Withyman v State of NSW
[2010] NSWDC 186
•1 September 2010
CITATION: Withyman v State of NSW & Anor [2010] NSWDC 186 HEARING DATE(S): 15/2/10-16/2/10, 22/2/10-1/4/10, 6/4/10-9/4/10, 29/6/10-9/7/10, 19/7/10-23/7/10, 16/8/10-19/8/10.
JUDGMENT DATE:
1 September 2010JURISDICTION: Civil JUDGMENT OF: Elkaim SC DCJ CATCHWORDS: Sexual relationship between student and teacher - Liability of teacher and school - Damages for committing criminal acts. LEGISLATION CITED: Evidence Act 1995
Civil Liability Act 2002CASES CITED: Commonwealth of Australia v Introvigne (1981-1982) 150 CLR 258
Gala v Preston (1991) 172 CLR 243
March v Stramare (1990) 171 CLR 506
Mobbs v Kain [2009] NSWCA 301
New South Wales v Ibbett (2006) 229 CLR 638
New South Wales v Lepore [2003] 212 CLR 511
Richards v State of Victoria [1969] VR 136
Sangha v Baxter [2007] NSWCA 264
Singh v Minister for Immigration (2001) 109 FCR 152
Serobian v Commonwealth Bank of Australia [2010] NSWCA 181
SRA of NSW v Wiegold (1991) 25 NSWLR 500
Tabet v Gett [2010] HCA 12PARTIES: David Maurice Withyman by his tutor Glenda Ruth Withyman (Plaintiff)
State of New South Wales (First Defendant)
Anna Blackburn (Second Defendant)FILE NUMBER(S): 2008/00317901 COUNSEL: Mr H J Marshall SC, Mr R J Sergi, Ms P Kerr (Plaintiff)
Mr A C Bridge SC (initially), then Mr P Blacket SC and Mr A B Parker (First Defendant)
In Person (Second Defendant)SOLICITORS: Kenny Spring Solicitors (Plaintiff)
Hicksons (First Defendant)
In Person (Second Defendant)
TABLE OF CONTENTS
Topic Introduction The plaintiff and his witnesses The first defendant’s case The second defendant and her lay witnesses The medical evidence Was there a sexual relationship between the plaintiff and Ms Blackburn? The effect of a finding of a sexual relationship including causation Was there a breach of duty by the first defendant (other than vicariously)? Was the first defendant vicariously liable for the actions of Ms Blackburn? Contributory negligence Section 54 of CLA Some general points on damages The plaintiff’s damages The first defendant’s Cross Claim against Ms Blackburn The second defendant’s Cross Claim against the plaintiff and damages Final Orders
Reasons for Judgment
Introduction
1. The plaintiff’s daily life has been dictated by his dysfunctional personality. In addition he has been hampered by a learning disability. Their combined effects particularly impacted upon his schooling and the school he attended. However, by the age of 18, he alleges he had a bright future with prospects of steady employment. The plaintiff has since been depressed and suicidal and he carries the burden of a serious criminal record.
2. The plaintiff blames the defendants for this decline. He says it was caused by their deeds, either deliberate or negligent. He seeks substantial damages from each defendant to redress the wrongs they have inflicted upon him.
3. The events giving rise to the plaintiff’s claim began at the Carenne Public School in Bathurst. This is a school for pupils with special needs. Most of the students suffer from mental and physical disabilities. The first defendant is, in reality, this school and its staff. The second defendant was a teacher at the school, but not always the plaintiff’s teacher.
4. Senior and junior counsel represented the plaintiff and the first defendant. The second defendant was unrepresented. She ran out of funds to pay her lawyers for the hearing and chose not to seek Legal Aid. I took advantage of an adjournment sought by the first defendant to refer the second defendant to the Registrar for assistance in obtaining pro-bono representation. Unfortunately this was not successful. When the matter resumed the second defendant did not ask for more time to find a lawyer.
5. Because the second defendant appeared for herself I observed her both as a witness and in the manner she conducted her case. I will return to my observations of her below. The Court of Appeal recently commented on the duty of lawyers to unrepresented litigants. Macfarlan JA said this:
“Where, as here in the case of the respondent, a party is represented by competent and experienced lawyers and is opposed by litigants in person, the party and its lawyers have a duty to assist the court to understand and give full and fair consideration to the submissions of the litigants in person.” ( Serobian v Commonwealth Bank of Australia [2010] NSWCA 181 at paragraph 42 ).
The legal representatives of the plaintiff and first defendant not only met this duty in respect of final submissions but also acted throughout the trial in a manner that allowed the second defendant to fully and fairly present her case. On the last day of hearing Ms Blackburn, presumably because of a lack of babysitting facilities, brought her infant son to court. I thank Mr Marshall for continuing his submissions despite the background noise.
6. The nature of a relationship between the plaintiff and the second defendant is central to the case. The plaintiff alleges a passionate sexual liaison lasting about six months. Its termination by the second defendant precipitated a downward spiral into depression and crime.
“ As a consequence of the termination of the Sexual Relationship the Plaintiff suffered a mental illness, and as a result committed a number of criminal offences .” (Paragraph 21 of the Amended Statement of Claim.).
7. The second defendant denies any sexual activity. She says there was a friendship with the plaintiff that grew from her desire to help him with his learning problems. His descriptions of sex and romance are fanciful.
8. The plaintiff says the first defendant is liable because of the school’s own acts of negligence and also because of the acts of the second defendant. The latter arises from the non-delegable duty of care it owed to the plaintiff and from its vicarious liability for the actions of one of its teachers.
9. For most of the hearing the first defendant took a neutral stance about whether or not the sexual relationship had existed. It was only in final addresses that it submitted that there had been such a relationship. The plaintiff’s problems, however, were not a product of any negligence on its part, nor was it vicariously liable for any breach of duty by the second defendant.
10. The second defendant is alleged to be liable because of her personal breach of the duty she owed the plaintiff as his teacher.
11. The first defendant has a cross claim against the second defendant, essentially seeking contribution or indemnity in respect of any damages for which it is found liable to the plaintiff.
12. The second defendant has a cross claim against the plaintiff. She wants damages to compensate her for the criminal acts that the plaintiff has inflicted upon her. These include damages for pain and suffering and economic loss.
13. Almost the whole of the plaintiff’s criminal history concerns actions against the second defendant. These are the same crimes upon which the second defendant has based her cross claim. The plaintiff does not deny this criminal activity. Rather he says the defendants’ actions led him to commit the offences. Thus they are to blame for him breaking the law. There is a substantial causation issue.
14. The plaintiff, who is now 25 years of age, has sued by a tutor. He says he does not have the mental capacity to pursue his case in his own right. The defendants concede he has a learning disability and a disturbed personality.
15. The causation point I referred to above is complex. Despite this I think there are some basic propositions that defined the factual issues that I needed to resolve. These are:
A. If a sexual relationship commenced between the plaintiff and the second defendant while the plaintiff was a student then there was a breach of the duty owed to him by the second defendant as his teacher.
B. If this relationship did so commence then the first defendant was in breach of its duty to the plaintiff if it permitted, condoned or knew, or should have known of the risk of, the relationship.
C. If one or both of the defendants are liable to the plaintiff, the plaintiff may be entitled to damages from whoever is liable to him.
D. The damages may or may not extend, as a question of causation, to the plaintiff’s committing criminal acts and their consequences.
F. If there was no sexual relationship, the plaintiff fails against both defendants. The second defendant’s cross claim against the plaintiff would then succeed. (The plaintiff did not abandon a ‘secondary’ case against the defendants involving no sexual relationship but frankly accepted that in that circumstance the plaintiff did not suffer any damages.)E. If the damages do not extend to the criminal acts, then the plaintiff might be liable to the second defendant for damages arising from his assaulting the second defendant and from breaches of Apprehended Violence Orders (“AVOs”).
16. The case was heard over a number of days. The evidence was extensive. I do not propose to repeat or summarise all of the oral evidence. I hope instead to refer to those parts of the evidence that play a part, often indirectly or as background, in my decision. In addition, as I proceed on this course, I will make comments and findings arising from the evidence. For convenience I will generally refer to the second defendant as Ms Blackburn. To avoid confusion with his father, I will not adopt the same practice for the plaintiff. Thus all references to Mr Withyman are to the plaintiff’s father.
17. These are some basic dates:
- Ms Blackburn was 29 for most of 2003.
- The plaintiff was born in 1985. He turned 18 in the first quarter of 2003
- In 1998 the plaintiff went to Bathurst High School in Year 7.
- The plaintiff transferred to Carenne on 9 November 1998.
- In February 2001 Ms Blackburn commenced working at Carenne as a full time special needs teacher.
- The sexual relationship is alleged to have commenced in March 2003, shortly before the plaintiff’s 18 th birthday.
- The plaintiff ceased being a pupil at Carenne on 26 September 2003.
- The plaintiff was in custody from12 October 2007 to 15 August 2008 and from 7 February 2009 until 19 June 2009.- The relationship is alleged to have ended on 12 October 2003.
The plaintiff and his witnesses
18. The first witness called on behalf of the plaintiff was his mother, Mrs Glenda Withyman. She was born in 1954 in Port Macquarie. In 1978 she travelled to the United Kingdom where she married Mr Maurice Withyman. He had two children from a previous marriage. He was born in September 1950. Mrs Withyman’s first child, Mauricia, was born in England in 1979. The family then came back to Australia. Mark was born in 1980. Adam was born in 1982. Mrs Withyman is a nurse and has worked in this occupation for many years. Her husband is employed in the prison service and is currently an Assistant Governor.
19. Mrs Withyman said that her daughter Mauricia was a design and technology teacher at Bathurst High School. She was married with three daughters. Notably, as a student teacher, Mauricia did a practical period at Carenne in 2003. She was not called as a witness. There was evidence to suggest she did not get on with the plaintiff (T 883.24). Mark is a policeman in Noosa. He is also married and has two children. Adam is a qualified plumber but now works as a miner in Newcastle. He has a de facto partner but no children.
20. Mrs Withyman said the plaintiff had a normal birth but an incident occurred when he was six weeks old. She found him with his head caught in the rails of the cot. He was face down and unconscious. He was blue. She turned him over and because he was not breathing she blew oxygen into his mouth. She called for help from her husband, who was in the next room, and they immediately set off for the local hospital. By the time they reached the hospital the plaintiff seemed to have recovered and they decided not to seek assistance. Their decision was influenced by the fact that they had an appointment with a paediatrician, Dr Scarf, the next day as part of the routine post natal process. They attended the appointment and told Dr Scarf of the incident. He described it as a “near death cot accident” but reassured them that all was well.
21. This incident features in a lot of the medical reports and histories to doctors but its significance is difficult to gauge. It is not suggested in any medical report that the incident is the cause of the plaintiff’s learning difficulties that manifested as he grew older.
22. Mrs Withyman noticed that the plaintiff seemed to have difficulty with language. He was not learning words and by age 4 he had poor speech articulation. He was referred to a speech pathologist and he started kindergarten at Kyeemah at age 5. A decision was made not to keep him back because he was a big child and it was thought he would be at a disadvantage if he was much bigger than his peers.
23. Mrs Withyman described him as a “good kid”, mischievous but not wilful. She said he took direction but did not concentrate. He repeated kindergarten and he was well behaved, at least when she attended to, for example, help the class with reading.
24. Mrs Withyman said that by the end of Year 1 her son was struggling with numbers and he was unhappy at school. He was referred to a paediatrician and a psychologist.
25. According to the plaintiff’s mother he was not subjected to physical punishment by herself or by her husband. She did say that her husband was a stern disciplinarian but he did not inflict corporal punishment. Some medical reports refer to histories of physical abuse by Mr Withyman. Despite his involvement in many aspects of the case, he was not called to give evidence. I draw no inference beyond that his evidence would not have assisted the plaintiff’s case.
26. By the end of Year 2 the plaintiff was slipping further behind so Mrs Withyman looked into sending him to Carenne School. She knew the institution from a student placement that she had undertaken. She spoke to Mr Roxborough, the headmaster, and arranged for the plaintiff to attend at Carenne for the first six months of Year 2. In the second half of that year he returned to West Bathurst Primary School but with an Outreach Teacher from Carenne for 80 minutes per day. She said that her son loved Carenne and was much more settled when he went back to West Bathurst. She said this position continued through primary school and during this time she had no problems dealing with him.
27. By the time he entered Year 7, at Bathurst High School, the plaintiff was keen to go to school although in his first year he was suspended twice. Mrs Withyman at first said she did not remember why he had been suspended but then remembered that one of the occasions was for acting as a lookout for other boys who were lighting fires. She said that after the second suspension she contacted Ms Carol McDiarmid from the Department of Education to see if her son could return to Carenne. He was accepted with the support of Mr Roxborough and in Year 8 he went back to Carenne. She said that he enjoyed this school, that he was manageable at home and he was not teased or bullied by his siblings. Her husband was firmer as the children grew older but the plaintiff was not subjected to physical punishment.
28. From Year 9 the plaintiff started work experience organised by the school. Mrs Withyman said there were no bad reports from his work experience. She described him doing a welding course at TAFE, which he enjoyed. She said that by Year 12 the plaintiff’s reading was not very good. She described it as at Year 3 or 4 standard. He had obtained his Learner’s Permit in Year 11 after much hard work but he was still to get a full driver’s licence because he could not pass the test. He had tried four times. He remained on a ‘green’ provisional licence.
29. Mrs Withyman described her son’s interest in sport. He liked watching it on TV and was a keen rugby league player. He had been in the same team, St Patricks, from age 7. She said that once he had his licence he would drive to training and the games. She did not think he drank very much and, in fact, he was known as “designated Dave”. He had a firm group of friends from his football team.
30. Mrs Withyman described the plaintiff as a happy teenager and this continued until October 2003. The picture painted by Mrs Withyman was one that accepted some behavioural problems, but not many. She described a young man with learning difficulties but also one who enjoyed life and was generally coping with his situation. A somewhat different picture emerged in cross examination and gave me a real concern for the reliability of Mrs Withyman’s evidence. The plaintiff obviously had significant behavioural problems that Mrs Withyman said she either was unaware of, or could not recall.
31. It is clear from, for example, documents filled out by her and her husband, as well as letters from schools, that the picture she painted had a significant gloss over some very rough edges. I was particularly concerned about an answer she gave concerning a disability application (Exhibit 1D3) that was made on the plaintiff’s behalf. She was confronted, when shown this application, with material that contradicted her earlier evidence and she responded by saying that it was necessary, in such applications, to “accentuate” her son’s difficulties. My impression was that the form was probably accurate but she needed a reason to combat the suggestion that her descriptions of the plaintiff were somewhat blander than reality.
32. During 2003, but prior to October, Mrs Withyman noticed that the plaintiff stayed out later, sometimes overnight, with the excuse that he was with friends. She knew the friends’ parents and she was not worried. Mrs Withyman was unaware of the plaintiff’s anti-social behaviour, such as his randomly bashing university students.
33. Mrs Withyman said she was unaware of the Behaviour Contract (Exhibit N) prepared in 2003 until after the commencement of the court case. It later emerged she was also unaware of a Behaviour Contract signed in 2001.
34. Mrs Withyman first became aware of Ms Blackburn in 2003 when she brought him home after he had been in a motor vehicle accident. She did not speak to her son about Ms Blackburn although she did ask him who the lady was. In August 2003 Mauricia did some teacher training at Carenne and she spoke to her mother about the plaintiff and Ms Blackburn. As a result Mrs Withyman said she gave her son some advice. No one else had spoken to her about Ms Blackburn. Mauricia did not give evidence and I do not know the content of her report to her mother.
35. In September 2003 the plaintiff asked his mother if he could bring Ms Blackburn to Mr Withyman’s forthcoming birthday celebration. She said ‘No’, that it would not be appropriate. Ms Blackburn did not attend.
36. On 12 October 2003 Mrs Withyman received a call from Ms Blackburn. She asked her to come to Wattle Flat, where Ms Blackburn lived, to pick up David. She was told he had lost his temper and needed to go home. Mrs Withyman and her husband travelled to Wattle Flat, a distance of about 15 kilometres, where she spoke to Ms Blackburn. The teacher said she had been trying to help David because he had a drug and alcohol problem. Mrs Withyman replied that that was not true and that Ms Blackburn should have gone through the right channels, in particular through Mr Roxborough. The police were also in attendance.
37. Mrs Withyman found her son distressed. He wanted to speak to Ms Blackburn but he was being restrained. He broke away from the police and pursued Ms Blackburn. The police got hold of him again and he continued to struggle. He was upset and crying out “I just want to speak to Anna”. The police took him to Bathurst Base Hospital for an assessment. Neither Mr nor Mrs Withyman accompanied him or met him at the hospital, a matter which I found strange but do not draw any inference from it. After about three hours the police brought the plaintiff home. It was then midnight. He was upset, anxious and agitated. He was banging his hands on a bench and repeating his desire to speak to Ms Blackburn. He was still upset the next day and an appointment was made for him to see Dr Corbett-Jones, a general practitioner.
38. 12 October was a Sunday. On the next Tuesday afternoon the plaintiff took the keys to a family car and set off for Wattle Flat. Mrs Withyman pursued him, but she lost him in the village.
39. The plaintiff was examined at Warilda House by a mental health team. Over the next three days the he paced the room and did not sleep. He was crying a lot. He did not eat although he was hungry. He stayed in this state for some months. Mrs Withyman said she had never seen this behaviour in him before.
40. By November 2003 the plaintiff was having regular treatment at Warilda House and also at Cadia House, which also houses a mental health unit.
41. From January to March 2004 the plaintiff worked as an apprentice carpenter at Woodright and also attended a TAFE. He had difficulty with measuring and drawing and suffered from his lack of mathematics skills.
42. He was admitted to Bloomfield Psychiatric Hospital in March 2004 and had counselling with a psychologist, Mr Graham Palmer. From March to October 2004 Mrs Withyman found him to be upset at short notice. In October 2004 he started eight weeks of work at Bindaree Beef in Inverell. He had to live in Inverell and fend for himself. His mother thought he did this well. He lost the job, however, after a dispute with a co-worker. In March 2005 the plaintiff worked for Marcel Gittany on a part-time labouring basis. By this time his mood was still up and down and he was sad and not sleeping. He played some Rugby League in 2004 but not in 2005. In August 2005 the plaintiff worked as an apprentice chef in an Indian restaurant. The job lasted about eight weeks. In May 2006 he again worked as an apprentice chef, this time at the Kelso Hotel where he remained for 14 months. The job was ended by a disagreement.
43. In September 2007 the plaintiff was admitted to Bloomfield Psychiatric Hospital after an incident with the police.
44. Mrs Withyman said that her son had been in prison on three occasions and she had visited him. She had found him angry, verbally abusive and thinner. She felt he blamed her for his predicament because she had, on one occasion, called the police. Mrs Withyman was shown Exhibit P, a letter written to her by her son. She described the standard of writing in the letter as better than expected of the plaintiff.
45. The plaintiff was finally released from prison in June 2009. After a short stay with his brother in Newcastle he came home. Mrs Withyman thought he was happy to be home. His behaviour was good and has continued to improve.
46. The plaintiff fell off a horse in November 2009 but seems to have recovered. He drives and his mother has no concerns about him going out socially. He is still taking antidepressant medication but she said that he seemed to be returning to the happy child he was before October 2003.
47. Mrs Withyman was asked about histories that the plaintiff gave to various medical practitioners, in particular Dr Roberts and Dr Allnutt. These histories were not the truth, said Mrs Withyman, although it was not suggested that the plaintiff did not provide them. There was also no suggestion that the medical practitioners incorrectly recorded the histories. The clear inference is that the plaintiff grossly exaggerated what he said to the doctors. Examples can be found in paragraphs 5.1 and 5.5 of Dr Wendy Roberts’ report. I note here that in his opening, learned senior counsel for the plaintiff said that his client exaggerated and that caution needed to be taken in assessing his reliability. This raised the spectrum of the plaintiff, in a sense, not relying on his own histories and evidence.
48. The issue came starkly into focus after the plaintiff’s evidence when this exchange occurred with the plaintiff’s senior counsel:
“HIS HONOUR: Mr Marshall, I'm not sure if he's not feeling well but I just wanted to raise something with you in his absence because really I don't want to say certain things in front of him which might be hurtful but is what you've just said and again let's put aside honesty or credit, just reliability; that unless corroborated by something or someone else none of his evidence is reliable; is that the ultimate effect? I mean we've had five days of this man and not all in chief; a lot of it - most, I think I haven't broken it up but whatever, five days of him in the witness box. Is it going to come down to at the end of the day unless otherwise corroborated no value? You don't have to answer that now, it's just it arose from our discussion and it worries me.
MARSHALL: Your Honour, I'm tempted to say yes but there are some exceptions to that where the evidence is of such inherent probability given surrounding circumstances that your Honour could draw an inference or accept the reliability of that evidence as following. There may be other aspects which I would seek to throw into that exception camp as well but substantially I would have to answer your Honour's question, yes.” (T 941.17)
49. It is also worth recalling here these words of senior counsel in opening the case:
“In some histories in an attempt to make himself something of a big man, he has exaggerated. Examples of that have occurred whilst he was examined in prison. No doubt there will be a need for your Honour to critically evaluate David's evidence about the relationship but we will say your Honour will see it in context; the context of when it was created, to whom and for what purpose.” (T 15.21)
50. Under cross examination Mrs Withyman said this:-
Q. But he did do it, and I suggest to you from time-to-time, regularly, to big-note himself didn't he?“Q. Was that the truth though, that he was prone to exaggerating and lying, always?
A. Not always.
A. On occasions when he needed to big-note himself.” (T 209.38)
51. A good deal of the attack on Mrs Withyman’s evidence, by the first defendant, was to spoil the picture that she had drawn of her son while he was in Carenne. On her evidence he had problems up to Bathurst High School but once he changed to Carenne he settled down and he was reasonably well behaved until 12 October 2003 when the alleged affair with Ms Blackburn came to an end. The means of attack adopted by the first defendant was to question Mrs Withyman about a number of documents that had come into being, either under her own hand or through interviews with her, her husband or her son. Although Mrs Withyman did not waiver in her general assertion about her son’s behaviour I think cross examination was successful in at least dulling the bright description of the intervening years.
52. I mentioned above that Mrs Withyman had said that she had “accentuated” a disability allowance application (Exhibit 1D3). Although this document was written when the plaintiff was 11 years of age, and when he was admittedly having some problems, I think it goes a lot further than described by Mrs Withyman in her oral evidence. This observation is highlighted in the following passage:-
“Supervision – Daily
David requires constant supervision during the day to prevent him from endangering himself and others due to his mischievousness. David will sneak matches and light fires whenever he can, this resulted in our previous home almost being engulfed in fire on one occasion. If David can find any tools whatsoever, he will dismantle anything he can find, this results in the dismantled item being ruined or irreparable when David has finished.
David has to be occupied at all times to prevent his mischievousness and stem his temper with his siblings.”David constantly fights with his elder brothers whilst at home, this results in things being thrown and broken, also walls and doors being kicked, there is not one door in the house without a hole kicked into it somewhere, they all have to be replaced at sometime.
53. Mrs Withyman readily described some of the things said by the plaintiff as lies. They particularly concerned his use of drugs and alcohol, his exploits with women and association with criminals. Mrs Withyman was adamant, at least to the extent of her knowledge, that her son had not abused alcohol or taken drugs before October 2003. She squarely inferred that a major downhill slide in his behaviour dated from October 2003. This picture is contradicted by the plaintiff’s histories, but the approach I was asked to take was to treat the plaintiff’s assertions as fanciful. On the whole of the evidence however it is difficult to avoid a conclusion that the plaintiff was, to some extent, involved with drugs and alcohol before October 2003.
54. The real problem for me, faced with a plaintiff whose counsel asked me not to believe a good deal of his client’s evidence, is in separating fact from fiction. This is particularly so where the only support for an asserted fact is the plaintiff himself.
55. There is also the added problem of my doubts about parts of Mrs Withyman’s evidence, some of which changed as her testimony progressed. An example of such a change concerned her evidence about learning difficulties experienced by the plaintiff’s brothers, Mark and Adam. On the first day of her evidence Mrs Withyman said:-
Q. Have they ever?“Q. Do either of them have learning difficulties?
A. No.
A. No.” (T 182.21)
The above evidence is to be contrasted with the following:-
“HIS HONOUR: Well, just so you know where this is coming from - I'm not sure if it's where you're getting it from Mr Blacket - but there's a report written by a Ms Bye way back in 1993. It's written to Dr Blackwood, and according to the report, you were there at an examination of David, and told Ms Bye some things. What she says is that this is what you told her, that you had reading and spelling difficulties as a child, that's yourself. Your husband was a later maturer, and then she goes on, "two older boys, aged 12 and 10 have learning difficulties, behavioural problems, and concentration difficulties, but not to the extent of David". That's what this lady has recorded. What's your recollection of firstly, this interview? Do you have any specific memory of talking to this lady?
WITNESS: I can remember going and seeing Anne Bye. I can't remember exactly what was said in that interview.
HIS HONOUR: Forgetting about whether you remember what was said, what do you say about whether that's accurate? Do you want me to read it again?
WITNESS: They did have reading problems, the boys. They were just in special reading classes, and - so yes, I guess that is correct then.
HIS HONOUR: Well that's not all she says, "behavioural problems and concentration difficulties but not to the extent of David". Did they have any behaviour problems?
WITNESS: Yes.
WITNESS: Yes.” (T 212.43)HIS HONOUR: And Concentration?
56. Under cross examination by the second defendant Mrs Withyman agreed that her property was on the road which went to Wattle Flat so that Ms Blackburn, travelling to Bathurst, would pass the plaintiff’s home.
57. On the second day of her evidence Mrs Withyman said that she had reflected overnight about what had occurred on 12 October 2003 when she was called to Ms Blackburn’s house. She remembered that she had not returned home but had rather stayed with Ms Blackburn and spoken to her over a cup of tea. Ms Blackburn put to her that their conversation included a discussion about the plaintiff having an argument with her, over the telephone, when he was staying with his brother in Darwin. Mrs Withyman could not remember this conversation nor was she aware of the plaintiff having been admitted to the emergency department of a hospital in Darwin. She was, however, aware of an argument the plaintiff had, but she did not know with whom.
58. Mrs Withyman accepted that she had on occasion been frightened of her son but she said that was not the case at the present. The contents of a statement made by Mr Withyman were put to Mrs Withyman and she agreed with the description of some incidents. The statement was tendered by Ms Blackburn and became Exhibit 2D2. No objection was taken by the plaintiff who, no doubt, took comfort from parts of the statement that refer to the intimate relationship between the plaintiff and Ms Blackburn (eg paragraphs 5, 6 and 7). The first defendant, however, objected to the conclusions, in particular about the affair, included in the statement because they were obviously based on information told to Mr Withyman about the affair. This highlighted one of the problems arising from Ms Blackburn being self-represented. She obviously had no appreciation of the use that might be made of her tendering the statement. When potential problems were pointed out to her she said she appreciated that there was prejudicial material within the statement but that she knew she would have to deal with it in the course of the hearing. Because of this appreciation I allowed the statement to be admitted in full but noted the first defendant’s submission about the admissibility of the conclusions.
59. Mrs Withyman agreed with Ms Blackburn that she had not seen her son engage in any acts of intimacy with Ms Blackburn. She described intimacy, for purposes of the question, as holding hands, kissing and cuddling. Mrs Withyman rejected the suggestion that she was “not surprised” when she found out there was a problem. It was put to her that she would have known that David already had abnormal feelings for Ms Blackburn after the events in September (when the second defendant brought the plaintiff home after the car accident). Mrs Withyman was also not aware of an altercation on the night of 11 October 2003.
60. Mrs Withyman accepted that she had suggested to Ms Blackburn that her trip to work should be via an alternate route so as not to pass the plaintiff’s home. This suggestion was made by telephone on the Tuesday following 12 October 2003. She said she made the suggestion because David was still distressed.
61. Mrs Withyman said that her husband had taught the plaintiff how to shoot a gun. She said she knew of a Mr Merv Malcolm, a retired football coach who had coached the plaintiff in his under 16 year. She was unaware of any conversation between her husband and the coach about the plaintiff being in trouble.
62. Mrs Withyman firmly rejected the suggestion that she had used a friendship with Mr Roxborough to get the plaintiff into Carenne. She said that she knew Mr Roxborough’s wife, Anne, who was also a nurse at the Bathurst Base Hospital, but they were not friends. Ms Blackburn’s suggestion that improper influence was used to gain the plaintiff’s admission to Carenne was never substantiated.
63. Mrs Withyman said that her son had friends at Carenne but they did not visit him at home because she was a shift worker and it was not easy to have them over, especially as some had disabilities. She said the plaintiff had a lot of friends from outside the school and she accepted that his friends could have attached a stigma to David because he went to Carenne.
64. A number of suggestions of impropriety were put to Mrs Withyman, which she rejected. These included the influence of her husband with the police and the influence of her son Mark, a policeman in Queensland, in relation to legal problems encountered by her sons Adam and David. No evidence was provided by Ms Blackburn to prove these allegations and I reject them.
65. Mrs Withyman said that the plaintiff adored his nieces (the daughters of his sister) but she emphatically said that he was never left alone with them. I had the impression that this answer was given in a defensive manner but absent any other evidence on the topic, draw no conclusion from this impression.
66. The plaintiff was the next witness. His manner and presentation immediately contradicted the history of violence, aggression and defiance that had become attached to him through the evidence of his mother. He was quietly spoken, sometimes apparently on the verge of tears and on one occasion, in tears. In his manner of speaking and general demeanour he presented as a child in a man’s body. As his evidence in chief continued there were occasions when he spoke inappropriately, in terms of his use of language and was also derogatory of the second defendant, once referring to her as “it”. The picture in cross examination was sometimes different when he reacted to perceived attacks on his credit with aggression.
67. The forensic approach taken on behalf of the plaintiff, and I do not say this critically, was to limit his examination in chief to specifically avoid him having to tell the court, in chief, about the details of his sexual encounters with Ms Blackburn. These details were provided by the tendering of a record of interview between a Mr Ray and the plaintiff that had taken place at the plaintiff’s sister’s home on 28 October 2003 (Exhibit U). Mr Ray conducted the investigation on behalf of the Department of Education. The first defendant did not object to the tender of this document although noted that its conclusions could not be relied upon. The record of interview is effectively a statement by the plaintiff.
68. Ms Blackburn did object to Exhibit U but founded her objection on the fact that the plaintiff had been cross examined about the document in proceedings in the Industrial Relations Commission. These proceedings had been brought by Ms Blackburn against the Department of Education to challenge her dismissal from employment. Consent Orders resolved the proceedings and I could not see any form of estoppel, if that is what Ms Blackburn was in reality arguing, arising in respect of the statement. I was, however, concerned to ensure that the statement was otherwise admissible. I thought it fell within Section 64 of the Evidence Act 1995 but consistent with this section I did not allow it to be tendered before the close of the plaintiff’s evidence in chief.
69. I have mentioned the statement at this stage because it provides an example of the difficulty created by the plaintiff’s admitted tendency to embellish. It seemed to me, on going through the statement, that it contained a number of allegations that were likely to be fanciful. When shown the statement, however, the plaintiff said its contents were true. This added, to the already difficult credit question, the extra facet that the plaintiff in his evidence did not distinguish between fact and fiction. He did not, for example, say about the document: “Some of it is true, but parts are not”. He was not, therefore, accepting that he may have embellished or made up facts even though this concession was made by his legal representatives.
70. Returning to some aspects of the plaintiff’s evidence, he said that he was unhappy at Bathurst High School where he had been in trouble for wagging and fighting and on one occasion for keeping a lookout for boys who were lighting fires in the toilet. He said that he enjoyed Carenne.
71. The plaintiff first met Ms Blackburn in 2001. He thought she was “OK”. She was a good teacher who liked to help him. She was not his teacher in 2001 or 2002 but he used to talk to her because he “just needed somebody to talk to” (T 356.49). He said he was told by Mr Roxborough and Ms Rowe (a teacher’s aide) to stop going to the Junior School to talk to Ms Blackburn. He did not obey Mr Roxborough’s instruction not to go to the Junior School but did not know why that was the case (T 357.47).
72. Toward the end of 2002 he said that Ms Blackburn told him she was going to be his class teacher in 2003. He said that he “thought that was cool” (T 358.15).
73. In 2003 the plaintiff appears to have had two teachers, Ms Blackburn and Mr Terry Neal. In the first month of the school year Ms Blackburn’s involvement with the plaintiff seems to have been to take him to work experience locations. He said that he felt he could talk to her about his private life and she sometimes reciprocated about her circumstances.
74. The plaintiff said he did not recall any incident in August 2002 at Ms Blackburn’s house. I note that in his opening senior counsel for the plaintiff said: “In August 2002, David first visited Ms Blackburn’s house, arriving uninvited and remained for some hours. She reported this visit to the school counsellor” (T 10.19).
75. I mentioned this discrepancy to Mr Marshall and he said the evidence about the incident would come from another source. This was a variation of the plaintiff relying on evidence that was contradicted by his own testimony.
76. In February 2003 he said that he and Ms Blackburn were “mucking around at the pool” and, after he nudged her, she fell in. He then said: “Mr Neil tried to come over be hard and tried to mouth off at me and I got the shits with him and walked off.” (T 360.13).
77. Following the swimming pool incident the plaintiff said he spoke to Mr Roxborough about the Behaviour Contract (Exhibit N). He said that it had been read to him and he understood the words: “From this point on there is to be no contact by me with Ms Blackburn”. He did not tell his parents about the contract because Mr Roxborough said that he would not tell them. He also said that he did not think it was important that they should be informed.
78. Following the acceptance of the contract the plaintiff said there was contact with Ms Blackburn in the classroom after about a week and a half.
79. The plaintiff said that a little later Ms Blackburn came to watch him play football. After the game they went to her place where they had sex. It was at this stage that the interview with Mr Ray was introduced and the general question asked about whether its contents were true (T 365.40).
80. The plaintiff said that after first having sex with Ms Blackburn he continued to see her at school and had contact with her in the classroom, the playground and the photocopy room. From time to time he would touch her “in the arse” (T 393.26). There was also contact with her in the motor car when she took him to TAFE or work placements. I understood that other children were also sometimes in the motor vehicle but it was when the plaintiff and Ms Blackburn were alone there might be some physical contact. On one occasion she told him not to kiss her so that they would not be found out.
81. The plaintiff was shown Exhibit R. He said he had received it, by hand, from Ms Blackburn before he went to Darwin. It had earlier been shown to the plaintiff’s mother who said that it did not reflect something the plaintiff might write and was beyond his literary capacity. Because the document was admitted by consent I later asked the second defendant whether she accepted that she had written it. She told me she did not. I will return to the document below. Exhibit S is a handwritten card that the plaintiff said he had also received from the second defendant. It does not, however, contain the admission of salacious conduct that is found in Exhibit R. The plaintiff said he had received a book “The Hitch Hikers Guide to the Galaxy” and a game from the second defendant.
82. The plaintiff said that his intention had been to work as a welder and he had attended TAFE and the work placement for that purpose.
83. He said that he was “gutted” at the break up with Ms Blackburn and it still upset him (T 380.30). It was at this stage that he was openly weeping in the witness box. I took a short break to allow him to compose himself.
84. The plaintiff said that a couple of days after the break up he had hit Ms Blackburn because she was saying mean things. He said:-
“She just told me that I was a schizo. She couldn’t trust me no more. I had a bad attitude problem.” (T 381.22)
85. The plaintiff said that he came to know what an AVO was and he followed the orders most of the time. He breached the first order because “I wanted to tell her I was sorry”. He could not say why he did not telephone her.
86. Whether in custody (on remand), or in gaol, the plaintiff said he felt upset, worried and scared. He knew there were bad people in the Bathurst Correctional Centre from stories his father had told him.
87. The plaintiff was asked about the various jobs he had obtained since October 2003. He said he enjoyed the work at Bindaree Beef in Inverell where he was living on his own and coping well. He eventually lost the job because he had an argument with one of his co-workers. He felt that the locals did not like “out of towners”.
88. The plaintiff said he liked working with Mr Marcel Gittany. It was part-time labouring work. He said he lost contact with Mr Gittany when he went to gaol. In August 2005 the plaintiff worked at the Rangoli Restaurant where he was mostly involved in food preparation and washing up. He said he lost the job because the landlord of the building in which the restaurant is located is Mr Paul Theobald who is the second defendant’s partner. He referred to Mr Theobald as “its partner”. He alleged that Mr Theobald had caused him to be sacked.
89. The plaintiff worked at the Kelso Hotel for over a year where he seems to have been mostly in the kitchen and on occasions was able to prepare dishes that he had been taught at TAFE. The job came to an end when he was left in charge and found himself “doing everything”. He said that was not acceptable and he walked out. In giving this evidence the plaintiff demonstrated some of the anger that had been described by his mother and which is referred to in many of the documents in the case.
90. After being released in June 2009 the plaintiff first stayed with his brother Adam in Newcastle because his “parents didn’t want me”. He did later move home and in November 2009 fell off a horse injuring his low back. He said he was in hospital for 10 days and wore a back brace for four or five weeks. By mid February 2010 he had fully recovered. He said that he gets on “OK” with his parents. He no longer breaks things because he felt he was now more mature. He spends his time training his dog and playing with the horses. He watches a little TV. He would like to work, perhaps in welding or gardening or any other job involving the use of his hands. He said that he now picked his friends more carefully and did not like going out as much. He said he was “young and stupid back then”. I found this comment interesting because it suggests a recognition on his part that his previous behaviour was wrong but not because of his relationship, whatever its nature, with Ms Blackburn.
91. The plaintiff said he was now taking antidepressants, which he purchased himself. He had found counselling helpful to deal with his problems although also sometimes found it repetitive and boring. He said that he saw Ms Blackburn in Bathurst from time to time but he did not approach her. Seeing her made him feel emotionally sick. He said that during the relationship with Ms Blackburn they had discussed their future that included “us getting married, us having kids” (T 398.34). Ms Blackburn had mentioned these matters on a return trip from Wagga Wagga. She had said “now you’ve met half of my family now its time to meet the half of my other family so we can get married” (T 398.45).
92. Ms Diana Minato was interposed, by consent, during the evidence of the plaintiff. This was done to accommodate her convenience as she had travelled from the ACT. Ms Blackburn, in her final submissions, said that she had not been prepared to cross examine Ms Minato and suggested a degree of unfairness had arisen. Ms Minato became a key witness, if not the key, witness in the plaintiff’s case. Had I appreciated her significance I would not have allowed her to be interposed. However I do not think Ms Blackburn suffered any prejudice. She was able to question Ms Minato with a good deal of ‘admissibility’ leeway and she made no application to have her recalled for further cross examination. The importance of Ms Minato would also have been evident to Ms Blackburn from Ms Minato’s involvement in the Industrial Relations Commission proceedings. I also note that before Ms Minato was called, Mr Marshall said this:
“I'm seeking your Honour’s leave to interpose an interstate witness. I have my learned friend, Mr Blacket's consent to that, and I've spoken to Ms Blackburn yesterday. I believe she consents to this course.” (T 405.15)
93. Ms Minato became friends with Ms Blackburn when they studied together in a Teacher’s Degree at Charles Sturt University in Bathurst. They graduated in 1995. A year later Ms Minato moved to Canberra but they kept in touch, mainly over the telephone but increasingly by email as time went by. I gathered that around 2003 they would speak on the phone about once a week.
94. From the end of April to the end of May 2003 Ms Minato was overseas. She gave evidence about a number of telephone calls that she said occurred on either side of this overseas trip. The content of these calls is a very significant plank in the plaintiff’s case. For that reason I will set them out here:-
“Q. Thank you.
A. She said that I am seeing somebody. He is younger than me, and there is an element of excitement about this particular, or the person I'm seeing.MARSHALL
Q. Did you respond to that? I mean did you say something?
A. Yes I would have. I would have said words to the effect, who is this person, and you know, how much younger is this person than you, yeah. Questions trying to find out more about the person in question.Q. Were there other telephone conversations before you went overseas, concerning this person David?
A. Yes.Q. Can you recall in another conversation with Ms Blackburn, or do you recall the contents of another conversation with Ms Blackburn?
A. Yes I do.Q. Can you relate that conversation, at least parts that you can recall in, "I said", "she said".
A. Mm-hmm. She said that she had - they had had sex, they had slept together. Essentially that was it, and I - I said words to the effect that, are you sure that this is the right thing to do.” (T 410.17)“Q. I want to find out from Ms Minato, what other information you found out about David, but that can only come from Ms Blackburn. Did she say anything else in subsequent conversations about David?
A. Yes. He was - she said that he was a student at her school and that he had some learning difficulties or some difficulties in terms of him being at that particular school, but there was something that attracted her to him because there was an element of excitement about him being younger.” (T 411.39)“Q. What did she say to you?
A. She told me things like she said - she talked about things that they had done together, so, you know, we went to Sydney, or he came over, or I saw him in town. Or he spent the night.MARSHALL
Q. Do you recall anything you might have said in response to this information?
A. I said words to the effect, reminding her that, you know, I said, it - it really should stop. It needs to. You need to do something about this.Q. What did she say to your advice?
A. She took it on board, but she said that she knows - she knew - I know that it's wrong, but, you know, I don't want to do anything about it at this point.Q. Do you remember a phrase you used in response to that about the relationship?
A. That it would come back to haunt her.” (T 413.28)“Q. Going through to maybe September, did the tenor of your conversation change?
A. Yes it did.Q. In what way?
HIS HONOUR: What does that mean?
MARSHALL: Sorry.
Q. Did you say anything to her in response to that information?Q. Did Ms Blackburn say anything to you that was different about David?
A. Yes she did. She said that he had started to become more physical with her, more aggressive with her and that she - she said that she was becoming increasingly fearful for her safety and for the safety of her daughter.
A. I reiterated. I said, Anna, you need to do something about this. You need to tell somebody. You need to end the relationship.” (T 413.28)
95. From 2004 to about July 2008 the friendship continued with each participant occasionally visiting the other and having overnight stays. The end of the friendship was precipitated by a series of emails starting on 22 July 2008 when Ms Blackburn wrote to Ms Minato. The emails are in Exhibit T. The significant portion of the email dated 22 July 2008 is:-
“I need a statement from you saying that you and I were very close during 2003 and to your knowledge I was not in a sexual relationship with David Withyman. I also need to describe the times that you did see David that he came to my house unannounced and refused to leave without a lot of coercing when you were there in early October 2003.”
96. The only occasion when Ms Minato may have seen the plaintiff was in October 2003 when she visited Ms Blackburn in Wattle Flat. She described her observations in this way:-
“Q. At the time of that visit, did you see a man come to the door?
A. Yes I did.Q. Did you speak with that man?
A. No I didn't.Q. Did you see him clearly enough to identify him?
A. No, I didn't.Q. Did Ms Blackburn go to the door?
A. Yes she did.Q. Did you hear her have a conversation with this man?
A. I heard a conversation taking place, but I did not hear specifically what was being said.Q. Did the conversation end?
A. Yes it did.Q. Did the young man - did the man leave?
HIS HONOUR: Careful Mr Marshall.
MARSHALL: Yes your Honour.
Q. Did the man leave?
A. As far as I'm aware, yes.Q. What did she say?Q. Did you have a conversation with Ms Blackburn about the visitor?
A. Yes, I did.
A. She said that it was David. She said that she was still fearful for her own safety and for the safety of her daughter. That she didn't feel that she could do anything about it because of his increased aggression.” (T 414.4)
97. I note here that the plaintiff’s version of the visit is different in that he said he had some conversation with Ms Minato which included an exchange of names:-
“A. Probably came in through the back door like I usually do. I usually come in through the back door. I never used to use the front door.
Q. What did you say to her and what did she say to you if anything?Q. Were you introduced to Ms Blackburn's friend?
A. Yes.
A. Not much .” (T 538.24. See also T 603.43).
98. Returning to the emails in Exhibit T, after the email of 22 July 2008, Ms Blackburn wrote on 18 August 2008, this time stating that she was attaching her own affidavit. This does not seem to have occurred. The email contains this sentence:-
“Once again I need a statement from you which says that when you met David he had arrived at the house when you were there and that he had to be coerced into leaving, a description of the house where you were and that we talked at length about most personal matters, that you would have known if I was in a sexual relationship with David and that I wasn’t and that I told you that I was really worried about what he would do to stop him from contacting.”
99. Ten days after the above email Ms Minato wrote back asking for the affidavit which had apparently not been attached to the earlier affidavit. The subject of this matter is “the thing”. There was no evidence to explain these words. In the next email, on 28 August 2008, Ms Blackburn seems to have attached her affidavit and said that she thought her barrister would want to talk to Ms Minato. A second email on the same day, from Ms Blackburn, attached a draft affidavit prepared for Ms Minato. This document follows the second email dated 28 August 2008 in Exhibit T. The draft affidavit contains these paragraphs:-
15. Had Anna engaged in a sexual relationship with David Withyman she would have disclosed that to me. At no time did Anna ever mention that she had any sexual relationship with David during the material period or any other time.”“14. I am aware that David Withyman has alleged that he and Anna were engaged in a sexual relationship throughout the material period. I certainly had no knowledge of such a relationship at any time during the material period.
100. On 1 September 2008 Ms Blackburn emailed Ms Minato asking her if she had “had a chance to look at the statement yet”. Some 12 minutes after receiving the reminder Ms Minato responded, by email, stating:-
“You realise that you’re asking me to straight out lie and deny any knowledge of what went on seemingly without a second thought? That you’re dropping me right in the middle of this and asking me to go against my principles … I am not really prepared to sign anything knowing that it is not truthful Anna. You should know me better than that – that my conscience is bigger than that … I want to support you as much as I can but to go against the person that I am …”
101. A little over an hour later Ms Blackburn responded. This response is perhaps capable of more than one interpretation. As I read it, it is a plea for help from Ms Blackburn, drawing on a friendship and exhorting Ms Minato to help defeat the problems that had befallen her. This email includes the following:-
“If you do sign a statement then it is unlikely you will be cross examined and with all the other statements as well, it is likely the DET will reassess their own evidence. You understand at this point they have nothing except for his accounts of what happened to suggest that there was a sexual relationship. There are NO EYE WITNESS ACCOUNTS AND NO FORENSIC EVIDENCE. Only what I say and what he said and some phone records.”
102. On 4 September Ms Blackburn emailed Ms Minato saying she had not heard from her. About half an hour later Ms Blackburn sent another email attaching a second draft affidavit, much shorter than the first but containing this paragraph:-
“7. I deny that I ever had a discussion with Anna to the effect that she should or should not have an intimate relationship with a person called David Withyman at any time.”
103. On 11 September 2008 Ms Minato wrote to Ms Blackburn: “I am sorry Anna, but I just can’t lie”. A little later in the day Ms Blackburn emailed, it would appear without having seen Ms Minato’s email of the same day. This was at 3.40pm and she wrote:-
“Every day I wait for an email thinking that you have changed your mind and decided to help me. But alas each day goes by and no response. I am shocked that this is how it is to be.”
104. At 5.01pm, on the same day, another email was sent, attaching the same draft affidavit. She wrote, inter alia:-
“Read the affidavit and change it to suit what you are comfortable with. You don’t have to lie. You just need to confirm that we didn’t have an argument where you told me not to have a relationship with him …”
105. Ms Minato would not sign the affidavit.
106. On 30 November 2008 Ms Minato received a further email from Ms Blackburn suggesting that she may receive a subpoena to give evidence in the Industrial Relations Commission. In this email she also said:-
“If you can find it in your heart to say that you cannot remember anything about David Withyman to them if they make contact with you then you will probably be instrumental in reversing my dismissal.
I do remain responsible for my actions but would hope that you are a friend enough to me that you would take my advice in this.
It will save you being forced to come to Sydney and being cross-examined. Many aspects of your private life at that time will be raised as David mentions Mark, drinking too much etc. (He must have hidden under the house when we were talking). The Sydney Morning Herald has been publicising the trial so all of those things will be in the paper too.
I accept that you don’t want to help me but please don’t help the Department.”
107. Following the email of 30 November 2008 Ms Minato contacted the Department of Education and ultimately spoke to Mr Neil Ray. On 5 December 2008 she provided Mr Ray with a statement. This is Exhibit 1D4. The statement is generally consistent with her oral evidence. Ms Blackburn cross examined Ms Minato over a fairly wide spectrum of topics. Despite some objections I did not limit her because I thought her line of questioning had at its target some reason why Ms Minato might have given false evidence against her old friend. A number of personal matters were addressed but I do not think any of them revealed a motive to explain Ms Minato’s evidence. I return to this question below.
108. Ms Blackburn did, however, establish in her cross examination that the friendship that had started at University had continued not only through 2003 but also up to July 2008 and included a number of mutual visits to the respective homes of the two women. I questioned Ms Minato about her evidence and in particular the inconsistency between her qualms about Ms Blackburn’s behaviour in 2003 and the continued friendship until July 2008. She dealt with my questions in this way:-
Q. Would you like to just comment on that?“Q. Do you see any inconsistency there?
A. I can see how that would be viewed as an inconsistency, but in terms--
A. I guess where I'm coming from, she had made a terrible choice, but I couldn't fault her on being a good friend to me and being supportive et cetera, even caring about her family, her students. It was this particular decision that she made, it wasn't - it's not as though she, you know, had a thing for students, et cetera, that she looked for that kind of thing, she'd gotten herself - made a bad decision and gotten herself into something that she shouldn't have, but I don't view that necessarily as a means - I still wanted to support her, any way I kind of could, in this regard, I didn't know how other than to encourage her the best way I could to end the relationship and to seek help, et cetera, et cetera.
Q. What about between the period when she had obviously ended the relationship and when you phoned up, she had done something which you disapproved of, you're not being criticised for that, but you - well, to put it this way, why didn't you phone up the Department in 2005 or 2006 or '07?
A. I guess I struggled a lot, I've struggled a lot with it, ever since I've kind of had knowledge of it in terms of what do I do about it. I didn't - I was - basically I didn't know where to go. I felt that maybe there was - there's not only a risk to Anna herself in terms of her teaching, and her relationships with people in general but also the fact that it could kind of incriminate myself in some way, shape or form, and also my duty, my duty to her as a friend I guess and that confidentiality.” (T 467.1)
109. It is also to be remembered that Ms Minato did not contact the Department until after the series of emails that, on her evidence, amounted to a request to be dishonest. This would, no doubt, have affected her attitude toward Ms Blackburn.
110. Ms Blackburn ended her cross examination without suggesting to Ms Minato that her evidence about the telephone calls in 2003 was incorrect. I did not take this as an acceptance by Ms Blackburn of this evidence and so reminded her of the need to challenge the evidence if only in a blanket question. She did this and Ms Minato stood by her testimony (T 468.6).
111. One matter was not put to Ms Minato. It emerged during Ms Blackburn’s evidence apparently from documents she first saw, or appreciated the significance of, after Ms Minato had left the witness box. These documents are in Exhibit 2D45. They relate to the separation of Ms Blackburn from her partner, Mr Stuart Wells. According to Ms Blackburn the telephone records relate to a service at a house that had been occupied by herself, Mr Wells and their daughter, Norah, but which was later transferred to Mr Wells as part of the property settlement. According to Ms Blackburn, she had left this residence before 30 May 2002. The records indicate two phone calls to Ms Minato after this date, one on 30 May and the second on 2 June 2002. (See Exhibit 1D5). The first call lasted 126 minutes. The inference is that Mr Wells made the calls to Ms Minato. The further inference is that there was some conspiratorial connection between Mr Wells and Ms Minato. The malevolence of Mr Wells towards Ms Blackburn is said to demonstrated by Exhibit 2D43.
112. I have little difficulty drawing an inference that Mr Wells made the calls to Ms Minato. The difficulty is what flows from this. Certainly the length of the first call is very unusual. However:-
(a) The calls occurred some nine months before the start of the alleged sexual relationship.
(b) There is no apparent reason in May or June of 2002 for there to be any animosity between Ms Blackburn and Ms Minato. The incident described by Mr Theobald (see below) did not occur until June 2005.
(c) Although Exhibit 2D43 is certainly consistent with a spiteful Mr Wells, it is equally, or perhaps more consistent with the complaint of a concerned father worried about things told to him by his daughter.
I can thus see no basis on which to conclude that Ms Minato’s evidence was a product of, or associated with, any conspiracy between her and Mr Wells to harm Ms Blackburn.
113. By the end of the case Ms Blackburn had obviously come to appreciate how damaging the evidence of Ms Minato was to her position. In her final submissions she extended the conspiracy I have just mentioned to include Dr Corbett-Jones, Mr Wilcox and Senior Constable Lloyd. Her submission, to the extent that I understood it, was that Mr Wells had somehow influenced these people, and Ms Minato, to either give false evidence or at least to render their memories unreliable. If Mr Wells was behind the false accusations against Ms Blackburn he would not only have had to influence the above people but also the plaintiff. Suffice to say there was no evidence whatsoever upon which I could find a widespread sphere of activity by Mr Wells designed to support or create false allegations against Ms Blackburn.
114. Exhibit 2D43 is also significant in its timing. The complaint is made on 9 October 2003, which is some days before the alleged break up and before the matter came to the attention of the school. It is an apparently confirmatory observation of the relationship. I should, however, note that there was no evidence to substantiate the allegation made about Mr Neal Blackburn. It was not put to him in cross examination and neither the plaintiff nor the first defendant rely on it. Exhibit 2D43 does have an air of bitterness about it, in particular in paragraph 5; however, it is also supportive of the plaintiff’s allegations, at least to the extent that the plaintiff frequently spent the night in Ms Blackburn’s home.
115. The evidence of Ms Minato, in my view, was very powerful. Although the conversations in 2003 occurred a long time ago and there was no indication of when she was first asked to recollect them, they are consistent with the attitude taken in her emails of her refusing to lie about her knowledge of a sexual relationship. Ms Minato gave evidence in a straightforward manner and while I accept that demeanour is not necessarily a test of honesty, there was nothing about her presentation that would lead me to doubt her evidence.
116. I will later give my view on Ms Blackburn’s demeanour and evidence generally but observe that in relation to this topic she appeared particularly unsettled. I felt that she struggled to meet the consequences of Ms Minato’s evidence and simply was not able to give an explanation for it. I was at pains to point out to her that Ms Minato’s evidence was very significant and to give her the opportunity to say whatever she wished about it while in the witness box (T 1914.25).
117. The cross examination of the plaintiff continued after Ms Minato was excused. His responses fluctuated between an almost passive agreement with matters put to him and an aggressive reaction to matters where he seemed to think his honesty was at stake. These were not necessarily important matters in the case but simply triggers for an aggressive response.
118. In addition, his evidence also contained an element of a bizarre and grossly illogical approach to people he encountered. The two most glaring examples of this related to university students and people who lived in Orange:-
“Q. Have you ever bashed any of those students?
A. Yes.Q. Why did you do that?
A. Because they're smart-arses they don't know how to treat women right. They treat them like hos instead of like ladies that they are. They think they can come to a town and do whatever they want.” (T 506.4)
“Q. Are people from Orange a bit like university students who go to Bathurst?
A. No, they're a bit like people from Mudgee.Q. They're a bit like people from Mudgee, are they?
A. Yeah.Q. Not people you admire?
A. No.Q. Why?Q. Do you despise them?
A. Yep.
A. Because I just don't like them. Because they're from Orange.” (T 536.32)
119. Notwithstanding the plaintiff’s chivalrous defence of women confronted with the unseemly attitudes of university students, the plaintiff when dealing with his own “girlfriend” said this:-
Q. If she didn't want you in the house you were obliged to leave, weren't you?“Q. You didn't--
A. If I was such a boyfriend I wouldn't have left her in a temper like that, would I? If you're a boyfriend and your girlfriend was going off, would you just leave her in a fuckin' - in a state that she is, or would you stay there and try to calm her down?
A. Yes. But I'm a big man, I don't let my girlfriend - I don't piss off when my girlfriend gets pissed off, I try to settle her down.” (T 575.34)
120. The just quoted passage also raised another inconsistency, not just in the plaintiff’s evidence but within the very make up of his case. The plaintiff insisted that there had been only one assault of Ms Blackburn (T 537.40). Later in the evidence during discussion of a possible estoppel arising from pleas of guilty to more than one assault his learned senior counsel said this:-
“I can assure the court and Ms Blackburn that what he has pleaded guilty to we admit. The plaintiff may give answers inconsistent with that but we stand by what I have just said.” (T 591.1)
121. This statement from Mr Marshall SC again starkly highlighted the point I have already made that the plaintiff was, to some extent, not relying on his own evidence. It is not uncommon for a plaintiff to deny or distinguish things he may have said in a previous circumstance, such as in a history to a doctor, or a conversation put to him as having occurred with another person. What is different here is that the plaintiff is not relying on his own evidence in the witness box. This, of course, does not apply to all of his evidence but it does raise the extraordinary situation of legal representatives saying to the court: we act for the plaintiff, but you should not believe everything our client says.
122. It is important to remember that this divergence between the plaintiff’s own evidence and some of the facts accepted by him is not a product of the alleged fault of the defendants. This is not, for example, a plaintiff who has suffered brain damage in a car accident, whose evidence has been influenced by the injury. The evidence in this case is that the plaintiff has long held a tendency to at least fantasise, if not to be plainly dishonest.
123. Another consideration is the degree to which he is accountable for what he says. I will return to the medical evidence below but I will make these comments here: it seemed obvious to me in observing the plaintiff, in his reactions, his manner of talking and the content of some of his answers, that he obviously suffers from a disability. There is no contest that he has a learning disability and I think it clear that he has a behavioural disorder which manifests in often irrational and anti-social activity. This element was I think accepted by his mother up to Year 7, but I felt significantly played down by her in relation to his years at Carenne and before the break up with Ms Blackburn. Without classifying Mrs Withyman’s evidence as an intention to mislead there was clearly a distorted picture given by her of her son’s behaviour during these years. In her favour I do accept that many of his activities were probably not known to her. These included his use of alcohol and drugs and violent behaviour towards, for example, university students.
124. The significant point that I think arises from the above discussion is whether I should treat the plaintiff’s ‘errors’ as a reflection of dishonesty or as no more than an indication of his disturbed makeup. I think a helpful guide to resolving this issue is to be found in his cross examination by the first defendant on the statement he made to Mr Ray (Exhibit U). What I think emerged from this cross examination was a degree of guile, at least consistent with an appreciation by the plaintiff, of what he understood would, or would not, assist his case. Reading the transcript from pages 575 to 578 (inclusive) provides an illustration of the plaintiff’s fluctuating acceptance and disagreement with matters contained in Exhibit U. It is worth noting at this stage that Exhibit U is the transcript of a taped interview and is accepted by the plaintiff to be an accurate record of what he said.
125. The cross examination also revealed some areas of absolute conflict with the evidence of Mrs Withyman. For example, his mother’s evidence about him breaking furniture and attacking his father with a knife was denied by the plaintiff:-
“Q. Do you recall trashing some furniture in your parent's house in 2007?
A. No, I don't remember, no.Q. Are you sure about that?
A. Yeah.
Q. Do you remember an occasion when your father was so upset with you, you pulled a knife?
A. No.Q. You remember him breaking the door of your bedroom down?
A. No.Q. After you ran in there with a knife?
A. No.Q. Do you ever recall an occasion when your parents came home and found that you'd damaged furniture in the house?
A. No.” (T 507.47)
A few questions later, however, the plaintiff accepted that he “damaged a large number of doors in the house” and “punched holes, and kicked holes in walls” (T 508.24).
126. The plaintiff was asked about his use of marijuana. He said that he did not think it affected his behaviour; in particular it did not make him more impulsive, volatile or prone to fits of anger (T 507.27). A little later he described a certain benefit (T528.35).
127. The plaintiff acknowledged that his father was a strict disciplinarian, but he said he was “as all fathers are” (T 509.26). He said that his father had never intentionally struck him (T 509.45), a direct contrast, for example, to the history he apparently gave to Dr Wendy Roberts (Ex 1D8, report dated 7 June 2009, paragraph 1.5). The plaintiff went on to say that if he had told anyone that his father had hit him it would have been a lie (T 510.16). It follows that he not only lied to Dr Roberts, but also to his own medico-legal expert, Dr De Saxe whose notes contain this passage:
“ Dad – “love-hate” relationship
- Would flog him from young age. Mum would also – but she’s more kind hearted.” (Exhibit 1D9)- more love at moment.
128. He accepted, however, that when he was “angry and depressed” he had assaulted his father (T 510.25). He denied ever assaulting his mother but agreed that he had, on one occasion, pushed her resulting in her breaking some ribs.
129. Another indication that perhaps the plaintiff’s mother’s evidence does not describe his behaviour while he was at Carenne is indicated by the Behaviour Contracts he was required to sign in 1999 and 2001. The origins of the contracts lay in misbehaviour on his part.
130. The occasion when the plaintiff concedes he did assault Ms Blackburn is the incident at Tyres Park, although his version of what occurred has significant differences to that alleged by Ms Blackburn and the police. The assault occurred on 14 October 2003 and is described, from the prosecution point of view, in the fact sheet included in Exhibit 1D1. The plaintiff’s description is very different. For example, he did not cut off Ms Blackburn’s vehicle. Rather he flagged it down. He did not lean through the window and attempt to grab her keys. He did not unlock the passenger door. Rather she invited him into the vehicle and they shared the driver’s seat. He did not bite her on the nose. This allegation gave rise to another illustration of his perhaps bizarre thought processes:
“Q. Did you bite her on the nose?
A. No. I don't think I bit her on the nose, no. Why would I bite somebody on the nose? That's dirty.Q. Did you hit her?
A. Yes.HIS HONOUR
Q. It was dirty in that sense?Q. Well what's the difference in terms of being dirty between biting someone on the nose and hitting her?
A. Hitting is with your hand, why would you put your mouth near somewhere where somebody wipes their boogers out of their nose, you know?
A. Yes.” (T 551.46)
131. The plaintiff denied going to Ms Blackburn’s house in August 2002. I do not accept his evidence about this. He also rejected the detail of the visit put to him including saying that she had not made him a cup of tea because “I don’t drink tea so no” (T 521.29). I note, although I do not attribute a great deal of significance to it, the contradiction in his evidence when he agreed that after the incident on 12 October 2003, at Wattle Flat, that he and Ms Blackburn had a cup of tea together (T 577.23). In relation to this cup of tea I also find it incredible that following the incident the plaintiff would have then shared a bed with Ms Blackburn for the night, at all, let alone in the manner that he suggested (T 578.23). I note the contradiction is between the plaintiff’s evidence and his own version to Mr Ray (Exhibit U, page 18, line 760).
132. The plaintiff said that on the return from the ‘Opera House trip’ he had slept in the same bed in a motel as both Ms Blackburn and her daughter Norah. No sex had taken place (T 621.21).
133. After Mr Blacket, for the second defendant, cross examined the plaintiff about the interview with Mr Ray he moved on to the ERISP interview with Senior Constable Nightingale. The plaintiff had only a vague recollection of this interview but as matters were put to him, arising from its contents, the same pattern emerged of him agreeing with some matters, denying others and also not recalling some portions. The impression I had earlier gathered of the plaintiff’s almost total lack of reliability as an historian was strengthened. Often the answer to an inconsistency between evidence and a statement given much earlier is that the latter is likely to be more reliable because the events would then have been fresher in the interviewee’s mind. This is not the case here, because, as is frankly admitted by the plaintiff’s camp, he is prone to exaggeration and dishonesty. At the end of the day the simple point is, unless otherwise reliably corroborated, it is very difficult to accept the plaintiff’s evidence.
134. There were also times when his evidence seemed to change over one or two questions. For example he was asked whether he became upset when Ms Minato said “mean things” about him to Ms Blackburn. He said that would not have upset him. A very short while later his evidence was to the contrary. I already noted above the conflict with Ms Minato’s evidence in that she said she had not spoken to him at Wattle Flat but he described a conversation. I prefer her evidence.
135. The plaintiff said that Ms Blackburn had become pregnant to him, on two occasions at least, and she had told him that she had had a “needle in the arm” to stop the pregnancy. I am unaware of whether an abortion is possible this way. However, in the plaintiff’s favour, a matter did arise in Ms Blackburn’s evidence about her being administered a contraceptive injection in July 2003 which could be the source of the plaintiff’s evidence. I deal with this issue below.
136. The plaintiff said that a WB utility (‘ute’) is the same as an HQ ute; it is made by Holden. The plaintiff said that Ms Blackburn had bought a vehicle of this type for him to avoid the neighbours talking about his green ute being frequently parked at or near her property. The plaintiff gave other evidence about efforts to conceal the relationship. He also said he had not discussed the relationship with his sister and she had not spoken to him about it.
(c) The same problem with foreseeability arises, as with the moment of madness, because it was equally reasonably unforeseeable that a sexual relationship would have been occurring necessitating precautions to prevent it.(b) It is all very well to say the Behaviour Contract should have continued to be monitored, or enforced, but this would have only been for the protection of Ms Blackburn, not the plaintiff. Once the relationship was ‘happening’ the plaintiff’s behaviour was appropriate, no doubt because he was in happy in his new circumstance. There was no cause for the school to have been concerned. To the contrary, his improved behaviour would have signalled the success of the tactics thus far.
Was the first defendant vicariously liable for the actions of Ms Blackburn?
415. Although there is unquestionably a non-delegable duty owed by a school to the pupils that does not assist this plaintiff because (in the scenario I am now dealing with) there has been no fault on the part of the school. In addition Section 5Q of the CLA requires an allegation of a breach of a non-delegable duty to be treated as a breach of a vicarious duty.
416. For purposes of examining the possible vicarious liability of the school, and perhaps generally, Ms Blackburn’s actions must, I think, be regarded as sexual abuse. The fact that the plaintiff was such a willing participant does not prevent this conclusion in the light of his immaturity, vulnerabilities and presence in a school for children with special needs. The Chief Justice in New South Wales v Lepore (2003) 212 CLR 511 did contemplate a circumstance where there might be vicarious liability:-
“67. It cannot be said that the risk of sexual abuse ought to be regarded as an incident of the conduct of most schools, or that the ordinary responsibilities of teachers are such that sexual assaults on pupils would normally be regarded as conduct (albeit serious misconduct) within the scope of employment. However, there are some circumstances in which teachers, or persons associated with school children, have responsibilities of a kind that involve an undertaking of personal protection, and a relationship of such power and intimacy, that sexual abuse may properly be regarded as sufficiently connected with their duties to give rise to vicarious liability in their employers.”
Although a teacher at Carenne might have been called on to perform certain acts approaching intimacy with a student, they would have been restricted to students with particular physical or mental disabilities and not to a student like the plaintiff whose disabilities did not require such conduct. I do not think that the responsibilities of Ms Blackburn as the plaintiff’s teacher were such as to create circumstances of the type described by the Chief Justice and which might give rise to a vicarious responsibility.
417. It is trite to say that the school was not vicariously liable for Ms Blackburn conducting a sexual relationship with the plaintiff because this activity was outside the scope of her employment.
418. There will therefore be a verdict for the first defendant against the plaintiff.
Contributory negligence
419. This paragraph, as far as the first defendant is concerned, assumes I was wrong in finding liability in favour of this defendant. The defendants submitted that there was contributory negligence on the part of the plaintiff. It was said that the plaintiff’s entry into the relationship and his active concealment of it contributed to his damage. I cannot identify any such contributory negligence. Firstly, I do not see any duty that was owed by the plaintiff to either of the defendants that was breached by entering into the relationship. Secondly, if relevant, there was no evidence that the plaintiff’s concealment of the relationship was of his own initiative. Ms Blackburn obviously wished to conceal the relationship because she knew she was acting inappropriately. She no doubt encouraged the plaintiff, for that reason, not to disclose the liaison.
Section 54 of the CLA
420. Once again, the following discussion assumes error on my part in respect of the plaintiff losing against the first defendant. It was submitted that the plaintiff was precluded from recovering damages by the operation of Section 54. The section is as follows:-
“54. Criminals not to be awarded damages
(1) A court is not to award damages in respect of liability to which this Part applies if the court is satisfied that:
(a) the death of, or the injury or damage to, the person that is the subject of the proceedings occurred at the time of, or following, conduct of that person that, on the balance of probabilities, constitutes a serious offence, and
(b) that conduct contributed materially to the death, injury or damage or to the risk of death, injury or damage.
(2) This section does not apply to an award of damages against a defendant if the conduct of the defendant that caused the death, injury or damage concerned constitutes an offence (whether or not a serious offence).
Note . Sections 52 and 53 can apply to prevent or limit recovery of damages even though the defendant’s conduct constitutes an offence.
(3) A serious offence is an offence punishable by imprisonment for 6 months or more.
(5) This section operates whether or not a person whose conduct is alleged to constitute an offence has been, will be or is capable of being proceeded against or convicted of any offence concerned.”(4) This section does not affect the operation of the Felons (Civil Proceedings) Act 1981 .
421. The first defendant’s reasoning went as follows: When the plaintiff left school his behaviour deteriorated. After Ms Minato visited Ms Blackburn the latter travelled to Canberra to spend some time with her friend. While she was in Canberra the plaintiff broke into her house and committed certain offences. He became upset that she did not return as he had expected. When she did come back the plaintiff assaulted Ms Blackburn. In doing so, he committed “serious offences”. The commission of the offences led Ms Blackburn to terminate the relationship. This in turn led to the plaintiff’s distress and decline into the depression which is the injury at the core of his damages claim. Accordingly, applying Section 54, the injury that is the subject of the proceedings occurred following the plaintiff’s commission of the serious offences.
422. The difficulty I have with the first defendant’s submission is that the negligence of the school occurred in March 2003 and was not accompanied by the commission of any offence by the plaintiff. The type of situation classically contemplated by Section 54 includes a contemporaneous, or almost contemporaneous injury with an act of negligence by the defendant. Thus a robber fleeing the scene of a recently depleted bank, if struck by a motor vehicle driven by a negligent driver could not recover. Although the temporal element I am highlighting is different to that discussed by Young CJ in Eq, as he then was, in Sangha v Baxter [2007] NSWCA 264, his Honour did stress the need for an association “in time, place and circumstances”. I do not think that that association can be drawn between the act of negligence in March and the damage in October.
423. Ms Blackburn also relied on Section 54. She submitted that the plaintiff could recover damages because of his criminal acts. This can only apply to his committing offences. My finding on causation renders the section irrelevant to her argument.
Some general points on damages
424. My findings that there was a sexual relationship and that the breakdown of it did not, as a matter of law, cause the assaults and breaches of AVOs have these inevitable consequences on damages:
(a) The plaintiff cannot recover damages arising from his criminal acts or their consequences. This precludes, for example, compensation for his distress at being in gaol and any economic loss during these periods.
(b) The plaintiff can recover damages from the first defendant (assuming liability) and Ms Blackburn arising from the relationship, but in particular its ending. These damages are to be assessed against the first defendant under the CLA and against Ms Blackburn at Common Law.
(c) Ms Blackburn cannot recover damages from the plaintiff arising from her dismissal from the school. This loss was caused by her misconduct.
(d) Subject to a point I will raise below (in paragraph 443), Ms Blackburn can recover damages, in her cross claim, arising from the assaults upon her and the effects of breaches of the AVOs. These damages are to be assessed at ‘Common Law’ because they arise from intentional torts committed by the plaintiff (CLA, Section 3B).
(f) Ms Blackburn may be liable for any aggravated and, or exemplary damages.(e) If liable, the first defendant could not be liable for any aggravated or exemplary damages (CLA, Section 21).
The plaintiff’s damages
425. There are some unusual aspects to the assessment of the plaintiff’s damages. These include:-
(a) On the plaintiff’s evidence the relationship was one that he thoroughly enjoyed. This is not, for example, a case where a person has been kidnapped or wrongfully imprisoned and endures six months of pain and terror.
(b) I cannot give the plaintiff damages for being happy. I can, however, give him damages for the destruction of his happiness because this was a result of the ending of a relationship that should never have occurred.
(c) The plaintiff’s damages are of an emotional or psychological nature. Damages of this type, while dependent on medical opinion, are also usually dependant on the suffering described by the plaintiff. The difficulty for me is that I generally do not accept him. I do, however, accept that he was extremely distressed, as evidenced by his psychiatric treatment including hospital admission.
(e) The opinions of the doctors must also be viewed against a background that the histories they received may have contained large portions of unreliable material.(d) Adding to the problem just mentioned is that I also do not accept many aspects of the main ‘before and after’ witness, Mrs Withyman. I think she downplayed the plaintiff’s pre-break up condition. Because it is against the plaintiff’s interest, I accept her evidence that the plaintiff has returned to his old self. To use her words: “He has now become that happy, jovial David” (T 169.25). I accept in making this observation that there is a degree of illogicality inherent in his old self being happy, because I have not accepted Mrs Withyman’s assessment of his pre-break up condition.
426. Despite the points I have just made I think a view that was consistent through the oral evidence of the medical practitioners was that the break up would have had a devastating effect on the plaintiff. The range of views extend from major depression (Dr De Saxe) to manifestations of his personality deficiencies through mood swings including a decline into deep emotional upset. I accept that he was extremely distressed as evidenced by his need for psychiatric treatment including institutional admissions and a continuing need for antidepressant medication.
427. I think a lot of the plaintiff’s allegations are the product of a fantasy world that he created, but not necessarily as an exercise in dishonest story telling. In other words, I think that by the time of the break up he believed he had a long term future with Ms Blackburn that was shattered when she ended the relationship. His dream became a nightmare and he sunk to depths of despair from which he has only recently returned.
428. Ms Blackburn’s sexual adventure (as described to Ms Minato) became in the plaintiff’s mind the beginning of a long journey of lifetime happiness. This misapprehension on the plaintiff’s part was no doubt engendered by the failings of his personality and his immaturity both of which contributed to his embracing the unreal and then suffering the shock of reality.
429. I find it very difficult to assess damages to reflect the plaintiff’s mental anguish over a period of some seven years. I am also mindful of my decision that the damages should not include compensation for him being in gaol and being otherwise dealt with by the justice system. Spending time behind bars would no doubt have added to his psychological distress.
430. The figure that I have determined, at Common Law, is $75,000.00. Because the plaintiff has substantially recovered I think he is entitled to interest at 2%, on $60,000.00, for 7.3 years. This is $8,760.00.
431. If the first defendant was liable, Section 16 of the CLA sets out the method for assessment of non-economic loss. In my view the appropriate percentage of a most extreme case is 20%. This equates to $16,500.00 after the necessary deduction. The plaintiff would not be entitled to interest on this amount.
432. The claim for out of pocket expenses is set out in Exhibit AE. There is no claim for expenses while the plaintiff was in prison. The claim mostly relates to antidepressant medication and the costs of medical practitioners consulted by the plaintiff. The claim appears to me to be reasonable and I allow the full sum of $933.65. The plaintiff is still taking antidepressant medication and probably will need to do so for a few more years. I allow $1,000.00 for future medication, taking into account that some of his current state may be due to his time in prison.
433. The plaintiff has a claim for economic loss which in my view must fail, for these reasons:-
(a) The majority of the time lost was due to the plaintiff being in prison.
(c) With the possible exception of the Indian restaurant job, his employment was usually terminated following a clash consistent with his pre-existing personality disorder and inability to control his emotions.(b) The plaintiff’s personality was such that he would have had difficulty maintaining employment in any event. Although his severe upset may well have affected his employment I cannot attribute an absence of employment to the break down.
434. The plaintiff has a claim for aggravated and exemplary damages against Ms Blackburn. She was the plaintiff’s teacher, a position of considerable responsibility. In addition, as I have often emphasised above, the plaintiff’s personal circumstances must be taken into account. Ms Blackburn took advantage, albeit with the plaintiff’s enthusiastic, but markedly immature, consent to embark on a sexual escapade that, from her point of view, could never have been a long-term commitment. An end disastrous to the plaintiff was inevitable.
435. In New South Wales v Ibbett (2006) 229 CLR 638 at paragraph 31 the High Court said that:-
“Aggravated damages are a form of general damages, given by way of compensation for injury to the plaintiff, which may be intangible, resulting from the circumstances and manner of the wrongdoing.”
The court then went on to quote with approval the judgment of Spigelman CJ in the NSW Court of Appeal in relation to the distinction between aggravated and exemplary damages (paragraph 34). The High Court added this:
- “In cases where the same circumstances increase the hurt to the plaintiff and also make it desirable for a court to mark its disapprobation of that conduct, the court may choose to award one sum which represents both heads of damages and no element more than once.” (paragraph 35).
436. I think this is a case where one sum is appropriate to include both heads of damages and I think this sum should be $20,000. This sum reflects an indication of the wrongfulness of the conduct (attracting exemplary damages) and the resulting need for some extra damage to reflect the harm to the plaintiff (aggravated damages). Interest on these damages at 10% for 7.3 years is $14,600.
437. The following table is a summary of the damages I have assessed. The first defendant is included to show the damages I would have awarded against it if I had found in the plaintiff’s favour:-
Non-economic loss / general damages Interest Out of pocket expenses Future medication Aggravated and exemplary damages Interest Total
The first defendant’s Cross Claim against Ms Blackburn
438. My finding for the first defendant against the plaintiff means this cross claim falls away. The following comments are made in case this finding is wrong.
439. The first defendant’s Cross Claim against the second defendant is essentially a claim for indemnity or contribution toward any damages that the first defendant is required to pay to the plaintiff. The cross claim alleges, in summary, that Ms Blackburn was in breach of her obligations as a teacher and she should have known that her actions might cause harm to the plaintiff.
440. I would have assessed Ms Blackburn’s contribution at 50%. Although she was the main actor in the wrongs to the plaintiff, the school would have been equally liable for allowing the creation of the environment in which Ms Blackburn was able to begin and maintain the relationship with the plaintiff.
441. Accordingly, there would have been a verdict on the first defendant’s cross claim against the second defendant in the sum of $9,216.82.
The second defendant’s Cross Claim against the plaintiff and damages
442. It follows from what I have said above that this cross claim must succeed based on the intentional assaults and breaches of AVOs by the plaintiff upon Ms Blackburn. Again, as I have already mentioned, her damages are to be assessed at Common Law.
443. In final submissions the plaintiff’s senior counsel raised a defence to this cross claim that had never been pleaded or even mentioned before. It was said that Ms Blackburn could not recover against the plaintiff because to do so would be to give her damages as a product of her illegal or immoral actions. The Defence to Ms Blackburn’s cross claim does no more than “not admit” her allegations of damage. I expressed the view that a defence of the type contemplated should have been pleaded. The very serious criminal offences mentioned by Mr Marshall may well have generated an application for safeguards by the second defendant in giving her evidence. No application was made to amend the plaintiff’s Defence to the Cross Claim.
444. Ultimately the plaintiff relied essentially on a general discretion in the court to exclude or limit Ms Blackburn’s damages because of the nature of her conduct.
445. I was taken to Gala v Preston (1991) 172 CLR 243 and in particular to pages 272 and 291. It was submitted that “a person who is injured while participating in conduct which has been identified by the criminal law as inimical to society should not be entitled to the compensation that the civil law ordinarily provides.”
446. I think the failure to plead the defence precludes my consideration of it. In case I am wrong, however, I make these points:-
(a) Ms Blackburn has never been convicted of any criminal offence. There is no suggestion that any such proceedings against her have ever been contemplated.
(c) The damage to Ms Blackburn did not occur while she was carrying out any criminal activity. Most of the plaintiff’s offences occurred some time after the break up. As to those that occurred proximate to the break up, by October 2003, the plaintiff was no longer a student at the school. He was also 18 years of age and there was then no possible criminal act or breach of duty being carried out by Ms Blackburn.(b) The harm to her was caused by the accepted criminal conduct of the plaintiff.
I can therefore see no basis upon which I should not award Ms Blackburn damages.
447. It was then submitted that in assessing any damages I should take into account Ms Blackburn’s conduct so as to reduce the extent of the damages. Although this submission has a moral logic about it I find it difficult to implement because once Ms Blackburn has an entitlement to damages then those damages should be fully assessed. This is not to say, however, that I cannot, in considering the assessment of the damages, take into account the circumstances under which the damages arose and the reliability of Ms Blackburn’s evidence about the extent of her loss. As Ms Johnston said, if Ms Blackburn had lied to her about the existence of the relationship she would have been a very consummate liar indeed.
448. In one sense Ms Blackburn’s cross claim is made up of a series of causes of action arising from each assault or breach of an AVO. On this basis damages should be awarded for each incident. This approach, however, is impractical if not impossible, because with the exception perhaps of some identified harm (eg bruising and cuts) which might be associated with a particular assault, the harm suffered by Ms Blackburn has been cumulative, in particular in relation to the PTSD, which no doubt developed as a consequence of the plaintiff’s ongoing criminal behaviour.
449. As I read the Amended Second Cross Claim damages are alleged to flow from the following activity:-
(a) Stalking by the plaintiff through 2003.
(b) An assault by the plaintiff on 11 October 2003.
(c) An illegal entry by the plaintiff into Ms Blackburn’s home on 14 October 2003.
(d) The assault of Ms Blackburn in her car on 14 October 2003.
(e) The assault of Ms Blackburn on 26 March 2004 and consequent breach of an AVO.
(f) The breach of the AVO on 19 December 2004.
(g) The breaches of AVOs on 17 January and 2 March 2005.
(h) The breach of the AVO on 4 November 2005.
(j) The threat to kill with a vehicle and gun made via the plaintiff’s mother on 12 May 2008 and communicated by the police to Ms Blackburn.(i) The firearms offences, including a threat to kill, on 12 October 2007.
The allegations in paragraphs (a) and (c) above are not compensable because they are inconsistent with my findings about the existence of the relationship. I am satisfied that the balance of the acts occurred. In fact they are alleged by the plaintiff in his own case.
450. It is impossible to separate each action and attribute to it an amount of damages. In my view the only just way to approach Ms Blackburn’s damages is by way of a global sum reflecting the harm caused to her by the plaintiff.
451. In assessing these damages it is important that I do not include any element arising from Ms Blackburn’s own breach of duty to the plaintiff. Thus, for example, she cannot receive damages for losing her job as a teacher. In addition Ms Blackburn did not prove any economic loss arising from her physical or mental trauma, as opposed to the result of her dismissal from her teaching position. Her damages can include the physical injury occasioned by the assaults and the emotional trauma caused by the plaintiff’s breaches of the AVOs. The latter, in my view, may include an element of the fear generated in Ms Blackburn’s daughter but only to the extent that it is a source of upset to Ms Blackburn.
452. The physical effects of the assault on 13 October 2003 can be seen in the photographs attached to the affidavit of Ms Blackburn sworn on 14 March 2009 (Exhibit 2D10, Document 54).
453. The emotional and psychological effects upon Ms Blackburn are generally described by Ms Johnson and are the background to her diagnosis of a PTSD. Although this diagnosis is unchallenged it does need to be treated with some caution. Fundamental to Ms Johnson’s counselling of Ms Blackburn was the history that there had been no sexual relationship. Accordingly, the ‘injustice’ of the plaintiff’s actions against Ms Blackburn was exaggerated. In addition, based on my findings, Ms Blackburn dishonestly withheld the truth of the relationship from Ms Johnson whose assessment was no doubt based upon her own acceptance of Ms Blackburn and her treatment of her as a person who had suffered the wrongs that had been described by Ms Blackburn.
454. In my view the point just made must substantially temper my acceptance of the PTSD as being a reflection of the harm suffered by Ms Blackburn as a result of the plaintiff’s intentional torts. If this diagnosis has at its core a dishonest history then the diagnosis must itself be at risk.
455. Having made the above point I do nevertheless accept that the plaintiff’s breaches of AVOs would have been, and perhaps continue to be, sources of significant upset on the part of Ms Blackburn. Once again, I am faced with making an assessment of damages of harm to a person whose evidence I have found, in a very material aspect, to be unreliable.
456. Taking into account the physical injuries to Ms Blackburn and the distress caused to her by the plaintiff’s intentional torts, and including an element of the upset arising from the fear created in Ms Blackburn’s daughter, I assess general damages on a global basis in the sum of $60,000. Most of these damages have been suffered in the past so I will allow interest on $50,000 at 2% over 7.3 years. This is $7,300.
457. If I am wrong in having the capacity to award a global sum then the best break up I could make would be as follows:-
(a) General damages of $5,000 for the assault on 13 October 2003.
(b) General damages of $5,000 for the assault on 14 October 2003.
(d) $48,000 by way of general damages for the mental stress caused by the assaults, threats and breaches of AVOs.(c) General damages of $2,000 for the physical element of the assault on 26 March 2004.
458. Out of pocket expenses are $175. I allow a further $2,000 for future counselling as envisaged by Ms Johnson.
459. Ms Blackburn has also claimed aggravated and exemplary damages. I decline to award such damages, for two reasons:-
(b) Although I have rejected the plaintiff’s argument on causation I nevertheless must recognise that the origin of the plaintiff’s tortious actions against Ms Blackburn lie in the intentional torts of Ms Blackburn.(a) As a result of his actions against Ms Blackburn, the plaintiff has been punished by way of imprisonment.
460. A summary of the damages I have awarded Ms Blackburn is in this table:-
General damages Interest Past out of pocket expenses Future medical treatment Total
Final orders
461. The orders that I make are:-
A. Judgment for the first defendant against the plaintiff.
B. Judgment for the plaintiff against the second defendant in the sum of $120,293.65.
D. Judgment for the second defendant against the plaintiff in the sum of $69,475.00 on the second defendant’s Cross Claim against the plaintiff.C. Judgment for the second defendant against the first defendant on the first defendant’s Cross Claim against the second defendant.
462. I will hear the parties on costs and on the formal orders I should make arising from the plaintiff having a tutor.
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