. So at the time of my assessment, it looked like he was in very supported, minimal attendance at Ashcroft High, which I believe was a special needs, you know, a class for kids with special needs.” (T652 [3]-[50]; T653 [1])

581. Ms Piebenga was doubtful that T2 was truly bedroom-bound following the assault (T667 [47]-[50]; T668 [1]-[12]).

Resolution – future care

582. So far as T2’s future care needs are concerned, it is unrealistic to rely on his family to provide gratuitous care in the future.

583. T2’s mother is currently 50 years old and she suffers from her own health issues, including bipolar disorder, depression, anxiety disorder, post-traumatic stress disorder and she has suffered three aneurysms. In a form submitted to Centrelink, T2’s mother claimed to require 24 hour care and supervision herself, including for help with various routine tasks such as grooming herself, using the toilet, transferring herself between her bed and a chair, mobility issues, dressing herself, using stairs and bathing (Ex F). Currently, her stepbrother is in receipt of a carer’s payment for her.

584. Given her supposed ailments, it is unrealistic to expect T2’s mother to provide him care going forward. T2’s mother suggested that her older son, Bradley, could care for T2 should she be unable to do so in the future (CB 20100). I am not confident of Bradley’s capacity to become T2’s carer. He has his own young family to provide for and is in full-time employment.

585. T2 is now an adult. Neither his mother, nor his brother have any legal obligation to provide him care in the future. Given T2 is physically much larger and stronger than his mother and he has anger management issues, it is my view that T2’s mother may not be able to continue being his carer. In this regard, I note paragraph [624] of this judgment.

586. For these reasons, any future care required by T2 should be provided on a commercial basis.

587. As it currently stands, T2 is largely confined to his room. If he is to continue on this trajectory, it is unlikely that he will have significant need for attendant care. As he stays in his bedroom most of the day, he does not need supervision for these hours. If, as is hoped, he engages with treatment and his psychiatric condition improves such that he has some earning capacity, then he his need for commercial attendant care will similarly be limited.

582. I accept that currently T2’s mother does most of the housework, cooking and cleaning for him. She does his shopping or otherwise accompanies him when he shops. She takes him to appointments, including with NDIS, waits for him and takes him home. Maddison agrees that T2 gets his mother to do everything for him. Mr Byrnes notes a reluctance of T2 to shower.

583. I accept Maddison’s evidence that if T2 were to undertake housework, he would need reminding. He also requires some supervision to ensure that he carries out the tasks required to keep the premises in which he is living in a habitable condition, such as cleaning, washing, washing up, showering and vacuuming. To this end, I allow two hours of care, two days per week, on a commercial basis. The parties are to calculate the cost of this.

The effect of the NDIS payments

The NDIS allocation assessed for T2 prior to the assault

NDIS
13.09.23	Breakdown: Support coordination	17,312.26	Not agreed
	Allocation: $2002.80 Used: $1702.45. Remaining: $300.35    Core
	Allocation: $9514.82    Used: $3774.52 Remaining: $5740.30 CD Daily
	Allocation: $14191.90 Used: $3908:9 Remaining: $7953.59    CB Employment
	Allocation: $22789.44    Used: $7926.39 Remaining: $14863.05
TOTAL	17,312.26	Nil

590. Of the allocation of NDIS, $28,839.29 had remained unspent due to the Covid-19 pandemic.

T2’s submissions

591. The fact that T2 has received payments under the NDIS does not affect the quantum of damages to which he is entitled in these proceedings.

592. Section 106 of the National Disability Insurance Scheme Act 2013 (Cth) reads,

106 Recovering past NDIS amounts from certain judgments.

(1) This section applies if:

(a) an amount of compensation is fixed under a judgement (other than a consent judgement) given in respect of a personal injury that has caused, to any extent, a participant’s impairment (whether or not the participant was a participant at the time of the injury); and

(b) before the day of the judgement, NDIS amounts (the past NDIS amounts) had been paid in respect of supports in relation to the participant’s impairment; and

(c) the judgement specifies a portion (the past NDIS support component) of the amount of compensation to be a component for supports of a kind funded or provided under the National Disability Insurance Scheme.

(2) An amount (the recoverable amount) is payable by the participant to the Agency. The recoverable amount is an amount equal to:

(a) unless subsection (4) or (5) applies—the sum of the past NDIS amounts, reduced as mentioned in subsection (3) (if applicable); or

(b) if subsection (4) or (5) applies—the amount worked out in accordance with whichever of those subsections is applicable.

(3) If:

(a) the judgement fixes the amount of compensation on the basis that liability for the injury should be apportioned between the participant and another person; and

(b) as a result, the amount of compensation is less than it would have been if liability had not been so apportioned; the sum of the past NDIS amounts is to be reduced by the proportion corresponding to the proportion of liability that is apportioned to the participant by the judgement.

(4) If the recoverable amount would, apart from this subsection, exceed the past NDIS support component, the recoverable amount is taken to be the lesser of the sum of the past NDIS amounts and the past NDIS support component.

(5) If the recoverable amount would, apart from this subsection, exceed the difference (if any) between:

(a) the amount of compensation fixed by the judgement; and

(b) the sum of the amounts (if any) payable in respect of the amount of compensation under the following:

(i) the Health and Other Services (Compensation) Act 1995;

(ii) the Health and Other Services (Compensation) Care Charges Act 1995;

(iii) Part 3.14 of the Social Security Act 1991;

(iv) a law of the Commonwealth, a State or a Territory, prescribed by the National Disability Insurance Scheme rules; the recoverable amount is taken to be the amount of the difference.”

Resolution – NDIS

593. Section 3(1) of the National Disability Insurance Scheme Act provides that the objects of the NDIS include to:

“(c) support the independence and social and economic participation of people with disability; and

…

(e) enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and

…

(g) promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community; and

…

(h) raise community awareness of the issues that affect the social and economic participation of people with disability, and facilitate greater community inclusion of people with disability…” (emphasis added)

594. That is to say, a key focus underpinning the NDIS is to support, facilitate and enable disabled persons to best engage in, and be productive members, the community.

595. In Zheng, the critical question was whether the payments were intended by the payer to operate in the interest of the plaintiff or to the diminish the damages to which he would otherwise be entitled.

596. As in Evans, where the High Court concluded that unemployment benefits provided by the federal law had the character of a partial substitute for wages, so too does the federal NDIS law have the character of assisting those who have a disability. The function of the NDIS differs from that of the carer’s payment.

597. No evidence was placed before me to suggest that the provision of the carer’s payment to T1 for her care of her son was intended to diminish his entitlements in this Court. The fact that these payments commenced prior to the injuries he sustained through the assault means this cannot have been the case.

598. However, more recent cases have repeatedly emphasised that the provision of a carer’s payment and/or payment to a caregiver for services they provided to a plaintiff should be deducted from the plaintiff’s award for past personal care.

599. In this case, the carer’s payment was not paid because of injuries T2 sustained in the assault. Rather, it was on the basis that T2 “need[ed] care 24 hours per day for his lifetime” (Ex F).

600. While T2’s need for care following the assault was greater than that previously, any entitlement to care is nevertheless to be capped at 40 hours per week. This is the same amount as the carer’s payment received by T1.

601. After the assault occurred, T1 continued to receive a carer’s payment for T2, and she continued to provide him care.

602. It is possible that following this judgment, T2 may be compelled to repay amounts he will receive under the NDIS scheme pursuant to s 106 in the future. That is not a matter for this judgment.

603. The sum of $17,312.26 NDIS funding was paid in relation to T2’s psychiatric disabilities prior to the assault, not the worsening of these conditions after the assault. Therefore, I do not make any deductions in relation to these NDIS payments.

Cost of future management of funds

604. Section 77 of the Civil Procedure Act 2005 (NSW) relevantly reads,

77 Payment of money recovered on behalf of person under legal incapacity

(1) This section applies to money recovered in any proceedings on behalf of any of the following persons–

(a) a person under legal incapacity,

…

(c) a person whom the court has found, under section 76(1)(c), to be incapable of managing his or her own affairs,

pursuant to a compromise, settlement, judgment or order in any proceedings.

(2) All money recovered on behalf of a person referred to in subsection (1) is to be paid into court.

605. Dr Rikard-Bell opined that T2 would be limited in his ability to make informed decisions regarding his financial earnings and the management of his monetary funds. In his report dated the 23 December 2020, Dr Rickard-Bell addressed this issue and opined,

“Can he mange the ordinary affairs of living, including banking, buying and selling and keeping track of his assets and liabilities, and income and expenditure?

I believe he would need assistance with banking, buying and selling and keeping track of his assets and liabilities, income and expenditures.

Does he have a reasonably sound understanding of his assets, liabilities, sources of income and financial obligations?

I believe he would need assistance as he would be unable to understand fully his income and financial obligations.

Does he have a reasonably sound understanding of the complications, pitfalls and risks of what he, others, propose to do with his assets and money, and whether there is a substantial risk that any such proposals will result in his assets and money being dissipated or lost?

I do not believe he has the appropriate ability to understand the complications, pitfalls and risks of what he or others could do with his assets and money or that money could be dissipated or lost.

Does he have the ability to identify situations where others may attempt to benefit from his assets or money through unfair dealing, and thereby create a real risk that he will be disadvantaged, or that his money or assets will be dissipated or lost?

I believe he is vulnerable and would not be able to identify situations where others could attempt to benefit from his assets and therefore, he could be disadvantaged.” (CB 40015)

606. In his report dated 11 February 2021, Mr Rossetto responded to a request by T2’s lawyers that he provide additional calculations for “costs of funds management”. He said that if the funds were invested by the NSW Trustee and Guardian, there would be numerous fees applicable such as an establishment fee, a monthly management fee and an investment fee.

T2’s submissions

607. T2 did not address the issue in final submissions because until quantum is determined the amount claimed for funds management cannot be quantified.

608. In his report of 11 February 2021, Mr Rossetto based his calculation on assumed investment amounts and fees charged by the NSW Trustee and Guardian, Mr Rossetto calculated costs as:

Investment amount

stment amount

Costs of Fund Management

$750,000

$95,113

$1,000,000

$115,238

$1,250,000

$125,635

609. An alternative approach is to apply the Furzer Crestani table of the calculation of the Present Day Value applying a 5% discount rate.

610. The Explanatory Note appearing at [17] of the Furzer Crestani tables records that the tables are based on the NSW Trustee and Guardian fund management fees.

611. T2 has a life expectancy of 61 years. If the quantum of damages is, for example, $1,000,000, the cost of fund management would be $268,270. If $2,000,000, $380,976.

612. Senior counsel for the defendant referred to the Furzer Crestani Forensic Assessment Handbook – Cost of Fund Management Update. It states:

“Changes to NSW Trustee and Guardian Cost of Fund Management Fees

We have recently been made aware of changes to the NSW Trustee and Guardian (‘NSWT&G’) Cost of Fund Management Fees, which came into effect on 1 January 2022. As a result we have updated the Furzer Crestani Forensic Assessment Handbook located at the Resources page of our website.

The NSWT&G Fund Management investment fee (previously 0.1%), changed to either 0.15%, 0.25% or 0.35% depending on which investment fund the damages are placed in. (Note: All other fee components remain unchanged).

We have assumed the damages would be placed in the NSWT&G Financial Management Growth Fund, on the assumption that injured parties have a longer investment horizon and are willing to accept the market volatility with a higher expected return through capital growth. As a result the investment fee adopted by us in the Furzer Crestani Forensic Assessment Handbook is 0.35%.

If funds are placed in the NSWT&G Financial Management Growth Fund (investment fee is 0.35%), this will lead to significant increases in the Cost of Fund management fees charged by the NSWT&G, compared to the fee regime pre 1 January 2022.”

613. The difference between the approach taken by Mr Rossetto and Furzer Crestani appears to be that Mr Rossetto adopted an investment fee of 0.1% and Furzer Crestani has assumed an investment fee of 0.35% on the assumption that damages would be placed in the NSW F&G financial management growth fund. As explained by Furzer Crestani, and in view of T2’s age and life expectancy, it is reasonable to assume that a fund’s manager for T2 would have a longer investment horizon and would be willing to accept market volatility with a higher expected rate of return through capital growth.

614. For that reason, the plaintiff prefers the Furzer Crestani approach.

The defendant’s submissions

615. The Court should not award any damages for funds management.

616. There was no evidence before the Court that any lack of capacity to manage money that T2 may have, was the result of the defendant’s negligence. Indeed, the medical evidence would suggest the contrary.

617. A plaintiff is only entitled to damages to recover the cost of managing verdict moneys where he lacks the capacity to manage those moneys and that lack of capacity is the result of the defendant’s negligence: Nominal Defendant v Gardikiotis (1996) 186 CLR 49 (Nominal Defendant v Gardikiotis).

Resolution

618. I agree with the opinions of Dr Rickard-Bell expressed in his report dated 23 December 2020.

619. The defendant submitted that there was no evidence before the Court that any lack of capacity to manage money that T2 may have was the result of the defendant’s negligence. However, T2’s young age and ASD and ODD diagnoses were known to the defendant and preceded the assault upon him.

620. T2 may have been able to manage his funds prior to the assault, but due to subsequent increased severity of his ASD after the assault, he is now incapable of managing his own funds. In other words, T2’s incapacity to manage his own funds was caused or contributed to by the negligence of the defendant.

621. I prefer the Furzer Crestani approach to funds management. In this case, the NSW Trustee and Guardian will need to administer fund management to T2 on an ongoing basis over a long period of time, given T2’s relatively young age and his need for fund management going forward.

622. In Nominal Defendant v Gardikiotis, “there was no finding that the tortious act gave rise to the need to incur the cost of fund management and there was no suggestion of intellectual disability preceding or consequent upon the accident” (Gummow J at 16). This case is very different. T2’s young age and ASD diagnosis were known to the defendant and preceded the assault upon him. Further, as previously noted, the attack worsened T2’s increased the degree to which T2 was impacted by autism.

623. The parties are to calculate the costs of future management of funds.

A final issue

624. On the final day of the hearing, senior counsel for the defendant brought to the Court’s attention that T2 was facing criminal proceedings in the Local Court. Counsel for the defendant had encountered the listed proceedings by accident when he was performing an online search to find which court room had been assigned for the case before me due to the minor flooding of the Law Courts building. Counsel discovered that T2 was required to attend court as two AVOs had been issued by the Police on behalf of T2’s mother and brother. These matters were listed for directions at the time of the hearing before me. As there was no final decision when judgment was reserved, I am not able to make any findings in relation to the AVOs.

Costs

625. By consent the defendant is to pay the plaintiff's costs on an ordinary basis up until 17 October 2022 and then on an indemnity basis as from 18 October 2022.

JUDGMENT

626. The defendant to pay the plaintiff the sum of $1,754,040.15

The Court Orders that

1. The defendant to pay the plaintiff the sum of $1,754,040.15

2. By Consent the defendant is to pay the plaintiff’s costs on an ordinary basis up until 17 October 2022 and then on an indemnity basis as from 18 October 2022

3. The judgment sum, less any amount repayable to any person or body whether in respect of the Social Security Act 1991 (Cth), Health and Other Services (Compensation) Act 1995 (Cth) or otherwise, is to be paid into Court pending appointment of a financial manager for the plaintiff.

Schedule of damages

Past economic loss	Nil
Non-economic loss	$304,500
Future economic loss	$500,000
Past out-of-pocket expenses	$2,562.15
Future medical expenses	$400,000
Past attendant care	Nil
Future attendant care: two hours per day, two days per week	$224,400
Cost of future management of funds	$322,578
Total	$1,754,040.15

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Amendments

01 November 2024 - Changed to reflect consent orders

01 November 2024 - Date change

Decision last updated: 01 November 2024