Plaintiff A and B v Bird; Plaintiff C v Bird; Plaintiff D v Bird

1. [1]

   Little Pigeon Pty Ltd owned the Footprints childcare centre which B and D attended between 2008 and late 2010 when they were removed after Mr Bird, who worked at the centre and was a 1% shareholder of the company, was arrested and charged with two offences involving another child who had made disclosures about him. Ms Clancy, Mr Bird’s daughter, owned 99% of Little Pigeon’s shares. Little Pigeon Pty Ltd was also the licensee of the centre.

2. [2]

   B and D and other children later also made disclosures about Mr Bird. While police investigations resulted in further criminal charges being laid against him in relation to B and another child, none were laid in relation to D. The DPP finally did not pursue any of the charges to trial.

3. [3]

   In these proceedings the plaintiffs seek damages for Mr Bird’s alleged assaults of B and D and also claim that Little Pigeon and Ms Clancy are not only vicariously liable for his acts, but that they were all also negligent.

4. [4]

   A and C, who are B and D’s mothers respectively also pursue claims for breach of contract, given Little Pigeon’s alleged failures to provide quality childcare; retain adequately trained staff to work at the centre; follow relevant and necessary procedures required to be followed by such centres; and to ensure that the children were safe and appropriately cared for, while under its control and supervision.

5. [5]

   Compensatory, aggravated and exemplary damages are sought.

Issues

1. [6]

   There was no issue that B and D were owed a duty of care: New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4.

2. [7]

   That a duty was also owed to A and C and that the alleged assaults, negligence and breach of contract had occurred were denied, as was any vicarious liability for Mr Bird’s acts, given that on the defence case he was a volunteer and not an employee.

3. [8]

   The parties agreed many of the relevant facts and identified what was not in issue to include that, given the age of the children, they cannot have consented to any sexual acts and that neither B nor D could remember what happened to them at Footprints.

4. [9]

   When the hearing commenced the issues identified included:

   1. (1)

      Whether the assaults occurred;

   2. (2)

      Whether Mr Bird was Little Pigeon’s employee;

   3. (3)

      Whether Mr Bird had unsupervised access to or the opportunity to interact with B or D, out of sight of carers employed by Little Pigeon;

   4. (4)

      Whether Ms Clancy or the carers were aware of Mr Bird having such access or opportunity;

   5. (5)

      Whether either Little Pigeon or Ms Clancy are vicariously liable for any assault proven;

   6. (6)

      Whether Little Pigeon or Ms Clancy breached the duty of care which they owed B and D;

   7. (7)

      Whether Little Pigeon or Ms Clancy owed a duty of care to A and C and whether it was breached;

   8. (8)

      Causation;

   9. (9)

      Whether there had been any breach of contract;

   10. (10)

       Whether A or C sustained a recognised psychiatric illness as a result of Mr Bird’s assaults;

   11. (11)

       The admissibility of:

   12. (12)

       The credibility and reliability of various witnesses.

5. [10]

   Some issues fell away. In final submissions whether the pleaded risk of abuse had been established; what precautions a reasonable person in Little Pigeon and Ms Clancy’s position would have taken to guard against the pleaded risk and what precautions were taken to guard against the risk, all remained in issue.

6. [11]

   On damages, as well as quantum in respect of claims for non-economic loss, past loss of earnings, future economic loss, out of pocket expenses and future domestic assistance, the issues included:

   1. (1)

      The real effect of the alleged assaults on the plaintiffs;

   2. (2)

      Whether the Civil Liability Act 2002 or the common law applies to the assessment of damages in the cases of Little Pigeon and Ms Clancy, if they are found to be vicariously liable for Mr Bird’s assaults;

   3. (3)

      Whether the plaintiffs are entitled to aggravated or exemplary damages.

7. [12]

   Some measure of agreement on damages was finally reached.

Conclusion

1. [13]

   Because B and D had no memory of what had happened, they could not be cross examined. In this case that did not preclude evidence of their disclosures being received. Given the gravity of Mr Bird’s alleged acts it was thus necessary to pay very close attention to what they had each disclosed, in light of all of the other evidence, to determine whether the plaintiffs had satisfied the obligation to prove their cases, on the balance of probabilities.

2. [14]

   For the reasons which follow I have concluded that the plaintiffs have each proven their cases and that orders must thus be made in their favour.

Mr Bird’s admissions

1. [15]

   The starting point for these conclusions is Mr Bird’s admissions.

2. [16]

   After his arrest Mr Bird gave a recorded police interview in which he made numerous admissions about his access to and interaction with children at the centre, particularly in relation to child 1, who was the subject of the charges laid against him. What he recounted involved various types of inappropriate conduct.

3. [17]

   Early in the interview, when asked about child 1, Mr Bird acknowledged that on arrest he had been told that the reason was for allegations of indecent assault upon child 1 and he said that he knew her. He also said, amongst many other things, that he had rubbed child 1’s back or patted her bottom, which he volunteered “may be what people could classify as assault.”

4. [18]

   Section 55 of the Evidence Act 1995 (NSW) provides that evidence that is relevant is evidence that “if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.”

5. [19]

   Hearsay is dealt with in s59(1), providing that “Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.” There are various exceptions, including under s81 in relation to admissions, defined in the Dictionary to the Evidence Act to mean:

6. [20]

   There was finally no issue that Mr Bird’s admissions were thus admissible against him, but in issue remained whether they were admissible against either Ms Clancy or Little Pigeon and whether they could be relied on as tendency evidence.

7. [21]

   Section 87 of the Evidence Act provides:

8. [22]

   The evidence established that not only was Mr Bird a shareholder of Little Pigeon, but that it had sought and obtained approval for him to be involved in the operation and management of the Centre, when its licence application was made. In his police interview Mr Bird said that he was a silent partner in the business and described in detail his interactions with children at the centre, who he said he treated as if they were his grandchildren.

9. [23]

   It follows that the hearsay rule did not apply to what Mr Bird said in the interview, which tended to prove the scope of his employment or authority: s87(2)(c).

10. [24]

    Light was also shed on the extent of Mr Bird’s authority to make statements on behalf of Little Pigeon by documents which it published. In a 2010 information document, while Mr Bird was described to be a volunteer he was also held out to be involved in the management of the centre, being the playground supervisor and having responsibility for cooking, OHS and maintenance. This explains Little Pigeon’s concession, finally, that Mr Bird’s admissions were also admissible against it.

11. [25]

    Whether they were admissible against Ms Clancy still remained in issue.

12. [26]

    Authority to make a statement may be express or implied from the circumstances and need not be actual or ostensible: Commonwealth v Helicopter Resources Pty Ltd [2020] HCA 16; (2020) 94 ALJR 466.

13. [27]

    Ms Clancy was not only Little Pigeon’s 99% shareholder and its controlling mind, on her evidence she had the regulatory responsibilities of both the licensee and of the centre’s authorised supervisor from the time Ms Hillman resigned from that position in late 2008, until Ms Kasim was appointed to the position in October 2010. It was Ms Clancy who sought approval in 2008 for Mr Bird to be involved in the management of the centre; who directed Mr Bird to conduct himself with affection towards the children, as if he were their grandfather; and who, it may be inferred, was the author of the documents in which Mr Bird’s role in the centre was disclosed to be as part of its management team.

14. [28]

    In all of those circumstances I am also satisfied that Mr Bird’s admissions were admissible against Ms Clancy. Even if Mr Bird did not have express authority to make statements about his role on her behalf, Mr Bird and Ms Clancy clearly had a common purpose in defending the charges which had been laid against Mr Bird: s87(1)(c).

15. [29]

    That conclusion rests not only on their joint ownership of Little Pigeon, but also from the unpaid work which he performed for it, which Ms Clancy agreed supported its business and it follows, the profits it generated, which it may be inferred they shared. Ms Clancy’s communications to parents about Mr Bird’s arrest and the ongoing operation of the centre, shortly after Mr Bird made his admissions, also establish their common purpose in him successfully defending the charges, given their significance to the continued successful operation of the centre.

16. [30]

    The evidence establishes that Ms Clancy not only supported Mr Bird in his defence of those charges, but communicated to parents about that defence about the support which he enjoyed from her and other staff and her belief that they were both the victim of a vendetta. That communication followed enquiries from parents, including A, and children such as B and D being withheld or withdrawn from the centre.

17. [31]

    In the result I am satisfied that Mr Bird’s admissions were also admissible against Ms Clancy.

Admission and use of the children’s prior representations

1. [32]

   In 2015 advance orders had been sought by the plaintiffs under s192A of the Evidence Act about the admissibility of evidence of B and D’s disclosures about Mr Bird in 2010 and 2011 to their mothers; their electronically recorded police interviews; and the disclosures which the four other children had made about Mr Bird in their police interviews.

2. [33]

   RS Hulme AJ refused to make those orders, taking the view that given all that lay in issue between the parties about the disputed evidence, it would be inappropriate to rule on admissibility prior to trial: Plaintiff A & B v Bird [2016] NSWSC 997.

3. [34]

   When the final hearing commenced the admissibility of A and C’s evidence about the disclosures which B and D had made to them and the admissibility of B and D’s police statements, under either s63 or s64 of the Evidence Act, remained in issue.

4. [35]

   Statements made by B and D had been served. There was then no issue that neither still had a memory of what had happened to them while at Footprints. B and D were thus not finally required for cross-examination.

5. [36]

   After argument it was also finally conceded that A and C’s disputed evidence was admissible under s64(3) of the Evidence Act, because B and D were both to be called to give evidence. Consent orders under s136 were made, limiting the disclosures to evidence of what was said, rather than as evidence of the truth of what was said.

6. [37]

   While evidence in relation to four other children were considered by RS Hulme AJ, the plaintiffs finally relied on only on the disclosures made by child 1 and child 2. The admissibility of the evidence about their disclosures remained in issue.

7. [38]

   There was no question that the prior representations made by child 1 and child 2 were relevant to what was in issue: s55. Or that the disputed evidence involved hearsay, which is not admissible in civil proceedings subject to the exceptions which include those provided in ss63 and 64: s59. They provide:

8. [39]

   A “representation” is defined in the Dictionary to the Evidence Act to include an express or implied oral representation, as well as one to be inferred from conduct.

9. [40]

   Section 62 limits the application of ss 63 and 64 to first hand hearsay. That is a previous representation made “by a person who had personal knowledge of an asserted fact”, based on something he or she “saw, heard or otherwise perceived other than a previous representation made by another person about the fact”: s62(2). There was also no issue that the representations in issue were first hand hearsay.

10. [41]

    Section 61 also limits s63, precluding admission of a previous representation to prove an asserted fact, if the person who made it was, when the representation was made, not competent to give evidence about the fact because of s13. Section 12 provides that every person is competent to give evidence, except as otherwise provided. Section 13 does not have an age limit, relevantly providing:

11. [42]

    In issue was thus whether child 1 and child 2’s disclosures were admissible under either s63 or s64. That also depended on the concept of “unavailability”, which is dealt with in clause 4 of Part 2 of the Dictionary to the Evidence Act. It relevantly provides:

12. [43]

    The issue as to the admissibility of the evidence about child 2 was resolved by service of a letter from a psychologist, which the defendants accepted established that child 2 was not available to give evidence. That letter is not in evidence.

13. [44]

    An application was then, however, pressed under s135 of the Evidence Act for the exclusion of the disputed evidence on the basis that its probative value was substantially outweighed by the danger that it might be unfairly prejudicial to the defendants. That was in issue.

14. [45]

    “Probative value” of evidence is defined in Part 1 of the Dictionary to the Evidence Act to mean “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue”.

15. [46]

    There was no issue as to the probative value of the evidence, but the defence case was that it was unfairly prejudicial, given the procedural history of these proceedings and the result of forensic decisions which they had earlier made.

16. [47]

    The relevant history included that the proceedings were commenced in 2013; the plaintiffs had served s67 notices in 2015, which identified the basis upon which they then relied to establish the admissibility of the disputed evidence; RS Hulme AJ’s decision that admissibility of this evidence could not be determined before trial, given all that lay in issue; orders made as to when evidence had to be served in 2019; Garling J’s August 2020 decision about the plaintiff’s application for leave to serve further evidence, which went to establish the unavailability of child 1 and child 2: Plaintiff A v Bird [2020] NSWSC 1145; as well as the plaintiffs’ foreshadowed application on the first day of the hearing, for leave to serve subpoenas to give evidence on the children, an application which was opposed and finally not made.

17. [48]

    The defence case was that in those circumstances, unfair prejudice would result from the admission of the disputed evidence, because of their forensic decision not to investigate child 2’s medical and counselling history, in the way that they had investigated A and B’s history. That decision was the result of the view taken that on the evidence served, the plaintiffs would not be able to establish that child 2 was not available to give evidence. In the result, now to admit the disputed evidence would be unfairly prejudicial.

18. [49]

    I concluded that while the Court had a discretion under s135 to refuse to admit the evidence it could not, in the circumstances, be justly exercised.

19. [50]

    In coming to that conclusion I raised the possibility of an adjournment to undertake the investigation into the child’s history, but that was opposed by the defence, given its cost and all that would be involved in such an investigation.

20. [51]

    It had to be accepted that such an investigation might be both time consuming and costly. But that made it apparent that the forensic decision not to pursue such an investigation in relation to child 2 must have been made long before the proceedings before Garling J in August 2020.

21. [52]

    It had been known since 2015 that the plaintiffs sought to rely on the disputed evidence as tendency evidence. The view taken when the plaintiffs’ evidence was served, according to the timetable fixed, was that they would not thereby be able to establish the admissibility of child 2’s disclosures under ss 63 or 64. The result was the decision that no investigation into child 2’s medical and counselling history would be undertaken. But there can then have been no certainty that the disputed evidence would not be admitted at trial. That was a risk which the defendants chose to take.

22. [53]

    When the s67 notices were served in 2015, the defendants had been put on notice of the basis on which unavailability of the children was then sought to be established. Given that RS Hulme AJ refused to rule on admissibility; the children’s ages at the time of their disclosures and police interviews; the time likely to elapse before trial; the nature of what it was claimed Mr Bird had done to the children; and what was then relied on to establish unavailability, which included expert opinions, when the decision not to investigate child 2’s history was made, there was still a real possibility that at trial further evidence would be relied on about what had happened to the children after 2015.

23. [54]

    That materialised when evidence from the mothers was served in 2019 and when in 2020, Garling J gave leave to lead further evidence. That still left the parties disputing the question of child 2’s unavailability, but the dispute was resolved with the provision of a further medical opinion on the fourth day of the hearing. In this case, such an outcome was always a possibility, as was that the issue of admissibility would be decided against the defendants, if it had to be resolved by the Court.

24. [55]

    It follows that in earlier deciding not to investigate child 2’s history, the defendants chose to take the risk that this outcome would not eventuate, even though there was always a real possibility that it would.

25. [56]

    In those circumstances the conclusion that the probative value of the disputed evidence about child 2 was substantially outweighed by the danger that it might be unfairly prejudicial to the defendants, could not be accepted.

26. [57]

    The procedural history relied on did not establish such prejudice. This was not a case where the plaintiff’s conduct had reduced the defendants’ capacity to undertake the investigations which they complained they had decided not to pursue. That was rather the result of their own forensic decisions, decisions persisted in even though the investigation conducted into the history of B had produced information that at one point she resiled from a serious disclosure she had made about Mr Bird, after which the charges laid against him in relation to her were not pursued.

27. [58]

    The defendants complained that an investigation into child 2’s history might have also revealed such relevant information. But nothing which the plaintiffs did prevented, or reduced their capacity to pursue such enquiries and what was learned in the investigation into B can only have underscored the potential importance of an investigation into child 2 being pursued.

28. [59]

    As discussed in Dyldam Developments Pty Limited v Jones [2008] NSWCA 56 at [94], “Although the discretionary power is engaged, it may nevertheless be open to the Court to admit the evidence, for example because the party resisting admission has failed to take reasonable steps itself to avoid the prejudice.” Here it would have not only been open, but reasonable for the defendants to investigate child 2’s history and there was nothing which precluded them from doing so.

29. [60]

    Unlike Dyldam Developments, here it was not established that the plaintiffs had been derelict in compliance with their obligations. They had issued s67 notices and sought a pre-trial ruling on admissibility, which was resisted. Prior to trial they had served evidence in relation to child 2 and when it was appreciated that further evidence might be required to establish her unavailability, they sought leave to serve further evidence, which was granted.

30. [61]

    A psychologist’s report which led to an acceptance that child 2 was not available was later served. Undoubtedly it may have been preferable if the report had been served earlier, but its date and the opinion there expressed which resolved this issue were not revealed to the Court.

31. [62]

    That this may have had adverse evidentiary consequences for the defendants was the result of forensic decisions they had earlier made, not the plaintiffs’ dereliction. In the result the defendants’ decisions could not establish that the probative value of the disputed evidence was substantially outweighed by the danger that it might be unfairly prejudicial to them.

32. [63]

    The position in relation to the disputed evidence about child 1’s disclosures was different.

33. [64]

    It was not accepted that it was admissible, there being no evidence from child 1 that she had no memory of what had happened to her at Footprints and no evidence from any medical expert about adverse consequences of calling her to give evidence.

34. [65]

    To establish that child 1 was unavailable, the plaintiffs relied on her mother’s evidence, that of their solicitor Ms Buchanan and an opinion of Associate Professor Quadrio, an expert who had provided reports in relation to B.

35. [66]

    Child 1 was aged 4 at the time of her first disclosures in 2010 and 5 when last interviewed by police. Whether she still has any memory of what happened is not clear.

36. [67]

    Ms Buchanan described the steps taken to call evidence from child 1. Amongst other things her mother initially told Ms Buchanan that she did not wish child 1 to be involved in the proceedings, because there had been long lasting impacts from what had happened and she did not want child 1 traumatised further; that child 1 had mental health issues; and that she was undergoing counselling for trauma, stress, anxiety and depression.

37. [68]

    In August 2020 the mother also told Ms Buchanan that child 1’s therapist had advised that if child 1 was given free rein, all she would talk about was what had happened to her at Footprints. Thus she still would not permit child 1 to be involved in any way. This advice suggested that child 1 did have some memory of the events.

38. [69]

    On 7 September 2020 child 1’s mother told Ms Buchanan, however, that she had not spoken to child 1 about Footprints in nine years. To the best of her knowledge, child 1 did not remember anything and she did not want child 1’s memories triggered. Accordingly, she would do everything she could to stop child 1 giving evidence; that she would not allow it to happen; and that she would even get arrested.

39. [70]

    On 9 September 2020 when asked if child 1 would provide a statement confirming that she did not remember, her mother again said that to the best of her knowledge child 1 did not remember. She also refused to speak to child 1 about this, because she did not want to bring up any memories, or harm her.

40. [71]

    In the result the plaintiff’s application that the disputed evidence was admissible was pressed under s63 and paragraph (f) of the definition of unavailability of persons in Pt 2 clause 4 of the Dictionary of the Evidence Act.

41. [72]

    On the evidence I was satisfied that child 1 was unavailable.

42. [73]

    The only other obvious step which the plaintiffs could have taken to lead evidence from child 1 was to have issued a subpoena, which on the evidence her mother would have resisted. Perhaps on such an application evidence might have been led from child 1’s therapist, to establish the trauma child 1 had suffered and that giving evidence about these matters would further harm her. If such evidence was led, there is a real likelihood that the subpoena would be set aside.

43. [74]

    But no subpoena was issued and there was no evidence from the therapist and so what had to be resolved was whether all reasonable steps had been taken by the plaintiffs to secure child 1’s attendance, but without success. The defendants contended that to establish this, the plaintiffs had to either subpoena child 1, or lead expert evidence of the kind provided in relation to child 2.

44. [75]

    I was satisfied that this could not be accepted.

45. [76]

    The definition of “unavailable” draws a distinction between “reasonable steps to secure attendance” and “reasonable steps to compel attendance”: paragraphs (f) and (g) of the definition. It follows that the legislative scheme does not envisage that to establish that reasonable steps have been taken to secure attendance, that it must be shown that steps to compel attendance have been taken.

46. [77]

    In any event, as I have explained, the evidence established that any attempt to compel attendance would also have been resisted.

47. [78]

    While the situation which arose in Cox v State of New South Wales (2007) 71 NSWLR 225; [2007] NSWSC 471 was relied on by the plaintiffs, it was not really of assistance in the case of child 1. There an 18 year old was pursuing damages for injuries suffered at school where he was bullied when aged six and seven. Put in issue was whether he was competent to give evidence about various acts, given that he had no memory of them. Simpson J held that he was not available to give evidence about those acts and that what he had told his mother about them at the time, was admissible under s63. Her Honour observed that because he had no memory of the acts in question, he could give no rational reply to any question about them and so he was unavailable to give evidence about them: at [16].

48. [79]

    That conclusion was arrived at, however, before s13 was amended in 2009 and the definition of unavailability of persons in clause 4 of the Dictionary to the Evidence Act was amended in 2010, to take their current form.

49. [80]

    In construing legislation one relevant consideration is the consequences of the competing interpretations. Especially when two meanings are open, “it is proper to adopt that meaning that will avoid consequences that appear irrational and unjust”: Public Transport Commission (NSW) v J Murray-More (NSW) Pty Ltd (1975) 132 CLR 336 at [350]; [1975] HCA 28.

50. [81]

    I consider that in enacting these provisions of the Evidence Act in their present form, the Legislature did not intend that the consequences of the passage of time, which make it impossible or even very difficult for a person to give evidence about what occurred to them when they were very young, would make inadmissible reports which they had made at the time that those events occurred, to their mothers and police.

51. [82]

    That is why the objections to the evidence about the other children fell away.

52. [83]

    In all of the circumstances established by the evidence I concluded that “all reasonable steps” had been taken to secure child 1’s attendance to give evidence. The plaintiffs could not have compelled child 1 either to be examined by an expert, or to attend to give evidence, without order of the Court. Ms Buchanan’s evidence thus established that the steps taken to pursue the child’s attendance were reasonable. That any other reasonable step could have been pursued, was simply not apparent.

53. [84]

    In the result I was satisfied that child 1 was unavailable and the disputed evidence was admitted.

Why the tendency evidence was admissible

1. [85]

   The admissibility of Mr Bird’s admissions and the four children’s disclosures as tendency evidence also remained in issue. It was for the following reasons that I concluded that they were admissible.

2. [86]

   Section 97(1) of the Evidence Act provides:

3. [87]

   In submissions it was explained for the plaintiffs that what was sought to be established by the disputed evidence was that Mr Bird had a sexual interest in young children, which he had acted on. The s97 notices specified the acts relied on to establish Mr Bird’s alleged tendency and if there was any deficiency in the notice, the discretion given by s100 of the Evidence Act not to require a notice to be given, should be exercised.

4. [88]

   The defence case was that the s97 notices were deficient and what was relied on did not establish the tendency submitted.

5. [89]

   Again this issue required consideration of “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue”. As explained in IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 in assessing this it had to be assumed that the evidence would be accepted, that is, that it was both credible and reliable. It also had to be taken at its highest: at [47].

6. [90]

   The term “significant probative value” is not defined in the Act. As explained in Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 at [16].

7. [91]

   The alleged tendency was notified by three s97 notices given in 2015 in relatively similar terms. The facts in issue that the tendency was adduced to prove was that Mr Bird had assaulted B and D in the way alleged. Then Regulation 5 of the Evidence Regulation 2015 (NSW) relevantly required that:

8. [92]

   The tendency notices for A and B, for example, referred at 1.1 to “the tendency contained in Mr Bird’s ERISP”, with the answers he gave which were relied on identified in 1.2. and 1.3, by reference to particular acts:

9. [93]

   At 2.1 – 2.2 of this notice it was further notified:

10. [94]

    Attached to the notice were documents which included the statements made to police by A, C and the mothers of the other children, as well as the children’s police interviews. These documents identified the particular acts which each child had disclosed, including Mr Bird touching some of them on the vagina, massaging and patting them and kissing, including with an open mouth on the lips. There was no issue that such acts could involve inappropriate sexual dealing, apart from one occasion when Mr Bird kissed B on the forehead in A’s presence.

11. [95]

    The probative value of the disputed evidence thus lay in its capacity to support the credibility of B and D’s accounts: IMM at [62]. There was no suggestion in this case of any risk of joint concoction.

12. [96]

    The acts which D, child 1 and child 2 disclosed had various similarities. They did not disclose kissing or Mr Bird pulling their pants down, acts which B disclosed. All of those acts had to be considered in light of the acts Mr Bird admitted, including touching child 1 and other children in various ways, which included kissing; massaging on the neck, shoulders and back; touching and scrunching their bottoms; touching them on the skin under their clothes, including low on the tummy; and even having had contact, albeit he said inadvertent, with their genitals. There was no issue that some of these acts could have involved inappropriate sexual dealing.

13. [97]

    Mr Bird also gave an account of how he dealt generally with children at the centre, in the affectionate way that he described, treating them he said as he would his own grandchildren. His admissions thus not only supported the credibility of the disclosures which D, child 1 and child 2 had made, but also those of B.

14. [98]

    It followed that the defence case that the notices given were inadequate could not be accepted. There is no rigid formula specified by the Evidence Act which needs to be adopted, to identify the acts sought to be relied on in a s97 notice: The Queen v Dennis Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40 at [84].

15. [99]

    It is the nature and substance of what is sought to be advanced which must be identified in the notice, by reference to the documents which are sought to be tendered. There can have been no misunderstanding about which parts of Mr Bird’s admissions, or the acts which the children had each disclosed to their mothers and/or police, on which the plaintiffs sought to rely, as establishing his tendency to act in the particular ways notified.

16. [100]

    The notice requirement may also be dispensed with under s100 and if that were necessary, given what had been notified, in the circumstances I have discussed I would have exercised that discretion. But I was satisfied that was unnecessary, because the notices given were not inadequate.

17. [101]

    In assessing the probative value of the disputed tendency evidence, what had to be considered was the strength of the inferences which could be drawn from the evidence about Mr Bird’s tendency to act in the particular ways notified and the extent to which that tendency increased the likelihood that the alleged assaults of B and D did, or did not occur: Hughes at [41] and Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 106 FCR 51; [2000] FCA 1886 at [76].

18. [102]

    The fact that the acts relied on were not identical was not fatal to the conclusion that the disputed evidence had significant probative value. A tendency expressed with particularity will more likely be significant: Hughes at [64]. But similarity in conduct is not a pre-condition to admission: Hughes [37]-[39].

19. [103]

    In assessing the admissibility of the disputed evidence, account also had to be taken of other relevant evidence, which included that of A and C. Contrary to the defence case, that required consideration of evidence which went beyond what was contained in their police statements: Hughes at [40]. A’s evidence that she had seen Mr Bird kiss B on the forehead, although that was also in issue, was thus relevant, as was the evidence about his role at the centre; the access which this gave him to children who attended; and how he conducted himself towards those children.

20. [104]

    Mr Bird was aged in his 60’s when he made his admissions. He then disclosed that he was a silent partner in the business who had been working every day at the centre as a volunteer, since it was acquired by Little Pigeon. There he not only had daily access to children, but the opportunity to interact with those who had made the disclosures, both inside the centre and in the yard, where the children said the acts they disclosed had occurred. There was no issue that his work was not then confined only to that of a cook, maintenance man and the person responsible for OHS, but he also played in the yard with children and interacted with them inside, in the various ways he and other witnesses described.

21. [105]

    In Bauer it was explained that in the context of a multiple-complainant sexual offences case, assessing whether evidence that the accused has committed a sexual offence against one complainant is significantly probative of the accused having committed a sexual offence against another complainant, involves “the logic of probability reasoning”: at [58].

22. [106]

    For evidence of offending against one complainant to be significantly probative of offending against another, there must be some feature which links the offending together. The mere fact that an accused has committed an offence against one complainant is ordinarily not significantly probative of the accused having committed an offence against another complainant, but if there is some common feature “of or about” the offending, “it may demonstrate a tendency to act in a particular way, proof of which increases the likelihood that the account of the offence under consideration is true”: at [58].

23. [107]

    Reference was made in Bauer to Hughes to illustrate this. Hughes involved multiple complainants, who each alleged that the accused had committed one or more sexual offences against her when she was a child. But there were significant differences in kind and circumstance between the alleged offences. It was held by majority that taken as a whole “the evidence of each alleged sexual offence and uncharged act demonstrated a common feature that a man of mature years had a sexual interest in female children under 16 years of age and a tendency to act upon it by committing sexual offences against them opportunistically in circumstances which entailed a high risk of detection”. It was concluded that the significance of this common feature was such that the evidence of the offences and uncharged acts relied on had significant probative value, in proof of each other charged offence: Bauer at [59].

24. [108]

    In this case the plaintiffs relied on the disputed acts which the four young children, when aged 2, 3 and 4, had disclosed to their mothers and police, together with Mr Bird’s own admissions about his acts towards children at the centre, to establish his tendency to act in the notified ways. That Mr Bird had access to all four children at the centre; that its operation was highly regulated and that its policies did not permit staff to be alone with children, were thus relevant linkages.

25. [109]

    There were similarities and differences between what each child had disclosed. But a common feature was that each child’s disclosure involved Mr Bird, a man of mature years, touching them opportunistically in sexually inappropriate ways at times when his actions at this highly regulated workplace entailed a very high risk of detection.

26. [110]

    It was these features which I accepted made the disputed evidence significantly probative of Mr Bird having assaulted B and D, in the ways they had disclosed.

27. [111]

    In coming to that conclusion it was also relevant that the restriction on the receipt of tendency evidence imposed by s101 in criminal proceedings, when tendency evidence is sought to be adduced about a defendant by the prosecution, does not apply to civil proceedings. Thus the plaintiffs did not need to establish that the probative value of the disputed evidence outweighed the danger of unfair prejudice to the defendants.

28. [112]

    That there were issues as to the children’s understanding of the concepts of truth and lies at the time they made their disclosures and that they could not be cross-examined did not detract from the conclusion that having regard to other evidence adduced or to be adduced, the disputed evidence did have significant probative value and was thus admissible as tendency evidence.

29. [113]

    Those issues have to be taken into account, however, in resolving whether the plaintiffs have met the onus which falls upon them to establish on the balance of probabilities that the assaults which the children disclosed in fact occurred.

30. [114]

    It was also the defence case that if admitted, the use to which the tendency evidence could be put should be limited under s136, because there was a danger that admitting the evidence might be unfairly prejudicial to Mr Bird. That submission was not advanced in relation to his own admissions.

31. [115]

    Section 136 provides:

32. [116]

    The unfair prejudice pointed to was the defendants’ inability to cross-examine the children.

33. [117]

    The section is not concerned with prejudice that results from the receipt of evidence tending to establish the case of the party tendering it. It is rather concerned with prejudice which is unfair to the other party, because there is a real risk that the evidence will be misused in some unfair way: Ainsworth v Burden [2005] NSWCA 174 at [99].

34. [118]

    What the suggested unfair prejudice of the evidence was is not entirely clear to me.

35. [119]

    In Ordukaya v Hicks [2000] NSWCA 180, evidence had also been admitted under s64 and the prejudice which resulted from the inability to cross examine, thus also arose to be considered. It was held that the resulting prejudice was not “unfair to the point of outweighing material of high probative value” and that it was unnecessary to decide whether exclusion was confined to situations where the evidence had been obtained by unfair means or had “a tendency wrongly to excite the fact finder’s emotions and is of little probative value” at [39].

36. [120]

    An example of where the discretion to limit use of a document under s136 was exercised as to belief about the matters recorded is provided in White Constructions (ACT) Pty Limited (In liq) v White [2005] NSWCA 173. There it was found to be justified for reasons which included that the identity of the person who wrote the note was not proved; there was no evidence about the source of the information contained in the note; it was not clear whether the note recorded facts or opinions; there was no evidence of relevant personal knowledge of the matters contained in the note; and no evidence that the person was not available to be called and no explanation tendered for not calling him: at [239]-[240].

37. [121]

    The circumstances here were quite different.

38. [122]

    There is no question about who made the disclosures and there is not only evidence of what the children told their mothers and police, but an audio-visual recording of their police statements. There is also no issue about why the children, who were very young when they made their disclosures, are not available. Their disclosures concern things which they each experienced when very young and were made in relatively close proximity to the events, but it seems that only one of them may have any memory still of what happened to them.

39. [123]

    There is a balancing act involved in determining the use which can be made of the evidence, which requires consideration of things like the character of the evidence involved and the nature or strength of the potential prejudice to the defendant: R v Suteski (2002) 56 NSWLR 182; [2002] NSWCCA 509 at [127].

40. [124]

    Undoubtedly there was a resulting prejudice for the defendants from the admission of the disputed evidence. But the bare fact that the children could not be cross examined about their disclosures did not establish unfair prejudice, especially given that their disclosures will have to be assessed in the light of the admissions which Mr Bird himself made at the time.

41. [125]

    The question of what weight should be given to the disclosures will have to be determined in light of all the relevant evidence. That includes not only Mr Bird’s admissions, but that B later told her mother and a counsellor after he was charged that what she had said beforehand about him pulling her pants down, was untrue. Conclusions will also have to be reached as to what weight the tendency evidence should be given, given that the disclosures were made by such young children, who could not be cross-examined.

42. [126]

    But given that this was a trial before a judge, rather than a jury, I was unable to reach the conclusion that there was a danger of unfair prejudice which would result from the admission of the evidence which required, as a matter of justice, that an order be made limiting the use of the evidence in the way that the defendants sought.

Credibility and reliability

1. [127]

   In issue was the credibility and reliability of A, C, Mr Bird and Ms Clancy, as well as the reliability of the children’s disclosures, which I will deal with separately.

2. [128]

   I am satisfied that there were issues as to the reliability of parts of the evidence of A, Mr Bird and Ms Clancy and as to the credibility of aspects of the evidence of both Mr Bird and Ms Clancy.

3. [129]

   In their case it was relevant to take into account that the evidence established that Mr Bird, with the assistance of Ms Clancy, breached an undertaking not to dissipate his assets, pending resolution of these proceedings. It appears that proceeds of the sale of his house have been used to fund the defence.

4. [130]

   A made her statement in March 2019 and gave evidence in September 2020, long after the events in 2009, 2010 and 2011 which she described. She is highly educated, working when B attended Footprints as a youth worker. She was then a mandatory notifier of suspected child abuse and trained in its detection, but there is no suggestion that she ever made a notification in relation to Footprints.

5. [131]

   Some years before these events A had been treated for mental health issues. After B’s disclosures she came to believe that Mr Bird had assaulted B and afterwards suffered symptoms which required treatment. The psychiatric experts Dr Allnut and Dr Smith agreed that she had suffered a psychiatric injury, but could not agree what the nature of her condition was, either before or after these events, or her prognosis.

6. [132]

   Even before B made her disclosures A had a concern about B’s welfare at Footprints. She gave written instructions in 2009 that male employees were not to change her nappy, explaining “I hope you understand that as a youth worker my education and experience tends to make me extra cautious.”

7. [133]

   In 2009 A believed that it was inappropriate for Mr Bird to have kissed B on the forehead in greeting when she dropped her off at the Centre, about which she raised her concerns with Ms Clancy. Whether Mr Bird kissed B that day was in issue.

8. [134]

   A also considered it inappropriate for Mr Bird to be sitting in the playground with children in his lap, or bouncing them on a beach ball, as she had observed repeatedly, but she did not raise any concerns about these activities.

9. [135]

   In cross-examination A was a careful witness who could not recall a great deal about some matters which she was asked about, but who accepted that contemporaneous records accurately reflected things which she had said and done at the time.

10. [136]

    A maintained in cross-examination that her statement recorded all of the occasions she had discussed Mr Bird with B, but she there made no reference to what B told her and a counsellor, Ms Ly, in September 2011 about having made up what she had earlier told A about Mr Bird having pulled her pants down.

11. [137]

    In cross-examination A initially said she could not recall this, but agreed that she did not believe what B had said. She had also not believed B earlier, before Mr Bird was charged, when B said that it was Nat, a female childcare worker at Footprints who became her baby sitter, who had kissed her with an open mouth. Before this B had repeatedly said that Mr Bird had ‘spicy lips’. Later B said it was Mr Bird who had kissed her like this.

12. [138]

    When she gave her evidence A still believed that Mr Bird had both kissed B and pulled her pants down.

13. [139]

    It must be accepted that hearing that Mr Bird had been charged with offences against other children was distressing for A and that understandably, she then had real concerns that B may also have been assaulted, given what she had long been saying about Mr Bird.

14. [140]

    In her cross-examination A said that immediately upon hearing of the charges she believed them to be true, because of her view about the honesty of children who made such complaints and because of the police decision to charge Mr Bird.

15. [141]

    This caused A to accept the opportunity offered by police to have B interviewed by a counsellor. A was not satisfied with the counsellor’s advice that B had not said anything which raised any concern and she pursued her concerns in discussions with B.

16. [142]

    B later made disclosures to A about Mr Bird having kissed her and on one occasion pulling her pants down, after which charges were also laid against him. This was also undoubtedly very distressing for A. A described later being “broken” by the DPP’s decision not to pursue criminal charges against Mr Bird. This followed B having told A and Ms Ly that Mr Bird had not pulled her pants down, as she had said before he was charged, because she wanted to trick C, and B being reinterviewed by police. In that interview B said he had only kissed her once. A also did not believe what B then said.

17. [143]

    A had a sad history of abuse by her former partner and had suffered some mental health problems for which she had received various treatment, before these events. In her cross-examination A drew a distinction between being diagnosed by a psychiatrist to be suffering things like anxiety and depression and in the past having accepted treatment prescribed by her GP for symptoms involving anxiety and depression, for which she had sought treatment at times.

18. [144]

    A’s case was that her health, ability to work and family life were also adversely affected by what Mr Bird had done to B. A’s evidence was that in the months after the DPP’s decision she began abusing drugs and alcohol to the point that there was strain on her marriage; she went to Ms Clancy’s home and caused damage there, which resulted in her being charged with a criminal offence, for which no conviction was finally entered; and she seriously injured herself on one occasion.

19. [145]

    While A was able to pursue higher education at times after B’s disclosures, she was not able to complete her Master’s Degree. A also commenced these proceedings and appeared before the Royal Commission into Institutional Responses to Child Sexual Abuse.

20. [146]

    That A’s prior history, as well as B’s disclosures, had an impact on her response to learning that Mr Bird had been charged; the disclosures B later made to her; her withdrawal of one of them; and the DPP’s decision was thus clearly possible. As was that her memory of some of these events had been affected.

21. [147]

    In light of all of this evidence I am satisfied that there is a question as to the reliability of aspects of A’s evidence. This requires that her evidence about the events of 2010 and 2011 and their consequences; what she did and why; and what she later told psychiatrists who examined her, to be approached with some care.

22. [148]

    There can also be no question as to how distressing C found the disclosures which her daughter D made to her about Mr Bird; the police investigation which led to her decision not to pursue charges against him, because of its impact on D; and later, the DPP’s decision not to pursue the criminal charges which were laid against Mr Bird.

23. [149]

    At the time C took the view that it would be too detrimental to D to be involved in the pursuit of criminal charges against Mr Bird, given how adversely she had been affected.

24. [150]

    C also required treatment for health issues which she suffered after D’s disclosures and even came to the conclusion that she had to leave her job. She agreed in cross-examination not only that her ex-partner disagreed with her response and considered that she had become obsessed with what had happened to D, but that she had in fact become obsessed.

25. [151]

    C made her police statements in February and April of 2011 and her statement for these proceedings in March 2019. In March 2016 C had also given evidence before the Royal Commission into Institutional Responses to Child Sexual Abuse. What she then said was not in evidence, but she described this to have been a harrowing experience, involving months of preparation.

26. [152]

    In cross-examination C gave an account of some disclosures later made to her by D, which she had not referred to in her statement or her police statements.

27. [153]

    C said that she had relied on her solicitor to help her ensure that the important matters were contained in her statement and that the other disclosures she had referred to had been contained in her police statement. In fact she had dealt with C’s ongoing disclosures, which she described as a drip feed of “pieces of a horrifying puzzle”, in a letter attached to her April 2011 police statement.

28. [154]

    In the result I did not have the types of reservations about the reliability of C’s evidence that I did about that of other witnesses.

29. [155]

    Having voluntarily given police a wide-ranging interview after he was arrested and charged with offences in relation to child 1, in which Mr Bird made numerous admissions contrary to his interests, given the charges laid against him, in these proceedings he swore a statement in which he simply denied the alleged assaults. There he gave no explanation at all of the contradictory and damaging admissions which he had earlier made.

30. [156]

    Mr Bird told police about how he had acted towards the children, as he explained, as he would act towards his own grandchildren in ways that he saw no difficulty with at all.

31. [157]

    His admissions included repeated descriptions about the various inappropriate ways in which he had touched children while working at the centre, including child 1. They included squeezing them on the bum in a manner which he said had probably involved an assault and which teachers were not permitted to engage in.

32. [158]

    In cross-examination Mr Bird said repeatedly that the various acts which he had so admitted were untrue. Mr Bird then said that he understood that it was wrong to kiss children or touch them in the ways he had described in his police statement. But he could not explain at all why he had repeatedly volunteered to police acts which he apparently had never engaged in.

33. [159]

    Mr Bird’s evidence included that he initially did not understand what he had been charged with, because he had not been given, or had not heard the name of the alleged victim on arrest; that he was in shock; and that he was confused. The interview was recorded. Contrary to his evidence, from what he said early in the interview it is apparent that he was aware from the outset that the charges concerned child 1.

34. [160]

    There was no issue about the way that the interview was conducted. The questioning seemed entirely fair to Mr Bird. When being questioned about his conduct towards child 1 he evinced no confusion or lack of understanding of why he was being asked about her.

35. [161]

    Mr Bird also did not seem to be shocked, confused or even much concerned about what he was being asked or had volunteered, until he was asked about having touched child 1 on the genitals.

36. [162]

    It is thus impossible to accept the explanations Mr Bird gave in cross-examination for his admissions.

37. [163]

    It is relevant that then he was vehement not only in his denials of having done what the children had disclosed, but also of the acts he had admitted. For example he then denied that he had touched child 1 “on the butt”. But when asked by police about her disclosure that he had “massaged her wee wee”, it was Mr Bird who had volunteered:

38. [164]

    Mr Bird’s evidence was that while he could remember saying something to that effect to the police, he had no idea why he said it and he was not referring to patting child 1, or touching her below the waistline, or on her bottom, but was maybe referring to her back. He also could not remember having also said that he had massaged her “to the top right of her bum, and then scrunched her butt” and explained that he must then have been in a state of shock.

39. [165]

    Mr Bird’s evidence was also that irrespective of having told police that he had "massaged her bum then scrunched her butt", he had not done that. But when asked whether what he had said in the police interview was untrue, his answer was “Possible”. His evidence was also:

40. [166]

    Later in the police interview after he had been asked about having touched child 1’s vagina, which he denied, Mr Bird again volunteered that he had squeezed her butt. When asked about this he said that was “something I wouldn’t do” and that while he had said it, “there’s no meaning to it”.

41. [167]

    What Mr Bird admitted to police must be considered together with the evidence of other witnesses and documents which contradicted aspects of his evidence, including as to his role at the centre, the work which he performed there and the access to and interactions which he had with children there.

42. [168]

    I am satisfied that Mr Bird’s evidence that he did not tell the truth in the answers which he gave on interview in 2010 cannot be accepted. I also do not accept that he did not initially understand that he was being asked, or that he was then confused or in a state of shock. Mr Bird’s evidence about what he told police was just implausible and must be rejected.

43. [169]

    As I observed during the course of the final submissions advanced for Mr Bird, it was extraordinary that someone in his position, obviously an intelligent, capable person, given his role at the centre, what he said to police, how he conducted himself in the witness box and how he was able to understand and answer questions both on police interview and in cross-examination, would tell police a whole lot of lies about things which were clearly very important, given the offences with which he had been charged.

44. [170]

    I have concluded that Mr Bird gave police an accurate account of his conduct which at the time he considered to have been entirely appropriate because, as he explained, he was treating children at the centre as if they were his grandchildren. He then said that the acts which he described reflected what he did to his grandkids and he did not then think, for example, that a scrunch on the backside was “a bad thing”.

45. [171]

    But in these proceedings it was Mr Bird’s evidence that at the time that he made his admissions he considered that there was something wrong with touching a child on the buttocks. He also agreed that this was something that you wouldn’t do, because it was inappropriate, very bad, indecent and an affront to the child’s dignity, uncivilised, disgraceful and something to be ashamed of.

46. [172]

    This evidence also cannot be accepted. That was plainly not what Mr Bird believed when he was working at the centre, or at the time of his admissions in 2010 and very much doubt that was what Mr Bird in fact believed.

47. [173]

    I am thus satisfied that considerable parts of Mr Bird’s evidence were not honestly given. In the result, overall, his evidence had to be approached with very considerable caution.

48. [174]

    Mr Bird’s interests and those of Ms Clancy and Little Pigeon were not entirely identical and so there was also an issue as to whose evidence would be preferred, in the case of conflict between he and Ms Clancy.

49. [175]

    This was difficult to resolve, given that I am not satisfied that either of them were entirely honest witnesses. I will thus indicate whose evidence I have preferred on particular matters.

50. [176]

    Aspects of Ms Clancy’s evidence were also contradicted by other evidence.

51. [177]

    It is understandable that Ms Clancy was distressed by child 1’s disclosures about her father. She was overseas at the time that Mr Bird was arrested. In her later communications to parents about his arrest she referred to her belief that this was the result of a vendetta against her and Mr Bird. She also told police about this and agreed that was her belief in 2010, but she did not deal with this in her 2019 or 2020 statements.

52. [178]

    The existence of such a vendetta or how it might have led to child 1’s disclosures was not put to child 1’s mother in cross-examination. What child 1’s mother was asked about were issues which had arisen about leaving her other children in the car when she dropped child 1 off. This had presumably resulted in the Department of Community Services, DOCS, notification Ms Clancy told police about, as well as an issue about child 1’s enrolment the following year.

53. [179]

    When cross examined about what she said when interviewed by police after Mr Bird’s arrest, Ms Clancy agreed that while she told police that she believed that child 1’s disclosure was “a vendetta for a DOCS complaint about the family”, she also then said that “my biggest fear is that this little girl has suffered this but the wrong person has been blamed”. Again Ms Clancy did not deal with this in her statements in these proceedings.

54. [180]

    Ms Clancy also did not there deal with Mr Bird’s police admissions, but she was cross examined about them. Her answers established that she considered some of the acts he had admitted to have been so inappropriate, that they should have been reported to her and to DOCS, given the requirements of the regulatory scheme under which the centre operated.

55. [181]

    When cross examined Ms Clancy also initially agreed that if a child made an allegation such as child 1 had made, she would accept that the child was telling the truth and would want it investigated. That was consistent with what she had told police in 2010 about child 1’s disclosure, that she believed what the child had disclosed, had actually happened to her. What she did not then believe was that it could have been Mr Bird who had so abused her.

56. [182]

    Ms Clancy also agreed that if more children made allegations of inappropriate behaviour, more investigation would be required.

57. [183]

    After an adjournment to deal with a relevance objection to a further question about believing children who made such disclosures, Ms Clancy’s evidence changed. Then she said:

58. [184]

    I am satisfied that this evidence was just not honestly given.

59. [185]

    What Ms Clancy said in cross-examination about some other matters also established that other answers which she gave were not given entirely in accordance with the requirements of her oath.

60. [186]

    For example, Ms Clancy initially said in cross-examination that the centre had an authorised supervisor from the time she acquired the centre in late 2008. That was a regulatory requirement and relevant to what lay in issue. But it emerged from documents Ms Clancy was shown that her evidence was untrue. The former owner and authorised supervisor of the centre, Ms Hillman, resigned from that position soon after she sold the centre to Little Pigeon.

61. [187]

    Also contrary to Ms Clancy’s evidence, other documents showed that Ms Kasim did not become the authorised supervisor in January 2009. That did not occur until October 2010, after approval of her appointment in May 2010. In fact the application for approval of Ms Kasim’s appointment to that position was only made in May 2009 and approval was delayed, because of problems with her qualifications.

62. [188]

    This put in context Ms Clancy’s evidence that while the centre had no authorised supervisor, it was she who performed the authorised supervisor’s functions, as well as the functions of the licensee. I also was not satisfied that this evidence was true.

63. [189]

    When Ms Clancy wrote to parents after Mr Bird’s arrest she advised them amongst other things that:

64. [190]

    Presumably unbeknownst to Ms Clancy when she so wrote, Mr Bird had already made admissions about conduct which should have been reported to DOCS.

65. [191]

    But contrary to Ms Clancy’s evidence and what she so wrote to parents, other documents in evidence establish that Footprints had not passed accreditation with ‘flying colours’. In fact Ms Clancy had pursued her dissatisfaction with the process and its outcome, by way of a formal complaint

66. [192]

    In the result, I was satisfied that some parts of Ms Clancy’s evidence simply could not be accepted and other parts also had to be approached with very considerable caution.

Should a Jones v Dunkel inference be drawn?

1. [193]

   It is convenient now to deal with an issue which arose as to whether a Jones v Dunkel issue should be drawn against the plaintiffs or the defendants in relation to the evidence of Ms Simons.

2. [194]

   Like other workers at the centre, after Mr Bird’s arrest Ms Simons was interviewed and made statements to police. It was the defendants who called evidence from others who had worked at the centre, but the plaintiffs who subpoenaed Ms Simons to give evidence in these proceedings and served a statement which they took from her, on the defendants. There was no issue that she was available to be called.

3. [195]

   When this issue was being addressed for Little Pigeon and Mr Bird in final submissions, the plaintiffs attempted to tender the outline of evidence and the two police statements Ms Simons had made, to which objection was taken. The tender was not finally pressed.

4. [196]

   The principles discussed in Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 are concerned with a party’s unexplained failure to give evidence or call a witness, where it would be natural for that evidence to be led, or where the party might reasonably be expected to lead that evidence.

5. [197]

   In RHG Mortgage Limited v Ianni [2015] NSWCA 56 at [75]-[96] the three relevant considerations were identified to be: first, that the missing witness would be expected to be called by one party rather than the other; secondly, that this evidence would elucidate a particular matter; and thirdly, that the absence is unexplained.

6. [198]

   When those conditions are satisfied, the inference that the evidence would not have helped the party’s case may be drawn. That inference can then be used in two ways.

7. [199]

   First, in deciding whether to accept any other evidence given, whether for or against that party, which relates to a matter about which the person not called could have given evidence. Secondly, in deciding whether or not to draw inferences of fact which are open, about matters that person could have given evidence about.

8. [200]

   In this case it was not easy to answer some of these questions.

9. [201]

   The absence of Ms Simon’s evidence could not fill an evidentiary gap, even if the inference was drawn. What her evidence would have been is not known, but it could certainly have elucidated various factual issues. Neither party explained why they had not called her and when the opportunity arose to have her statements put in evidence, that could not be agreed.

10. [202]

    Given that it was Little Pigeon who employed Ms Simons as a childcare worker at the centre at the relevant time and that it called other of its staff to give evidence about Mr Bird and the centre’s operations, it would be expected that the defendants would also call her in these proceedings, on those issues.

11. [203]

    Given that Ms Simons also become B’s baby sitter for a time, she could not only have given evidence about those matters, but also about her interactions with B at times other than when she was working at the centre. In fact, in one disclosure made to A, B had said that Ms Simons had kissed her with an open mouth. This explains why the plaintiffs had subpoenaed her to give evidence and taken and served her statement, which logically results in an expectation that they would call her to give evidence about whether she had kissed B, in the way B had described.

12. [204]

    In the result it is apparent that both the plaintiffs and the defendants made a forensic decision not to call Ms Simons, for reasons which were not explained. Presumably they were each satisfied that overall, her evidence would not assist their cases.

13. [205]

    In the result, in those circumstances, I am satisfied that the absence of evidence being led from Ms Simons cannot sensibly result in Jones v Dunkel inferences being drawn against anyone.

Did the alleged assaults occur?

1. [206]

   For the following reasons, I am satisfied that the plaintiffs have met the onus which fell upon them to establish, on the balance of probabilities, that Mr Bird did assault B and D.

2. [207]

   While the standard of proof in civil proceedings does not alter according to the gravity of the matters in issue, the evidence has to be assessed in accordance with s140 of the Evidence Act, which provides:

3. [208]

   The defendants relied on Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-363; [1938] HCA 34, followed in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 CLR 445; [1992] HCA 66, to submit that like the approach adopted by the Full Family Court in Re W [2004] FamCA 768; 32 Fam LR 249 at [14], given the serious allegations of sexual assault here advanced, that any conclusions reached should not rest on “inexact proofs, indefinite testimony, or indirect inferences”.

4. [209]

   In Briginshaw it was also observed that account had to be taken of the seriousness of the allegations made, the inherent unlikelihood of such an occurrence, or the gravity of the consequences flowing from the findings sought: at 361-363.

5. [210]

   Thus the defendants urged that conclusions favourable to the plaintiffs could not be arrived at, given the age of the children at the time they made their disclosures; the inconsistency of some of their disclosures; and because they could not be cross-examined.

6. [211]

   While these are all matters which must be taken into account when determining whether the plaintiffs have satisfied the onus which falls upon them, I do not accept that they necessarily preclude the conclusion that the onus has been satisfied.

7. [212]

   In Palmer v Dolman [2005] NSWCA 361 it was observed that s140 involves taking “due account” of what was said in Neat Holdings at 170-171: at [47]. That is, that in a civil case proof on the balance of probabilities remains the standard, even where the matter to be proved involves criminal conduct. The strength of the evidence necessary to establish a fact on the balance of probabilities may vary according to the nature of what is sought to be proved. Thus account must be taken of the “conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.”

8. [213]

   In this case, because the children could not be cross-examined, very careful consideration has to be given to the evidence of their disclosures. But a very important consideration in determining whether their disclosures can be accepted as true and the onus satisfied, is Mr Bird’s own admissions. They established that the way in which he admitted he touched children to whom he had access at the centre, was not only inappropriate, but had involved assaults. Thereby he corroborated important aspects of the children’s disclosures. It followed that their disclosures were not inherently unlikely, because he is not a person who falls into the class of persons discussed in Neat Holdings.

9. [214]

   Reaching a conclusion also rested on an assessment of the evidence of the other witnesses. Importantly, on the evidence of Ms Clancy and Ms Kasim, that some of Mr Bird’s admitted and on his account, unconcealed conduct was so serious, that it should have been reported to DOCS in accordance with the obligations imposed by the Children and Young Persons (Care and Protection) Act 1998 (NSW) and the Children’s Services Regulation 2004 (NSW).

10. [215]

    That, too, supports the conclusion that the plaintiffs have met the onus which falls upon them, notwithstanding how grave the conduct which the children described in their untested disclosures was and that they could not be cross examined about them.

11. [216]

    The defence case was that because of how the centre was operated, in accordance with the regulatory scheme, the alleged assaults could not have occurred and if they did, on the approach of Little Pigeon and Ms Clancy, they could not have been prevented, because Mr Bird must have acted surreptitiously.

12. [217]

    This was in issue.

13. [218]

    Little Pigeon purchased the centre in October 2008. Ms Clancy had then been working there for some time doing the book keeping as office manager and Mr Bird had done maintenance work there in 2007. Neither were trained child care workers.

14. [219]

    In June 2008 Little Pigeon had submitted an application to DOCS for approval to become a children’s services licensee. There Ms Clancy and Mr Bird were both identified to be individuals involved in the control and management of the licensee. They were required to submit personal information and character references to DOCS, its Director General having to be satisfied that they were each a fit and proper person to be concerned in the provision of a children’s service: regs 11, 117 and 118 Children’s Services Regulation. Mr Bird listed his relevant work experience to be as a voluntary handyman at Footprints the previous year.

15. [220]

    Mr Bird had obtained qualifications which enabled him to work as Footprint’s cook, OHS officer, maintenance man and first aid officer.

16. [221]

    Ms Clancy was responsible for the day to day management of the centre, but was not its authorised supervisor. That required qualifications which she did not have: reg 15.

17. [222]

    In August 2008 Ms Clancy sent DOCS a pre-employment and other screening consent form for Mr Bird, to enable the Commission for Children and Young People to consider whether he was suitable for a child related role.

18. [223]

    A licence was issued to Little Pigeon on 31 August. The licence included the express condition that it “develop procedures to ensure that each person who is an authorised supervisor or member of staff of the service complies with the provisions of the Children’s Services Regulation that apply to that person”.

19. [224]

    In the Footprints 2010 Information Pack “management” was initially described to be Ms Clancy, the director of Little Pigeon and Footprints; Ms Kasim, the Centre Manager and Mr Bird, the OHS Officer and cook. Later in the “Footprint Management” section, accompanying their photographs Ms Clancy was said to be the owner and director of Footprints; Mr Bird a full time volunteer, the cook, OHS officer, maintenance person and playground supervisor; and Ms Kasim the authorised supervisor and nursery head teacher.

20. [225]

    That was untrue. Ms Kasim was not appointed to that position until October 2010.

21. [226]

    While there was no authorised supervisor for this considerable time, the licence conditions which applied to the authorised supervisor, applied to Little Pigeon: Reg 104. Section 210(2) of the Children and Young Persons (Care and Protection) Act prohibited the functions of the authorised supervisor being delegated to anyone else.

22. [227]

    It was not Ms Kasim’s evidence that she performed the functions of authorised supervisor before she was appointed to that position. It was finally Ms Clancy’s evidence that it was she who both had responsibility for and performed those functions.

23. [228]

    In the result there was an issue as to whether the responsibilities of the authorised supervisor were adequately attended to, prior to Ms Kasim’s appointment. Given Ms Clancy’s evidence that she spent most of her time in her office and how Mr Bird admitted he was conducting himself, it cannot be concluded that they were.

24. [229]

    The centre’s child protection policy required that concerning behaviour by children or staff, which could indicate that they were being harmed in identified ways, be reported to DOCS.

25. [230]

    Mr Bird’s evidence was that he had never read the policy and no report was ever made to DOCS about any of the acts he admitted, including the incidents Mr Bird told police about, where girls had on more than one occasion lifted their skirts and shown him their vagina.

26. [231]

    As Ms Clancy accepted, this was unusual and concerning behaviour which should have been reported to her by primary care staff and may have required notification to DOCS. There was also no doubt in her mind that other of the acts which Mr Bird admitted, should have been reported. Ms Kasim agreed. But no reports were ever made. Nor did Ms Clancy report A’s complaint about Mr Bird having kissed B, because she considered that it had been withdrawn.

27. [232]

    The defence case was that neither Ms Clancy nor the other staff members had been taken to the child protection policy in cross examination, or had it put to them that it was not in effective operation and so it could not be concluded that the policy was not being enforced.

28. [233]

    I am satisfied that this cannot be accepted, because other evidence establishes that the child protection policy was not in effective operation, at least so far as Mr Bird was concerned. That had the result that Mr Bird had the opportunity to pursue the inappropriate contact with children at the centre, which he admitted to police.

29. [234]

    If the policy had been in effect, as the licence and regulations required, it would simply not have been possible for Mr Bird to have repeatedly acted in the various inappropriate ways that he admitted, without at least some of them being notified to DOCS.

30. [235]

    Had that occurred Mr Bird’s assaults may well have been prevented.

31. [236]

    The parties advanced their cases by reference to the requirements imposed by the Children’s Services Regulation as at January 2010 to 30 March 2010. I am also satisfied that the evidence established that various aspects of the regulatory regime were not being complied with, at the relevant times.

32. [237]

    Regulation 25 specified provisions for the purpose of ss 209 and 210 of the Children and Young Persons (Care and Protection) Act, which dealt with licence conditions, licences and authorised supervisors. The specified provisions imposed requirements regarding: facilities and equipment; staffing; the use of volunteers; child numbers; and the operation and administration of the centre, including records and authorised supervisors.

33. [238]

    Regulation 25(3) provided an additional condition requiring the licensee to develop procedures to ensure that the authorised supervisor and all other members of staff complied with the provisions of the Regulation that apply to them.

34. [239]

    The term “staff of a children’s service” was defined in the Dictionary to the Regulation to mean “those persons employed for remuneration by the licensee of the service who are engaged in the provision of the service”.

35. [240]

    “Remuneration” was not defined. Its ordinary meaning is relevantly “that which remunerates; reward; pay; little remuneration for his services:” Macquarie Dictionary.

36. [241]

    Mr Bird was not paid wages, but he did receive other rewards. In cross examination he identified them to be a phone and payment of his registration, petrol and the house phone, as well as cash which Ms Clancy agreed she gave him from time to time. It follows that this arrangement did not preclude him from falling within the definition of “staff of a children’s service”.

37. [242]

    Part 4 Licence conditions – staffing requirements of the Regulation dealt with both staff and volunteers. Regulation 51 regulated who could be employed to work in a centre and provided that the licensee had to ensure that they had an understanding, or basic knowledge of prescribed matters, including their responsibilities under child protection legislation: reg 51(4).

38. [243]

    There was no such requirement in relation to volunteers and on Mr Bird’s evidence he did not have such an understanding or knowledge. Ms Clancy’s evidence was to different effect. On this issue Mr Bird’s evidence must be preferred, consistent as that was with his earlier admissions.

39. [244]

    “Volunteer” was defined in the Dictionary to mean “a person who assists in the provision of the service but is not employed or engaged for remuneration in relation to that assistance”.

40. [245]

    Regulation 57 permitted the use of volunteers, providing:

41. [246]

    “Children’s service” was defined in the Dictionary to include a centre based children’s service such as Footprints.

42. [247]

    Regulation 56 dealt with “the overall supervision of the provision of the services” by the authorised supervisor, specifying the minimum periods of time he or she had to be present each week. In Footprints’ case that was for 50% of the time it provided its services: reg 56(2)(b).

43. [248]

    The term “overall supervision”, used in reg 56 in the case of the authorised supervisor was not defined. Nor was the term “accompanied by primary contact staff”, in reg 57 in the case of volunteers. But “primary contact staff” was defined in the Dictionary to mean:

44. [249]

    While in his statement Mr Bird said that his duties were cooking, OHS, general maintenance, first aid and generally tidying up and gardening, there was finally no issue about the considerable contact which he had with children, both in the yard and inside the centre, including greeting children. Regulation 74 required that they be received by a member of staff.

45. [250]

    Mr Bird was thus not engaged solely in administrative, clerical or domestic duties and he was involved in caring for the children, in the various ways he and the other witnesses described and undertook work which the regulations required that employees undertake. Little Pigeon represented him to be a volunteer, despite his work and the various rewards he received. Ms Clancy did not consider him to be a member of the primary contact staff, although he attended some, but not all staff meetings.

46. [251]

    Given the extent of his work with children, it is difficult to understand why.

47. [252]

    There were also issues both as to whether Mr Bird was always accompanied when in the presence of children, as reg 57 required, and whether he was adequately supervised when he worked at the centre.

48. [253]

    The Regulations imposed on the authorised supervisor responsibility for overall supervision of the service. When volunteers were used to assist in provision of a children’s service, volunteers were not merely to be “supervised” when in the presence of children, they always had to be “accompanied” by primary contact staff.

49. [254]

    Neither word was defined. The ordinary meaning of “supervise” is “to oversee (a process, work, workers, etc.) during execution or performance; superintend; have the oversight and direction of”: Macquarie Dictionary. And that of “accompany” is relevantly “1. to go in company with; join in action: to accompany a friend on a walk.”

50. [255]

    It follows that even if someone is being “supervised” in the performance of their work, that will not necessarily result in them being “accompanied”, when it is performed.

51. [256]

    If Mr Bird was truly a volunteer, reg 57 required that another member of the primary contact staff accompany him, that is always be together with him, when he was in the presence of children. A staff member merely being in his vicinity could not satisfy this requirement.

52. [257]

    I am satisfied that the evidence establishes that he was not always so accompanied.

53. [258]

    Ms Clancy’s evidence was that like staff Mr Bird was not permitted to have unsupervised contact with children and there were always at least two people present. But in her statement Ms Clancy did not use the regulatory language, which required that he be “accompanied” by primary contact staff whenever in the presence of children. That is consistent with Mr Bird having been treated in the same way as other members of staff, rather than as a volunteer.

54. [259]

    Ms Clancy and others described how children climbed on Mr Bird and other members of staff, while they were working outside and that they also sat on his lap. She said that there were no areas within the grounds that were not supervised and that there was an appropriate system of supervision in operation, in which all staff were trained and which was enforced, including in relation to interaction and physical contact with children.

55. [260]

    Ms Clancy did not deal with how Mr Bird was trained in this system, or how it ensured that he was always accompanied. But in cross-examination she agreed that if the disclosures which the children had made were true, those systems had failed.

56. [261]

    During the time that Ms Clancy finally said that it was she who was performing the duties which fell both to the licensee and authorised supervisor, it cannot have been her who either supervised Mr Bird’s work, or accompanied him when he was in the presence of children. She mainly worked in the office. If supervision of Mr Bird was a part of the system, that was a responsibility which must have fallen to primary contact staff, but none of those called gave evidence that it was their responsibility to either supervise or accompany Mr Bird, or that of anyone else. Nor did Mr Bird give evidence that he had been accompanied, or supervised by anyone.

57. [262]

    It is one thing to have a system which requires that no-one be alone with a child, but another to have a system which requires that a volunteer is accompanied by a member of the primary staff, whenever in the presence of a child. That was not part of the centre’s systems.

58. [263]

    Consistent with Mr Bird being a part owner of Little Pigeon, part of the management team and the playground supervisor, there is simply no evidence that anyone was responsible either for accompanying Mr Bird or supervising him. Instead, he was treated in the same way as other staff members, when he had contact with children.

59. [264]

    That the result was that Mr Bird was neither always accompanied when in the presence of children, nor adequately supervised, was well established by what Mr Bird told police about young girls flashing their private parts at him in the yard. He said that he always dealt with this simply by telling them that young ladies don’t do that. He did not report this unusual behaviour to anyone else, so that it was never dealt with, as Ms Clancy said that it should have been.

60. [265]

    In 2013 Ms Clancy told police that she was rarely in the yard and so could give them no information about young girls exposing their genitals to Mr Bird. In cross-examination Ms Clancy said that neither Mr Bird nor any member of staff had told her about such behaviour. Ms Kasim had also not seen such behaviour.

61. [266]

    The proper inference is that Mr Bird was not accompanied or supervised, as he needed to be, when in the presence of children. If he had been, another member of staff would have observed the repeated conduct he described, and it would have been reported and dealt with.

62. [267]

    The regulations also specified the number of qualified staff which a centre had to employ, depending on the numbers of children in attendance: reg 52. Staff to child ratios were also specified: reg 53.

63. [268]

    Centres could not exceed the number of children for whom they were licensed: reg 58. They also had to ensure that children were arranged in specified groups, according to their ages: reg 61.

64. [269]

    While Little Pigeon did not take Mr Bird into account, for the purpose of Footprints’ staff to child ratios, reg 54 required that a qualified cook be employed. It was Mr Bird who undertook that work.

65. [270]

    Regulation 64 required the licensee to develop policies for the development and education of children that set out specified matters and that a program of activities be provided that satisfied various criteria, including balancing indoor and outdoor experiences. Contrary to Mr Bird’s evidence, Ms Clancy’s evidence established that he was involved in the provision of both outdoor programs and indoor activities, such as reading. On this issue I am satisfied that her evidence must be preferred, supported as it was by documents and the evidence of other witnesses.

66. [271]

    Regulation 65 regulated interactions with children, requiring in reg 65(2) both the licensee and authorised supervisor “ensure that the dignity and rights of each child being provided with the service are maintained at all times”. Mr Bird’s admissions established that this was not ensured.

67. [272]

    Regulation 66 required that both the licensee and authorised supervisor ensure that no member of the primary contact staff was performing other duties while supervising children and that they were “supervised at all times (including while they are asleep) having regard to their ages and physical and intellectual development and to the activities in which they are engaged.” That was an onerous obligation, given that children aged from 0 to 5 were cared for at the centre.

68. [273]

    Regulation 66(1) did not envisage that volunteers would supervise children, but both Ms Clancy and Mr Bird said that he covered for primary contact staff indoors, when they had to step out. Even if a volunteer could be involved in such supervision, they still had to be accompanied by a member of the primary contact staff: reg 57. The mere presence of a member of the primary contact staff in the large room where children slept and rested, could also not satisfy this requirement.

69. [274]

    Mr Bird’s admissions also establish that the children were not supervised at all times, as reg 66 required. Had they been, various of his admitted acts would have been reported to DOCS.

70. [275]

    The regulations also required that various policies be developed, maintained and available for inspection. They included policies for child protection, which I have already touched on: reg 85.

71. [276]

    The centre’s original policy was concerned, amongst other things, with child abuse and neglect and dealt with the responsibility of centre managers and staff for preventing child abuse, recognising indicators and responding effectively if issues arise, including by mandatory reporting. The policy also dealt with training in early detection of child abuse, preventing such abuse, being able to observe signs of child abuse and promptly reporting them to the centre manager, as well as mandatory reporting obligations.

72. [277]

    The 2010 policy also dealt with practices which included ensuring visibility of children at all times indoors and outdoors; having at least two staff on premises at all times with vision of each other and the children, knowing it is a criminal offence to physically or sexually abuse a child; and how to report suspected abuse. It did not deal with volunteers being accompanied.

73. [278]

    It also specified the role of all staff to be to agree to undertake training in recognition and notification of child abuse and neglect and a willingness to participate in refresher training. The role of the authorised supervisor included ensuring all staff have a copy of the policy and understand their role and ensuring that they completed training in child protection and refresher training.

74. [279]

    Mr Bird’s evidence was that he had never read these policies. He told police that he considered that the rules which applied to teachers did not apply to him. While there are minutes of staff meetings where concerns about supervision of children were discussed, he did not often attend such meetings.

75. [280]

    Ms Clancy’s evidence, by way of contrast, was that she never ensured that Mr Bird undertook any training in child protection, but had given him information on signs to look out for in relation to physical and sexual abuse, neglect, domestic violence and emotional abuse. They shared information constantly about children and their welfare. There were signs up around the centre and she explained to him that all the other staff around him were mandatory reporters and what they were looking for. She also gave him newsletters from anything that came to the centre that would be used at staff meetings to talk about child protection and made sure he read them.

76. [281]

    I am not persuaded by her evidence. Even if she had such discussions the evidence establishes that the policy was not enforced, so far as Mr Bird was concerned.

77. [282]

    The children’s disclosures also have to be considered in light of the evidence about how Mr Bird was supervised, day to day.

78. [283]

    The plaintiff’s case was not only that Mr Bird was unsupervised, the instruction that he treat the children like his grandchildren promoted grooming by someone inclined to paedophilic activity, enabling him to assault the children, the other defendants not being aware of what he was doing.

79. [284]

    The defence case was that looking prospectively, making sure that Mr Bird was supervised would not have been a reasonable precaution to take. That submission cannot be accepted. Close supervision of everyone who had contact with children was an entirely reasonable precaution for Little Pigeon and Ms Clancy to take, given not only what the regulatory regime and child protection policy required, but that the adults who worked at the centre were placed in positions of trust, whenever involved in the provision of the care which Little Pigeon was providing to very young children.

80. [285]

    On what Ms Clancy told police, Mr Bird had contact with children who could not readily disclose if they were being abused, he even being involved in the care of the babies who attended the centre.

81. [286]

    Mr Bird’s routine was described in the “Rod’s daily routine” document, which Ms Clancy updated from time to time. He went to the centre each day with Ms Clancy. In the mornings he cleaned the yard, greeted parents and children as they arrived and were taken inside. During the day his work included preparing meals inside. What contact he had there with children was in issue.

82. [287]

    Between about 3 and 4.30 each day Mr Bird joined the childcare workers and children in the playground, on the defence case merely providing an extra pair of hands over and above applicable ratios. But there was finally no issue that he engaged in activities such as t-ball, helping children climb, holding up hoops and supervising them walking over balance beams, entertaining children with bubbles, helping with games and rolling them around on a giant beach ball and even programmed activities. Sometimes he sat on a chair with his hat low over his eyes to have a nap. Sometimes children climbed onto him, while he sat in a chair.

83. [288]

    The defence case was that as a volunteer; Mr Bird was never alone with children, the childcare workers knowing that this was not permitted and that his activities always occurred in view of the childcare workers.

84. [289]

    Given Mr Bird’s admissions, these submissions cannot be accepted.

85. [290]

    Given the evidence of Ms Clancy and Ms Kasim, had Mr Bird in fact been kept constantly in sight in the way they and other staff claimed, when he acted in the inappropriate ways he admitted, as mandatory reporters the staff who he worked with, including Ms Peterson and Ms Jones, would have reported him to DOCS.

86. [291]

    Ms Peterson and other witnesses described the L shaped outdoor area where Mr Bird and other staff were stationed and could always see each other. There were many photographs which show Mr Bird, children and other staff inside and outside the centre and diagrams which show where various places which the witnesses referred to, were located. But Mr Bird’s admissions establish that the mere presence of other members of staff in his vicinity was not enough to deter him, or for his admitted reportable acts to be observed.

87. [292]

    In his police statement Mr Bird was critical of the way in which the other staff performed their work. He described having 16 children lined up for him to massage, as well as kids around him in groups of two and three. He volunteered that “If you would look in the yard I’d probably be the only one that, that actually pays attention to kids”. He also said that “I get on better with the kids than any of the teachers, cause they don’t spend quality time with them”.

88. [293]

    When describing how he hugged, cuddled and threw children around, Mr Bird also said “probably maybe I shouldn’t throw them around like I do. Um if I was a school teacher I‘d probably get busted.” Yet no-one “busted” him, as they would have, if they had been accompanying or supervising him.

89. [294]

    What other staff were in fact required to do was care for the children and to observe and interact with them, matters which were discussed at staff meetings.

90. [295]

    Mr Bird did not attend all staff meetings, but staff meeting agendas and minutes shed light on how it was possible that the acts Mr Bird admitted, were not observed.

91. [296]

    They included items such as encouraging parents to come to staff, rather than “leaving their points”: November 2008; “take books outside and observe” and requests for more shade “as the attempt to get out of the sun is why staff hover together”: January 2009; yard supervision: “what is and is not working”, which was to be investigated: April 2009; certain staff will only be rostered on to work inside because “they are so useless outside…Don’t just sit down” “efforts in the playground are poor”:10 August 2009; “Staff suck? staff need to put input”: 11 August 2009. The minutes of the 15 September meeting included:

92. [297]

    The minutes of 13 March 2010 recorded:

93. [298]

    The minutes of 4 August recorded:

94. [299]

    What is so recorded is consistent with ongoing concerns about staff attendance to the supervision and observation of the children, when on duty in the outdoor area. Such inattention helps explain how Mr Bird could have assaulted children as he admitted, including by positioning children on his lap in such a way that when he touched them inappropriately in the ways that they disclosed, what he was doing could not readily be seen by other staff.

95. [300]

    This explains how it was that Mr Bird was able to act outside, in the inappropriate ways that he described, without those acts being observed or reported to DOCS, as they should have been.

96. [301]

    Inside the centre Mr Bird performed work in the kitchen upstairs, in close proximity to the large area where the children slept or rested in the afternoon, but he also interacted with the children in that room in various ways. There was no issue that the usual course was for two educators to remain in that room, but it was the evidence of other witnesses that he stepped in, when one of them had to leave the room for various reasons.

97. [302]

    There is no question that Mr Bird had contact with children at those and other times, including child 1. Even Ms Clancy and Ms Kasim, who worked in the downstairs nursery, had seen him touching children on occasions, including child 1, who while not isolated, was kept some distance from the other children, because she did not sleep. None of those who gave evidence had seen Mr Bird engage in the inappropriate massaging and touching that he admitted. That reflects that he was neither accompanied when he had this interaction with the children, nor being supervised.

98. [303]

    Again, thereby he was given the opportunity to assault children as he admitted and disclosed, without being observed and reported.

99. [304]

    On all of the evidence I am satisfied that that there was in reality no supervision of Mr Bird’s contact with children. The mere presence of other staff members in his vicinity was not only insufficient to deter him from acting as he did, it was also insufficient for his acts to be observed and reported to DOCS, as they should have been.

100. [305]

     There was also an issue about whether in the questions that A and C had each asked B and D, they had pursued suggestive questioning, which may have resulted in them making disclosures which were untrue.

101. [306]

     The parties led no expert evidence about things like child development; children’s ability to distinguish between truth and lies; what is known about how children disclose sexual abuse; the impact upon them of being repeatedly interviewed about disclosures they have made; or how they might react to the distress which their disclosures and the resulting investigations may cause their parents.

102. [307]

     But the plaintiffs called evidence from Associate Professor Quadrio, who provided unchallenged reports in relation to B and D.

103. [308]

     In cross examination Associate Professor Quadrio:

     1. (1)

        Agreed that statements from children that occur spontaneously and without any suggestive questioning are more likely to provide an accurate account of what the child has experienced.

     2. (2)

        Said that there is lots of evidence that spontaneous comments by a child are reliable accounts of experience.

     3. (3)

        Agreed that free narrative accounts by children following open questions are the most likely to provide an accurate account of what occurred.

     4. (4)

        Said that with an expert interviewer, open questions are best, but it is accepted practice with very young children, if the child is unable to provide answers, to then ask more direct questions. That is not as reliable, but with very young children it may be necessary.

     5. (5)

        Agreed that the ideal way to go is to ask open questions wherever possible so that the child would give a free narrative account, but said that other questions are left for usually the end of the interview, when it seems that the child is not able to provide an adequate account.

     6. (6)

        Did not agree that children are particularly vulnerable to inadvertent but suggestive questioning. Associate Professor Quadrio explained that children are not as suggestible as a lot of people think they are. Children do distinguish the difference between playful suggestions that are not based in reality and serious questions. Even quite young children will not admit to things when they know there's a serious question and it's not true. She thought that there was a popular view that very young children are not reliable witnesses, but with experience with children and careful questioning, children do know the difference between reality and non-reality. So, you can get a child to talk about something that hasn’t happened, but they know it’s kidding and once you query it, it’s less likely that a child will then agree to something, when it’s clear that you’re not kidding anymore.

     7. (7)

        Agreed that children are more vulnerable to being confused by suggestive or leading questions, than perhaps adults, but emphasised, having had a lot of experience with young children and interviews, that she did not think children are nearly as vulnerable as people like to think they are. But agreed that they can be suggestible.

     8. (8)

        Also agreed that was why people who are trained in interviewing children are taught to ask as much as they can open, non-leading questions.

104. [309]

     Having had a series of five assumptions put to her, about which there was a dispute as to whether it accurately reflected the evidence in relation to B, which does not need to be resolved, Associate Professor Quadrio was asked whether they would explain B’s behaviours.

105. [310]

     Associate Professor Quadrio’s evidence was that the initial account which a child gave is extremely important, since that is close to the time of the alleged event, so, more likely to be well remembered. As time goes by and a mother becomes more and more anxious, or her mental health is more and more challenged, the child’s anxieties may not be alleviated. This would probably serve to maintain any anxieties that the child had. One of the most important ways of dealing with children’s anxiety is for parents to be able to contain their anxious feelings. She thus thought that at the beginning, before a mother’s mental health deteriorates significantly, the original story given by the child is something that can be relied upon fairly well.

106. [311]

     All parties relied on this evidence, which I accept must be taken into account in resolving what lies in issue about how the children were questioned.

107. [312]

     The defendants also relied on the approach taken to child disclosures in Merton & Merton [2007] FamCA 1350, where the evidence was approached in light of s140 of the Evidence Act and the Briginshaw line of cases: at [116]. There conclusions reached about particular disclosures by a young child included that “they seem sufficiently vivid in their detail possibly to have been genuine recollections by the child and….in some respects may be unlikely to have been fabricated”: at [114]. But it was still concluded that the evidence did not support a positive finding, given the gravity of what was in issue, because that could not rest on “inexact proofs, indefinite testimony or indirect inferences” at [116].

108. [313]

     In that case evidence of the kind that Associate Professor Quadrio gave does not appear to have been led, while in this case, issues of fabrication have not been raised.

109. [314]

     In my view, in this case if the evidence establishes on the balance of probabilities that B and D’s disclosures were true, that will have to be accepted, notwithstanding the gravity of the consequences for the defendants.

110. [315]

     That conclusion is supported by Re W (Sex Abuse Standard of Proof) [2004] FamCA 768 where an explanation was given about why, in family law proceedings, where difficult questions of sexual abuse arise, when the only witnesses are the alleged perpetrator, and the alleged victim who is of tender years who does not give direct evidence which can be tested: at [14].

111. [316]

     There reference was made to M v M (1988) 166 CLR 69; [1988] HCA 68; where it was held that the Family Court is not under the same duty as a criminal court to resolve, in a definitive way, a disputed allegation of sexual abuse, because proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression. That Court must rather make the order which best promotes and protects the interests of the child, giving very great weight to the importance of maintaining parental ties, because it is prima facie in a child's interests to maintain the filial relationship with both parents: at [20].

112. [317]

     Thus the Family Court's wide-ranging discretion to decide what is in the child's best interests cannot be qualified by requiring it to try a case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse, on the balance of probabilities: at [21].

113. [318]

     Such an approach is not available in these proceedings. In this case, just as in criminal proceedings, the Court must resolve the issues lying between the parties about the alleged assaults, albeit on the balance of probabilities, assessing the evidence in the way I have discussed, in accordance with s140 of the Evidence Act.

114. [319]

     There was no issue that the police interviews were conducted in the way Associate Professor Quadrio described.

115. [320]

     Some of the disclosures which B made to A were spontaneous and likely to be reliable, but not all of the questions which A asked B about Mr Bird afterwards were open-ended.

116. [321]

     For example A’s evidence was that in 2009 she could not understand what B was saying to her about Mr Bird being “spicy”, while rubbing her face and so she eventually asked B whether she meant “spiky”, which B did not accept. But later B used the terms both “spicy” and “spiky” when speaking about Mr Bird.

117. [322]

     Associate Professor Quadrio’s evidence suggested that B’s use of the word “spiky” at times, may have come from A’s question and that her earlier and later repeated reports that Mr Bird was “spicy”, was more likely to have reflected her experience, than when she used the word “spiky”.

118. [323]

     B turned 3 in February 2010. The use of that word by a child of that age was consistent with repeated reports of something that she had tasted, or perhaps smelled. But the action of rubbing her face was consistent with her having felt something touch her face.

119. [324]

     In D’s case her initial report to C that Mr Bird had tickled her on her genitals was also spontaneous and thus likely to be reliable. But again not all of the questions which C asked D about Mr Bird afterwards were open-ended.

120. [325]

     What was alleged in A and B’s amended statement of claim was:

121. [326]

     For the reasons which follow I am satisfied that the evidence establishes that Mr Bird did assault B, having repeatedly kissed her, including with an open mouth and pulled down her pants, as she disclosed.

122. [327]

     In Rixon v Star City Pty Ltd (Formerly Sydney Harbour Casino Pty Ltd) (2001) 53 NSWLR 98; [2001] NSWCA 265 it was explained that subject to certain exceptions, every person’s body is inviolate, and that any touching of another person, however slight, may amount to a battery: at [53].

123. [328]

     Those exceptions include children subjected to reasonable punishment; people subjected to the lawful exercise of the power of arrest; reasonable force used in self-defence or for the prevention of crime; and the physical contacts of ordinary life which are impliedly consented to by all who move in society and so expose themselves to the risk of bodily contact: at [53]. Whether something involves acceptable conduct must be considered in the context of the incident in dispute: at [54].

124. [329]

     The evidence establishes that Mr Bird was popular, both with those with whom he worked at the centre and the children. But absence of anger or a hostile attitude on the part of a person who touches another, “is not a satisfactory basis for concluding that the touching was not a battery”: at [52].

125. [330]

     An assault is “an overt act indicating an immediate intention to commit a battery, coupled with the capacity of carrying that intention into effect”: at [56].

126. [331]

     On this approach if Mr Bird kissed B, that may have involved either an assault or battery. As observed in R v Chief Constable of Devon and Cornwall, Ex parte Central Electricity Generating Board [1982] QB 458 by reference to RFV Heuston and RA Buckley, Salmond on Torts (Sweet and Maxwell, 17th ed, 1977) at 120, an “unwanted kiss may be a battery.”

127. [332]

     As I have said, because B could not be cross-examined, it was necessary to consider the evidence of her disclosures with particular care.

128. [333]

     Both her disclosures and those of D have to be approached in a context where, as the plaintiffs submitted, they were very young to have fabricated their disclosures; their mothers, who knew them well and had seen how Mr Bird interacted with the children, believed what they each disclosed; a number of other children made disclosures about him, without any suggestion of planned concoction between them; their behaviour later changed, consistent with having endured traumatic events; and Mr Bird himself gave an account to police that he had acted inappropriately towards children, including the child who he was being questioned about.

129. [334]

     B’s disclosures also have to be considered in light of Associate Professor Quadrio’s evidence, all of the tendency evidence and the other evidence I have discussed.

130. [335]

     A’s evidence was that the changes in B’s behaviour after her disclosures included regular nightmares; long and aggressive tantrums, frequent anger; occasions of biting and even self-harm; fear of going to the toilet and issues with bladder control, which she had not suffered since she was aged 2; and being triggered by seeing old friends from the centre and mint chewing gum, which Mr Bird used to chew. A described the year preceding the abandoned criminal trial to have been “like hell” for the family, as neither she nor B were then “in a good place”.

131. [336]

     A’s husband corroborated her evidence, describing B’s fits of rage, mood swings, B hurting herself and her mother, including biting so hard that there was bruising; B needing to be restrained and destroying her own prized possessions. She also refused to drink water at school, because she was frightened to go to the bathroom and up until age 11, was easily frightened, especially of weather.

132. [337]

     B had not required any psychiatric treatment, but she had received ongoing counselling between 2011 and October 2013. In a summary of her Sydney Children’s Hospital file prepared by a senior social worker Ms Baxter, who was one of those involved in her counselling, B’s behaviours and symptoms of the kind her parents described were discussed.

133. [338]

     Ms Baxter said that those symptoms and behaviours were common in children who had experienced trauma. She also explained that the sessions with B had focused on addressing the impact of trauma, psycho education around protective behaviours and issues which had resulted from grooming. The sessions ceased because of B’s therapeutic progress.

134. [339]

     Associate Professor Quadrio saw B in 2014, but did not question her about her disclosures, because of the significant risk of re-traumatising her. On her parents accounts and the records she reviewed, Associate Professor Quadrio concluded that she presented as a child who had suffered severe trauma, entirely typical of children who had been sexually abused, consistent with the reports of the counsellors she had seen. Very little other than her disclosures could account for such a severe deterioration in her behaviour and the severe dysregulation which she manifested. The significant trauma for her family had also been relevant to how she was affected.

135. [340]

     When interviewed in August 2019 by the psychiatrist Dr Kasinathan, B could not remember Mr Bird’s behaviour. She did recall having had massive tantrums and nightmares, but not self-harm.

136. [341]

     A’s evidence was that when she dropped B at Footprints, she regularly saw Mr Bird putting sunscreen on children and little girls sitting on his lap, which she did not think appropriate, although she did not describe seeing such interaction with B.

137. [342]

     At the time Mr Bird was interviewed by police in November 2010 he was not then asked anything about kissing children. But amongst the things which he volunteered was that he kissed, hugged and cuddled them.

138. [343]

     When Mr Bird said that maybe he shouldn’t throw them around as he did, because if he was a school teacher, he would “probably get busted”, he was asked to explain what he meant. Mr Bird said:

139. [344]

     On that account I am satisfied that there can be no question that Mr Bird kissed children when he worked at the centre. He also plainly considered that he did not have to be constrained in his behaviour, in the way that the teaching staff with whom he worked did, when he interacted with the children.

140. [345]

     In cross-examination Ms Clancy agreed that she had encouraged Mr Bird to be affectionate towards the children, but denied that he had thereby been given the opportunity to sexually assault them. But she agreed that she had been entirely dependent on his moral compass to determine whether or not he would use the opportunity he had, to sexually assault them.

141. [346]

     I am satisfied that Mr Bird’s admissions establish that his moral compass failed him.

142. [347]

     I am satisfied that both A’s evidence and the tendency evidence supports the conclusion that B and D’s disclosures were reliable. I have already discussed some aspects of Mr Bird’s admissions, which I need to deal further with. I will deal later with D’s disclosures.

143. [348]

     As I noted earlier, Ms Clancy told police that she thought that what child 1 described had happened to her, but that Mr Bird was being wrongly blamed and that they were both the victims of a vendetta. The evidence provided no basis for accepting that such a vendetta existed, let alone that child 1 was a part of it. Mr Bird’s admissions also do not permit the conclusion that he was wrongly blamed for what child 1 described.

144. [349]

     In her November police statement child 1’s mother said child 1 had told her she was happy at kindy because Mr Bird gave her massages. She then disclosed:

145. [350]

     The mother contacted DOCS and made a police report. The following day child 1 began talking about Mr Bird again and said amongst other things that he had told her that boys had “noodles”, a term that the family did not use, they not having discussed with her the differences between boys and girls genitalia.

146. [351]

     The mother was not cross-examined about her accounts. Her unchallenged evidence reflected that child 1 made spontaneous disclosures to her about Mr Bird, accounts which were likely to be reliable, on Associate Professor Quadrio’s approach.

147. [352]

     When interviewed by police in November 2010 child 1 was aged 5. She was questioned in the way Associate Professor Quadrio explained, asked about her understanding of truth and lies and marked a diagram identifying body parts.

148. [353]

     Child 1 said teachers looked after everybody at kindy and identified Mr Bird, who she said cooks lunch and dinner and sometimes played outside. Later she said he was a teacher and still cooks. She also said:

149. [354]

     Later she said:

150. [355]

     Child 1 then drew dots over the diagram to indicate where Mr Bird had massaged her. She was asked:

151. [356]

     Child 1 said she had told her mum that Mr Bird massaged her with his hand, “because she was her friend”. Later she said:

152. [357]

     Later she said:

153. [358]

     Child 1 also said:

154. [359]

     Child 1 later said:

155. [360]

     Child 1 also said:

156. [361]

     Child 1 also said:

157. [362]

     Child 1 then demonstrated how she was tickled. Later she was asked:

158. [363]

     Child 1 was the subject of Mr Bird’s police interview. He then disclosed that he not only had the opportunity to touch her where she rested on a mat slightly away from the other children, when he walked past her after coming up the stairs, through the large open area, on his way to the kitchen entrance around the corner, but that he had touched her in various inappropriate ways.

159. [364]

     That he had touched her was corroborated by other witnesses who saw him interacting with her there. Both Ms Clancy and Ms Kasim described how he often interacted with child 1, but no-one had seen him touch her in the inappropriate ways that he described.

160. [365]

     In her police interview Ms Clancy said that she had heard kids ask Mr Bird to pat them, but not to massage them; that child 1 was obsessed with getting off her daybed and going to the toilet, so she was separated from the other children; and that Mr Bird sat near her to read her books or talk to her, but she had not seen him pat her or massage her. If she had she would have “told him not to waste his energy patting her as she gave up her day sleeps at 2 and does not require patting to sleep”.

161. [366]

     What Mr Bird admitted about child 1 included that:

162. [367]

     Given Associate Professor Quadrio’s approach to the assessment of the reliability of what child 1 disclosed; Mr Bird’s own assessment that child 1, who he knew well and had a considerable interest in, as he explained, was unlikely to lie; and that his own admissions corroborated so many aspects of child 1’s disclosures, even though child 1 could not be cross-examined, I can see absolutely no basis for concluding that what she disclosed was not true.

163. [368]

     Mr Bird even admitted that he may have touched her vagina, although he volunteered when he was outside playing and then only unintentionally.

164. [369]

     In her January 2012 interview, some 14 months after she had last seen Mr Bird, child 1 was shown the recording of her first interview. She remembered talking about Mr Bird massaging her and said:

165. [370]

     She was asked:

166. [371]

     Child 1 also identified a time when “there was a birthday of mine” when she turned 4 and described the cupcakes her mum had made, but she said Mr Bird was not there that day. Later she asked if Mr Bird was going to gaol.

167. [372]

     This interview also demonstrated that child 1 was trying to tell the truth, saying when asked again about truth and lies at the end, that she hadn’t been sure if her birthday dress had pink butterflies as she had first said, that she did tell the truth, but she wasn’t sure if everything else was true.

168. [373]

     In my view any problems suggested by her answers seem to be the result of how she was questioned, not the result of any attempt to lie on her part.

169. [374]

     What child 1 said in this interview does not provide a sound basis for concluding that the disclosures she made close in time to the events she described in her first interview, were likely to be untrue.

170. [375]

     There are differences in detail between things which child 1 said at different times, as was the case with other of the children. Given her age and the circumstances in which she was being questioned, this is unsurprising. She was neither giving evidence nor being cross examined.

171. [376]

     What she so disclosed was to such a large extent corroborated by Mr Bird’s admissions, that on the balance of probabilities, I am satisfied that Mr Bird assaulted child 1 not only in the ways he admitted, but also in the other ways she disclosed.

172. [377]

     In her November police statement child 2’s mother reported to police that some months previously child 2 had told her about Mr Bird touching his penis. After his arrest she had arranged for child 2 to be interviewed by Community Services, which led to a police interview.

173. [378]

     When first interviewed when aged 5, child 2 was also questioned in the way Associate Professor Quadrio favoured. She, too, was asked about her understanding of truth and lies. She was asked about the workers at Footprints. She said she liked Rod the best, but could not say why. She said:

174. [379]

     Child 2 said they played hide and seek in the yard and identified another child who sometimes played with them and also sat on Mr Bird’s lap. She then identified various body parts and was asked if anyone had touched them. She said nobody had touched her bottom or vagina. She said there was nothing that she did not like about Mr Bird. When asked if she had told another lady or her mother something about Mr Bird, she said “not really nah”.

175. [380]

     While watching TV together in December child 2 started poking her mother on the breast. She disclosed:

176. [381]

     In her second police interview in December 2010 child 2 was asked if she remembered being interviewed the first time and was then asked about what she had told her mother on the weekend. She said:

177. [382]

     Child 2 drew on a diagram of her body where she had been touched and was then asked:

178. [383]

     When asked to say what had happened from beginning to end child 2 said:

179. [384]

     Child 2 also said that she was then wearing clothes and Mr Bird touched her on her clothes. She was then asked:

180. [385]

     Child 2 demonstrated by moving her fingers how she had been touched. When asked why she had not told the interviewer about this on the first occasions she was interviewed she said:

181. [386]

     She also said:

182. [387]

     On the third police interview in January 2012, child 2 had been shown the recording of her two previous interviews and remembered that she was then 5. She made pinkie promises to tell the truth. She again marked a diagram and said that:

183. [388]

     She also said:

184. [389]

     The questioner was endeavouring to find out if child 2 could remember when the assaults happened. Child 2 said:

185. [390]

     I do not consider that child 2 not telling police about what Mr Bird had done to her until her second interview provides a basis for concluding that the disclosures she made to her mother and then to police were untrue. There is nothing surprising about a young child being reluctant to make disclosures about such matters to a stranger.

186. [391]

     Given Mr Bird’s admissions and the other evidence I have discussed about his contact with children and the way he was supervised, I also consider that child 2 not being able to be cross-examined, is not a basis for concluding that her disclosures were untrue. The acts disclosed are not inconsistent with the acts which he volunteered, including scrunching and patting children on the bum, rubbing them on the skin, including low on the tummy and even on the vagina, albeit inadvertently.

187. [392]

     Touching a child sitting on his lap in the way child 2 described, was plainly possible, if Mr Bird turned the child away from other staff, who were engaged with other children, as she said. On the evidence they were engaged in supervising the children, rather than Mr Bird.

188. [393]

     On the balance of probabilities, I am satisfied that Mr Bird also assaulted child 2 in the ways she disclosed.

189. [394]

     Having taken into account the tendency and other evidence I have discussed, the conclusions which I have reached about the evidence of the occasions on which A observed, or B disclosed her interactions with Mr Bird are as follows:

     1. (1)

        A’s evidence was that when they entered the baby area of the centre Mr Bird approached, put his hands on B’s shoulders and kissed her on the forehead. In response to this B, then aged 2, said “yuck”. A was very shocked, but said nothing to Mr Bird. A’s husband’s evidence was that they later discussed this.

     2. (2)

        A raised her concern about the kiss with Ms Clancy, advising her by email that she did not want to make a big deal out of what had happened, but had felt “a little uncomfortable”, because Mr Bird’s behaviour sent the wrong message about “personal space”.

     3. (3)

        There was an issue about whether or not this communication was a complaint which Ms Clancy was obliged to report to DOCS, reg 88 requiring that notice being given of a complaint about the conduct of the service within a week, “unless the complaint is of an obviously trivial nature”. It is difficult to see that what A raised was trivial.

     4. (4)

        But Ms Clancy’s evidence was that she did not consider A to have made a complaint and that in any event, she had withdrawn her concerns. Given Ms Clancy’s response, this evidence was also difficult to accept.

     5. (5)

        In her reply email Ms Clancy apologised to A, explaining that she encouraged “all my staff to be affectionate to the children”; that she had told Mr Bird to “treat the children as he would his own grandchildren”; that no staff is ever allowed to be alone with children; that Mr Bird interacted with them in the yard and in the little pre-school, where other staff are present; that upstairs he was confined to the kitchen; and that she would ensure that that type of contact does not happen again.

     6. (6)

        The evidence establishes that this was not an entirely accurate description of what Mr Bird did at the centre.

     7. (7)

        What Ms Clancy’s response to A reflected, however, was that when she wrote it, she did not doubt what A had reported having seen. There was nothing inconsistent with the instruction to treat the children as he treated his grandchildren, in Mr Bird kissing B in greeting, when she arrived at the centre. That Ms Clancy did not challenge A’s advice that Mr Bird had kissed B, was thus consistent with her instruction and her knowledge of how Mr Bird conducted himself.

     8. (8)

        In her response A told Ms Clancy that “you can tell the kids love him”; that she did not think that it was anything more than a completely innocent greeting, which she had witnessed; if B had come home and told her that Mr Bird had kissed B, she would have been concerned, but she was not at all concerned about his interaction with the kids.

     9. (9)

        In cross-examination it emerged that A had not been entirely frank in this response, because she did think that Mr Bird kissing B was inappropriate and she had become concerned about Mr Bird’s interaction with children at the centre. But she explained that she was then conscious that B had to continue attending the centre and so wrote to Ms Clancy in terms which did not accurately reflect her concerns. She came to bitterly regret that decision.

     10. (10)

         Ms Clancy’s evidence was that she had not discussed the email with Mr Bird before she sent her reply. They discussed it “informally” on 14 May, when he not only denied having kissed B, but said that he did not and would not kiss any of the children. Mr Bird did not deal with this in his statement. Such a response from Mr Bird seems unlikely, given that it is entirely inconsistent with the account which he volunteered to police about how he treated children at the centre, including kissing them.

     11. (11)

         What Mr Bird said in cross-examination was that B had a band aid on her forehead that day, which he had bent over to look at and that he would not have kissed her, for that reason. This was also not referred to in either his statement, or Ms Clancy’s evidence.

     12. (12)

         While A was challenged about what she saw Mr Bird do, it was also not put to her in cross-examination that B had a band aid on her forehead that day. A did deny apologising to Ms Clancy on 14 May after she told her that Mr Bird denied the kiss, or telling Ms Clancy that she did not actually see a kiss, but had assumed that it had happened after a man had asked B for a kiss on the weekend, as was Ms Clancy’s evidence.

     13. (13)

         Given the conclusions which I have reached on credit, despite what I have said about the need for care in assessing A’s evidence, on this issue I am satisfied that her evidence must be preferred over that of Mr Bird and Ms Clancy.

     14. (14)

         There was also an issue as to whether the kiss A described could have involved an assault. Given B’s response it is apparent that the kiss was not welcome.

     15. (15)

         In the result I am satisfied that A saw Mr Bird kiss B in May 2009. That also supports the conclusion that he later kissed B on other occasions, as she eventually disclosed.

     16. (16)

         B turned 3 in February 2010.

     17. (17)

         It was on a number of occasions during this year that B told A that “Rod is spicy”, while rubbing her face, but A did not make much of it. On one occasion A asked B if she meant “spiky”, to which she responded “yes”, but B could not explain what she meant.

     18. (18)

         In cross-examination A said that it was after this conversation that B sometimes used the word “spicy” and sometimes “spiky”, when speaking about Mr Bird. A’s husband corroborated this.

     19. (19)

         There is no reason to doubt the evidence that when aged 3 B repeatedly made such disclosures about Mr Bird spontaneously and without any suggestive questioning.

     20. (20)

         As I said, the use of the term “spicy” accompanied by the repeated gesture of touching the side of her face near her mouth with her hand, as A demonstrated, involved representations that Mr Bird was touching her and that she tasted something.

     21. (21)

         On Associate Professor Quadrio’s approach, these were reliable disclosures. Mr Bird’s admissions that he kissed and touched the children partly corroborated them. I am accordingly satisfied that even though B could not be cross-examined about them, her accounts must be accepted as reflecting what she was experiencing.

     22. (22)

         On this day A heard that Mr Bird had been arrested for indecently assaulting another child. She already had concerns about Mr Bird and described her legs then giving way, beginning to shake and cry, describing that as a “defining moment for me and my trauma”.

     23. (23)

         This description is consistent with a mother fearing that a man charged with serious offences involving another young child at the centre had also offended against her own child; regret that she had not protected her against such a risk, given the concerns which she already had about that man’s conduct; and anger that those responsible had permitted the contact which such offending involved.

     24. (24)

         I do not accept that this was an irrational response in the circumstances.

     25. (25)

         DOCS offered to have other children interviewed, with the result that A took B to the Sutherland Community Services Centre, where she was interviewed. After interview A was informed that B did not “tell us anything that would raise our concerns”, after which A felt much more relaxed.

     26. (26)

         There is no record of that interview in evidence. Accordingly, what this evidence establishes is that B said nothing of concern about Mr Bird to the stranger who interviewed her that day. It simply cannot be inferred from this that B had nothing then to disclose.

     27. (27)

         A was sufficiently concerned still to keep B home from the centre, until they knew what was going on with Mr Bird.

     28. (28)

         At 8pm that night while sitting on the lounge with her husband, B approached and kissed A with an open mouth, using her tongue. In the past B had kissed her this way and when A asked where she had learnt this, B had said something like “the Avatars taught me”. On this occasion, when asked B said that she had learnt it at school and that it was Nat who had kissed her like that.

     29. (29)

         A did not believe B. Ms Simons was a female childcare worker at the centre, who A later engaged to babysit B. As I have explained, she was not called to give evidence.

     30. (30)

         A told police in her 18 November statement that she had reported this disclosure to Community Services, knowing that sometimes kids would say that it was someone else and that B had earlier said that Rod was “spiky”. A then believed that B needed to be reinterviewed by JIRT. A’s husband was also concerned, given what B had said about Mr Bird being spicy or spiky.

     31. (31)

         On 14 November A asked Ms Clancy a number of questions about Mr Bird. She was not satisfied with the response which she had received, but decided that B should return to the centre, Mr Bird having been excluded after his arrest. In cross-examination A explained that she later came to believe that it was at this point that Ms Clancy should have disclosed that Mr Bird was her father and that had she known, B would not have later been returned to the centre.

     32. (32)

         A pursued a further interview for B, raising her concerns with police by email that she had been taught to open mouth kiss at school. On 6 December A was advised that the incidents did not meet JIRT criteria, but that she should contact Community Health and so she made a counselling appointment.

     33. (33)

         About mid-December B was returned to the Centre. On 21 December A learned that Mr Bird had been charged with offences in relation to a second child. That day she had an argument with one of the child care workers at the Centre, after which B was excluded.

     34. (34)

         In January A purchased a child protection game which she used at work, which taught children about private parts, which B then played with.

     35. (35)

         B later once asked A if it was OK to say “no” to a teacher, if a teacher asks you to stop talking when they are reading a book. A told her “you can only say no when you feel uncomfortable about something.” B then said “no one at school touches any of the kids because all the teachers are watching”. A found this strange language for B to use.

     36. (36)

         In his evidence Mr Bird denied that he was involved in reading books to children, but there is not only a photograph in evidence which is inconsistent with this, but it was Ms Clancy’s evidence that he was involved in such reading. Mr Bird’s evidence cannot be accepted.

     37. (37)

         In her police statement A said that she hadn’t discussed anything further with B, hoping that maybe nothing had happened to her. Whether she had raised Mr Bird with her on other occasions, was in issue.

     38. (38)

         On 10 January B went to another session with Ms Pinkerton, with which A was dissatisfied, given its duration and where it took place. In cross-examination A agreed that Ms Pinkerton told her that B had made no disclosures. Again this does not establish that B had nothing to disclose, simply that she again said nothing which raised the interviewer’s concern.

     39. (39)

         In January B began attending a new preschool. A still had concerns, telling the preschool about the reasons for B’s removal from Footprints and asking them to advise her, if they had any concerns about B’s behaviour. Some concerns were later raised with her. But A denied persisting with conversations with B about Mr Bird.

     40. (40)

         B turned 4 in February 2011.

     41. (41)

         In January A spoke to another mother, who told her that her child had disclosed to her that Mr Bird had tickled her in inappropriate places. She encouraged A to keep talking to B. A decided to speak again to B.

     42. (42)

         On 20 February A spoke to B in the garage, in the presence of her husband. She asked B if she could remember where her private parts were and whether anything had ever happened to make her feel “yucky”. B said “nup” and then A asked her about Mr Bird. Their conversation was:

     43. (43)

         This conversation then ceased because B became quite shy and stopped talking. “Dido” was a reference to the game which B had played.

     44. (44)

         This was clearly not a spontaneous disclosure. On her evidence by this time A had herself received training in child protection, but she had no training in questioning children and did not consider that it would be very easy to inadvertently mislead them.

     45. (45)

         In cross-examination A agreed that it was she who had raised the issue of B’s private parts with her and that she had changed what B had told her from B having kissed Mr Bird’s lips, to Mr Bird kissing B on the lips. But she denied that she understood from this conversation that it was B who had initiated a kiss on the lips with Mr Bird.

     46. (46)

         A agreed that young children in particular say yes and no sometimes to things that are self-evidently wrong, but did not agree that her children were prepared to trust her, even over their own memories. She also agreed that before this conversation, B had never linked Mr Bird being spicy, to anything to do with her private parts, including her lips.

     47. (47)

         Having in mind Associate Professor Quadrio’s evidence, I do not accept that this was a linkage suggested by the questions A asked, nor does the evidence suggest that B was particularly vulnerable to inadvertent, but suggestive questioning.

     48. (48)

         A asked B an open question about what she meant when she said Mr Bird was “spicy”. It was B who explained that it was his lips and when asked another open question about how she knew this, said that she had kissed them. A certainly inadvertently changed what B had told her from B having kissed Mr Bird’s lips, to Mr Bird kissing B on the lips. But what B later said in the conversation which A recorded on her phone makes clear that while B did not want to discuss Mr Bird any more, she did know the difference between reality and non-reality and was not confused about the account she gave.

     49. (49)

         On the recorded conversation B said when A asked again about spicy lips “Here we go again. I can’t talk about spicy lips. Cause it’s too hard to talk about that” and “I don’t remember. Cause it was a long long time ago”, which she repeated and emphasised. But then B said that she remembered it was Rod, before saying “I’m not telling you about it because I forgot.”

     50. (50)

         It is possible that when B said “here we go again”, that reflected that A had asked her about spicy lips on more occasions than she remembered in 2020. But I do not accept that the evidence establishes that A’s questioning was suggestive, or that B did not know the difference between reality and non-reality and was susceptible to suggestion.

     51. (51)

         In the result I am unable to conclude that what B told her mother on this occasion, was unreliable.

     52. (52)

         To the contrary, consistent with Associate Professor Quadrio’s explanation of young children’s understanding of the difference between reality and unreality, B was very insistent to make clear to A that she had said “spicy” not “spiky” lips, by twice sounding out the word “spicy”, when A asked about “spiky” lips. This was consistent with B then understanding the difference between suggestion not based in reality and what she had actually experienced. Thus she did not accept that she had spoken about “spiky” lips.

     53. (53)

         B then said:

     54. (54)

         Later she was asked:

     55. (55)

         What B said was simply not consistent with her talking about something that had not happened, or being confused as the result of having been asked suggestive or leading questions about Mr Bird, or having answers suggested to her, which she adopted.

     56. (56)

         I am also satisfied that despite B not being available for cross-examination, the evidence establishes that Mr Bird repeatedly kissed B on the lips, as she disclosed to A.

     57. (57)

         A had asked the new preschool to keep her informed of any unusual behaviour. On 25 February she was provided with five statements from staff, but they were objected to and not finally tendered.

     58. (58)

         B had a lengthy interview with police on 28 February at a JIRT office, when she made further disclosures, after being asked about what she would say if she did not understand and in different ways, whether she understood the difference between telling the truth and telling a lie. She agreed to only tell the truth. At the end of the interview B said:

     59. (59)

         I do not accept that what B said about truth and lies suggests that she did not know the difference, or that what she talked about had not happened to her.

     60. (60)

         The officer questioned B in accordance with the practice Associate Professor Quadrio described. From seeing and hearing the recording it is apparent that B was not entirely comfortable in being questioned as she was. She did not answer all questions and evaded others, but became comfortable enough to answer some questions.

     61. (61)

         B volunteered that she wished that she could go back to her baby school because the pumpkin soup was so yummy and that it was Rod who used to do the cooking, because he was the cooking man and a teacher.

     62. (62)

         B also said that Rod likes to relax near the yard, where he just sits and stares at people and she was with him when he relaxes, when she lay on the table near the yard with Mr Bird next to her, not saying anything.

     63. (63)

         At one point B picked up a bear and said “thank you for giving me a massage.” When asked if anybody else gave her a massage, she said her mum but nobody else.

     64. (64)

         B was asked if she spent time with Nat and Rod at baby school, she said she spent time with Nat every time she went there, but not Rod.

     65. (65)

         When asked if she had told mummy something about someone kissing her, B said yes, about Rod kissing her, but she could not tell the interviewer about that. Later B said:

     66. (66)

         Later B said:

     67. (67)

         Having taken into account not only what B said in light of Associate Professor Quadrio’s evidence, but also Mr Bird’s admissions, the other tendency evidence and the other evidence I have discussed, I am satisfied that Mr Bird’s denials of having kissed B cannot be accepted. The accounts which B gave of him having both kissed and attempted to kiss her must be accepted. That is entirely consistent with her repeated reports that Mr Bird was “spicy”.

     68. (68)

         On 2 March when A kissed B on the face she wiped her face. Their discussion was:

     69. (69)

         The conversation then ended because B began speaking in baby talk, which she rarely did.

     70. (70)

         A made another police statement about this disclosure on 4 March. In cross-examination A said that she was confused by what B had then said and did not believe or disbelieve her, but eventually came to the conclusion that what she had disclosed about having her pants pulled down, was also true.

     71. (71)

         On Associate Professor Quadrio’s approach this conversation began with a spontaneous physical act, when B wiped off her mother’s kiss. A asked an open question about anyone else kissing B with their tongue. B identified Mr Bird and demonstrated how he had kissed her. What B said in response to the question about whether he had done anything else that made her feel weird, elicited the disclosure, for the first time, that he had pulled down her pants and underpants.

     72. (72)

         There is nothing in the evidence, to this point, which suggests that this disclosure was unreliable.

     73. (73)

         In cross-examination A said that at the time she was confused, but did not disbelieve B, who was not initially distressed or crying. She was sitting on the bed and then pulled the curtain over herself and began to become distressed, when talking about her pants. A considered that B clearly did not want to talk about that anymore, bringing the conversation to an end by speaking in baby talk.

     74. (74)

         A said that without asking B more questions it was difficult to ascertain what she meant, but she did not consider that B had told her about her pants being pulled down, in order to make the questions stop, as was suggested to her in cross-examination. That this is what occurred is difficult to accept. This was a child who had demonstrated that she could distinguish between reality and unreality and had told her mother about this assault for the first time, in response to a question about anything else making her feel weird.

     75. (75)

         By March 2010 B had not attended the centre for some 3 months, so unlike earlier disclosures, this disclosure was not made close in time to the events. While there is nothing which provides a basis for concluding that this disclosure was the result of suggestive questioning, B later told A that what she said had not been true, to which I will return.

     76. (76)

         A made a further statement to police about this disclosure. She was later told that police had decided to lay further charges against Mr Bird in relation to B and B was referred for counselling at the Child Protection Unit at Sydney Children’s Hospital. A believed that during this counselling B had disclosed that Mr Bird took her to the shed. But A became dissatisfied with the counsellor, after she informed her that charges were to be laid.

     77. (77)

         B was then referred to another counsellor, Ms Ly, who saw A and B together on a number of occasions, not all of which are necessary to refer to.

     78. (78)

         Not referred to in A’s statement was that on 24 August she spoke to Ms Ly about B telling her that Rod had not pulled her pants down. Ms Ly’s notes record that:

     79. (79)

         The notes do not indicate that this withdrawal was then discussed with B.

     80. (80)

         When cross-examined A could not recall B having made this withdrawal, but accepted that Ms Ly’s notes were correct. She accepted that she did not raise this with police at the time. She understood that the counsellor and police were conferring, the counselling having in part been intended to prepare B for trial.

     81. (81)

         That understanding is consistent with the counselling notes, which refer to case review meetings with Police/JIRT and with the fact that the November trial was deferred until May, so that the children could be reinterviewed. That followed A and B having been subpoenaed in October to give evidence at the trial.

     82. (82)

         Ms Ly’s counselling notes on this day record:

     83. (83)

         The plaintiffs’ case was that despite B’s withdrawal of the disclosure that Mr Bird had pulled her pants down, it would be concluded that he had, given the likelihood that B had withdrawn what she said, out of concern for her mother.

     84. (84)

         The records are certainly replete with evidence not only of the considerable distress which A was suffering as the result of B’s disclosures and their aftermath, but the effect which that was having on A’s own behaviour and health, to which I will return. It is impossible that B was unaffected by what her mother was then suffering.

     85. (85)

         That this was what motivated B to withdraw the disclosure that Mr Bird had pulled her pants down, is thus clearly possible. That was what Ms Ly discussed with A at the time.

     86. (86)

         But for Mr Bird’s admissions and the other tendency evidence, I would not have been able to conclude that the plaintiffs had proven that Mr Bird pulled B’s pants down, as she had earlier disclosed.

     87. (87)

         But not only did Mr Bird admit to having assaulted child 1 when he grabbed her bottom in the way he repeatedly described, he also admitted having rubbed her bare tummy with his hand under her clothes. While he denied having massaged child 1’s “wee wee”, he also admitted that he had maybe rubbed her on the lower part of the tummy; that he had not touched her wee wee “intentionally”; and that he might have put his hand “down there” when “picking them up throwing them around the yard”. He also described massaging and touching other children in the various inappropriate ways I have discussed.

     88. (88)

         Given all that Mr Bird admitted; how both A and B were affected after her disclosures, to which I will return; and how and when B made her retraction, I accept that on the balance of probabilities, B’s disclosure that Mr Bird had pulled her pants down, also accurately reflected what he had done to her and that her later withdrawal was not likely to have been true.

     89. (89)

         The defendants relied on in Re W, where a child who had made disclosures of sexual abuse had also later withdrawn them and there was evidence from an expert that false retractions were not unusual. But it was concluded that because of the Briginshaw standard, the only serious evidence of the abuse being the disclosures, there was no logical reason for believing them, but not the retractions, given that there was no need to make a positive finding, in order to protect the child.

     90. (90)

         In this case, however, there does need to be a conclusion about whether this assault has been proven and the evidence does establish a reason for B making a false retraction, out of concern for her mother.

     91. (91)

         This was also not a case like Bowles v The State of Western Australia [210] WASCA 191, where the reliability of a child’s inconsistent answers was in issue and it was considered that with some child witnesses “the desire to be compliant with the questioner may reduce the reliability of the answers”: at [61].

     92. (92)

         Here it was an unprompted withdrawal of an earlier unprompted disclosure, which had caused A considerable distress, which arises to be considered.

     93. (93)

         When that is considered together with all of the other evidence I have discussed, I am satisfied that it must also be concluded that this assault was proven.

     94. (94)

         B turned 5 in February and was reinterviewed by police on the 28th. She was first shown the DVD of her earlier police interview, again asked in various ways about the difference between truth and lies and made a pinkie promise that everything she told the interviewer was the truth.

     95. (95)

         By this time B had been repeatedly questioned about her disclosures and had ongoing counselling, where they were also discussed. She was not then as comfortable or as forthcoming as in her earlier interviews.

     96. (96)

         B remembered talking on the movie about Rod kissing her lips and the questioner tried to establish when that had occurred. At one point she said that it had happened only once. No one else was around, but she did not remember where she was and she could not remember anything else about when she went to Footprints.

     97. (97)

         While this confirmed that B then still had a memory of Mr Bird kissing her, I am satisfied that it did not establish that what she had earlier disclosed in 2009, 2010 or 2011 was untrue, or that this provided a reliable basis for the conclusion that Mr Bird had only once kissed B.

     98. (98)

         The DPP decided not to proceed to trial, a decision A described as having “broken” her. I will return to the evidence of the consequences of this decision for A.

     99. (99)

         In cross-examination A explained that despite this decision, even now she still believed that Mr Bird had kissed B with an open mouth on the lips and pulled her pants down, that having involved sexual assault.

     100. (100)

          As I have explained, the evidence establishes a sound foundation for her belief.

190. [395]

     The amended statement of claim pleaded:

191. [396]

     It was easier to reach the conclusion that the plaintiffs established that D was assaulted in the way which she disclosed.

192. [397]

     It was C’s evidence that D enjoyed attending the centre until around August 2010, when she began saying that she did not want to go and “I don’t like it there. People hurt me there”, which she repeated on a number of occasions.

193. [398]

     C then assumed D was referring to other kids. She tried to calm her down and continued taking her. She was also conscious that D may have been affected by her grandmother’s death and her separation from D’s father and so she thought might have been experiencing separation anxiety at drop off. In cross-examination C said that she had expected this would settle down and so was going crazy trying to work out whether there was something else, which she could not put her finger on.

194. [399]

     C was going to speak to the mother of one D’s friends, but then heard about the charges laid against Mr Bird. In cross-examination C said that she chose to believe the children and then considered that he was guilty of what he had been charged with.

195. [400]

     C then accepted the offer to have D interviewed, but decided not to ask her directly about Mr Bird, having consulted work colleagues who included psychologists who deal with trauma. She also moved D to another kindy.

196. [401]

     C was advised that it was important not to ask D direct questions about what may have happened to her and that she needed to focus on reassuring D that it was always safe to talk to her about anything; how to engage in protective behaviours, which could help D build up feelings of safety; and that adults would listen to her and protect her.

197. [402]

     In cross-examination C said that at that time she was extremely concerned that the emotions D had been showing could indicate that she had also been harmed, but D made no disclosure in the interview. At her new centre D showed no separation anxiety, but C was seeing emotional and behavioural changes in D, which she felt could be indications that she had possibly been treated inappropriately.

198. [403]

     Later D disclosed to C and eventually police, that Mr Bird had assaulted her. In cross-examination C said that immediately after she told D that where she had been tickled was not a proper place, D’s face hardened, she turned away and said “I don’t want to talk about this anymore’, which was very unusual for her.

199. [404]

     Associate Professor Quadrio did not interview D in 2014, the opinions she expressed in her report were based on what C told her and D’s records. C then described the fearful state D was in after the police interview, which had left Cr with enormous regret, because later she came to appreciate that Mr Bird had left D in fear that her mother would go to jail. D was left fearing that her mother would go and not come back; suffered ongoing night terrors; feared for her friends; feared going to school because the principal might be like Mr Bird; would not engage with friends or activities and suffered from separation anxiety and tantrums.

200. [405]

     Associate Professor Quadrio also considered that Ds behaviour was highly suggestive of a child who had been traumatised, her behaviour strongly suggestive, but not specific to sexual abuse.

201. [406]

     In her 2015 report Associate Professor Quadrio explained the risks for D in questioning her about her disclosures and the unlikelihood of her being able to give an account of what had happened to her.

202. [407]

     The conclusions which I have reached about D’s disclosures are as follows:

     1. (1)

        D made a spontaneous disclosure to C about Mr Bird while they were lying together on the lounge and C was tickling her tummy, which included:

     2. (2)

        C was startled to hear D refer to Rod, understanding that the “tickle monster” was her brother, Hayley an older cousin and Nat another worker at Footprints. She asked:

     3. (3)

        D then tickled herself on the front of her underwear halfway between her pubic bone and groin area, saying “it feels nice mummy I like it. I’ll show on you mummy”.

     4. (4)

        D then pulled up C’s dress and tickled her on her underwear saying:

     5. (5)

        This was a spontaneous, free narrative account involving both words and physical representations, which on Associate Professor Quadrio’s approach was likely to have been accurate. There is nothing in the evidence which suggests that it was unreliable.

     6. (6)

        While D was not cross-examined, given Mr Bird’s admissions that he had tickled children and touched them in inappropriate places, including low on the tummy and that he may have even touched child 1 on the vagina, albeit unintentionally and also put his hand down the front of her pants, when considered together with the tendency evidence and other evidence I have discussed, I am also satisfied that this disclosure must be accepted as true.

     7. (7)

        C was shocked and agreed in cross-examination that she had concluded that D had potentially experienced inappropriate behaviour, by someone who was already up on a charge.

     8. (8)

        C reported the incident to the DOCS helpline in the morning. Arrangements were made for D to be interviewed.

     9. (9)

        In cross-examination C said that she was very concerned about the police interview because D was so young and wanted to give her context and some safety, because she thought the process might be distressing. C told D in the car on the way to the interview:

     10. (10)

         That no-one else saw the tickling was also a spontaneous disclosure.

     11. (11)

         The record of D’s police interview establishes that D was not reassured by what C had told her. To the contrary, she was clearly uncomfortable to be speaking to a stranger about something her mother had told her was wrong.

     12. (12)

         In the interview D was also asked questions in the way Associate Professor Quadrio discussed. She confirmed that she understood the differences between truth and lies. But she became extremely uncomfortable, giving many non-audible replies and repeatedly asking for her mother.

     13. (13)

         D did say that she knew Rod who worked at kindy and that he would put her on a beach ball and swing. She identified various parts of her body, including what she called the “wizzie”. When asked whether there was anything that she should tell the interviewer or “anything I need to know” she said only “Go see momma”.

     14. (14)

         C did make a disclosure, when she said:

     15. (15)

         I am also satisfied that this disclosure was true, corroborated as it was by Mr Bird’s admissions that he touched children on the tummy.

     16. (16)

         C’s evidence was that afterwards D was severely distressed and so exhausted that she fell asleep in the car. On waking she said “Mummy I don’t want to go back to the police again” and became so distressed and clingy that C did not send her to preschool for the rest of the week.

     17. (17)

         In the following weeks D’s behaviour changed. She not only began carrying a blankie for the first time, but she became uncharacteristically shy, would not participate in dance class, had night terrors during which she would scream and lash out and began to communicate in baby babble, which was unusual, having been an early talker.

     18. (18)

         In cross-examination C agreed that until she told D that where Mr Bird had tickled her was not a proper place, D had never demonstrated any traumatic or adverse effects; that she never said he had hurt her; and that later she had said she enjoyed being tickled there and wanted C to do it to her; and on another occasion that it felt good, but her tummy felt really sick. About a month after the police interview D said it had occurred at preschool somewhere far away

     19. (19)

         D also said things like when C was late picking her up “Mumma, you were late, I thought you had gone to jail and would never come get me.” On another occasion in 2011 D burst into tears one night and said: “I don’t want to go to school because I think the principal will be like him.” C understood D to mean Mr Bird and was very worried about these changes in her.

     20. (20)

         C came to decide that going to court to pursue charges against Mr Bird would do D significant damage and none were laid in relation to her. D was also referred to counselling at Sydney Children’s Hospital, which also provided C with strategies to support her.

     21. (21)

         D’s disclosures continued when C asked her further questions. In late February C asked:

     22. (22)

         There is also no reason to conclude that this was untrue.

     23. (23)

         After seeing Mr Bird in the street, C decided to ask D how often Rodney had tickled her. D said “lots”. C asked “Did you want it to happen lots?” D answered “No.” C then asked “Did you tell Rod you didn’t want it to happen lots?” D said “Yes, but it kept happening.”

     24. (24)

         Later D said sometimes Rod would tickle another child at the same time that he tickled her, “because we were all best friends” and that he would let a third child watch.

     25. (25)

         These accounts were not all free narratives and also made some months after D last saw Mr Bird. But the questions C asked were either open or not leading. The evidence is not consistent with C pursuing suggestive questioning, or that D could not distinguish between reality and non-reality.

     26. (26)

         In cross-examination C did not agree that the outdoor area, which was L shaped, was clear and obvious from any number of vantage points. She said that it was not completely open and you would have to be a significant way down the sandpit end, to have a vision of where it and the shed was. C agreed that she saw staff moving around in that area, but at other times they were chatting and standing still. That is supported by other evidence I have already discussed and supports the conclusion that it was possible for Mr Bird to assault D in the ways she disclosed, without being observed by other staff.

     27. (27)

         Given that evidence, Mr Bird’s admissions, the other tendency evidence and other evidence I have discussed, I am also well satisfied that the plaintiffs have met the onus of establishing that Mr Bird assaulted D in the ways that she disclosed.

The intentional torts are proven

1. [408]

   The Civil Liability Act does not apply to the claims in respect of assault: s3B.

2. [409]

   The conclusions I have reached establish that Mr Bird intentionally assaulted B and D that the plaintiffs have proven the intentional torts they alleged, on the balance of probabilities.

3. [410]

   There is no issue about causation in relation to those claims.

Vicarious liability

1. [411]

   It is convenient now to deal with the issue of vicarious liability which relates both to the common law and Civil Liability Act claims, in the latter case under s5Q.

2. [412]

   The defence case was that Mr Bird was a volunteer for whom the other defendants were not vicariously liable: Hollis v Vabu Pty Ltd (2001) 207 CLR 21; [2001] HCA 44 and Prince Alfred College Incorporated v ADC (2016) 258 CLR 134; [2016] HCA 37.

3. [413]

   That was in issue, with the plaintiffs relying on UK authorities to submit that even if it was concluded that Mr Bird was not an employee, in his circumstances Little Pigeon was also vicariously liable for his acts, as it would have been if he had been an employee, applying the tests established in Prince Alfred College.

4. [414]

   Vicarious liability for a volunteer who did work which would otherwise be done by an employee, but who had entered neither an employment or independent contract, did not arise for consideration either in Hollis or Prince Alfred College.

5. [415]

   Sections 6G and 6H of the Civil Liability Act now make provision for vicarious liability for child abuse perpetrated by employees and individuals akin to employees, in specified circumstances. An individual is akin to an employee of an organisation, “if the individual carries out activities as an integral part of the activities carried on by the organisation and does so for the benefit of the organisation”: s6G(2). On the evidence Mr Bird would fall within that definition.

6. [416]

   Section 6F imposes a duty to take reasonable precautions to prevent an individual associated with the organisation from perpetrating child abuse in connection with the organisation’s responsibility for the child. Such an individual “without limitation includes an individual who is an office holder, officer, employee, owner, volunteer or contractor of the organisation”: s6F.

7. [417]

   But it was common ground that these provisions do not apply in this case, given that the events in question occurred before these provisions took effect.

8. [418]

   Contrary to the defence case I have concluded that the evidence does establish that in reality Mr Bird was an employee, even though he was not paid wages for his work and was represented to be a volunteer.

9. [419]

   If I had not reached this conclusion I can see no reason, in principle, why there should not have been vicarious liability for his acts, given the tests discussed in Prince Alfred College and “the orthodox route of considering whether the approach taken in decided cases furnishes a solution to further cases as they arise” there discussed: at [46].

10. [420]

    A case like this does not appear previously to have arisen for consideration in Australia, as it has in the UK. There in Cox v Ministry of Justice [2016] AC 660 [2016] UKSC 10 the advent and principles of a “modern theory of vicarious liability” which extends beyond the strict relationship of employment was explained by reference to Catholic Child Welfare Society v Various Claimants [2013] 2 AC 1; [2012] UKSC 56 at [24] and [29]-[31]. Those principles were considered in Barclays Bank plc v Various Claimants [2020] UKSC 13 at [27].

11. [421]

    Those principles are concerned with harm done by an individual who carries on activities as an integral part of a business and for its benefit, rather than as part of the conduct of a recognisably independent business of his own, or of a third party, where the commission of the wrongful act is a risk created by the assigned activities.

12. [422]

    Thus in DSN v Blackpool Football Club Ltd [2020] EWHC 595 (QB) the application of those principles resulted in the Club being vicariously liable for abuse committed by an unpaid volunteer: at [175].

13. [423]

    These principles do not entirely accord with those established in Prince Alfred College, which must be applied in this case, but they do demonstrate how the common law develops, when new situations arise for consideration.

14. [424]

    I consider that application of the Australian principles to the facts I have found, would permit the conclusion that Little Pigeon was vicariously liable for Mr Bird’s acts, even if he provided his services to Little Pigeon as a volunteer, rather than as an employee.

15. [425]

    But it is not necessary to decide the case on that basis.

16. [426]

    In Hollis Gleeson CJ referred to the long accepted general rule, “that an employer is vicariously liable for the tortious acts of an employee but that a principal is not liable for the tortious acts of an independent contractor”: at [32]. The reasons underlying this rule and how it can be determined whether or not a wrongdoer was truly an employee, were then examined. It was observed that:

17. [427]

    Mr Bird and Ms Clancy were Little Pigeon’s shareholders, Ms Clancy its sole director and both were involved in management of the centre. Mr Bird told the police that he was both an owner and silent partner in the business.

18. [428]

    In her police statement Ms Clancy said she had obtained two loans when she bought the business. She owned the building in her name and in order to purchase the pre-school, she had used Mr Bird’s house as collateral and therefore gave him 1% ownership. They lived together in his home.

19. [429]

    Approval was sought for Mr Bird’s involvement in the centre as an owner and a probity check application was made. The term “owner” was not defined in the Regulations. That Mr Bird was to work in the centre as a volunteer was not disclosed.

20. [430]

    In the documentary materials Mr Bird was variously identified to be an owner, a volunteer, cook, OHS officer, maintenance person, the playground supervisor and a member of staff, but as I have explained the regulations required that some of these functions be performed by an employee.

21. [431]

    In the materials which Little Pigeon published to those who wanted to enrol children, while Mr Bird was described as a volunteer, he was also said to be part of management and the centre’s playground supervisor.

22. [432]

    Mr Bird was not paid wages for his extensive work, which he agreed would have reduced the amount of his pension, but he was remunerated by the various benefits he received.

23. [433]

    There can be no question as to the extent of Mr Bird’s integration into the Little Pigeon’s business, given the nature of the work he performed at the centre for over 12 hours a day Monday to Friday, as well as maintenance work on the weekend. As he accepted, had he not performed his cooking, cleaning, maintenance, OHS and first aid work, others would have had to be employed to undertake that work. He also worked closely with children.

24. [434]

    There is also no question that Little Pigeon and Ms Clancy were able to control the work which he did.

25. [435]

    In her police statement Ms Clancy described Mr Bird taking care of children who needed extra care, such as nursing infants who were teething and crying for hours; looking after children who were sick and vomiting until parents arrived; on occasions assisting with a high maintenance child at sleep time by “reading books and entertainment” and talking to them, or if someone else needed to leave the centre.

26. [436]

    Ms Clancy also said that Mr Bird helped children draw and plant gardens, as well as yard play, supervision and involvement in structured outdoor programs which Mr Bird and other witnesses explained. That included instruction in how to play games for example.

27. [437]

    The evidence thus well established that the work which Mr Bird performed in relation to the children was the type of work which others were also employed to perform.

28. [438]

    Mr Bird had little control over when or how he performed his work, that being highly regulated, both by the centre’s policies and the applicable regulatory scheme: Hollis at [49]. Mr Bird was presented to parents, children and other staff as an emanation of Little Pigeon, wearing the same uniform as the other employees, which helped his identification as a member of staff: Hollis at [51]-[52]. He also attended some, but not all staff meetings.

29. [439]

    It was Ms Clancy who devised the daily roster which Mr Bird adhered to and other staff who devised the programs of activities in which he was involved with the children. All of the work that Mr Bird performed and the work practices Little Pigeon implemented and he followed, were thus consistent with him being an employee: Hollis at [47].

30. [440]

    Ms Kasim did not become the authorised supervisor until October 2010, when she became responsible for Little Pigeon’s overall supervision. There are no contractual documents in evidence which establish what her actual duties were before or after that appointment.

31. [441]

    As I explained, Ms Clancy’s evidence was finally that before Ms Kasim’s appointment she undertook the duties of the authorised supervisor, as well as her other work. That involved the supervision of staff, but in practice Ms Clancy performed the majority of her work in the office and only on occasions went into the yard and elsewhere in the centre.

32. [442]

    As I have explained in reality Ms Clancy’s supervision of Mr Bird was no different to her supervision of other employees, even though the regulations required that he always be accompanied when working with children, if he was truly a volunteer. It was made known that Mr Bird was not to be left alone with children, but that rule applied to all staff.

33. [443]

    Ms Clancy gave no evidence that Mr Bird reported to any member of staff, when performing any of his duties, or that anyone was directed to accompany him when he worked with children. His managerial position of playground supervisor was not consistent with him being subordinate to others employed by Little Pigeon, but did not preclude him being an employee. It was Ms Clancy who instructed Mr Bird to treat the children as he would his grandchildren. She was Little Pigeon’s guiding mind. Her evidence establishes that she exercised practical control over what Mr Bird did and how he did it.

34. [444]

    Given the vulnerable children aged 0 to 5 years for whom Little Pigeon cared for at Footprints under the legislative scheme by which it was closely regulated, there is considerable importance in the deterrent effect of it having liability for Mr Bird’s activities. That follows from its ability to control his work, in order to reduce accidents and the opportunity for intentional wrongs towards the vulnerable young children it cared for, by efficient organization of how it operated the centre, by adherence to regulatory requirements and by supervision of its staff.

35. [445]

    Thus holding Little Pigeon vicariously liable for Mr Bird’s wrongs may encourage it and others like it to take steps to reduce the risk of future harm: Hollis at [53].

36. [446]

    In the result I am satisfied that the considerable authority which Mr Bird was given at the centre, which permitted him to have the same close contact which other staff employed there had with children; the control which Little Pigeon had and Ms Clancy exercised over all that he did; his integration into the business; how he was represented to others as being an integral part of its operations and how he was supervised in the same way as other staff, rather than being accompanied in the way reg 57 required volunteers to be accompanied, must result in the conclusion that in truth he was an employee, not a volunteer.

37. [447]

    That Mr Bird received little reward for his work does not allow a different conclusion. What he did undoubtedly contributed to the profitable operation of the business, ultimately partly to his own benefit. But as explained in Hollis “considerations respecting economic independence and freedom of contract are not, with respect, determinative of the legal character of the relationship”: at [46].

38. [448]

    There was no issue that both Little Pigeon and Ms Clancy could be vicariously liable for Mr Bird, if he was found to be an employee.

39. [449]

    In Prince Alfred College vicarious liability of a school for sexual abuse of a student by a teacher arose for consideration. It was observed by the plurality that:

40. [450]

    On the evidence I am satisfied that Little Pigeon was vicariously liable for Mr Bird’s wrongful acts. That conclusion flows from:

41. [451]

    The evidence I have discussed well established that Mr Bird took advantage of the roles he was given by Ms Clancy, Little Pigeon’s controlling mind. Those roles and the nature of the responsibilities which he had, provided him the opportunity and occasion for his wrongful acts, while he had close contact with his victims.

42. [452]

    That allowed him to abuse of the position of trust in which he was placed, vis-à-vis each of his vulnerable young victims, in ways closely connected with his employment.

43. [453]

    I have also discussed the authority which Little Pigeon gave Mr Bird as part of its management team, which permitted him to abuse the close contact he was given with children both inside and outside the centre, contact of a kind which otherwise only trained primary contact staff were permitted to have. It was also that authority which helped him exploit the opportunity he was given to touch the children, the result being the various inappropriate acts that he admitted to police, many of which were notifiable to DOCS, had they been detected, as well as the assaults the children disclosed.

44. [454]

    It was the trust that was placed in him which also gave him the opportunity and occasion to assault the children in the ways established on the evidence.

45. [455]

    The evidence of those with whom Mr Bird worked established the trust which the positions which Little Pigeon gave him generated with children, parents and other staff. Ms Kasim, for example, told police that she did not know of the detail of the allegations which child 1 had made, but that every day Mr Bird would sit outside and supervise the kids and play with them, that he was a great person who was adopted by the children; and that she had never seen anything at all that she thought was inappropriate, even though she had seen him pat child 1 on the back.

46. [456]

    Yet when cross examined about the acts which Mr Bird had admitted, Ms Kasim’s evidence as a mandatory reporter was that acts Mr Bird’s had admitted, such as touching a young female child below the waist area, massaging a child's bare body, squeezing a child on the bottom and rubbing children underneath shirts, were all reportable. Ms Clancy gave similar evidence.

47. [457]

    The evidence thus well established that Mr Bird’s work, how he was instructed to approach it and how it was supervised, together gave him the necessary control over and ability to achieve intimacy with the children, which he abused when he repeatedly assaulted them in the various ways established on the evidence.

48. [458]

    Contrary to the defence case, the evidence I have discussed did establish that what Little Pigeon and Ms Clancy did both created and enhanced the risk of abuse which materialised, when Mr Bird conducted himself as he admitted, unlike the circumstances which arose for consideration in Withyman v State of New South Wales [2013] NSWCA 10: at [143].

B and D’s negligence claims

1. [459]

   There was no issue that B and D were owed a duty of care of the kind discussed in Cox at [72]-[78]. The duty is not to ensure against injury, but to take reasonable care to prevent it, that requiring the taking of reasonable steps which should reasonably have been foreseen.

2. [460]

   The plaintiffs relied on Mr Bird’s background, lack of training or qualifications, the access he was given to the children and how he was supervised to establish that he posed a risk of harm.

3. [461]

   Taking into account the requirements of ss5B and 5C of the Civil Liability Act, I am well satisfied that the evidence establishes that Mr Bird did pose such a risk; that it was a foreseeable risk, which was not insignificant and in the circumstances a reasonable person in the defendants’ position, would have taken available precautions:

4. [462]

   Whether the duty had been breached turned on what precautions had been taken and what precautions a reasonable person in Little Pigeon and Ms Clancy’s position would have taken. On all of the evidence I have discussed, I am also satisfied that the duty owed to B and D was breached.

5. [463]

   The claims pressed in the amended statements of claim in relation to B included :

6. [464]

   What was pleaded In relation to D included:

7. [465]

   The defence case was that the evidence established that the regulatory obligation to ensure that Mr Bird was never alone with children had been observed; that the centre had in place appropriate policies to ensure the safety of the children which staff, including Mr Bird, observed; that they were reviewed from time to time and enforced; and that there were no other precautions which could reasonably have been taken, to ensure the children’s safety.

8. [466]

   In her evidence Ms Clancy conceded that if the alleged abuse had occurred, the centre’s child protection systems had failed. I have explained why the evidence established that the abuse did occur.

9. [467]

   It was also conceded that the failure to report the incidents which Mr Bird described in his police interview in which young girls repeatedly exposed their genitals to him, as well as his admissions of reportable contact with other children, had involved breaches of the centre’s policies.

10. [468]

    I have already explained why I am satisfied that the plaintiffs established that the regulatory requirements I have discussed were not observed; that the child protection policy was not in effective operation, so far as Mr Bird was concerned; and that he was not adequately supervised, as he should have been.

11. [469]

    The evidence I have discussed established that it was reasonably foreseeable that the vulnerable children who attended Footprints would be at risk of injury if the regulatory requirements were not observed; the child protection policy was not in effective operation and Mr Bird was not adequately supervised, as he should have been.

12. [470]

    Further, I am also satisfied that a reasonable person in the position of Little Pigeon and Ms Clancy would have ensured that these steps were taken. They were precautions which should in any event, have been taken, given the statutory requirements I have discussed.

13. [471]

    The most important aspect of these failures was the failure to adequately supervise Mr Bird. From Mr Bird’s own account, he was not hiding his inappropriate behaviour, which he considered consistent with the instruction to treat the children as he would his own grandchildren, even though he appreciated he was behaving in ways that teachers could not and that some of his actions may even have involved an assault. That was presumably why he gave such an unguarded interview to police.

14. [472]

    Little Pigeon and Ms Clancy said that Mr Bird was a volunteer, but they did not ensure that he was always accompanied when he interacted with the children, as the regulations then required. Nor did they ensure that untrained as he was in child protection, he was closely enough supervised by other staff, so that his admitted assaults and the other ongoing, repeatedly inappropriate conduct he described towards the vulnerable children in their care, was not only observed, but notified to DOCS and thereby brought to a halt.

15. [473]

    On the evidence I am also satisfied that the plaintiffs established that there were a range of reasonable precautions which could have been taken, but were not. Chief amongst them was making sure that the policies and regulatory requirements were in practical operation so far as Mr Bird was concerned, untrained as he was and that he was adequately supervised.

16. [474]

    In the result there can be no doubt that the duty of care which B and D were owed was breached.

17. [475]

    It is for the plaintiffs to prove any fact relevant to causation: s5E Civil Liability Act. Section 5D is relevant, providing:

18. [476]

    The defendants relied on Roman Catholic Church v Hadba [2005] HCA 31; 221 CLR 161 at [27], where the plaintiff had not called evidence from anyone other than herself, to submit that the plaintiffs needed to explain how, in a practical sense, constant supervision of Mr Bird was to be carried out, without which it could not be concluded that a different system would have prevented their injuries, particularly given that there was also no evidence that he wasn’t accompanied by primary staff, those called not having been cross examined about that.

19. [477]

    I do not consider that what arose to be decided in Habda assists in the resolution of this case. It was concerned with a school which operated a system under which particular teachers had specific duties of supervision and were also expected to minimise dangers of kinds other than those to which their specific duties related: at [24].

20. [478]

    Thus questions as to causation arose, given that there were 30 seconds in which the teacher responsible for supervision was not looking at a flying fox; where the period between the moment when the plaintiff's legs were grabbed by other children and the moment when she fell, was likely at most to have been a few seconds. It was held to be unlikely that even a teacher watching the equipment uninterruptedly, would have been able to prevent the fall once her legs were grabbed.

21. [479]

    This is an entirely different case.

22. [480]

    Here in issue was whether Mr Bird had assaulted B and D; whether Little Pigeon and Ms Clancy were complying with their regulatory obligations; whether their child protection policy was in effective operation so far as Mr Bird was concerned; and whether he was supervised when given contact with children during the course of his work. All parties led evidence about these matters, including in the plaintiff’s case, by tendering Mr Bird’s admissions.

23. [481]

    I am satisfied that the evidence I have already discussed as well as that of the experts, to which I will return on the question of damages, establishes that all plaintiffs have proven that the defendants’ negligence was a necessary condition of the harm which they each suffered and that it is appropriate for the scope of their liability to extend to the harm which they caused.

24. [482]

    It follows that the plaintiffs established both factual causation, namely that the negligence caused the harm which B and D suffered and that it is appropriate for the scope of their liability to extend to the harm which they so caused.

A and C’s negligence claims

1. [483]

   Whether A and C were owed a duty of care was in issue. That must be determined in accordance with s32(1) of the Civil Liability Act, which provides that a duty of care is not owed to another person to take care not to cause mental harm “unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken”.

2. [484]

   “Mental harm” is defined in s27 to mean “impairment of a person’s mental condition”. The “circumstances of the case” include the personal injury suffered: s32(3). Section 32(2) specifies that they also include:

3. [485]

   Section 32 requires a particular and separate inquiry into the existence of a duty of care with respect to mental harm which depends on foresight, not hindsight: Optus Administration Pty Ltd v Wright by his tutor Wright (2017) 94 NSWLR 229; [2017] NSWCA 21 at [36] and [47].

4. [486]

   In issue was whether the defendants ought to have foreseen that a person of normal fortitude might, in the circumstances of both A and C, suffer a recognised psychiatric illness, if reasonable care were not taken.

5. [487]

   The defence case was that once A and C’s circumstances were clear, it would be concluded that they ought not to have foreseen that a person of normal fortitude might, in those circumstances, suffer a recognised psychiatric illness, if reasonable care were not taken, relying on Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35.

6. [488]

   In Tame Gleeson CJ observed that “It is the reasonableness of a requirement that a defendant should have certain persons, and certain interests, in contemplation, that determines the existence of a duty of care”: at [9].

7. [489]

   Further, the common law does not limit liability for damages for psychiatric injury to cases where the injury is caused by a sudden shock, or where a plaintiff has directly perceived a distressing phenomenon or its immediate aftermath. Such factual considerations may be relevant to the question whether it is reasonable to require one person to have in contemplation injury of the kind that has been suffered by another and to take reasonable care to guard against such injury. They may also be relevant to the nature of the relationship between plaintiff and defendant and to the making of a judgment as to whether the relationship is such as to import such a requirement: at [18].

8. [490]

   In A’s case the relevant circumstances include that when B started at the centre, that she advised that she did not wish male staff to change her nappy because “as a youth worker my education and experience tends to make me extra cautious.” She had complained about Mr Bird kissing B and B had been describing Mr Bird as “spicy” or “spiky”.

9. [491]

   When A later learned that Mr Bird had been charged, she experienced understandable feelings of fear that B had also been assaulted and guilt that she had not acted on her earlier concerns, affected no doubt by her husband’s concern. He shouted “I knew it” when she rang him with the news and returned home immediately from where he was working in Orange.

10. [492]

    A was relieved when B did not disclose in her first interview that she had been assaulted, but her concerns were not allayed and only heightened, when the following day B kissed her with an open mouth. She then made a police report.

11. [493]

    Again B on interview did not disclose anything of concern, but that A’s fears were not entirely allayed, was understandable in the circumstances. She asked B further questions which finally led to the recorded conversation with B, the police interviews and counselling sessions in which B gave her accounts of what Mr Bird had done which not only confirmed A’s fears, but heightened them when B spoke of him having pulled her pants down. That those fears were not allayed when B withdrew that allegation was also understandable, given the circumstances in which that occurred.

12. [494]

    That A would not engage in the type of analysis which was undertaken in these proceedings about the differences in the things which B had disclosed to her and police is also understandable. At the time she was not aware of what B had told police and was having to deal with the considerable ongoing consequences of what had happened, for B, herself and her family.

13. [495]

    While Dr Allnut and Dr Smith did not agree about the nature of A’s condition, to which I will return, they did agree that if B’s disclosures were accepted, a person of normal fortitude in A’s position might suffer a recognised psychiatric illness. Their opinion should be accepted.

14. [496]

    Whether a person of normal fortitude in A’s position might suffer a recognised psychiatric illness remained in issue, but I am satisfied that the evidence does establish that the defendants ought to have foreseen that a person of normal fortitude in A’s position, might suffer a recognised psychiatric illness.

15. [497]

    She was, after all, a mother who had left her vulnerable young child in their care and who came to have very good reason to fear that her child had also been sexually abused by Mr Bird, fears which in these proceedings have been established to have had a sound foundation.

16. [498]

    Despite A’s prior history I am well satisfied that Mr Bird’s arrest for offences against another child and B’s disclosures as to what he had done to her and their aftermath, did result in mental harm which the defendants ought to have foreseen that a person of normal fortitude might suffer, if they did not take reasonable care.

17. [499]

    In the result I am satisfied that s32 is satisfied and that it must be concluded that A was owed a duty of care.

18. [500]

    I have reached the same conclusion in relation to C.

19. [501]

    In C’s case the relevant circumstances include that:

20. [502]

    The experts agreed in their joint report that C did not have a pre-existing history of mental illness, but after D’s disclosure she developed an adjustment disorder, which Dr Allnut considered was chronic and an alcohol use disorder. Dr Smith considered that she also suffered mixed depressed and anxious mood and Dr Allnut that she also had a generalised anxiety disorder and had used alcohol to treat her symptoms.

21. [503]

    The experts did not identify other contributing stressors. Dr Allnut considered that C had since experienced financial stressors as the result of her multiple periods off work, which had affected her savings. The experts agreed that the ongoing litigation had a continuing effect and that she required further treatment.

22. [504]

    They differed as to her prognosis, but agreed that a mother of normal fortitude would suffer a recognised psychiatric illness caused by the reported abuse given D’s age and C’s circumstances. I am also satisfied that their opinion should be accepted.

23. [505]

    C was also a mother who had left her vulnerable young child in the defendants’ care. She already had concerns about the cause of D’s fear of going to the centre and behavioural changes. After Mr Bird was charged, she also came to have very good reason for fearing that he had also sexually abused her child.

24. [506]

    I am thus also well satisfied that C suffered a psychiatric illness in circumstances in which the defendants ought to have foreseen that a person of normal fortitude might suffer such harm, if they did not take reasonable care.

25. [507]

    Thus s32 was again satisfied and it must be concluded that C was also owed a duty of care.

26. [508]

    For similar reasons to those I have given in relation to B and D, I am also satisfied that the evidence establishes that the duty owed to A and C was also breached.

27. [509]

    It is not necessary to repeat what I have explained. I am satisfied that what the evidence establishes about the failure to ensure that the regulatory requirements were observed, the child protection policy was in effective operation and Mr Bird was adequately supervised, also establishes breach of the duty A and C were owed.

28. [510]

    It was also reasonably foreseeable that mothers such as A and C who left their vulnerable children in the defendants’ care would be at risk of injury if these precautions were not taken. Further, that a reasonable person in their position would have ensured that they were.

29. [511]

    Thereby the duty which A and C were owed was also breached.

Causation

1. [512]

   For similar reasons to those given in relation to B and D, I am also satisfied that A and C have established causation.

2. [513]

   Like the circumstances which arose for consideration in Annetts v Australian Stations Pty Ltd (2000) 23 WAR 35; [2000] WASCA 357, in both A and C’s cases the evidence established that the breach of the duties which they were owed did make a material contribution to their injuries, which was also reasonably foreseeable: Tame at [29].

3. [514]

   Further, it was reasonable for Little Pigeon and Ms Clancy, its controlling mind, to be expected to foresee that their approach to the regulatory requirements, Mr Bird’s work and supervision and the implementation of the child protection policy carried a risk of harm to A and C, of the kind that resulted.

4. [515]

   Further, that reasonable expectation required them to have A and C’s mental health in contemplation when they took acts which resulted in regulatory requirements and the child protection policy not being in effective operation so far as he was concerned, and in him not being supervised as he ought to have been, whenever he interacted with children in the course of his work.

5. [516]

   In both A and C’s circumstances, the process by which they became aware of the nature and extent of their young daughter’s abuse by Mr Bird, was also agonizingly protracted: Tame at [36]-[37].

6. [517]

   Both A and C learned about the charges laid against Mr Bird, ‘out of the blue’. In pursuing their reasonable concerns that he might also have hurt their daughters, they understandably accepted the counselling interviews offered. Both B and D, over time, made the various disclosures I have discussed.

7. [518]

   All the while A and C had to deal with not only the consequences of the abuse B and D were suffering, but the consequences which not unexpectedly also resulted for them. All of the long unfolding events which followed had devastating and foreseeable consequences for A and C’s health.

8. [519]

   In the result I am also well satisfied that the evidence I have already discussed and that of the experts to which I will return on the question of damages, establishes that A and C have also proven that the defendants’ negligence was a necessary condition of the harm which they each suffered and that it is appropriate for the scope of their liability to extend to the harm which they caused.

9. [520]

   It follows that the plaintiffs also established both factual causation, namely that the negligence caused the harm which A and C suffered.

Breach of contract

1. [521]

   The amended statements of claim, in A’s case for example, pleaded breach of implied terms of the contract identified to be:

2. [522]

   The defence in A’s case pleaded:

3. [523]

   The defence case was that on the principles established in BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 at 283, there was no justification for implying the terms which remained in controversy.

4. [524]

   Those principles are that to justify the implication of a term which the parties have not expressed, the conditions, which may overlap, which must be satisfied are:

5. [525]

   It was also submitted that those implied terms which were accepted took the plaintiffs no further than their claim in negligence. The plaintiffs took no issue with this.

6. [526]

   Given the conclusions which I have reached on the negligence claims and the terms which the defendants accepted, it follows that A and C have also established their contractual claims, but no additional damages flow.

Damages

1. [527]

   The parties reached some limited measure of agreement on damages: exhibit 127. For reasons which follow I am satisfied that each plaintiff suffered considerable damage.

2. [528]

   There was no issue that the Civil Liability Act did not apply to the assessment of damages for Mr Bird’s assaults: s3B(1)(a). I can see no reason why the damages for those assaults would be assessed differently, because of the conclusions which I have reached on vicarious liability. This was an issue which the parties did not finally address and so it is unnecessary to consider it further.

3. [529]

   In total $1,349,579.31 plus costs, disbursements and interest was claimed. Mr Bird’s case was that no more than $67,797.22 would be awarded and the other defendants contended for no more than $128,534.29.

4. [530]

   In arriving at an award of damages what lay in issue as to A’s psychiatric condition must be resolved.

5. [531]

   The psychiatric experts Dr Allnut and Dr Smith both examined A, produced reports, later discussed the differences in their opinions and produced a joint report, about which they gave concurrent evidence. They agreed that she had suffered a psychiatric injury, but could not agree what it was or its prognosis, or whether beforehand, she had suffered post traumatic stress disorder.

6. [532]

   In order to resolve what lay in issue between them, the evidence concerning A’s mental health has to be considered.

7. [533]

   A’s husband corroborated various aspects of her evidence, including as to the considerable, adverse impact which B’s disclosures and their aftermath had on her and their family. He described in detail how different her health, capacities and life were beforehand.

8. [534]

   A’s evidence was that she became extremely anxious after B’s disclosures, experiencing difficulty in going out into the community with B and fearing judgment or a negative reaction from B. This led to a decision in October 2011, to move out of the family home in Engadine, to reduce the chance of running into someone from the centre and triggering B, despite the impact which this had on her brother.

9. [535]

   A was cross-examined about her reaction to various developments, including a counsellor having to check whether her understanding that Mr Bird was to be charged in relation to B’s disclosures was correct. At the time A, who had not read the transcripts of B’s police interviews until these proceedings were commenced, was dissatisfied with the process and concluded from the counsellor’s approach, that she could no longer work with her.

10. [536]

    In cross-examination A agreed that at times when she was distressed she did not then consider that B’s needs were being recognised, or adequately dealt with. It was also suggested to A that her evidence about some of these events was untrue, which she denied.

11. [537]

    I do not accept that A was being untruthful. To the contrary, I consider that there is no reason to doubt A’s evidence about how she felt and reacted, given her circumstances, the consequences of B’s disclosures and what followed for her own mental health and the consequences for her further education, career and personal relationships.

12. [538]

    A was undoubtedly under very considerable strain at the time. The fact that she reacted in ways which others might not consider to have been reasonable or warranted, does not establish that the evidence which she gave about what she remembered doing and hearing and the reasons for her actions at the time, was untruthful.

13. [539]

    A’s relationship with her husband became strained, which he corroborated. They attended a sexual assault counsellor to understand the impact on B, as well as psychotherapists. A struggled with sleep and concentration, with the result in 2011 and 2012, that she took considerable time off work. She also began self-medicating with cannabis, valium and alcohol, to help deal with her anxiety.

14. [540]

    A’s husband described the changes in her mood and behaviour after B’s disclosures, as A struggled to come to terms with what had happened. He described her as a happy, independent and driven woman beforehand, well able to care for herself, the household and the family. Afterwards she had to rely heavily on him, as she struggled with alcohol and substance abuse, nightmares, anxiety and panic attacks.

15. [541]

    He described the impacts on their family life, the house falling into a state of disrepair from being spotless, as A was no longer motivated to clean and perform other domestic duties and became overwhelmed with the process of preparing meals. He had to engage cleaners, himself take up more of the domestic load and obtain help for school drop offs and pick-ups. Their relationship also deteriorated.

16. [542]

    At the time of B’s disclosures A had been working as a child, youth and family worker for some 7 years, working 21 hours per week over 3 days, as well as undertaking part time administrative work in her husband’s business. She had an undergraduate degree in Social Sciences (Social Welfare) and in 2011 obtained another Diploma and Graduate certificate. She also intended to pursue her Masters of Social Work (Professional Qualifying) and to increase her working days to 5, when B commenced school.

17. [543]

    Between November 2010 and November 2012, A took considerable periods of leave from her work, to deal with the consequences of B’s abuse. They were unable in that time to take holidays.

18. [544]

    After damaging Ms Clancy’s home in May 2012, following the DPP decision not to proceed to trial, A realised that she required treatment and was referred to a psychologist who treated her for addiction for some five months. In cross-examination A said that she and her husband had wanted the DPP to proceed with the charges and understood B being reinterviewed was a part of that process, which at the time she thought B could cope better with than she did.

19. [545]

    In cross-examination A did not recall being given any information or asking about what B had disclosed in her second interview and did not recall raising with police what B had told her about her pants being pulled down. But she agreed that this had been potentially very scary to her, as was B’s disclosure about open mouth kissing. She could not recall either disclosure then being discussed with her, but agreed that she found the DPP decision heartbreaking, overwhelmingly distressing and one which “broke” her. A’s husband confirmed that this had had a huge impact on them both.

20. [546]

    A also agreed that she still believed that B had been sexually assaulted by Mr Bird; she had been kissed on the mouth with an open mouth on more than one occasion and had her pants pulled down. B’s retraction of the latter had not altered that belief.

21. [547]

    Initially A’s symptoms included almost daily panic attacks and nightmares, which still continue. She continued to abuse alcohol until early 2017. Then she injured herself badly when affected by drugs and alcohol, which led to an ultimatum from her husband, which resulted in her ceasing her abuse.

22. [548]

    A was treated by a psychologist, initially weekly and then monthly, until early 2017. During this time she was diagnosed to be suffering post traumatic stress disorder.

23. [549]

    In November 2012 A resigned her job, being unable to sustain her work and having used all of her leave. In June 2013 she obtained other employment, initially for 14 hours per week, which increased over time to 32 hours. She left that position after first taking another month off, in late 2017.

24. [550]

    After 3 months A accepted another position, but found the work draining, because she had to deal with other children who had been abused. She often had to take personal leave days and time in lieu to deal with this, but had a supportive manager. She found 32 hours per week a strain to manage and still did not think she had the capacity to work full time, given her low energy levels and problems with concentration and focus.

25. [551]

    In 2013 A enrolled in the Master’s degree at Charles Sturt University, but had to defer, because she was not confident that she had the focus necessary to complete her studies. Later she enrolled in the degree at the University of Wollongong, but again had to defer, feeling overwhelmed each time she began a subject.

26. [552]

    A’s panic attacks are kept under control with medication, but she still avoids many social situations and even finds shopping difficult. Her husband’s evidence was that although her condition is better managed with medication, her work still triggers her. Over the years A has said to him that she should have asked more questions of the centre about the male workers role and responsibilities.

27. [553]

    In cross-examination A agreed that her medical records established that in 2005 and 2006 she had been prescribed medications for anxiety, but she did not recall them. She agreed that she had been referred to a psychologist to deal with her anxiety about a past abusive relationship.

28. [554]

    A was asked about the details, which included physical violence towards the end of the relationship by her ex-partner who had an antique firearm, which she understood could not be fired. One time he had held her by the throat against a wall. She said that this had left her intimidated and fearful. She said the moment was terrifying and that she was distressed when police arrived. He later presented himself to police and an AVO was put in place, but later repeatedly made threats which left her fearful and resulted in her developing a phone phobia.

29. [555]

    A was taken to records which referred to treatment for symptoms of anxiety and depression, but she could not recall having been diagnosed to be suffering any disorder. She recollected that her referral in 2007 to a psychologist was to deal with post-natal depression, during which the history of her past abusive relationship arose.

30. [556]

    A also agreed that when she saw Dr Allnut she did not give him a complete history of all the medication she had been treated with, but said she had told him about what she could recall. I accept this evidence.

31. [557]

    Dr Allnut did not find it unusual that she could not recall her complete history. Both experts had access to A’s medical history, which included treatment by a psychologist. That she did not recall or volunteer all the information there contained, for example medication she had taken in 2005, was not surprising.

32. [558]

    I do not accept that A set out to mislead those who examined her about her history.

33. [559]

    The experts each made reference to the DSM-5 classification for post traumatic stress disorder, about which they disagreed, but it is not in evidence and the parties did not address its terms.

34. [560]

    There was no issue between the experts that as the result of experiences commencing in her teenage years, A had suffered a diagnosable psychiatric disorder before B’s disclosures. She had been the victim of a violent attack in which she was both threatened and harmed. That had made her vulnerable to further injury, such as the post-natal depression which she had suffered.

35. [561]

    When the concurrent evidence began, Dr Smith agreed that some opinions he had expressed had been based on documents with which he had been instructed, which did not refer to A, but another patient, which he had not noticed at the time he gave his supplementary report. The result was that he withdrew some opinions he had expressed, it being apparent that they had no foundation.

36. [562]

    The joint report recorded that Dr Allnut’s opinion was that A had earlier suffered post-natal depression; an anxiety and substance abuse disorder which made her vulnerable to depression and anxiety, as well as the post traumatic stress disorder which she had developed following B’s disclosures. Dr Allnut found no convincing evidence of a pre-existing post traumatic stress disorder, or one that was active in 2010.

37. [563]

    Dr Smith’s opinion was initially that A had a borderline personality disorder, alcohol and substance use disorder, major depression and generalised anxiety with panic, as well as post traumatic stress disorder or subclinical features of such a disorder, before B’s disclosures.

38. [564]

    In the joint report the experts agreed that A had experienced psychological symptoms following the events involving B. Dr Allnut considered that she then developed chronic post traumatic stress disorder, with associated depressive symptoms, as well as a chronic adjustment disorder and a substance abuse disorder. If there had been pre-existing post traumatic stress symptoms, her injury after B’s disclosures had been an aggravating factor.

39. [565]

    However Dr Smith considered that A’s condition was consistent with an adjustment disorder with depressed and anxious mood, which had partially resolved and not post traumatic stress disorder, because the incidents involving B had not involved actual or threatened death of a family member or friend, with the event itself being violent or accidental, an essential criterion for that disorder. He also considered that A had a pre-existing diagnosis of post traumatic stress disorder, which continued to cause her stress.

40. [566]

    In the concurrent evidence Dr Allnut explained that his opinion was that A had developed a psychiatric condition as a result of B’s disclosures and/or her belief that the relevant abuse had occurred, which were both significant stressors for her, consistent with criterion A for a diagnosis of post traumatic stress disorder, which includes learning that the traumatic events occurred to a close family member. He considered that A would be more vulnerable to responding to that criterion, given the nature of her work, so that this would have had greater meaning, import and impact on her.

41. [567]

    Dr Smith disagreed. His opinion remained that A had developed an adjustment disorder with mixed depressed and anxious mood in response to a stressor of significance, namely, learning of the potential issues involving her daughter. But her symptomatology had substantially resolved and he viewed her condition as more likely to have resulted in an adjustment disorder, that had partially resolved.

42. [568]

    Dr Smith considered that B had not suffered from threatened sexual violence, which was the relevant criteria, because there was none involved in what had happened to her and thus her disclosures were not sufficient for A to be diagnosed with post traumatic stress disorder. Dr Allnut disagreed.

43. [569]

    Both Dr Smith and Dr Allnut agreed, however, that what was also important was perception. Thus Dr Smith accepted that an adult male in his 60s forcing his tongue into the mouth of a three-year-old girl, could fit within the notion of sexual violence, depending on the reaction of the individual to the perceived insult, which some might view as markedly intrusive and offensive and others may not.

44. [570]

    I am well satisfied that the evidence establishes that A’s reaction to B’s disclosures proceeded on a perception that B had been sexually assaulted in the ways she disclosed. They did provide a basis for the perception that Mr Bird’s acts towards B when aged 2 and 3 had involved sexual violence, albeit it was at the lower end of the possible scale.

45. [571]

    Having considered the evidence, I can find no basis for Dr Smith’s conclusion that A was suffering post traumatic stress disorder before B’s disclosures.

46. [572]

    The significant stress and symptoms which have been caused by those disclosures and their ongoing aftermath over the years since, stands in significant contrast to A’s condition beforehand. Her prior resilience appears to have permitted her to recover from the consequences of her unfortunate earlier experiences, although they had made her vulnerable to further injury, to which she succumbed following B’s disclosures.

47. [573]

    A’s education, work, personal history and response to B’s disclosures, supported as that was by the evidence of A’s husband, established that it was the consequences of the disclosures and what followed, which led to A’s post traumatic stress disorder.

48. [574]

    Despite Dr Smith’s view about A’s earlier trauma not having resolved, because they had been indelibly imprinted on her and had not abated, in the joint report Dr Allnut and Dr Smith agreed that there had been improvement over time in A’s condition. Dr Allnut considered that her substance abuse disorder was in remission.

49. [575]

    They both agreed that alienation from her parents, who had not supported her in the aftermath of B’s disclosures; the criminal charges which followed her vandalism at Ms Clancy’s home while abusing substances and giving evidence at the Royal Commission into Institutional Responses to Child Sexual Abuse, all aftermaths of B’s disclosures, would have resulted in ongoing stress.

50. [576]

    The experts also agreed that A required further treatment, but not how much, or why, or what her prognosis was.

51. [577]

    In the concurrent evidence Dr Allnut explained that it was very difficult to know whether something will resolve or not, that being a matter of probability. He viewed A’s prognosis as guardedly positive and that over time she will improve. One of the poor prognostic factors was the relative persistence of her symptoms over time, because if symptoms persist, the more entrenched they can become. But he considered that there was a reasonable probability that she will improve.

52. [578]

    Dr Smith considered A’s prognosis in relation to the incidents involving B as good, but her pre-existent psychopathology's prognosis as most guarded. Dr Allnut found it very difficult to tease out pre-existing from current, because they compound. It was well-accepted that recurrent episodes of mental conditions increases vulnerability, so the pre-existing vulnerability remains and the further injury then increases vulnerability to relapse.

53. [579]

    Given all of the evidence I have discussed, I am satisfied that Dr Allnut’s opinions must be preferred.

54. [580]

    The evidence does not establish that A suffered post traumatic stress disorder before B’s disclosures. To the contrary, she was then functioning well both personally and professionally, despite her earlier symptoms. But I am satisfied that she did develop that condition afterwards, it being one that she was vulnerable to developing, because of her earlier injury. That condition is now chronic and her prognosis guarded. While A has made good progress in her pursuit of recovery, she has been left vulnerable to relapse and further injury.

55. [581]

    $250,000 was claimed, then about 38% of a most extreme case under the Civil Liability Act. Mr Bird contended $25,000 would be awarded and the other defendants 20% of a most extreme case, $23,000.

56. [582]

    The defence case was that no more than the 35% awarded to the mother in Sorbello v South Western Sydney Local Health Network [2016] NSWSC 863, who had suffered a greater injury than A, should be awarded.

57. [583]

    “Non-economic loss” is defined for the purpose of the Civil Liability Act in s3, to mean:

58. [584]

    Section 21 of the Civil Liability Act applies, providing:

59. [585]

    Given the conclusions I have reached about A’s chronic condition, guarded prognosis; good progress in her pursuit of recovery, but vulnerability to relapse and further injury, her economic loss must be assessed at $158,000. That is 30% of a most extreme case under the Civil Liability Act.

60. [586]

    A also claimed $100,000 exemplary damages while the defendant’s case was that there would be no such damages and on Little Pigeon and Ms Clancy’s case, if there was an award it would not be more than the $50,000 discussed in Gersbach v Gersbach [2018] NSWSC 1685 at [512].

61. [587]

    In Gray v Motor Accident Commission (1998) 196 CLR 1; [1998] HCA 70 it was observed that exemplary damages are awarded rarely: at [12]. “The first, if not the principal, focus of the enquiry is upon the wrongdoer, not upon the party who was wronged”: at 15. Such damages are awarded to punish the wrongdoer and deter others from like conduct, but are not exacted by the State or paid to it: at [16].

62. [588]

    They may be awarded in cases of conscious wrongdoing in contumelious disregard of the plaintiff's rights: at [20]. The power to award such damages is discretionary and not generally awarded where a perpetrator has been sentenced to a term of imprisonment. That Mr Bird was charged but not convicted of offences involving B is thus relevant, as is the fact that his victim was B, not A.

63. [589]

    I have concluded that because B must be awarded exemplary damages, it is not appropriate also to award such damages to A, if available, because otherwise there would be a suggestion of double punishment, albeit here under the civil law: Gray at [42]-[44].

64. [590]

    $8,835.39 was finally agreed.

65. [591]

    $58,478.46 was claimed, based on Dr Allnut’s opinions and a buffer of $15,000 for the remainder of A’s life. . Mr Bird contended $2,250, which was unexplained would be awarded and the other defendants $9,330, based on Dr Smith’s opinions.

66. [592]

    I am satisfied that given the nature and seriousness of A’s injury and what she is now at continuing risk of, the damages claimed must be awarded.

67. [593]

    $187,482.50 was claimed for past economic loss and alternatively a buffer was claimed. Mr Bird contended $31,711.83 would be awarded, that reflecting a 75% discount for her pre-existing condition and the other defendants $63,423.65, their case being that there had been an exacerbation of a pre-existing illness rather than a new injury, with the result that there should be a substantial discount of 50%.

68. [594]

    The evidence establishes that but for the defendants’ negligence, A would have completed her studies, continued working 4 days a week until she returned as planned to full time work when B started school and that the losses claimed were the result of the injury she was caused.

69. [595]

    I do not accept that A’s prior illness had the economic consequence for which the defendants contended. I also consider that the resilience which A has displayed even after the events which caused her the injury, particularly since 2017, is consistent with her prior illness not having had the economic impact for which the defendants contended, had she not suffered the results of the defendants’ negligence.

70. [596]

    In the result I am satisfied that the damages claimed have been established.

71. [597]

    The result of that conclusion is that the claim for $17,810.84 was also established.

72. [598]

    A $150,000 buffer was claimed for future economic loss, or loss of earning capacity, based on A now working 35 rather than 38 hours per week, which would continue for the remainder of her intended work life expectancy and took into account 15% for vicissitudes. Mr Bird contended that nothing would be awarded and the other defendants that a $25,000 buffer inclusive of superannuation would be awarded, although it was accepted that the amount of the buffer was difficult to determine.

73. [599]

    The calculation of economic loss involves a comparison between the actual circumstances of the plaintiff, and the circumstances which would probably have continued or come to pass but for the events which caused the damage which is being compensated. Section 13 of the Civil Liability Act applies to this assessment:

74. [600]

    Claims for economic loss must be approached in the way discussed in Rabay v Bristow [2005] NSWCA 199:

75. [601]

    As discussed in Sophie Fegan by her tutor Inga Rozenauers v Lane Cove House Pty Limited [2007] NSWCA 88 at [27], what is involved does not depend merely on the finding of historical facts, but also on the assessment of the value of a chance, which requires that account be taken of a range of possible outcomes, even though the likelihood of any one of them being achieved may be no more than a real possibility.

76. [602]

    It is not only possible adverse matters which might affect earning capacity, but also positive considerations such as advancement and increased earnings, which may be taken into account: Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485 at [19]; [1995] HCA 53. That is relevant in A’s case, because of her intended pursuit of higher qualifications.

77. [603]

    I have already discussed A’s most likely future circumstances, but for her injury. She has recovered sufficiently to be working a 35 hour week performing work that she is obviously passionate about, but which exposes her to triggering events. I am not satisfied on the evidence that she will always be so incapacitated and that she will never again work full time in the future. But there is also a real risk that given her condition, her work and what it exposes her to, that her capacity will decline at times, as Dr Allnut considered.

78. [604]

    Thus I am satisfied that given the nature of A’s now chronic ill health, her guarded prognosis and vulnerability to exacerbation of that condition, she must be awarded a buffer, which I assess at $111,000.

79. [605]

    $195,042.40 was claimed and the defendants contended nothing would be awarded.

80. [606]

    This amount reflected greater hours of care provided up to February 2017, when A’s condition began improving. In the first period there was 19 hours care per week, including a private cleaner for 2.5 hours and in the second period 9.75 hours, with no assistance with cleaning.

81. [607]

    A and her husband gave evidence about how it was she that undertook these tasks before her injury given the nature of his work and how that was altered by her injury and its ongoing consequences. The evidence establishes that the consequences of her injury were devastating and the care she required accordingly very considerable.

82. [608]

    A also relied on the opinions of Ms Lausch, an occupational therapist who provided a report.

83. [609]

    The defence case was that the assumptions, on which Ms Lausch’s report rested, had not been established, as they had to be. The damages claimed rested on Ms Lausch’s calculations, but A and her husband did not give evidence that the hours of assistance specified in her table had been provided. They also relied on the opinions of the psychiatrists, to submit that both in the past and future, A required no such assistance.

84. [610]

    Section 15(2) of the Civil Liability Act precludes such damages being awarded unless the court is satisfied:

85. [611]

    I am satisfied that the evidence establishes that A had a need for such past assistance, which she would not have required, but for the injury which the defendants caused and that she would not have been provided those services, but for her injury.

86. [612]

    Conclusions about this issue cannot rest on the opinions of the psychiatrists, which cannot be given much weight, even though their reports do refer to A’s history of problems with domestic tasks, which was consistent with her evidence and that of her husband. They had to rest on their evidence and Ms Lausch’s report, even though by consent, it was subject to a s136 order, that it was not admitted as to truth.

87. [613]

    Ms Lausch assessed A in April 2019 at her home. The history she gave Ms Lausch accorded with her evidence and that which she gave to the psychiatrists.

88. [614]

    A told Ms Lausch about her considerable problems in the aftermath of B’s disclosures, her decreased capacity to work and engage in other activities, including domestic tasks, fluctuating emotional state and more recently, that she felt that she was getting more on top of things, than in the preceding 8 years. She said that she still suffered problems with memory and concentration and physical health, which she attributed to stress related factors, which she had not experienced prior to B’s disclosures, although there had been an improvement in A’s functional performance since 2017.

89. [615]

    Ms Lausch then determined A’s functional capacity and level of independence during the performance of various activities. She concluded that she still had an inability to manage the household without supplementary assistance. That opinion was unchallenged, she not being required for cross examination.

90. [616]

    Ms Lausch’s report contained tables identifying hours of assistance provided in the past by A’s husband, her mother, sister and others, which must have reflected A’s instructions. Neither A nor her husband was cross-examined about those hours, or the assistance there described and Ms Lausch was not cross examined.

91. [617]

    Ms Lausch also recorded her physical observations when she attended the family home and A’s reports of how she had managed activities of daily living before and after she was injured, with considerable reliance placed on her husband, which had improved over time. A had also required the assistance of her sister for some 18 months with childcare responsibilities and said that she still relied on her husband in ways that she did not, before she was injured.

92. [618]

    A’s account was supported by the unchallenged evidence of her husband, which included:

93. [619]

    The report also included a table of Ms Lausch’s conclusions about the assistance A would require in future.

94. [620]

    In the case of Civil Liability Act claims, the onus falls on the plaintiff to establish that the requirements of s15(3) are satisfied: Sampco Pty Ltd v Wurth [2015] NSWCA 117 at [91]. This requires clear evidence that assistance for at least 6 hours per week and for a period of at least 6 consecutive months had been received. “If the party who bears the burden of establishing facts calls witnesses who have the relevant information to supply in respect of those facts but are not asked to give any evidence about the matter, there is no reason to infer that, if asked, they would have favoured that party's case”: Gordon v Truong [2014] NSWCA 97 at [30].

95. [621]

    It cannot be said that in this case there was no evidence about A’s need for past assistance, even though how often particular tasks were undertaken and how long each took, was not dealt with in A’s evidence, but in Ms Lausch’s report.

96. [622]

    As I have explained the evidence does establishes that A had a need in the past for such assistance, given her pitiable state for considerable periods of time after B’s disclosures, which she would not have required, but for her injury.

97. [623]

    I am satisfied that the unchallenged hours of very considerable past assistance which A received, documented in Ms Lausch’s report and established by A’s evidence and that of her husband, should thus be accepted as satisfying the statutory required. Unlike Gordon this was simply not a case where there was no evidence about these matters. Like Avopiling Pty Ltd v Bosevski; Avopiling Pty Ltd v The Workers Compensation Nominal Insurer [2018] NSWCA 146 at [115]-[116], here the evidence was compelling.

98. [624]

    These damages should thus be awarded.

99. [625]

    $365,284 was claimed on the basis of $376 per week for life, with the defendants also contending that nothing would be awarded.

100. [626]

     Neither A nor her husband were cross-examined about what was claimed. On her assessment Ms Lausch concluded that A required ongoing assistance totalling 8.5 hours per week, 1 hour for personal care, 5.5 hours for domestic assistance, 1 hour for transportation and 1 hour for childcare assistance.

101. [627]

     The defence case was that the evidence also did not establish the assumptions on which this opinion was based, but Ms Lausch’s evidence as to the cost of such care was not challenged.

102. [628]

     Section 13 of the Civil Liability Act also applies to this claim. That requires an approach consistent with Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20: Avopiling at [137]. This means that consideration must be given to the need for damages to be “reduced, to take account of the chance that factors, unconnected with the defendant’s negligence, would have necessitated similar care and attention”: Avopiling at [139]. Given her earlier injury, that is a relevant consideration in A’s case. Also necessary to take into account is “the possibility that other events will intervene”: at [153]. On the expert evidence that includes the risk of relapse.

103. [629]

     In Avopiling the result was a 25% discount.

104. [630]

     I am satisfied that the evidence I have discussed also requires that such damages must be awarded.

105. [631]

     But I am not satisfied that they can include commercial costs for childcare assistance for A’s life. Given that B is now a teenager, who is in relatively good health, an ongoing basis for such assistance is not apparent.

106. [632]

     It is relevant that A has utilised commercial cleaners at times, making it likely that if funds are available, she would obtain commercial care in future if such damages are awarded. But vicissitudes must be taken into account. In Avopiling, the chance that all of the assistance needed would not be obtained, for example, was also taken into account: at [153].

107. [633]

     In the result having taken all such considerations into account, I have concluded that these damages must be calculated by reference to a total sum of $332 per week, discounted by 20%, that being a figure of $265.60 per week.

108. [634]

     In total $830,000 plus costs, disbursements and interest was claimed. Mr Bird’s case was that no more than $25,000 would be awarded and the other defendants no more than $85,000.

109. [635]

     B received counselling from a psychologist at the Sydney Children’s Hospital from age 5 to 8. Her records are in evidence.

110. [636]

     Associate Professor Quadrio provided a June 2014 report, having seen B with her parents and reviewed documents now in evidence.

111. [637]

     Then B reported still going to her parents’ bed 3 nights a week, but her nightmares and phobias having improved, and that she was no longer receiving counselling. A then reported that most of B’s symptoms had settled and that her behaviour was more manageable, although at times she still had problems coping, had meltdowns on which she got physically violent and extremely volatile moods. A’s husband gave a similar report.

112. [638]

     B was highly anxious and so Associate Professor Quadrio did not see her separately to ask her about her disclosures. She considered that two years of preparation for the court hearing had prolonged her trauma. Accounts of her behaviour were typical of what is observed in children who have suffered sexual abuse.

113. [639]

     She considered that B’s behavioural responses after her disclosures were entirely in keeping with the sequelae of sexual trauma. On balance Associate Professor Quadrio was satisfied that she had been sexually assaulted.

114. [640]

     Associate Professor Quadrio considered that B was still displaying symptoms of the post traumatic stress disorder which she had suffered, as well as separation and phobic anxiety and depression. Because the process of disclosure and litigation often creates further trauma for such children, she considered that it was difficult to estimate how long B’s recovery might take.

115. [641]

     There were positive prognostic factors such as B’s intelligence and supportive family, which meant she could be resilient, but there were risks that she would experience difficulties at critical developmental stages such as pregnancy, childbirth and when children were at a similar age to when she had been abused. The trauma caused to her family was also relevant to her prognosis.

116. [642]

     Associate Professor Quadrio thus considered it to be important for access to treatment to continue during B’s formative years and during major milestones in her life, by psychologists and/or psychiatrists. If she suffered further symptoms or a relapse, she could require intensive therapy, as well as medication. Despite B’s good progress, including at school, she remained vulnerable to relapse.

117. [643]

     Dr Kasinathan saw B in 2019 in the presence of her parents. He was given a history which accorded with the evidence and that which Associate Professor Quadrio was given, including as to her behaviours after her disclosures. By then B could not remember much of what her parents described and had no memory of Mr Bird, but she could remember massive tantrums when she would punch and kick holes in walls, and nightmares, which still sometimes occurred. B described her mood then to be good, with considerable academic achievement and a happy personal life.

118. [644]

     Dr Kasinathan’s opinion was also that B had suffered post traumatic stress disorder, which was then in full remission. Her symptoms, which included anxiety and depressive symptoms, had completely resolved in the preceding two years. He considered that but for Mr Bird’s alleged inappropriate behaviour, she would not have developed post traumatic stress disorder, having had no pre-existing psychiatric condition.

119. [645]

     Dr Kasinathan considered that B’s prognosis was highly favourable, there being no evidence of current or recent psychiatric impairment. She required no further treatment in the foreseeable future and there were no foreseeable mental health restrictions or limitations.

120. [646]

     There was no challenge to this evidence.

121. [647]

     On all of the evidence I am satisfied that B did suffer post traumatic stress disorder as the result of Mr Bird’s assaults, from which she has largely recovered. But the injury which Mr Bird caused has left her vulnerable to relapse.

122. [648]

     No-one can predict how she might be affected by experiences which life will inevitably bring her, but her injury has made B vulnerable in a way that did not exist before Mr Bird assaulted her, which must be taken into account when damages are assessed.

123. [649]

     $400,000 was claimed. Mr Bird contended $25,000 would be awarded and the other defendants $50,000.

124. [650]

     Common law damages for intentional torts take into account the harm which the plaintiff has suffered as the result of the defendants’ conduct: Varmedja v Varmedja [2008] NSWCA 177 at [154]. They thus take into account pain and suffering: at [157].

125. [651]

     Compensatory aggravated damages may also be awarded, if not included in the ordinary compensatory damages ordered: Lamb v Cotogno (1987) 164 CLR 1 at 8; [1987] HCA 47 and State of New South Wales v Riley (2003) 57 NSWLR 496; [2003] NSWCA 208 at [131]. In contrast to exemplary damages, they are awarded for injury to the plaintiffs feelings caused by insult, humiliation and the like.

126. [652]

     The defence case was that the award, if there was one, would necessarily be very modest, given B’s full remission for at least the last two years, with no foreseeable mental health restrictions or limitations.

127. [653]

     The plaintiffs’ case was that Mr Bird’s assaults on this very young child had resulted in both immediate and ongoing consequences, unpredictably over the course of her life. That her earliest sexual experiences had been at such a young age, at the hands of a 64 year-old man in a childcare centre, was submitted to have involved a very serious interference with the integrity of this young child, which could have serous ongoing consequences for her, which thus required a substantial award of compensatory damages.

128. [654]

     I am satisfied that the defence case cannot be accepted. It pays insufficient attention to the horrible consequences of Mr Bird’s acts which B, while still a young child, had to endure for years afterwards, pain and suffering which she would not have had to experience, had he not injured her as he did.

129. [655]

     B’s fears and anger, self-harm and violence towards others and her own possessions, her ongoing nightmares and how this all affected her relationships with other people, serious problems which persisted for years after Mr Bird’s abuse and which have left her vulnerable to further problems in the future, must result in a considerably larger damages award than the defendants conceded.

130. [656]

     The resilience which has led B to the recovery Dr Kasinathan discussed was fortunate and must be taken into account. Had that not occurred the award of damages would have had to be greater. But account must also be taken of the risk which B continues to be exposed to during the remainder of her life, as the result of what Mr Bird did to her.

131. [657]

     I am also satisfied that like in Gersbach the circumstances are such that B’s award must include a component of aggravated damages: Lamb at [8]. In that case $300,000 would have been awarded in circumstances of considerably graver sexual assault and where the injury suffered continued. But the circumstances here are different and the conclusions reached in Gersbach do not impose a limit on the damages which may be awarded in other cases.

132. [658]

     It may not be overlooked that B is being compensated for the serious injury she was caused when such a young child while in the defendants’ care and control, at the childcare centre which they operated, where she should have been safe.

133. [659]

     Having taken into account all of the evidence which I have discussed, I have concluded that B must be awarded damages of $270,000.

134. [660]

     $200,000 was claimed while Mr Bird’s case was that there would be no such damages and on Little Pigeon and Ms Clancy’s case, if there was an award it would not be more than the $50,000 discussed in Gersbach.

135. [661]

     It was submitted for Mr Bird that exemplary damages would not be awarded in a case such as this, given that it was very young children who he had assaulted, who had no further recollection of the trauma. No authority had been found to support that submission. I am satisfied that it must be rejected, inconsistent as it is with what was decided in Gray.

136. [662]

     The plaintiff’s case was advanced on the basis that protection of the most vulnerable at a child care centre required the Court to take a very strong view about tortious conduct by those working in, or responsible for looking after such very young children in such centres. That was particularly because in our society, large numbers of such children are now necessarily cared for in those centres.

137. [663]

     It was also submitted that in a civilised society such as ours, the most important thing that the society can do is to protect its young children. Here an unqualified, untrained, unsupervised person had been put in a position where he was able to sexually assault little girls, while the supervisor spent her time in an office and no proper supervision of this person had been put in place.

138. [664]

     A more important case for the Court to express its own view about such conduct was argued to be difficult to imagine. Thus the quantum of the damages awarded should send a “loud and clear” message about the standard of care expected by the law, when such young children are being cared for.

139. [665]

     I am satisfied that B must be awarded exemplary damages, both in order to punish Mr Bird and to deter others, he not having been dealt with under the criminal law.

140. [666]

     As I said at the time that Mr Bird’s submission was made, B’s youth when he assaulted her has resulted in her no longer having had a memory of what she disclosed. That is fortunate, but cannot place his conduct outside the class of cases in which exemplary damages ought to be awarded.

141. [667]

     As discussed in Gray, such damages are awarded to punish wrongdoers and to deter others from such conscious wrongdoing, in contumelious disregard of other’s rights. B’s youth and how vulnerable it made her to Mr Bird’s predatory conduct, is precisely why he must be punished and others deterred.

142. [668]

     The way in which Mr Bird abused his position of trust when he repeatedly assaulted her, in my view put that beyond argument.

143. [669]

     In arriving at a figure I accept that regard must be paid to what was decided in Gersbach, notwithstanding that the circumstances there were considerably different, the allegations involving ongoing sexual abuse of a daughter by a father.

144. [670]

     Gray requires both that the damages awarded punish Mr Bird and deter others from conduct of the kind which he pursued. Thus relevant is not only what Mr Bird did to B, but also how he abused the position of authority and trust in which he knew he had been placed by Little Pigeon and Ms Clancy, when they gave him access to B, while operating Footprints for their own profit.

145. [671]

     In the pursuit of their profit they did not ensure that the regulatory regime was complied with, that the child protection policy was operating and Mr Bird was supervised as he needed to be, given the age of the children he was working with. Mr Bird was well aware of this and so was able to exploit their neglect, in order to assault B in the ways I have discussed.

146. [672]

     It is he who must be punished for what he so did and others like him who must be dissuaded from so pursuing such opportunistic, damaging behaviour.

147. [673]

     That is because there are many others now in Mr Bird’s position, given access to the youngest and most vulnerable members of our community, while they are being cared for in centres such as Footprints, where their parents must leave them, in order to work for the overall economic good of our society.

148. [674]

     Deterrence is thus a very important aspect of this head of damage. That supports the conclusion that a substantial award of exemplary damages is required.

149. [675]

     I have thus concluded that an amount of $70,000 should be awarded.

150. [676]

     $30,000 was claimed for future out of pocket expenses and $200,000 for future economic loss and superannuation, by way of a buffer. Mr Bird contended that nothing would be awarded on these heads and the other defendants contended $25,000 would be awarded for future economic loss and out of pocket expenses.

151. [677]

     The defence case was that these damages would be modest, because while it could be concluded that there may have been some diminution in B’s earning capacity, it had not presently resulted in any financial loss. Whether it would or might give rise to any loss in the future was also very unpredictable.

152. [678]

     The plaintiffs’ case was that a buffer had to be awarded, taking into account that B was a child and that what the future would hold for her was not known. That buffer should account for the risk which the psychiatrists discussed might arise over the course of a long working life ahead of her, B now being aged some 13 years that her injury would at times deteriorate.

153. [679]

     Given the nature of the injury which B suffered, her resulting susceptibility to further injury and the retriggering of her condition during the milestones in her life, I am satisfied that there must be buffers awarded for these heads of damage of $25,0000 for future out of pocket expenses and $100,000 for future economic loss and superannuation.

154. [680]

     In total $824,732.80 plus costs, disbursements and interest was claimed. Mr Bird’s case was that no more than $88,014.10 would be awarded and the other defendants no more than $113,389.10.

155. [681]

     The evidence well established C’s devastation when D made her disclosures as she did, over time and the injury which resulted. C described how in 2011 she met a counsellor alone for some 8 months, so that she could understand what D was going through, before D had face to face counselling, in her presence.

156. [682]

     Before this C had worked as a project officer and fundraising executive, before being promoted to the position of Project Manager, Major Gifts at a charity. She was working 4 days a week at the time of D’s disclosures. Afterwards she found it difficult to maintain her regular hours and resigned from her position after Mr Bird’s charges were dropped in 2012.

157. [683]

     In 2012 C began receiving trauma therapy herself from a psychologist, which continued into 2013, as well as regularly seeing her GP for issues associated with the distress which she was experiencing. C agreed that after the no bill decision, she was angry, distressed and significantly emotionally affected.

158. [684]

     After she resigned C was off work for some 6 months and then undertook some sporadic casual projects, before returning to work in August 2013, 20-30 hours per week. At times, however, she required periods of extended leave, or leave without pay, due to mental health issues, including before and after contributing to the Royal Commission into Institutional Responses to Child Sexual Abuse, associated with the trauma of dealing with that process. At that time D’s condition also deteriorated.

159. [685]

     In 2014 C was referred to another psychologist, who treated her for a further 4 months. She also undertook physio sessions for about a year to help her manage pain and stress, which ceased because she could no longer afford that treatment.

160. [686]

     In 2016 C began casual work as a consultant and in January she took a more permanent 4 day a week position as a senior consultant. She works with families dealing with trauma, which sometimes triggers her anxiety and trauma response. But she loves the work and has a lot of experience, which makes moving out of the industry difficult, as it could set her back even further

161. [687]

     C was convinced that but for D’s abuse, and the setbacks which she suffered as a result, her income would now be significantly higher, because her career trajectory would not have been set back as it has been.

162. [688]

     C was also adversely affected by her involvement in the Royal Commission, the trauma having then again been retriggered for her.

163. [689]

     C had again been taking anti-anxiety medication since January of this year. But she said that she could not afford to pursue the treatment Dr Allnut had suggested she required.

164. [690]

     Dr Allnut and Dr Smith both examined C, produced reports, discussed the differences in their opinions and produced a joint report, about which they gave concurrent evidence.

165. [691]

     Dr Allnut and Dr Smith agreed that C did not have any pre-existing history of mental illness and that it was as the result of D’s disclosures and the ensuing events which I have discussed, that C developed a disorder.

166. [692]

     Dr Allnut was of the opinion that C was suffering a chronic adjustment disorder and Dr Smith that she had an adjustment disorder with mixed depression and anxious mood. They agreed she also had an alcohol abuse disorder, which Dr Allnut observed she had used to treat her symptoms.

167. [693]

     They did not identify other significant events or pre-existing conditions which had impacted the development of C’s disorders, although Dr Allnut observed that she had experienced financial stressors, given her multiple periods off work. Dr Smith observed that the litigation had been an ongoing stressor, as had the need to deal with matters of ongoing concern, which had a continuing effect upon her.

168. [694]

     Dr Smith was more positive about C’s prognosis than Dr Allnut, who considered it guarded for the foreseeable future. Dr Smith considered it to be good, particularly with early resolution of the litigation.

169. [695]

     $250,000 was claimed, again then about 38% of a most extreme case under the Civil Liability Act. Mr Bird contended $25,000 would be awarded and the other defendants 20% of a most extreme case ($23,000) or $25,000 general damages.

170. [696]

     In C’s case I have concluded, given all that I have discussed, including as to her ongoing condition and prognosis, which I consider must be somewhat guarded, given all that she has suffered and what might retrigger her injury; her pursuit of a return to full time employment; and her ongoing vulnerability to exacerbation of her injury from her work, that her non-economic loss must be assessed at $96,000. That is 28% of a most extreme case under the Civil Liability Act.

171. [697]

     $100,000 was claimed and the defendants contended that nothing would be awarded.

172. [698]

     For similar reasons to those I have given in relation to A, I am satisfied that there can be no award of exemplary damages in C’s case, because D must be awarded exemplary damages.

173. [699]

     $6,014.10 was finally agreed.

174. [700]

     $52,828.61 was claimed for psychologists and psychiatrists for 12 months and a buffer of $10,000 on a needs basis for life; quarterly GP consultations for life; and medication for 5 years. Mr Bird contended for $2,250 and the other defendants in the alternative for $9,330 based on Dr Smith’s opinions.

175. [701]

     I am satisfied that the amounts claimed for psychologists, psychiatrists and medication must be awarded, because of the nature of C’s injury, the history of her required past treatment and the likelihood that she will have ongoing treatment needs. The award for GP consultations should be restricted to 5 years, in the same way as for medication.

176. [702]

     I do not consider that there should be any other discounts, given the likelihood that C will have ongoing treatment needs which she will pursue, which she would not have required, but for her injury.

177. [703]

     $225,333.50 was claimed on the basis of an unchallenged forensic accountant’s report, or in the alternative a buffer. Mr Bird contended for a $50,000 buffer and the other defendants for a $75,000 buffer.

178. [704]

     The $75,000 figure was submitted to reflect the impact of a number of other stressors on C, unrelated to B, such as the breakup of her relationships and problems with her son.

179. [705]

     I do not accept that this is established by the evidence, which suggests that the interruptions to C’s career were the result of her reaction to D’s disclosures and their aftermath and the injury which she suffered as a result, not the other matters relied on by the defendants. I am satisfied that but for her injury, C would not have suffered the losses she established.

180. [706]

     Mr Bird’s figure was calculated on the basis that up until the 2013 tax year when C’s net income dropped to $13,905, there had been no loss and that her earnings in the years that followed were lower than her 2012 earnings of almost $50,000, for 5 years until 2018, when they became $62,503. That was said to have resulted in total loss of earnings over 5 years, of $75,209, that being the difference between an assumed total income of $250,000 over that period, less what C actually earned, in total $174,791.

181. [707]

     Thus the $75,209 figure, it was submitted, should form the basis of the calculation of a buffer. It was accepted, however that the calculation proceeded on the assumption that between 2012 and 2017, C’s income would not have increased beyond $50,000. It also assumed that without the career interruptions she had repeatedly suffered, C would have earned no more than she actually earned in the years since 2018.

182. [708]

     I can see no basis in the evidence for these assumptions. They do not accord with how C’s income increased either before 2012, or from 2018. Had she not been injured as she was, I am satisfied that it is also likely that her income would have increased beyond $50,000 after 2012, as it did after 2018.

183. [709]

     The accountant’s report explains the basis upon which the calculations relied on were made. They were not challenged by evidence, nor addressed in submissions. That being so I am satisfied that the damages claimed must be awarded.

184. [710]

     $21,406.68 was claimed for past superannuation. Mr Bird contended $4,750 should be awarded and the other defendants $7,125.

185. [711]

     Given my conclusion about past economic loss, it follows that the amount claimed must be awarded.

186. [712]

     $150,000 was claimed as a buffer and the defendants contended that nothing could be awarded.

187. [713]

     Given that no past economic loss was claimed after 17 March 2020 and what was disclosed in C’s last tax return, it was the defence case that no ongoing loss in the future was established.

188. [714]

     Section 13 is again relevant to assessment of damages for future economic loss, as are the authorities I discussed earlier.

189. [715]

     C has recovered sufficiently to be working full time, but also performing work that exposes her to triggering events, which she cannot leave for good reason. I am thus satisfied that C’s future economic loss must be assessed on the basis that the evidence also establishes in her case that there is also a real risk that given the nature of her injury, her work and what it exposes her to, that her capacity to perform that work will also at times in the future be adversely affected.

190. [716]

     Contrary to C’s situation before she was so significantly damaged by Mr Bird’s acts, given the nature of her still ongoing ill health, her guarded prognosis and vulnerability to exacerbation of that condition, she must also be awarded a buffer, which I also assess at $111,000.

191. [717]

     In total $830,000 plus costs, disbursements and interest was claimed. Mr Bird’s case was that no more than $25,000 would be awarded and the other defendants no more than $85,000.

192. [718]

     C’s evidence was that after her disclosures D regressed. She had totally lost all capacity for emotional regulation, so her behaviour became extremely challenging. She was having emotional meltdowns time and time again, day after day. D had significant trouble leaving C for anything and wanted C to be with her 24 hours a day. It took C a long time to get D back to her kindergarten after the JIRT interview, whereas previously, she was incredibly happy and safe there. She agreed in cross examination that after 9 months of counselling she was back on track and had a good start at school, but D suffered other problems.

193. [719]

     While C did not now accept that D had fully recovered, despite having said so in 2014, she considered that D was strong and resilient and had made a good transition to school. However she had been advised that with early childhood trauma, vulnerabilities meant that it was common for children to be retriggered back into trauma, particularly around developmental stages and so D’s counselling file would remain open until she was 18.

194. [720]

     In fact D was retriggered into trauma by the Royal Commission into Institutional Responses to Child Sexual Abuse. A month or two after she had given evidence in 2016, her teachers noticed, with the result that the following day D was seen by a counsellor at the Child Protection Unit.

195. [721]

     Both Dr Robertson and Dr Kasinathan assessed D in 2020, when she was aged 13. They were not called to give concurrent evidence.

196. [722]

     Their reports referred to counselling records which recorded D having suffered nightmares and wanting to be constantly close to her mother, deterioration in her mental state and classroom behaviour at times and irrational fears about safety of others, after Mr Bird’s assaults.

197. [723]

     In his report Dr Robertson referred to age at the time of victimisation being a significant prognostic factor, with younger age correlating with poorer long term outcomes. An analogy was drawn with asbestos exposure, where potentially catastrophic consequences may not be realised for many decades.

198. [724]

     On the assumption that Mr Bird had abused D as she disclosed, in their joint report Dr Robertson and Dr Kasinathan agreed that she developed a diagnosable psychiatric disorder and was likely to have experienced transient exacerbation of her symptoms, likely attributable to her mother’s contributions to the Royal Commission. Fortunately, there was no evidence of psychopathology at the time of their examinations, when she was following a normative trajectory.

199. [725]

     They also agreed while D did not require any current treatment, she did require a process of regular monitoring of her mental health, through her GP on an annual basis, unless a more urgent need arose as the result of emerging psychological distress, behavioural disturbance, or decline in her relationships or academic performance, when more specialist review could be required. The cost of this was difficult to assess.

200. [726]

     Dr Robertson and Dr Kasinathan acknowledged the risk to later mental health which child sexual abuse posed, but considered that at present D's prognosis was favourable. There was no current impaired academic function and no realistic expectation of impaired work capacity.

201. [727]

     There was a theoretical risk of re-victimisation, but no evidence of any current concerns. If D were to experience a relapse, it was possible that she would require treatment for the re-emergence of post traumatic stress disorder or related conditions.

202. [728]

     They also agreed that D had experienced symptoms of childhood post traumatic stress disorder, a recognised typical short-term and ongoing effect of childhood sexual abuse. It was also recognised that childhood sexual abuse was linked to an array of psychopathological disturbances, substance use, vulnerabilities to sexual re-victimisation and heighted risk of physical health problems.

203. [729]

     There was no immediate concern about her overall state of health, but her history had to be kept in mind by future health care workers.

204. [730]

     $400,000 was claimed. Mr Bird contended $25,000 would be awarded and the other defendants $50,000.

205. [731]

     The harm which D suffered, pain and suffering and aggravated damages for injury to the her feelings caused by insult, humiliation and the like, must also be taken into account in her case, in the way that I explained in B’s case.

206. [732]

     It is difficult to compare the seriousness of Mr Bird’s assaults on B and D, but fortunately all that D suffered before she recovered to her present position, does not seem to have been quite as serious as all that B suffered. D has also fortunately proven to be resilient enabling her also to recover well from the serious injury Mr Bird caused her.

207. [733]

     Still the evidence established that D suffered a very serious injury for a child as young as her, one which she would not have suffered, but for his assaults.

208. [734]

     I am satisfied that this must also result in a damages award which includes a component of aggravated damages.

209. [735]

     Had D not recovered as well as she has, that award would have had to be greater. But account must also be taken of what D continues to risk during the remainder of her life, as the result of what Mr Bird did to her when she was such a young child.

210. [736]

     I have thus concluded that D must be awarded damages of $260,000.

211. [737]

     $200,000 was claimed while Mr Bird contended nothing should be awarded and the other defendants contended for the $10,000 discussed in Gersbach.

212. [738]

     All the considerations which I have discussed in B’s case, apply equally to D and I will thus not repeat them.

213. [739]

     Given the nature and seriousness of Mr Bird’s assaults on D and the need for both punishment and deterrence which also arises in her case, I am satisfied that she must also be awarded exemplary damages of $70,000.

214. [740]

     A buffer of $30,000 was claimed for future out of pocket expenses and a buffer of $200,000 for general diminution of D’s earning capacity. Mr Bird contended that nothing should be awarded and the other defendants argued $25,000 would be awarded in respect of both future economic loss and future out of pocket expenses.

215. [741]

     For similar reasons to those given in relation to B, I am also satisfied that given the nature of the injury which D suffered, her resulting susceptibility to further injury and the retriggering of her condition during the milestones in her life, I am satisfied that there must also be buffers awarded for these heads of damage of $25,000 for future out of pocket expenses and $100,000 for future economic loss and superannuation.

Costs

1. [742]

   The usual order as to costs is that costs as agreed or assessed follow the event. In each case that would be an order against the defendants.

2. [743]

   In the event that the parties wish to be heard, they should approach within 14 days.

3. [744]

   For the reasons given, verdicts must be entered against all defendants. The parties should file proposed orders, including as to costs, which reflect the conclusions which I have reached, within 14 days.