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

1. [1]

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

2. [2]

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

3. [3]

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

4. [4]

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

5. [5]

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

6. [6]

   These proceedings are governed by the Civil Liability Act 2002 (NSW) (CLA). While the defendant acknowledges that it owed a duty of care to its students, it denies it has breached its duty of care owed to T2 on the basis that the assault occurred sometime after the end of the school day and because it occurred in a park that could not be supervised by any staff. In other words, the defendant admits a duty of care but denies the nature and scope of duty of care alleged. Most of the issues in these proceedings are fiercely disputed. In particular they are, firstly, the nature and scope of duty and breach of duty of care, secondly, causation and finally damages. These issues are complex and difficult.

7. [7]

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

Background

1. [8]

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

2. [9]

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

3. [10]

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

4. [11]

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

5. [12]

   T2 attended the school from January 2015 until October 2017.

6. [13]

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

7. [14]

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

8. [15]

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

9. [16]

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

10. [17]

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

11. [18]

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

12. [19]

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

13. [20]

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

The evidence

1. [21]

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

2. [22]

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

3. [23]

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

4. [24]

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

5. [25]

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

6. [26]

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

7. [27]

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

8. [28]

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

9. [29]

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

10. [30]

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

11. [31]

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

12. [32]

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

13. [33]

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

14. [34]

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

15. [35]

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

16. [36]

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

17. [37]

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

18. [38]

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

19. [39]

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

Credibility of the parties

1. [40]

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

2. [41]

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

3. [42]

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

4. [43]

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

5. [44]

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

6. [45]

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

7. [46]

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

8. [47]

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

9. [48]

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

10. [49]

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

11. [50]

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

12. [51]

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

13. [52]

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

14. [53]

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

15. [54]

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

16. [55]

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

17. [56]

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

18. [57]

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

19. [58]

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

20. [59]

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

21. [60]

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

T2’s school records

1. [61]

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

2. [62]

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

3. [63]

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

4. [64]

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

5. [65]

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

6. [66]

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

7. [67]

   He smashed his phone because his pants were too tight.

8. [68]

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

9. [69]

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

10. [70]

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

XY’s prior bad behaviour

1. [71]

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

2. [72]

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

3. [73]

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

4. [74]

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

5. [75]

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

6. [76]

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

7. [77]

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

8. [78]

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

9. [79]

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

10. [80]

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

T2’s pre-existing medical condition

1. [81]

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

2. [82]

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

3. [83]

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

4. [84]

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

5. [85]

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

6. [86]

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

7. [87]

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

8. [88]

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

9. [89]

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

The meeting at the school on 11 September 2017

1. [90]

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

2. [91]

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

3. [92]

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

4. [93]

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

5. [94]

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

6. [95]

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

7. [96]

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

8. [97]

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

9. [98]

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

10. [99]

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

11. [100]

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

12. [101]

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

13. [102]

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

14. [103]

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

15. [104]

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

16. [105]

    The deputy principal also gave the following evidence:

17. [106]

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

18. [107]

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

19. [108]

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

20. [109]

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

21. [110]

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

22. [111]

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

23. [112]

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

24. [113]

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

25. [114]

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

T2’s pleading – the assault

1. [115]

   In his amended statement of claim T2 pleads:

2. [116]

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

3. [117]

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

4. [118]

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

5. [119]

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

6. [120]

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

7. [121]

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

8. [122]

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

9. [123]

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

10. [124]

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

11. [125]

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

12. [126]

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

13. [127]

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

14. [128]

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

15. [129]

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

16. [130]

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

The bus stop

1. [131]

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

2. [132]

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

3. [133]

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

4. [134]

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

5. [135]

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

6. [136]

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

7. [137]

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

8. [138]

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

9. [139]

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

10. [140]

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

11. [141]

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

12. [142]

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

13. [143]

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

14. [144]

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

15. [145]

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

16. [146]

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

17. [147]

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

18. [148]

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

19. [149]

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

The assault – 16 October 2017

1. [150]

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

2. [151]

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

3. [152]

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

4. [153]

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

5. [154]

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

6. [155]

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

7. [156]

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

8. [157]

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

9. [158]

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

10. [159]

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

11. [160]

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

12. [161]

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

13. [162]

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

14. [163]

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

15. [164]

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

16. [165]

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

17. [166]

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

18. [167]

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

19. [168]

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

20. [169]

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

21. [170]

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

22. [171]

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

23. [172]

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

Experts on liability: Dr Ikin and Mr Meaney

1. [173]

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

2. [174]

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

3. [175]

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

4. [176]

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

5. [177]

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

6. [178]

   It is Dr Ikin’s opinion that the school is responsible for failing to assess and institute policies that would protect vulnerable students like T2 from students who had previously been known to ‘bully’ or be aggressive. She reiterated this view when giving evidence. She opined that the school had failed to accurately assess XY upon his return from a long suspension and that a risk assessment report had not been properly performed.

7. [179]

   Dr Ikin concluded that the Department of Education required schools to provide supervision for the safe passage of students for their journey home. She believed that the school had failed to provide the required level of supervision. Dr Ikin believed that this failure was a contributing factor to the assault of T2, and she stated that, had the bus stop been adequately supervised, the assault would not have occurred or, at the very least, it would not have escalated to the degree of violence that was ultimately inflicted. Dr Ikin also opined that school should have been more “advanced” in developing an anti-bullying policy (CB 11411). Had that occurred, she believed the group of bullies who instigated the assault may never have formed in the first place. It is Dr Ikin’s opinion that the school has failed in its duty of care towards T2.

8. [180]

   The defendant submitted that Dr Ikin was an advocate for T2 putting forward a cause (T704 [20]). While I do not agree with some of Dr Ikin’s opinions, I accept her opinions when she agrees with Mr Meaney’s evidence. I do not accept that she was an advocate for T2.

9. [181]

   Mr Meaney served as a school management specialist for 42 years and was a senior lecturer at the school of education at RMIT University. Mr Meaney has also published several books in the field. Importantly, when asked by me about his bus stop experience, it turned out he was responsible for supervising the bus stop every school day for a period of two years early in his career as a teacher in Scotland. In my opinion, this provided him with practical experience of the behaviour of students while waiting at a bus stop to catch a bus home.

10. [182]

    Initially, Mr Meaney based his opinions on the limited view that the footage provided to him and upon the assumption that T2 had specifically told the police that he was dragged off the bus while boarding it. When giving concurrent evidence, after being showed additional CCTV footage, Mr Meaney gave the following evidence:

11. [183]

    When shown the footage again of T2 being led down the path towards the park where he was attacked, Mr Meaney conceded that the large number of boys following T2 and the other boy with his arm around him, might cause him “some concern” (T573 [10]) and that there was “something untoward” (T573 [20]) about what was shown in the footage. Mr Meaney agreed that he would want to investigate the situation if he was on duty.

12. [184]

    Dr Ikin shared a similar view with Mr Meaney regarding the students in the footage. She too believed it would be a cause for concern (T703 [22])

13. [185]

    When Mr Meaney was appraised of the evidence concerning the prior conduct of XY, who was the instigator and enforcer of the assault against T2, including the details of a former assault that had caused XY’s long suspension, he made further concessions regarding his report and its conclusions. Mr Meaney agreed with T2’s counsel that a ‘risk assessment’ of the student had not been properly performed and that the mitigating factors instituted by the school to keep the student from perpetrating further violent behaviour were not sufficient and had failed as a deterrent (T585; T586 [45]-[10]).

14. [186]

    Mr Meaney also altered his opinion after new evidence was given as to the time both students had attended English class together. Initially, both experts were under the assumption that the class was class eight, being the last class of the day, thereby leaving very little time for XY to gather the approximate 12 boys who were also involved in the assault. The class had in fact been, according to evidence provided by the English teachers, class three or class six. Mr Meaney agreed that that would have given ample time for XY to instigate and organise the assault. It is common ground that XY had time to organise the students in the premeditated attack on T2.

15. [187]

    Dr. Ikin maintained that a teacher had to remain supervising until the last student has boarded the bus. If a student missed the bus, she said she expected the teacher to remain until 4:00pm (T542 [5]-[20]; T543 [35]-[40]). I do not agree with Dr Ikin on this topic. I do not think it is reasonable. I prefer the view of Mr Meaney on this topic:

16. [188]

    The defendant emphasized that we are not just talking about this school but it is what is being suggested be done for high school students in New South Wales (T705 [30]-[35]).

17. [189]

    As to where Dr Ikin and Mr Meaney disagree, I prefer and accept Mr Meaney’s evidence for the reason set out earlier; he had done bus duty every school day for two years, so he had ‘on the job’ experience. He also, rightly, changed his view when he was presented with evidence contrary to the instructions he was given.

Liability - CLA

1. [190]

   The duty of care a school owes to its students is non-delegable. It is common ground that the defendant, a school, owed T2, a student, a duty of care. As stated earlier, the principles of liability and damages are governed by the CLA.

2. [191]

   It is also common ground that the school owed T2 a duty to take reasonable care to prevent injury to him on the assumption he was using reasonable care for his own safety: Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 ; Jones v Bartlett (2000) 205 CLR 166; Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330 (Dederer).

3. [192]

   Sections 5B and 5C of the CLA read,

4. [193]

   The onus lies on T2 to show that ss 5B and 5C have been satisfied. The inquiry in s 5B of the CLA asks what a reasonable person would have done, looking forward from the point of time before the injury, rather than retrospectively at what could have been done to avoid the injury: see Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12.

5. [194]

   In normal circumstances the expectation that T2 would exercise reasonable care goes not merely to the assessment of breach of duty, but is “a specific element contained, as a matter of law, in the scope of the duty of care”: see Dederer at [45] per Gummow J.

6. [195]

   Section 5B of the CLA sets out the necessary, but not sufficient, pre-requisites for liability to arise. Although headed “duty of care”, s 5B is directed toward questions of breach of duty: see Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem (2009) 239 CLR 420; [2009] HCA 48 (Adeels Palace) at [13].

7. [196]

   The effect of s 5C(b) of the CLA is that determining whether reasonable care has been exercised cannot merely involve asking if different conduct could have produced a different outcome: see Mobbs v Kain (2009) 54 MVR 179; [2009] NSWCA 301.

8. [197]

   The test is whether T2 has proved that the defendant, who owes a duty of care, has not acted in accordance with reasonable care: see Derrick v Cheung (2001) 181 ALR 301; [2001] HCA 48. The fact that there were measures that could have been taken to avert or diminish the risk that materialised does not establish breach of duty: see Thornton v Sweeney [2011] NSWCA 244.

9. [198]

   A plaintiff must fail in an action for negligence framed in terms of a failure to take precautions unless the plaintiff shows that a reasonable person in the defendant's position would have taken those precautions: see Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [2015] NSWCA 253 at [50].

10. [199]

    While a school has a duty of care in relation to its students, a school is not absolutely liable for injuries sustained by pupils while they are under the supervision of their teachers. A school is not an insurer of its pupils: see Trustees of the Roman Catholic Archdiocese of Sydney v Kondrajian [2001] NSWCA 308 (Kondrajian).

11. [200]

    The question of what amounts to reasonable care in a given case must be seen in light of the fact that it is neither practical nor desirable to maintain a system of education that seeks to exclude every risk of injury: Kondrajian at [66], see also Wright v Cheshire County Council (1952) 2 All ER 789 per Morris LJ at 796.

12. [201]

    However, the fact that a risk was foreseeable and preventable does not mean it was negligent: see Shaw v Thomas [2010] NSWCA 169. This concept was also succinctly described in terms of occupiers’ liability by Mahoney JA in Phillis v Daly (1988) 15 NSWLR 65 at 74, where his Honour stated:

13. [202]

    T2 submitted that he had attended the school for some years in the lead up to the assault. He did not have major problems with other students at the school. However, a degree of bullying commenced in July 2017, a couple of months prior to the assault. T2’s mother had reported the bullying to the school.

14. [203]

    As to the scope and content of the duty of care, the school should have anticipated that bullying or physical violence could occur at the school and put systems in place to detect and deter it. The school had young people under its control, where impulsiveness, lack of judgement and interpersonal aggression could give rise to a risk of physical or psychological harm to fellow students. As such, supervision of students outside class and in the playground was required, in addition to systems for students to be able to complain and procedures put in place to minimise the risk of aggression and bullying.

15. [204]

    The school ought to have anticipated that those students who used the school bus service were also at risk of harm after school as they aggregated outside the school at the bus stop. This is recognised by other schools. The risk of harm is obvious enough; physical or psychological harm from skylarking, being struck by a vehicle, abduction, physical violence between students or the general risk of public transport.

16. [205]

    Thus, T2 submitted that for a period after school, there is a requirement for the presence of teachers at or near the school bus stops to provide supervision of students, and a resource for students to call upon if they felt threatened. Further, the school ought to have had the capacity to answer telephone calls for a period after school classes concluded to address the safety concerns of students or their parents.

17. [206]

    T2 submitted that there was no systemic policy issue with the New South Wales educational system. There was already considerable case law about whether the duty of care extended beyond the confines of the school premises, in addition to various Department of Education Guidelines.

18. [207]

    T2 further submitted that none of these steps were taken in this case, despite the obvious duty the school had as parens patraie, and the obvious risks posed by the enthusiasm and impulsivity of young students aggregating outside school grounds without the supervision that had been in place since arriving at the school. Therefore, T2 argued, a breach of the duty of care was established.

19. [208]

    T2 was assaulted after the end of the school day that occurs at 3:04 p.m. There was no supervision provided to students as they dispersed at the end of the school day, notwithstanding Department of Education policies and the known violent tendencies of some students.

20. [209]

    One such student, XY, was known to enlist the assistance of other students to carry out attacks on lone students. At the time of the assault, XY had already been given a long suspension. He had just returned from his second long suspension for violent conduct just four days prior to the assault of T2. He was in the same English class as T2. XY had garnered a reputation amongst school staff as an ‘enforcer’. That is, a person ready to use intimidation and violence to lay down the law to others.

21. [210]

    In the months before the attack, T2 had been accused of taking a phone belonging to a friend of XY. T2 was bullied and became fearful of going to school. He told his mother about the bullying. On 6 September 2017, T2’s mother contacted the school and advised them of T2’s concerns. On 11 September 2017, T2 attended school with his mother and older brother, and reported the bullying and named the perpetrators. T2 and his family were assured that, if T2 returned to school, he would be safe.

22. [211]

    On the afternoon of the assault, T2 sought assistance from the school office, but it was locked. He then further contacted his mother, advising he was about to be attacked. His mother then attempted to telephone the school twice but each time her call was unanswered. When the bus was arriving, T2 re-crossed the road, intending to board the bus but he was intercepted by a group of students and taken down a nearby laneway into a park, where he was assaulted and beaten by about 12 students. As a result, T2 suffered physical and severe psychological injuries.

23. [212]

    The defendant denied that T2 had established either a breach of the duty of care or causation. Therefore, negligence under the CLA has not been made out.

24. [213]

    A school is not liable for the illegal acts of student that occur after school hours unless the school knew or ought to have known of facts requiring intervention in order to protect other students.

25. [214]

    The question of whether the school had breached its duty of care turns first on determining whether the risk in question was one of which it knew or ought to have known: s 5B(1)(a). This means the risk must be defined. Before doing so, however, it is essential to determine the scope of the duty of care the school owed. The question also includes whether the duty extends to protection against the deliberate wrongdoing of another student.

26. [215]

    In addition, the scope of the duty that is owed to a primary school child will be different from the duty owed to a high school student. As the student gets older, the demands of the duty of care change. In Camkin v Bishop and another [1941] 2 All ER 713 (Camkin), the UK Court of Appeal considered an appeal by the school from a finding of liability where boys from the school were allowed to help a farmer by working in a field, unsupervised, and one of them was struck so badly in the eye by a clod of earth thrown amongst them during horseplay that his eye was lost. The claim against the headmaster was that he was under a duty to arrange for the supervision of the boys whilst they were doing the work. The appeal succeeded.

27. [216]

    In Camkin, it was relevant to the Court of Appeal's finding that the boys were high school students. Goddard LJ said at 716-717:

28. [217]

    Any duty to take reasonable care required the school to protect T2, or the class of person of which he was a member, from a "not insignificant" risk that could reasonably be foreseen and avoided. The measure of the discharge of the duty, at common law, was what a reasonable person would, in the circumstances, do by way of response to the foreseeable risk: Hackshaw v Shaw (1984) 155 CLR 614. The measure is now prescribed by s 5B of the CLA.

29. [218]

    The inquiry is not confined to what could have been done to eliminate, reduce or warn against the risk. While asking what could have been done will reveal what was practicable, it is necessary to ask also: would it have been reasonable for the school to take those measures? In other words, the knowledge of how T2 actually came to sustain his injury has to be excluded when considering whether the school was obliged to take any precautions in the circumstances.

30. [219]

    A person does not breach his duty of care merely because there are steps that he could have taken to avert the risk that actually materialised.

31. [220]

    As a starting point, T2 must identify, and articulate clearly the "risk of harm" in respect of which it is said the school was obliged to take precautions. Gummow J, in Dederer at [59]-[61] demonstrates that it is only through the correct identification of the risk of harm that an assessment of the reasonable response can be made.

32. [221]

    Here, it would appear that the “risk of harm” was that T2 would suffer injury as a result of being assaulted by XY.

33. [222]

    The first element that T2 must establish is that the risk of harm was foreseeable to the school. Foreseeability is described in the CLA differently from the traditional common law description of something that "... is not far-fetched or fanciful".

34. [223]

    For a risk of harm to be one that is foreseeable under the CLA, T2 must establish either actual knowledge in the school of the risk of harm, or else constructive knowledge, ie, that it ought to have known of the risk of harm.

35. [224]

    There was no evidence that the school had any actual knowledge of the risk of harm: see Youkhana v Di Veroli [2009] NSWSC 942 at [108] to [122].

36. [225]

    The best case T2 can put is that the risk of harm was foreseeable, in terms required by s 5B(1)(a), because the school ought to have known of it.

37. [226]

    The establishment, by T2, of constructive knowledge in the school of the risk of harm necessarily depends upon all of the facts, matters and circumstances that were known to it or else ought to have been known to it.

38. [227]

    It is important to emphasise, however, that knowledge, whether actual or constructive, must be judged as at the date of the alleged negligence and not at a later date. That is, knowledge must be judged without the benefit of hindsight and ignoring subsequent increases in knowledge about the risk and its consequences.

39. [228]

    At the point in time just prior to the assault, there was not the slightest indication that XY would assault T2 in the manner in which he did.

40. [229]

    Looking objectively, there is not a single piece of evidence that would suggest to anyone that XY would have assaulted T2 the way he did on that day.

41. [230]

    Therefore, within the terms of s 5B(1)(a), the risk of harm identified in this case was not a risk of which the school knew or ought to have known. Accordingly, the risk was not foreseeable, and the school therefore cannot be negligent.

42. [231]

    The second step in the analysis required by s 5B is to determine whether the alleged risk of harm was "... not insignificant". This must be judged from the perspective of a person in the school’s position, and in prospect not retrospect.

43. [232]

    The phrase derives from the final report of the Review of the Law of Negligence (the Ipp Report), that was published in September 2002. The Ipp Report, at [7.15], described the recommended change from the common law phrase "... not far-fetched or fanciful" to the statutory test "... not insignificant" in the following way:

44. [233]

    In view of the fact that the assault involving T2 appears to have been a “one off” isolated and random incident, of which the school could not be said to be on notice, T2 cannot show that the risk of harm in this case was one that can be described as "not insignificant". It did not reach that level or order of magnitude. See: Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151.

45. [234]

    Section 5B(1)(c) then requires an analysis of the conduct of a reasonable person, in all the circumstances of the case, when faced with the relevant risk of harm. Any consideration of this element requires attention to the provisions of s 5B(2). However, as the terms of the legislation make plain, s 5B(2) is not an exhaustive list of factors that a court is required to take into account in deciding if s 5B(1)(c) is made out.

46. [235]

    The relevant duty to exercise reasonable care for the safety of school students, depends upon proof that the school knew or ought to have known facts requiring intervention.

47. [236]

    It was not put to any teacher that XY’s suspension should have been extended. It was not put to any teacher that XY should have had any sort of special level of surveillance. Nor was it put to any teacher what further steps should have been undertaken that would have led to any material change.

48. [237]

    It is not suggested what a risk assessment would have contained. It is not suggested what a risk assessment would have done, nor was it put that any teacher that XY should have been expelled prior to the assault on T2.

49. [238]

    T2’s claim in this respect seems to be simply that the school should have had more supervision at the bus stop until 3:30pm. However, the evidence was that there had been no prior incidents at the bus stop. T2 had never seen fights at the bus stop.

50. [239]

    The principal gave the evidence of the system of supervision: see (T279-280, 281, 283, 286, 343).

51. [240]

    Taking these matters into account, what is wrong with the system at the school?

52. [241]

    Looking at situation prospectively, T2 is not able to establish that any of the conduct of the school and its employees was in any way unreasonable.

53. [242]

    In respect to allegations regarding supervision, the defendant's duty of care to a pupil ceases to exist at the school boundary except in exceptional circumstances: Graham v The State of New South Wales [2001] NSWCA 248 (Graham).

54. [243]

    In Graham, the NSW Court of Appeal demonstrated that there are limits to the duty of care owed by a school authority to its pupils. It considered an appeal brought by a then-year seven student, aged 12 years old with poor eyesight and balance, who had suffered serious injury when she was hit by a motor vehicle while crossing the road on her way home from Mount Druitt High School.

55. [244]

    Generally, her mother would walk her home. Her mother asked the school to provide the student with transport if she was unavailable; however, the school declined to do so and notified the mother that it would not provide transport. On the day of the accident, the plaintiff’s mother did not walk home with the plaintiff. The plaintiff was injured crossing the busy road on her way home. She sued the State of New South Wales as the relevant school authority for her loss. She argued that the school owed a duty to transport her home if her mother was not available to walk her home.

56. [245]

    In Graham, the Court of Appeal dismissed the appeal. Meagher JA said:

57. [246]

    In Graham, a crucial factor to the finding in favour of the Department was the fact that the appellant/plaintiff was of high school age, and that the school had informed the plaintiff's parents that it would not transport the plaintiff and that buses were not running. The NSWCA held that the school had discharged its duty by informing the plaintiff's parents and that there is no duty to go further to take precautions to escort a pupil home. It was held that except in exceptional circumstances the master/pupil relationship ceases to exist at the school boundary. This case does not demonstrate exceptional circumstances that would warrant the duty owed by the school to T2 to extend beyond the school boundary. That is, in circumstances where:

58. [247]

    The defendant submitted that T2 fails to satisfy the threshold test applied by the Court in Graham, particularly when the assault took place more than 30 minutes after the bell, and well outside of the boundaries of the school.

59. [248]

    The policies of the Department of Education which have been set out earlier in this judgment have extended the liability of the school after hours and liability goes beyond the school gates.

60. [249]

    In oral submissions the defendant referred to s 5B(2) of the CLA and submitted that the probability of harm would occur if care were not taken was next to zero (T714 [30]-[37]). This is because neither the principal nor T2 had ever seen it happen before. The probability is next to nothing as to the likelihood of the seriousness of the harm is difficult, but the assault can cause serious harm (T714 [30]-[37]).

61. [250]

    As to social utility s 5B 2(d) of the CLA, the defendant submitted that “the social utility the activity’s creating” must be balanced against the burden of doing so. It reasoned that the precautions suggested by Dr Iken would impose substantial cost, requiring staff to supervise “every bus stop… train stop… [and] ferry wharf which is adjacent to the school” at a substantial cost (T714 [39]-[50]). Suffice it to say that, previously indicated, while her opinion is aspirational it is not reasonable.

62. [251]

    It appears that after school sometime, there is a void of 20 minutes as to where T2 was and what he was doing. The defendant set a chronology of what it said were the relevant times after school on the day of the assault (T697 [25]-[30]).

Resolution

1. [252]

   It is common ground that the school owes a duty of care to T2, whether it is vicarious liability or a non-delegable duty, to take reasonable care to prevent injury to him on the assumption that he was taking reasonable care for his own safety.

2. [253]

   The principal gave evidence that no prior assaults at the bus stop had been reported to her. While that is a consideration to be taken into account pursuant to s 5B(1) of the CLA, it may be that an assault or assaults had previously occurred at the bus stop but had never been reported to the school. Just because it is the first time a student was seriously injured, does not mean that a breach of duty has not been established. In analysing the scope and nature of the duty of care, the various guidelines of the Department of Education, previously referred to in this judgment, set out that the duty of care owed in respect of high school students does extend to after school hours and beyond school grounds. The principal was aware of prior violent altercations that had occurred in the park where the assault took place. In these circumstances, I consider there was “a clear and close connection” between the assault on T2 and the school, to use the language of the departmental guidelines (Ex J).

3. [254]

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

4. [255]

   It is Dr Ikin’s opinion that the school is responsible for failing to assess and institute policies that would protect vulnerable students like T2 from students who had previously been known to ‘bully’ or be aggressive. She reiterated this view when giving evidence.

5. [256]

   The principal gave evidence that she had known T2 since 30 January 2015, when he initially enrolled in the school. She recalls that T2 had several interactions with the head teacher for welfare Ms Ethymiades as recorded in T2’s school file. She specifically recalls the school being advised of the murder of T2’s grandfather. The principal also referred to T2’s particular needs at the school as he had been diagnosed with ASD.

6. [257]

   Prior to the assault the principal was aware that T2 had been bullied. On 11 September 2017, a meeting was held with the deputy principal and T2’s mother and T2 where the deputy principal was advised that T2 had been bullied since July 2017. T2 and his mother were advised that if he returned to school, he would be safe.

7. [258]

   The scope of the duty of care owed to T2 was broader than that owed to most other students. This is because of his pre-existing psychiatric diagnoses, which made him more susceptible to bullying, and the fact that the school was on notice of him having been subjected to bullying in the months leading up to the assault.

8. [259]

   Dr Ikin in her report opined that the school in 2017 had not implemented or did not have sufficient policies and processes in place to deter and control bullying. She believed that if the school did have the required policies, the assault on T2 might have been avoided (CB 30021).

9. [260]

   Mr Meaney addressed the school’s bullying policy in his second report, dated 13 July 2023. He disagreed with Dr Ikin. Mr Meaney expressed the view that the school had adequately addressed and implemented the NSW Department of Education’s anti-bullying policy.

10. [261]

    It would be difficult, if not impossible, to have an anti-bullying policy that would eradicate all bullying. I am satisfied that the school had sufficient policies in place to deter and control bullying. The question in this case is not whether the policies themselves were sufficient, but whether the application, or lack thereof, of those policies in practice was sufficient.

11. [262]

    As stated earlier in this judgment, Mr Meaney agreed with T2’s counsel that a ‘risk assessment’ of XY had not been properly performed and any mitigating steps which had been instituted by the school to keep him from perpetrating further violence were insufficient and had failed as a deterrent (T585; T586 [45]-[10]). Dr Ikin opined that the school had failed to accurately assess XY upon his return from a long suspension and that a risk assessment report had not been properly performed.

12. [263]

    The deputy principal gave evidence on the topic. She could not point to a specific document evidencing XY’s risk assessment. I accept that the risk assessment did not need to be one document but could have been a combination of documents, or even a recording in a file note. Aside from conducting an interview with XY prior to his return to the school, no other action was taken. The interview was the only step taken in furtherance of a ‘risk assessment’. The deputy principal considered, as a result of the interview, that XY had demonstrated the requisite remorse to return to the school.

13. [264]

    I understand there is some discretion involved in arriving at a decision as to whether a student should be permitted to return to school after a long suspension. However, as a result of XY’s prior long suspension, school counsellor Sonja Milinkovic and psychologist Linda Harrison (the school counsellors) prepared a document entitled “School Counsellor Suspension Report – 2017”. The authors made the following recommendations in relation to the eventual re-integration of XY into the school:

14. [265]

    The deputy principal was unable to recall or confirm if any of the suggested protocols for XY’s return to the school had been conducted. She could only recall that she had multiple unidentified conversations with XY, who had assured her that he was ready to return. As previously stated, I accept that the deputy principal had one interview with XY prior to his return to the school following his long suspension and that she was of the opinion that his attitude had changed. While the deputy principal was entitled to use her discretion, had she implemented the recommendations of the school counsellors she may well have formed a different opinion.

15. [266]

    Taking into account the defendant's suspension and expulsion policy and the recommendations made by the school counsellors, it is my view that the school failed to undertake a comprehensive risk assessment prior to the return of XY.

16. [267]

    Further, as in State of New South Wales v Mikhael [2012] NSWCA 338 (Mikhael), the school failed to comply with its own procedures in failing to disseminate information to alert the head teachers about XY’s long suspension and his subsequent return to the school. Even if it had put the senior teachers on “high alert” (T713 [11]-[17]), there was an obvious failure from the school to carry out the elevated requirement for monitoring XY’s movements.

17. [268]

    Dr Ikin and Mr Meaney agreed that no schools, in their professional experience, would close their doors for the day at 3:15pm and put the contact telephone through to an unmonitored voicemail, even if that might technically be outside of the ‘office hours’ of the school. Both experts opined that teachers should and would have been available somewhere on the premises of the school. Mr Meaney agreed that a sign would have been helpful in assisting students who were looking for a teacher after hours. Dr Ikin opined that the school phone should have been diverted to a principal or deputy principal so that they could offer assistance. Both experts agreed that it would be bad practice to deny students the benefit of adult support beyond 3:15pm.

18. [269]

    There are any number of reasons why students and/or their caregivers would need to access school staff soon after school finished. The reasons might include a student being hit by a car, a suspicious member of the public approaching students or, like in this case, a student fearing violence from a fellow school student and who seeks refuge inside the safety of school grounds.

19. [270]

    Closing the office immediately after school closed and forwarding the telephone onto a message bank that was unanswered, coupled with an absence of any staff on bus duty, makes it difficult, if not impossible, for students and/or caregivers to seek the assistance of staff.

20. [271]

    What occurred at the bus stop after school hours ended at 3:04pm occurred sometime between 3:17pm and 4:00pm. This was in clear and close connection with the school.

21. [272]

    The experts gave their views about what occurred at the bus stop:

22. [273]

    The scope of the duty of care includes taking reasonable steps to ensure that a school student, such as a vulnerable student like T2, can depart the school in a safe manner.

23. [274]

    In 2001, the Court of Appeal in Graham found that a duty of care to a pupil ceases to exist at the school boundary or at the end of school hours except in exceptional circumstances. Since Graham, times have changed and expectations that students can safely leave school after the school day ended have changed. The Department of Education has issued several guidelines to which I have earlier referred that set out that the duty of care does extend beyond the school gates before and after the school hours.

24. [275]

    In Graham it was stated at [7],

25. [276]

    In my view, since Graham was decided in 2001, teachers performing bus duty has become common place after school finishes. Teachers performing bus duty in high visibility vests no longer constitutes exceptional circumstances.

26. [277]

    Here, given T2 had diagnosed physical and psychological conditions and was previously the subject of bullying at the school prior to the assault, the risk to T2 was reasonably foreseeable. This was heightened by the fact that XY was a known aggressor who had been suspended for assaults in the past and had just returned to school after a long suspension. There were similarities between this previous attack and that inflicted upon T2. Both were group attacks orchestrated by XY and both occurred outside of school hours and off school premises.

27. [278]

    While in the immediate vicinity of the school, XY should have been monitored by senior teachers, such as those who were rostered on bus duty, who should have been informed of XY’s long suspension. However, as they were not present that afternoon, the potential behaviour of XY and the safety of the vulnerable student T2 was not monitored.

28. [279]

    The school was actually aware of both XY’s propensity for violence and T2’s vulnerabilities. During the very month prior to the attack the school assured T2 and his family that if he returned to the school, he would be safe. The scope of the duty of care extended to both taking reasonable steps to protect T2 from further acts of bullying and prevent XY from assaulting other school students who were new targets, such as T2.

29. [280]

    On the balance of probabilities, it is more likely that there was an elevated risk that an assault by XY on another student would occur in the absence of supervision, as it did on the day of the assault.

30. [281]

    The risk was not insignificant as the school had knowledge of XY’s propensity for serious violent behaviour and of T2’s vulnerabilities, which made him a greater target.

31. [282]

    There was no dispute that the attack had been premeditated and was unavoidable by T2. The assault was imminent and well planned, such that no reasonable person in T2’s position could have done more than he did to avoid the situation as it unfolded. While waiting at the bus stop, T2 was told that XY wanted to see him. In response to that information, T2 crossed the road and returned to the school grounds and the administration office within, because he surmised that it would be safe there. It was not because the administrative office was closed, the phones were not monitored, and messages were forwarded to a message bank. T2 alerted his mother via text of the imminent assault at 3:26pm. His mother was also then unable to contact the school prior to the assault occurring. She called the school’s office twice at 3:27 and 3:28pm. Both phone calls went to message bank and remained unanswered. T2 did all he reasonably could have done to avoid the assault. In short, T2 “exercise[d] reasonable care for [his] own safety”: Dederer at [45] per Gummow J.

32. [283]

    On the afternoon of the attack, a mandatory all-staff meeting was scheduled to occur at 3:15pm. I accept the principal’s evidence that the two senior teachers rostered on after-school crossing and bus duty did not need to attend this meeting. However, I have already made a Jones v Dunkel inference that the teachers never attended the Thorney Road crossing and bus duty on that afternoon. Therefore, there were no teachers at the crossing and bus stop to assist any student who may have encountered problems after school while waiting for the bus. Due to their absence, there was no staff there to deter and monitor the threat to T2. T2 could have approached them for assistance, had they been in attendance.

33. [284]

    It is correct that, as the defendant contended, the demands of the duty of care owed to school-aged children will change as they mature. However, this does not imply that, universally, the likelihood of certain harms will reduce in older children. The risk of certain serious harms, such as premeditated group attacks like that inflicted upon T2, will be as great if not greater in older age groups. As such, the duty of care to protect against some harms can increase over time.

34. [285]

    I do not accept the defendant’s submission that, at the time of the assault, there was not the “slightest indication” that XY would assault T2 in the manner that he did.

35. [286]

    XY had a history of poor behaviour that was known to the defendant. Notably, he previously organised and undertook a similar group attack on a fellow student. He was unrepentant as he advised the deputy principal that the ‘bashing’ he inflicted was ‘deserved’ (CB 12553).

36. [287]

    While the assault on T2 was more serious than XY’s prior misconduct, there were nevertheless similarities. Like the assault on T2, XY’s previous violence, for which he received a long sentence:

    1. (1)

       Occurred outside of, but near to, the school;

    2. (2)

       Occurred shortly after school hours;

    3. (3)

       Was motivated by XY deploying his warped sense of justice;

    4. (4)

       Involved XY punching and kicking the victim; and

    5. (5)

       Escalated to the point that a passerby had to intervene. (CB12543 and T373 [12]-[50]; T374 [1]-[45])

37. [288]

    T2 had a recent history of being bullied, to the point that during the month prior to the attack, the school had to assure him and his mother that he would be safe if he returned.

38. [289]

    As T2 was in XY’s English class, XY would have been aware that T2 had a psychological or psychiatric condition and that because of this, he was a vulnerable student.

39. [290]

    Against this background, it cannot be said that there was “not a single piece of evidence” that XY would have assaulted T2 on the manner that he did. If proper care were not taken by the defendant, it was reasonably foreseeable that such harm would occur.

40. [291]

    It is my view that the probability of harm, as a forward-looking assessment at the time of the assault, was a significant one. It is a sad reality that physical bullying occurs in the context of schools. Here, the school knew that XY was a physical aggressor and had dealt with his bullying previously. Without active steps taken to address his previous misbehaviour, there was always a likelihood that his conduct could continue, if not escalate, as it did here. Further, there is a heightened risk of physical bullying in and around the school immediately after school hours, when students are left on their own accord to congregate and mix together. In these circumstances, the probability of harm if the school did not implement supervisory measures and provide a safe place to resort to after hours for a period as students dispersed and the buses had left, was a significant one.

41. [292]

    The injuries suffered from a single attack by fellow students can be life changing. For instance, in Mikhael, a single hit to the head resulted in the plaintiff suffering from brain damage. T2 was not the first victim of XY. For any student, particularly those with pre-existing psychiatric conditions like T2, the infliction of a physical assault by a group of students will likely lead to long-term developmental challenges, undermining their self-confidence. Therefore, it is my view that the likely seriousness of harm, if no preventative action were taken by the school, ranks as high.

42. [293]

    T2 identified the social utility as being the supervision of students managed by the school. The failure to administer competent and responsible supervision can lead to acts similar to that inflicted upon T2. Specifically, counsel said in closing submissions.

43. [294]

    The defendant submitted that the social utility of extending a duty of care beyond the school gates would be offset by placing an unwarranted burden on public schools. However, it is my view that the burden to the school would be low when weighed against the significant public utility that it would serve. I base this on the principal’s evidence, who stated that of the school’s 1400 students, approximately 70 used the bus stop. The staffing of two teachers on bus duty for the time period during which students left the school would represent only a limited staffing burden, over approximately 15 minutes, when weighed against the significant social utility that this would serve. The teachers would act as a deterrence to poor behaviour by students and they would have been in a position to pay particular attention to the vulnerable students, like T2, and aggressors, like XY.

44. [295]

    Teachers could intervene upon observing vulnerable students, such as in the situation of T2 being escorted from the bus in the manner he was. On the afternoon of the assault, nine students got on the bus that T2 usually caught. In addition, it can be seen on the CCTV that there were about 13 students a few metres away from the bus door. If the teachers had been present, the presence of an unusual number of students standing near the bus and not boarding would have been most unusual. There was earlier evidence that only approximately four students caught that bus. Both experts and the principal gave evidence that if the behaviour of XY and his followers were observed, they would have intervened.

45. [296]

    Similarly, ensuring that the school office was staffed until 4:00pm or such time as students had dispersed would have provided T2 a safe place to avoid the impending assault. These steps would protect against a variety of additional risks including, but not limited to, the risk of collision with a motor vehicle and skylarking between students where a school student could be injured. Further still, if the phone calls were monitored by a staff member until 4:00pm, the risk of harm to T2 could have been avoided through intervention.

46. [297]

    It is my view that both ss 5B and 5C of the CLA are satisfied. It is uncontroversial that a school has a duty of care towards its students. Hence, T2 has established that the defendant has breached the duty of care, as set out earlier, that it owed to him. The next issue to be determined is one of causation.

Causation

1. [298]

   Sections 5D and 5E of the CLA set out the relevant tests for causation: Adeels Palace at [41], [44]. The onus to prove causation is upon T2.

2. [299]

   Sections 5D and 5E of the CLA read,

3. [300]

   As the High Court explained in Wallace v Kam (2013) 250 CLR 375 (Wallace) at 383:

4. [301]

   In order to succeed, T2 must show that it is more probable than not that, but for the breach, the “particular harm” that materialised would not have been suffered. This involves two elements: “factual causation” and “scope of liability”: see Adeels Palace at [42]; Wallace at [12].

5. [302]

   Determination of factual causation under s 5D(1)(a) is a statutory restatement of the “but for” test of causation. That determination is “entirely factual, turning on proof by the plaintiff of relevant facts on the balance of probabilities in accordance with s 5E”: Wallace at [14]. To prove that a change in circumstances might have made a difference does not alone prove factual causation: Adeels Palace at [50].

6. [303]

   The determination of “scope of liability” involves a value judgment (Wallace), as does the determination of “factual causation”: see Paul v Cooke (2013) 85 NSWLR 167; [2013] NSWCA 311 at [11].

7. [304]

   It must be established on the balance of probabilities that but for the negligence of the defendant, T2 would not have been assaulted and injured.

8. [305]

   Causation could be established two-fold. Firstly, relating to the school’s failure in performing a proper risk assessment before XY was permitted back into the school.

9. [306]

   Secondly, in the school’s failure to properly supervise and provide adult assistance to students during their home departures or in a time of need.

10. [307]

    It is no answer to say that XY would have found another opportunity to lead others in an organised attack on T2. He was able to organise the attack in the way that he did because he knew about, and took advantage of, the weaknesses in the school’s system. Specifically, he took the opportunity presented to him by the defendant’s failure to supervise the departing students onto the bus.

11. [308]

    The defendant submitted that T2 was unable to establish factual causation. Mikhael is applicable.

12. [309]

    In Mikhael, the plaintiff brought a claim in negligence in relation to injuries he sustained when he was assaulted by a fellow student, identified as ‘T’, at a state high school on 5 December 2008.

13. [310]

    T had been involved in a previous assault following a touch football game some six weeks prior to the assault. T had struck another student from behind and inflicted injuries sufficient to warrant an ambulance to be called. T was suspended for four days.

14. [311]

    On 5 December 2008, the plaintiff and T attended a school class and were involved in a disagreement over a worksheet that required intervention by the teacher. Following the class, the plaintiff stayed behind with the teacher and another student as he was apprehensive of further problems with T.

15. [312]

    At the teacher’s direction, the plaintiff left the classroom. When he left, the plaintiff was hit on the left side of his head by T, causing a significant injury including brain damage. The teacher in charge of the class was also the head teacher for welfare and during the course of giving evidence confirmed that while she was aware of the previous assault, she had not received any formal notification from the school regarding T’s propensity for violence following minimal provocation.

16. [313]

    The initial proceedings in Mikhael were heard in the District Court of NSW by Sorby J. The plaintiff alleged that the defendant had breached its duty of care by failing to adhere to its own procedures and provide teachers with information regarding the previous assault and T’s propensity to violence, even if provoked by a minor event. His Honour held that the school had breached its duty of care and had been negligent in failing to take adequate precautions to prevent harm to the plaintiff.

17. [314]

    The school appealed the decision on the grounds that the primary judge had erred in finding the school had breached its duty of care to the plaintiff, had failed to undertake any analysis, and made no finding on causation.

18. [315]

    Upholding the appeal, the Court in Mikhael accepted that the school did not comply with its own procedures in failing to disseminate information on the nature and extent of the first incident, and this constituted a breach of its duty to take reasonable care for the safety of the student. However, the onus was on the plaintiff to prove factual causation, which required a determination under s 5D of the CLA of the probable cause of events had the teacher been informed of the fellow student’s propensity to violence.

19. [316]

    It was held that in the case of negligent omissions, ‘but for’ causation is not made out by the suggestion of a possible outcome should some alternate course have been taken. Rather, the Court had to be satisfied that on the balance of probabilities the precautional relevant step that ought to have been taken would have averted the risk of harm. Even where there is no direct evidence of the necessary causation connection between breach and harm, a court is not precluded from drawing appropriate inferences if the underlying evidentiary basis for doing so is established.

20. [317]

    In Mikhael the plaintiff accepted that if all that had happened in the classroom was a minor disturbance, then there would be no causal link between the school’s omission to inform his teacher of the previous assault and the subject assault. However, the plaintiff contended that there had been an angry exchange with swearing and therefore submitted that the teacher would have realised that T had once again become very angry. Had she known that T could be “set off” and that his reaction could be out of proportion to the incident, she would have done something about it.

21. [318]

    In dealing with the above submissions, Beazley JA noted that:

    1. (1)

       the plaintiff’s teacher was experienced, and her responsibilities included the position of head of welfare. She was also familiar with T and his general behaviour, and it was noted that T was ordinarily a student who applied himself to his work, was well behaved and was generally compliant with directions and instructions. Having dealt with the classroom ‘tussle’, she made a professional assessment that the incident was over and that there were no ongoing anger management issues with T;

    2. (2)

       the principal’s assessment was also that T had been an exemplary student up to the time of the first incident and it was her opinion that he would not re-offend;

    3. (3)

       the evidence did not suggest that, but for the failure to separate T and the plaintiff, the assault would not have occurred;

    4. (4)

       even if the plaintiff’s teacher had counselled T following the classroom tussle, the most that could be said is that the outcome might have been different as T may have assured the teacher that he was not angry, when in fact he was quietly seething and intent on doing harm to the plaintiff.

22. [319]

    In the absence of such evidence, Beazley JA, noting that the Court is not entitled to speculate as to what the teacher’s evidence may have been, therefore concluded that the plaintiff did not establish factual causation.

23. [320]

    Returning to the submissions in these current proceedings, both parties agreed that there is no doubt that this was a pre-meditated assault by XY.

24. [321]

    However, to constitute ‘but for’ causation it is not sufficient that there simply be a suggestion of a possible outcome should some alternate course have been taken. The Court must be satisfied that on the balance of probabilities the precautional relevant step that ought to have been taken would have averted the risk of harm.

25. [322]

    On XY’s return to school, what was or was not done as a precautional relevant step that ought to have been taken would have averted the risk of harm.

26. [323]

    T2 claims a breach of duty of care by failing to have a record named a “risk assessment”. There is simply no evidence as to what would have been the change on come had one existed.

27. [324]

    Returning to the current proceedings, after school on 16 October 2017, what was or was not done as a precautional relevant step that ought to have been taken would have averted the risk of harm.

28. [325]

    If a teacher was present, XY may have got onto T2’s bus and followed him home. Previously, XY had sought the address of the person allegedly responsible for racial taunts. If a teacher was present XY may have waited until the next day to assault T2. There is no evidence that T2 would not have gone with the boys even if a teacher was present.

29. [326]

    There is an obvious question as to what, if any difference, additional supervision would have made and at what point it ought to have ceased, noting the likelihood that XY would have simply waited until that point to orchestrate his attack. This is particularly so given that the CCTV footage of the bus stop depicts T2 leaving the bus stop and walking with the group of boys voluntarily without any apparent distress.

30. [327]

    I pause to observe here, that the defendant has made a reverse Jones v Dunkel submission: see Ferrcom Pty Ltd v Commercial Union Assurance Co of Australia Ltd (1993) 176 CLR 332 (Ferrcom). The defendant submitted the following on the application of Ferrcom,

Consideration

1. [328]

   On the issue of causation, the Court must be satisfied that on the balance of probabilities the precautional relevant step that ought to have been taken would have averted the risk of harm.

2. [329]

   The school was aware of XY’s propensity for violence. The teachers had been asked to monitor his interactions and had been placed on “high alert” (T713 [15]). The school gave XY a ‘blue book’ so each of his teachers could note comments on his behaviour in their class. The school was aware that XY had a record as an ‘enforcer’ who sought out new victims. The teachers ought to have monitored XY’s behaviour closely, especially as he had just returned to school from a long suspension.

3. [330]

   The school was also aware that T2 had been bullied in the past. Staff knew that T2 was a vulnerable student as he was diagnosed with ASD and ODD. The supervising teachers were, or alternatively ought to have been, aware that there was a high risk he would become the subject of bullying. Therefore, the school owed a duty to take reasonable care that T2 was not being bullied.

4. [331]

   There was a strong possibility that T2’s vulnerability and XY’s susceptibly to violence would converge after school, especially in the absence of supervision.

5. [332]

   With respect to factual causation, it is my view that had the head teachers who had been rostered actually been present at the Thorney Road crossing duty, their presence would have likely been a deterring factor to the group of students from congregating at the bus stop and then being able to take T2 away from the bus stop to the park or elsewhere where they were able to assault him. Further, had teachers been available at the crossing at the time, T2 could have sought their assistance.

6. [333]

   The school should have been aware that the administration office was closed after 3:04pm. Any student seeking assistance from staff at the office, such as T2, would not have a safe place to go given the absence of administrative staff and the fact that the phone was sent to message bank. Without a means of contacting staff, students would remain at risk.

7. [334]

   If teachers were on crossing duty at the time when T2 went to the office, as they should have been, T2 could instead have sought those teachers’ assistance. The fact that T2 sought safety at the school administration office was factually causative to T2 being assaulted. T2 had no safe place to go and the best he could do, which he did, was message his mother. At the very least, considering that T2 was blocked from boarding his bus by a sudden gathering of 12 or so students at about 3:27pm. This should have raised high suspicion on the part of the supervising teachers that the situation needed their immediate intervention.

8. [335]

   While the defendant submitted there were only four or five students who normally caught the same bus as T2, the CCTV footage shows that of the students waiting at the bus stop, nine students boarded the bus.

9. [336]

   This case differs from Mikhael. There, in the immediate lead-up to the assault, a teacher was present and able to make an ultimately ill-fated “professional assessment that the incident was over and that there were no ongoing anger management issues with T” (at [98]).

10. [337]

    In the present proceedings, the school failed to conduct a proper risk assessment of XY, there were no teachers on bus duty to act as a deterrent or be able to intervene as T2 was led away from the school’s vicinity and the administration office was closed. This was in circumstances where T2 was at a high risk of bullying due to his psychiatric diagnoses and XY had a prior history of assaulting other school students. The principal, Dr Ikin and Mr Meaney all said that, had they seen what occurred at the bus stop, they would have intervened.

11. [338]

    In Mikhael the principal had undertaken an assessment of the perpetrator after the first incident, and as a result arrived at the opinion that he would not re-offend. In these current proceedings, the deputy principal did not follow any of the recommendations of the counsellors. Had she done, it is my view that XY would not have been allowed back to the school until he started the RAGE program and undertook the various recommendations. It is likely that undergoing these recommendations would have given him insight about the underlying causes of his prior violence and he would have been taught skills to defuse his anger.

12. [339]

    If any or all of these reasonable precautions were taken, in all likelihood the group attack of T2 would not have occurred. While it was suggested by the defendant that XY would nevertheless have followed T2 to his address some 40 minutes away, he would have needed to catch T2’s bus to do so. It is unlikely that he would have maintained his rage for an extended period of time. It is even more unlikely still that he could have coordinated a large group of co-attackers to travel that distance on a bus to inflict violence upon T2.

13. [340]

    In my view, any one or a combination of the above omissions establishes factual causation. The various breaches of the school’s duty of care enabled the assault on T2 to proceed in the manner that it did and were a necessary condition to the assault.

14. [341]

    In relation to the scope of liability test, s 5D(4) of the CLA provides:

15. [342]

    An assessment under s 5D(1)(b) involves an holistic approach of all the facts and making a value judgment about whether the scope of liability ought to extend to the defendant’s conduct.

16. [343]

    There has been long-standing acceptance of the particular responsibility that schools owe to their students, as demonstrated by the development of the loco parentis principle over time. Where a parent sends their child to school for the day they should be entitled to expect that teachers to take all reasonable precautions to prevent physical, foreseeable harm being inflicted upon their children. As discussed previously, the NSW Department of Education accepts and expects that the duty of care owed to students extends beyond the school gates.

17. [344]

    It is my view that legal causation has been established. The school failed to meet its duty of care not just in one respect, but in several respects. These failings heightened the risk of harm to T2 and, in totality, enabled the assault on him to occur in the manner that it did. It is appropriate that the scope of liability extend to the school in this case. As I stated earlier, even if not every individual failing of the school were present, the remaining omissions were sufficient to justify a finding of causation.

18. [345]

    As to whether or not responsibility for the harm should be placed on the school, one of its paramount duties is to keep school students safe. In my view, it is reasonable that the school should keep its administration office open until 4:00pm, ensure that senior teachers turn up to bus duty until students’ buses depart and properly monitor both violent and vulnerable students. If any one of these actions were undertaken by the school, it would be a safer place for its students.

19. [346]

    Breach of duty of care and causation have been established. The assault caused T2 to suffer physical and psychological injury. Therefore, I find that negligence is established.

20. [347]

    After the assault, T2 started at a new school, Ashcroft High School. Even though he describes feeling good when he started, he stopped attending because he felt unsafe and due to his earaches.

21. [348]

    The assault, and the bullying that preceded it, changed everything for T2. On 20 June 2017, before the assault, the school noted that “T2’s attendance has dropped below an acceptable level” (Ex 9, tab 3, page 4). After the assault, he stopped going to school altogether. He retreated to his room, put on weight, and required medications and other treatments. About 12 months after the assault, film of it appeared on social media. Understandably, when the video was shown to the witness, T2’s mother took the opportunity to leave the courtroom.

22. [349]

    T2’s evidence is that following the assault he would get headaches and earaches. He had never experienced similar issues before the assault. T2 also recalls struggles with his hearing for a period. Following the assault, T2 had significant difficulties leaving the house and going outside. He was nervous and scared that something might happen to him again. His confidence had eroded, and he was reluctant to go anywhere with a large crowd of people. Now most of his time has been spent playing games on his computer or PlayStation in his room. During cross examination, T2 attributed wanting to stay at home and play video games due to his PTSD (T179 [50]). On the positive side, T2 enjoys fixing things around the house and likes to use tools.

23. [350]

    T2 said that at present, he helps his mother with chores around the house, including doing the dishes and cleaning the house. His reading and writing levels are below average and he is not interested in books. T2 prefers maps and geography. He had hoped that one day he could travel to a different country, like the United States of America, but no longer thought this was possible after the assault. T2 is worried about seeing XY again. He would like to move away from where he lives. T2 has gained substantial weight and says that he is unable to play sports anymore or go swimming because of his ear. T2 feels very bored with his life and mostly plays PlayStation all day. He hopes that one day he might be able to get a job but is concerned that someone will have to transport him as he does not drive.

24. [351]

    T2 provided a second evidentiary statement dated 14 August 2023, updating his current situation.

25. [352]

    T2 continued to reside with his mother and his sister, Maddison. He attended an NDIS provider named Jacob once per week for one hour in a session called ‘ability options’. Jacob helped T2 deal with his anxiety and fears concerning meeting new people. T2 found it hard to go and see Jacob and did not like going.

26. [353]

    With Jacob’s assistance T2 applied for, and was accepted into, TAFE, however he did not go. He gave evidence that he was scared to leave home and travel all that distance to end up in a classroom of people he did not know. T2 said that he liked and trusted Jacob. He believed that if Jacob could travel with him to TAFE and help him assimilate, he would feel more comfortable taking classes. Jacob, however, moved away from ‘ability options’ and an NDIS worker named Jess has taken his place. As at 14 August 2023, T2 was unavailable to meet Jess during the week of their scheduled session because his mother was admitted to hospital.

27. [354]

    As previously stated, T2 rarely goes out. He maintains social media accounts but does not use them. He said that in the home, his mother does most of the cooking and the cleaning. While his mother is in hospital, he and his sister prepare their own meals. T2 is able to heat up food in the microwave for dinner, make himself a sandwich for lunch and wash up his dishes.

28. [355]

    T2 will assist his mother from time to time with the shopping, but they deliberately pick times to go when they know the shops will not be busy. He will ask his mother to take him to the shops when he needs to go. If she is unable to take him, he will ask his friends, Gavin or Rourke. Gavin has since moved to Newcastle.

29. [356]

    T2 has been to the pub a few times together with Gavin and Rourke. He also goes fishing on occasion with his Gavin (T177 [30]-[45]). Gavin took T2 to a movie. He did, however, qualify in cross examination that the movie was a one-time thing (T178 [30]-[35]). They chose to go in the afternoon when they knew that there would not be many people at the cinema. T2 has also stayed at Gavin’s house in Newcastle.

30. [357]

    T2 does not see his brother, Bradley, often. He says that on occasion he will play with Bradley’s children in the back yard or in the park. He does not recall visiting Bradley’s house at all this year.

31. [358]

    T2 says that he has maintained a good relationship with his father and an okay relationship with his father’s wife. He stayed at his father’s house three times during the past year. However, I am sceptical of T2’s description of the relationship given that T2 did not want his father to give evidence.

32. [359]

    T2 thinks he might be able to work with his father driving forklifts but believes he would need to go to TAFE to obtain a forklift licence. Now, T2 is learning to drive. He has obtained his L plates with his mother’s assistance. He did not like the man who was teaching him to drive so his mother teaches him.

33. [360]

    T2 maintains a bank account and a bank card, transferring money using an application on his phone. T2 will give his mother his bank card or will transfer her money when he wants to buy something. He rarely uses an ATM. T2 is struggling to save any money. He says that he uses it for the family dog and gives money to his mother to help with the house bills. T2 is aware that he is getting a disability support pension but is unaware of how much money he receives.

34. [361]

    T2 has a gym membership but does not attend. T2 regularly fights with his sister, Maddison. T2 says that he is not on any current medications. He does not see his general practitioner (GP) but does visit an ear, nose and throat specialist (ENT) (T179 [15]).

35. [362]

    T2’s mother provided details regarding her health and her diagnosis of a second aneurism and intercranial hypertension. She expressed fears that if something were to happen to her, T2 would not be able to take adequate care of himself.

36. [363]

    T2’s mother also has a carer, having suffered a brain aneurysm in 2015. She also has other health concerns. It may become a reality that T2’s mother will be unable to care for him in the future.

37. [364]

    After the assault, T2’s mother recalls that he suffered from multiple injuries, including three blood clots in his head, a fracture of the mastoid bone and issues with bleeding in his ears. She describes T2’s psychiatric state as having deteriorated.

38. [365]

    T2’s mother stated that he was still living with her and his sister. He spent most of his time in his room and would become violent and emotional on occasion. T2 was offered a position at TAFE but refused to go, worried that he might be assaulted again. He had been provided with an NDIS package but had not been able to use it because of COVID-19 restrictions. This should have now changed. She recalls that he would not take public transport unless accompanied.

39. [366]

    In November 2021, T2 had surgery that improved the pain in his ear for a period of one year. However, his ear condition deteriorated in October 2022, and he was placed back on medication.

40. [367]

    In her third and final evidentiary statement 14 August 2023, T2’s mother gave a further update as to his condition. According to her, T2 has made little to no progress over the years since the assault. T2 has not forged any new relationships over this period. On rare occasions, his old friend Gavin still visits him from Newcastle and takes him fishing. T2 continues to spend most of his time isolated with his dog. He still spends most the day playing PlayStation, neglects to walk his dog and is often very unhappy. He predominately eats unhealthy junk food and does not exercise.

41. [368]

    T2 has not participated in Christmas for a few years and does not have an amicable relationship with his sister. According to his mother, T2 and his sister view their relationship differently. While T2’s sister, Maddison, says they have fights, she considers this normal behaviour between siblings who live in the same residence. She confirms that T2 still refuses to use public transport and on the rare occasions that he does, he is anxious, stressed and fidgety. T2 is still driven to and from medical and other appointments by his mother. Maddison’s evidence is that T2 has shown interest in having a job but does not think that he is capable because of the assault. She says that T2 often tells her that he is ‘stupid’ because he could not finish school, and he could not finish school because he was assaulted. He attributes much of his current situation to the assault.

Evidence of Bradley – T2’s stepbrother

1. [369]

   Bradley, T2’s stepbrother, provided a statement on 3 February 2021. He is an NDIS worker. He gave evidence and was cross examined.

2. [370]

   In this statement, Bradley outlined his relationship with T2. His view is that T2 had previously been relatively high functioning despite his autism. He describes T2 as “very switched on” prior to the assault (CB 20042). Bradley believes that T2 deteriorated after the assault and displayed significant stress and anger towards others. He observed that T2 became isolated and would often have outbursts of anger. When Bradley was challenged on the stand as to the sincerity of his opinion about T2’s behaviour before and after the assault, he maintained his position.

Evidence of Maddison – T2’s sister

1. [371]

   Maddison provided an evidentiary statement dated 17 August 2023. She gave evidence and was cross-examined. At the time of the trial, Maddison had just graduated from Macquarie University with a psychology degree.

2. [372]

   Maddison spoke about her relationship with T2. She said that they were not speaking but she described that as a normal relationship between siblings. She expressed that T2 had changed since the assault, after which he rarely left the house. She described him as being avoidant, easily overwhelmed and sensitive to loud noise.

3. [373]

   She described taking T2 to the pub on his birthday with the rest of their family for a meal. She said that T2 grew anxious and wanted to leave as soon as they had arrived. T2 got into an argument with his father and eventually left the birthday party.

4. [374]

   Maddison said that T2 asks their mother to do everything for him at home, and that he avoids any cleaning or housework in general.

5. [375]

   Maddison is of the opinion that T2 could have commenced an apprenticeship had he not been assaulted but now was definitely unable to undertake an apprenticeship because of the assault. This, she said, was because T2 would become stressed in a work environment and as a result that he would become aggressive, agitated and lash out at his colleagues.

Treating doctors and medico-legal expert reports

1. [376]

   The following individuals have given expert medical reports or provided other medical evidence.

2. [377]

   Dr Patrick Krakovsky is a GP and T2’s treating doctor at the First Care Medical Centre in Busby (the medical centre), where T2 has been a patient since 2003. He issued a medical certificate certifying that T2 had no history of ear infections prior to the date of the assault.

3. [378]

   Dr Vincent Sundrasingham is a GP at the same medical centre. At times he was the treating GP of T2. He is the author of the following documents:

   1. (1)

      Letter dated 18 November 2022, where Dr Sundrasingham expressed his opinion that T2 needs more NDIS funding assistance due to “his multiple disabling conditions which are persistent” (CB 40180). Attached to that letter is:

4. [379]

   T2 relies on the expert medico-legal opinions Dr Thandavan Raj (an ENT); Dr Chris Rikard-Bell (a child, adult and family psychiatrist); and Mr Byrnes (an occupational therapist). The defendant relies on the expert opinions of a different set of witnesses: Dr Doron Samuell (a clinical and forensic psychiatrist); Ms Piebenga (an occupational therapist); and Mr Matthew Henricks (a vocational psychologist).

5. [380]

   Dr McDougall is a staff specialist in neurology; Mr Davies and Ms Argaet are clinical audiologists. All three work in the neurophysiology department of Liverpool Hospital and prepared written reports.

6. [381]

   In an audiological assessment dated 8 May 2019 and addressed to Drs Chang and Hwang, Dr McDougall and Mr Davies observed mild to moderate conductive hearing loss in T2’s right ear.

7. [382]

   By letter dated 11 February 2021 addressed to Drs Chang and Seneviratne, Dr McDougall and Ms Argaet detailed their audiological review of T2’s hearing following surgery in November 2020. The results showed significant improvement in hearing, albeit with moderate severe hearing loss at higher frequencies.

8. [383]

   Dr Robert Chang is an ENT who saw T2 at Liverpool Hospital. In his letter dated 3 November 2021 and addressed to Dr Sundrasingham, Dr Chang provides a report on revision surgery undergone by T2 due to a recurrence of cholesteatoma in his ear.

9. [384]

   In a letter dated 6 August 2020 and addressed to T2’s lawyers, Dr Chang provided a brief recount of his prior consultations with T2 about his ear and responded to 10 questions raised by the lawyers.

10. [385]

    Dr Raj is an ENT who was engaged by T2 to prepare three expert reports concerning T2’s physical injuries. He was not called to give evidence.

11. [386]

    There are 12 photographs depicting injuries to T2’s right ear after the assault (Ex D). The photographs show his right ear had been bleeding. There is redness behind T2’s left ear, on the left side of his forehead and above his right eye. Between the back of his ear to his hairline is red and it appears as though he may have been trodden on as it looks like marks from the sole of a shoe. I take these injuries into account when assessing non-economic loss.

12. [387]

    Dr Raj said that that on the balance of probabilities it is possible that the assault caused:

13. [388]

    He finally opined that there was no permanent damage to T2’s left ear, but he did undergo an ear operation.

14. [389]

    The first of Dr Raj’s reports is dated 9 October 2020. It addressed ear injuries suffered by T2, including the nature, cause and extent of these injuries, his continuing disabilities, the details of the treatment received and appropriate future treatment, and the impact of these injuries on T2’s education and future employability. In a supplementary report dated 31 March 2022, Dr Raj revised the diagnosis he provided in his first report. In his third report, dated 17 May 2021, Dr Raj addressed the possibility that the assault “caused [a] previously asymptomatic cholesteatoma to become symptomatic” (CB 40178).

15. [390]

    In the first of these reports, Dr Raj noted that T2 had suffered from recurrent infection of the right ear, and that all the evidence indicated that this was a middle ear pathology caused by the assault. He opined that the assault resulted in an “unexplained fluid collection in the middle ear and mastoid, which became infected and resulted in a chronic middle ear infection with polyp formation” (CB 40170). This resulted in conductive hearing loss, but Dr Raj was confident that a mastoid operation “would clear the infection and, in all likelihood, the conductive deafness will be corrected”. Accordingly, he concluded that the prognosis regarding the ear infection was “good” and that any adverse effect on T2’s educational achievement and employability would arise due to his “current mental and emotional states” rather than his ear pathology (CB 40171-2).

16. [391]

    In his second report, Dr Raj revised his previous diagnosis. He stated that the current diagnosis was “right chronic middle ear disease due to cholesteatoma”, and that the assault “ha[d] not caused this condition” (CB 40174). That is, the occurrence of the infection after the assault was merely “coincidental”, and the infection would have occurred even if the assault never took place. In this report, written after T2 underwent surgery on 24 November 2020, Dr Raj noted that his prior opinion that the conductive deafness could be corrected had been vindicated and that the infection was expected “to settle entirely”. He therefore upgraded T2’s prognosis with respect to the ear injury to “excellent”.

17. [392]

    In his third report, Dr Raj addressed whether, on the balance of probabilities, the assault and subsequent treatment or infection could have made a previously asymptomatic cholesteatoma symptomatic. Dr Raj’s somewhat Delphic answer to this question was:

18. [393]

    After surgery, Dr Raj expected T2’s ear condition to settle entirely.

19. [394]

    Dr Melvyn Polon is a consultant paediatrician who saw T2 on 20 July 2020. He diagnosed T2 with ASD (then known as Asperger’s syndrome) from when he was a child.

20. [395]

    In his letter dated 17 August 2020 to T2’s lawyers, Dr Polon provided a general account of T2’s medical history. He examined T2 on 20 July 2020, observing that T2 had suffered post-traumatic stress stemming from his assault. He identified features of depression, anxiety and panic attacks. Dr Polon recorded T2’s need for ear surgery, and the worsening of his autism disorder from level one to two to level two to three. This is most relevant to the topics of non-economic and economic loss.

21. [396]

    According to ‘Autism Aspergers Advocacy Australia Levels of autism: Everything you need to know’ (Ex 7 (pages 3-4)), level one of ASD refers to mild autism and requires support. That is not relevant here. Level two of ASD is referred to as the middle level. People with this diagnosis need more support than those with a level one diagnosis. They have more severe social deficits that make holding a conversation very challenging. Even with support, they may struggle to communicate coherently and are more likely to respond inappropriately to others. They speak in short sentences or only discuss very specific topics. These individuals may have issues with nonverbal communication and might display behaviours such as facing away from the person with whom they are communicating. People with level two diagnoses may have inflexible behaviours that can interfere with daily functioning. They typically do not cope very well with changes, which can cause them significant distress.

22. [397]

    Level three is the most severe autism diagnosis. People with level three diagnoses have significant impairments in their verbal and nonverbal communication. They often avoid interactions with others, but they may interact in a limited way if they must respond to others or communicate a need. Their behaviours are highly inflexible and repetitive. They may react strongly to changes and become highly distressed in a situation that requires them to alter their focus or task. These individuals require very substantial support.

23. [398]

    Dr Sam Nassar is a specialist paediatrician at “Kids Clinic”. In his letter dated 3 October 2017 (about two weeks prior to assault), addressed to a Ms Daisy Sequeira, Dr Nassar recommended T2 receive “psychology intervention for behaviour/mental assessment and modification” (CB 40195).

Damages

1. [399]

   On the subject of damages there are two expert joint reports. They are a psychiatric joint report, written by Drs Samuell and Rikard-Bell, and an occupational therapists’ report, written by Mr Byrnes and Ms Piebenga. There are also reports by Dr Raj, an ENT specialist, in relation to T2’s injury.

2. [400]

   Both parties adduced expert psychiatrist medico-legal opinions concerning T2’s psychiatric condition.

3. [401]

   T2 relied on the five medico-legal reports authored by Dr Rikard-Bell, who is a child, family and adult psychiatrist. Dr Rikard-Bell provided two reports dated 23 December 2020. The first report is a general psychiatric assessment of T2. The second report addressed T2’s capacity to manage his financial affairs and to advise lawyers in legal proceedings. Following a further interview with T2 and the provision of additional documents, Dr Rikard-Bell provided two further reports dated 1 December 2022, addressing similar subject matter as his prior reports. In a fifth report dated 19 May 2023, Dr Rikard-Bell conveyed his opinion that it would likely be “highly traumatic” for T2 if he were required to watch video footage of the assault in the course of examination in chief or cross-examination. As I said earlier, the senior counsel in Court took heed of this advice.

4. [402]

   In his report dated 1 December 2022, Dr Rikard-Bell reassessed T2. He updated details about T2’s continuing psychological injury caused by the assault as an estimate as to the likely costs of future treatment. This re-assessment was in response to the vocational assessment report of Dr Henricks, an opinion as to support services likely to be required, and a general prognosis of T2.

5. [403]

   The defendant, in turn, relies on the evidence of Dr Samuell, a clinical and forensic psychiatrist. Dr Samuell prepared a report dated 5 July 2021 that contains a psychiatric assessment of T2 following a video interview conducted by Dr Samuell with T2 and his mother. Partway through the interview, when asked about the assault, T2 abruptly ceased to participate further. Thereafter Dr Samuell was only able to direct questions to T2’s mother (CB 40033).

6. [404]

   Both experts, but in particular Dr Samuell, noted difficulties in interviewing T2 due to his non-cooperation and propensity for anger. Such reactions appear primarily in response to questions directed to the circumstances of the assault. I understand his anger that arose when he was asked to recount the assault.

7. [405]

   Both psychiatrists agreed that it is difficult to give an opinion as to how T2’s future was affected by the assault given his pre-existing psychiatric conditions. Where Drs Rickard-Bell and Samuell disagree, I prefer and accept Dr Rickard-Bell’s opinions as he is a specialist child adolescent psychiatrist and his opinion accords with mine. Dr Rikard-Bell interviewed T2 a number of times and Dr Samuell had one interview with T2 via video link. Dr Samell declined to express a concluded opinion due to the absence of cooperation of T2.

8. [406]

   In Furner v Jackson [2023] NSWSC 914, I said, at [354]:

9. [407]

   In this case, Dr Samuell did not establish a therapeutic alliance. Rather, he alienated T2 early in the interview.

10. [408]

    Drs Rikard-Bell and Samuell later prepared an expert joint report dated 19 May 2023.

11. [409]

    Both experts agree that T2 has ASD and ODD and that Dr Polon, T2’s treating paediatrician, had already diagnosed him with these conditions at an early age.

12. [410]

    Both psychiatrists, Doctors Rikard-Bell and Samuell, agree that T2 is capable of instructing lawyers in the proceedings, but that he is sufficiently vulnerable to neglect, abuse or exploitation regarding his financial and other affairs such that he would need assistance with managing them (CB 40028, 40040).

13. [411]

    Both experts agree that the assault was “seriously traumatogenic” and would have “had a large material impact on [T2]”. Dr Samuell described the assault as “horrific” (CB 40041). Both experts suggest that the assault was likely to have “seriously aggravated” T2’s pre-existing psychological problems (CB 60009).

14. [412]

    There was a difference in response to a question as to whether T2’s present condition could be a “natural progression” of an underlying condition. Dr Samuell acknowledged that it was “difficult to know” the extent to which T2’s ASD and ODD contributed to his present condition but reaffirmed his view that the assault “exacerbated or aggravated [T2’s] underlying conditions” (CB 40043).

15. [413]

    That said, the experts agree that there were certain other events, namely, the bullying at school from mid-2017, the murder of T2’s grandfather and his mother’s aneurysm, that were likely to have been adversely impactful on T2’s psychiatric health. I would also include T2 witnessing a serious motor cycle accident prior to the assault as likely having affected him to some extent. The extent of those effects were not explored in the written reports.

16. [414]

    Both psychiatrists agree that T2 experienced “significant pre-existing psychological and behaviour problems” prior to the assault and that those problems would have persisted even if the assault had not occurred (CB 60009). As noted above, however, it is common ground that those pre-existing problems were aggravated by the assault.

17. [415]

    There is some disagreement as to whether the assault caused T2 to develop any additional mental health difficulties. Dr Rikard-Bell adopts the position in his individual reports and the joint report that T2 developed PTSD as a result of the assault (CB 40011). In support of this diagnosis, Dr Rikard-Bell points to a number of DSM-5 factors, including previous reporting of nightmares, avoidance behaviours, negative emotions, significant impairment of functioning and a duration of symptoms over one month. It might be observed that there is a large degree of overlap between these factors and symptoms attributable to his ASD and ODD.

18. [416]

    Dr Samuell, conversely, considers T2’s observed difficulties after the assault could be caused by three things: (1) an extension of his ODD; (2) a change in his risk perception based on the assault; and/or (3) a manifestation of PTSD. As previously stated, Dr Samuell declined to express a concluded opinion due to the “absence of cooperation” by T2 during their interview.

19. [417]

    As to the extent of T2’s pre-existing psychological and behavioural problems prior to the assault, there is some disagreement. While both experts accept in the joint report that T2’s educational and occupational prospects would have been “poor” even if the assault had not occurred, it is less clear whether each considers those prospects were reduced by the assault. In his individual reports, Dr Rikard-Bell noted school reports from 2015 and 2016 indicated improvement in T2’s disposition and academic application, before a sharp decline in 2017, that was precipitated by bullying and personal issues. Dr Samuell is more pessimistic, noting several instances where T2 engaged in negative conduct prior to the assault occurring. That includes non-attendance at school, aggression, anger and suicidal ideations. Most of these incidents arose at some point during 2017 prior to the assault.

20. [418]

    Finally, there is some disagreement between these experts as to the appropriate treatment for T2’s psychiatric condition. I have found this a very difficult subject to make findings as to future medical expenses. Dr Rikard-Bell’s view is that modified trauma-based CBT therapy with a psychologist may be helpful. Dr Samuell is more pessimistic about the efficacy of any therapy at this stage, though he does state that T2 “should be managed in a hospital setting or perhaps a group home where there can be a full-time, consistent behavioural approach” (CB 40045). Importantly, however, both experts agree that “the plaintiff’s capacity for activities of daily living is independent of the subject incident” (CB 60010).

21. [419]

    These factors lead Dr Rikard-Bell to conclude that T2’s prognosis “appears to be poor as his education and vocational trajectory has been significantly impacted upon by the subject assault” (CB 40025). Dr Samuell’s report, conversely, states that “[w]ere it not for the subject assault one could have expected that [T2’s] outcomes would have been poor” (CB 40041), and that in the absence of treatment he does “not expect that there will be any change in the foreseeable future” (CB 40046).

22. [420]

    Drs Rickard-Bell and Samuell gave concurrent evidence. Initially Dr Rickard-Bell expressed his view regarding the series of events that led to T2’s assault. He opined that T2 would have experienced the effects of heightened trauma due to the anticipation of his attack. Dr Samuell agreed with this view and added that this would have made the event more terrifying for T2 and contributed to his altered ability of ‘risk perception’ (T459 [45]). When questioned by counsel about whether this contributed to T2’s current state of reclusion, Dr Samuell conceded that this may have been a factor. He did, however, qualify in his response that it was difficult for him to ascertain the extent to which this factor had played a role in T2’s current condition, given his history with ASD.

23. [421]

    Dr Rickard-Bell opined that between the end of primary school and the start of high school (before the assault), T2 had been on a trajectory that was encouraging and relatively incident-free. He believed that T2 had been “functioning reasonably” (T460 [40]) given his psychiatric health diagnoses and despite the murder of his grandfather. Dr Samuell agreed with this assessment; he believed that regardless of the medical report dated 2016 referring to T2’s struggles with aggression, suicidal tendencies and a fascination with knives, his school reports for that year showed him to have “excellent participation” and “great sportsmanship” (T461 [40]-[45]).

24. [422]

    Both experts agreed that T2 may have displayed an “adjustment problem” (T460 [40]) around the time of his grandfather’s murder. Dr Rickard-Bell believed that this may have contributed to some of the isolated incidents with T2’s behaviour in the immediate months before the assault. Dr Samuell was less convinced, however. He based T2’s issues on his ADD and possible ODD. They were both in agreement that T2 was a vulnerable child who would likely find it more difficult to cope with stressful events compared to other more resilient children.

25. [423]

    Dr Rickard-Bell opined that if not for the assault, T2 would have continued in school and at the very least completed his higher school certificate. When asked about a medical certificate in 2016 seeking the renewal of a carer’s allowance, which recorded T2 as being be antisocial, avoidant and in need of 24 hour care, Dr Rickard-Bell questioned the weight of the medical certificate and implied that the information may have been over-stated by T2’s mother who at the time was unemployed, struggling with her own mental health issues and potentially fearful of her son’s condition and mental struggles (T466 [3]-[50]; T467 [1]-[33]).

26. [424]

    Dr Samuell expressed concern about the view that, but for the assault, T2 would have been on a better vocational and life trajectory. He considered this was “somewhat speculative” (T469 [10]) and any opinion needed to be based on the known facts. He opined that if the information presented in the application for carer’s payment was representative of T2’s functioning prior to the assault, it would be difficult to assume his vocational outcome would be a positive one.

27. [425]

    It is my view that in T2’s application to NDIS, T2’s mother provided information to the GP so as to achieve the best disability compensation she could for her son and embellished the extent of his disabilities as a result.

28. [426]

    Both psychiatrists agreed with T2’s options for vocational possibilities. This included machinery operation, driving and labouring, grooming, kennel handling, gardening, etc. The experts did not agree that T2 could possibly do well in an apprenticeship. Dr Rickard-Bell opined that T2 was capable of doing an apprenticeship.

29. [427]

    To recap, Dr Rickard-Bell argued that T2 was functioning reasonably between the end of primary school and the start of high school. Dr Samuell agreed that he was participating well in school and in sports at that time.

30. [428]

    Dr Rickard-Bell placed more weight on T2’s ‘adjustment problem’ around the time of his grandfather’s murder to explain his behavioural incidents. Dr Samuell attributed his behavioural problems to his ASD and ODD. Both experts agreed that T2 was vulnerable.

31. [429]

    Mr Byrnes is an occupational therapist engaged by T2. He prepared one individual report dated 11 May 2021. Mr Byrnes’ report included a domestic assistance assessment in relation to the injuries T2 sustained because of the assault. Mr Byrnes has also written an expert joint report with Ms Piebenga. Ms Piebenga is an occupational therapist engaged by the defendant. She prepared one individual report dated 8 October 2021, in addition to the joint report noted above. Ms Piebenga’s individual report addressed the same issues as covered by Mr Byrnes’ report of 11 May 2021.

32. [430]

    T2 was born on XXX 2002. He was 14 years of age at the time of the assault and is presently 21 years of age. He has a future life expectancy of 63 years. The 5% discount multiplier for 63 years is 1,020.

Non-economic loss

1. [431]

   Section 16(1) of the CLA relates to non-economic loss, it reads,

2. [432]

   It is common ground that T2’s non-economic loss exceeds 15% of the most extreme case.

3. [433]

   The definition of a most extreme case pursuant to s 16 of the CLA has been discussed in Matthews v Dean (1990) 11 MVR 455; [1990] Aust Torts Reports 81-037 at 68,014; Southgate v Waterford [1990] Aust Torts Reports 81-065; (1990) 21 NSWLR 427 at 440 and Dell v Dalton (1991) 14 MVR 158; (1991) 23 NSWLR 528 at 433.

4. [434]

   Non-economic loss means any one or more of the following, pain and suffering; loss of amenities of life; loss or expectation of life; disfigurement: see Sutherland Shire Council v Major [2015] NSWCA 243.

5. [435]

   T2 submitted allowance should be 50% of a most extreme case. That amount equates to $352,500. The defendant submitted an appropriate allowance is 25% of a most extreme case.

6. [436]

   T2 submitted that while he had pre-existing difficulties, that does not disentitle him from a considerable award for this head of damage. The greater the vulnerability to loss of residual function, the greater the loss of that residual function in terms of living a normal life. The physical injury and bleeding of the ears over a prolonged period should not be ignored, even if the mastoiditis would have occurred in any event, because it was an underlying medical condition.

7. [437]

   The assessment of non-economic loss is not a “loss of a chance”, but a real and acutely felt loss of function and loss of amenity of life.

8. [438]

   That the injuries are psychiatric does not erode the practical impact upon T2. The injuries have been sustained and become entrenched. It is practically unlikely that future therapy will place T2 upon his pre-assault educational and vocational trajectory. T2 now believes he is stupid, which is a matter of his own complaint.

9. [439]

   The defendant submitted that T2 overstates the extent to which the assault has diminished his quality of life and ability to function independently.

10. [440]

    While T2 argues that he now suffers from so-called “profound problems” there is no evidence of them. Rather, T2 is able to, for example, “use a deep fryer to cook chips” (T762 [35]-[38]).

Resolution

1. [441]

   The non-economic loss in this case is centred around T2’s psychiatric condition after the assault.

2. [442]

   T2 was diagnosed at an early stage of his life by his treating child psychiatrist, Dr Polon, with the psychiatric disorders of ASD and ODD. Both Drs Rikard-Bell and Samuell agreed with these diagnoses and that the assault was seriously traumatic and would have a had a large material impact on T2. The experts agree that the assault was likely to have seriously aggravated T2’s pre-existing psychological condition, but that other events, such as the bullying at school since mid-2017, the death of his grandfather and his mother’s aneurism, were also likely to have been contributing factors to his deteriorating psychiatric health. To that, I would add the witnessing of a serious motorcycle accident. They agreed that T2’s significant pre-existing psychological and behavioural issues would have persisted even if the assault had not occurred, and T2’s educational and vocational prospects would have been poor even if the assault had not occurred; they do not agree whether those prospects were reduced by the assault. Dr Rikard-Bell is of the opinion that T2’s trajectory has been significantly impacted by the subject assault. Prior to the assault, Dr Rikard-Bell believed that T2 had been functioning reasonably. Dr Rikard-Bell opined that if it was not for the attack, T2 would have completed his HSC (T379).

3. [443]

   According to T2’s paediatrician Dr Polon, T2’s condition has advanced from a level two on the ASD to a level three (CB 40194) (as set out earlier in this judgment), impacting his amenity of life, particularly due to the worsening of his ASD after the assault. T2 was coping with his disorders reasonably before the assault.

4. [444]

   Prior to the assault T2 was catching busses to and from school, adequately coping with schoolwork and engaging in social activities with friends.

5. [445]

   After the assault T2’s level of ASD worsened, and he experienced a decreased quality of life. He was unable to return to school. Even though he was transferred to another school, T2 was no longer able to catch the bus on his own. He did not engage socially with others and he spent most of his time homebound, playing PlayStation and computer games online. T2 stopped exercising and gained considerable weight, causing greater vulnerability to the loss of that residual function in terms of living a normal life.

6. [446]

   It is my view that T2 may have been able to live independently prior to the assault but he will find it difficult to do so now without supervision. I also take into account that T2 had some physical injuries on his face inflicted when he was assaulted and a genetic asymptomatic nose issue became symptomatic for some time before resolving. It also caused complications with his right ear for some years but has since substantially resolved. While his life had limitations prior to the assault, these limitations increased following the assault.

7. [447]

   It is likely that if T2 had not suffered the worsening of his psychiatric condition due to the assaults, he would now be in some form of employment. Being employed may have made him happier. Certainly, it would have got him out of the house.

8. [448]

   Taking these considerations into account, given the evidence of T2’s precondition and the poor prospects of full-time employment associated with ASD, it is my view that 40% of the most extreme case is appropriate in these circumstances. This equates to the sum of $290,000.

Past and future economic loss

1. [449]

   Future economic loss, like future care, is very difficult to assess.

2. [450]

   Sections 12 and 13 of the CLA deal with damages for past or future economic loss. They read,

3. [451]

   T2’s evidence is that prior to the assault he felt good attending the school. He enjoyed playing sports at school including cricket and rugby league. He believed that he could have finished high school and looked for a job in construction or in labour. He thinks he could have attended TAFE and done a course. Now T2 is unsure if he will ever finish school.

4. [452]

   Alternatively, T2 seeks either $550 per week net from January 1 2024, or $650 per week net from January 2024 and relies on the report of forensic accountant Mr Rossetto. Mr Rossetto estimated future economic loss at either $721,607 or $795,041, at an average notional income depending on the residual capacity of T2.

5. [453]

   In Mr Henrick’s vocational report dated 1 October 2017, he opined that, although T2 may at some stage be able to work in a full-time capacity, he “could only confidently assert that [T2] has the capacity for two to three hours per day, five days a week at this stage” (CB 40159). Mr Henricks stated that T2 “should have the capacity for in-house, on-the-job training, provided an appropriate job is selected within a support workplace” (CB 40159). He suggested, based on T2’s expressed interests, employment as a pet groomer, kennel hand, dog walker, garden labourer and/or lawn mower. If T2 were prepared to undertake further training, Mr Hendrick suggested that T2 could consider the possibility of becoming a dog handler or trainer, a store person or a sales assistant at a pet shop (with restricted duties) (CB 40160).

6. [454]

   The occupational therapists had previously agreed that T2 suffers from ODD and is on the autism spectrum.

7. [455]

   When giving concurrent evidence during the last day of the trial, both occupational therapists agreed that T2 had suffered from ASD at level one or level two prior to the assault but that after the assault he was classified as level two or possibly level three (T613 [40]-[44]).

8. [456]

   Ms Piebenga conceded it was “absolutely” the case that T2 had been functioning reasonably well at school in 2017 prior to the assault when she was alerted to a document noting that T2’s behaviour support plan was no longer in place due to insufficient evidence of behaviour issues recorded and referrals being made about him, with only two negative instances (both related to attendance) in 2017 (T621 [12]-[24]).

9. [457]

   The occupational experts further agreed that:

   1. (1)

      Prior to the assault, the school considered T2 to be able to function without behavioural support (T622 [3]-[10]).

   2. (2)

      T2 suffered from “significant functional impairment” after the assault, which had occurred at a critical time in his development (T622 [23]-[41]).

   3. (3)

      It was appropriate for T2 to be supported on a regular basis at the beginning, so that he could have the confidence to cope in the TAFE environment and, over time, the level of support T2 required could reduce (T626 [33]-[50]; T627 [1]-[14]).

   4. (4)

      T2 had attempted suicide prior to the assault, but not since the assault (T630 [44]-[50]; T631 [1]-[9]).

   5. (5)

      It would have been useful to hear evidence from T2’s father, given that in 2017, prior to the assault, T2 had moved from living with his father to living with his mother (T632 [44]-[50]; T633 [1]-[19]).

   6. (6)

      T2 had considerable absences from school over the months from June to September 2017, prior to the assault (T633 [21]-[29]).

   7. (7)

      If T2 were to move into vocational re-engagement, he would need somebody to help him get to and from work (T655 [7]-[15]).

   8. (8)

      The ability of autistic persons to attain and retain a vocational trajectory is very much dependent on the level of autism they suffer (T658 [26]-[44]).

   9. (9)

      Many autistic people have skills that mean they are well-suited for meaningful vocational activity if placed in the right environment, and this work can be good for them (T660 [3]-[9]).

   10. (10)

       Following the assault, T2 became socially avoidant, derailed and now requires multifactorial treatment and a process of re-engagement with the educational and/or vocational systems (T662 [13]-[29]).

10. [458]

    Mr Rossetto calculated T2’s economic loss in his report dated 9 February 2021 (CB 40227 [9J]). Allowing for an average notional income, and a residual earning capacity of $200 per week, Mr Rossetto calculated a loss of $901,301. Although Mr Rossetto calculated the loss on the basis that T2 would have left school at age 16, that is, in around December 2018, had T2 completed school to Year 12, this would have enhanced his prospects of obtaining employment and receiving higher wages. The minimum school leaving age is 17, unless the student is undertaking a TAFE course, traineeship or a combination of work and training.

11. [459]

    Had T2 commenced employment in January 2021, aged 19, his likely weekly wages would have been:

12. [460]

    His weekly wages would have risen in 2022 and 2023, as follows:

13. [461]

    The 2021 figures average approximately $720 per week on a net basis.

14. [462]

    For subsequent years, the figures average approximately $935 per week on a net basis.

15. [463]

    Past economic loss, calculated to the end of October 2023, is therefore:

16. [464]

    T2 is at present unemployable. The problem is that his schooling was interrupted at a time when he was still developing socially and intellectually, and as a result of the psychiatric disturbance caused by the assault, he disengaged from education. This has affected his social and educational progression. It is difficult for him to now re-engage to make up the lost years.

17. [465]

    At the time of the assault, and for several years beforehand, T2’s school records demonstrate that his functioning was unremarkable, and he was progressing well, in contrast to an earlier period when his underlying problems were causing dysfunction and conflict. It is this stability and progression that was interrupted by the trauma of the assault.

18. [466]

    Dr Rickard-Bell diagnosed T2 as suffering PTSD, which gives rise to issues of avoidance and anxiety. He says that T2’s prognosis is poor. Evidently, T2 was never going to be a high achiever vocationally. However, had he been uninjured, on the balance of probabilities, T2 would have continued with his education and matured intellectually and socially. It is more likely than not that T2 would have meaningfully engaged in the workforce. Realistically, he cannot now do this. Further, he requires extensive supervision and care as a result of his anxiety and avoidance state.

19. [467]

    But for the assault, T2 would have finished school in 2020. Subsequently, he would have entered the workforce with either his uncle Grant, a builder, or his father, doing picking and packing work in a factory. Alternatively, he would have found some similar employment. He would likely have progressed to a skilled position such as a carpenter, or a semi-skilled position, such as a forklift driver. He would have been capable of progressing to earning at least average weekly earnings.

20. [468]

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

21. [469]

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

22. [470]

    To recap, up until mid-2017, T2 was doing well at Fairvale High School, although at times he was prone to aggression that made him lash out. An entry in the school records on 10 May 2017 noted that his “[b]ehaviour support plan [was] no longer relevant due to insufficient evidence of behavioural issues recorded and referrals made. Only two negative incidents [were] recorded in 2017, both on attendance.” (CB 12516)

23. [471]

    It has long been recognised that there are difficulties in asseessing damages for future economic loss for children with no established educational or vocational trajectory or history. There is inevitably speculation involved in such assessment. That does not mean that the Court is absolved from the obligation to make an assessment based on all facts, matters and circumstances before it. Such an assessment relies on a matter of judgment and evaluation. There remains a range of figures about which reasonable minds may differ.

24. [472]

    For the future, T2 claims average weekly earnings less $200 per week residual earning capacity. The average weekly earnings for men in full-time employment in NSW are $1,988 per week, or $1,470 net per week.

25. [473]

    As against the possibility that T2’s pre-existing condition may have manifested during his working life, T2 suggests that an increase in vicissitudes to 20% provides an appropriate adjustment of the underlying medical issues he already experienced.

26. [474]

    As against the possibility that T2 may show further improvement in, say, 10 years’ time, T2’s residual earning capacity would increase to $400 per week. This, again, is an appropriate adjustment to take into account the optimism of improvement with intervention, as against the risk that such intervention will have no practical effect or otherwise fails to achieve any relevant functional improvement.

27. [475]

    Prior to the assault, T2 was not on a vocational trajectory that would have put him in a position to be a functional and productive person in the labour market. This was evidenced by T2’s struggles with his condition prior to the assault, as well as the reports of physicians who believed that his outlook would have been poor regardless of the assault.

28. [476]

    Unlike many other children with autism, T2 did not go to a specialist school equipped to deal with his psychiatric challenges. Further, T2 was not supported in the home environment as well as many others are. It was doubtful whether T2 would have even finished school.

29. [477]

    The unemployment rate of those with autism is 31.6% and T2 suffered not only from ASD, but also ODD (T725 [40]-[50]).

30. [478]

    T2’s best friend, Gavin, had a relatively poor vocational outcome despite not suffering from any spectrum disorders (T726 [18]-[23]).

31. [479]

    In all likelihood, T2 would have ended up in his current position, even if the assault had not occurred (T726 [38]-[43]).

32. [480]

    No economic loss should be awarded to T2 (T727 [25]-[30]).

Resolution

1. [481]

   In Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244 (Cervantes), Basten JA, with whom McColl and Macfarlan JJA agreed, said,

2. [482]

   In State of New South Wales v Moss (2000) 54 NSWLR 536, Heydon JA, at [87], with whom Mason P and Handley JA agreed, reviewed numerous authorities before concluding,

3. [483]

   In Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99, the Court of Appeal said at [84],

4. [484]

   Prior to the assault, T2’s ASD was classified as falling into level two and after the assault it increased to level three. There is a marked difference between the disabilities in autism of level two and level three. People with level two diagnoses may have inflexible behaviours that can interfere with daily functioning. They typically do not cope very well with changes, which can cause them significant distress. Level three is the most severe autism diagnosis. People with level three diagnoses have significant impairments in their verbal and nonverbal communication. They will often avoid interactions with others, but they may interact in a limited way if they must respond to others or communicate a need. Their behaviours are highly inflexible and repetitive. They may react strongly to changes and become highly distressed in a situation that requires them to alter their focus or task. Level three individuals require very substantial support. The outlook for employment for those at level three is poor. (Ex 7 (pages 3-4)).

5. [485]

   T2 already had difficulties at school with his behaviour and his academic progress. In the 2017 school year, prior to the assault, T2 had somewhat improved both academically and with his behaviour until July 2017, when he was being bullied.

6. [486]

   While it is uncertain whether T2 would have completed his HSC, over time he should have gained in maturity. It is likely that if the assault had not occurred, he could have been engaged in some type of manual employment. T2 could have worked with his father or brother, who could have provided him support. However, the more likely outcome is that the most T2 would have been capable of doing professionally was ‘picking and packing’ work. However, he likely would have been incapable of working on a full-time basis.

7. [487]

   While Mr Henricks suggested at some stage that he would be able to work in a full-time capacity, he could only confidently assert that at this stage, T2 has the capacity to work two to three hours per day, five days per week. This was due to T2’s pre-existing disabilities, the fact that he rarely leaves his house and his extensive reliance on his mother’s support and to a lesser extent the NDIS support person. I think that Mr Henrick’s opinion that T2 could work in a full-time capacity in the future is optimistic.

8. [488]

   Unless T2 is able to get psychological treatment with the goal of catching up on the lost years since the assault and being integrated back into society, it is unlikely that there will be any changes to T2’s lack of earning capacity. Under the topic of future medical expenses, I have made an allowance for treatment aimed at providing T2 with the opportunity to attend TAFE, albeit on a gradated attendance basis to acquire a trade and the possibility of some part-time employment. Regardless of any progress he may make with psychiatric treatment, it is my view that he will be unable to work in a full-time capacity in the future and it is most unlikely that he would have been able to work in a full-time capacity in the past.

9. [489]

   As to past loss of earning capacity, it is my view that, but for the assault T2 would have faced challenges in entering the workforce. It is likely that T2 would have made an attempt to study at TAFE. If he were to succeed, it would take longer than others to obtain a qualification. So while T2 would be studying, at least until now, he would not have had any earning capacity prior to the assault. So, I assess his past loss of earning capacity at nil.

10. [490]

    As for T2’s loss of future earnings capacity, he is currently 21. He has 46 years of earning capacity until he reaches the retirement age of 67. Due to his psychiatric diagnoses prior to the assault, he would not have had the earning capacity of an individual working on a full-time basis in a trade or one of the other jobs suggested by the vocational expert.

11. [491]

    I acknowledge that this paragraph is repetitive, but it explains the main factors that I have taken into account in avoiding a buffer. Prior to the assault, T2 already had educational development challenges due to him being on the autistic spectrum. At the time of the assault, T2 was 14 and still developing socially and intellectually. He had pre-existing diagnosis of ODD and ASD. As a result of the psychiatric disorders caused by the assault, T2 disengaged from education and from life. He is now only 21 years old. At school he sometimes struggled with his behaviour and his school curriculum, while at other times he was coping. The psychiatrists both agreed that it is very difficult to assess the trajectory of T2’s future. I agree. In the circumstances, I cannot make, with any precision, findings on the balance of probabilities as to past and future economic loss that is on the assessment of the value of a chance. The best I can do is assess T2’s past and future economic loss on the basis of a buffer (or cushion, as it is also known).

12. [492]

    Currently, T2 does not leave the house and needs to have regular ‘in house’ treatment with a psychologist and psychiatrist. He is unemployable. Over time, he may be able to undertake employment, provided it is in a supportive environment. Most likely, this would be in a factory completing ‘picking and packing work’ or something similar. It is my view that T2 would never have had the capacity to earn $935 net per week, even if the assault had not occurred. Mr Rosetti opined that T2 has a residual earning capacity of $200 net per week and accepting T2’s submission’s his residual earnings capacity may increase to $400 net per week.

13. [493]

    What T2 would have earned ‘but for’ the assault is a difficult question. Doing the best I can, his past earning capacity would have been earned approximately $400 per week on a net basis, because he would only have the earning capacity on a part-time or casual basis. It would have been likely that there would be periods where, due to fluctuations in his psychiatric condition, T2 would not be working at all. During these periods, T2 would have had no earning capacity. But for the accident, T2 still may not have attained his HSC. Further, it is likely that the best T2 could have achieved professionally was an unskilled job in the trades, or picking and packing in a factory, and likely on a part-time rather than full-time basis.

14. [494]

    It is my view that T2 would have had difficulty with being in full-time employment even if the assault had not occurred. He may have matured and been able to hold down some jobs, but not on a full-time basis. It seems unlikely that his pre-existing psychiatric diagnosis would abate, but they may have remained the same or improved as he matured. All I can say is that he had more earning capacity prior to the assault than after the assault. The level of his ASD increased in severity after the assault. It was always going to be difficult for T2 having ASD to gain employment. Unless his ASD improves it will be impossible. It is very difficult to calculate on the balance of probability the trajectory of T2’s earnings capacity over the next 46 years. Doing the best I can taking these factors into account, I allow a buffer of $500,000 for the loss of future economic earnings.

Past medical expenses

1. [495]

   Senior counsel for the defendant raised the issue of NDIS and that T2 has been utilising financial assistance and therapies under that scheme, which he is then claiming as past out of pocket expenses. There is a list of the expenses that has been marked by the defendant indicating which of the claimed out of pocket expenses that are disputed. Senior counsel for T2 raised that the NDIS package that had been originally approved for T2 had not been used due to Covid-19 and it is currently under review. I will refer to the NDIS payment and the plaintiff’s mother receiving the carer’s payment for the plaintiff later.

2. [496]

   The defendant submitted that not all the claimed expenses relate to the assault, such as payments in relation to T2’s teeth. I agree that the medical expenses relating to T2’s teeth are unrelated to the assault.

3. [497]

   I have analysed the Medicare expenses on the list. I disagree with the defendant’s submissions that any claims for T2’s ear problems should not be allowed. While his ear condition may have been asymptomatic, it became symptomatic as a result of the assault. In the end, Dr Raj concluded that the asymptomatic ear condition was a generic one. However, given the assault rendered the ear condition symptomatic, T2 ought to be compensated for his ear injury. I will allow the few expenses agreed to by the defendant and most of the Medicare expenses listed in the schedule relating to doctor consultations, treatments, tests and medications related to T2’s ear.

4. [498]

   I allow expenses incurred by T2 for the medication Endone as from 2 December 2020 to 6 December 2021. The prescriptions form a vast majority of the list of T2’s out of pocket expenses.

5. [499]

   Taking these considerations into account, I allow for past of medical expenses the sum of $2,562.15.

Future medical expenses

1. [500]

   The psychiatric experts agreed on T2’s need for treatment and on the modalities of treatment. They considered the practical support and assistance required to try to re-establish his previous educational and vocational trajectory.

2. [501]

   Dr Rickard-Bell, whose evidence I prefer, considered that an adolescent and young person hospital environment could help break the cycle of negativity. Dr Samuells agreed that a program such as ‘USpace’ would be reasonable to attempt. USpace is a private mental health service that provides services to young adults – those aged under 30 – like T2.

3. [502]

   Dr Rickard-Bell considered that T2 would require a multi-disciplinary approach with psychology, a psychiatrist and an occupational therapist.

4. [503]

   If T2 were to attend TAFE, he would need a support person and someone to provide transport, preferably independent of his mother.

5. [504]

   As far as T2’s options for future therapy, both psychiatrists agreed that he would benefit from a multidisciplinary approach, which would include someone assisting and encouraging him to get out of his home. They believed he would benefit more from socialising and participating in day-to-day activities, rather than talk based therapies. They both agreed that T2 with the assistance of his carer may benefit from some form of rehabilitative medical environment and that while T2 would need more assistance initially, the level of assistance could be gradually reduced as he improves over time.

6. [505]

   Mr Byrnes has calculated the one-off costs for future medical expenses as $189,354, to which he has added $27,994 per annum or $538 per week. The total costs are: $538 x 1,020 = $548,760 plus $189,354 = $738,111. He has included attendances, psychological counselling, exercise physiology, hydrotherapy, gym membership, occupational therapy and dietary, educational and vocational assistance. To that should be added attendances of T2’s GP and specialists and a stay in a rehabilitation facility such as USpace.

7. [506]

   T2 submitted that he has shown some recent improvement since the assault, but at 21, he still stays mainly in his bedroom playing video games. His participation in NDIS programs and counselling has been little more than minimal thus far. If he continues to improve, T2 will likely prove more amenable to accepting treatment and inclusion in more activities, including those with an educational and vocational focus. However, assuming that T2 will not avail himself of all of the recommended modalities of treatment and assistance, $500,000 is claimed for future treatment expenses taking into account all of the vicissitudes and exigencies and the risks that the expenditure may not amount to the full amount calculated by Mr Byrnes as against the risk that they may exceed that amount.

8. [507]

   It is accepted that the assault aggravated T2’s underlying psychiatric conditions and that T2 stopped going to school as a result. If the school were held to be negligent, it is accepted that some treatment would be required to support T2’s recovery from this present state (T729 [33]-[50]).

9. [508]

   T2 is effectively room-bound and some support is required to get him out of that state (T628 [1]-[9]). What T2 will require in the future is limited to assistance in re-socialising; beyond this, any future medical expenses are unnecessary (T648 [5]-[30]).

Resolution

1. [509]

   In order for T2 to be put back into the position he would have been but for the assault, the focus should be upon him being able to re-engage with society due to the lost years after the assault as he has spent most of his time in his bedroom playing video games. T2 is a young man who has missed out on maturing and becoming independent in his life. As a result, he requires intensive psychological and psychiatric treatment in the immediate future to develop social skills if he is to improve his job prospects in the future. I accept that to actively participate in the community and attend TAFE to gain qualifications necessary to obtain the forms of employment (discussed previously in this judgment), T2 will require ongoing appointments with his psychiatric practitioners, some in-care periods with a facility such as USpace and assistance being driven to and picked up from TAFE. He may initially attend TAFE one day per week and gradually increase his attendance over time. He may also become less reliant on being transported.

2. [510]

   I have taken into account that prior to the assault T2 probably would have required some psychiatric and psychological treatment throughout his life. After the assault T2’s need for psychiatric and psychological care has increased as he is now on the highest classification of the autism spectrum disorders.

3. [511]

   It is impossible to arrive at a precise amount, but doing the best I can I award future medical expenses in the sum of $400,000, with most of this sum being spent on T2’s medical care in the immediate future.

Attendant care

1. [512]

   Section 15 of the CLA reads,

Past attendant care

1. [513]

   Mr Byrnes stated that it was appropriate for an expert to assess past care on the basis that it was provided gratuitously by T2’s mother and he described the home where the services were provided: see Coles Supermarkets Australia Pty Ltd v Haleluka [2012] NSWCA 343.

2. [514]

   The estimate for the past gratuitous care provided by T2’s mother, allowing only for active care contributions, as assessed by Mr Byrne, is as follows:

   1. (1)

      16/10/2017 – 16/1/2018: 12.83 hours plus 0.5 hours transport = 13.33 hours per week x 13 weeks x $30 per hour = $5,199

   2. (2)

      17/1/2018 – 17/8/2019: 8.75 hours plus 0.5 hours transport = 9.25 hours per week x 82 weeks x $31 per hour = $23,513

   3. (3)

      18/8/2019 – 17/4/2021: 9.6 hours plus 0.5 hours transport = 10.1 hours 10.1 hours x 90 weeks x $32 per hour = $29,088

   4. (4)

      18/4/2021 – 31/10/2023: 10 hours x 132 weeks x $34 per hour = $44,880

   5. (5)

      Total: $102,680

3. [515]

   Alternatively, including both the active care and “protective attention and supervision”, Mr Byrnes assessed gratuitously provided past care:

   1. (1)

      From 16/10/2017 – 16/1/2018: 40.83 hours plus 0.5 hours transportation = 41.33 hours

   2. (2)

      From 17/1/2018 – 17/8/2019: 36.05 hours plus 0.5 hours transportation = 37 hours

   3. (3)

      From 18/8/2019 – 17/4/2021: 37.06 hours plus 0.5 hours transportation = 37.56 hours

   4. (4)

      Thereafter 38.47 hours per week

4. [516]

   Mr Byrnes calculated that past care until 17/4/2021 was $222,488.

   1. (1)

      The cost thereafter would be 38.47 hours x 127 weeks x $34 per hour = $166,113

   2. (2)

      Total past care = $388,602

5. [517]

   This should be reduced somewhat because no more than 40 hours per week may be claimed. The amount is then $385,000.

6. [518]

   Mr Byrnes then details T2’s pre- and post-injury daily living activities in order to assess his need for past gratuitous care and to make a future care recommendation. The types of care considered included personal care, protective attention and supervision, meal preparation, housework, spring cleaning, bed making/linen cleaning, laundry, management household rubbish, car washing and shopping.

7. [519]

   Mr Byrnes concluded that, on average, T2 received between 36.75 and 40.83 hours of gratuitous care per week in the four years following the assault, as well as 30 minutes of transportation assistance per week, almost all of which was provided by his mother (CB 40071-2). Mr Byrnes then estimates that T2 will require 38.47 hours per week of future care, including one hour of transportation assistance per week (CB 40073). A significant portion of this care is described as “[p]rotective attention and supervision”, which is to be provided by a “mental health worker” for 28 hours per week. This care is said to be required due to T2’s “poor psychological health, in particular [his] suicidal ideation.”

The effect of the carer’s payment and allowance

1. [520]

   Whether T2’s mother receives a carer’s payment and/or a carer’s allowance, both types of payments are presumably intended to enable her to provide care to T2. He does not directly benefit from the carer’s payment.

2. [521]

   T2 benefits from his mother being available to provide care to him in the home. Before the assault, he attended school and was away from the home for about eight hours each day. Following the assault, he has needed protective attention and supervision in the hours he formerly spent at school.

3. [522]

   In any case, an award for care is to compensate the plaintiff for his need for care: Griffiths Kerkemeyer (1976) 15 ALR 387, Mason J said at page 413:

4. [523]

   Even if a payment to another person could be considered as double dipping or double recovery by the plaintiff, it should not be taken into account in the calculation of damages for reasons explained in Zheng v Cai (2009) 239 CLR 446 (Zheng).

5. [524]

   In Zheng, the plaintiff did voluntary work and received payments from her church. The Court of Appeal reduced the plaintiff’s damages to take those payments into account. In respect of those payments, the High Court held at [23]-[24]:

6. [525]

   In reaching its conclusion in Zheng, the High Court reviewed the authorities:

7. [526]

   In Kars v Kars [1996] HCA 37 (Kars), the plaintiff received care from her husband, the defendant. Dawson J said at pages 36-37:

8. [527]

   Dawson J in Kars held that in such circumstances, no relief from the defendant’s liability should be given.

9. [528]

   The defendant is not relieved of paying damages for care on the following bases:

10. [529]

    The defendant referred to ss 15(2) and (3) of the CLA. These sections have been reproduced earlier in this judgment.

11. [530]

    The defendant submitted that there was no evidence from T2, nor from his family, that would satisfy the thresholds prescribed by s 15 of the CLA.

12. [531]

    This is especially so given that T2’s mother, who supposedly at the time was providing the care, was herself being cared for by a paid carer, with her primary care need being noted to be in the nature of supervision.

13. [532]

    The Court should place little weight on this opinion of Mr Byrnes in the absence of any other evidence. See: Sampco Pty Ltd v Wurth [2015] NSWCA 117.

14. [533]

    T2 has not made out a claim for domestic assistance. No damages should be allowed in relation thereto, other than for the regime recommended by the psychiatrists in their oral evidence.

15. [534]

    The defendant submitted that T2 is not entitled to the care on the basis that his mother is in receipt of a carer’s payment herself, which has been granted to her for the very purpose of enabling her to provide care to her son T2. However, the rationale set out in Gordon is that to award damages to enable the plaintiff to receive assistance at commercial rates while Mr Gordon’s wife continued to receive a pension for that very purpose would amount to unjust enrichment and be contrary to the principle.

16. [535]

    In these proceedings, T2’s mother is in receipt of a carer’s payment to look after T2. She suffers from bi-polar disorder, depression and PTSD, as well as having suffered two brain aneurisms and intercranial hypertension. She also has a carer, her stepbrother, who is paid a carer’s payment to look after her.

17. [536]

    It appears that the plaintiff’s mother receives the carer’s allowance to care for T2. It is unclear if she also receives a carer’s payment. The carer’s payment is an income substitute whereas the carer’s allowance is a supplementary payment (Ex E). Both parties have relied upon supplementary submissions on the topic of the effect of these monies.

18. [537]

    A carer’s allowance may be claimed in addition to other income support payments such as a Disability Support Pension or a carer’s payment.

19. [538]

    The amount of the carer’s payment is currently $1,047.10 per fortnight. The amount of a carer allowance is currently $153.50 per fortnight.

20. [539]

    T2’s submissions about T1’s carer’s payment and the question of double dipping are misconceived.

21. [540]

    In Gordon v Truong [2014] NSWCA 97 (Truong) the Court of Appeal stated at [130]:

22. [541]

    In Campton v Centennial Newstan Pty Ltd (No 2) [2014] NSWSC 1799 (Campton), Hall J said at [773]:

23. [542]

    More recently in Pietrobelli v Jewell Family Nominees Pty Ltd [2022] NSWSC 660 (Pietrobelli), Walton J said:

24. [543]

    It is my view that T2’s mother was in receipt of the carer’s payment and allowance due to T2 being on the Autism spectrum prior to the assault. After the assault occurred on 16 October 2016, T2 went to school for a short while, after which he has since spent most of his time in his bedroom playing video games. He does not need to be supervised. He is capable of making himself a meal and is independent in his personal hygiene. His personal needs after the assault are much the same as they were before it. For example, his mother takes him shopping and looks after his finances, both of which she had been doing prior to the assault.

25. [544]

    T2 is capable of doing tasks like walking his dog, but it appears that he lacks motivation. It is the same with respect to doing jobs around the house. T2 is capable of doing tasks, but either lacks motivation or he prefers for his mother to do things for him.

26. [545]

    In these circumstances, the carer’s payment adequately covered T2’s needs following the assault. I adopt the approach in Truong. The assistance continued to be rendered and continued to be paid from reserves other than those of T2. Therefore, they were services for which T2 would be liable to pay. T2’s mother was in receipt of a carer’s payment for the very purpose of providing services to T2 and those services continued to be rendered on the basis that T2 would not be liable to pay for them.

27. [546]

    For these reasons, I do not allow the claim for past attendant care.

28. [547]

    Mr Byrnes calculates that between 16 October 2017 and 17 April 2021 T2 received gratuitous care worth $222,468.80. He suggests that the value of current and future care will be $1,533.07 per week (CB 40075-6).

29. [548]

    In her individual report, Ms Piebenga contested many of Mr Byrnes’ conclusions. Of the numerous care and treatment recommendations made by Mr Byrnes, Ms Piebenga concluded that only the travel related to the injuries sustained in the assault, as well as psychological assessment to determine whether T2 requires any intervention following the assault, were justified. She did so on the basis that his pre-existing condition would have required that he obtain much of the treatment recommended, regardless of the occurrence of the assault, and because T2’s mother was already providing extensive gratuitous care to him prior to the assault such that no additional gratuitous assistance was provided (including “protective attention and supervision”) after the assault (CB 60005). In doing so, she noted that T2’s mother made a “Centrelink Carer’s Application” on 25 December 2016 (i.e., prior to the assault) in which she stated that “the plaintiff required 25 hours of care per day for his lifetime” (CB 40097).

30. [549]

    In his individual report dated 11 May 2021, Mr Byrnes noted T2’s medical history and living environment before a functional assessment. In doing so, he stated that T2 would benefit from “occupational therapy to assist with community access, interpersonal and lifestyle skill development”, “an occupational therapy driving assessment to assess his fitness to drive”, “participating in a hydrotherapy program”, “ongoing regular support from a psychological regarding depressed mood… and anxiety”, “significant educational support (one-on-one tuition)” and “participation in a group program for the development of interpersonal skills and [a] one-on-one support work”. Mr Byrnes further stated that T2’s mother would benefit from “psychological support to develop skills to better manage her son’s condition and manage her own stress” (CB 40065). The estimated cost of this therapy intervention is $189,354 in “one-off costs” and $27,994.20 per annum in ongoing costs (CB 40079).

31. [550]

    For the future, Mr Byrnes considers that T2 will require paid care at a cost of $1,533 per week.

    1. (1)

       $1,533 x 1,020 x 85% = $1,329,111

32. [551]

    T2 prefers people he knows and trusts. He may find it difficult initially to tolerate paid care and it is likely that he will continue to require gratuitous care of 38.47 hours per week while such care is available. His mother may be unable to continue providing care in the long run.

33. [552]

    Over his lifetime, gratuitously provided past care would be:

    1. (1)

       38.47 hours x $34 = $1,308 x 1,020 x 85% = $1,134,036

34. [553]

    T2’s condition regarding self-care is likely to improve. As he slowly regains confidence, he will likely need less prompting and supervision.

35. [554]

    T2’s pre-existing condition will mean that he is more vulnerable to setbacks. This is a manifestation of the eggshell skull rule.

36. [555]

    Gratuitously provided care of, say, 25 hours per week for the next five years would be:

    1. (1)

       25 hours per week x $34 x 231.5 (5% discount multiplier for five years) x 80% = $157,420

    2. (2)

       Thereafter 10 hours per week x $34 x 412.9 (5% discount multiplier for 10 years) x 0.784 (deferred by five years) x 80% = $88,050

37. [556]

    Thereafter, his need for care may fall below the six-hour threshold. On that basis, total future care would be $245,470. Alternatively, the Court could consider allowing a buffer for a mixture of commercial and gratuitous care, say, $250,000.

38. [557]

    Ms Piebenga, an occupational therapist at Interface, wrote a report dated on behalf of the defendant entitled Activities of Daily Living (ADL) assessment, dated 8 October 2021.

39. [558]

    Ms Piebenga’s interview with T2, which formed the basis of her report, occurred on 23 July 2021. The interview lasted 2.75 hours. T2 was initially interviewed alone. He was initially co-operative for the first 45 minutes of the interview, at which point he became increasingly frustrated with the questions towards the end of that period. T2’s mother joined him for the remainder of the interview.

40. [559]

    Ms Piebenga described the assault and T2’s pre-accident medical and education history,

41. [560]

    At [5.0], Ms Piebenga summarised T2’s medical intervention/investigation to date, which has already been summarised in this judgment. I have set out earlier in this judgment other history that Ms Piebenga relied upon and accepted the views of the defendant’s psychiatrist. As a point of difference, I accept and prefer Dr Rikard-Bell’s opinions.

42. [561]

    At [6.0], she addressed T2’s current status. She said,

43. [562]

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

44. [563]

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

45. [564]

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

46. [565]

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

47. [566]

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

48. [567]

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

    1. (1)

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

    2. (2)

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

49. [568]

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

50. [569]

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

51. [570]

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

52. [571]

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

53. [572]

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

54. [573]

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

55. [574]

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

56. [575]

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

57. [576]

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

58. [577]

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

59. [578]

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

60. [579]

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

61. [580]

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

62. [581]

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

Resolution – future care

1. [582]

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

2. [583]

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

3. [584]

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

4. [585]

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

5. [586]

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

6. [587]

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

7. [588]

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

8. [589]

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

The effect of the NDIS payments

1. [590]

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

2. [591]

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

3. [592]

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

Resolution – NDIS

1. [593]

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

2. [594]

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

3. [595]

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

4. [596]

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

5. [597]

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

6. [598]

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

7. [599]

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

8. [600]

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

9. [601]

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

10. [602]

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

11. [603]

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

Cost of future management of funds

1. [604]

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

2. [605]

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

3. [606]

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

4. [607]

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

5. [608]

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

6. [609]

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

7. [610]

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

8. [611]

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

9. [612]

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

10. [613]

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

11. [614]

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

12. [615]

    The Court should not award any damages for funds management.

13. [616]

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

14. [617]

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

Resolution

1. [618]

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

2. [619]

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

3. [620]

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

4. [621]

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

5. [622]

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

6. [623]

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

A final issue

1. [624]

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

Costs

1. [625]

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

JUDGMENT

1. [626]

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

   1. (1)

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

   2. (2)

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

   3. (3)

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