Scout v Robinson

1. [1]

   As the result of orders made by Garling J on 4 July 2025 under the Court Suppression and Non-publication Orders Act 2010 (NSW), this judgment uses pseudonyms. Further orders will be made under that Act in relation to the publication of this judgment, to ensure compliance with the earlier orders and the protection of the safety of persons and the prevention of prejudice to the proper administration of justice: s 8.

2. [2]

   By her tutor, her mother Ms Hancock, Ms Scout, a child, brought these proceedings pursuing damages, including aggravated and exemplary damages, for injuries which she suffered when she was aged nine. In 2023 Mr Robinson, who was then in the company of Mr Ewell, having [REDACTED], while Ms Scout was at home with her mother and siblings, [REDACTED].

3. [3]

   Mr Robinson and Mr Ewell are now serving terms of imprisonment, both having entered pleas to offences of conspiring and agreeing to murder a person and cause grievous bodily harm with intent. They each having been sentenced on the basis of agreed facts. [REDACTED].

4. [4]

   Neither defendant has ever appeared to defend Ms Scout’s damages claims. Judgment was entered against them in November 2025, with her damages to be assessed.

5. [5]

   This judgment deals with those damages.

6. [6]

   The undisputed evidence establishes the nature and seriousness of the injuries which Ms Scout suffered as the result of her deliberate [REDACTED]. It also well establishes that they were the direct result of intentional acts, done with intent to cause harm, with the result that the Civil Liability Act 2002 (NSW) does not apply to her claims: s 3B.

7. [7]

   Fortunately, Ms Scout was struck [REDACTED], and soon afterwards successfully underwent emergency surgery at the Sydney Children’s Hospital. Still, she required further surgeries afterwards, [REDACTED]. It is also likely that she will require other surgery in the future.

8. [8]

   Ms Scout’s injuries, the treatment they required and the considerable ongoing neuropathic pain she consequently suffers left her unable to return to school for a considerable time. Even when she was able to return, her attendance was considerably disrupted, and she has still not been able to resume normal schooling.

9. [9]

   Ms Scout is also no longer able to participate in the school-based and extracurricular activities she previously enjoyed as an active, happy young child.

10. [10]

    Ms Scout has also been diagnosed to be suffering PTSD and, in her evidence, described still experiencing symptoms consistent with that diagnosis. She continues to require ongoing treatment by paediatric specialists, as well as various medication and other treatments. That resulting from her ongoing disabilities, for which she will require lifelong care.

11. [11]

    After suffering her injuries, she initially had to use a wheelchair, shower frame, a walker, crutches and avoided walking independently. She is still pursuing rehabilitation which requires her not only to wear a brace on her foot during the day, but at night, which she finds difficult and distressing.

12. [12]

    Overall, [REDACTED] has significantly and adversely altered Ms Scout’s life. The consequences of what she has suffered cannot all yet be known, but I am satisfied will undoubtedly affect her, lifelong. That must be properly reflected in the damages which she is awarded.

13. [13]

    Although at the hearing, properly, it was announced that Ms Scout no longer pressed her claim for exemplary damages, Mr Robinson and Mr Ewell now serving sentences imposed on them for their awful offending against her.

14. [14]

    This reflecting that exemplary damages are rarely awarded, directed as they are to punishment and deterrence. They are exceptional and only imposed in cases of “conscious wrongdoing in contumelious disregard of another’s rights”: Gray v Motor Accident Commission (1998) 196 CLR 1; [1998] HCA 70 at [14]-[15].

15. [15]

    In considering whether to award such damages, the Court’s first or principal focus is upon the wrongdoer, not upon the party who was wronged and entitled to the compensatory damages the law allows. Exemplary damages being paid to an injured person “in addition to compensatory damages and, in that sense, will be a windfall” in their hands. Such damages being “awarded to punish the wrongdoer and deter others from like conduct”, even though not exacted by the State nor paid to it: Gray at [15].

16. [16]

    Conduct which warrants exemplary damages must be such that an award of compensatory damages does not sufficiently express the Court’s disapproval of the conduct in question: Gray at [138]. Such damages “must not merely irritate, they must sting”: Harris v Digital Pulse Pty Ltd (2003) 56 NSWLR 298; [2003] NSWCA 10 at [253]. It being the “gravity and character of the defendants’ conduct which guides the Court's discretion as to the proper amount to award by way of exemplary damages”: Gray at [254].

17. [17]

    But what must also not be overlooked is the practice that offenders should not be doubly punished for the same acts: Gray at [42]-[43] and [95]. Here, there is no question that there is substantial identity between the acts which resulted in Mr Robinson and Mr Ewell’s criminal convictions and sentences, and those on which Ms Scout relies to pursue these civil proceedings against them. Nor that their reprehensible criminal acts have already resulted in their considerable punishment, given the long terms of imprisonment which have been imposed upon them both: Gray at [44]-[46].

18. [18]

    A different view has been taken in other jurisdictions but not in Australia, with the result that the exemplary damages Ms Scout understandably initially pursued, cannot be awarded. That resulting from their prior ongoing punishment, as she accepted.

19. [19]

    It should be observed that it is possible to imagine conduct more grave than that which Mr Robinson and Mr Ewell pursued. [REDACTED]

20. [20]

    But what they chose to do when unable to locate their intended target, to [REDACTED], involves such grave and contumelious wrongdoing, pursued with complete disregard of the rights which children like she undoubtedly have in our civil society, that if the Court had the power, I would have exercised it to make an award of exemplary damages against them.

21. [21]

    In order not only to punish, but equally important, to deter others in our community who might be like minded. The loss of funds which that would result in imposing the contemplated “sting”, important as that would seem to be in a case where the assailants were recruited in order to murder, in return for payment.

22. [22]

    But the Court has no power to impose such damages in the circumstances which arise to be dealt with. The result is that the punishment and deterrence to which exemplary damages are directed do not form part of the damages which Ms Scout will be awarded.

Evidence

1. [23]

   In evidence are the agreed facts on which Mr Robinson and Mr Ewell were sentenced, a statement made by Ms Hancock, medical records and reports, as well as school records.

2. [24]

   In her oral evidence, Ms Hancock also explained various consequences [REDACTED] for Ms Scout and her family, they requiring the considerable support she has received and continues to require from them. This including at times when she suffers panic attacks and seizures. As well as because of what she has required post-surgery, given the physical consequences of she has had to deal with, which were painful and embarrassing for her and challenging for her family to manage.

3. [25]

   Ms Hancock explained that because of her age when she was shot, Ms Scout did not initially understand what had happened to her. But that as she has grown older, her understanding has increased, with ongoing and increasing adverse impacts, including on her mental health. That having also adversely impacted her schooling and relationships with her peers and friends.

4. [26]

   In her own oral evidence, Ms Scout explained what she had experienced and its impact on her life in and outside school, as well as the physical activities she is no longer able to enjoy. It must be accepted that the extent of her suffering has been considerable and that it continues.

5. [27]

   All of this undisputed evidence must be accepted.

General damages

1. [28]

   The claim pressed is that the permanent physical and psychological injuries which Ms Scout has suffered have also resulted in a significant loss of enjoyment of life. That including interference with her learning and socialising at school, at home; and with her ability to enjoy learning and recreational activities. Interferences which continue and are in a sense self-perpetuating.

2. [29]

   For a considerable time, she was substantially confined to her room, suffering the physical effects of the [REDACTED] and resulting wounds and eventually, scarring. She needs to wear a leg splint day and night, having also suffered permanent nerve damage, which has caused her right foot to drop.

3. [30]

   Her case, that Mr Robinson and Mr Ewell’s conduct had aggravated her general damages, with the result that it should be assessed to be $500,000, must be accepted. That, I accept, properly encompassing the compensation she is entitled to receive for the manner in which they pursued their wrongful acts and the harm which they caused Ms Scout as a result: Gray at 4.

4. [31]

   This sum, it was observed, equates to 60-65% of a most extreme case, on assessment of non-economic loss under the Civil Liability Act. But that Act does not regulate how Ms Scout’s damages should be assessed. Interest on was also sought at 2% on half her damages, from the date of the assault, that amounting to some $18,750.

5. [32]

   I am satisfied that the damages pressed should be awarded, unopposed as they are. Ordinary compensatory damages having to be awarded in an amount adequate to compensate a plaintiff for all the consequences of the defendant’s wrongful conduct that are not too remote. With damages for some aggravating feature of the defendant’s wrongful conduct still being “supposed to do no more than compensate for consequences of that conduct”: State of New South Wales v Riley (2003) 57 NSWLR 496 at 527; [2003] NSWCA 208 at [127].

6. [33]

   Aggravated damages, “in contrast to exemplary damages, are compensatory in nature, being awarded for injury to the plaintiff’s feelings caused by insult, humiliation and the like.”: Lamb v Cotogno (1987) 164 CLR 1 at 8; [1987] HCA 47. Even though the injury compensated by an award of aggravated damages may be “intangible”: New South Wales v Ibbett (2006) 229 CLR 638 at 646; [2006] HCA 57 at [31].

7. [34]

   The calculation of such damages requires care to be taken, to avoid double counting: Riley at [130]. Thus, “the court must assess damages for hurt damages neutrally and aim towards the centre of the wide range of damages that might conceivably be justified”: Riley at [131].

8. [35]

   It follows that to ensure that there is no double counting, one amount for both general and aggravated damages may be awarded, given their respective purposes and given what the evidence has established. I am satisfied that it is appropriate in the circumstances of this case, to award such a single amount.

9. [36]

   I having also concluded that the case Ms Scout pressed may justly be accepted, given all that the evidence she establishes she has suffered as the result of the direct result of the cruel, deliberate acts which Mr Robinson and Mr Ewell together pursued. She [REDACTED] as she was when she was at home, where she should have been safe from such awful, senseless violence.

10. [37]

    Ms Scout was shot only because her father was not found, as they expected. That the consequences of the senseless violence which resulted includes, for Ms Scout, not only her debilitating physical problems, but also the ongoing consequences of the PTSD which she suffers, the symptoms of which include ongoing seizures, nightmares and entirely understandable fear, must all be taken into account, in arriving at the amount of these damages.

11. [38]

    Two per cent interest on the general damages was also sought from the date of the [REDACTED] to judgment: Civil Liability Act 2002 (NSW), s 100(1)(b). That reflecting the fact that not all pain and suffering accrues immediately upon the happening of the injury, that reducing the rate that might otherwise apply: MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657; [1991] HCA 3; Metropolitan Meat Industry Board v Williams (1991) 24 NSWLR 54; and Andjelic v Marsland (1996) 186 CLR 20; [1996] HCA 55.

12. [39]

    In the circumstances, I am accordingly satisfied that the interest sought must also be awarded.

Past medical expenses

1. [40]

   These damages were not pressed because of issues attaching to the protection of Ms Scout’s identity and confidentiality. Had they been, they would also have had to be awarded.

Future medical expenses

1. [41]

   As the evidence cannot establish the type of further treatment that Ms Scout will likely require, a buffer of $50,000 was sought.

2. [42]

   Given the evidence of the past surgical and other treatment which she has already required and the serious disabilities and psychological injury she has been left suffering, I am well satisfied that this is quite a conservative buffer, given the lifelong treatment she is likely to require.

3. [43]

   It must accordingly also be awarded.

Loss of earnings capacity

1. [44]

   Given Ms Scout’s youth, the nature and extent of the very serious injuries she has suffered and their ongoing consequences, including in relation to her schooling, which has been significantly disrupted and to her likely future, I am also satisfied that she must be awarded damages to reflect the loss of earning capacity the evidence establishes she has also suffered.

2. [45]

   But the extent of that loss is difficult to assess.

3. [46]

   Reliance was placed on State of NSW v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133, where it was observed at [87] that:

4. [47]

   The evidence must also establish that what Ms Scout has suffered may be productive of financial loss: Graham v Baker (1961) 106 CLR 340 at 347; [1961] HCA 48; Husher v Husher (1999) 197 CLR 138 at 143; [1999] HCA 47 at [7]. I am also satisfied that this was established by the evidence.

5. [48]

   It was submitted that the assessment of this loss should thus be based on average weekly earnings, of $1,100 net as of November 2025, that approach having been accepted in Moss: at [93]. Ms Scout having a working life expectancy of 46 years. With the proposed calculation explained in the written submission:

6. [49]

   The proposed allowance of between 25% and 30% of average weekly earnings for life was submitted to be a reasonable basis for assessing Ms Scout’s loss of enacting capacity. That resulting in a range of $348,750 to $418,500. To which should be added a further figure to reflect loss of superannuation, finally pressed at 12%, given the current rate of compulsory superannuation. The assumption being that Ms Scout would have achieved average weekly earnings from 21, with part-time work undertaken from 18.

7. [50]

   The evidence established how well Ms Scout was doing in her studies before the [REDACTED], areas of improvement she was pursuing, as well as the adverse impacts on her performance [REDACTED].

8. [51]

   The evidence established that Ms Hancock, a trained nurse, had established a successful business in which Ms Scout could have had work when old enough and that she had ambitions, even at that age, to pursue higher studies, possibly in medicine. This all shedding some light on her likely future ability to earn an income, before she was injured as she was.

9. [52]

   Her capacity to have achieved at least average weekly earnings also being supported by the recent decision of the Fair Work Commission to reduce the age at which adult award wages can be earned from 21 to 18: Application by the Shop, Distributive and Allied Employees Association [2026] FWCFB 75.

10. [53]

    Like in Chen by her tutor Huang v Kmart Australia Ltd [2023] NSWCA 96 at [41], it follows that the evidence in this case also established the causal link between the injuries which Ms Scout has suffered and her loss of some earning capacity: Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 at 355; [1994] HCA 4. Whether this will or may be productive of financial loss having to be determined having regard to the possibilities: Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 at 642-3; [1990] HCA 20.

11. [54]

    So approaching the evidence, it must be found that Ms Scout’s most likely future circumstances before she was injured would have been of earning average weekly earnings as an adult, given her school performance and its ongoing improvement. The work available to her in her mother’s business and her ambition, even at her young age, to also pursue university studies supporting this conclusion. Ms Hancock’s evidence casts light on how this likely outcome has been adversely affected, given the ongoing consequences of the injuries Ms Scout has to deal with.

12. [55]

    Whether she would have achieved average weekly earnings by age 21 is less certain, despite the Fair Work Commission’s recent decision, given the real prospect that she would have pursued university studies.

13. [56]

    That such earnings were likely to have been achieved by 25, given the work available to her in her mother’s business, should, I am satisfied, be accepted.

14. [57]

    Given the ongoing consequences of Ms Scout’s injuries and their impact on her schooling and ability to participate in activities of normal life, it also has to be accepted that both her physical disabilities and psychological injury will adversely affect that earning capacity. That resulting in considerable financial loss.

15. [58]

    Her age, disabilities and the unknown outcome of further treatment which she will require, means that no mathematical calculation of the chance of her loss and the possibility that it can be ameliorated by treatment which may become available to her, is possible.

16. [59]

    Unlike in Chen, there is evidence about her mother’s occupation and work history, as well as her attitude to life and work, which has to be taken into account in determining the value of Ms Scout’s chance of future lost earnings.

17. [60]

    The difficulty of such assessment was explained in Chen at [49]-[50]. On the evidence, I am satisfied that the approach urged to the assessment of the proposed buffer, which is also not opposed, reflects an appropriate approach to the assessment of the chance which Ms Scout has lost.

18. [61]

    With the result that Ms Scout’s loss must be assessed in the way I have explained, taking into account that she would also have undertaken the claimed part time work and received the claimed superannuation at the rate of 12%, that being the super guarantee percentage from 1 July 2025: Superannuation Guarantee (Administration) Act 1992 (Cth). That, it must be accepted, being an aspect of her loss which may not be overlooked, given its importance to her, in her eventual retirement. This calculation also depending on her earning capacity and the remuneration it can generate.

19. [62]

    The resulting calculation which reflects these conclusions must thus now be undertaken.

Domestic care and assistance

1. [63]

   I am also satisfied that what was sought for past and future care should be awarded. That is:

   1. (1)

      Care of 25 hours per week at $50 per hour, amounting to $243,750;

   2. (2)

      Interest of $22,850; and

   3. (3)

      20 hours per week for future care until the age of 18, amounting to $230,000 with no discount for vicissitudes in Ms Scout’s particular circumstances.

2. [64]

   Part of the care which Ms Scout has received and continues to require, given her age when shot and the nature and seriousness of the injuries she has suffered, is for the emotional support she has received and continues to require: Pel-Air Aviation Pty Ltd v Casey (2017) 93 NSWLR 438; [2017] NSWCA 32 at [72]-[76].

3. [65]

   That, I accept, also being necessary in her case in order to attempt to alleviate the effects of her serious psychiatric condition and physical injuries. That but for the [REDACTED] it being unlikely that she would have required such support, having to be accepted.

Non-publication

1. [66]

   Ms Scout relied on the orders Garling J made to submit that further orders were required, to ensure that publication of this judgment accorded with what those orders intended. The Court being obliged to meet the obligations explained in DL v The Queen (2018) 266 CLR 1; [2018] HCA 26 at [32]-[33], to give adequate reasons for its decision. Namely, ones sufficient to identify the principles of law applied and the main factual findings relied on to arrive at the conclusions reached.

2. [67]

   The need to satisfy that obligation, while having proper regard to the open justice rule, Garling J’s orders and the need, which I accept is ongoing, to ensure that the required safety of persons is protected and prejudice to the proper administration of justice is prevented, have led me to conclude that only a redacted version of this judgment will be published. Other than to Ms Hancock and her legal representatives.

3. [68]

   Pending final orders being made, a copy of this judgment will thus only be provided to Ms Hancock’s legal representatives.

Orders

1. [69]

   The final damages be calculated, the proposed final orders produced including as to costs, and a proposed redaction of this judgment provided. Ms Hancock is directed to file them within seven days.