CITATION: | BYM v The Corporation of The Trustees of The Roman Catholic Archdiocese of Brisbane (No 2) [2024] QSC 106 |
PARTIES: | BYM (plaintiff) v THE CORPORATION OF THE TRUSTEES OF THE ROMAN CATHOLIC ARCHDIOCESE OF BRISBANE TRADING AS BRISBANE CATHOLIC EDUCATION ABN 49 991 006 857 (defendant) |
FILE NO/S: | [REDACTED] |
DIVISION: | Trial Division |
PROCEEDING: | Trial |
ORIGINATING COURT: | Supreme Court at Brisbane |
DELIVERED ON: | 30 May 2024 |
DELIVERED AT: | Brisbane |
HEARING DATES: | 27 November 2023 to 6 December 2023 |
JUDGE: | Williams J |
ORDERS: |
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CATCHWORDS: | TORTS – VICARIOUS LIABILITY – NON-DELEGABLE DUTY – NEGLIGENCE – allegations of child sexual abuse on school grounds – where the plaintiff claims damages for psychiatric injury from an alleged assault on the basis of vicarious liability and/or negligence – where the alleged assault constitutes a serious criminal offence against a child – whether the assault occurred as alleged – whether the defendant is at law vicariously liable for the conduct of alleged perpetrator – whether the alleged perpetrator was acting in the course of his employment – whether the assault, if found to have occurred, has a sufficiently strong connection with the employment – whether the alleged perpetrator was placed in a position of authority, power and trust such that he was able to achieve a substantial degree of intimacy – whether on the balance of probabilities the defendant breached the nondelegable duty of care to exercise reasonable care for the safety of the plaintiff as a student EVIDENCE – civil standard of proof – approach to assessment of credibility – burden of proof to the Briginshaw standard – where a key issue in dispute is whether the alleged assault occurred as alleged or at all – where the key issues concern the credit and reliability of the plaintiff and other witnesses – where there is a substantial period of delay between the alleged assault and the trial – whether the necessary degree of satisfaction is reached in respect of the plaintiff’s claim raising serious allegations of assault Criminal Code Act 1899 (Qld), s 245 Bird v DP [2023] VSCA 66 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 BYM v The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane (No 1) [2023] QSC 298 CCIG Investments Pty Ltd v Schokman (2023) 97 ALJR 551; [2023] HCA 21 Double v Salvation Army (Victoria) Property Trust [2023] VSC 452 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Gersbach v Gersbach [2018] NSWSC 1685 GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857; [2023] HCA 32 Jones v Sutherland Shire Council [1979] NSWLR 206 Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60 M v M (1988) 166 CLR 69; [1988] HCA 68 Nguyen v Cosmopolitan Homes (NSW) Pty Ltd [2008] NSWCA 246 Prince Alfred College Inc v ADC (2016) 258 CLR 134; [2016] HCA 37 Watson v Foxman (1995) 49 NSWLR 315 Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12 |
COUNSEL: | Mr G Mullins KC and Ms C Campbell for the plaintiff Mr R J Douglas KC and Mr K Howe for the defendant |
SOLICITORS: | Maurice Blackburn Lawyers for the plaintiff MinterEllison Gold Coast for the defendant Ms R Drew of Holding Redlich for CD (witness) |
Non-publication order
“(2) Subject to:
(3) Subject to:
(Non-publication Order)
Issues in dispute
Matters not in dispute
Plaintiff’s pleadings and witnesses
Defendant’s pleading and witnesses
Nature of the claim
Standard of proof given the nature of the claim
“But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences”.[9]
“This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained. When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues … But, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected.”[10]
“In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw”.[13]
“No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well founded… There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place.”
“[7] Having regard to contemporaneous events and knowledge about the occurrence in the community and in family settings of child sexual abuse, it would not be appropriate to categorise accounts of such conduct as being inherently unlikely, as Dixon J did in 1938.”
“[393] It would be an unsatisfactory basis for the resolution of these proceedings for the Court to simply prefer one account over another solely on the basis of a witness’s demeanour whilst giving evidence. A careful observation of each of the lay witnesses whilst they were giving evidence, particularly the plaintiff, the defendant and [the plaintiff’s mother], showed that the experience of giving evidence was itself traumatic. … To resolve the evidentiary differences, it is appropriate to proceed by analysis of the evidence, including reference to the surrounding context, and all other relevant matters and circumstances. It is appropriate to search for and identify any corroboration which may exist, or may be expected to exist.”
“Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical.”[20]
“[b]y this approach, the common law, in accepting but one standard of proof in civil cases (the balance of probabilities), ensures that ‘the degree of satisfaction for which the civil standard of proof calls may vary according to the gravity of the fact to be proved’[27].”[28]
“[59] Common law courts have developed techniques addressing the problems in civil trials associated with the recollection of events which occurred long in the past. For example, the warning which Longman v The Queen[29] said may be required in a criminal trial involving events in the distant past has a civil law equivalent. Watson v Foxman is frequently cited because of its continuing importance in identifying that ordinary human experience exposes that human memory is ‘fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time’.[30]
[60] A court is not bound to accept uncontradicted evidence. Uncontradicted evidence may not be accepted for any number of reasons including its inherent implausibility, its objective unlikelihood given other evidence, or the trier of fact simply not reaching the state of ‘actual persuasion’ which is required before a fact may be found.[31] ‘To satisfy an onus of proof on the balance of probabilities is not simply a matter of asking whether the evidence supporting that conclusion has greater weight than any opposing evidence … It is perfectly possible for there to be a scrap of evidence that favours one contention, and no countervailing evidence, but for the judge to not regard the scrap of evidence as enough to persuade him or her that the contention is correct.’[32] The evidence must ‘give rise to a reasonable and definite inference’ to enable a factual finding to be made; mere conjecture based on ‘conflicting inferences of equal degrees of probability’ is insufficient.[33] As Dixon CJ said in Jones v Dunkel[34], the law:
‘does not authorise a court to choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or the others. The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied’.” (emphasis added in bold)
“… human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.
Each element of the cause of action must be proved to the reasonable satisfaction of the court, which means that the court ‘must feel an actual persuasion of its occurrence or existence’. Such satisfaction is ‘not … attained or established independently of the nature and consequence of the fact or facts to be proved’ including the ‘seriousness of an allegation made, the inherent likelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding’: Helton v Allen (1940) 63 CLR 691 at 712.”[35]
“The fallibility of human recollection and the effect of imagination, emotion, prejudice and suggestion on the capacity to “remember” is well documented. The longer the period between an “event” and its recall, the greater the margin for error. Interference with a person’s ability to “remember” may also arise from talking or reading about or experiencing other events of a similar nature or from the person’s own thinking or recalling. Recollection of events which occurred in childhood is particularly susceptible to error and is also subject to the possibility that it may not even be genuine: Hunter, Memory, rev ed (1964), pp 269-70.
No matter how honest the recollection of the complainant in this case, the long period of delay between her formal complaint and the occurrence of the alleged events raised a significant question as to whether her recollection could be acted upon safely. The likelihood of error was increased by the circumstances in which the complainant said the incidents occurred… Experience derived from forensic contests, experimental psychology and autobiography demonstrates only too clearly how utterly false the recollections of honest witnesses can be…”.[38]
“[74] In addition to the question of the applicable standard of proof, of course, it must be borne in mind that the burden of proof in respect of the matters alleged rests upon the plaintiff. In that regard, there can be cases in which the trier of fact is left in doubt such that the only just conclusion is that the burden of proof has not been discharged.”
“It is in this sense that ‘probability’ is used in determining whether a particular proposition of fact should be accepted for the purpose of litigation. It was, in my opinion, to this that Dixon J referred in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361. In referring to what constituted proof of a fact, his Honour said: ‘… the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality.’”
“[55] The position may be summarised as follows:
Issue 1 - whether the alleged assault occurred as alleged or at all
Plaintiff’s case
“245 Definition of assault
Plaintiff’s evidence
“It was like a big clunky box, and it had the metal lock part that would go through the metal loop on the other side of the door. And it was a twist - I don’t know how to explain it. It was like a rectangle twist, and as you would move it, the lock would come in and out … sort of like a slide.”[60]
“we had, like, these little - little tiles on the floor. And, like, you know, hard plastic wheels from I think it might have been his little trolley thing that had cleaning products on it - I could [hear] it - like, click, click, click, click, click, click and - over the tiles, …”[63]
“I wasn’t entirely sure who I thought it might have been. I assumed, because of the sound of the wheels, it would have been CD, but I didn’t think anything of it, because, like, he was a staff member. He would clean the bathrooms. He’d always seemed nice to me in the past.”[64]
“I thought he might’ve thought that the - because of all the doors that would lock, and the kids would slide under, I thought he - maybe he thought it was just another empty stall that had been locked by one of the other kids.”[66]
Other witnesses
Psychologists and Psychiatrists
Defendant’s case
CD
“Yes. He was the only one. Not - not working with me. He only worked in the daytime as a cleaner.
And if there was a day where [REDACTED] - - - ? - - - Wasn’t there. Yes. Who - - -?---So - - -
Who would do the tasks that he would otherwise do?---Well I probably had to do some of it. I’d empty the bins probably or something. But that’s all. I wouldn’t clean any houses or toilets or anything.
I see. So when you said earlier on that you would never, ever have undertaken any cleaning task, that wasn’t quite correct, was it?---Well, you know, I didn’t - I never took - as a cleaner I never did it. I was always something to do with the grounds.
So, is your evidence now that as a groundsman, you did some cleaning tasks?---No. I’m not a - well, I did some cleaning tasks to help him out, but that’s all. Help them out, help the school out.
Right?---That’s all.
So if necessary, if something had to be cleaned, you would step in and fill the breach if there was no one there who was able to help?---For goodness sake. You want to say I’m a cleaner, do you?”[176]
“How often do you recall that happening?—Like, twice in 20 years, I think. I can’t - it might be a different time, because different numbers, but I think - I can only recall twice, and there was once there and once in the admin building.”[177]
“Yes. Now, I suggest to you that the doors could be opened by a person using a small key or some other device; the key not to open the lock, but to effect sufficient traction on the part of the handle that swivelled to undo it?---Well, I don’t know. I never did -I never knew that. I don’t think it’d be very hard to do.”[178]
Other witnesses
“What sort of activities did you observe in that period that [CD] undertook? Be as expansive as you’re able to do, please? — I understood that he was the groundsman and that he would - had - he was usually there fairly early in the morning when I arrived, and he’d been out and about the grounds. He was often on a - a ride-on mower. He was in gardens. He was planting trees. He was - yeah, out sometimes on the oval as well. I suppose when there was a - a sports day, [CD] would make sure the - the grounds were neat and tidy. Yeah, mostly around the grounds, and then I saw more of [CD] when I moved in 1998 down to the - my other office, because his room where he’d have morning tea and lunch was - was attached actually to that toilet block. And I would see him. He’d come down the path on the ride-on mower and back in to his shed.”[179]
The Plaintiff
“– flashbacks – fleeting image/intrusive thoughts/memories – sinking feeling in stomach, feel like forgotten something, ‘fear of knowing
what I’m forgetting’, ‘I stomp it down’, shut down, tense can’t speak, feels like lungs in throat
…
childhood trauma:
“But this person that you were speaking to, Ms Martin, that you say that you were prepared to lie to her; is that correct?---At that time, yes.”[200]
“T1.34.39-41:
Did you tell Dr Quinn that your father’s violence was directed not towards you but towards your mother?---My father’s never been physically violent towards anyone in my family.
T1.35.5-6:
Did you tell Dr Quinn that your father used to punch walls?---If that’s how she’s written it down, that’s, I guess, how she’s interpreted it. So, yes.
T1.35.40-49:
I suggest to you that in fact, in truth, he was verbally and emotionally abusive still, in 2014?---At the time of me telling her something like that, I probably would have felt that, yes.
When you say you would have felt that, does that mean it might or might be - might not be true?---When I say that, it's I can’t recall my entire feelings at that time. Like, when I go to see these psychologists at the time, whatever is on my mind at that point is what I will tell them. So if I tell them about my family on that day, it’s because I would prefer to talk about my family on that day, because I feel like that’s what I would rather be speaking about.’ T1.36.2:
And you’re telling the truth?---It’s the truth. Probably a bit exaggerated truth.
T1.37.17-31:
All right. Let’s just be clear about this. I suggest to you that you told Dr Quinn that your mother said to you that she didn’t want you going anywhere because you might be kidnapped, raped or murdered?---I most likely did say that, because I would – I didn’t want to see psychologists in the first place, so I would paint my mum as the villain.
So it was an untrue statement, if it was made?---It’s not an entirely untrue statement, because my mum didn’t - she never told me I couldn’t, but she didn’t like the thought or, like, know the area, but it’s not the best of areas.
Did your mother say, at some point, something about you being kidnapped, raped or murdered if you went out?---Not to my recollection, no.
Not to your recollection now, perhaps?---Not to my recollection.’
T1.79.34-49:
“I’ll ask you the question again. Did you tell Ms Howie that your father was an ex alcoholic?---I – I don’t recall. Possibly.
Okay. But if you were being asked that now by reference to
2013, that was a truthful statement, wasn’t it, he was an exalcoholic?---I don’t know if he was an alcoholic or not, I just know that he would sometimes drink.
Okay. Did you tell Ms Howie when you attended upon her in 2013 that your father was possessive and explosive?---Quite possibly. Yes.
And I suggest to you that was an accurate description of your father at that time in 2013?---In the moment, as I was feeling it, yes.
Thank you?---But that’s also because I tend to take things that I’m feeling or things that are happening at the time and throw that out as the most extreme as I can to stop from talking about what’s actually going on in my life.” T1.80.2-19:
“So are you attempting to explain to her Honour that sometimes you say things which are untrue because you feel you need to say them?---That’s not quite what I said, no.
Well, what do you mean?---I mean at the time, say, before I was going to go see the psychologist, that I didn’t want to see in the first place, that I felt like my mum or my dad were making me go, then I would paint them as a control freak or something because I would feel that in that moment because I didn’t want to go to the psychologists.
So were you - are you saying that, in about 2013 at least, you were prepared to tell a psychologist that you were consulting for counselling; something which was untrue because your parents had forced you to go and see them?---In that moment when I was feeling at its height of emotions, I did feel that it was truth. What I’m saying is that, when emotions are high, you feel things differently to how - once you calm down, they---
So when emotions are high, are you prepared to say you were assaulted in the toilets at [REDACTED] in 1999?---No, because that is what happened.”
T1.75.18-39:
“Now, did Dr Jacovou and the psychologists ask you many questions about your mental health?---Yes.
And they asked you many questions about your life experiences?---Yes.
Did they ask you questions about your family history?---Yes, they asked a lot of questions about a lot of things.
Yes. And they asked you questions about your school experiences right through to when you left school; isn’t that correct?---Yes.
And you knew, didn’t you, that it was important for you to respond to those questions truthfully and accurately?---Yes.
And were you truthful and accurate in responding to their questions?---Not always.
Not always. And what matters were you untruthful about?--When I was seeing Dr Martin, instead of disclosing everything, I would only give her partial information.
I’ll come to Dr Martin later in some detail, but do you recall that you saw her on about nine occasions?---Around about. Yes.” T2.51.5-49:
“Did you tell Ms Martin words to the effect, and I quote you, that you had:
Fear of knowing what I’m forgetting.
I had fear in general of the whole thing, so I sort of said that, yes.
Was that not true?---Not entirely, because I do every day fear in remembering the - the memories.
Well, what part of it was untrue?---How much I told her. I could’ve told her more, but I didn’t.
What were you forgetting?---I wasn’t forgetting anything. I was forgetting how to speak, if anything.
So when you said that you were forgetting something when you said ‘Fear of knowing what I’m forgetting’, was it untrue that you were forgetting something?---Yes.
All right. So you were prepared to tell her an untruth; is that correct?---In - - -
Is that true or untrue?---At that moment, yes.
Did you tell her also, and I quote you: I need to stomp it down.
?---I want to stomp it down, yes.
No, I need - I’m asking you about what you said to her?---I said that, yes, because I would still like to stomp it down.
Did you tell her - that is, did you tell Ms Martin - that your mother’s court case for sexual abuse had triggered something in your mind?---That was an excuse.
Did you say that to Ms Martin?---I said that, yes.
Was that untrue?---It was an excuse, yes.
Was it untrue?---Please don’t yell at me.
Take your time. Have a glass of water?---Yes, it was untrue. It brought everything up more to the surface, but it’s not that I forgot anything.
So you were prepared to tell Ms Martin an untruth, were you, on your evidence?---I...” T1.52.1-18 (emphasis added):
“...didn’t know her.
You came to know her very well, didn’t you, over nine to 10 sessions; isn’t that so?---I wouldn’t sa - I wouldn’t say very well, but I did come to build a, sort of, relationship with her.
I understood you say in evidence that you formed quite a good relationship with her?---Yeah.
To the point whereby you felt a degree of trust in her; is that correct?---I did trust her more than Hayleigh Quinn or Amii Howie, yes.
And you liked her?---As a person she was lovely.
Lovely?---Yeah.
But this person that you were speaking to, Ms Martin, that you say that you were prepared to lie to her; is that correct?-
--At that time, yes.”
T2.53.22-37 (emphasis added):
“--- on her part. Okay. Did you tell Ms Martin that - when you were sharing, and I quote you, you ‘freaked out’?---Yes.
Did you tell Ms Martin words to the effect that you had partial memories of a janitor or grounds keeper at your school when you were 9 years of old - 9 years of age?---Yes. I did tell her that.
And was that, on your evidence, untrue?---That was untrue. I didn’t have partial - I knew.
But you were nonetheless prepared to tell Ms Martin a lie about that?---I - as I said, I didn’t know her very well at that point, so, yes.
The answer is you were prepared to tell her a lie?---At that point ---
Is that correct?--- - - - yes.” T2.54.45:
“Is that correct? Did you tell Ms Martin when you consulted her words to the effect that - about these partial memories, you thought that something had happened at the time?---I was very vague with her. Yes.
That is, you were very vague with her?---I was very vague with Ms Martin. Yes.
All right. And on your evidence, was that untrue?---It’s untrue.” T2.55.1-20 (emphasis added):
“Did you say that was untrue?---Yes.
So what you said to her in that regard on your evidence, that was a lie?---A partial lie. It was more withholding ---
It’s a partial lie?--- - - - the full extent of the truth.
On the basis of what you could remember of the events that you say occurred in - I should say, 1999, was it not a lie for you to say to Ms Martin that you thought that something had happened in the toilets?---I would have said that ‘I thought’ instead of ‘I know’.
Was that a lie?---If - yes.
Thank you. Was it the case, madam, that shortly before you first consulted Ms Martin that you had developed some memories that something may have happened to you at the college in the toilets when you were nine years of age?---I had memories. I didn’t know this woman. I wasn’t prepared to talk to her openly yet.”
T2.68.10-20 (emphasis added):
“No. Did I understand that that’s what you said?---I did say that. Yes.
Thank you. Well, in fact, lying is what you did on a number of occasions when you were speaking to Ms Howie, Dr Quinn, and Ms Martin, from what you’ve already told us; isn’t that right?---I withheld information from them. Yes.
No. You lied to them. You told me this morning that you lied to Ms Martin, didn’t you?---Ms Martin I didn’t tell the entire truth to. Yes.
No. You lied to her?---I didn’t lie to Ms Quinn or to Ms Howie.[203]
Did you lie to Ms Martin?---If not telling the entire story is lying, then yes.”
T2.69.20-31 (emphasis added):
“You were untruthful with her, weren’t you?---If I was untruthful with her, if that’s - - - Okay. So it was a lie?---If - - -
Can I start again?---No. I - - -
You were deliberately untruthful to her?---I didn’t intend for it to be untruthful. I was scared to go into detail.
You were deliberately untruthful with her, because you say you were scared to go into detail?---Yes.” T2.50.33 to T2.51.1:
“When you were speaking to Ms Martin in 2004 - in 2017, did you - I withdraw that question. You’ve already given evidence, haven’t you, that when you were just - in 2017, you had a very clear recollection of the events which had occurred in 2009
?---Yes.
And you said in evidence yesterday that, when you went to see Ms Martin, you were determined to tell her about the 1999 events?---I wanted to, yes.
And you could’ve told her if you wanted to; couldn’t you?---I tried to the best I could.
You could’ve told her if you wanted to; couldn’t you?---Yes.
Did you say yes?---Yes.
What you told Ms Martin, didn’t you, was that, two weeks before, you had experienced mental flashbacks and intrusive thoughts when you were showering? ... Yes.”
“At interview, [the plaintiff] did not disclose the intrafamily disturbance. This was a significant omission. Dr Duke and I only came to know of this when provided with additional material. Thus, whether consciously or not, [the plaintiff] minimised the non-abuse-related factors. On this basis, [the plaintiff’s] reliability as a historian needed to be considered.”
“This inconsistency does raise questions either with regard to [the plaintiff’s] reliability as a historian, or with regard to the reliability of her memories of events.”
T2.71.15-40:
When you went to see Dr Duke in 2019, he asked you about your personal history, didn’t he?---Yes.
And you told him more, though, didn’t you?---Who, sorry?
Dr Duke?---Please - - -
Dr Duke. I’m focusing on Dr Duke now, not Dr Mathews. He asked you about your personal history as well, didn’t he?---Yes, he did.
And you told him that your mother had a history of anxiety for which she had consulted a psychologist?---Yes. Yes, I did say that.
And that’s all you said about your mother?---That she’d had anxiety, yes.
I beg your pardon?---That she had anxiety and was seeking help with it, yes.
And you told him nothing else; do you agree with that? About your mother?---I don’t recall anything else.
Did you tell Dr Duke about your father; that he had a past history of alcohol use?---I don’t recall. I think so.
You did not tell Dr Duke, though, anything else about your father and his history within your family?---I was trying to answer Dr Duke’s questions. I think he did better at asking me more, so I could give him more to work with.
T2.75.35-45:
When you saw Dr Duke, did you tell him that one of your brothers had a past history of drug use, for which he was attending rehabilitation?---I do think that I did, yes. All right. And you were referring there, weren’t you, to your brother [REDACTED]?---Yes.
Is it correct to say that you didn’t tell Dr Duke anything more about [REDACTED], to your recollection?---I don’t recall. I’m sorry. It was a stressful situation being there with him.
T2.76.1-49:
Is it correct to say you didn’t tell Dr Duke about anything concerning lack of support from your family, which you had felt in the past?---I don’t recall. I’m sorry.
Thank you. Is it the case that you did not tell Dr Duke anything about any exchange which you’d had with your brother [REDACTED] at any time concerning you self-harming?---I don’t recall.
You don’t recall whether or not you told Dr Duke that?---I don’t because, like I said before, I asked Dr Duke before I went in there if he could lead the conversation, because I’m terrible at articulating words and speaking with men. So I’m not - I’m not sure.
Is it correct that you did not tell Dr Duke anything concerning you self-harming and your discussions about that with your mother?---I don’t recall. I thought I did tell him that I selfharmed at that - - -
And involving your mother?---Oh, no.
So it’s correct that you didn’t have any discussions with him - that is, Dr Duke - telling him about you self-harming and what your mother might have discussed with you on any occasion?--I don’t recall. I do remember speaking to him about selfharming, but I’m not sure where the conversation went from there.
Is it correct that you did not tell Dr Duke that you had been anxious even before you commenced school?---I don’t recall. I do believe I told him I was a shy kid; grew up, like, very shy. But I don’t recall.
Is it correct that you did not tell Dr Duke about the verbal and physical bullying to which you were subjected in secondary school?---I thought I did tell him about that.
Are you saying that you did tell him?---I don’t recall. I thought I did.
Is it correct - if I can just go back, please, to now Dr [Mathew]. I’m not speaking about Dr Duke; Dr [Mathew]. Do you understand that?---Yeah, the second.
Is it the case that you did not tell Dr [Mathew] about your verbal and physical bullying when you were at high school?---Again, I thought that I did, but I don’t recall. I thought I did.
Coming back to Dr Duke, if I may – so I’m back to Dr Duke; do you understand that?---Yes.
In giving your history to Dr Duke, were you intent on seeking, in answering his questions, to attribute your mental health problems to the alleged abuse of 1999?---I was trying to answer his questions as thoroughly and as accurately as I could.
And was he, to your knowledge, writing a report, in effect, on the same issues as Dr [Mathew] was writing the report? You knew he was covering the same ground?---Yeah, I - I think so, yeah.
T2.70.40 to T2.71.13:
Those things involving the family that you told to the psychologists, they were really stressful things in your life, weren’t they?---They were at the time, yes.
Yeah, and when you went to see Dr Mathew in 2019 at the request of your solicitors, you told him nothing about those family matters, other than your mother was anxious?---That is what I said. But when I went to see him as well, I did try to explain to him before we started speaking that, when it came to speaking with especially men, I lock up and I freeze up and I have trouble to speak, so please, when you’re asking questions, make them very clear and not vague so I can sort of yes-or-no answer them. Like, I made that request when I saw him.
Do you recall doing that, do you?---I do, because I was terrified to see him. I had my dad sitting outside the - in the waiting room, and I was terrified that he was going to leave.
All right. So Dr Mathew presumably has made a note of you saying that to him?---I hope so.
You don’t recall that at all, do you?---Yes, I - - -
Saying that to Dr Mathew?---Yes, I do. Yes, I do.
Did you say it to Dr Duke as well?---I did say it to Dr Duke as well.
T2.67.40-49 to T2.68.1-6:
In the various respects I’ve taken you through in crossexamination, by reference to apparently what they wrote down; do you agree with that?---Yeah.
But you told Dr Mathew nothing about those matters; that’s right, isn’t it?---I was trying to answer his questions the best that I could with what he was asking me.
You deliberately withheld that information from him, didn’t you?---I did not deliberately withhold anything.
Did you deliberately withhold it from him, because you didn’t think it assists your cause in having him say that your mental health issues were due to the 1999 abuse that you alleged?---I didn’t intentionally withhold anything from him. I was doing my best to speak to him being a man, in a locked room with him. I really was doing my best, because I wanted the most - you know, I wanted this to be as - I - I don’t like lying. I don’t like - I’ve sworn on - I’m a Catholic woman myself. Like, I wanted - for a start, I wanted the help as well.
T2.66.10-36:
Do you agree also that you told him nothing else about your family history?---I don’t recall, I’m sorry.
Well, you’ve read the reports?---I have read the reports.
So can I put to you that you told him nothing about the conduct of your father during the course of your life, that I’ve asked you so many questions about thus far in the cross-examination?--He would ask me questions and they’re about how I felt about my family and such, and I love my family. I don’t - - -
All right, can you - can I ask you to focus on the question? I’m sorry?---I’m really trying. I’m really sorry.
Okay. Well, I’ll - I’m happy to ask - I said to you at the outset, yesterday?---Yeah.
I’m happy to repeat or rephrase a question?---I’m sorry, I do dissociate a little bit when I’m - - -
Thank you- - - under pressure, and I’m feeling that a little bit.
Okay. Just - that’s all right. Just focus on my question. Do you agree that you told Dr Mathew nothing about the conduct of your father in the course of your family life?---Sorry, I’m just trying to think back. Because I’m - I’m sure I’ve mentioned to him that, with Dad being unwell, he could be grumpy and moodswingy.
Just let me understand that. You’re swearing on oath that you are sure that you told Dr Mathew that your father was grumpy and had mood swings?---If he was unwell.
Right?---Because I - I believe I spoke to Dr Mathew about my dad’s health and the stressors that came with that.
Did you tell Dr Mathew as well about the fact that your father had been an alcoholic?---I don’t recall.
You don’t recall? Did you tell Dr Mathew that your father had been violent at times?---I - I don’t recall. When I was in the room with Dr Mathew, I was on such high tension, I - - -
All right?---There’s likely things I did leave out because I was so worked up, being locked in a room with him by myself.”
Maintenance of good grades at the School
T1.52.44-47:
How did you perform in class?---Academically, I think I still did pretty okay. Like, I felt safe in my classroom because I had the other students there, I had my teacher there, and like I - I said, I - I genuinely like study; I like learning. I just - it was outside of the classroom where I would start getting anxious or self-conscious.
T2.77.24-29:
You enjoyed good grades when you were at primary school?--Yes.
And you enjoyed good grades when you were at primary school after Grade 3, namely from Grades 4 to 7?---I did, yes.
And you gave evidence about that earlier; didn’t you?---Yes, I did.
You were happy at school in Grades 4 to 7; weren’t you?---I was happy to learn at school, yes.
And you were happy at school?---While I was in the classroom, yes.
T3.4.18-24:
And do you recall you said in evidence that- and indeed your evidence-in-chief as well, that your academic performance at school continued as it has previously?---I was good academically. Yes.
Thank you. And your academic performance was good, wasn’t it?---Yes.
And that was both before and after 1999?---Yes.
T3.54.9-17 [REDACTED]:
And can you describe her early years of schooling?---She loved school to start off with. Absolutely loved it.
Did you view your report cards?---Yeah. She did well at school.
And how was she doing academically?---Good. Really good.
She’s a very smart girl.
And to your knowledge, did she have friends at school?---Yes.
Locks on toilet doors could not be ‘pushed’ open
“Could – can you recall whether you could open them from the outside?---No.
You can’t recall or you couldn’t?---I can re - no, sorry. It’s - you can’t open it from the outside.
How do you know that?---Because I used to have friends that would come with me in the toilet and they wouldn’t be able to -
if they were trying to get in just for a joke, but they wouldn’t be able to get in.”
“Thank you. But could you give to her Honour your recollection as to whether there was other - any other means of opening a cubicle door, other than the manner you just indicated, in the primary school toilets?---No. My recollection is that there was no other way of opening the door from the outside. My best recollection is that there was a metal plate, and it did have the occupied or vacant on it. But - and I’m - there were four screws that secured it to the door, and my recollection is that there was no safety means from the outside. I think this was planned and designed in the mid-80s. I don’t think they were - the doors were compliant as they are now.”
“Was there a problem that arose in the toilets from time to time, concerning doors being locked?---Sometimes.
All right. Could you tell her Honour about those problems, please?--Well, your Honour, I’m trying to tell you that, at times, little boys - especially in the boys’ room - would lock the toilets, crawl out underneath the partitions and buzz off. So the only way you could get into them was to get the boys back again and say, “Right, fellas” – or the girls. Mostly it was the boys’ toilets, that would happen. Get them back in; climb out - underneath the rails again - underneath the partitions, which are those cubicle-type things - and unlock it from the inside. Because that’s the only way you could unlock them. Or if I had to, it would take me 10 or 15 minutes to unscrew the lock from the outside.
Would you need to - a piece of equipment or a tool to do that?---I would. I would need at least a big screwdriver or, if I had to, I would have to jerry the whole door open, and it would wreck the cubicle and the door and the lock.
So - - -?---So I didn’t like to do that too often.
So if I understand your evidence, short of having someone climb under the door, there were two mechanical methods of undertaking the unlocking of the door; is that correct?---Mmm.
And you’ve identified one being unscrewing the lock; is that correct?--Correct
And the - - -?---Or otherwise, you’d jimmy it open.
I see. And the second one is jimmying it open?---Yes.
What sort of tool would you use for that?---You’d need a wrecking bar or something; a small crew - crowbar type of thing.
Was the second more destructive than the first?---It was.
What do you say the - to the suggestion that, in respect of these locks, if a door was locked and you needed to open it, that there was on the outside of the door some sort of slit or space into which you could put a screwdriver or a key or some other instrument to unlock the door?--If there was, I didn’t know it. I didn’t know anything about it.”
Zooper Dooper ice blocks
Details of alleged assault
Further consideration and conclusion
Issue 2 - whether the defendant is at law vicariously liable for the conduct of CD
“A reference to a previous decision, the circumstances of which may in some relevant respects bear a similarity to the case at hand, may be helpful. It is part of the method of the common law and the means by which it develops.”[237]
“[20] In the context of vicarious liability, and the rule that the employee’s tortious act must have been committed in the course or scope of the employment, decided cases also provide assistance by way of a test which has been developed. A body of cases … point to a logical enquiry which may be made as to whether the tortious act in question has a sufficiently strong connection with the employment, and what is entailed in it, so as to be said to have been done in the course of that employment. Two points should be made. First, a test of vicarious liability requiring no more than sufficiency of connection must be constrained by the outer limits of the course or scope of employment[238]. Second, the statement in Prince Alfred College[239] that a ‘test of connection does not seem to add much to an understanding of the basis for an employer’s liability’ reinforces the need to undertake analyses in determining the course or scope of employment described above whilst recognising the use of past cases as a guide.” (emphasis added)
“[31] The test stated in Dubai Aluminium Co Ltd v Salaam[241] was approved in Various Claimants v WM Morrison Supermarkets Plc.[242] In the process of attending to a request by the defendant company's external auditors for a copy of the payroll data, the internal auditor employed by the company unlawfully copied the data and uploaded it to a publicly accessible website in order to cause harm to the company. Employees whose data was disclosed brought claims against the company on the basis that it was vicariously liable for the acts of the internal auditor. Lord Reed PSC observed[243] that the provision of the data to the internal auditor enabled him to make a private copy. But, his Lordship said, the mere fact that his employment provided him with an opportunity to commit the wrongful act was not sufficient to warrant the imposition of liability.
…
“[22] It was observed in Prince Alfred College[250] that in some cases something more than sufficiency of the connection between the wrongful act and the employment may be necessary to better explain the basis for an employer’s liability. That is particularly so in cases of the kind there in question, involving sexual abuse in institutions such as schools, where much may be explained by reference to the special role assigned to the employee who was the abuser.
“In the present case, the appropriate inquiry is whether Bain’s role as housemaster placed him in a position of power and intimacy vis-à-vis the respondent, such that Bain’s apparent performance of his role as housemaster gave the occasion for the wrongful acts, and that because he misused or took advantage of his position, the wrongful acts could be regarded as having been committed in the course or scope of his employment. The relevant approach requires a careful examination of the role that the [College] actually assigned to housemasters and the position in which Bain was thereby placed vis-à-vis the respondent and the other children.”
Issue 3 - whether CD was acting in the course of his employment and whether as a matter of law the defendant is liable
Issue 4 - the nature and extent of any duty of care owed by the defendant to the plaintiff
Issue 5 - whether the defendant had breached any duty of care
Orders
Annexure A
Thank you. And, apparently, he seemed to have - sorry, I withdraw that. Were you conscious of [CD] being outside the door of the toilet before he opened it?---Yeah. You could hear his boots on the tiles.
I beg your pardon?---You could hear his boots as he walked.
All right. And did you see his boots under the - through the gap under the toilet door before he entered?---I don’t recall. In any event, it was a short time?---It was a short time.
Thank you. Now, was [CD], to your recollection, quite a tall, wellbuilt man?---He was taller, like, I thought he was tall at the time being
- - -
Sure - - -?---a kid so I took him as being tall.
He wasn’t a small man by any means, was he?---Back then I didn’t think so. No.
No. Thinking back, he wasn’t a man small in stature, as it were?---No.
Do you agree with that?---Yes.
You’re saying yes?---Yes. Sorry.
Thank you. The cubicles, they’re children’s cubicles, are they?---They were - they weren’t like the preschool toilets, where they were really, like, low. They were normal-sized toilets.
And was the cubicle the same size or smaller than the cubicles that you might see in public toilets or something like that?---They were about the same size.
Okay?---They were just standard.
They were slightly smaller, weren’t they?---They were about standard. I thought that they were standard.
After [CD], you say, came into your cubicle, did he leave the door open, or did he shut it?---I don’t think he could get the door closed.
All right. Did he leave the door open, or did he shut it?---It was open.
All right. So your best recollection is it was left open by [CD]; is that correct?---Yes.
So that being the case, then at any time, had anyone else entered the girls’ toilets, they would have readily seen [CD] standing in or about the doorway or just inside the doorway of your open cubicle; isn’t that so?---If I was lucky enough for that to happen, yes, they would have.
(b) T3.11.26-49 (emphasis added):
It must have been very cramped in the cubicle, as the assault proceeded?---It was. That’s - I couldn’t get out past him. That’s - - -
Did you remain seated at all times during the assault?---Not the whole time. He sat me back down, but there was times when I would try and get up, so I wasn’t a consistent seated - - -
When the various - sorry, during - I’ll start again. I withdraw that.
During all aspects of the assault about which you’re giving evidence continued, were you seated?---There were periods where I was seated. Well, were there points in time during the assault when you weren’t seated?---There were times when I tried to get up. Yes.
So was it only times when you tried to get up that you weren’t seated?-
--He was a big man. I was scared of - - - Would you - - -?---- - - him, so I would - - -
Would you please focus on my questions. Were the only times that you weren’t seated during the assault that he perpetrated when - was when you tried to get up?---Yes.
Do you remember how many times you tried to get up?---No.
(c) T3.12.1-49 (emphasis added):
When you tried to get up, do you say that he pushed you back down?--Yes.
So is it the case that as soon as you tried to get up at any point, he would push you back down immediately?---Yes.
Is it correct then that for almost the entirety of the assault which ensued that you were seated on the toilet seat?---The majority, yes. Well, almost the entirety?---I just said yes, the majority.
You’ve given evidence of the various sexual acts that occurred, haven’t you?---Yes.
Right. And one of those sexual acts was you say that he - and I’m sorry if I distress you - he placed his penis inside of you; is that correct?---Yes.
So were you seated on the toilet seat when that sexual act occurred?---Yes.
That must have been very physically difficult, as a physical act, to occur, I suggest to you?---It was very cramped. I would assume that the whole thing would have been hard.
The whole thing would have been a - - -?---Would have been difficult. It was a small room - - -
Right?--- - - - to begin with as well. So - - -
Well, how was he - I’m sorry to ask you about these things, but it’s your allegation that I have to deal with. Do you understand that?--Yeah.
All right. We’ll get through it. How did he physically go about placing his penis into your vagina, with you seated on the seat?---Yeah. I’m sorry. There’s - I don’t want to even have to ask this, but how do you mean?
Well, it - you are seated. I’ll withdraw and start again briefly. You have told her Honour as I understand it that when the event occurred whereby [CD] placed his penis into your vagina, that you were seated on the seat?---Yeah.
Is that correct or incorrect?---No, that was - yes.
Is that correct?---Yes.
Thank you. And in order for him to undertake such an act, it would have been necessary for him to place himself in a position whereby he could physically undertake that act. Do you agree with that?---Yes.
Well, did he seem to encounter some physical difficulty in doing that?--Yes.
How did he - what was his stance in order to undertake that act upon you while you
(d) T3.13.1-49 (emphasis added):
are sitting on the toilet seat?---He got as close as he could. He was - bent his knees.
I’m sorry. I can’t hear the witness?---Sorry. He - - -
Just take your time. Have a glass of water. Well, I - we’ll need an answer to that question. Take your time?---He was - he got in very, very close. And I guess he bent his knees to sort of get closer to my height. So - - -
I need to take you through this, I’m sorry - - -?---Yeah, I know. I know.
- - - subject to her Honour’s direction?---I understand. I’m sorry. Sorry.
That’s all right. Take your time?---So I guess, as I said, he got in close and sort of - it was extremely uncomfortable for I would say both of us, because he had to sort of bend down.
Again, I’m sorry to distress you, but I need to ask you these questions if I may?---I understand. And we’ll get through it. You at the time, on your evidence, were a grade 3 girl; correct?---Yes.
And you were prepubescent; correct?--Yes.
And you were average size, but perhaps a little taller or larger than average size for the - for any other grade 3 girl?---I was average to small.
Thank you. All right. I’m just going on the basis of your photograph that’s in your school photo. Thank you. So you were, on your evidence, an average-sized nine year old girl; correct?---Yes.
And is it fair to say that having regard to your recollection, your - in your prepubescent state, your vagina was quite tight; is that correct?---Yes.
And indeed it was relative to your age at the time; is that not so?--Yes.
And you’ve already given evidence, haven’t you, that you were seated on the toilet seat; correct?---Yes.
And is it also your evidence that [CD] had pushed you back on the toilet seat; correct?---He pushed me back down onto it. Yes.
It’s also your evidence that [CD] was not a man of small stature but at least average stature; is that not so?---I guess.
Is it the case that at all time, to your recollection, that [CD] remained standing?---Standing, crouching.
If he was crouching, he would need to crouch in front of the toilet - - -?---Like - - -
- - - wouldn’t he?---Yeah. Yes. Yes, like, bending.
If he was crouching in front of the toilet, his penis couldn’t get anywhere near your vagina.
Now, I want to ask you just a couple more questions, if I may, about what you allege about [CD] in a cubicle, okay?---Okay.
Now, is it correct to say - I’m sorry. I want to ask you questions about his physical positioning or stance at any time, if I may, please. Do you understand that?---Yes. Do you understand that?---Yes.
Thank you. Now, is it correct to say that at various times, he was standing?---At some points he was standing. Yes.
All right. And is it correct to say at other points, he was squatting?--Sort of, like, leaning.
Well, was he not squatting?---Not full but close to the ground squatting. No.
Are you - when you say he was lean - you said lean or leaning, I’m not sure, did you mean to convey by that that at other points in time while standing, he was leaning forward?---He was leaning bent.
Was he bent at 90 degrees, was he bent at some less - something less than 90.
T3.18.1-27: degrees?---It would be less cause he was able to get close.
Do you understand when I say 90 degrees, if one’s erect, it’s zero degrees and if he’s bent such that he bends over at the waist fully, such that his upper body is horizontal, that that’s 90 degrees? Do you understand what’s meant by that?---Yes.
That’s your understanding of it?---Yes.
Well, on your evidence, at various times, was he standing erect at zero degrees?---There were times when he was. Yes.
And at other times, was he leaning at some angle between zero degrees and 90 degrees?---Yes.
All right. But with his legs straight still in a standing - - -?---Bent - - - - - - position?---Bent. Bent.
Bent?---Bent.
All right. Bent in the sense that he’s - he had a break at the knees such that he was - his knees were protruding forward?---Yes.
Okay. But still standing?---Still standing.
Now, at any time, did he squat down on his haunches?---As in, all the way, like, full - - -
(g) T3.18.29-48:
Yes?--- - - - squat.
Squat down in the sense that if I am in a standing position and whilst still remaining on my feet, I go down such that my knees protrude forward and my thighs are sitting close to my calves. That’s what I mean by squat. Do you understand what’s meant - - -?---Yeah.
Is that your understanding of squatting?---Yes.
Okay. At any time, did he squat?---He didn’t come to a full heels-tohis-backside squat but he would - he did squat.
Okay. So it wasn’t a full squat but some partial squat?---Yes.
So he’s still on his feet?---He’s still on his feet.
And in this - adopting - sorry. Did he adopt any other stance apart from those two 45 stances that you’ve described?---He leaned over me.
I beg your pardon?---He would lean over me.
T3.19.1-22:
He lent over you? And did he lean over you while he was still on his feet?---Yes.
But with his legs straight?---I can’t remember the position of his legs.
And all this time, you were sitting on the toilet seat?---If I wasn’t trying to get up, yes.
And were you back on the toilet seat, that is, with your back towards the - either the cistern or the back wall?---No. I was - I don’t want to say how I was sort of - as I was sitting, pulled closer to him than I was to the back.
When he adopted this incomplete squat which you described a short time ago, was he located in front of you?---Yes.
All right. And was he located in front of the nearest portion of the toilet to him ?---Yes.
But he was in a partial squat; is that right?---Partial. Yes.
So was it the case that the front of his two knees were still short of the nearest portion of the toilet? That is, they didn’t come up to the nearest portion of the toilet?---No. He would have his knees sort of on either side of where I was.
[1] [REDACTED].
[2] Now [REDACTED].
[3] T6.2.12-15; Plaintiff’s closing submissions at [12], page 3; Defendant’s amended closing submissions at [9], page 11.
[4] While the plaintiff’s teacher was known as [REDACTED] at the time of the alleged assault, for ease of reference, these reasons will refer to the plaintiff’s teacher as [REDACTED], being the name under which the witness gave evidence.
[5] (1938) 60 CLR 336.
[6] (1988) 166 CLR 69.
[7] Richard Eggleston, Evidence, Proof and Probability (Weidenfeld and Nicolson, 2nd ed, 1983). Referred to by Ferguson CJ and Maxwell P in the Victorian Court of Appeal decision in Pell v The Queen [2019] VSCA 186 at [56].
[8] (1938) 60 CLR 336.
[9] At 362.
[10] At 362-363.
[11] (1988) 166 CLR 69.
[12] Mason CJ, Brennan J, Dawson J, Toohey J and Gaudron J.
[13] At 76.
[14] The passage is quoted at [28] above.
[15] At 77.
[16] [2018] NSWSC 1685.
[17] See [394] and [395]. The evidence of denying the conduct which constituted serious criminal conduct could not be explained by “forgetfulness or some other innocent reason”. For the plaintiff to succeed, Garling J concluded that he must be satisfied that intentionally false evidence was given by the defendant and the plaintiff’s mother, and he was not so satisfied.
[18] (2003) 214 CLR 118.
[19] Gleeson CJ, Gummow and Kirby JJ.
[20] At [31].
[21] (2023) 97 ALJR 857; [2023] HCA 32.
[22] Kiefel CJ, Gageler J (as the Chief Justice then was) and Jagot J.
[23] Or in particular, unfairness.
[24] In that case, by s 6A of the Limitation Act 1969 (NSW).
[25] Rejfek v McElroy (1965) 112 CLR 517 at 521.
[26] Whether at common law or pursuant to s 140(2)(c) of the Evidence Act 1995 (NSW): GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857; [2023] HCA 32 at [57].
[27] Rejfek v McElroy (1965) 112 CLR 517 at 521, citing, amongst other cases, Briginshaw v Briginshaw (1938) 60 CLR 336 at 362.
[28] GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857; [2023] HCA 32 at [57].
[29] (1989) 168 CLR 79.
[30] (1995) 49 NSWLR 315 at 319.
[31] Briginshaw v Briginshaw (1938) 60 CLR 336 at 361.
[32] Brown v New South Wales Trustee and Guardian (2012) 10 ASTLR 164 at 176 [51].
[33] Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5.
[34] (1959) 101 CLR 298 at 305.
[35] Watson v Foxman (1995) 49 NSWLR 315 at 319.
[36] Longman v The Queen (1989) 168 CLR 79 at 91.
[37] In contrast to the specific requirement that had been abolished.
[38] At 107-8.
[39] (2023) 97 ALJR 857; [2023] HCA 32.
[40] [2023] VSC 452.
[41] [1979] NSWLR 206 at 227.
[42] At 227-8.
[43] With McColl and Bell JJA agreeing.
[44] [2008] NSWCA 246.
[45] Fox v Percy (2003) 214 CLR 118 at [31].
[46] The relevant common law factors are intentionally creating in another person an apprehension of imminent harmful or offensive contact, and if the threat is carried out: see Fleming on Torts 11th Ed at [2.70].
[47] Origliasso v Vitale [1952] St R Qd 211; Grehan v Kann [1948] QWN 40; King v Crowe [1942] St R Qd 288.
[48] The issue of consent does not arise on the alleged facts. Further, the defence of provocation under s 269 of the Criminal Code (Qld) may be available but does not arise for consideration in the current circumstances.
[49] T1.36.22-31.
[50] T1.41.27-47.
[51] T1.43.6-8.
[52] T1.43.15-18.
[53] T1.43.20-23.
[54] T1.48.26 to T1.50.46.
[55] Plaintiff’s closing submissions at [19], page 4.
[56] T1.46.20-21.
[57] T1.46.23-28.
[58] T1.47.41-49.
[59] T1.48.2-3.
[60] T1.48.5-10.
[61] T1.48.12-13.
[62] T1.48.26-28.
[63] T1.48.31-34.
[64] T1.48.42-46.
[65] T1.49.2-3.
[66] T1.49.3-6.
[67] T1.49.9-10.
[68] The plaintiff originally said she said, “please stop that”, then acknowledged she probably did not say please and that she probably was not being that polite. See T1.49.26-27.
[69] T1.49.28-33.
[70] T1.49.35-39.
[71] T1.49.45-47.
[72] T1.50.4-7.
[73] T1.50.9-12.
[74] T1.50.13-15.
[75] T1.50.20-22.
[76] T1.50.20-24.
[77] T1.50.26-28.
[78] T1.50.28-29.
[79] T1.50.39-42.
[80] T1.50.44-46.
[81] T1.51.36-40.
[82] T1.52.2-8.
[83] T1.52.10-13.
[84] T1.52.15-21.
[85] T1.52.23-26.
[86] T1.52.28-31.
[87] T1.52.33-34
[88] T1.52.36-39
[89] T1.52.37-41.
[90] T1.52.44-47.
[91] T1.53.4-9.
[92] T1.53.11-14.
[93] T1.53.20-23.
[94] T1.53.25-34.
[95] T1.53.36-39.
[96] T1.53.43-45.
[97] T1.53.47 to T2.54.1.
[98] T1.54.3-7.
[99] T1.54.26-46.
[100] T1.54.48-49.
[101] T1.55.5-10.
[102] T1.55.16-18.
[103] T1.55.21-22.
[104] T1.55.30-35.
[105] T1.55.37-43.
[106] T1.55.47 to T2.56.2.
[107] T1.56.4-11.
[108] T1.56.17-18.
[109] T1.56.20-26.
[110] T1.56.28-31.
[111] T1.56.33-36.
[112] T1.56.38-41.
[113] T1.56.43-48.
[114] T1.57.1-3.
[115] T1.57.5-10.
[116] T1.57.12-18.
[117] T1.57.33-39.
[118] T1.57.41-49.
[119] T1.58.1-2.
[120] T1.58.4-7.
[121] T1.58.9-17.
[122] T1.58.19-23.
[123] T1.58.25-30.
[124] T1.58.42-45.
[125] T1.59.2-5.
[126] T1.59.9-12.
[127] T1.59.16-17.
[128] T1.59.19-49.
[129] T1.60.6-12.
[130] T1.60.14-27.
[131] T1.60.29-39.
[132] T1.60.41-48.
[133] T1.61.1-7.
[134] T1.61.10-21.
[135] T1.61.23-33.
[136] T1.61.35-49.
[137] T1.62.2-12.
[138] T1.62.15-22.
[139] T1.62.26-32.
[140] T1.62.34.
[141] T1.62.39-43.
[142] T1.67.25-46.
[143] T1.68.12-21.
[144] T1.44.39-43.
[145] T1.45.1-30.
[146] T1.45.32-36.
[147] T3.30.3-4.
[148] T3.32.38-46.
[149] T3.32.48 to T3.33.9.
[150] T3.34.8-10.
[151] T3.35.47 to T3.36.44.
[152] T3.37.27-34.
[153] T3.53.32-36.
[154] T3.54.32-38.
[155] T3.59.32 to T3.60.45.
[156] T3.60.44 to T3.61.5.
[157] T3.106.23-33.
[158] T3.107.2.
[159] T3.107.29-34.
[160] T3.107.47.
[161] T3.109.11-12.
[162] T3.109.19-32.
[163] T4.46.22 to T4.47.20.
[164] T4.48.25-38.
[165] T4.48.44 to T4.49.2.
[166] T1.56.38-41.
[167] T1.57.1-3.
[168] T1.59.4-12.
[169] T6.23.21-37.
[170] Exhibit 1, tab 4, page 38.
[171] Report of Dr Duke, 29 October 2019, Exhibit 1, tab 1, page 5.
[172] T5.42.25-49; T5.43.18-25.
[173] T6.81.8-39 per [REDACTED].
[174] T7.6.28-38 per [REDACTED].
[175] T5.53.11. See further discussion of this evidence at [208] to [211] below.
[176] T5.42.26-50.
[177] T5.19.46-48.
[178] T5.53.8-11.
[179] T7.6.28-38.
[180] Exhibit 11, para 1. T4.36.7.
[181] T1.58.40-55 to T1.59.1-10. See also T2.51.5-45.
[182] Exhibit 9.
[183] Exhibit 34.
[184] T2.77.25-35.
[185] T1.46.27-28.
[186] T6.37.35-45; T6.38.5-25; T6.39.1-5; T6.39.10; T6.41.45; T6.42.35.
[187] Exhibits 8 and 8A.
[188] T2.45.30.
[189] T2.84.37 to T2.85.15.
[190] Exhibit 9.
[191] T2.86.41-45.
[192] Exhibit 1, tab 32, page 768.
[193] T5.21.30-33.
[194] T6.53.21-23.
[195] T6.62.34-37.
[196] T7.8.20-28.
[197] T7.29.11-15.
[198] T5.26.1-10; T5.59; T5.60; T5.61.
[199] Exhibit 1, tab 25, pages 402-403.
[200] T2.50.44 to T2.52.18.
[201] See Pell v The Queen (2020) 268 CLR 123.
[202] T2.28.15-20.
[203] The defendant submits that although the plaintiff tried to distance herself from her lie with Dr Quinn, this is inconsistent with her earlier evidence at T2.37.17-21 wherein she describes how she would paint her mother as the villain.
[204] Exhibit 1, tab 8, pages 75-76.
[205] Exhibit 1, tab 2, page 14.
[206] Exhibit 1, tab 33, page 769.
[207] Exhibit 13, page 1.
[208] T1.48.48-49.
[209] T2.87.3-34.
[210] T7.14.22 to T7.15.20.
[211] T2.84.30-45; T2.85.1-15.
[212] T6.41.13-17.
[213] T6.52.13-16; T6.55.18-21.
[214] T6.69.35-37.
[215] T7.29.30-33.
[216] T7.7.44-47.
[217] Exhibit 9.
[218] Defendant’s amended closing submissions, Annexure C, page 45.
[219] Exhibit 9.
[220] At least which is in evidence.
[221] Exhibit 9.
[222] And between the plaintiff’s evidence in chief and cross-examination.
[223] Both as to her family dynamic and the circumstances of the alleged assault.
[224] But also have an impact on the plaintiff’s overall credibility.
[225] The plaintiff’s evidence was that the alleged assault occurred in the morning.
[226] Consistent with the approach in Gersbach v Gersbach [2018] NSWSC 1685 at [395].
[227] Or to consider other options such as unscrewing the lock.
[228] The change in the plaintiff’s evidence from her evidence in chief to her evidence in cross-examination also goes to the plaintiff’s credit.
[229] See discussion of this evidence at [369] to [372] above.
[230] And to be recalled in such specific detail by the plaintiff approximately 24 years later.
[231] Fleming on Torts 11 th Ed at [17.30] and [17.50] at 498-499.
[232] Fleming on Torts 11 th Ed at [17.50] at 498.
[233] Fleming on Torts 11 th Ed at [17.100].
[234] (2023) 97 ALJR 551; [2023] HCA 21.
[235] Kiefel CJ, Gageler, Gordon and Jagot JJ.
[236] At [17]-[19].
[237] At [19].
[238] Prince Alfred College Inc v ADC (2016) 258 CLR 134; 335 ALR 1; [2016] HCA 37 at [83].
[239] Ibid at [68]. See also New South Wales v Lepore (2003) 212 CLR 511 at [213].
[240] Albeit improper modes. See Fleming on Torts 11th Ed at [17.120] at 511.
[241] [2003] 2 AC 366 at 377 [23].
[242] [2020] AC 989 at 1016 [25].
[243] Various Claimants v WM Morrison Supermarkets Plc [2020] AC 989 at 1018 [34]-[35].
[244] [1966] 1 QB 716 at 737
[245] (2016) 258 CLR 134 at 151 [52], referring to Jacobi v Griffiths [1999] 2 SCR 570 at 598 [45], 600 [51], 619 [81], Lister v Hesley Hall Ltd [2002] 1 AC 215 at 229 [25], 235 [45], 237 [50], 241 [59], 244 [65], 247 [75], 249-250 [81]-[82] and New South Wales v Lepore (2003) 212 CLR 511 at 546 [74].
[246] (1949) 79 CLR 370 at 381.
[247] See Prince Alfred College Inc v ADC (2016) 258 CLR 134 at 152-153 [55]-[56].
[248] (2016) 258 CLR 134 at 159-160 [80]-[81].
[249] Fleming on Torts 11th Ed at [17.50] and [17.160].
[250] At [68].
[251] (2016) 258 CLR 134; 335 ALR 1; [2016] HCA 37.
[252] See also statement of the majority at [34] quoted above.
[253] Fleming on Torts 11th Ed at [17.160] at 520.
[254] [2023] VSCA 66 at [132]-[147].
[255] (2016) 258 CLR 134; [2016] HCA 37.
[256] Ibid at [148].
[257] At [153].
[258] At [164].
[259] Plaintiff at T1.68.12-21 and [REDACTED] at T6.61.47 to T6.62.16.
[260] CD admitted this at T5.59.4-8.
[261] CD’s evidence at T5.19.37-49.
[262] [REDACTED] at T7.6.28-38.
[263] Plaintiff’s closing submissions at [83](e), page 16. This is a contentious summary of the evidence.
[264] Prince Alfred College Inc v ADC (2016) 258 CLR 134 at 160 [84].
[265] Exhibit 1, tab 30, page 656.
[266] T5.24.30-42; T5.28.26-38; T5.43.18-25.
[267] FASOC at [8] and Amended Defence at [51].
[268] FASOC at [9] and Amended Defence at [51] and [52]. However, the defendant goes on to contend that the duty does not extend to a duty to prevent intentional or criminal activities.
[269] (1980) 146 CLR 40 at [47].
[270] [REDACTED] T6.42.31 to T6.43.11; [REDACTED] T6.83.41-42; [REDACTED] T7.42.19-24.
[271] Exhibit 1, tabs 37-39, pages 784-1338.
[272] At least.
[273] T6.34.15-17.
[274] T6.38.42-45.
[275] T6.38.47-48.
[276] T6.42.31-34.
[277] T6.42.37.
[278] T6.43.13-14.
[279] T6.43.16-18.
[280] T6.47.40-42.
[281] T6.47.45-48.
[282] T6.48.1-4.
