Clancy v Plaintiffs A, B, C and D; Bird v Plaintiffs A, B, C and D

1. [1]

   THE COURT:

Introduction

1. [2]

   It must be stated at the outset that these appeals raised a vast array of issues of both considerable complexity and acute sensitivity, given the nature of the allegations and their gravity. One cannot gainsay the impact that the allegations and their litigation has had on all concerned in the proceedings including very young children, their parents as well as the Appellants who were the subject of serious allegations and findings made by the primary judge.

2. [3]

   The primary judge and all counsel, both at first instance and on appeal, were properly conscious of the sensitivity of the subject matter of the events in dispute and the potential psychological and emotional impacts that the litigation of the events in question could have on all concerned.

3. [4]

   Footprints was the trading name of a childcare centre, the licensee of which was Little Pigeon. Ms Clancy was the 99% shareholder of Little Pigeon. The remaining 1% shareholder was her father, Mr Bird, although he described himself in a statement to the police in late 2010 as a “silent partner” in the business. Ms Clancy was the director of Little Pigeon and Mr Bird worked at Footprints as a cook, occupational health and safety officer, first aid officer and maintenance person. Whether or not he was an employee of Footprints or simply a volunteer was an issue in the proceedings. It was of particular relevance to questions of vicarious liability at first instance.

4. [5]

   B and D were young children who attended Footprints between 2008 and 2010, at the time of the events giving rise to these proceedings. A and C are the mothers of B and D respectively.

5. [6]

   Child 1 and Child 2, who were not parties to the underlying proceedings but whose evidence was received by the primary judge as tendency evidence, admitted pursuant to s 97 of the Evidence Act 1995 (NSW), were also very young children who attended Footprints at the relevant time. B’s evidence was also relied on as tendency evidence for the purposes of D’s claim and vice versa.

6. [7]

   Each of Child 1, Child 2, B and D made a series of disclosures to their mothers and then to the police in the period following 11 November 2010, when Child 1 was first interviewed by the police. [1] The police had been contacted by Child 1’s mother following disclosures made to her at home on the previous day. Mr Bird was also interviewed and arrested on suspicion of the sexual assault of Child 1 on 11 November 2010.

7. [8]

   The investigations precipitated by Child 1’s disclosures resulted in disclosures by the other children and ultimately led to criminal charges being laid against Mr Bird in relation to Child 1, B and another child. The Director of Public Prosecutions (DPP) did not ultimately pursue any of these charges to trial.

8. [9]

   Various sets of proceedings were commenced by A, B and C against the Appellants in 2013. D, the mother of C, commenced separate proceedings in 2020. All of the proceedings were heard together over a two-week period in September 2020.

9. [10]

   Broadly speaking, it was alleged in the various sets of proceedings that B and D were assaulted by Mr Bird at, with one exception, unspecified times between 2008 and 2010 whilst attending Footprints. It was not in contest that Mr Bird had physical contact with the children at Footprints, which extended to them jumping up on him, sitting on his lap and him picking them up or patting them as a mode of comfort. What was in issue, however, and what was strenuously contested was whether Mr Bird’s physical contact with the children was of a sexual nature as alleged in the pleadings. The primary judge found that it was, as summarised at [12] and [13] below.

10. [11]

    For various reasons, none of B, D Child 1 or Child 2 could be cross-examined, although all were interviewed by the police and filmed recordings of their interviews were in evidence, as was an electronic record of interview (ERISP) between Mr Bird and the police on 11 November 2010. Mr Bird gave evidence, as did Ms Clancy and a number of former employees at Footprints. A and C also gave evidence, as did the mother of Child 1. The mother of Child 2 gave evidence by way of written statement, but she was not cross-examined.

11. [12]

    The primary judge found that Mr Bird had repeatedly kissed B, including with an open mouth, and pulled down her pants during her time at Footprints. [2]

12. [13]

    In relation to D, the primary judge accepted as true disclosures by D that:

13. [14]

    The primary judge reached her conclusions as to what Mr Bird had done by reference to: the disclosures each of B, D, Child 1 and Child 2 had made to the police, admitted mutatis mutandis as tendency evidence in the claims of B and D (and the corresponding claims of their respective mothers); the disclosures each child had made to their mothers; their mothers’ perceptions of changes in the behaviour of the children; and various admissions which her Honour held Mr Bird to have made in the police interview on 11 November 2010 in relation to Child 1. Her Honour also expressed adverse views as to the credibility of both Mr Bird and Ms Clancy (as well as in relation to A, who was B’s mother). As such, her Honour rejected Mr Bird’s denials in relation to the specific allegations made on behalf of B and D as well as the disclosures of Child 1 and Child 2.

14. [15]

    In forming an adverse view of Mr Bird’s credit, the primary judge rejected as implausible his evidence, given under cross-examination, that he did not understand what he was being asked in his police interview. Further, the primary judge was unimpressed by Mr Bird’s attempts in cross-examination to distance himself from the answers he gave to the police. Her Honour also rejected Mr Bird’s evidence that, at the time of his police interview, he considered that there was something wrong with touching a child on the buttocks, holding that it “was plainly not what Mr Bird believed when he was working at the centre or at the time of his admissions” in the police interview. [6] Her Honour was thus satisfied that “considerable parts of Mr Bird’s evidence were not honestly given” and that “overall, his evidence had to be approached with considerable caution”. [7]

15. [16]

    On the other hand, the primary judge held that: [8]

16. [17]

    The primary judge’s adverse view of Mr Bird’s credit was not, however, based solely on her Honour’s assessment of his evidence, nor inconsistency regarding his state of mind or beliefs, as presented in the witness box. It was also affected by the view which her Honour took of what she considered to be an attempt by Mr Bird and Ms Clancy to dissipate his assets after the commencement of proceedings. [9] As shall be seen, her Honour’s analysis in this respect was the subject of a strong attack which constituted a discrete ground of appeal.

17. [18]

    The primary judge, having found that B and D had been the subject of sexual assaults by Mr Bird, went on to hold that Little Pigeon was vicariously liable for those assaults. This involved the primary judge making a finding that Mr Bird was an employee of Little Pigeon, it having been contended that he was only a volunteer. It is not clear from the terms of the primary judgment whether her Honour also held that Ms Clancy, in addition to Little Pigeon, was vicariously liable for her father’s acts. The Plaintiffs (Respondents in this Court) maintain that she did.

18. [19]

    The primary judge also held that Little Pigeon and Ms Clancy breached a duty of care which they owed to all of the Plaintiffs, i.e. the very young children and their mothers; that Little Pigeon was additionally liable for breach of contract in respect of the care of B and D; and that A, B, C and D had each suffered loss and damage in various respects. The primary judge’s awards of damages to B and D included sums for exemplary damages.

19. [20]

    An overview of the damages awarded to the Plaintiffs is set out at [225] and following below.

The appeals

1. [21]

   The Defendants (the Appellants in this Court) have appealed on almost every aspect of the primary judgment as to both liability and damages. They have also challenged a significant number of the primary judge’s factual findings on material issues, including her Honour’s findings in relation to the nature and extent of admissions made by Mr Bird in the November 2010 police interview.

2. [22]

   Other material factual findings under challenge included those in relation to Child 1, whose evidence in the form of transcripts of interviews with police was admitted and relied upon as part of the tendency evidence.

3. [23]

   Little Pigeon and Ms Clancy were represented on appeal by Mr M Windsor SC, Ms A Horvath and Ms R McEwen. Mr Bird was represented on appeal by Mr D Hooke SC and Mr H Chiu. A, B, C and D were represented by Mr C Barry QC, Mr M Tanevski and Ms M Hamdan.

The complex nature of the proceedings and key issues on appeal

1. [24]

   There were, and are, numerous features of the proceedings which contributed to their complexity and gave rise to the multiplicity of issues with which the primary judge needed to deal. Those issues remain alive on appeal.

2. [25]

   One such feature related to the fact that B and D had no memory of the events in question, which occurred more than 10 years before the trial when they were aged between three and four years. Thus, although available, they could not be cross-examined in the sense that it was accepted that there would be no utility in doing so. The same was the case with Child 2. [10] Child 1 was in a slightly different category, her evidence being admitted over objection on the basis that, in the trial judge’s assessment, Child 1 was “not available” within the meaning of s 63 of the Evidence Act. [11]

3. [26]

   Putting that matter to one side for the moment, the consequence was that all of the primary evidence in support of the alleged interferences with B, D, Child 1 and Child 2 was unable to be tested by cross-examination. That evidence was also non-specific as to time and, to some extent, as to place. These considerations, which were understandable given the age of the children at the relevant time, were nonetheless somewhat problematic in circumstances where the allegations against Mr Bird were of particular gravity and the Briginshaw standard, as reflected in the terms of s 140(2) of the Evidence Act, applied: see also Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170; [1992] HCA 66; Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [61], where it was said that “ [i]t is well accepted that the test to be applied under s140(2)(c) is the Briginshaw test”; and New South Wales v Hathaway [2010] NSWCA 184 at [263], where it was said that in a case involving allegations of serious misconduct with grave consequences, “clear or cogent or strict proof” [12] is required.

4. [27]

   In Briginshaw v Briginshaw (1938) 60 CLR 336 at 362; [1938] HCA 34 (Briginshaw), a case involving a charge of adultery, Dixon J said that:

5. [28]

   Justice Dixon’s observations in Briginshaw were referred to with approval by the High Court in M v M (1988) 166 CLR 69 at 76; [1988] HCA 68, in the context of an allegation of sexual abuse. There, the Court said that Dixon J’s “remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute.” In WK v SR (1997) 22 Fam LR 592 at [26], in the context of allegations of sexual abuse of children, the Full Court of the Family Court said that the central evidence of a child in that case needed to be “very carefully evaluated” and (at [47]) that:

6. [29]

   The primary judge was alive to the forensic challenges presented by the fact that neither of B and D (nor Child 1 and Child 2) was able to be cross-examined. Her Honour observed that: [13]

7. [30]

   The primary judge was correct to say that it was “necessary to pay very close attention” to what each of B and D (as well as Child 1 and Child 2) had disclosed. It was also necessary to pay close attention to:

8. [31]

   This called for a close analysis of the evidence of each of the children. The primary judge did this and, in so doing, at least in relation to D, drew in part on the expert evidence of an Associate Professor Quadrio (a forensic and child psychiatrist), whose report was admitted subject to a limitation under s 136 of the Evidence Act, which limited its use to the Plaintiffs’ claims for damages. [14] Associate Professor Quadrio was cross-examined and, whilst her evidence elicited under cross-examination was not subject to any limitation, the primary judge’s use of and reliance on her evidence in relation to B and D’s original disclosures was inconsistent with the s 136 ruling. This is a matter of quite legitimate complaint by the Appellants.

9. [32]

   Another apparent complexity (and difficulty) in relation to s 136 flowed from what is recorded at PJ [34]–[36]. There, the primary judge said that:

10. [33]

    Paragraph 36 of the judgment is problematic for a number of reasons, not least of which is that, as was common ground and contrary to what was said by the primary judge, no s 136 order was ever in fact made in respect of the evidence of A and C in relation to the disclosures made to them by B and D respectively. The paragraph is also problematic because it is clear from her Honour’s reasons that her Honour did not in fact treat A and C’s evidence as subject to limitation of the kind described. Rather, the primary judge relied upon it to support the veracity of B and D’s allegations. [15] This was not in error as, although B and D did not actually enter the witness box, they were nonetheless “available”, they were “called” (in the sense that their statements were tendered) and they could have been, but were not, required for cross-examination. In those circumstances, their previous representations, of which evidence was given by their respective mothers and contained in their police statements, were admissible under s 64(3) of the Evidence Act.

11. [34]

    The next complexity arose because of the fact that the evidence of B, Child 1 and Child 2 was admitted and relied on as tendency evidence in respect of the allegations made by D, as were what were described as Mr Bird’s admissions in relation to Child 1. Similarly, the evidence of Child 1, Child 2 and D, and Mr Bird’s admissions, were admitted as tendency evidence in support of the allegations made by B. The primary judge said that she had considered whether the disclosures made by B and D were truthful “in light of all of the other evidence”. [16]

12. [35]

    A tendency notice said to be issued pursuant to s 97(1)(a) of the Evidence Act (the Tendency Notice) purported to describe the tendency arising from the evidence of Child 1, Child 2, B and D (together with two other children whose evidence was not ultimately adduced) “as to”:

13. [36]

    As a statement of tendency derived from the evidence identified therein, the Tendency Notice was sub-optimal. It did not in truth identify or articulate any tendency, leaving the party put on notice to seek to understand what was being asserted.

14. [37]

    The requirement under the Evidence Act for notice of the asserted tendency to be provided is not a mere formality. It serves to give the party in respect of whom the tendency is asserted fair notice of the tendency that is sought to be established. That tendency needs to be articulated with clarity and precision because it supplies the framework for the Court’s determination of whether the evidence will, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value. [17]

15. [38]

    As the High Court has explained in Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 at [41] (Hughes), to have significant probative value, the evidence sought to be adduced must strongly support (whether by itself or having regard to other evidence adduced or to be adduced) the existence of the tendency asserted, and that tendency must strongly support the proof of a material fact in issue.

16. [39]

    In oral address before the primary judge, senior counsel for the Plaintiffs formulated the tendency as a “sexual interest in young children, and in particular in young female children”. [18] This was in turn different to the tendency said to be manifested by Mr Bird’s alleged “admissions” in relation to Child 1, namely a “tendency for inappropriate sexual dealing with children in his care”. [19] The Tendency Notice in this respect described the admissions as disclosing a tendency to:

17. [40]

    Although, for the purposes of admissibility and determination as to whether the tendency evidence relied upon is of significant probative value within the meaning of s 97 of the Evidence Act, it is to be assumed that the evidence will be accepted as correct, [20] that does not mean that, for the purposes of its ultimate use by the trier of fact, the evidence or aspects of the evidence adduced as tendency evidence must be accepted. Acceptance of the tendency evidence relied upon by the Plaintiffs needed to have regard to Briginshaw principles because of the nature of what was being claimed in that evidence. If the evidence should not have been accepted taking into account Briginshaw, then it could not be used to support the tendency asserted either by itself or in conjunction with other evidence.

18. [41]

    For present purposes, if the evidence of any of the other children which was relied upon as part of the tendency evidence in support of the allegations made by B or D should not have been accepted, or, as is put with regard to Child 1, should not have been admitted in the first place, that will necessarily impact whether the tendency was supported or supportable by the tendency evidence that remained.

19. [42]

    So, too, with the evidence said to be derived from the alleged admissions. The analysis required was, first, to consider whether Mr Bird’s answers in his police interview amounted to admissions which demonstrated each of the tendencies as set out at [39] above. Secondly, if they did, it was necessary to consider whether each particular tendency established an overarching tendency for “inappropriate sexual dealing”. Thirdly and finally, there was to be consideration of whether that tendency in turn strongly suggested that the specific allegation in respect of which the tendency evidence was being deployed in fact occurred.

20. [43]

    Although we will return to this in more detail below, a number of the matters referred to in [39] above are simply not strongly suggestive of a tendency for inappropriate sexual dealing with children, for example, cuddling them, patting their backs or tummies, sitting them on one’s lap or unintentionally touching their genitalia. Whilst “putting his hand down in front of [a] child’s underwear” undoubtedly would be suggestive of such a tendency, as shall be seen, Mr Bird made no admission of that kind in his police interview.

21. [44]

    The primary judge gave particular prominence to the evidence of Child 1, and there is no doubt that on its face it was very damaging to Mr Bird. It was Child 1’s complaint that had led to his arrest and interview with the police on 11 November 2010. Child 1 had been interviewed by the police on the same day, having made disclosures to her mother on the previous day about her interactions with Mr Bird. Child 1’s evidence was considered by the primary judge at PJ [348]–[376], with extensive portions set out over several pages at PJ [352]–[362] and [369]–[370].

22. [45]

    The primary judge found that Child 1 had been sexually assaulted by Mr Bird in the ways she had disclosed in her police interview. [21] Child 1’s evidence was also referred to and relied upon by the primary judge in reaching her conclusions that the claims made by B and D were sustained. [22] It was also relied upon for the purposes of the admission of the other tendency evidence. Thus, the primary judge said: [23]

23. [46]

    The admissibility of Child 1’s evidence was hotly contested. It was ultimately admitted by the primary judge for the reasons supplied at PJ [63]–[84]. That reasoning, and the admission of Child 1’s evidence, are the subject of several grounds of appeal which are dealt with at [58]–[79] below. It was common ground that part of that reasoning was flawed insofar as the primary judge mistakenly attributed to Child 1 evidence as to Child 2’s state of mental health and the impact upon Child 2 of the matters she disclosed, as well as the attitude of Child 2’s mother to Child 2 giving evidence. This is also considered at [63]–[65] and [71] below and is one of the challenged factual findings to which we have already made reference.

24. [47]

    If Child 1’s evidence was wrongly admitted (and for the reasons given later in this judgment, we consider that it was), then it could not have been used as part of the body of evidence relied upon in support of the asserted tendency, which was the only basis upon which it was admitted. But it plainly was so used and thus impaired the reasoning process.

25. [48]

    It is also difficult to assess the extent (if any) to which the admission of Child 1’s evidence and the evidence of B (if it should not have been accepted), for example, may have influenced the primary judge’s adverse assessment of Mr Bird’s credibility, including her Honour’s rejection of his denials in cross-examination.

26. [49]

    The adverse assessment of Mr Bird’s credit was also affected by a matter the primary judge described as relevant to her assessment of both Mr Bird and Ms Clancy’s credit, namely a breach by Mr Bird of an inter partes undertaking to the Plaintiffs. This has been touched upon at [17] above. According to her Honour: [24]

27. [50]

    Contrary to the primary judge’s view, which was not elaborated on beyond PJ [129], we do not agree that this matter was relevant and, when the short facts are considered, the matter her Honour was evidently referring to in fact shows Ms Clancy and Mr Bird in a positive light. It is convenient to provide a short explanation, at this juncture, for this conclusion.

28. [51]

    On 7 April 2015, the Plaintiffs’ solicitors wrote to Garling & Co Lawyers (which then represented Mr Bird) stating: [25]

29. [52]

    More than three years later, by email dated 18 July 2018, Ms Clancy wrote to Mr Garling stating that:

30. [53]

    Whilst that was unfortunate, it is extremely difficult to see how this sequence of correspondence could redound to the discredit of either Mr Bird or Ms Clancy. Indeed, to the contrary, it shows a consciousness on Ms Clancy’s part of an issue as to whether the house could be sold whilst the proceedings were ongoing. This is why she sought legal advice, and it bespeaks a consciousness of wanting to act lawfully and properly. The fact that the legal advice was not correct should not have told against the credit of either Ms Clancy or Mr Bird, contrary to what was suggested in PJ [129].

31. [54]

    Enough has been said on this point to highlight the complexities thrown up by the proceedings and the interrelationships between various matters. It is convenient at this point to summarise our principal conclusions before dealing with each matter individually.

Summary of key conclusions on appeal

1. [55]

   For the reasons set out in the body of this judgment, we are of the view that:

   1. (1)

      the primary judge erred in admitting Child 1’s evidence;

   2. (2)

      Child 1’s evidence was an important component of the corpus of tendency evidence relied upon by the primary judge;

   3. (3)

      the primary judge also erred in greatly overstating the extent of the admissions made by Mr Bird in his police interview on 11 November 2010 in the context of her analysis as to whether the disclosures by B and D in relation to Mr Bird’s contact with them should be accepted. In particular, her Honour was wrong to have held that Mr Bird admitted to:

   4. (4)

      putting to one side the wrongful admission of Child 1’s evidence and the overstatement of Mr Bird’s admissions, the primary judge erred in concluding that the disclosure by B that Mr Bird had pulled down her pants was made out, bearing in mind s 140(2) of the Evidence Act. That disclosure, which supplied a key element of the primary judge’s conclusions in relation to B (see [12] above), was not only untested and untestable but was strongly undermined by inconsistencies and apparent retractions in B’s interviews with the authorities in 2011;

   5. (5)

      especially in light of the Briginshaw standard, A and B’s claims could not be sustained in light of the evidence that should have been excluded, the related problematic nature of the tendency findings, the proper characterisation of the so-called “admissions” and the unreliability of and inconsistencies in the disclosures made by B. The judgments in favour of A and B should be set aside and their claims dismissed;

   6. (6)

      in respect of the claims by C and D, the wrongful admission of Child 1’s evidence, the wrongful acceptance of B’s disclosures as true and the reliance placed upon them as tendency evidence, and the overstatement of Mr Bird’s admissions meant that the only evidence potentially available to support the asserted tendency of Mr Bird was the evidence of Child 2;

   7. (7)

      Child 2’s evidence was not sufficiently probative to support the asserted tendency and thus to support D’s claim;

   8. (8)

      by reason of the primary judge’s errors as noted above, the judgments in favour of C and D against Mr Bird, Ms Clancy and Little Pigeon must be set aside;

   9. (9)

      unlike A and B’s claims, C and D’s claims against Mr Bird, Ms Clancy and Little Pigeon should not be dismissed. There should be a new trial of these claims, although there would be obvious merit in the parties engaging in a mediation in an attempt to resolve them;

   10. (10)

       if, and to the extent that, the primary judge found that Ms Clancy, together with Little Pigeon, was vicariously liable for Mr Bird’s conduct (a matter that is not wholly clear on the primary judgment), Ms Clancy’s appeal in that respect should be upheld in any event; and

   11. (11)

       the primary judge’s conclusion that Ms Clancy and Little Pigeon were directly liable in negligence should also be set aside.

2. [56]

   These conclusions mean that the appeals in relation to the findings of liability against Mr Bird, Ms Clancy and Little Pigeon and the awards of damages in favour of A, B, C and D must succeed.

Structure of balance of reasons

1. [57]

   The balance of these reasons adopts the following structure:

Should Child 1’s evidence have been admitted?

1. [58]

   The tendency evidence insofar as it comprised the evidence of Child 1 was admitted over the strenuous objection of the Defendants. Child 1’s evidence was strongly adverse to Mr Bird in terms of the disclosures it contained.

2. [59]

   The admission of Child 1’s evidence is a ground of appeal common to all of the Appellants and is expressed as an error in the primary judge’s finding that Child 1 was unavailable to give evidence. This ground of appeal turns on the proper construction and application of s 63 of the Evidence Act and the definition of “unavailability” in cl 4 of pt 2 of the Dictionary in the Evidence Act. It is also affected by what the Appellants assert (and the Respondents accept) was a significant factual error made by the primary judge in relation to Child 1 and the impact of Mr Bird’s alleged interference with her. [27]

3. [60]

   The background to the admission of Child 1’s evidence is as follows.

4. [61]

   The Tendency Notice served by the Plaintiffs gave notice of their intention to adduce evidence of disclosures made by six children, including B and D, to prove an alleged tendency of Mr Bird “for inappropriate sexual dealing with children in his care”. [28] Although the Notice referred to information provided by four children in addition to the two Plaintiffs, ultimately only Child 1 and Child 2 were relied on. No statement of Child 1 or Child 2 was served and, apart from the Tendency Notice, there was no indication that they would be called as witnesses until shortly before the trial, when it was indicated that it was proposed to issue a subpoena to Child 1 requiring her to give evidence. The Defendants objected that it was too late, and the application for leave to serve the subpoena (which was required because it was late) was not pressed. However, the primary judge did not foreclose the issue of a subpoena to Child 1. [29]

5. [62]

   The primary judge admitted hearsay evidence of disclosures made by Child 1 to her mother and in her recorded police interviews, pursuant to s 63 of the Evidence Act, on the basis that Child 1 was relevantly “unavailable” to give evidence. Her Honour gave short reasons for this in the course of the hearing, as follows: [30]

6. [63]

   As her Honour there foreshadowed, more elaborate reasons were provided in the primary judgment. In essence, they were that the combination of the evidence of Child 1’s mother and that of a psychiatrist, Associate Professor Quadrio, established that: Child 1 was psychologically affected by the events about which she would be asked if required to give evidence, such that she may well be re-traumatised by the experience; that her mother would do everything in her power to prevent Child 1 giving evidence; and that Child 1 had no memory of the relevant events (which finding was founded on her mother’s evidence that she had not spoken about them for nine years).

7. [64]

   The primary judge dealt with the matter at PJ [37]–[84] and in particular at [63]–[84]. At PJ [63]–[68], her Honour said:

8. [65]

   The parts of the above paragraphs which have been emphasised found no support whatsoever in the evidence and, as noted above, were accepted by senior counsel for the Respondents to be erroneous. The primary judge appears to have conflated evidence in relation to Child 2 with evidence in relation to Child 1. The error was also illustrated by reason of the evidence of Child 1’s mother, given through the Respondents’ solicitor, that Child 1 had not spoken of Footprints or what had occurred there for the nine years prior to 2020. [31]

9. [66]

   Clause 4 of pt 2 of the Dictionary in the Evidence Act defines the circumstances in which a person is unavailable to give evidence, as follows:

10. [67]

    In holding that Child 1 was not available to give evidence, the primary judge took the view that cl 4(1)(f), insofar as it refers to securing the attendance of a witness, does not refer to compelling the attendance of a witness by subpoena, which her Honour considered was the subject of cl 4(1)(g). Indeed, her Honour misquoted cl 4(1)(g) as if it referred to “compelling attendance”, when in fact it refers to “compel[ling] the person to give the evidence”, stating: [32]

11. [68]

    However, cl 4(1)(f), in referring to “securing the attendance of the person”, is concerned with steps taken to get the witness to court physically (or remotely), while cl 4(1)(g), in referring to “compel[ling] the person to give the evidence”, is concerned with steps taken to compel answers from the witness once their attendance at court has been secured. [33] It follows that her Honour applied an incorrect test.

12. [69]

    Reasonable steps to secure the attendance of a witness, where the whereabouts of the witness are known, will, at least usually, involve the issue of a subpoena to attend. [34] In the case of a child, a subpoena can be served on the child’s parent. [35] In the present case, nothing was done to secure Child 1’s attendance, beyond asking her mother. The fact that the mother stated that she would resist any subpoena to compel Child 1 to attend does not demonstrate that it is not a reasonable step to serve a subpoena. It was not for the Plaintiffs to determine whether the risk to Child 1’s health and welfare was such as to render it unreasonable for her to be required by subpoena to attend court to give evidence. That was a matter for the Court.

13. [70]

    Her Honour considered that the risk to Child 1’s health rendered it unreasonable to compel her to attend, such that Child 1 was “unavailable” to give evidence. [36] However, the fact that giving evidence may be detrimental to a witness’ psychological health and welfare does not render the witness unavailable within the meaning of s 63 of the Evidence Act. While her Honour speculated that, had a subpoena been issued, an application to set it aside might have been supported by psychiatric evidence and therefore succeeded, [37] that could not be foretold and the Defendants were entitled to be heard in respect of any such application.

14. [71]

    Moreover, as already observed, insofar as her Honour supposed that there was evidence, either from the mother or from a psychiatrist, that Child 1 was psychologically adversely affected by the relevant events, her Honour was in error. There was no such evidence. In this respect, her Honour appears to have confused evidence relating to Child 2 with Child 1. [38]

15. [72]

    The Respondents submitted that the primary judge’s conclusion that Child 1 was unavailable was a discretionary judgment, to which the well-known strictures of House v The King (1936) 55 CLR 499; [1936] HCA 40 applied; for this proposition, the judgment of this Court in Longhurst v Hunt [39] was cited. In that case, Stein AJA appears to have proceeded on the basis that satisfaction of the criteria in cl 4(1)(f) involved a discretionary judgment to which House v The King applied. [40] However, that was not the sole basis of his Honour’s decision that the trial judge in that case had not erred in rejecting certain evidence under s 63 of the Evidence Act, as it was held that its rejection was also supported under s 135(a). [41] Justice Sheller does not appear to have shared the view of Stein AJA in respect of cl 4(1)(f). [42] Justice Santow agreed with the judgment of Stein AJA, but did not expressly address the question. [43] The view of Stein AJA that the application of cl 4(1)(f) involved a discretionary judgment was not essential to the outcome.

16. [73]

    There is nothing discretionary about a conclusion that a witness is unavailable within the definition in cl 4(1)(f). The question is whether the circumstances satisfy a test. Although evaluation may be required, no exercise of discretion is involved. The constraints on appellate intervention imposed by House v The King are not applicable.

17. [74]

    It follows that her Honour erred in holding that Child 1 was unavailable to give evidence, and thus in admitting the hearsay evidence of her disclosures to her mother and to police. There was legal error in the conclusion that cl 4(1)(f), insofar as it refers to reasonable steps to “secure the attendance” of a witness, did not refer to compelling the attendance of a witness by subpoena; there was factual error in finding that there was evidence that Child 1 was psychologically adversely affected by the relevant events; and there was an erroneous conclusion that all reasonable steps had been taken by the Plaintiffs to secure Child 1’s attendance, when no more had been done than an inquiry made of her mother who was understandably protective and resistant and, critically, no subpoena had been served. The Respondents were entitled to choose not to compel Child 1 to give evidence. But if they so chose, they could not then have the benefit of hearsay of her disclosures on the basis that she was unavailable.

18. [75]

    The Respondents submitted that such errors were not material, as if Child 1 had no recollection of the relevant events, then there was no point in requiring her to give evidence and risk re-traumatisation. However, the evidence that she had no recollection amounted to no more than her mother’s belief to that effect, derived only from the circumstance that she had not spoken about the relevant events for nine years. On the other hand, the disclosures attributed to Child 1 were perhaps the most specific and compelling of those made by all four children. Her disclosures alone were the subject of the ERISP of Mr Bird. The significance to the proceedings of the evidence of Child 1’s disclosures was, therefore, very great. Evidence of the disclosures of Child 1 ought not to have been admitted.

19. [76]

    However, it is not correct that, as Mr Hooke submitted, if Child 1’s disclosures are excluded, questions then arise concerning the admissibility of Mr Bird’s “admissions” in his ERISP of 11 November 2010. The admissibility of the interview, though it related to Child 1 and covered the allegations made in her disclosures, does not depend upon the admissibility of those disclosures. The ERISP is admissible, not as evidence of what Child 1 alleged, but as evidence of what (if anything) Mr Bird admitted. Mr Bird’s answers relating to Child 1 are in evidence, regardless of the “availability” point concerning Child 1.

Significance of wrongful admission of evidence of Child 1

1. [77]

   Child 1’s wrongfully admitted evidence played a key role in the success of B and D’s cases, and therefore A and C’s cases which were dependent upon them. The primary judge, as has been explained earlier in these reasons, drew on Child 1’s disclosures as an important part of the tendency evidence upon which she relied for the purposes of making findings as to the truth of B and D’s disclosures regarding Mr Bird’s conduct.

2. [78]

   It is a very difficult, if not impossible, exercise to separate the significance of Child 1’s evidence from her Honour’s overall reasoning process. It would be a matter of speculation as to whether her Honour would have reached the same conclusions had that evidence not been admitted. The trial may also have taken a different course in that Mr Bird may have made different forensic decisions and/or his cross-examination may have taken a different course had that material not been admitted.

3. [79]

   However, it is not necessary to speculate since the admission of Child 1’s evidence was not the only error which infected the primary judge’s reasoning process. As explained below, for example, her Honour overstated Mr Bird’s admissions in key respects and also should have rejected the evidence of B because of significant inconsistencies in it and retractions made by B. Both Mr Bird’s admissions and B’s disclosures were also received as part of the tendency evidence in D’s case. Critical planks, therefore, on which the primary judge rested all of her key conclusions were unable to support them.

Errors in findings as to Mr Bird’s admissions

1. [80]

   The primary judge took the view that Mr Bird had made extensive admissions in his police interview on 11 November 2010. Her Honour obviously considered them to be very significant and they played a central part in her reasoning. Indeed, she stated that “[t]he starting point for [her] conclusions is Mr Bird’s admissions.” [44]

2. [81]

   The primary judge said that Mr Bird’s interview gave police an “accurate account of his conduct”: [45]

3. [82]

   For the purposes of these appeals, we have closely reviewed the transcript of Mr Bird’s police interview which was in evidence before the primary judge.

4. [83]

   It should be noted at the outset that this interview was in relation to disclosures that had been made by Child 1, as reported to the police by her mother on 11 November 2010. To the extent that admissions were made, they were not made in relation to B or D. It was for this reason that, before the primary judge, what were referred to as Mr Bird’s “admissions” were relied upon as tendency evidence.

5. [84]

   Unlike the failure satisfactorily to identify the tendency asserted to arise from the evidence of B, D, Child 1 and Child 2 (cf, [35] above), and as quoted above at [39], the Tendency Notice in respect of the admissions said to be taken from Mr Bird’s police interview identified the tendency as:

6. [85]

   As noted at [14]–[16] and [42] above, a large issue on appeal relates to the primary judge’s identification and treatment of Mr Bird’s admissions. References to Mr Bird’s admissions permeate the primary judgment but they are, for the most part, expressed in very general terms and the first point at which they are actually listed (albeit non-exhaustively) is some 70 pages into the judgment. [46] It is convenient to reproduce that list of admissions as identified by the primary judge, noting that her Honour prefaced this list by saying that “[w]hat Mr Bird admitted about child 1 included that”:

7. [86]

   The Appellants’ complaint is that, in various critical parts of the primary judgment, and in particular her Honour’s analysis as to whether B and D’s disclosures should be accepted, the primary judge conspicuously overstated the extent of Mr Bird’s admissions. For example, at PJ [333], her Honour said that “Mr Bird himself gave an account to police that he had acted inappropriately towards children, including the child who he was being questioned about”.

8. [87]

   In relation to B, the primary judge held that Mr Bird had admitted to kissing the children: “the account which he volunteered to police about how he treated children at the centre, including kissing them”; [47] and “Mr Bird’s admissions that he kissed and touched the children partly corroborated [B’s disclosures]”. [48] Earlier in the judgment is a section of analysis under the sub-heading “Mr Bird admitted kissing children”. [49] In PJ [342], the primary judge stated that “[a]t 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”.

9. [88]

   We are of the view that no admissions as to kissing children were made, either in relation to Child 1 (the subject of the police interview), B or “the children” more generally. Indeed, the Tendency Notice did not assert such a tendency [50] nor did the primary judge’s list of admissions said to have been made in relation to Child 1. [51]

10. [89]

    In addition to PJ [342], which is extracted in full at [87] above, the basis for the primary judge’s erroneous conclusion that Mr Bird admitted to “kissing the children” when interviewed by the police appears at PJ [343]–[344] as follows:

11. [90]

    Nowhere in the extracted passage from the ERISP does Mr Bird admit to kissing the children at Footprints. As the primary judge noted at PJ [342], he was not asked about kissing children. In the extracted answer, Mr Bird refers to his understanding of what school teachers cannot do and what “we” (presumably referring to those working Footprints) “can do” if a child hurts themselves or falls over. He says that what “you” (referring to himself and the childcare workers) “do” is “pick [the children] up because they are only babies, right, you cuddle them and give them, put a cold wash or whatever they, on their hurt, away they go.”

12. [91]

    The primary judge may well have believed that Mr Bird kissed the children, but it is altogether another thing to say, in a case where s 140(2) of the Evidence Act applies, that he admitted to doing so when this conclusion cannot be fairly or clearly spelt out of an answer to a question that did not even concern the kissing of children. The primary judge’s reasoning appears to have been that because Mr Bird said that he could “pick [the children] up and kiss and cuddle [them] because they hurt themselves”, it followed that this is what Mr Bird admitted to having done. But this does not follow nor is it supported by the conduct to which Mr Bird in fact admitted.

13. [92]

    At its highest, Mr Bird’s response to the question he was asked, upon which the primary judge relied, was ambiguous as to whether he kissed either Child 1 or the children more generally. The primary judge’s conclusion that there could “be no question that Mr Bird kissed children” was not justified on the basis of the passage of the police interview relied upon by her Honour. Moreover, the primary judge’s conclusion as to what Mr Bird had admitted relied upon an “indirect inference” and a “slender and exiguous proof” of the kind deprecated by both Dixon J and Rich J in Briginshaw. [52]

14. [93]

    The immediate context of Mr Bird’s response, in which the primary judge discerned an admission to kissing children, also tends strongly against that conclusion. What Mr Bird actually admitted to doing in the passage extracted by the primary judge, namely picking up and cuddling the children, was consistent with his answers to a number of other questions which he had been asked immediately beforehand and in which he freely volunteered that he had hugged or cuddled some of the children. Thus, in answer to question 184, he said: [53]

15. [94]

    Those parts of the primary judgment referring to the overstated and erroneous admissions to kissing [54] formed a central part of the primary judge’s analysis of B’s disclosures, which included the alleged kissing of B by Mr Bird. We will return to the significance of that analysis when considering the primary judge’s acceptance of B’s allegations. [55]

16. [95]

    As to D, the primary judge recorded that: [56]

17. [96]

    There was no basis for a conclusion that Mr Bird had admitted to having “put his hand down the front of [Child 1’s] pants” or that he had “touched them in inappropriate places”. No such admissions appear in the ERISP nor in the primary judge’s list of admissions at PJ [366]. Whilst it is true that the last of the tendencies asserted in the Tendency Notice was to “put his hand down in front of child’s underwear”, the reference given in support of that asserted tendency was Mr Bird’s answer to question 243 in his police interview. That answer did not, in our opinion, support that assertion. Even less so did it constitute an admission that Mr Bird “put his hand down the front of [Child 1’s] pants”. To provide the full context of the answer to question 243, it is necessary to reproduce the transcript of interview from question 225: [57]

18. [97]

    The primary judge’s statement at PJ [407(6)] that Mr Bird had admitted that he put his hand down the front of Child 1’s pants was not warranted. Indeed, it was consistently denied by Mr Bird. No such admission was made and this error cannot be explained away as peripheral; it appears in the central part of her Honour’s reasoning in respect of Mr Bird’s liability for the alleged conduct underpinning Child D’s case. If such an admission had been made, it would have been of powerful forensic significance and self-evidently damning. We are satisfied that no such admission was, however, made and that the primary judge committed a significant error in so finding.

19. [98]

    We also note in this context that Mr Bird’s admission that he “may have touched Child 1 on the vagina, albeit unintentionally”, could scarcely found an inference of a tendency “for inappropriate sexual dealing with children in his care”. [58] Still less could it have strongly supported the existence of a material fact in issue, namely that Mr Bird had intentionally “tickled [D] on her underpants”, [59] an allegation which the primary judge upheld by reference, in significant part at least, to what her Honour considered to be Mr Bird’s admissions in relation to Child 1.

20. [99]

    Many of the other “admissions” listed at PJ [366], as reproduced at [85] above, were not admissions at all. Many were no more than descriptions of what the very young children did or said to Mr Bird, for example, that they would climb or jump on him and that one child had lifted up her t-shirt, showing her chest and “winkie”. At their highest, the only “admissions” made by Mr Bird were that he had picked a child up, given a child a cuddle, rubbed a child’s tummy or patted a child’s back or bottom when asked to do so.

21. [100]

    The context of many of the so-called admissions was also important and, it was submitted on appeal, disregarded or discounted by the primary judge. In relation to the notion that some children pulled up their t-shirts, for example, Mr Bird’s evidence was that: [60]

22. [101]

    Mr Bird was quite candid in the police interview, as his answer to question 271 makes plain: [61]

23. [102]

    More context was supplied by the answers to questions 180–185: [62]

24. [103]

    Touching of the kind Mr Bird admitted, namely picking children up, cuddling them, rubbing their tummies or massaging their shoulders, may be quite innocuous or it may be the opposite if accompanied by intent or involving the deliberate touching of sexual organs. As the primary judge stated, “[t]here was no issue that some of these acts could have involved inappropriate sexual dealing” (emphasis added). [64] No admission of this kind, however, was made, namely that they involved such inappropriate dealing. Indeed, sexualised conduct was strongly denied by Mr Bird throughout his interview. The primary judge nevertheless characterised Mr Bird’s evidence as involving admissions of that kind.

25. [104]

    Because the primary judge concluded (erroneously in our view for reasons already given) that Mr Bird had admitted to “kissing the children” and putting his hand down Child 1’s pants, it may be that her Honour attributed a far more sinister and sexualised character to what was morally equivocal behaviour that on one view was quite innocuous and, indeed, very human, i.e. patting a child’s back or rubbing their tummy when upset. We are unable to make a similar attribution and Mr Bird certainly made no admissions to that effect.

26. [105]

    Again, taking into account the language of Briginshaw, given that Mr Bird did not admit to “kissing the children” or putting his hand down Child 1’s pants, his statements in the police interview on 11 November 2010 should not have been treated as demonstrating a tendency for “inappropriate sexual dealing with children in his care”. [65]

27. [106]

    That the primary judge may not have taken a favourable view of Mr Bird’s credit did not have the effect of translating what he said in his police interview into admissions. Indeed, the primary judge was of the view that Mr Bird was being honest in his police interview. [66] None of the activity to which he admitted in that interview could fairly be characterised as sexual assault of the kind alleged and for which the Plaintiffs were awarded very substantial damages. The primary judge erred in relying on Mr Bird’s so-called “admissions” as tendency evidence.

Admissibility of Mr Bird’s admissions against Ms Clancy and Little Pigeon

1. [107]

   This issue is raised in the appeals brought by Ms Clancy and Little Pigeon, and concerns the extent to which Mr Bird was expressly or impliedly authorised to make admissions on their behalf. Of course, to the extent that either or both of Ms Clancy and Little Pigeon were vicariously liable for Mr Bird’s conduct (a matter considered at [185]–[199] below), such admissions as were made by Mr Bird would “bite” against them not because they were admissible against those parties, but by virtue of their vicarious responsibility for the acts or omissions of their employee within the scope of his authority.

2. [108]

   It is necessary to differentiate between Little Pigeon and Ms Clancy.

3. [109]

   In relation to Little Pigeon, the primary judge said that it “finally” conceded that “Mr Bird’s admissions were also admissible against it”. [67] This was not accepted on appeal by Little Pigeon, whose counsel pointed to the more limited concession which had been made: [68]

4. [110]

   In closing submissions at trial, Ms Horvath (for Ms Clancy and Little Pigeon) put that a further concession had been made, namely that “[a]ny admissions … that he [Mr Bird] made at most bind Little Pigeon because of the quasi-employment relationship”. [69] Reference was made in that context to s 87(1)(b) of the Evidence Act, which renders admissions made by an employee relating to a matter within the scope of their employment or authority admissible against their employer, and to s 87(1)(c) (see [113] below). Little Pigeon did not take issue with that proposition per se but emphasised that the primary judge was obliged in relation to each “admission” to consider whether it was an admission at all and then to consider whether any of the criteria in s 87(1) of the Evidence Act was satisfied and, if so, whether it was adverse to Little Pigeon’s interests.

5. [111]

   The submissions of both parties in relation to this aspect of the case were made at a very high level of generality and the Court was not favoured with any detailed analysis. Given what we have held about Mr Bird’s admissions relied upon by the primary judge, it is not necessary to delve into any further detail on this aspect of the appeal by Little Pigeon.

6. [112]

   In relation to Ms Clancy, not only was no concession made (even of a limited kind) that Mr Bird’s admissions were admissible against her, but the attack on the primary judge’s reasoning that they were was more pointed. That reasoning was as follows: [70]

7. [113]

   The reference to s 87(1)(c) in the above extract (PJ [28]) is to the Evidence Act, which provides:

8. [114]

   It was submitted that the relevant time at which the relationship between Mr Bird and Ms Clancy fell to be considered was when the representations were made on 11 November 2010. Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd (No 4) [2006] NSWSC 90 at [9], [18]–[20] supports that submission. It follows that s 87(1)(c) requires one to identify the existence of a common purpose at the time of the making of the representations. The primary judge identified the common purpose as the defending of the charges against Mr Bird. The difficulty with this is that Mr Bird had not been charged at the time of the making of the representations said to amount to admissions. As was submitted on Ms Clancy’s behalf, when Mr Bird was arrested and interviewed on 11 November 2010, Ms Clancy had not spoken to him about the allegations and it was likely that she was not even aware of them. This was because, on 7 November 2010, Ms Clancy had flown to Ethiopia for a two-week holiday and only found out about the charges on 11 November 2010, when she phoned Mr Bird to tell him that she would be going to a remote part of Ethiopia and would be out of phone contact. This was after the police interview. The key point from this sequence of events is that Ms Clancy learned of the charges after the occasion on which the admissions were said to have been made by Mr Bird. [71]

9. [115]

   The admission into evidence of a representation made by a person who shares a common purpose with a party to proceedings, as an admission against that party, is confined to representations made “in furtherance of” the common purpose alleged in those proceedings. [72] A representation cannot have been made in furtherance of a common purpose before that alleged common purpose had come into existence.

10. [116]

    In the absence of any express authorisation to make admissions on her behalf, the admissions, such as they were, were not admissible against Ms Clancy, and the primary judge erred in admitting them against her.

11. [117]

    The Respondents’ submission that it was not open to Ms Clancy to raise this point on appeal because it had not been taken at first instance was also without factual foundation. The point had been taken during the trial and in closing addresses. [73] So, too, the Respondents’ reliance upon Australian Competition and Consumer Commission v Mayo International Pty Ltd (1998) 85 FCR 327 was misplaced, not least because Kiefel J’s observations in that case concerned admissions being attributed to a principal who was the employer of the person making the admissions. That was not Ms Clancy.

Did the primary judge err in her conclusion that the disclosures by B were made out and thus that Mr Bird committed assault, battery, sexual assault and/or trespass on B?

1. [118]

   It will be recalled that the primary judge held that Mr Bird assaulted B, who was aged between two and three years during her time at Footprints, by repeatedly kissing her, including with an open mouth, and pulling down her pants. [74] B turned four years of age in February 2011. [75]

2. [119]

   It is also to be recalled that the primary judge said: [76]

3. [120]

   On the other hand, at PJ [333], the primary judge observed that B and D’s disclosures had to be approached in a context where:

4. [121]

   In considering the appeal in respect of B (and, indirectly, her mother A, whose case depended for its foundation upon B’s disclosures being accepted as true), it is first necessary to identify the actual and underlying evidence relied upon by the primary judge to support her conclusion that Mr Bird “repeatedly kissed” B, including with an open mouth, and pulled down her pants.

5. [122]

   The starting point is the evidence of B herself and of A, in particular regarding the conduct in relation to B for which the primary judge found Mr Bird liable. The relevant sequence and content of disclosures concerning B was as follows:

   1. (1)

      On 13 May 2009, A observed Mr Bird kiss B on her forehead as she entered the yard area of Footprints, following which B wiped her forehead and said “yuck”; [77]

   2. (2)

      from time to time thereafter, B would tell A that on “a number of occasions” Mr Bird was “spicy” while rubbing her face. On one such occasion, A enquired whether B intended to say “spiky” and received an affirmative response, although B “was [not] able to explain exactly what she meant”; [78]

   3. (3)

      A, on being notified that Mr Bird had been arrested and charged with indecent assault, took B to the Sutherland Community Services Centre to be interviewed on 12 November 2010. Following this interview, staff of the Centre informed A that nothing was disclosed in the interview that “would raise [their] concerns”; [79]

   4. (4)

      on 13 November 2010, B disclosed to A that “Nat”, a teacher at Footprints, had kissed her with an open mouth; [80]

   5. (5)

      on 18 November 2010, A made a statement to police at the Kogarah office of JIRT describing B’s disclosure of 13 November 2010 and the kiss that she observed on 13 May 2009; [81]

   6. (6)

      on 3 December 2010, A sent an email to a JIRT officer expressing her concern about B’s assertion that she had learned to kiss with an open mouth at Footprints; [82]

   7. (7)

      on 22 December 2010, A attended a child and family assessment session with a social worker and expressed her concern regarding B’s “unusual sexual behaviour”, including kissing with an open mouth, in light of her disclosures regarding Footprints and “Nat”. The social worker noted that “[A] wants [B] to be interviewed again to see if she will make a disclosure”; [83]

   8. (8)

      on 5 January 2011, A and B attended a follow-up appointment with the same social worker. B did not disclose any detail of abuse committed at Footprints. The social worker’s note was that B “did not disclose anything she didn’t like at preschool other than the babies annoyed her”; [84]

   9. (9)

      during January 2011, during a conversation with A regarding circumstances in which B could say “no” to a teacher, B stated that “[n]o one at school touches any of the kids because all the teachers are watching”; [85]

   10. (10)

       around 20 February 2011, B disclosed to A that Mr Bird had kissed her on the lips near the sandpit at Footprints and that this had occurred “lots of times”; [86]

   11. (11)

       on 28 February 2011, A attended the Kogarah office of JIRT accompanied by B, who subsequently participated in an interview with a community services worker and a police officer. [87] It was put to B that she had told A “about someone kissing [her]”, to which B responded that Mr Bird had kissed her on the lips. B was queried as to what “[she was] doing when Mr Bird kissed her on the lips” and replied that she was “trying to stop him kissing [her]”. Later during the interview, as the interviewers enquired as to the circumstances of the kissing, B disclosed that Mr Bird had tried to kiss her on the lips while he was relaxing in his blue chair. When asked what made her think that Mr Bird was trying to kiss her, B replied repeatedly that she did not know; [88]

   12. (12)

       at approximately 11.00am on 2 March 2011, B disclosed to A that Mr Bird had kissed her on the lips with an open mouth “near the sandpit” at Footprints and had pulled her pants and underpants down; [89]

   13. (13)

       on 4 March 2011, A attended the Kogarah office of JIRT, met with a police officer and provided a further statement to police describing B’s disclosures on or around 20 February 2011 and 2 March 2011; [90]

   14. (14)

       on 5 May 2011, Mr Bird was charged with offences relating to B; [91]

   15. (15)

       on 10 August 2011, A and B attended a counselling session with a senior social worker (Ms Ly) at the Sydney Children’s Hospital Child Protection Unit (CPU). In her clinical notes, Ms Ly recorded that “B started to talk about weird feeling in reference to [Mr Bird] – that he kissed her on the lips and that she didn’t like it. It was ‘spicy’ and that she knows that he broke the rules”; [92]

   16. (16)

       on 17 August 2011, A and B attended a further counselling session with Ms Ly, during which B asked how Ms Ly “knew what [Mr Bird] did” following the previous session; [93]

   17. (17)

       on 24 August 2011, A and B attended a further counselling session with Ms Ly, during which A mentioned that B had disclosed to her that Mr Bird had pulled her pants and underpants down, only to inform her later that this had not happened. A asked Ms Ly whether it was likely that B had concocted this event or whether she had retracted her account “out of fear”; [94]

   18. (18)

       on 14 September 2011, A and B attended another counselling session at the CPU with Ms Ly. During the course of the session, B disclosed that Mr Bird had pulled her pants down but then laughed and said that she had tricked A and Ms Ly and that Mr Bird had not done so. B then repeated her disclosure that Mr Bird had kissed her on the lips albeit that she said, for the first time, that Mr Bird had followed her to the shed to do so; [95]

   19. (19)

       on 13 January 2012, B was again interviewed by an officer of JIRT at Kogarah. B had difficulty recounting details regarding Footprints but accepted the interviewing police officer’s summary that Mr Bird had kissed B only on one occasion, and nobody else was present at the time. [96]

6. [123]

   It is necessary to identify with more precision from the above events precisely what B’s disclosures were in relation to the allegations of repeated open-mouth kissing and the pulling down of her pants. These two matters will be dealt with separately.

7. [124]

   In relation to the allegation of repeated kissing with an open mouth by Mr Bird, no such disclosure was made by B during her interview on 12 November 2010, when she told A the next day that Nat had kissed her with an open mouth or at her appointment on 5 January 2011. The interview was conducted by staff at the Sutherland Community Services Centre, and the appointment was held with a social worker with the South Eastern Sydney Illawarra Health Service.

8. [125]

   On the evidence, the first such disclosure by B (that Mr Bird had kissed her) was made to her mother on 20 February 2011, some 16 days after B had turned four years of age and some three months after Mr Bird had been arrested in relation to the matters disclosed by Child 1. According to A’s evidence, she had the following conversation with B: [97]

9. [126]

   It may be noted that in the last question, A has transposed B’s earlier answer that she (B) would kiss Mr Bird on the lips to Mr Bird kissing B on the lips. In relation to this aspect of A’s evidence, the primary judge observed that: [98]

10. [127]

    Later on 20 February 2011, A audio-recorded a conversation she had with B, which was prompted by the disclosure she had made earlier in the day. The relevant passage from the transcript of that recorded conversation was as follows: [99]

11. [128]

    At PJ [394(51)], after considering whether questions put to B were suggestive or whether B knew the difference between reality and non-reality and was therefore susceptible to suggestion, the primary judge said that “I am unable to conclude that what B told her mother on this occasion, was unreliable”. On appeal, Mr Hooke, for Mr Bird, submitted that this was an example of the primary judge in effect reversing the onus of proof. [100]

12. [129]

    The disclosure by B to A on 20 February 2011 resulted in an interview between B, a community services worker and a police officer on 28 February 2011. As will be seen, on that occasion, B’s evidence oscillated between statements that Mr Bird had kissed her with an open mouth and simply that he had tried to do so. It is necessary to set that evidence out at some length: [101]

13. [130]

    Almost eight months later, on 10 August 2011, during a session with A and B at the Sydney Children’s Hospital CPU, Ms Ly recorded the following: [102]

14. [131]

    At the next session, one week later, Ms Ly’s notes recorded that: [103]

15. [132]

    The next session with Ms Ly was held on 24 August 2011 [104] and is important in relation to the allegation that Mr Bird had pulled B’s pants down (which is discussed further at [140]–[149] below). However, it did not record any further detail about the kissing.

16. [133]

    On 14 September 2011, B said for the first time that Mr Bird had followed her to the shed to kiss her, whereas her earlier disclosures had placed the kissing on the blue chair near the sandpit. This was the same occasion on which B said that she had tricked A and Ms Ly in relation to her claim that Mr Bird had pulled down her pants.

17. [134]

    In the 13 January 2012 JIRT interview (see [122(19)] above), B accepted that Mr Bird had kissed her only once, whereas her earlier disclosures were to the effect that he had kissed her “lots of times”.

18. [135]

    The following observations may be made:

    1. (1)

       A’s evidence of Mr Bird kissing B on her forehead on 13 May 2009 is of little or no significance in relation to the repeated open-mouth kissing allegation and finding. It was far removed in time and innocuous, even if it might be thought to be inappropriate. It would not be considered sexual in any way. The only evidence in support of that event was from A, whose reliability as a witness was doubted by the primary judge (see [150]–[151] below);

    2. (2)

       no suggestion of kissing of any kind was made in B’s first interview on 12 November 2010 nor in a further assessment by a social worker on 5 January 2011;

    3. (3)

       B’s first suggestion that she was kissed with an open mouth related to kissing by “Nat” and not Mr Bird;

    4. (4)

       B’s subsequent evidence oscillated between being kissed on the lips by Mr Bird, and Mr Bird trying to do so;

    5. (5)

       albeit in relation to the “pulling down pants” allegation, B volunteered that she had in fact made this up and that she had tricked A and the social worker, Ms Ly. In the same session, more than 10 months after the first interview, B suggested that Mr Bird had followed her to the shed to kiss her on the lips, where previously she had stated that the kissing occurred near the sandpit or on the blue chair at Footprints; and

    6. (6)

       there is a further inconsistency in the evidence as to whether Mr Bird had kissed B once or “lots of times”.

19. [136]

    Taking all of the above evidence together, B’s untested and untestable allegations of being repeatedly kissed on the mouth by Mr Bird cannot, by themselves, justify the finding made by the primary judge. Nor were they supported by the tendency evidence relied upon or any admissions by Mr Bird.

20. [137]

    Contrary to the primary judge’s conclusion, Mr Bird simply did not make any admission to kissing either Child 1 or the children generally, still less kissing them with an open mouth. Also to be noted in this regard was unchallenged evidence that, at least when in the open area where it was suggested that the assaults occurred, Mr Bird was visible to other staff at Footprints. Thus, Ms Emma Jones, who commenced work at Footprints around 2009 and remained there until 2011, gave unchallenged evidence as follows: [105]

21. [138]

    To similar effect, Ms Kasey Peterson, who worked at Footprints as a childcare educator between 2005 and 2012, gave the following evidence in respect of which she was not challenged: [106]

22. [139]

    The primary judge’s finding that Mr Bird had repeatedly kissed B on the lips with an open mouth was not justified.

23. [140]

    The first disclosure that Mr Bird had pulled down B’s pants was made, according to A’s evidence, in a conversation with B on 2 March 2011. B had not mentioned this in any of her previous interviews, conversations or assessments, including: at the Sutherland Community Services Centre on 12 November 2010; with a child and family social worker on 5 January 2011; with her mother on 20 February 2011 (which was the recorded conversation; see [127] above); and with police in the JIRT on 28 February 2011.

24. [141]

    The conversation between A and B on 2 March 2011, according to A’s evidence, was as follows: [107]

25. [142]

    This account, although appearing in A’s Evidentiary Statement made many years after the events in question, accorded with a statement she made to police on 4 March 2011, which was in evidence as an annexure to her Statement. [108] B does not appear to have been interviewed further by the police prior to Mr Bird being charged with offences relating to her on 5 May 2011. Indeed she was not interviewed by the police again until January 2012.

26. [143]

    At neither of the sessions with Ms Ly on 10 and 17 August 2011 did B make any reference to the pulling down of her pants by Mr Bird. Ms Ly’s notes of the session on 24 August 2011, however, are of some significance. [109] They record the following during a part of the session in which only A (and not B) participated: [110]

27. [144]

    These notes do not reveal how long after 2 March 2011 that B had told her mother that Mr Bird had not pulled her pants and underpants down. According to Ms Ly’s notes, this issue was not the subject of any discussion with B during that part of the session on 24 August 2011 when she was present.

28. [145]

    A further session with Ms Ly, held on 14 September 2011, is also of significance to the pulling down pants allegation. Ms Ly’s notes record the following: [111]

29. [146]

    The primary judge held that: [112]

30. [147]

    Given our conclusions in relation to her Honour’s unwarranted findings in relation to Mr Bird’s “admissions”, and the wrongful admission of Child 1’s evidence, this effectively contingent finding by the primary judge cannot stand. It reflects the fact that B’s evidence in support of the pulling down pants allegation was brittle and of itself insufficiently reliable to meet the degree of satisfaction required by s 140(2) of the Evidence Act in relation to such a serious allegation.

31. [148]

    In our respectful view, the evidence of B as to the pulling down pants allegation was so unreliable and insecure that, even if her Honour had not erred in relation to Mr Bird’s admissions and the admission of Child 1’s tendency evidence, it could not have been accepted. It emerged late but, more importantly, B had said on two separate occasions that the relevant conduct did not happen [113] and, on the latter occasion, that she was “tricking” A and Ms Ly.

32. [149]

    Nor was B’s evidence about open-mouth kissing or having her pants pulled down supported by the evidence of D or Child 2. Neither gave evidence of any such conduct of Mr Bird, and the evidence of those two children did not strongly suggest the likelihood that Mr Bird had repeatedly open-mouthed kissed B or pulled her pants down. Furthermore, Mr Bird made no admissions to “kissing the children”, let alone kissing them with an open mouth: see [80]–[106] above. Notwithstanding this, the primary judge drew, amongst other matters, upon “Mr Bird’s admissions” to support her conclusion that “Mr Bird’s denials of having kissed B cannot be accepted”. [114] Her Honour similarly and without justification relied upon “all that Mr Bird admitted” to support an acceptance of B’s claim that he had pulled down her pants. [115]

33. [150]

    Nor did the evidence of A, B’s mother, support the primary judge’s findings that B’s disclosures had been made out. The primary judge expressed the opinion that “there is a question as to the reliability of aspects of A’s evidence” and 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, [has] to be approached with some care”. [116] This opinion was based upon a number of matters, including that:

34. [151]

    It is also to be recalled that A’s evidence was given many years after the events in question.

35. [152]

    It follows from the above analysis that, for a number of reasons, the appeals against the primary judge’s findings in favour of B must succeed.

36. [153]

    The foundational allegations were not reliably established by B’s disclosures, and this deficit of reliability was not overcome by the other matters relied upon by the primary judge. This would have been so even if the admission or characterisation of some or all of those matters had not themselves been vitiated by error.

37. [154]

    The consequence is that B’s claim must be dismissed. It also follows that A’s claim must be dismissed, as it depended upon B’s claim succeeding.

Did the primary judge err in her conclusion that the disclosures by D were made out and thus that Mr Bird committed assault, battery, sexual assault and/or trespass on D?

1. [155]

   It will be recalled that the primary judge accepted as true disclosures by D that:

   1. (1)

      Mr Bird tickled her on her underwear; [119]

   2. (2)

      Mr Bird touched her on her tummy; [120] and

   3. (3)

      she did not like it when Mr Bird tickled her. [121]

2. [156]

   It will also be recalled that the primary judge reached these conclusions not solely by reference to D’s own evidence as it emerged from an interview with police on 9 February 2011, but as a result of the combination of that evidence with the tendency evidence of Child 1, Child 2, B, Mr Bird’s admissions and the evidence of D’s mother (C) as to what she had observed about D’s behaviour. [122]

3. [157]

   Of these additional sources of tendency evidence relied upon by the primary judge, it has already been established that three, namely the evidence of Child 1, the disclosures made by B and Mr Bird’s so-called “admissions”, were, for differing reasons, not properly able to be relied upon in support of D’s case. Given the way in which the primary judge expressed her conclusions on liability, namely that it was a combination of D’s disclosures together with the other evidence her Honour referred to, [123] the appeals in respect of the verdicts in favour of D and her mother C must also be upheld.

4. [158]

   Whether the findings of liability could be sustained by reference solely to D’s disclosures and the evidence of Child 2 (assuming that it alone was capable of establishing a tendency of the kind alleged, and did so), coupled with the evidence of C as to changes in D’s behaviour, and, if so, whether C and D’s claims should be remitted for a new trial, are difficult questions. They first require a consideration of the nature of D’s disclosures and then whether the evidence of Child 2 supported the tendency alleged so as to be available as a source of support for D’s disclosures.

5. [159]

   The disclosures made by D in respect of Mr Bird’s conduct are derived from a variety of sources in evidence before the primary judge, including D’s interview with a police officer at the Kogarah branch of JIRT on 9 February 2011, a witness statement given to a police officer by C on 20 April 2011 and the Evidentiary Statement of C dated 14 March 2019 and relied upon in the proceedings at first instance.

6. [160]

   As noted above at [120], the primary judge came to consider the disclosures of both B and D having recognised that: the children were “very young to have fabricated their disclosures”; those disclosures were accepted by their respective mothers as truthful; “a number of other children made disclosures” absent the suggestion of planned concoction; and the behaviour of B and D subsequently changed, supposedly in a manner “consistent with having endured traumatic events”. [124]

7. [161]

   The relevant sequence and content of disclosures concerning D was as follows: [125]

   1. (1)

      During or around August 2010, D told her mother that she did not like attending Footprints as “people hurt [her] there”; [126]

   2. (2)

      on 15 November 2010, C visited the offices of the Department of Community Services with D. D made no disclosures at her interview on that day in relation to Mr Bird; [127]

   3. (3)

      on or around 27 January 2011, D disclosed to C, prompted by the question “where does Rod tickle you”, that Mr Bird “tickles me all over”. C’s evidence was that D, when asked to show her where, tickled herself on her underwear; [128]

   4. (4)

      notes on a Child Protection Form of a conversation with C on 3 February 2011, in relation to the disclosure by D to C in late January, recorded that D’s “behaviour has changed over past couple of months – grandmother’s passed away and parents separated; [129]

   5. (5)

      on 9 February 2011, D said to C, when prompted in relation to the disclosure referred to in (3) above, that “when we did tickling on undies, no one saw us”; [130]

   6. (6)

      later that same day, C attended the Kogarah branch of JIRT and made a statement containing details of D’s disclosures regarding Mr Bird’s conduct to that point in time; [131]

   7. (7)

      D also was interviewed by a police officer. [132] The relevant portion of the interview was as follows: [133]

   8. (8)

      in late February 2011, C’s evidence was that she recalled the following exchange with D: [134]

   9. (9)

      On 27 March 2011, C gave evidence of the following exchange with D: [135]

   10. (10)

       During or around April–May 2011 (being “[a] few months after [D’s] first disclosure about [Mr Bird]” on 27 January 2011), D disclosed to C that “[s]ometimes [Mr Bird] would tickle [another child] at the same time that he tickled me, because we were all best friends” and that “[Mr Bird] would let [a third child] watch”; [136]

   11. (11)

       on 20 April 2011, C made a further statement to police at the Kogarah branch of JIRT which contained details of D’s disclosure that Mr Bird had “tickled her on her underpants lots”; [137]

   12. (12)

       around 23 August 2011, D expressed to C that she missed attending Footprints but that “because of [Mr Bird], I can’t go there”; [138]

   13. (13)

       on 10 October 2011, C and D attended a counselling session with a senior social worker at the South Eastern Sydney Local Health District CPU. During this session, according to the notes, D expressed her concern that the principal at her new school “would be like [Mr Bird]”; [139] and

   14. (14)

       at some unspecified point in 2011, C gave evidence that D burst into tears and told C that she did “not want to go to school because I think the principal will be like him”. C took “him” to be a reference to Mr Bird. [140]

8. [162]

   As set out above at [95], the primary judge’s conclusion that D’s disclosures of 27 January 2011, in relation to Mr Bird tickling her on her underpants, were made out is reflected in PJ [407(6)], as follows:

9. [163]

   Thus, Child 1’s evidence should not have been taken into account. Secondly, Mr Bird had not admitted that he had put his hand down the front of Child 1’s pants. Thirdly, B’s evidence did not come up to proof in its own right, for the reasons given at [136] and [148] above, and should not have been used as evidence of tendency. It is impossible to “unscramble the egg” in respect of the primary judge’s conclusion that D’s disclosures about being tickled on her underwear were made out.

10. [164]

    In addition, immediately before the passage set out at [162] above, the primary judge had drawn on Associate Professor Quadrio’s evidence, stating that “Associate Professor Quadrio also considered that D[’]s behaviour was highly suggestive of a child who had been traumatised, her behaviour strongly suggestive, but not specific to sexual abuse”. [141] The primary judge’s reliance on Associate Professor Quadrio’s evidence at this part of the judgment was at odds with the s 136 limitation that her Honour had placed on that evidence, confining it to the damages case: see [31] above.

11. [165]

    It remains necessary to assess the evidence of Child 2, which was also relied upon as tendency evidence, in order to consider whether it was capable of supporting D’s case.

12. [166]

    At PJ [377]–[393], the primary judge summarised the disclosures of Mr Bird’s conduct as made by Child 2, which emerged from documents in evidence including: an Evidentiary Statement of Child 2’s mother dated 13 August 2019 and tendered in the proceedings at first instance; [142] a Supplementary Evidentiary Statement of Child 2’s mother dated 14 August 2020; [143] a witness statement given to police by Child 2’s mother on 22 November 2010; [144] a second police witness statement made by Child 2’s mother on 15 December 2010; [145] and the records of three interviews with Child 2 at the Kogarah branch of JIRT, conducted on 22 November 2010, [146] 15 December 2010 [147] and 11 January 2012 [148] respectively.

13. [167]

    The relevant sequence and content of disclosures concerning Child 2 was as follows:

    1. (1)

       During August or September 2010, Child 2, then aged approximately five and a half years, disclosed to her mother that Mr Bird had touched himself inappropriately in her presence at Footprints. [149] No other disclosure as to Mr Bird touching Child 2 or any other child was made at that time;

    2. (2)

       around 17 November 2010, Child 2 was interviewed by two social workers at the Sutherland Community Services Centre, following which her mother was told that “everything was fine”; [150]

    3. (3)

       on 22 November 2010, Child 2 was interviewed by a police officer with JIRT at Kogarah. She said that she would sometimes sit on Mr Bird’s lap, but no disclosures were made regarding inappropriate conduct. [151] Relevant extracts of this interview include the following: [152]

    4. (4)

       On the same day, Child 2’s mother made a statement to police describing Child 2’s disclosure of August or September 2010, namely that Mr Bird had touched himself inappropriately in the presence of Child 2; [153]

    5. (5)

       on 12 December 2010, Child 2 disclosed to her mother that Mr Bird had touched her breasts and genitals under her dress while she was sitting on his lap at Footprints. When queried as to why she had not raised this with the police officer during her interview on 22 November 2010, Child 2 replied “I don’t know. I just forgot”. When queried as to whether Mr Bird had touched other children inappropriately, Child 2 replied “[n]o, he only does it to me”; [154]

    6. (6)

       on 15 December 2010, Child 2 was interviewed by a police officer for a second time and, consistent with her disclosure of 12 December 2010, indicated that Mr Bird had touched her “private area” while she sat on his lap, and continued to do so even after she had told him to stop. When queried by the police officer as to why she had not raised this during the first interview, Child 2 stated that “she just forgot” and “just remembered” after her mother asked her whether “anybody else touches her [chest]”; [155]

    7. (7)

       also on 15 December 2010, Child 2’s mother made a further statement to police describing Child 2’s disclosures of 12 December 2010, including that Mr Bird had touched her breasts and genitals; [156] and

    8. (8)

       on 11 January 2012, Child 2 was again interviewed by a police officer with JIRT at Kogarah, during which she repeated her earlier disclosure that Mr Bird had touched her genitals with his hand, having viewed audio-visual recordings of her previous two interviews. This recollection followed the officer asking the following questions: [157]

14. [168]

    The primary judge found that Mr Bird assaulted Child 2 by touching her in the ways she disclosed to police in the second and third police interviews (albeit not in the first) and to her mother. [159] In essence, the disclosures were to the effect that Mr Bird touched Child 2 on her breasts and genitals, under her clothing, when she was sitting on his lap at Footprints.

15. [169]

    The primary judge’s reasoning to this conclusion was as follows: [160]

16. [170]

    This reasoning has a number of important features. First, the primary judge’s reliance on Mr Bird’s admissions is again to the fore. In this instance they are deployed to overcome the prejudice occasioned by the inability to cross-examine Child 2. But the admissions did not have the forensic significance the primary judge attributed to them, for the reasons we have already given. [161]

17. [171]

    Secondly, for Mr Bird’s admissions to be relied upon as tendency evidence, the primary judge was required to be satisfied that they not only supported the tendency asserted but did so “to a significant extent” by lending “strong support” to the likelihood of a fact in issue, namely that Mr Bird had tickled D on her underwear. [162] It was not a question of the “acts which [Mr Bird] volunteered” not being “inconsistent” with the disclosures of Child 2, but whether those acts strongly supported the alleged tendency. The only admission made by Mr Bird concerning the touching of genitalia was what he described as the possible but inadvertent and unintentional touching of Child 1 on the vagina when picking her up. [163] This could not have amounted to a “tendency” strongly supporting the material fact in issue. What was said by Mr Bird in his police interview on 11 November 2010 was entirely inconsistent with the allegation made by Child 2 and the tendency alleged.

18. [172]

    As submitted by Mr Hooke and Mr Chiu, for Mr Bird, the primary judge: [164]

19. [173]

    Thirdly, the mode of reasoning employed by the primary judge was, with respect, unorthodox, especially in a case involving the application of Briginshaw principles and s 140(2) of the Evidence Act. What was required was a careful assessment of the strengths and weaknesses of each part of the evidence bearing upon the likelihood of the events having occurred, and a weighing up the whole of the evidence to determine where the probabilities lay. As was submitted by the Appellants, this required due recognition of the inability to test the evidence, the fact that it was given by a child of five years of age, the extent to which leading questions may have suggested answers, an assessment of internal inconsistencies in the evidence and the absence of any disclosure by Child 2 to her mother at the time of the statement that Mr Bird had touched himself inappropriately, and in the first police interview on 22 November 2010. Instead, the approach adopted by the primary judge appeared to start from the premise that Child 2’s disclosures were true, and then to ask whether each individual criticism of the evidence in support of the allegations was sufficient to displace that premise. Such an approach in effect reverses the onus of proof. [165]

20. [174]

    No doubt the matters referred to by the primary judge supported the possibility that Child 2 may have been assaulted in the ways she disclosed to her mother and claimed in her second and third interviews with the police, but the reasoning process employed by the primary judge to reach the conclusion that those disclosures had been established on the balance of probabilities was, with respect, flawed in multiple respects. Those flaws in turn infected the use that could reliably be made of Child 2’s evidence as strongly supporting the tendency relied upon to establish or support Child D’s disclosures.

21. [175]

    It follows that the reasoning employed by the primary judge leading to the acceptance of Child 2’s evidence as demonstrating the tendency alleged in respect of Mr Bird was flawed. It was not supported by Mr Bird’s admissions nor the evidence of Child 1 or B.

22. [176]

    In Hughes at [41], it was noted that the assessment of the significant probative value of tendency evidence involves the consideration of two “interrelated but separate” matters, being first, the extent to which the evidence strongly supports proof of the tendency asserted; and second, the extent to which that tendency strongly supports the proof of a material fact in issue. [166] This requires the clear identification of the tendency asserted, then an assessment of whether each piece of tendency evidence, considered both individually and cumulatively, supports the asserted tendency, and then whether that tendency makes more likely, by strongly supporting, the underlying allegation.

23. [177]

    An important distinction must be drawn between the admissibility of tendency evidence (where the evidence must be taken at its highest) [167] and the use of that tendency evidence. [168] Part of the assessment as to whether the proposed tendency evidence supports the alleged tendency concerns whether the tendency evidence itself should be accepted as having “significant probative value”. In this case, Ms Clancy and Little Pigeon emphasised the fact that the corpus of tendency evidence comprised “four hearsay accounts, containing unresolvable inconsistencies being used to bolster the probative value of each other hearsay account”. [169]

24. [178]

    We have difficulty in accepting as made good Child 2’s disclosures in the sense that we do not consider that they can be sustained to the Briginshaw standard. Whilst it may be accepted that Child 2 made disclosures to her mother who was not cross-examined, the fact that Child 2 made no reference to the inappropriate touching of her at the time of her initial disclosure to her mother in August or September 2010 nor in her initial interview with the police (see [167(1) and (3)] above) undermines the subsequent disclosures. The evidence from the interview of 22 November 2010 is inconsistent with later disclosures. This inconsistency was reinforced by the inability to test the evidence of Child 2. Moreover, the evidence of B and Child 1 was not available to support it by way of tendency nor were any of Mr Bird’s “admissions”.

25. [179]

    This being the case, Child 2’s evidence was an unreliable basis for supporting the tendency asserted in support of the allegations made on behalf of D, although it may be accepted that, had it been sufficiently reliable, it would have been capable of establishing the tendency asserted.

Taking stock

1. [180]

   A consequence of our conclusion in the previous paragraph in relation to Child 2’s evidence is that D’s claim is left unsupported by any tendency evidence (including as derived from the so-called “admissions”). There is no direct evidence of the alleged assaults. The only direct evidence of D’s disclosures is that given in her interview with the police on 9 February 2011 (see [161(7)] above). In that interview, she was asked direct questions as to whether anyone else was allowed to or had touched her on her “wizzie” other than her mother, father and brother. Nobody else was indicated. D was then prompted by the police officer as follows:

2. [181]

   What one is left with, therefore, are:

3. [182]

   Upon an appeal by way of rehearing, the appellate court, having found error, should (if it can) resolve the issue, in order to spare the parties and the community the economic and emotional costs of a re-trial. If resolution of the issue depends on, or may be affected by, an assessment of Mr Bird’s credit and/or the course of his evidence, we cannot do so. In this context, the primary judge’s assessment of Mr Bird’s lack of credit cannot be drawn upon because it was vitiated by her Honour’s erroneous characterisation of the nature and extent of Mr Bird’s “admissions” in the police interview, as well as the significance attached to the breach of undertaking considered at [49]–[53] above, which her Honour indicated affected the assessment of Mr Bird’s credit.

4. [183]

   A majority of the Court considers that there must be a re-trial of C and D’s claims, and that it would not be satisfactory simply to ignore Mr Bird’s denials and then ask whether, on what remains of the evidence in support of D’s claim (see [181(a)] above), the claims of C and D could be established to the Briginshaw standard. C and D are entitled to test Mr Bird’s evidence, to make submissions as to his credit and to seek to obtain admissions from him by way of cross-examination, if he gives evidence. None of that can occur in a rehearing in this Court. The course of Mr Bird’s evidence (and whether he is accepted as a witness of truth) may also affect whether D can make out a case for exemplary damages, if she were otherwise to succeed on liability.

5. [184]

   For these reasons, the question of whether Mr Bird assaulted D in the manner alleged (and C’s related claim) must be remitted to be determined by a judge other than the primary judge. The parties may well consider it desirable to explore resolution of this matter by way of mediation, in light of our findings (including as to damages as considered below), before embarking on any re-trial.

Vicarious liability

1. [185]

   Our conclusion that the primary judge’s findings must be set aside means that it is strictly not necessary to deal with this aspect of the appeal but, to the extent that the primary judge held that both Ms Clancy and Little Pigeon were liable for the intentional torts committed by Mr Bird, as Mr Barry for the Respondents contended that she did, that conclusion cannot stand.

2. [186]

   In addition to the direct negligence/breach of contract case pleaded against Ms Clancy and Little Pigeon, the Plaintiffs also pleaded that both Ms Clancy and Little Pigeon were vicariously liable for Mr Bird’s wrongs (strictly his acts). These allegations were denied by Ms Clancy and Little Pigeon in their defences. [170]

3. [187]

   It is not in dispute that her Honour correctly referred to the relevant principles as to whether a wrongdoer is truly an employee (at PJ [426]), and the test for vicarious liability of an employer for the intentional wrongful acts of an employee (at PJ [449]).

4. [188]

   After analysing the totality of the relationship between Little Pigeon and Mr Bird, consistent with Hollis v Vabu Pty Ltd (2001) 207 CLR 21; [2001] HCA 44 at [43]–[45], her Honour found that Mr Bird was an employee, even though he was not paid wages for this work and was represented to be a volunteer. [171] There is no challenge to this finding. [172]

5. [189]

   On the issue of vicarious liability, her Honour said that there was no issue that both Little Pigeon and Ms Clancy could be vicariously liable for Mr Bird if he was found to have been an employee (at PJ [448]). After referring to the joint judgment in Prince Alfred College Incorporated v ADC (2016) 258 CLR 134; [2016] HCA 37 (French CJ, Kiefel, Bell, Keane and Nettle JJ), which considered whether an act by an employee was in the course of employment, where the act was a criminal or otherwise intentionally wrongful act, her Honour proceeded to address the case against Little Pigeon. In finding that Little Pigeon was vicariously liable for Mr Bird’s conduct, her Honour summarised her reasons at PJ [450]:

6. [190]

   Although there was no express finding that Ms Clancy was vicariously liable for Mr Bird’s conduct, Ms Clancy and Little Pigeon contended that the primary judge erred in so finding (ground 12). The premise of this submission is that her Honour’s references to dual vicarious liability not being in issue, the roles Ms Clancy gave Mr Bird (PJ [451]) and that both Little Pigeon and Ms Clancy created and enhanced the risk of the abuse that materialised, [173] gives rise to a doubt whether such a finding may have been made against Ms Clancy.

7. [191]

   Counsel for the Respondents submitted that her Honour made such a finding and the reason why there was no issue below as to dual vicarious liability was because Ms Clancy “as licensee of the premises had both the power and the duty to control what Mr Bird did”. [174] According to the submission, Ms Clancy had a coextensive vicarious liability with Little Pigeon because Ms Clancy “as the licensee and authorised supervisor of the centre … was able to exert the same level of control as Mr Bird’s employer, namely the centre”. [175] The Respondents say that the “just outcome” must be that of dual vicarious liability. [176]

8. [192]

   The Respondents’ submissions misstated the pleadings, the way the Plaintiffs’ case was run at trial, and the evidence as to who was the licensee of the centre.

9. [193]

   As to the pleadings, the parties joined issue on the Plaintiffs’ claim that Mr Bird was an employee of Ms Clancy and Little Pigeon, and that they were both vicariously liable for his conduct. Moreover, contrary to the Respondents’ oral submissions, [177] the Plaintiffs’ case at trial was not run or argued on the basis that Ms Clancy was vicariously liable for Mr Bird’s conduct; the Plaintiffs’ written opening made plain that the vicarious liability case was only advanced against Little Pigeon. [178] This remained the Plaintiffs’ position in oral closing submissions, where no vicarious liability case was advanced against Ms Clancy. [179]

10. [194]

    As to the evidence, the authorised supervisor of the centre was initially Ms Annette Hillman, as confirmed in a letter from the Department of Community Services dated 30 September 2008. [180] Ms Hillman resigned as authorised supervisor on 8 October 2008. After a substantial delay, Little Pigeon made application on 1 May 2009 for approval of Ms Lissa Kasim as authorised supervisor; this application was approved by the Department by letter dated 31 August 2010. [181] In the period between 8 October 2008 and 31 August 2010, when there was no authorised supervisor, the functions of an authorised supervisor reverted to the licensee of the centre, pursuant to the terms of cl 104 of the Children’s Services Regulation 2004 (NSW) (the Regulation):

11. [195]

    The licensee of the centre was Little Pigeon, not Ms Clancy. Hence, in the absence of an authorised supervisor between 8 October 2008 and 31 August 2010, Little Pigeon had the functions of authorised supervisor during that period. To the extent that her Honour made findings as the roles Ms Clancy gave Mr Bird and that Little Pigeon and Ms Clancy both created and enhanced the risk of the abuse that materialised, Ms Clancy was acting in her capacity as a director of Little Pigeon, not as licensee, which she was not. The Respondents’ submissions that Ms Clancy had both the power and the duty to control what Mr Bird did, conflated the power and control exercised by Little Pigeon, as the licensee of the centre and the employer of Mr Bird, with Ms Clancy’s conduct on behalf of Little Pigeon in giving instructions to its employees, including Mr Bird.

12. [196]

    Although the statement by her Honour that the possibility of dual vicarious liability was not in issue was incorrect, that error was not material. On a fair reading of the reasons, including at PJ [451] and [458], her Honour did not find Ms Clancy vicariously liable for Mr Bird’s conduct.

13. [197]

    One further matter should be mentioned. At a level of principle, the Respondents’ contention as to dual vicarious liability is contrary to authority. Counsel for the Respondents did not refer to any Australian authority approving the principle of dual vicarious liability. Nor was any attempt made in submissions to cast doubt on the statements by the High Court inconsistent with the possibility of dual vicarious liability in Oceanic Crest Shipping Company v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626 at 641 (Gibbs CJ), 646 (Wilson J), 685 (Dawson J); [1986] HCA 34; compare the different position now taken in England: Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd [2006] QB 510; [2006] 2 WLR 428; [2005] 4 All ER 1181.

14. [198]

    The Respondents’ submission also ignored the statement in this Court that it is not possible for any court, other than the High Court, to adopt the theory of dual vicarious liability where two different persons had control over a tortfeasor: Day v The Ocean Beach Hotel Shellharbour Pty Ltd (2013) 85 NSWLR 335; [2013] NSWCA 250 at [25]–[33] (Leeming JA, Meagher and Emmett JJA agreeing) (Ocean Beach Hotel).

15. [199]

    Finally, and contrary to the Respondents’ submission seeking to distinguish Ocean Beach Hotel on the facts, the observations of Leeming JA in Ocean Beach Hotel at [33] are apposite to this case. Like in Ocean Beach Hotel, there is a well-established basis of vicarious liability in this case, being that of the employer (Little Pigeon) for the tortious conduct of its employee (Mr Bird) in the course of his employment, and there is no sound basis for imputing vicarious liability to another person, such as Ms Clancy, who did not have a contractual relationship with the wrongdoer, Mr Bird.

The liability of Ms Clancy and Little Pigeon

1. [200]

   The following proceeds on the assumption, contrary to the view expressed above, that it was established that Mr Bird committed the alleged assaults.

2. [201]

   On the pleadings, it was admitted that Little Pigeon and Ms Clancy owed a duty of care to B and D, though not to A and C. [182]

3. [202]

   In circumstances where Little Pigeon was the proprietor and licensee of Footprints, and Ms Clancy was merely its majority shareholder and director, it is not self-evident why Ms Clancy (as distinct from Little Pigeon) would owe that duty. It may be that she was fulfilling the duty of the “authorised supervisor”, at least during the “interregnum” between the departure of Ms Hillman on 8 October 2008, [183] and the appointment of Ms Kasim on 31 August 2010 (see [194]–[195] below). However, that Ms Clancy owed a duty of care to B and D was not in issue at the trial.

4. [203]

   A and B’s Amended Statement of Claim pleaded that Ms Clancy was “responsible for the running of the Centre, including but not limited to staffing, administration, supervision, as well as developing and overseeing the policies and procedures under which the Centre operated”. [184] That allegation was admitted. [185] A and B also pleaded that the Ms Clancy and Little Pigeon owed a duty of care “that they would not cause reasonably foreseeable harm to [A] and/or [B] through any act or omissions on their part whilst [B] was in attendance at the Centre”. [186] By their Defence, Ms Clancy and Little Pigeon admitted that they owed “a duty of care to avoid reasonably foreseeable harm to [B] while [B] was in attendance at the Centre”, and otherwise denied the alleged duty of care. [187] Ms Clancy’s alleged and admitted duty of care thus arose not from an interim role as authorised supervisor of Footprints, but from her general oversight and superintendence of the Centre.

5. [204]

   The primary judge found that the duty extended to A and C, on the basis that, pursuant to s 32 of the Civil Liability Act 2002 (NSW), it was foreseeable that a person of normal fortitude, in their circumstances, might suffer a recognised psychiatric illness if reasonable care was not taken to prevent their daughter from being sexually abused. [188]

6. [205]

   The applicable statutory requirements governing the conduct of a childcare centre, including the employment and supervision of staff, were to be found in the Regulation (see [194] above). Clause 51 concerned the employment of “primary contact staff”, defined in the Dictionary to the Regulation as follows:

7. [206]

   Mr Bird was not a member of Footprints’ “primary contact staff”. Instead, it was argued that Mr Bird was properly characterised as a “volunteer”, the use of whom was regulated by cl 57, as follows:

8. [207]

   The primary judge held that cl 57 required a volunteer not merely to be “supervised” but to be “accompanied” by primary contact staff when in the presence of children, [189] such that being “supervised” did not necessarily equate to being “accompanied”. [190] Her Honour held that the use of the word “accompanied” in cl 57 required a member of the primary contact staff always to be together with the volunteer when the latter was in the presence of children, and that this was not satisfied by a primary contact staff member merely being in the vicinity of a volunteer. [191] Her Honour took the view that cl 57 required more than the “supervision” of Mr Bird when he was in the presence of children and, apparently, took the view that it required a primary contact staff member to be in his immediate presence:

9. [208]

   The primary judge gave content to the words “supervise” and “accompany” by reference to their definitions in the Macquarie Dictionary. “Supervise” is defined as “to oversee (a process, work, workers, etc) during execution or performance; superintend; have the oversight and direction of”. “Accompany” is defined as “to go in company with; join in action; to accompany a friend on a walk”. [192]

10. [209]

    The meaning of “accompany” in cl 57 is informed by the purpose of the provision, which is directed to the supervision and care of children, rather than the supervision of volunteers. The requirement that a volunteer be “accompanied” when in the presence of children is directed to ensuring that children are always under the supervision of a member of the primary contact staff, even if a volunteer is present, and are not left under the supervision of a volunteer alone. A volunteer alone cannot discharge the function of supervising children, and so must be accompanied by a member of the primary contact staff. Thus, when a volunteer is in the presence of children, a member of the primary contact staff must also be in their presence. This means no more than that children are not to be under the supervision of a volunteer alone. It does not mean that a primary contact staff member must be “alongside” the volunteer.

11. [210]

    It follows that the primary judge erred in holding that the requirement that a volunteer be “accompanied” by a member of the primary contact staff, when in the presence of children, involved more than that a member of the primary contact staff also be in the presence of the children.

12. [211]

    The primary judge concluded that there was in reality no supervision of Mr Bird’s contact with children, and that the mere presence of other staff members in his vicinity was not only insufficient to deter him from acting, but insufficient for his acts to be observed and reported. [193] Her Honour said: [194]

13. [212]

    There was a substantial body of evidence of the policies in place at Footprints, including the arrangements for supervision, and the role of Mr Bird. [195] This evidence established that Little Pigeon had in place policies and staff ratios substantially in compliance with, if not in excess of, the regulatory requirements. [196]

14. [213]

    Relevantly, the evidence established that volunteers were not permitted to be unaccompanied, as contemplated by cl 57 of the Regulation, when having contact with children. It was not put to the Appellants’ witnesses that these policies, though promulgated, were not in operation.

15. [214]

    In particular, there was substantial evidence to the effect that it was known and understood by the staff of Little Pigeon that Mr Bird was a volunteer and thus was not to be left alone with children, and that the arrangements for the supervision of children by primary contact staff were such that Mr Bird was never in fact left alone with children. There was a significant body of evidence, much of it unchallenged, as to the visibility and supervision of Mr Bird, in particular from Ms Peterson (who was not cross-examined on this subject matter), [197] Ms Jones (who was not cross-examined), [198] and Ms Kasim (who also was not cross-examined on this subject matter), [199] as well as Ms Clancy and Mr Bird.

16. [215]

    The primary judge noted that the primary contact staff described the L-shaped outdoor area “where Mr Bird and other staff were stationed and could always see each other”, and that many photographs showed Mr Bird, children and other staff inside and outside at Footprints. [200] But, according to her Honour: [201]

17. [216]

    The primary judge concluded that the policies described at [212]–[214] above could not have been in operation, on the basis that, if they had been, it would not have been possible for Mr Bird repeatedly to have acted in the various inappropriate ways that he was said to have admitted to police, without at least some of them being reported. [202] Her Honour said: [203]

18. [217]

    Later, her Honour concluded: [204]

19. [218]

    Thus, her Honour’s reasoning was essentially that, although the evidence about the policies and their application was not challenged, that they could not have been in effective operation was demonstrated by their failure to result in the reporting of Mr Bird’s various “inappropriate” acts, whether he admitted or denied them. In particular, this was said to be supported by Mr Bird’s “admission” that girls sometimes “flashed” at him, [205] considered against Ms Clancy’s evidence that no-one ever mentioned to her that children had showed their private parts; [206] that she would have asked Mr Bird to leave Footprints had a staff member told her that he was inappropriately touching a child; [207] that it was not reported to her that Mr Bird had patted children on the bottom as he had admitted to police; [208] and that she did not ensure her father’s completion of child protection training. [209]

20. [219]

    However, the theory that conduct admitted by Mr Bird and involving children was not observed and reported to the Department of Community Services as it “should have been” [210] appears to be founded not only upon the primary judge’s characterisation of what Mr Bird had in fact admitted, but also on opinions as to what was reportable. The mandatory reporting obligation is contained in s 27 of the Children and Young Persons (Care and Protection) Act 1998 (NSW), and is engaged when an applicable person (i.e. a primary contact staff member) “has reasonable grounds to suspect that a child is at risk of significant harm”. Ms Clancy quite reasonably disputed that patting a child on the bottom was necessarily “an overtly sexual kind of act” which she would have expected to be reported to her. [211] Certain types of acts which her Honour found ought to have been reported (i.e. patting a child on the bottom or a child “flashing” his or her private parts) were not reportable matters. Ms Clancy’s statement that she would have asked her father to leave Footprints had a staff member told her that he was inappropriately touching a child was plainly made in response to an insinuation of sexual misconduct, as she had earlier accepted that she encouraged him to have physical contact with the children at Footprints, including by giving them massages on their shoulders. [212]

21. [220]

    Clause 51(4) of the Regulation requires that members of the primary contact staff “understand their responsibilities under the child protection legislation”, but there is no such requirement for volunteers. Little Pigeon’s Students and Volunteers Policy did not require that volunteers undergo such training. [213] The Child Protection Policy, which required staff to have child protection training, applied to “staff”. Consistent with the Regulation, this should be taken to be a reference to staff as defined therein — being “persons employed for remuneration … who are engaged in the provision of the service” — and not to volunteers. [214]

22. [221]

    Thus, only the alleged sexual assaults, denied by Mr Bird, provided a basis for concluding that, despite the substantial evidence of their application, the policies were not in operation. The primary judge referred to evidence that the system of supervision was not working properly, [215] including minutes of staff meetings held between November 2008 and August 2010, which were said to be suggestive of flaws in compliance with the system from time to time. Her Honour observed that these minutes shed light on how, despite Little Pigeon’s policies and procedures, it was possible that the acts found to have been admitted by Mr Bird were not observed, and concluded: [216]

23. [222]

    It is inherent in the Respondents’ submission that proper supervision of the children involved sufficiently close surveillance of Mr Bird so as to detect such assaults. However, assuming that those acts — involving touching a girl on her “private parts” over the exterior of her clothing — were performed, it does not follow that the children were not also under the supervision of a member of the primary contact staff at the relevant time. The staff may not have noticed those acts, due to their transient and potentially ambiguous character. On another view, the staff meeting minutes describe a licensee using its very best endeavours to have its staff comply with rigorous and stringent policies.

24. [223]

    The primary judge’s conclusion that “there was in reality no supervision of Mr Bird’s contact with children”, [217] is not supportable, having regard to the substantial body of unchallenged evidence of the policies and procedures of Little Pigeon, including the arrangements for supervision when Mr Bird was in the presence of children. It cannot be inferred from the non-reporting of his admitted interactions with children that the policies and procedures were not in operation.

25. [224]

    Insofar as the primary judge held that Ms Clancy and Little Pigeon acted in breach of their duty of care, the appeals should be upheld and the claims of each of the Respondents in negligence, brought directly against Ms Clancy and Little Pigeon, should be dismissed.

Overview of damages awarded

1. [225]

   Having found that Ms Clancy, Little Pigeon and Mr Bird were liable to A in tort, and that Ms Clancy and Little Pigeon were also liable for breach of contract, the primary judge awarded $1,008,378.55 in damages to A. The primary judge calculated this sum under various heads of damage, including (PJ [529]–[633]): non-economic loss for psychiatric injury; past out-of-pocket expenses; future out-of-pocket expenses; past economic loss; past superannuation; future economic loss and superannuation; past domestic assistance; and future domestic assistance.

2. [226]

   In respect of non-economic loss, the primary judge was satisfied on the body of concurrent expert medical evidence that A had developed post-traumatic stress disorder as a result of B’s disclosures about Mr Bird’s alleged assaults. At PJ [585], her Honour assessed the quantum of A’s non-economic loss in the sum of $158,000, accounting for the chronic nature of the psychiatric condition, A’s guarded prognosis, considerable progress in her pursuit of recovery and her vulnerability to relapse and further injury.

3. [227]

   The primary judge accepted the submission advanced by the Appellants that no more than 35% of a most extreme case (under s 16 of the Civil Liability Act) should be awarded, reflecting the outcome in Sorbello v South Western Sydney Local Health Network [2016] NSWSC 863. A’s damages for non-economic loss represented 30% of a most extreme case.

4. [228]

   No exemplary damages were awarded to A. The primary judge reasoned (at PJ [588]–[589]) that as B was the victim of the alleged assaults, the award of exemplary damages to A would create a risk of “double punishment”: Gray v Motor Accident Commission (1998) 196 CLR 1; [1998] HCA 70 at [43]–[49] (Gray).

5. [229]

   The nature and seriousness of A’s injury were held by the primary judge to warrant the award of the full amount of out-of-pocket expenses claimed, in the sum of $63,313.85. A was also awarded the full value of past economic loss as claimed, in the sum of $187,482.50. The primary judge held that, on the evidence, but for the negligence of Ms Clancy and Little Pigeon, and the conduct of Mr Bird, A would have completed her ongoing studies and returned to full time work. Consequently, A’s claim for $17,810.84 in damages, reflecting past superannuation, was also established.

6. [230]

   The primary judge then turned to consider the allowance to be made for any future economic loss suffered by A, in accordance with s 13 of the Civil Liability Act (PJ [598]–[604]). Her Honour considered that although A had not returned to full time work, this was not likely to persist for the remainder of her working life. This was weighed against the chronic nature of A’s psychiatric condition and her risk of relapse or exacerbation. In balancing these factors, as prescribed by Rabay v Bristow [2005] NSWCA 199 (Rabay) and Fegan by her tutor Rozenauers v Lane Cove House Pty Ltd [2007] NSWCA 88 at [27] (Fegan), the primary judge awarded $110,000 to A for future economic loss, including superannuation.

7. [231]

   A sought damages for past domestic assistance in the sum of $195,042.40, reflecting the value of assistance provided by carers and cleaners until February 2017. The primary judge relied heavily on a report prepared by an occupational therapist (Ms Lausch) for the purposes of the inquiry as to whether the domestic services received by A were reasonable and referable to her injury in accordance with s 15(2) of the Civil Liability Act. It was consequently held that A was entitled to the full sum claimed under this head of loss, as the report of the occupational therapist constituted sufficiently compelling evidence: Avopiling Pty Ltd v Bosevski (2018) 98 NSWLR 171; [2018] NSWCA 146 at [115]–[116]; cf, Gordon v Truong [2014] NSWCA 97; (2014) 66 MVR 241 at [30].

8. [232]

   The primary judge also relied upon Ms Lausch’s report for the purposes of awarding $258,030.40 in damages for future domestic assistance, calculated at a rate of $265.60/week for life. This was said to reflect an approach consistent with that set down by the High Court in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20.

9. [233]

   B was awarded damages in the total sum of $465,000 under the heads of non-economic loss for psychiatric injury; exemplary damages; and future out-of-pocket expenses, economic loss and superannuation: PJ [634]–[679]. The primary judge commenced the damages inquiry by reviewing two separate psychiatric reports in respect of B, the first of which was prepared in 2014 followed by the second in 2019. On the basis of these two reports, the primary judge concluded that B had suffered post-traumatic stress disorder as a result of the alleged assaults. Although this condition had since entered effective remission, B was held to be “vulnerable to relapse” (PJ [648]).

10. [234]

    In view of this ongoing vulnerability, the necessity of an allowance for aggravated damages in a case of this nature (Lamb v Cotogno (1987) 164 CLR 1; [1987] HCA 47 at [8] (Lamb); Gersbach v Gersbach [2018] NSWSC 1685), the pain and suffering caused by the assaults (Varmedja v Varmedja [2008] NSWCA 177 at [154]) and the gravity of Ms Clancy, Little Pigeon and Mr Bird’s breaches of their duties, the primary judge awarded $270,000 in damages for B’s non-economic loss.

11. [235]

    On the question of exemplary damages, the primary judge stated that “[a] more important case for the Court to express its own view about such conduct was argued to be difficult to imagine”: PJ [664]. Her Honour referred to the decision of the High Court in Gray at [31] as authority for the proposition that exemplary damages are “awarded to punish wrongdoers and to deter others from such conscious wrongdoing, in contumelious disregard of other’s rights”: PJ [667]. In view of this overarching principle, B was awarded exemplary damages in the amount of $70,000.

12. [236]

    Turning to the last of B’s heads of loss, namely, future out-of-pocket expenses and economic loss, the primary judge accepted the submission that the award of pecuniary buffers under these heads was necessary given that B was a child and the course of her future was a matter of speculation. Taking account of the risk of the re-emergence of B’s post-traumatic stress disorder pursuant to certain triggers, the primary judge awarded $25,000 for future out-of-pocket expenses and $100,000 for B’s future economic loss.

13. [237]

    C was awarded damages in the total sum of $508,677.71 under the heads of non-economic loss for psychiatric injury; past out-of-pocket expenses; future out-of-pocket expenses; past economic loss; past superannuation; and future economic loss and future superannuation: PJ [680]–[716].

14. [238]

    The primary judge received two expert psychiatric reports prepared in respect of C, both of which disclosed that she was suffering an adjustment disorder accompanied by depressive and anxious moods. As neither psychiatrist was able to identify evidence of pre-existing conditions or prior traumas, it was accepted that C’s conditions were the result of D’s disclosures regarding Mr Bird’s conduct. The key point of difference between the expert reports concerned C’s prospects for the future management of her condition.

15. [239]

    At PJ [696], the primary judge accepted the evidence of a Dr Allnutt, which indicated that C’s prognosis was guarded, such that her condition was at risk of exacerbation subject to certain triggers. When balanced against C’s pursuit of a return to full-time employment, the primary judge held that the evidence warranted an assessment of damages for non-economic loss in the sum of $96,000, representing 28% of a most extreme case under s 16 of the Civil Liability Act.

16. [240]

    For the same reasons as were given in respect of A, that is, to avoid the risk of “double punishment” (Gray at [43]–[49]), the primary judge declined to award exemplary damages to C: PJ [698].

17. [241]

    As to out-of-pocket expenses, both past and future, the primary judge accepted, without qualification, C’s claim for $78,172.71. The quantum of future out-of-pocket expenses was itemised as comprising psychology and psychiatry consultations for 12 months buffered by an allowance, on an as-needed basis, for the remainder of C’s life; quarterly consultations with a general practitioner for five years; and medication costs over that period.

18. [242]

    The primary judge did not make any further discounts to the amount as claimed in view of her satisfaction that C was likely to require ongoing psychological and psychiatric treatment for an indeterminate period.

19. [243]

    In respect of past economic loss, the primary judge relied upon the uncontested report of a forensic accountant, which calculated C’s accrued economic loss in the sum of $225,333.50. The Appellants contended that this figure ought to have been reduced to reflect extraneous financial stressors unrelated to D’s disclosures of Mr Bird’s conduct. Her Honour found no bases for such a reduction, instead concluding that, but for D’s disclosures, C’s annual income would have increased so as to found damages in the sum as claimed. In light of the sum of damages for past economic loss, $21,406.68 was awarded to C for past superannuation.

20. [244]

    The final head of loss under which C was awarded damages was future economic loss and superannuation. For the purposes of this inquiry, the primary judge had regard to C’s part-time work (since 2016) as a Senior Consultant assisting families dealing with trauma: PJ [686]. The Appellants argued that it followed from C’s evident capacity for gainful employment (as accepted by the primary judge at PJ [715]) that no future economic loss could be established. However, the primary judge rejected this argument (PJ [715]–[716]), accounting for the application of s 13 of the Civil Liability Act, and Rabay and Fegan (see [230] above), and held that C was entitled to $111,000 in damages for future economic loss and superannuation, in view of the nature of her ongoing work and the risk of exacerbated psychiatric injury that it posed, given its frequent encounter with family trauma.

21. [245]

    D was awarded damages in the total sum of $455,000 under the heads of non-economic loss for psychiatric injury; exemplary damages; and future out-of-pocket expenses, economic loss and superannuation: PJ [717]–[741].

22. [246]

    D was assessed by two psychiatrists in 2020 (at which time she was 13 years of age), each of whom prepared a report in respect of her condition. The psychiatrists were not called to give concurrent oral evidence. They agreed that D had developed a diagnosable (albeit unspecified) psychiatric disorder as a result of Mr Bird’s conduct, which was subject to the risk of exacerbation upon exposure to certain triggering stimuli. The psychiatrists also agreed that D did not display any symptoms of psychopathology at the time of her examination, such that she did not require any treatment.

23. [247]

    The primary judge acknowledged that although it was very difficult to assess the comparative seriousness of B and D’s psychiatric injuries, the evidence indicated that D had demonstrated significant resilience in her recovery, to the extent that there was “no immediate concern about her overall state of health”: PJ [729]. Having taken into account the necessity for a component of aggravated damages (Lamb at [8]), the primary judge awarded $260,000 to D for non-economic loss.

24. [248]

    In respect of exemplary damages, the primary judge awarded $70,000 to D for the same reasons as applied to B.

25. [249]

    The primary judge also applied the same considerations as her Honour had to B in determining that D was entitled to $25,000 for future out-of-pocket expenses and $100,000 for future economic loss and superannuation.

Attacks on various aspects of damages awarded

1. [250]

   Turning to the appeals against the damages awarded to each of the Respondents, our conclusion that not only should the appeals against the verdicts in favour of A and B succeed but that their claims should be dismissed means that it is not necessary to address discrete attacks made upon components of the award of damages to them, although it may be noted that, to the extent that B was awarded exemplary damages (in the sum of $70,000), the quantum of that award was inherently tied up with the primary judge’s assessment of the nature, extent and seriousness of Mr Bird’s wrongdoing. This aspect of B’s damages could not have been sustained even if the Court had been minded to remit A and B’s claims for a new trial, as opposed to dismissing the claims.

2. [251]

   There is utility in dealing with the specific attacks on the damages awarded to C and D given that, although those awards must be set aside, the Court considers that their claims should be remitted for re-trial. Dealing with aspects of the attacks on their damages should also inform and assist any mediation that the parties may choose to undertake.

3. [252]

   In relation to past economic loss, C was awarded damages in the sum of $225,333.50, which was the total amount claimed.

4. [253]

   The primary judge addressed this head of loss in the following terms: [218]

5. [254]

   The errors alleged to have been made by the primary judge in awarding damages to C for past economic loss were said to flow almost entirely from her Honour’s reliance upon a report by a forensic accountant (the Vincents Report) which purported to quantify that head of loss.

6. [255]

   In summary, Ms Horvath (for Ms Clancy and Little Pigeon, her submissions being adopted by counsel for Mr Bird) contended that “the basis on which [the primary judge awarded those damages] was factually, completely erroneous, because the material on which her Honour relied didn’t support the conclusion reached”. [219] That the Vincents Report formed a critical part of the relevant material was made clear by the primary judge at PJ [709].

7. [256]

   The principal error alleged by Ms Horvath was the primary judge’s “projection forward” of the figures in the Vincents Report, absent any explanation as to the mechanics of such a projection and in circumstances where the Report was “prepared in 2014 [and] … did not have regard to C’s earnings to 2020, which were in evidence”. [220]

8. [257]

   Ms Horvath summarised the evidence of C’s annual income as disclosing that “by 2018 it was at $80,000, 2019, $98,000, and 2020, $109,000, which was all a fairly significant increase over her salary in the 2010 to 2012 period”. [221] These figures were to be contrasted with Notices of Assessment issued to C by the Australian Taxation Office for the years ended 30 June 2010 to 30 June 2017 (excluding 30 June 2015), which respectively disclosed annual taxable income of $49,933; $55,505; $61,354; $13,905; $50,820; $29,604; and $49,574. [222]

9. [258]

   In order fully to understand the primary judge’s process of reasoning to a quantum of $225,333.50, the relevant portion of the schedule of damages put forward by C at trial is reproduced as follows: [223]

10. [259]

    In respect of paragraph (c) in the schedule of damages, C deposed that she estimated “the weekly net loss to [her] income as being approximately $450 per week”. [224] It was put to Ms Horvath that the quantum of damages awarded to C “coincide[d] broadly with a calculation of the $450 figure by the number of weeks involved”. [225]

11. [260]

    C’s income was increasing between 2010 and 2012, no doubt with her growing experience. It increased in increments of approximately $5000 per annum. It increased in 2019 and 2020 by increments of $18,000 and $11,000 respectively. There were years following the charging of Mr Bird in which C took extended leave and her annual income dropped significantly as a result.

12. [261]

    The figure of $155,250, in paragraph (c) of the extract from the schedule of damages, is simply the result of the multiplication of $450 in estimated weekly lost income by 345 weeks between August 2013 and March 2020. That calculation was undertaken in 2014, when the Vincents Report was prepared. If C had continued to work without the impact of the events the subject of these proceedings, it is likely that her annual income would have continued to rise by increments of at least $5000 per year and maybe more, as her experience between 2018 and 2020 suggested. On that basis, her salary by 2018 would have been closer to $90,000 per annum than $80,000. Although the reasoning in respect of this head of loss is sparse, the awarded quantum of damages, on the assumption of liability, was open to the primary judge.

13. [262]

    C was also awarded a buffer against future economic loss in the sum of $111,000. The primary judge reached that conclusion for the following reasons: [226]

14. [263]

    The Appellants’ overarching challenge to the buffer awarded to C for future economic loss was advanced on the basis that “it doesn’t at all accord with s 13 [of the Civil Liability Act]; doesn’t state the assumptions; doesn’t explain really at all why her Honour reached the conclusion that C ought be awarded a buffer of $111,000”. [227]

15. [264]

    The principles governing the award of buffers for future economic loss are not controversial and were not put in issue in the parties’ respective submissions. In Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244; (2012) 61 MVR 443, Basten JA summarised those principles as follows (at [33]–[38]):

16. [265]

    Also relevant to the award of buffers for future economic loss is s 13 of the Civil Liability Act, which provides that:

17. [266]

    At the time of the hearing at first instance, C was employed as a Senior Consultant with the firm Insight Consulting, a role which involved “working with families who are dealing with trauma”. She was earning “approximately $1,337.00 net per week”, compared to net weekly salaries of $1206.00 in 2010 and $1210.00 in 2017. [228] Although the primary judge accepted that “C has recovered sufficiently to be working full time”, her Honour reasoned that it was appropriate to award the buffer as C’s employment would “expose her to triggering events” which would, in turn, adversely affect her capacity to perform in that employment. [229]

18. [267]

    On the Appellants’ argument, the finding as to C’s recovery was entirely incompatible with the buffer as awarded. It was said that if the primary judge had properly undertaken the exercise contemplated by s 13 of the Civil Liability Act, it would have become evident that “from at least financial year 2018, C had significantly recovered from her condition and was working at a high capacity”. [230] This was said to be supported further by the fact that on the pleadings, C’s claim for past economic loss did not extend beyond 17 March 2020. [231]

19. [268]

    It was the Appellants’ case that the primary judge had reached these purportedly incompatible findings in reliance upon the expert evidence of Dr Stephen Allnutt, a consultant psychiatrist, who participated in an expert conclave with Dr Selwyn Smith on 25 August and 1 September 2020. During that conclave, both psychiatrists diagnosed C with an “adjustment disorder”, although Dr Allnutt considered that it was chronic. It was agreed that C also lived with a generalised anxiety disorder and an alcohol use disorder.

20. [269]

    As to the effect of that prognosis upon C’s future earning capacity, the following answers were given: [232]

21. [270]

    The Appellants contended that this body of expert evidence provided an insufficient basis for the award of C’s buffer on three bases. First, C’s Income Tax Return for the financial year ended 30 June 2020 disclosed total income in the sum of $98,390.00, [233] while a payslip received during the subsequent financial year stated that C’s annual salary was to be $109,999.97. [234] Those figures significantly exceeded her pre-injury earnings.

22. [271]

    Secondly, in his oral evidence, Dr Allnutt responded to a question from the primary judge as to C’s prognosis by stating that it was “guardedly positive”. [235] This was in contrast to his answer in conclave that the prognosis was “guarded for the foreseeable future”.

23. [272]

    Thirdly, the buffer awarded to C was precisely the same as the buffer awarded to A, notwithstanding: a 14-year difference in their respective ages, and therefore in the expected durations of their future working lives; the fact that C earned a higher income than A; and that “on the evidence, [C] seems to have a more optimistic prognosis”. [236] Mr Barry submitted that the apparently coincidental parity of the buffers awarded to A and C was not unilaterally demonstrative of error in the primary judge’s assessment of them, [237] following this exchange in argument on the appeals: [238]

24. [273]

    The reference by Brereton JA to s 13 of the Civil Liability Act (see [265] above) picked up the contention that the primary judge’s assessment of buffers for future economic loss fell short of the analysis and reasoning required by that section. [239] Mr Barry’s response was that, although her Honour may not have followed the process set out by s 13 word-for-word, this did not amount to a failure to undertake the relevant exercise, and that strict compliance with the statutory language was not necessary for the award of a buffer.

25. [274]

    Mr Barry relied upon a number of decisions of this Court as authority for the proposition that a buffer may be awarded otherwise than in accordance with s 13, namely Penrith City Council v Parks [2004] NSWCA 201 (Penrith); Sretenovic v Reed [2009] NSWCA 280 (Sretenovic); and Burton v Brooks [2011] NSWCA 175.

26. [275]

    Reliance on these authorities was misplaced. Although they stand as authority for the propositions that “[it] is appropriate to award damages by way of a buffer, including … where damages are to be determined pursuant to the Civil Liability Act, when the impact of the injury upon … exercising earning capacity after injury is difficult to determine”; [240] and that the determination of the difference between earning capacity prior to injury and earning capacity thereafter cannot be determined “otherwise than by the broad approach of a buffer”, [241] the award of a “buffer” does not displace the operation and requirements of s 13 of the Civil Liability Act.

27. [276]

    In Penrith, Giles JA accepted that even in the context of awarding a buffer, s 13 required the statement of “the assumptions as to exercising earning capacity before injury”. [242] So too, in Sretenovic, McColl JA (with whom Beazley JA agreed) made reference to the requirements set out in s 13 of the Civil Liability Act in holding that the primary judge in that matter had erred in formulating a buffer for future economic loss.

28. [277]

    In our view, the primary judge’s assessment of C’s damages for future economic loss in the sum of $111,000, by way of a buffer, cannot be sustained. Not only was it non-compliant with the requirements of s 13 of the Civil Liability Act, which are directed to supplying some meaningful and transparent basis for the award of damages for future economic loss but, perhaps even more significantly, the fact that the damages awarded for this head of loss were identical to those awarded to A reinforces the perception that the figure of $111,000 was not calculated by reference to the particular circumstances of C.

29. [278]

    In any re-assessment of damages on remittal, the buffer awarded by the primary judge could not be relied upon and would need to be re-calculated. On the evidence before the primary judge, if any buffer were to be awarded at all, it would a very modest figure.

30. [279]

    Finally, in relation to future out-of-pocket expenses, C was awarded $52,828.61 as follows: [243]

31. [280]

    It was accepted that the formulation of these figures relied heavily upon an expert report prepared by Dr Allnutt on 20 July 2018. [244]

32. [281]

    The claim for “2x weekly” consultations with the psychologist, that is, two consultations each week, was asserted to be in error on the basis of a misapprehension of the evidence of Dr Allnutt. The Appellants contended that Dr Allnutt had in fact recommended fortnightly consultations with a psychologist, that is, one consultation every two weeks, such that the quantum stood to be reduced by 75%.

33. [282]

    As a further result of this error, on the Appellants’ case, a proportionate reduction of the buffer claimed by (and awarded to) C was required. Such a reduction was also said to flow from a separate misapprehension of Dr Allnutt’s evidence as recommending quarterly consultations with a general practitioner, where the Appellants contended for a notional buffer in the sum of $320. [245]

34. [283]

    It was conceded, on behalf of C, that the schedule of damages “included a misinterpretation of Dr Allnutt’s recommendation” as to the frequency of psychology sessions. However, that concession was limited to a reading of Dr Allnutt’s statement as recommending weekly (cf, fortnightly) sessions for 12 months. It was also conceded, consequently, that the relevant buffer “ought to be reduced by 50%”.

35. [284]

    These concessions resulted in the re-calculation of C’s damages for future out-of-pocket expenses in the sum of $32,228 (as opposed to $52,828.61).

36. [285]

    The damages awarded to D are summarised at [245]–[249] above.

37. [286]

    D was awarded exemplary damages in the sum of $70,000. Consistent with our observations in respect of an equivalent award of exemplary damages to B (see [250] above), such an award, and its quantum, was bound up with and will depend, at least in part, upon the nature and extent of any sexual assaults found to have been committed by Mr Bird against D. That is a matter that can only be resolved by the judge who will determine the question of Mr Bird’s liability (if any) to D. Without pre-empting any such consideration, it is difficult to see how, on the evidence, exemplary damages could be awarded against Little Pigeon and Ms Clancy (as opposed to Mr Bird) in any direct claims against them in tort or contract.

38. [287]

    The Appellants also contended that the award of damages to D for non-economic loss ($260,000) was “beyond the reasonable range” and that the award of a buffer of $100,000 for future economic loss was “wholly speculative”.

39. [288]

    In respect of the award of $260,000 for non-economic loss, the primary judge’s reasoning was as follows: [246]

40. [289]

    In response to these findings, the Appellants highlighted the following answers as agreed at the expert conclave between Dr John Kasinathan and Associate Professor Michael Robertson, consultant child and adolescent psychiatrists, in relation to D on 31 August 2020: [247]

41. [290]

    D’s school reports were argued to be entirely consistent with the joint opinion of Dr Kasinathan and Associate Professor Robertson, such that she was a “happy and very confident student who was rarely absent from school”. [248]

42. [291]

    The Appellants also attacked the primary judge’s statement that “injury to … her feelings caused by insult, humiliation and the like, must also be taken into account in her case”, [249] in circumstances where D had no recollection as to what had occurred.

43. [292]

    In response, Mr Barry emphasised the “quasi-discretionary” [250] nature of a general damages award and that this attracted a higher standard of appellate review which was not engaged by the primary judge’s assessment, particularly where such damages ought to “compensate for the particular manner in which the particular tort was committed”. [251]

44. [293]

    The primary judge’s reasoning in support of this award of damages does not explain the basis for the inclusion of a component of aggravated damages, nor does it indicate what portion of the sum was awarded for that component. It also sits uncomfortably with the joint expert conclave report as to D’s disposition and normative trajectory. In our opinion, the quantum awarded for this head of loss was out of proportion to the injury apparently suffered by D. It should fall for re-assessment on any re-trial.

45. [294]

    The primary judge’s reasoning in respect of the award of damages for future economic loss and superannuation to D was very brief: [252]

46. [295]

    The $100,000 awarded for future economic loss and superannuation was the same amount as was awarded to B. The observations made above at [277] bear repeating in this regard. The primary judge’s reasoning to the award of the identical amount of damages to B was as follows: [253]

47. [296]

    This reasoning does not satisfy the requirements of s 13 of the Civil Liability Act. The assumptions upon which the buffer was assessed are not specified and resulted in a rolled-up and global figure which does not translate readily to the case of D, whose susceptibility to further injury was assessed very differently to B’s and made the corresponding amounts for damages by way of an identical buffer for each quite problematic.

48. [297]

    This is not to say that D was not entitled to a buffer for future economic loss, but that the assessment of a buffer in the sum of $100,000 was not satisfactory, both as to the opaque manner of its computation and its lack of an evident relationship to the evidence led in support of D’s claim for such damages.

49. [298]

    In this respect, it suffices to note that during their joint conclave, Dr Kasinathan and Associate Professor Robertson agreed that D had developed post-traumatic stress disorder and subsequently agreed upon the following conclusions: [254]

50. [299]

    This evidence suggests that there was little, if any, need for a buffer to be awarded to D for future economic loss.

Final orders

1. [300]

   In proceedings 2020/310603 and proceedings 2020/311015 (Ms Clancy, Little Pigeon and Mr Bird’s appeals against A and B), the following orders should be made:

   1. (1)

      appeals allowed with costs;

   2. (2)

      set aside the orders of the primary judge;

   3. (3)

      in lieu thereof, order that proceedings 2013/375445 be dismissed with costs.

2. [301]

   In proceedings 2020/310609 and 2020/310590 (Ms Clancy and Little Pigeon’s appeals against C and D), the following orders should be made:

   1. (1)

      appeals allowed with costs;

   2. (2)

      set aside the orders of the primary judge;

   3. (3)

      in lieu thereof, order that:

   4. (4)

      grant C and D a certificate under the Suitors’ Fund Act 1951 (NSW).

3. [302]

   In proceedings 2020/311016 and 2020/311017 (Mr Bird’s appeals against C and D), the following orders should be made:

   1. (1)

      appeals allowed with costs;

   2. (2)

      set aside the orders of the primary judge;

   3. (3)

      in lieu thereof, order that:

   4. (4)

      grant C and D a certificate under the Suitors’ Fund Act 1951 (NSW).