IZG2 v State of New South Wales; AXJ2 v State of New South Wales; KWM2 v State of New South Wales; BJS2 v State of New South Wales

1. [1]

   HIS HONOUR: The State of New South Wales has cross-claimed against Helga Lam seeking contribution or indemnity from her pursuant to s 5(1) of the Law Reform (Miscellaneous Provisions) Act 1946 in respect of damages paid to the plaintiffs in each of the proceedings. The plaintiffs have alleged that they were sexually abused by Ms Lam at Maroubra Bay High School when they were students there in 1978 and Ms Lam was employed as a teacher. The plaintiffs’ claims were settled. They received a total of more than $2.5M. Judgment for that total amount has been entered against the State.

2. [2]

   Several issues that would have been issues in the primary proceedings remain as issues for determination in the cross-claim. They include questions of foreseeability, causation and a limitation defence, among others. The State wishes to call Professor Patrick Parkinson and to rely upon certain paragraphs of his report dated 13 November 2024. It is convenient, before proceeding further, to record in full the paragraphs upon which the State wishes to rely:

3. [3]

   Professor Parkinson has undergraduate and post-graduate qualifications in law from Oxford University, the University of Illinois and the University of Sydney. He is Emeritus Professor and former Dean of Law at the University of Queensland. He was formerly a Professor of Law at the University of Sydney and is currently Special Counsel with Watts McCray Lawyers in Sydney. Professor Parkinson is an expert with 35 years’ experience in child protection, all forms of child abuse and neglect, especially sexual abuse. His work has been interdisciplinary in nature, closely involving collaboration with psychologists, paediatricians and statisticians on research projects to do with child sexual abuse. He has published extensively in these and related fields. I do not understand his expertise to be in contest.

4. [4]

   Professor Parkinson was retained to provide his report and instructed to address the following three matters:

5. [5]

   The State submits that, by reason of his extensive qualifications both in law and by reason of his notoriously respected involvement in the study and analysis of child sexual abuse, Professor Parkinson is able to express admissible opinions upon the questions he was asked to consider.

6. [6]

   Ms Lam objects to the tender in these proceedings of any part of Professor Parkinson’s report upon the basis that none of his opinions could, if accepted, rationally affect the assessment of the probability of the existence of any fact in issue in the proceedings. In particular, that is because:

   1. (1)

      Professor Parkinson’s opinions are addressed to the application of legal standards, matters which lie wholly within the province of the Court: “to admit such evidence would be to permit abdication of the judicial duty and usurpation of the judicial function; such evidence cannot be allowed to be probative or to rise higher than a submission; such evidence is necessarily irrelevant”: Allstate Life Insurance Co v Australia & New Zealand Banking Group Ltd (No 6) (1996) 64 FCR 79; (1996) 137 ALR 138 per Lindgren J at 83; Faucett v St George Bank Ltd (2003) Aust Torts Reports 81-699; [2003] NSWCA 43 at [48].

   2. (2)

      The report would more accurately be described as a legal submission than the admissible opinion of an expert. It is not for Professor Parkinson to advocate in the place of the cross-claimant’s counsel: Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 at [77].

   3. (3)

      Whilst Professor Parkinson’s curriculum vitae demonstrates expertise in child protection matters since 1987 and child sexual abuse in religious communities, it does not demonstrate any basis (or any sufficient basis) upon which he could be suitably qualified to comment on:

7. [7]

   Ms Lam made the following further detailed submissions concerning Professor Parkinson’s opinions having regard to the pleaded issues in this case.

8. [8]

   At paragraphs 30-34 of his report, Professor Parkinson addresses various adverse effects of child sexual abuse, including traumatic sexualisation, confusion, betrayal and stigmatisation. According to him, some of those adverse effects were described in relation to “father-child relationships” in an article that he co-wrote regarding father-child contact following sexual abuse in 1995. Another of those adverse effects, traumatic sexualisation, was “first described by David Finkelhor in a seminal article with Angela Browne in 1985”.

9. [9]

   Professor Parkinson does not, however, explain whether, or to what extent, any of those adverse effects were capable of being known by educational authorities in New South Wales at the time of the abuse allegedly perpetrated by Ms Lam. Nor does he explain how, or why, any of the matters pleaded in paragraph 5J of the cross-claims should have put the State on notice in 1978 that sexual conduct between a young female teacher and male high school students could result in mental harm to those students.

10. [10]

    Professor Parkinson goes on to observe (at [36]) that predatory sexual abuse by an adult female teacher of teenage boys “would have been almost entirely unknown” in the late 1970s and that it was only in the 1980s that the issue “began to be discussed a little” in the academic and professional literature. Self-evidently, neither that paragraph, nor the broad generalisations contained in the paragraph that follows it ([37]), could reasonably assist the Court in determining whether the risk of harm ought to have been known to the State in 1978.

11. [11]

    Paragraph 43 fails to demonstrate how Finkelhor’s or Browne’s description of “the most researched and best established effects” of sexual abuse in 1985 could persuade the Court to accept Professor Parkinson’s opinion that the harm caused by sexual abuse was “certainly well known” in 1978. That opinion is, in other words, devoid of any reasonable (or logically reasoned) foundation.

12. [12]

    Contrary to the State’s submissions, none of paragraphs 30-34, 36, 37 or 43 of the report could rationally affect the Court’s assessment of whether the risk of harm was foreseeable on any of the bases alleged in the cross-claims. Paragraphs 30-34 and 41-43 of the report could not be relevant to that issue. That is because:

13. [13]

    The State asserts that paragraphs 30-34, 36 (excluding the last two sentences) and 37 are relevant to the question of whether Ms Lam’s alleged conduct was contrary to community standards in 1978, for the purposes of s 6A of the Limitation Act 1969.

14. [14]

    Professor Parkinson does not, in any of those paragraphs, identify any matter(s) that would permit him to comment on the community standards that prevailed in New South Wales in 1978. Nor, for that matter, does his curriculum vitae appear to identify any particular training, study or experience that would arm him with specialised knowledge of community attitudes regarding sexual conduct between female teachers and male high school students in 1978.

15. [15]

    Those paragraphs of the report could not rationally affect the Court’s determination of the limitation defence issue. They are, that is to say, irrelevant.

16. [16]

    Furthermore, none of the opinions expressed by Professor Parkinson at paragraphs 30-34 or 43 of the report could rationally affect the Court’s assessment of whether Ms Lam actually knew, or whether she ought to have known, of the alleged risk of harm, including mental harm, posed to the plaintiffs by engaging in sexual contact with her.

17. [17]

    Ms Lam accepts that Professor Parkinson possesses expertise in the field of child protection policy, and that he has worked with psychologists and paediatricians on various research projects to do with child sexual abuse. However, his expertise does not extend to the diagnosis or attribution of psychiatric injuries or their sequelae in individual patients, being matters which lie squarely within the specialised knowledge of expert psychiatrists or (potentially) psychologists.

18. [18]

    Irrespective of how closely Professor Parkinson may have worked with medical experts of that kind during his research projects, his training, study and experience do not qualify him to provide (admissible) opinions regarding the issue at hand of whether Ms Lam’s alleged misconduct towards IZG2, AXJ2, KWM2 and BJS2 caused them to suffer the specific harm pleaded and particularised in their respective statements of claim.

19. [19]

    Professor Parkinson states that he has around 35 years’ experience in the area of child protection, and that he has particular expertise in child sexual abuse in church communities. He does not, however, identify any specialised knowledge that would permit him to comment on the steps that ought to have been taken by Mr Addinall, or a reasonable person in his position, in 1978 in response to the specific disclosures said to have been made by IZG2 and AXJ2, and by KWM2.

20. [20]

    Nor does Professor Parkinson identify any specialised knowledge relevant to the precautions that ought to have been taken by Ms Lam, or a reasonable person in her position in 1978, in response to the alleged risk of harm, including mental harm, posed to the plaintiffs by engaging in sexual contact with her.

21. [21]

    The absence of any such specialised knowledge, together with his observation (at [44]) that “there were [no] formal child protection policies in schools at that time”, strongly suggest that Professor Parkinson has formed his opinions as a result of his having applied contemporary standards and values, to (alleged) historical events. In circumstances where the question of breach is to be determined prospectively, the opinions expressed by Professor Parkinson at paragraphs 41, 42 and 44 of the report could not, on any reasonable view, be relevant to the precautions that the State or Ms Lam allegedly should have taken or to the scope of her duty of care.

22. [22]

    Whether Ms Lam’s alleged conduct amounted to serious or wilful misconduct for the purposes of the Employees Liability Act 1991 will necessarily be informed by the factual findings that are ultimately made regarding the underlying allegations made by each of the plaintiffs (and repeated by the State), regarding the alleged abuse. Professor Parkinson’s opinion as to whether that alleged conduct was “unprofessional” or “unethical”, or whether it was liable to cause “huge embarrassment to the school” or “consternation amongst the parents”, offers no assistance to the Court in its determination of that question. Those opinions are, accordingly, irrelevant.

Consideration

1. [23]

   In my opinion, the whole of Professor Parkinson’s report is inadmissible and should be excluded. As Ms Lam has correctly contended, the opinions contained in his report, undoubtedly based on Professor Parkinson’s unchallenged expertise, are effectively no more than legal submissions. Significant among the contests in these proceedings will be the question of what knowledge or notice the State had of anything that was allegedly going on at the Maroubra Bay High School in 1978, or what knowledge or notice it ought to have had. These issues are fact dense, the revelation of which facts will in due course inform the questions of the scope and content of the alleged duty, as well as issues of foreseeability and causation. Despite the understandable temptation for Professor Parkinson to have, and to express, opinions on these questions, they are not based on or drawn from his expertise in child sexual abuse but from his background and training as a lawyer. While there has been some judicial retreat from the dogmatic application of Makita since 2001, the analysis in [77] of that decision remains pertinent. Moreover, the nature and content of the duty of care imposed on educational authorities in New South Wales in the late 1970s and the identification of local community standards in 1978 or 1979 are not matters upon which Professor Parkinson is entitled to express an admissible opinion.