Cleal v State of New South Wales

Thomas Cleal was born in January 2002. He is a young man who has had a most difficult upbringing, including, he alleges in an evidentiary statement completed by Mr Cleal in April 2023, being sexually and physically abused by foster parents with whom he was placed between the ages of 9 and 11 years old.

The cause of action was commenced against the State of New South Wales (“the State”). The time within which Mr Cleal was in that foster care situation was between 2011 and 2013. In short, he alleges that the abuse would have been avoided but for the negligence of the State and that the State is vicariously liable for the abuse which constitutes assault and battery.

Mr Cleal is under a financial management order and is, as such, incapable of conducting these proceedings without a tutor. In June 2025, the NSW Trustee and Guardian, (who is also Mr Cleal’s financial manager under the financial management order), was appointed the litigation tutor.

The parties have, acting responsibly, conducted settlement negotiations which included, as I understand it, a mediation, and the proceedings were settled subject to the approval of this Court.

I have been provided with a folder of material focused on the matters of which I need to be satisfied before I can decide whether or not the settlement is in the best interests of Mr Cleal. That material comprises a confidential counsel’s advice of Mr Chiu SC dated 27 November 2025, an affidavit of the tutor, Ms Nalbandian, affirmed 16 October 2025, and two affidavits of the solicitor, Tobias Tancred, sworn 15 October 2025 and 24 October 2025 respectively. There is also the statement of Mr Cleal that I have already referred to which outlines his personal circumstances, the conduct providing the basis of his cause of action and his perceptions of the sequelae and how he is currently conducting his life, saddled with the difficulties and trauma that abuse of this kind is known to cause.

The proceedings were settled on the basis of a Deed of Settlement and Release executed on 22 September 2025. A copy of that Deed is appended to Mr Tancred’s October 2025 affidavit.

The allegations of Mr Cleal are supported by psychiatrist reports of Dr Calvin of 14 October 2022 and Professor Byrne of 17 October 2024. Those reports evidence a diagnosis of post‑traumatic stress disorder and substance use disorder, noting that there are some complexities with pre‑existing sequelae from prior abuse and psychological difficulties associated with that earlier familial abuse.

The confidential counsel’s advice carefully and appropriately identifies a number of factual and legal issues that inform the assessment this Court must make.

Those considerations include that there is a significant question mark over how the law as it currently stands will be applied to the facts of this case. As the law currently stands, there are some significant hurdles for Mr Cleal to overcome to establish liability. These hurdles have been comprehensively and appropriately addressed in the advice of Mr Chiu SC.

There are also some difficulties and complexities with assessment of damages. I have taken into account those complexities in reaching the view that the settlement is appropriate, in Mr Cleal’s best interests, and so should be approved.

The legal representatives acting for Mr Cleal have, without a doubt, taken a significant reduction in their legal costs and professional fees. I understand the focus of this is so that the damages sum to be provided to Mr Cleal will not be eroded by any solicitor-client costs gap. It is to be encouraged and respected that legal representatives acting in this area take these kind of steps to facilitate the processes by which these difficult matters can be resolved. The Court notes those matters in relation to Mr Cleal’s settlement.

The following orders are made: