TB v State of New South Wales and Quinn; DC v State of New South Wales and Quinn

TB and DC are sisters. It is uncontested in these proceedings that they were victims of sexual and physical abuse by their stepfather between 1974 and shortly before 20th April 1983, when the abuse was first notified to what was then called the Department of Youth and Community Services. This case is about what happened after that date.

It well to record now that the stepfather was prosecuted for his monstrous offending in 2005 on an indictment containing 9 counts, covering offences committed between about the 1st of January 1974 and 30th December 1983. 4 of the counts related to TB, and 5 to DC. The ninth offence is said to have been committed sometime between 1st January 1983 and 31st December 1983, but from the evidence in this case, it is known that this offending, referred to in the evidence as the “tennis court incident”, occurred before 20th April 1983. The stepfather eventually pleaded guilty to all charges and was sentenced in the District Court of New South Wales to 10 years imprisonment, with a non-parole period of 4 years.

TB and DC claim damages for personal injury and mental harm caused by what they allege is the continuation of the sexual and physical abuse by the stepfather after the Department was notified of their very serious ill-treatment. The defendants are the State of New South Wales, representing the Department and the Department’s District Officer who handled the case.

The plaintiffs’ cases are that the Department and the District Officer owed them a duty of care imputed by the law of negligence. The duty is said to be one to take reasonable care to avoid each plaintiff being exposed to the ongoing risk of physical and mental harm from continuing abuse by their stepfather. The requirements of reasonable care are said to arise out of the exercise of the defendant’s statutory power under the Child Welfare Act 1939 (NSW) (now repealed) (CW Act), and in particular s 148B(5). The plaintiffs say that although the Department, through its District Officer investigated their complaints and took court proceedings in the Children’s Court, it failed to report the abuse to the police. Had that happened, they contend, given the stepfather’s criminal history, he would have been arrested, charged, and either denied bail or granted it only subject to the observance of very strict conditions. Either outcome would have denied him the opportunity of continuing his abuse of them. Their case is that this failure caused ongoing physical injury by way of sexual and other assaults, causing, in the case of each of them, serious psychiatric injury.

The Department denies that it owed any duty to either plaintiff to use reasonable care in the exercise of its statutory powers, the breach of which would sound in damages in a civil action. It said: in any event, it did not accept that there was ongoing abuse after its notification; it denied having failed to report the matter to the police, saying the natural inference was it did; and that the failure to charge and prosecute the stepfather in that circumstance, is explained by the exercise, by police, of a discretion not to prosecute the stepfather which cannot be called into question in the courts. Moreover, whilst accepting the physical injury and serious mental harm suffered by each plaintiff, the Department contends that any ongoing abuse, which it does not accept occurred, would have made no difference to the admittedly very injurious outcome suffered by TB and DC as victims of repeated child sexual and physical abuse over many years before the Department was first notified of their plight.

Accordingly there are both legal and factual issues to be decided, and any entitlement of TB and DC to damages depends upon them.

For the reasons which follow, I have made the following decisions:

In these circumstances there must be judgment for each defendant. In accordance with the usual practice, I have made contingent findings about the damages I would have awarded in each case.

The case is principally concerned with events which occurred between April 1983 and the early part of 1984, over 30 years ago. The proceedings were not commenced until 2008, one-quarter of a century after the events occurred. Each proceeding was summarily dismissed as showing no reasonable cause of action by a Judge of this Court in 2009 ([2009] NSWSC 297; [2009] NSWSC 326). An appeal from these decisions to the Court of Appeal was allowed on 22nd February 2010 ([2010] NSWCA 15).

Given the long delay in the commencement of the proceedings, it was necessary for TB and DC to obtain relief under the Limitation Act 1969 (NSW) to maintain the proceedings. That contest was fought out over 3 days in November 2011, and on 1st March 2012, Harrison AsJ made orders permitting the proceedings to continue ([2012] NSWSC 142; [2102] NSWSC 143).

After 30 years the parties obviously face much greater than usual challenges proving the facts for which they contend, always accepting that the legal and persuasive burden rests with TB and DC. The fact of the abuse they each endured may be expected to have been seared upon the consciousness of TB and DC. On the other hand, as has often been remarked upon by learned judges, memory is fallible and may be expected to fade over time, at least so far as the chronology of events is concerned. This is a well-known phenomenon and one likely to have affected the testimony of all of the lay witnesses who gave evidence before me. In Craine v Australian Deposit and Mortgage Bank Limited [1912] HCA 60; 15 CLR 389 at 391, Griffith CJ said:

Trial courts are generally admonished “to limit their reliance on the appearances of witnesses and to reason to their conclusion, so far as possible, on the basis of contemporary material, objectively established facts and the apparent logic of events”: Fox v Percy [2003] HCA 22; 214 CLR 118 at 129 [31]. Regrettably in the present case there is a relative absence of “contemporary materials”, notwithstanding that bureaucracies may generally be expected to retain their files. To explain this, two affidavits of Peter Maxwell were read, sworn on 8th November 2010 and 24th November 2014 respectively (Exhibits 3.5 and 3.6). Mr Maxwell is a retired police officer and now a licensed private investigator. He was instructed by the Crown Solicitor to undertake searches to locate files or other records maintained by the Department and New South Wales Police. From his affidavits (Exhibits 3.6 [15]; 3.5 [22]), it would appear certain files were in existence in about May 2008 when the proceedings were commenced and were transferred to an officer of the Department. When interviewed in 2010 the officer said the file he saw in 2008 related to DC, not TB, and only contained “cards titled “Child at Risk Notification” (such a card was tendered as Exhibit A.6). Other files were recorded as having been sent to the Department’s facility at Bateman’s Bay, but had been misplaced and could not now be located. By 2014, the officer had no useful recall of the matter. He could not remember any file relating to TB. Mr Maxwell’s subsequent investigations suggested that a file in relation to TB had been forwarded to the officer back in May 2008. Despite his efforts Mr Maxwell could not track down further documents.

Mr Maxwell also said that from 1981 to 1985 the New South Wales Police Force maintained a Child Mistreatment Unit at Bankstown whose function was to investigate physical and sexual abuse of children (Exhibit 3.5 [5] – [10]). Probably due to various amalgamations, reorganisations and relocations over the years since, Mr Maxwell was unable to track down the Unit’s Notification Book which as will be seen causes forensic disadvantage on both sides of the record. Reference will be made to such contemporaneous documents as are available.

The Department and the District Officer dispute that they owed TB and DC a duty of care actionable for breach under the law of negligence. Before the Court of Appeal, the Department seemed to accept that it owed each of TB and DC a duty of care, but that the duty of care did not extend to “requiring [the Department] to report suspected sexual abuse to the police”: at [48] – [49] by Sackville AJA (McColl and Basten JJA agreeing). Sackville JA continued at [50] – [54]:

The relevant legislation had been set out and discussed by Sackville AJA in the following terms (at [24] – [25]):

In SB v New South Wales [2004] VSC 513 Redlich J carried out an exhaustive review of the authorities. That case concerned sexual abuse of a young person who was a ward of the State. The State had argued that s 148B could not be a source of duty, as SB was not a child, defined in the Act as a person under 16 years of age. In the end his Honour’s finding of duty did not depend upon the scope of s 148B. Rather he founded it upon the provisions of ss 23 and 76, the former dealing with the Department’s wardship powers, and the latter with the power to “without warrant apprehend”, inter alia, any young person who is “neglected” (See SB v NSW at 574, [237] – 575, [241]; and 589, [297].

In Stuart v Kirkland-Veenstra [2009] HCA 15; 237 CLR 215, in their joint judgment Crennan and Kiefel JJ said:

As at April 1983 both TB and DC were children. TB was aged 15 years and 8 months, and DC was 12 years and 6 months.

There can be no doubt that s 148B is engaged in the present case. The relevant notification is under subsection (2). And it may have been given by either TB telephoning the Department a day or two before 20th April 1983 (Exhibit A.47 [30] – [31]; Exhibit 3.7 [19]) or the District Officer interviewing TB at Blacktown High School on 20th April 1983 (Exhibit A.3). Either way, the s 148B(5) power was engaged. And this necessary, but insufficient precondition to the imputation of a duty of care to a public authority was satisfied. The content of the information was that TB had been assaulted sexually and physically by her stepfather from the age of about 6 or 7 (Exhibit A.3). There may then have been some doubt about whether the sexual abuse was continuing, but TB told the District Officer of two recent physical assaults, one of which was the tennis court incident and another “within the last 2 and a half weeks” over the stepfather’s refusal to condone TB going to Tasmania on an excursion with her school. From this long history it was reasonably foreseeable, at the general level sufficient for the determination of the duty question that TB was at risk of further harm. To put it another way, it was reasonably foreseeable that further harm would ensue if the Department did not take action to protect TB’s welfare. Thus a second necessary, but I acknowledge, insufficient condition of the existence of a duty of care was established. The evidence I have recounted so far is not controversial.

The powers that were engaged by these facts were, first, to “promptly cause an investigation to be made into the matters notified”; and secondly, if satisfied that TB had been assaulted, to “take such action as” the Department “believes appropriate, which may include reporting those matters to a constable of police”. In the case of similar legislation in New Zealand it has been held that the law of negligence imputes a duty of reasonable care in relation to the power to promptly investigate: B v Attorney General of New Zealand [2003] UKPC 61; 4 All ER 833.

The same matters are present in DC’s case. In her case “a child at risk notification form” (Exhibit A.6) is extant. It is numbered 83/1474. It refers to another form numbered 83/1456 which has not been reproduced. I would infer this missing form relates to TB. In DC’s case Exhibit A.6 records that the notification was received by the District Officer and that the grounds for notification were sexual abuse. The grounds identify the stepfather as the perpetrator. It will be necessary to return to this form in some detail later in these reasons. From the District Officer’s statement (Exhibit 3.7 [23] – [26]), the District Officer spoke to a teacher at Blacktown Girls’ High School and formed the view that DC’s “health, welfare and safety were endangered”. The District Officer exercised her power under s 76 CW Act to “apprehend” on the evening of 21st April 1983 DC on the ground she had reason to believe DC was a neglected child, and took her to “a shelter”. Section 78 required DC to be brought before the Children’s Court “as soon as practicable thereafter”. The District Officer interviewed DC at her office the following morning and received an account of the stepfather having had sexual intercourse with DC when she was about 9. DC was taken before the Court that day (Exhibit A.4) and was charged as “a child against whom an offence has been committed and that the health, welfare or safety of the child is likely to be endangered.” From these circumstances it cannot be gainsaid that the Department’s powers under s 148B(5) were engaged and it was reasonably foreseeable that DC was at risk of further sexual abuse. At the general level at which it is appropriate to make the foreseeability enquiry for the purpose of determining the existence of a duty of care, if a child is subject to a risk of sexual abuse, this inherently involves a risk of mental harm. Accordingly, the necessary but insufficient conditions of the existence of a duty of care of engagement of statutory power and foreseeability of harm are present in DC’s case also.

In Sullivan v Moody [2001] HCA 59; 207 CLR 562 the High Court rejected the argument that professionals involved in child welfare or protection work owed any duty of care recognised by the law of negligence to persons suspected of sexually abusing children when undertaking investigations activated by that suspicion. This was very substantially because the responsibility of conducting investigations, or exercising powers, in the interests of children who may have been abused would be entirely inconsistent with subjecting the professionals to a duty to have regard to the interests of the suspects: Sullivan v Moody at 582 [60]. However, the unanimous court made the point that it was “not directly concerned with any potential tortious liability to the children involved”: 572 [24]. The decision does not stand in the way of the imputation of the duty in the present case.

In a frequently cited passage from Sullivan v Moody, the Court said at 579 [50]:

The first difficulty discussed in Sullivan v Mooney arises out of the application of the principle discussed in Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254 which the Department relies upon here, that a person owing a duty is not liable for the consequences of the criminal acts of third parties. This is an aspect of a wider principle that a person, absent some special relationship with the plaintiff, is usually under no obligation to take action to protect others. There are many recognised exceptions: see Ashrafi Persian Trading Co Pty Ltd (t/as Roslyn Gardens Motor Inn & Anor) v Ashrafinia [2000] NSWCA 243; Aust Torts Reports 81-636 at 68,335 [64] – [66]. The exceptional categories are not closed. Here the first and second mentioned “problems” should be considered together. The Department’s powers under the CW Act are to be exercised for the protection and welfare of children. The statutory powers are conferred for the express purpose of safeguarding children from assault or other forms of mistreatment. In my view, the terms of the statutory powers and the purpose for which they are conferred create a special relationship between the Department and children, who the Director is satisfied after investigation have been assaulted, or neglected; the latter category extending to ill-treatment.

In my view, there is no problem in this case of “indeterminacy of class”. A duty to take appropriate action only arises in respect of children who, after notification and investigation, the Department is satisfied require the protection of the Department’s intervention by exercise of its statutory powers. Nor is there any problem with the need to preserve the coherence of other legal principles or of the scheme of CW Act which governs the Department’s relationship with the plaintiffs. On the contrary, the whole purpose of the Act is to protect children at risk, taking action to that end does not conflict with the Department’s statutory responsibilities; it gives effect to them. To the extent to which the exercise of the Department’s statutory powers may extend to reporting apparently criminal conduct to police, the suggested common law duty operates entirely consistently with the criminal law which under the common law in force at the time made it a felony to fail to report serious crime: Sykes v Director of Public Prosecutions [1962] AC 528. In general terms, the law of torts and the criminal law have common origins. There is no incoherence or inconsistency in them working together. An obvious example is the law of assault and battery itself. The same matter may give rise to concurrent criminal and civil liability.

If one evaluates the salient features taken to inform a decision about “the appropriateness of imputing a legal duty to take reasonable care to avoid harm or injury” (Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; 75 NSWLR 649 at 676 [102]), they almost all favour the imputation of the duty of care. As I have said, foreseeability of harm and engagement of relevant statutory powers is established. The nature of the harm is the personal safety of a child, a consideration of which the common law is normally solicitous. As Sackville AJA remarked in the Court of Appeal it is hard to imagine a class of persons less able to look after themselves than children subjected to sexual abuse by their parents (at [52]). Once the Department intervened it may be taken that there is a high degree of reliance by each plaintiff upon it for protection. And by intervening, the Department has directly assumed responsibility. These matters place the Department and the plaintiffs in a close, indeed special, relationship. The powers to be exercised by the plaintiff are conferred for the purpose of protecting children identified as at risk after notification. Any failure of the defendant to exercise its powers was likely to expose the plaintiffs to a high degree of risk of ongoing harm at the hands of their stepfather. It may be that the Department’s action would involve a significant imposition on the autonomy of the stepfather. But given his proclivities, this certainly would have been in the public interest.

All of these circumstances, taken together, persuade me that it is appropriate for the common law to impute a legal duty of reasonable care on the Department in the exercise of its statutory powers.

It is necessary, however, to have regard to the provisions of the CLA. Although the events with which this case is concerned predate the commencement of that Act by some 25 years, the circumstance that the proceedings were not commenced until May 2008 means that the Act applies to them: Sch 1, Pt 3, Cl 6 CLA. Part 5 is concerned with the liability of public and other authorities. Of its provisions, the Department relies upon ss 43A, 44, and 46. No express reliance is place upon s 42, concerned with the effect of the limitations on an authority’s financial and other resources and their allocation across the breadth of its functions. Some evidence was led as to general procedures and applicable standards, including guidelines. But these matters may more appropriately be considered when determining questions of breach. Likewise s 43A which is concerned more with the standard of care applicable to an asserted case of civil liability arising out of the exercise, or failure to exercise special statutory powers.

Section 44 CLA is concerned with cases of what was referred to, at common law, as non-feasance: Lee v Carlton Crest Hotel (Sydney) Pty Ltd [2014] NSWSC 1280 at [396]. This is not such a case, here the Department acted. This is a case concerned with an omission in the course of exercising of statutory powers, or misfeasance. If I am wrong about that, for the reasons discussed by Brennan J (dissenting) in Pyrenees Shire Council v Day [1998] HCA 3; 192 CLR 330 at 347 [25], the plaintiffs would have “locus standi to seek a public law remedy”, as artificial as that conclusion may seem in the circumstances, being persons affected by the Department’s decision.

Section 46 applies to this case. In my judgment it abrogates any general application of the principle applied in Caledonian Collieries v Speirs [1957] HCA 14; 97 CLR 202 at 221. That principle is “when statutory powers are conferred they must be exercised with reasonable care so that if those who exercise them could by reasonable precaution have prevented an injury which has been occasioned and was likely to be occasioned, by their exercise, damages for negligence may be recovered”. However, I have not applied this principle in expressing my conclusion that it is appropriate to impute a duty of care to the Department in this case.

I am not of the view that the District Officer owes any corresponding or concurrent duty. I accept that as a social worker a District Officer, like other professionals, may owe a duty of care to persons to whom she provides professional services: see Astley v Austrust Ltd [1999] HCA 6; 197 CLR 1. But that is not the current field of discourse. The case pleaded and argued against the District Officer is that she owed the plaintiffs duties having the same content as the duty asserted to be owed by the Department. In my judgment, this is misconceived. The specific statutory powers, the existence and engagement of which are essential, but insufficient, conditions of the imputation of the duty, are conferred upon the Director of the Department and not upon its individual and subordinate officers, even if in other areas (for example s 76 CW Act), authorised officers may have independent functions or powers.

I accept the argument that in the ordinary course of public administration, functions and powers conferred upon the Director of the Department may well be administered on a daily basis by its officers: O’Reilly and Ors v Commissioners of the State Bank of Victoria (1982) 153 CLR 1 at 10 – 12; ss 5 and 10A CW Act. As the evidence in the case makes clear, the District Officer was a relatively junior and young officer accountable in the performance of her duties to the senior officers to whom she reported. It may have fallen to her to implement appropriate action under s 148B(5)(b), but she was not legally responsible for the exercise of the statutory power, or discretion. It is not appropriate to impute the duty owed by the Department, concurrently to the District Officer.

The assessment of the question whether the duty has been breached is to be undertaken by application of ss 5B, and 43A CLA: Curtis v Harden Shire Council [2014] NSWCA 314; 203 LGERA 352; 68 MVR 1 at [5] – [6]; [221]; and [266]; Zraika v Walsh [2015] NSWSC 485 at [161]. The provisions of s 5B are familiar and it is unnecessary to set them out in full in this judgment.

The chapeau to s 5B(1), in conformity with the previous general law, requires, as a starting point the correct identification of relevant risk of harm. Section 5B applies in all cases where the defendant’s negligence is said to consist of a failure to take precautions against the relevant risk of harm. It is accordingly necessary to know what specific act or omission on the defendant’s part, the plaintiff is relying upon as constituting negligence; and what precaution the plaintiff says would have averted the materialisation of the relevant risk of harm. These matters are precursors to the process of assessing breach. Unlike the assessment of breach itself, they necessarily involve the benefit of hindsight.

Here, in each case, the relevant risk is the risk of further injury and mental harm being suffered by each plaintiff by ongoing sexual and physical abuse at the hands of her stepfather. The specific act or omission relied upon by each plaintiff as constituting negligence (failing to take precautions) is omitting to report the matters of assault and ill-treatment “to a constable of police” in accordance with s 148B(5)(b) (after notification and prompt investigation: s 148B(2) and (5)(a)).

Section 5B(1)(a) and (b) imposes statutory conditions which must be satisfied before a finding of negligence can be made. They are, first, that the relevant risk of harm, as correctly identified, is foreseeable in the sense of being a risk of which the Department knew or ought to have known. A risk is foreseeable if it is neither fanciful nor far-fetched: McKenna and Simon at 45, [30]. The second condition is that “the risk was not insignificant”. This condition requires a focus on the potential magnitude of the harm and its probability of occurrence, important considerations which require further evaluation when assessing whether a reasonable authority in the position of the Department would have taken the suggested precaution: s 5B(1)(c). A foreseeable risk of trivial injury which is extremely unlikely to occur would be insignificant for the purpose of s 5B(1)(b). However, a risk of appreciable injury, even one having a relatively low probability of occurrence, would satisfy the statutory criterion of “not insignificant”.

In each case, there was a foreseeable risk of ongoing physical and sexual abuse. In TB’s case, the Department knew that frequent and serious sexual and physical abuse had occurred over many years in the past, right up to then recent times. The stepfather was known to have a criminal record for prior sexual assaults and to be on bail for a charge of seriously sexually assaulting his son’s 15 year old girlfriend. The abuse of TB and DC post-dated his imprisonment for previous sexual offences from which it may be inferred that imprisonment had failed to correct him. Even if there was some good chance that the stepfather may curb his behaviour after the Department’s involvement, in my assessment, the risk of the occurrence of further incidents was neither far-fetched, fanciful nor insignificant. There can be no question on the facts known to the Department through District Officer that the risk of further abuse occurring was not insignificant (see 384.10 - .45T).

The same analysis applies in DC’s case. From what the District Officer was told, the frequency of abuse may not have been as great in her case, but it was of the same level of seriousness involving the same perpetrator with a significant criminal history. Notwithstanding the intervention of the Department, in DC’s case, I am satisfied that there was a risk of further incidents of sexual and physical abuse which is neither far-fetched, fanciful or insignificant.

The next question in the assessment of breach is whether “in the circumstances, a reasonable person in the [Department’s] position would have taken” the suggested precaution. This is the real issue to be decided in the circumstances of this case when assessing whether the Department breached its duty. This is because the plaintiffs contend that the Department failed to report the matter to the police, and the Department maintains that it did. To spell it out, if it did, it did not fail to take any suggested precaution against the risk of TB and DC suffering ongoing sexual and physical abuse, and accordingly it is not negligent.

This is one of the critical questions in the case where the long effluxion of time and the relevant absence of contemporary documents impose the greatest difficulty for the parties in proving the facts for which they respectively contend. That being so, it is important to remain mindful that the plaintiffs carry the legal onus of persuasion.

Before reviewing the evidence and making such findings as it may support, there is another legal matter to which I must refer. Section 5B(1)(c) deals with what at common law was thought of as the evaluation of the likely response of the reasonable person to a correctly identified foreseeable risk of harm. It involves a balancing exercise in which various, perhaps competing or conflicting, factors are weighed and considered. It is essential that the balancing exercise is undertaken from the wholly prospective point of view of a reasonable authority in the position of the Department, without actual knowledge of the harm which will befall the plaintiff, and as though it had not yet occurred. To put it more simply the benefit of hindsight is absolutely forbidden.

There is an additional consideration in cases involving the potential liability of public authorities in which the provisions of Pt 5 CLA are engaged. This is such a case because the expression “public or other authority” means, inter alia, “the Crown … or … a Government department”: s 41 CLA.

Section 148B(5) confers power on the Director of the Department, appointed by the Governor under s 5(1) CW Act. However, the proceedings have been brought under Crown Proceedings Act 1988 (NSW) without objection.

Where s 43A CLA applies, it either attenuates or lowers the standard of care to be applied when answering the s 5B(1)(c) question; or perhaps interposes another question to be considered with the s 5B(1)(c) question. The difference is unlikely to be material. That question, as adapted to the circumstances of this case, where negligence is said to consist of a failure to take a specified step in the exercise of a statutory power, is, was the failure to notify the police in the circumstances so unreasonable that no government authority having the powers conferred by s 148(5) could properly consider that omission “to be a reasonable exercise” of its power.

Section 43A applies where the question of liability “is based on” the exercise of “a special statutory power”. “Special statutory power” is defined as a power that is conferred by or under a statute and is of a kind that persons generally are not authorised to exercise without specific statutory authority. It may be said that anyone has the power, indeed the obligation, to report serious crime to the police: Sykes; see now s 316 Crimes Act 1900 (NSW). But reporting to the police is only one example of a broader obligation falling upon the Director of the Department once satisfied that a child, inter alia, may have been assaulted. The obligation is to “take such action as [the Director] believes appropriate”. Ordinary people are not authorised to exercise the broad powers in relation to the welfare of children and young people conferred upon the Director by the CW Act. For example, an ordinary person who believes a child is neglected may activate a power in the Children’s Court to issue a warrant to any police officer, or an officer of the Department to take the child and detain him or her in a place of safety. Authorised officers of the Department and police officers in some instances may act without a warrant: s 76 CW Act. Looked at in this broader context, I am satisfied that the powers conferred upon the Director by s 148B(5) fall within the meaning of “special statutory power” in of s 43A.

Essentially this means the plaintiffs need to prove two things, first that any failure to report the matter to the police was “in the circumstances so unreasonable that no authority having the special power … could properly consider the … omission to be a reasonable exercise of … its power”; and secondly, that a reasonable authority in the position of the Department, “in the circumstances”, would have reported the matter to the police. Obviously the questions are inextricably bound together; a decision that the plaintiff’s argument fails the “no reasonable authority” test implies the availability of reasonable options. If minds may reasonably differ about options, it may be impossible to say that “a reasonable [authority] would have taken” the relevant precaution.

The starting point in relation to whether the stepfather’s abuse was reported to the police is the inter-departmental guidelines “in respect of matters relating to child abuse”. The departments involved are the Department, the New South Wales Police Service and the Health Department (Exhibit A.1). From the agenda for a workshop on 26th February 1982 for officers of the three departments, I infer that the guidelines had been adopted by that date (Exhibit A.2). The relevant terms are as follows:

These guidelines provide a detailed protocol for dealing with matters involving child physical and sexual abuse. Notification of suspected child abuse is to be reported to the District Office is to be notified and the officer-in-charge is to ensure “that Montrose Child Protection and Family Crisis Service is immediately notified of details of the reported cases” (emphasis added).

The officer-in-charge of the Blacktown District Office in April 1983 was Mr F.P. Maguire, who has been retired since 1995. Mr Maguire’s statement is Exhibit 3.10. With respect, it is clear from it that he has forgotten some details after all this time. At [17] he could not recall “if specific practices and procedures were documented and in place of child sexual assault”. He could not “recall any policy stipulating that all reports of child sexual assault ought to be referred to Montrose” ([20]). But after the formation of the Police Child Mistreatment Unit “and the development of Departmental policy relating to child sexual assault, reports were then made to the CMU” (at [17]). He also said, (as everyone would hope was obvious), “cases of sexual abuse were always regarded as serious and urgent”.

He gave evidence that his organisation of the Blacktown District Office involved delegating child protection matters, including child abuse, to his 2IC, Mr S.R. Frost. Mr Maguire’s expertise was in substitute care arrangements, particularly the fostering of children with disability. He managed the substitute care team and Mr Frost, the child protection team, reporting to Mr Maguire as necessary (506.20 - .30T). His memory was vague and he was uncertain about when what policies and procedures were created (507.15T). I interpolate that this is completely understandable given the effluxion of time. His recollection was that the reporting of matters to the police would not be undertaken informally. He said:

Paragraph 3.1.3 of the guidelines provides examples of appropriate cases “to involve police officers”. There cannot be any question that the cases of TB and DC were such cases, involving as they did “repeated and severe abuse”. Consistent with the evidence given by Mr Maguire, “Senior District Officers” had the authority to make this decision. The guidelines required that “these decisions should be conveyed to the officer-in-charge of the Child Mistreatment Unit of the New South Wales Police form [sic] who will take appropriate action” (my emphasis). The decision to involve police “must be made as soon as possible after notification” (emphasis in the original). The guidelines make clear that court action, I infer by the police, is not automatic but “should be the result of a joint decision-making process between responsible officers” of the Department, police and health, if involved. Paragraph 3.1.3 emphasises in its concluding words “any case involving the police must be directed through the Child Mistreatment Unit”.

From paragraph 3.3.2 it is clear that it is contemplated that officers of the CMU had the final responsibility in deciding whether criminal charges should be laid. The decision to lay charges, however, should be made with the “consensus” of, inter alia, a Senior District Officer of the Department. But “decisions to take such action should be made” (emphasis added) in the circumstances outlined in [3.1.3] including cases of “repeated and severe abuse”. Where, I infer for some good reason, consensus was not reached “the matter shall be referred to the Assistant Commissioner (Crime) and to the appropriate Regional Director of the Department.”

In his statement (Exhibit 3.12) Mr Frost described that notifications of abuse “could become the subject of communications” between the District Office and Montrose. He was also aware of the establishment of the Child Mistreatment Unit in 1981 and recalls having communication with the officer-in-charge of that Unit, but not any particular case. In a statement he said “it was common practice” for District Officers to telephone the local police station or to accompany a child to the police station. In oral testimony he said that upon notification of “allegations” of sexual abuse the practice was:

The practice was to report the matter by calling the CMU (569.5T). Contact with local police would be “on the advice of the CMU to take someone there” (569.20T). Generally the CMU would be informed by telephone and as part of the inquiry information may be sought about a suspect’s criminal record (571.30 - .40T). In his experience, however, it was not possible to “obtain someone’s criminal record by a simple phone call, in… informal cases from police officers … at Blacktown Police” (572.30T).

I find from this body of evidence, that in April 1983 there was a highly developed system for co-operation between the Department, police, and in some cases, the Health Department on serious cases like these. Although entitled guidelines, it was mandatory for these cases and their like to be reported not only to Montrose ([1.1]) but also, where [3.1.3] applied, to the officer-in-charge of the Child Mistreatment Unit: if the police were to be involved, it was mandatory to inform the CMU [3.1.3]. Moreover, the general expectation was that serious, validated cases, including those of “repeated and severe abuse” would involve a discussion between CMU and a Senior District Officer which would lead to charges being laid. If CMU and the Senior District Officer could not agree about this the question was to be resolved by superior officers, including, in the police force, at the Assistant Commissioner level.

I also heard “expert” evidence from two eminent criminal lawyers about police practices in the early 1980’s, Mr Cowdery AM QC (Exhibit 3.8) and Mr Winston Terracini SC (Exhibit A49). This is perhaps more relevant to questions of legal causation. In his report Mr Cowdery did not accept it was inevitable that the police would have charged the stepfather if the Department had reported the cases at hand to them. He was not asked to consider the contents of the guidelines, or whether he regarded them as pertinent. In his report (p 3), Mr Terracini acknowledges that “police were circumspect about bringing criminal charges and proceedings for sexual assaults against minors in the absence of corroboration (see s. 481 Crimes Act 1900, which was repealed in 1985)”. However, the similarity of the complaints made by TB and DC, the acknowledgment by their mother that abuse had occurred, and the opinion of the District Officer that the children were at further risk combine to make it extremely likely that the stepfather would be charged (Exhibit A.49 [2](v)).

In oral evidence, on assumptions including the details of abuse given by TB and DC, confirmation by the mother and a requirement under the guidelines to report to police, I asked “about the likelihood of the police deciding to act on the complaint” (521.40 - .10T). Mr Cowdery said (522.15 - .25T):

I appreciate the great difficulty of proof for both parties arising out of the dearth of contemporary records. However, it is very difficult to understand, if these highly developed procedures had been followed, how the cases of TB and DC would not have resulted in charges being laid; that result could only follow if the matter had been escalated to a senior level resulting in an Assistant Commissioner of Police and a Regional Director of the Department agreeing that charges should not be laid for some good reason in the cases at hand. It is difficult to comprehend that cases escalated to that level would be lost in the mists of time without some record, or recollection of those involved, marking that escalation. This “apparent logic” and the probabilities flowing from it tend to favour a finding that these matters were not reported to the police as the plaintiffs contend.

As against this, the Department relies upon a number of factors: first, the existence of the practice of reporting physical and sexual abuse to police is circumstantial evidence that the practice was followed in the cases at hand; secondly, the District Officer knew of the guidelines, she had attended the workshop, was familiar with the officers involved at CMU and followed the practice in the general discharge of her duties; thirdly, evidence of the District Officer, and one of her colleagues, of a practice that a suspect could not be interviewed unless it was known police action would not be taken; fourthly, that the District Officer knew of the stepfather’s record at an early stage suggested police had been informed; fifthly, evidence of DC that she attended Blacktown Police Station; and sixthly, an assertion in applications to the Victims Compensation Tribunal that police were notified.

Dealing with the defendant’s first argument, the District Officer gave the same evidence as Mr Maguire and Mr Frost about the practice of reporting to police (343.20 – 344.35T). Ms Whale, who in 1983 was a Child Protection Officer at Blacktown and had some involvement with this case, gave evidence to the same effect, but she did not have a “clear memory of the exact protocol” (497.25T). It is common ground however, that no police action ensued. I accept that evidence of common practice is circumstantial evidence that it has been complied with. But for the reasons I have given when one considers the detailed provisions of the practice as contained in the guidelines, the existence of the practice in this case favours the plaintiffs rather than the Department.

The District Officer’s familiarity with the guidelines, the practice and her evidence of implementing them in given cases running to “double digits” (346.25T) really amounts to no more than the same point put another way. In any event, it was for a more senior officer to notify CMU in accordance with the guidelines. After the effluxion of 30 years the District Officer, understandably, has no actual recollection of the police being notified in these cases.

On 15th September 1983, the District Officer and Ms Whale spoke to the stepfather. He freely admitted having sexually interfered with TB and DC (Exhibit A12, p 3), and expressed resentment towards TB for notifying the Department. He was angry and did not accept responsibility for “his abusive behaviour”. The District Officer wrote “[the stepfather’s] attitude is considered extremely destructive for the children’s emotional welfare and appears unlikely to change”. Both the District Officer and Ms Whale gave evidence (346.5T), (Ms Whale referred to it as “like a golden rule” (494.45T)) that the stepfather would not have been interviewed unless they knew the police had decided not to take action against the stepfather. Ms Whale also said “we didn’t interfere with police evidence if there was a chance of a police case being pursued” (497.30T). In her statement to police on 21st July 2005 (Exhibit A.41), for the purpose of the stepfather’s prosecution, Ms Whale stated, in effect, that she knew a police prosecution was not proceeding when the stepfather was interviewed on 5th September 1983, but she could “offer no reason” to the interviewing police “as to why the [police] file cannot be located” (Exhibit A.41 [8]).

The context of the interview with the stepfather was that the Department had become aware, that notwithstanding remand orders made in the Children’s Court conditioned on the stepfather living separately from the family, he had been making frequent visits to the home, apparently encouraged by the mother (Exhibit A.12). The District Officer was concerned about this because of his history, his resistance to change through previous therapy and his lack of acceptance of responsibility for his behaviour (Exhibit A.12). His attitude was a factor putting the children at further risk. However, the District Officer agreed that it was also possible that interviewing the stepfather in September 1983 was consistent with no complaint having been made to the police (467.35 – 468.10T). This point may, therefore, be neutral, capable of supporting either side of the argument, depending upon other factors.

The District Officer accepted that the cases at hand were covered by the guidelines and ought to be reported to the police. She said (489.10T):

It is to be recalled that the District Officer provided Montrose with the information from which the Child at Risk Notification for DC (Guidelines Form 1) was completed. She probably also provided information for TB earlier. Exhibit A.6, which bears number 83/1474 refers to an earlier report bearing number 83/1456. In providing that information, the District Officer provided some details of the stepfather’s criminal record, and the pending criminal charges for the sexual assault of his son’s girlfriend, of which he was later convicted. It is her firm belief from her apparent knowledge of those matters that she must have reported the matters to the police probably by telephoning Blacktown Police Station at which time she would have received information about the stepfather’s criminal record.

When the District Officer was cross-examined on the content of the guidelines, the following evidence emerged (475.40T):

The difficulty with this explanation is that it conflicts with the evidence given by the District Officer before the Children’s Court (Exhibit A.14). On 19th September 1983 at the Children’s Court, the applicant, a Mr Marsden, (referred to as the Court Officer) tendered the stepfather’s criminal record which was admitted as Exhibit 4, and the following evidence was given:

In answer to questions of mine, the District Officer said that she could remember “plenty of occasions” where information about parents criminal history had been obtained over the phone. The information would not be given “willy-nilly … we would have to give them the information about the case in order to get the information about the person in question”. She said that she did not remember calling the police to obtain information, she recalled “calling the police because we wanted to tell them” about the abuse (481.15 – 482.25T). She gave the following additional evidence about that topic (482.30T):

The evidence about ringing Blacktown Police direct to report abuse and obtaining the record in my judgment is inconsistent with the well-developed procedures contained in the guidelines. It is also inconsistent with Mr Frost’s evidence about him being responsible for ringing CMU, in compliance with the guidelines. It is inconsistent with the evidence of Mr Maguire that there would be no informal contact with the police about these matters. He said that he “would be very surprised” if that happened. As I have previously recounted, it was his view that there was “a formal way of working things that we actually had, you know, guidelines” (509.40 – 510.15T). I think that the District Officer is simply mistaken in her “recollection” about how she may have come by the stepfather’s criminal record. I prefer the evidence contained in the transcript of the proceedings of the Children’s Court on 19th September 1983. Moreover, the proceedings for DC’s protection were commenced on 22nd April 1983 (Exhibit A.4). The District Officer attended Court on that day with DC and the Department was represented again by Mr Marsden. The Form 1 Notification to Montrose occurred at 4:32pm that same day. This seems to leave sufficient time for the police prosecutor at the Children’s Court, present to attend to juvenile justice matters, to obtain the information that the District Officer required. In my view, the District Officer is mistaken in her recollection about how she came by the details of the stepfather’s record. That she obtained it does not prove that she personally reported the abuse to Blacktown Police.

In her first statement to Police, dated 20 January 2005 (Exhibit A.34) for the stepfather’s prosecution, the District Officer said (at p 4[26]):

This passage is certainly consistent with a consciousness as at 2005 that the matter had not previously been reported to police. In evidence (at 457.5T), the District Officer said that when the police officer asked the leading question “why it wasn’t reported to Police? … [she] made an assumption that “[the Police Officer] had some independent evidence of that”. The “that” being the failure to report. When pressed about the matter at (457.25 - .30T) she said she did not mean to imply that she accepted the abuse had not been reported. Her position was that she did not have a recollection: “and that’s still my – still my position. I don’t have a recollection”.

The Department relies upon evidence by DC that she accompanied the District Officer to Blacktown Police Station. Naturally, it submits this is compelling evidence that a report must have been made. The evidential chain commences with DC’s second statement to the police about her stepfather’s abuse, dated 1st June 2002 (Exhibit A.29). At p 6 [36] DC is recorded as saying:

She dealt with the same issue in her evidentiary statement dated 22nd April 2014 (Exhibit A.48) in this way at [43] – [47]:

In her evidence-in-chief DC sought to correct the date recorded in [46] of her evidential statement (192.5 – 193.5T). She said she had been reminded by the course of evidence in the Limitation Proceedings before Harrison AsJ that the occasion of her visit to Blacktown Police Station was in February 1984 when the stepfather was in the cells having been charged with a sexual assault on a young woman at the place where he worked as a security guard. She said she asked to see him as “part of me had some sick need to see him in jail”. The District Officer accompanied her to the police station on that day.

In cross-examination DC was challenged about the account in her evidential statement, as augmented by her evidence-in-chief by reference to her police statement of 1st June 2002. She denied that she had seen or had been interviewed by a police officer. She said the only person who said the stepfather could not be charged because of TB’s emotional fragility was the District Officer. She was challenged about the veracity of her account. It was put to her that the person who imparted that information was the police officer, which she denied. She maintained the occasion of her visit to the police station was to see the stepfather after his subsequent arrest on another charge. She accepted she was told by the District Officer that the stepfather “could not be charged”; that both of the girls “would have to make a complaint”; and that she had been told that TB “could not cope”.

The District Officer gave evidence that she left her position at the Blacktown Office in September 1984 to take up a temporary job as an Acting Child Protection worker. She later clarified the date as September 1983. She did return to the Children’s Court to instruct when the matters at hand were before the Court. There was no challenge to this part of her evidence and it was accepted, at least tacitly, that the District Officer was on secondment for a number of months in late 1983 and early 1984, although she was unsure of the dates (425.35 - .40T).

In her evidential statement (Exhibit 3.7; p 38), the District Officer stated that she had no specific recollection of taking either DC or TB with her to Blacktown Police Station “at any time”. She added, however, that a child may be taken to Blacktown Police Station if the police wished to speak to the child about “laying charges in respect of a child abuse case” (p 7[36]).

In cross-examination (433T), the District Officer said that she did not have a recollection “either way” that the stepfather had been held in cells at Blacktown Police Station in early February 1984. She seemed unsure about whether she had returned to Blacktown from her secondment at that time (431.25 - .30T). She accepted that at the time she knew that the stepfather had been held in custody for several weeks over the fresh charges (which were subsequently no-billed) (433.30T); (Exhibit A.21, p 57). When asked if there were times when DC would simply tag along with the District Officer she said (431.35T) “I don’t have any recollection of that and that wouldn’t be a practice that I would – the practice I had at the time to take children around, just tagging along, is not something that was a practice of mine at the time [sic].”

She was then asked the following at 431.45 – 43.10T:

Mr Frost gave evidence that a child may be taken to the police station by a District Officer if a formal report had been made with the police (570.50 – 571.5T).

The Department submits (written submissions p 23[87]) “if this had been said honestly by [DC] then the police must have been notified of the abuse. This is clear albeit indirect evidence that [the Department] notified the police of the matter for consideration as to whether or not they would charge [the stepfather] with criminal offences arising out of his abuse of the plaintiffs”. I will return to this submission presently.

The final matter relied upon by the Department is the application for Victims Compensation lodged by each of TB and DC. DC’s application (Exhibit 5.1) was made in September 2002. At best, its contents are ambiguous on this point, it clearly refers to the report to police by TB and DC in August 2001 and suggests that the Department may have reported it in 1981, but the application contains the statement:

TB’s application dated 11th March 2003 (Exhibit 4.37) prepared by the same lawful, is in identical terms.

In circumstances where there is no direct evidence, one way or the other, whether the Department reported the abuse of TB and DC to the police, the plaintiffs must discharge the onus of proof resting on them, if at all, by reference to circumstantial evidence. In a civil case, this means that the circumstances actually established by evidence I find acceptable support the inference that the abuse was not reported as more likely than any other competing contention. In the circumstances of this case, there is only one other competing contention, that is the contention of the Department that I should infer that the abuse was reported.

At [58] above, I point out that the contemporary material, objectively established facts about the well-developed system for reporting, and the apparent logic of events support the conclusion, on the balance of probabilities, that the abuse of TB and DC was not reported to the police in accordance with the established procedures. This conclusion is, on the whole, supported by the expert evidence. In Holloway v McFeeters [1956] HCA 25; 94 CLR 470, Williams Webb and Taylor JJ said at 480:

Also referring to Bradshaw Dixon CJ in Jones v Dunkel [1959] HCA 8; 101 CLR 298 at 304 – 5 said:

However, it is well to be mindful that the civil standard is “concerned with probabilities, not with possibilities”: Bradshaw at [5].

The Department has presented what might be referred to as a “strands in the cable argument” to show that the plaintiffs have not discharged the onus of proving the police were not notified. In dealing with each strand, I have sought to evaluate them individually. I bear in mind, however, although the defendant carries no onus of proof, that the strength of the argument may come from the cumulative effect of the factors, rather than the soundness of the individual strands.

In this context, however, it should also be borne in mind that “all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted.” (Blatch v Archer (1774) 1 Cowp 63 at 65)

As I have already observed, the argument that a report may have been made informally is inconsistent with what I have described as the well-developed procedures for co-operation between the Department and the police; it is also inconsistent with the evidence of Mr Maguire and Mr Frost. Statements of experienced officers about practice are entitled to be weighed carefully. However, from the evidence it is clear that practices have changed, and developed incrementally over the last 3 decades or more and absent precision of recollection, impression and experience about practices in force at a given point in time must be viewed with caution especially when inconsistent with the contemporary records, in this case, the guidelines.

It may be that on some occasions, the Child Mistreatment Unit directed the Department to consult local police. However, given the guidelines, this seems doubtful. Moreover, as evidence supporting the defendant’s position, it is flawed because it is necessarily premised upon the unproven assumption that these cases were reported to CMU in accordance with the guidelines. That is the very fact in issue.

The idea that there was a practice not to interview parents suspected of offending “if there was a chance of a police case being pursued” falls into the same category. It assumes in favour of the defendant that the matter was reported in accordance with the guidelines and that by September 1983 police had made a decision not to charge the stepfather and had conveyed that decision to the Department. I appreciate that those assumptions gained some support from the apparent admission of DC which I will deal with separately. Subject to that consideration, it suffers from the same flawed logic as the last point.

That the Department had access to information about, and a copy of the stepfather’s criminal record is not persuasive evidence that the matters had been reported when considered in the light of the contemporary record of evidence given in the Children’s Court. That information was obtained not because a report of a suspected offence had been conveyed to police, but because a request was made of the police prosecutor present to deal with juvenile justice matters at the Children’s Court. The evidence I prefer, does not support the opposing inference that these matters were reported to the police. I have said already that the “admissions” contained in the applications for victims compensation are too ambiguous to do the work the Department requires of them, whether standing alone or taken together with the other factors I have so far mentioned.

I turn then to the evidence about DC’s attendance at Blacktown Police Station. This is the strongest factor supporting the defendant’s position. Taken at its highest it represents an admission by a party that the matter was reported and she was spoken to by police officers, who explained the reason for a decision they had already made not to lay charges against the stepfather. In the circumstances of this case, such an admission is available against both plaintiffs, them having agreed that liability evidence in one case, stands as evidence in the other: compare s 83 Evidence Act 1995 (NSW).

The “admissions” here are not introduced by the Department, which is the party who would wish to rely upon them; they are part and parcel of DC’s case. Moreover, the admission, that the matter was reported to the police and the police declined to proceed, is implied, not express. Nonetheless, “an admission by a party as to the correctness of a fact is admissible in evidence, notwithstanding that the party has no direct knowledge of the fact and must rely for his belief upon the statement of others, or upon inferences from circumstances which he knows, and which may have been reported to him”. But “it does not follow that, because such evidence is admissible, it is enough to prove the issue”: Lustre Hosiery Ltd v York [1935] HCA 71; 54 CLR 134 at 139. After reviewing available authorities, the plurality continued at [143 – 4]:

Applying this principle, it is important to bear in mind that in 1983 to 1984 DC was around 13 years of age. It cannot be assumed that she had any real experience of life and from the evidence she certainly had none of police or legal affairs. Assuming reliability for the moment, DC had no knowledge of whether a formal report had been made; careful consideration had been given to the matter by police officers; TB had been interviewed; and a considered decision arrived at. There was nothing in her account to the police or thereafter that indicated she had made a personal judgment or a conclusion of her own. The probative force of the admission is negligible. When one considers the evidence as a whole, I am not satisfied that the admission “is enough to prove the issue”.

I wish also to add however, that viewed in the light of those few facts established by objective evidence, the contents of the contemporary documents, and the apparent logic of events I am not satisfied that any such attendance at Blacktown Police Station occurred at all.

There are basically three versions given by DC about this event. The first is the simplest. It is completely lacking in any detail. From the contents of the District Officers police statement and Ms Whale’s police statement, it is apparent that the police officers investigating the matter in 2001, 2002 and 2005 had a question in their minds about why, if the matter had been reported to the Department in 1983, no police action had then been taken. This is understandable. Police officers investigating what was then an historical case of child abuse would have a particular interest in doing their best to put together a cogent case before laying charges. No similar question appears to have been asked of TB. I rather have the sense, especially looking at how the admission has grown and developed, that when the question was asked in 2002, nearly 20 years after the events, DC came up, effectively, with an excuse.

The second account is that contained in her evidentiary statement (Exhibit A.48) of April 2014, which is very unpersuasive. It has the flavour about it of a reconstruction put together to neutralise the potential problem arising out of the “admission” in a case that stands or falls on the question of whether the abuse was reported to the police in a timely way to prevent further abuse. I do not accept that in late April and May of 1983, DC was spending her days tagging along with the District Officer as she was attending to her other duties. I prefer the District Officer’s evidence about that. It seems to me inconceivable that it would be in any way appropriate that a District Officer engaged in child protection work would perform her duties with an abused child “in tow”. The evidence in no way explains what a District Officer would be doing at the police station if she was not there to consult police about a case of child abuse. Part of the careful reconstruction is, of course, the assertion that DC “did not speak to any police officer at the station”. More surprising is the evidence that having attended the police station, DC did not see the District Officer “talking to any police officers”. But the main purpose of the reconstruction is to create the impression that rather than the police saying anything about why no prosecution was being brought, the District Officer was simply fobbing DC off.

The third version, which was offered in evidence, aggravates the evidence’s incredibility, leaving me incredulous. The whole focus has changed. Gone is any suggestion that the District Officer was in any way attending the police station upon some usual round of ordinary business. The whole purpose of the trip becomes DC wishing to go there to see her stepfather, who has been arrested on yet another charge of sexual assault (later dropped). The implication seems to be if he has been charged in respect of these other matters, why has he not been charged for his abuse of TB and DC. The aspect of the District Officer allegedly fobbing off the inquiry is retained.

I reject DC’s evidence of the attendance at Blacktown Police Station in its various permutations as unreliable.

I am persuaded on the balance of probabilities, that the preferable inference is that the reports of abuse were not reported to the police. In addition to the matters to which I have referred already favouring that conclusion, I wish to add a number. First, there is absolutely no mention in the contemporaneous records derived from the Children’s Court of any report having occurred. Even when the Magistrate was mistaken about whether the pending charge related to TB and DC and he was corrected, it was not said that a report has been made and the Department is awaiting a decision (see [67] above); it was not said that a report has been made and the police had decided not to proceed. Second, none of the reports of the District Officer about her conduct of her investigations contain any reference or mention of any report to the police or any attendance upon the police station. Third, in addition to what I have referred to already as the apparent logic of events, I am not wholly satisfied that the explanation given by the Department for the absence of its files is completely satisfactory.

I am conscious that in her first police statement of 26th August 2001 (Exhibit A.27) DC said, “I have … applied for my [Department] file, but have been informed these files were transferred to Bateman’s Bay and have since been misplaced”. This lends support to Mr Maxwell’s evidence. See (Exhibit 3.5, p 10 [13] – [16]). It does not go beyond the experience of the Courts that where there is a long delay in bringing cases, documents or other evidence might be lost, just as memories fade. However, the Department is not entirely without fault when it misplaces its own records. To that extent, the principle in Blatch v Archer assists, albeit it to a small degree, in reaching the decision I have made.

I have already recorded findings that the risk of TB and DC each suffering further or continuing physical and sexual abuse was both foreseeable in the sense of being not fanciful or far-fetched, and not insignificant. The s 5B(1)(c) question remains, which must be answered by reference to s 43A CLA. Looking at that matter wholly prospectively as though further and continuing abuse alleged by each plaintiff had not occurred, and looking at the question from the standpoint of a responsible public authority, having the particular expertise and functions of the Department, I have concluded that no authority acting reasonably could properly consider the failure to report the abuse of TB and DC to the police to be a reasonable exercise of the powers conferred upon it by s 148B(5)(b) CW Act.

To the extent to which it may be necessary to give separate consideration to the s 5B(1)(c) condition, in my judgment, in the circumstances, and having regard to the s 5B(2) considerations, a reasonable public authority in the Department’s position would have taken the precaution of reporting the matter to the police. There can be no question from what the Department knew from as early as 22nd April 1983, of the stepfather’s serious criminal record for sexual offences and of the information it received from TB and DC and their mother by 6 May 1983, that there was a high degree of probability that the abuse would continue if care was not taken. Given the nature of the past abuse, if the harm did occur, it was likely to be very serious. The burden of reporting the matter was slight. No more was required than the Department act in accordance with the guidelines for inter-departmental co-operation it had agreed with the police and the Department of Health. It needed only to observe what Mr Maguire, Mr Frost, the District Officer, and Ms Whale regarded as the Department’s own invariable practice in any event. That involved no more than the District Officer, after she had notified Montrose, reporting the matter to Mr Frost and him telephoning the New South Wales Police Child Mistreatment Unit. No issue of any difficulty, inconvenience or expense arises capable of displacing these other considerations. Nor does any question of social utility arise in accordance with s 5B(2)(d).

In each case, I find the Department negligent.

The question of course arises about when the precaution of reporting to the police ought to have been taken. The plaintiffs’ case as pleaded (and run) relies upon an ongoing obligation. See [52] and [53] of each Second Further Amended Statement of Claim. In oral argument this was refined somewhat. It was that the report to CMU ought to have been made no later than 28th April 1983 or as soon as practicable thereafter. On that date the District Officer in the presence of Mr Frost interviewed the mother of TB and DC who confirmed knowledge of the details of the abuse disclosed by TB and DC (see Exhibit A.7). In the alternative, the report, or a further report, should have been made when the stepfather made admissions on 15th September 1983.

Given the seriousness of the history of abuse received by the Department and the confirmation by the mother of the plaintiffs, I am of the view that the report to CMU should have been made no later than 28th April 1983. I think it unnecessary to consider whether a further report should have been made in September 1983. I have rejected the argument that a report was in fact made in April 1983 and that the police declined to act upon it.

In the case of TB and DC, I find the Department negligent.

I have already found that the District Officer did not owe any independent duty of care in the circumstances of this case. If I am wrong in this conclusion, I would not find her negligent. I am satisfied she did no less than was required of her in the conscientious discharge of a duty of care of young people under her protection who were victims of physical and sexual abuse. So far as she had any obligation in respect of the established process for reporting abuse to the police, the very kernel of the plaintiffs’ case in negligence, that obligation was discharged by the notification to Montrose and by reporting the matters to her superior, Mr Frost who had operational responsibility for child protection matters at the Blacktown Office. That she did report to Mr Frost, and promptly, is made manifest by his attendance at the interview with the plaintiffs’ mother on 28th April 1983 (Exhibit A.7).

The plaintiffs do not say that any of the other steps taken by the District Officer for their protection were inappropriate. A careful consideration of the extant contemporary records, (Exhibits A.3 to .23) demonstrates that the District Officer was careful, conscientious and diligent in the exercise of her functions for the protection of TB and DC. Leaving aside for the moment the contentious question of whether complaints of further abuse were made to her by TB and DC, the steps actually undertaken by the District Officer were appropriate action for the purpose of s 148B(5)(b) CW Act.

I repeat, I am not satisfied that the District Officer was negligent in the circumstances.

Damage is “of the gist” of the tort of negligence. No action for negligence lies unless the plaintiff proves on the balance of probabilities that the negligence I have found caused further and ongoing physical and sexual abuse resulting in consequential mental harm as alleged by each of TB and DC: ss 5D and 5E CLA. Legal causation in the tort of negligence has two elements (s 5D(1)):

As the parties have presented the issues for determination by me, proof by the plaintiffs of factual causation, in each case, depends upon the answer to two questions, always bearing in mind that the onus of proof lies upon each plaintiff.

The first question is whether each of TB and DC has proved that the stepfather continued to abuse her either physically, or sexually, or in both ways, after the earlier abuse was first-notified to the Department? This is a straight question of historical fact. The second question is would reporting the matter to the police have obviated the further or ongoing abuse alleged? This is a purely hypothetical question. But whether a straight question of fact, or a hypothetical question, an affirmative answer to each must be established by each plaintiff on the balance of probabilities. Section 5E provides:

In explaining the issues above, I have deliberately used the expression that the Department does not accept that further and continuing abuse occurred. In formal terms, in its Defence to the Second Further Amended Statement of Claim, the Department “does not admit” the allegation of further and continuing abuse. And it “denies” the allegation that each plaintiff complained to the Department through the District Officer about that continuing abuse. These differing verbal formulations, both amount to a “traverse” of the allegations. That is to say, whether expressed as “does not admit”, or as “denies”, that form of pleading puts each plaintiff to proof of the “traversed” allegation: Rule 14.26(2) Uniform Civil Procedure Rules 2005 (NSW). The difference is a matter of form, not substance. A traverse by non-admission is usually taken as indicating that the fact disputed is not within the defendant’s knowledge.

In the circumstances of this case, for ethical reasons, senior counsel for the defendants did not put to either plaintiff as a positive proposition that the abuse did not occur. The Department does not positively submit that no further physical or sexual abuse took place. This does not mean that the Department accepts that it did. Rather, the Department argued that I could not be satisfied on the balance of probabilities that abuse of the kind complained of by TB and DC continued after notification to the Department. The Department does positively submit that no complaints of any continuing abuse were made by either TB or DC, in particular, to the District Officer.

Senior Counsel for the Department submitted at (609.30T):

The Department accepted that requiring TB and DC to kiss the stepfather or to sit on his lap was a kind of abuse and given the past history and his conduct, TB and DC, understandably, might find “abhorrent” (written submissions page 17 [69]). The question of whether complaints were made is relevant in two ways. First, it may be probative of whether abuse was actually occurring; and secondly, the complaints may constitute notification for the purpose of s 148B(2) CW Act enlivening a power, perhaps obligation, to further investigate: (623.30T).

Senior Counsel for the plaintiffs submitted that the care with which the plaintiffs described the subsequent abuse, distinguishing it from previous abuse, suggests “a genuine memory in the circumstances” (631.35T). He also argued:

In her evidentiary statement (Exhibit A.47) TB said that sexual assaults continued and occurred on many occasions between April 1983 and March 1984 including digital penetration, forced fellatio and inappropriate touching and kissing. These assaults occurred when TB would visit her mother whilst she was on placement elsewhere, and after she returned home pursuant to the Children’s Court orders when the stepfather would visit the home contrary to the conditions imposed by the Court. On each of these occasions, her mother, sister or brother was present in the home. The assaults also occurred when her mother took her to visit the stepfather at his rented accommodation. TB said (Exhibit A.47, p 165 [86] “[a]t the various meetings which I had with [the District Officer] over the next six months or so [after April 1983] which I have just described and at which I informed her that [the stepfather] was continuing to come around and that nothing had changed, [the District Officer] never specifically asked me if [the stepfather] was continuing to sexually abuse me. Neither did I explicitly volunteer that fact to her”.

Her evidence-in-chief was a little different. She said she did make complaints to the District Officer after April of 1983. She said at (81.25 – 82.25T):

The account is lacking in significant detail. This may be understandable given the decades that have since elapsed and some victims may cope by suppressing memories. On the other hand, others may find it hard to forget. Given the history of this matter, where for various purposes including reporting to the Department, seeking medical treatment for psychological difficulties, providing statements to police for the prosecution of the stepfather, and providing other accounts for the purpose of this case, the phenomenon referred to by McHugh J in the M v The Queen (see [11] above) may well be at play. As I have already remarked, this is a case where the accuracy of the details is crucial.

TB was cross-examined in the conventional way to establish that in giving her various accounts over the years, she was doing her best at the time to tell the truth: (110.10 - .20T; 116.40 - .50T).

Looking at all the documents compiled over all the years, there is a lack of any explicit record of any abuse after April 1983. I appreciate that these records are all made by people other than TB and that not all of them are necessarily internally consistent.

In her first detailed report to the Children’s Court (Exhibit A.11), the District Officer recorded that the stepfather had returned to the family home and that TB had become “increasingly distressed”. TB explained her distress as she was being blamed for “breaking up the family”. She complained that her mother was siding with the stepfather and that they were acting as if nothing had happened. TB told the District Officer that she had harmed herself recently twice by cutting her wrists. She had asked to be locked up in a home. TB had become aware of the sexual assault charge in relation to the son’s girlfriend. TB was openly hostile to the stepfather (as anyone would completely understand) reporting that “she hates him and doesn’t want anything to do with him” (Exhibit A.11, p 27). The District Officer expressed her “great concern for the physical and emotional safety of the children” because of the stepfather’s record and “longstanding history of inappropriate sexual behaviour”. She referred to a need for a period of thorough assessment and evaluation. Considering this detail, it is difficult to accept that any complaint of ongoing physical or sexual abuse would have been ignored by the District Officer, as TB’s evidence suggests.

A further detailed report was prepared on 19th September 1983. This included the interview with the stepfather where he admitted his abuse of TB and DC (Exhibit A.12). TB is recorded as having commenced “in a therapy group for adolescent sexual abuse victims”. TB reported “feeling depressed and uncomfortable at home”. Because she felt pressured by her mother into agreeing to visits by the stepfather. TB said she was terrified of the stepfather, “particularly now she has exposed the abuse”. She said “during the time that she was abused” the stepfather had threatened her if she disclosed it. TB was afraid that the stepfather would act on the threat once the legal process was over. There is no record of any complaint about ongoing abuse. The District Officer recorded:

The evidence at the hearing in the Children’s Court on 19th September 1983 is contained in Exhibits A.13 and A.14 with the Magistrate’s reasons at Exhibit A.15. Quite detailed evidence is taken from the mother (Exhibit A.13). There is a concern expressed by the Magistrate (p 40) about the risk of future abuse, but no suggestion whatsoever of any having occurred since April 1983. During argument, the Magistrate said (p 45):

TB and DC were separately interviewed by Mr Ian Skead, a psychologist employed by the Department (see Exhibit A.17). TB was described as “initially suspicious, extremely guarded … young lady”. He recorded:

As required by the Children’s Court Magistrate, TB was examined by a psychiatrist, Dr Blow, on 19th October 1983 (Exhibit 4.29). Dr Blow recorded that TB “tended to revert frequently to the topic of abuse during the interview”. He records nothing of any ongoing abuse after the report.

In her first police statement (Exhibit A.28), TB gives a very detailed account of the physical and sexual abuse of her by her stepfather. She recounted telephoning the Department from her grandmother’s house (presumably in April 1983) and being interviewed by the District Officer. She said (probably not entirely accurately) at Exhibit A.28[17]:

In her second statement to police (Exhibit A.30) dated 1st June 2002, TB gives further details of the abuse and provides documents in support, no doubt as requested by police. Her last complaint of a sexual nature relates to a case of indecent assault that occurred in late May or early June of 1982 whilst the family was on a trip around Australia. There can be no doubt that that matter preceded the report to the Department.

As I have said earlier in this judgment, the last charge in point of time laid by the police against the stepfather for an offence committed on TB was the charge of assaulting her, occasioning her actual bodily harm (Exhibit A.43). The stepfather pleaded guilty to that charge at the first opportunity, initially denying the sexual abuse charges. This was the tennis court incident which occurred before the report to the Department. TB’s present recollection is that it was the catalyst for her report as it occurred on the very day that she made the report. However, when first interviewed by the District Officer in April 1983, she said it happened “last year just after Christmas” (Exhibit A.3 p 7). Not much weight can be placed upon decisions made by prosecuting authorities about what charges to bring because the decision involves an exercise of discretion with complex considerations. But the absence of any charge after the report to the Department is not without significance.

The same impression is generally obtained from considering the various medical reports in evidence. After the report to the police, TB made a claim for Victims’ Compensation. She saw a psychologist,Ms Napier, for this purpose. Ms Napier acknowledged “the chronology is a little hazy” (Exhibit 4.5), but the tenor of the history recorded is that after TB “disclosed outside of the family” there was no further abuse.

TB was admitted to the North Side Clinic for treatment of undoubted post traumatic disorder on 4th August 2005. The history recorded at the time of her admission is as follows:

To my mind, a particularly telling matter concerns the qualification of Dr Michael Diamond, psychiatrist, to give evidence on behalf of TB for the present case. In writing to Dr Diamond on 20th December 2007, TB’s solicitor stated that the abuse had occurred “between 1975 … and early 1983”. The matter was reported to the Department in “April 1983” (Exhibit 4.21). The expert was asked to assume that some form of “forced sexual intercourse” occurred “every second night from sometime in 1974 until about April 1983”.

Dr Diamond examined TB on 1st February 2008 and produced a report dated 15th February 2008 (Exhibit A.70). He recorded a detailed history of sexual abuse up until 1983 (p 6). He recorded:

As I have said, the application for Victims Compensation (Exhibit 4.37) lodged on behalf of TB is somewhat ambiguous. It alleges abuse between 1974 and 1982, which the Department says is an inconsistency favouring it. At the same time, reading the answer to questions 31 and 32 as a whole, it asserts a report to the Department in 1981. Accordingly, it may be taken as asserting that the abuse continued after the report to the Department. When asked about the dates 1974 to 1982, TB said “I didn’t fill this in”; “those dates are incorrect” (120.15 - .25T). She also said “the details are true” (my emphasis). She denied signing the document because she believed it to be true at the time (120.40T). However, because of the obvious error in the chronology, TB did not embrace, or adopt, the document (124.45T).

It might be said that the relevant detail that needs to be accurate is whether the abuse continued after the report to the Department. And in general terms, this exhibit supports that. But it stands against a very substantial body of other material which does not. And, as I have said it is not a document which is embraced by TB personally.

Matters which do favour a finding that the abuse continued after the report include the stepfather’s abhorrent behaviour; that he committed a sexual assault in January 1983 for which he was later convicted; further allegations of sexual assault in early 1984, which were dropped; the mother’s dependency upon the stepfather and her unwillingness to let go of him, despite her knowledge that he had previously abused her daughters; the mother’s tendency not to comply with the conditions of orders made by the Children’s Court in the interim period between April 1983 and October 1983, in particular, allowing visits from the stepfather to the family home; the stepfather’s bad criminal record for sexual offences; and the District Officer’s legitimate concern that TB (and DC) continued to be at risk from him.

However, these factors all go merely to a continuing or increased risk which is insufficient to satisfy the “but for” test.

In the absence of any contemporary documentation of any significant abuse after the notification to the Department and having regard to the large body of subsequent statements by TB which failed to mention ongoing abuse, I am not satisfied on the balance of probabilities that physical and sexual abuse of the type previously inflicted by the stepfather continued after the report to the Department. There may have been, as the Department concedes, some requirement imposed by the mother to shows of what might otherwise be appropriate shows of paternal and filial affection. In the context of the previous abuse, I accept the argument that that conduct would have been abhorrent to TB. Having regard to her understandable attitude to the stepfather as recorded in contemporary documents I doubt TB would have complied with her mother’s wishes.

I am not satisfied that TB has proved that the Department’s negligence was a necessary condition of the undoubted harm suffered by her.

It almost inevitably follows from this, that I am not satisfied that there was any complaint of ongoing abuse to the District Officer. However, I prefer to record my finding that in the absence of any contemporaneous record of complaint in the extant material, I accept the evidence of the District Officer at Exhibit 3.7[29] and I accept her evidence at 443.35 – 444.15T, and at 453.45T that she has no recollection of any complaint. Again this is hardly surprising after the effluxion of time. However, from what I regard as the care she took in compiling her reports to the Court, I am of the view, that had such complaints been made, they would have been recorded in those reports and reported to the Children’s Court. I am not satisfied on the balance of probabilities that TB complained of ongoing abuse to the District Officer.

In her evidential statement, (Exhibit A.48) DC recounts that the stepfather continued to sexually assault her after the report to the Department ([51] – [59]). The stepfather was not living at home, but the mother would allow him to visit and sometimes stay overnight. DC said the stepfather was coming to the house on an almost daily basis ([50]). He sexually abused her by forcing her to perform fellatio on him, digitally penetrating her and indecently assaulting her. She said that he would take any opportunity presented by the mother’s temporary absence, even going outside to retrieve something from the car to perform these acts ([58]).

In her evidence-in-chief, DC said that she told the District Officer numerous times about the continuing abuse. She gave the following evidence (at 190.35 - .45T):

DC’s evidence was that a demonstration of that type occurred at the Department’s Blacktown Office “more than once”.

In cross-examination at (229.15T) DC denied that the extent of the contact with her stepfather was, in the presence of the mother, the stepfather putting DC on his lap and cuddling her.

Once again, a close consideration of the extant contemporary material does not support DC’s evidence about this abuse. In her report of 20th June 1983, the District Officer recorded (Exhibit A.11, p 27) DC had a close relationship with her mother and brother. DC was then living at home with her mother and her stepfather had returned. DC told the District Officer that she did not like the stepfather, felt uncomfortable with him at home and would feel better if he left. The District Officer’s assessment was that “the issues of the abuse do not appear to be as distressing for [DC] as they are for [TB], but it is likely to emerge as she moves further into adolescence”. There is no record of any complaint of any continuing abuse.

In the report of 19th September 1983, (Exhibit A.12, p 29), the District Officer recorded the following:

Once again, none of the transcripts of the Children’s Court proceedings contain anything to suggest any ongoing abuse or that such abuse had been reported.

DC was also examined by Mr Skead on 18th October 1983 (Exhibit A.17), DC presented as functioning within the Superior to Very Superior Range of ability. She was ambivalent about her stepfather and had no desire to continue contact with him. She did not wish to cause her mother further distress. Again, there is no suggestion of any complaint of ongoing abuse.

DC was also examined by Dr Blow on 19th October 1983 (Exhibit 5.16). No history of ongoing abuse is recorded. Dr Blow refers to “earlier sexual abuse”. He said:

The concern that the District Officer expressed about the effects of child sex abusing manifesting themselves in adolescence, appear to have been fulfilled sooner rather than later. On 12th June 1984, DC was charged with being a neglected child “in that she had no fixed place of abode” (Exhibit A.19). DC had been living in a refuge at Bankstown, having run away from a facility operated by the Department known as Dalmar. DC reported that she was not speaking with her mother and did not wish to live with her because the mother had the stepfather “coming there all the time”. From the District Officer’s affidavit (Exhibit A.20 p 56) DC appears to have no difficulty expressing herself. No complaint of ongoing sexual abuse was made.

In her report to the Court dated 22nd June 1984, (Exhibit A.21 p 58), the District Officer observed that DC’s behaviour had altered remarkably over the 12 months and she is “an extremely angry girl”. There was no report of ongoing abuse. DC returned to the family home after the mother finally excluded the stepfather on 9th July 1984 (Exhibit A.22 p 59).

It is possible that some of DC’s reported behaviour could be explained by ongoing abuse, but it may explained by past abuse. In the absence of any contemporary evidence of abuse, or complaint of abuse, past abuse is the more probable explanation because of the undisputed evidence that it occurred.

DC made her first statement to the police on 26th August 2001 (Exhibit A.27) and gave a very full account of her stepfather’s physical and sexual abuse of her. In her case, in contra-distinction to TB’s, the abuse was mainly sexual. She said (at [14] – [16]) that when she was 13 TB reported the abuse to the Department. She gave a short history of the involvement of the Department and made no mention of any further or ongoing abuse by her stepfather. Further details are provided in her second statement (Exhibit A.29). She recounted what happened after TB notified the Department in greater detail [31] – [38]. She did say (at [32]) that she decided to “clam up” when her grandmother expressed incredulity about her complaints of sexual abuse. She confirmed that her mother took her to visit her stepfather when he was living away from home “and when we got there he would force me to sit on his lap and cuddle him” [33]. Once again, however, there was no complaint of any continuing abuse beyond that matter, unpleasant in itself, as I accept, but certainly nothing in the nature of the detailed severe abuse DC gave evidence of in her evidential statement. That she mentioned only that matter to the police strongly suggests that no worse abuse occurred.

A third statement of 15th July 2005 (Exhibit A.40A) gives further details and provides documents to corroborate the details provided. But there is no complaint of any abuse after the Department was notified.

Subject to the same qualifications, as I have expressed in relation to the counts on the indictment dealing with TB, the latest charge (count 8) is said to have occurred on or about 1st October 1979.

DC’s Victim Compensation Application (Exhibit 5.1) alleges abuse between 1975 and 1981 with a report to the Department in 1981. Another application (Exhibit 5.3) makes the same claim. Allowing for the ambiguity, this suggests the abuse stopped when the Department was notified.

It is again telling that in qualifying Dr Diamond to give evidence on DC’s behalf, the plaintiff’s solicitors provided a history of abuse between 1975 and early 1983. The letter again recounted the report in April 1983 by TB and in setting out the facts to be assumed, the following is narrated (at Exhibit 5.14[6]):

Dr Diamond’s report is dated 19th February 2008 and is Exhibit A.77. He examined DC on 1st February 2008 and received a detailed history of the sexual abuse (p 5-6). DC told Dr Diamond that after the report to the Department, in his words, she underwent “a chaotic, distressing and terrible time from about the age of 13”. In talking about this she showed “objective signs of disassociation during the interview”. However there is no history recorded at all of any further sexual abuse by her stepfather after the Department was notified.

I accept that the mother’s dependence on the stepfather; the stepfather’s bad record and history of previous abuse; DC’s vulnerability as a child sex abuse victim; and the concerns of the District Officer, were all factors which demonstrate that DC was at risk of further abuse by the stepfather whilst in her mother’s care, after the Department was notified in April 1983. However, increased risk is insufficient of itself to prove causation.

I have already expressed the view that DC’s evidence about the attendance at Blacktown Police Station was a reconstruction. Such a phenomenon may be informed by her psychiatric condition, raising as it does, aspects of disassociation. The absence of any record of any ongoing abuse in any contemporary document and, indeed, the absence of a history of it in the accounts given to police and Dr Diamond between 2001 and 2008 make comfortable acceptance of her evidence about the post notification abuse difficult. I did not find her account of the post notification abuse, or her evidence about complaining to the District Officer, persuasive.

I am not persuaded on the balance of probabilities that the stepfather continued to sexually abuse DC after notification to the Department.

Again, it is almost inevitable from this finding that I must reject the evidence that complaints were made to the District Officer, again had such complaints been made, I am satisfied that they would have been included in the District Officer’s reports to the Children’s Court and drawn to the Court’s attention by the solicitor representing TB and DC in those proceedings. Although the District Officer is not able to expressly disavow or contradict the evidence of DC about these matters, nor does she, for what it is worth, accept it. I thought the District Officer an honest witness, although somewhat inclined to be defensive and discursive. Had these things occurred, I believe she would have made a record of them at the time. She had some independent recollection of DC’s case and would have remembered ongoing abuse as a feature of it, had that occurred.

I am not satisfied that the Department’s negligence was a necessary condition of DC’s undoubted severe post-traumatic stress disorder.

Given I am not satisfied that the failure to report the abuse to the police was a necessary condition of the severe psychiatric injury of both TB and DC, the question of whether the police would have charged the stepfather upon receiving a report in accordance with the guidelines is essentially moot. However, it is appropriate that I answer it contingently.

I have set out above, what I regard as the main thrust of the expert evidence. I do not propose to descend into it in more detail. It is true, as the Department has submitted, that the evidence of the experts was appropriately nuanced and sensitive to, even minor variations in the assumptions put. Deciding any hypothetical question obviously involves many imponderables.

Much has been made of the changes that have occurred in the procedural law relating to the prosecution of offenders for child sexual abuse over the last 3 decades. These are doubtless important and make it easier for vulnerable victims to come forward, and give evidence. It may also be that in some respects attitudes in law enforcement have changed and police and prosecutors have shed any previous hesitation over laying charges and prosecuting offenders.

However, the substantive law and fundamental community values have not changed in 35 years. Then as now, child sex abuse was a serious criminal offence. Then as now, child sex abuse was abhorrent to all right thinking people; then as now offenders were punished condignly on conviction, although reforms to sentencing law generally, have pushed sentences up across the board including for child sex offences.

The content of the guidelines persuade me that had a report been made to the Child Mistreatment Unit, as was required by the guidelines, in all probability charges would have been laid. The guidelines themselves, as I have said, contemplate that offenders will be charged. If middle management of the police and the Department could not agree on that, the matter was escalated to a very senior level in both agencies. This makes it more likely, not less, that if reported charges would be laid.

I accept that a decision to lay charges always involves the exercise of a discretion not reviewable by the courts, even if not consciously exercised. The only suggestion of a discretionary matter telling against charging the stepfather is the supposed fragility of TB. In this regard emphasis is laid upon the instances of self-harm which occurred. Accepting that, the overwhelming impression one obtains from reading the contemporary records is that she was robust, resentful of the stepfather (for good reason), and had a strong and natural desire to see him brought to justice. I reject the idea that her “condition” would have been a reason not to lay charges. It should be well borne in mind, that TB was a young person who had the gumption to report the abuse. This doubtless took considerable courage for which she is to be commended. In my judgment she would have maintained her courage had charges been laid.

There was every reason to charge the stepfather, he had a bad previous history, he had been charged with a serious sexual assault of another young woman at the time these events came to light, and corroborative evidence proved easily obtainable. The mother, in fact, made statements supportive of her daughters. Records would have been available from Dr Boots, the psychiatrist the family consulted in the late 1970s. Even without the stepfather’s informal admissions to the District Officer, a strong case could be marshalled readily.

Although this sentiment forms no part of my legal reasoning in the case, that charges were made against the stepfather for sexual assault of his son’s girlfriend and for the sexual assault of the young woman at his place of work in 1984 (even if this charge was later dropped), well-justifies the sense of grievance harboured by TB and DC that no charges were laid to vindicate them as victims at the time the offending was brought to light by TB’s complaint.

Again, as I have found no abuse occurred after TB reported the prior abuse to the Department, this question in truth does not arise, and it is difficult to answer at this level of abstraction. TB and DC put their case that either upon charges being laid, the stepfather would have been remanded in custody or any bail would have been subject to stringent conditions inhibiting his liberty. A point of distinction is made that as the stepfather was not a party to proceedings in the Children’s Court, orders made there did not bind him even when the conditions pursuant to which the orders were pronounced extended to his conduct. This is a valid distinction.

Even under the Bail Act 1978 (NSW) (repealed) in its then form, there is a strong possibility that the stepfather would have been denied bail. His record, that he was facing other serious charges, the seriousness of the offending and the legitimate concerns the Department had for the welfare of TB and DC would provide a strong case against the grant of bail. Had bail been granted, obviously the conditions would have been stringent. They would have included a condition that he not in any way contact or approach TB and DC.

Moreover, the first condition is generally that the applicant for bail is to be of good behaviour. I think I am entitled to take into account that the vast majority of people granted bail, observe their bail undertaking and its conditions. If one puts to one side the allegations of ongoing abuse of TB and DC, there is no suggestion in the evidence that the stepfather did not observe the conditions of his bail, at least until he came under suspicion for a further sexual assault in 1984. It does not behove a court to be cynical about the force of bail conditions. Dealing with the matter hypothetically, but in accordance with s 5E, on the balance of probabilities, I am persuaded that had the stepfather been charged, and bail not refused, he would have complied with what would have been stringent conditions as to his conduct whilst on bail awaiting trial.

As the powers conferred by s 148B(5) are for the protection of children at risk, had the question arose, I would have decided that the serious mental harm suffered by each of TB and DC was within the scope of the Department’s liability, that is to say, for that reason, I would have found that it is appropriate for the scope of the Department’s liability to extend to the harm so caused: s5D(1)(b) CLA.

Notwithstanding my findings on liability, it is appropriate that I set out my views in relation to the quantum of each claim. In these circumstances I think it is sufficient if I express myself as briefly as the circumstances will permit.

There are two important issues I wish to say something of at the outset. I will need to approach the contingent assessment of damages on the assumption that there was ongoing abuse in each case after TB complained to the Department. Moreover, as I will make clear, I have no doubt each of TB and DC as a result of their childhood physical and sexual abuse have suffered serious psychiatric injury in the form of post-traumatic stress disorder. In my judgment, all of the abuse over the whole period caused this condition. It is necessary also to bear in mind that each instance of abuse also involved a physical assault and it seems to me that the post-traumatic stress disorder suffered by each of TB and DC is mental harm consequential upon the infliction of those physical injuries. In one sense this could lead to conceptual difficulties involving questions of apportionment and the like. However, I am persuaded that the correct approach is to treat the harm suffered by each plaintiff and all of its consequences as indivisible. There can be no doubt that had I been satisfied on the balance of probabilities that the ongoing sexual abuse had occurred, those further assaults would have materially contributed to the totality of the harm suffered.

This does not mean that TB and DC are entitled, by application of the compensatory principle, to receive damages for the whole of their loss. It must be acknowledged that their injuries also resulted from abuse for which the Department has no legal responsibility. There may be many permissible ways of approaching this difficulty. However, I think the appropriate course is to apply the following principle of general application discussed by Ipp JA in Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; 3 DDCR 1 at [101] – [103]:

The principle is capable of applying to all heads of damages. At [105] – [106] his Honour said:

This principle obviously has application to the present case given the significant history of abuse over, in TB’s case about 9 years prior to April 1983, when the Department first became involved. The period is slightly less in DC’s case, but it may be that the abuse was not as extensive and did not include the physical assaults suffered by TB. It seems to me for the reasons given by Ipp JA, the process of disentanglement arising out of Watts v Rake [1960] HCA 58; 108 CLR 158 and Purkess v Crittenden [1965] HCA 34; 114 CLR 164 may be “more easily achieved” in the circumstances of this case. This is not a case where a plaintiff was merely subject to some susceptibility of injury but for the negligence of a defendant. It could not be seriously argued here that no injury may have occurred at all if the Department had not been negligent. Overcompensation can be avoided by applying a percentage discount on the damages which would otherwise have been awarded had the defendants negligence been the sole cause of the plaintiff’s harm. In the present cases I think that the appropriate approach, given the difficulty of evaluating the significance of the pre-existing abuse for each of the various head of damage is to adopt an “across the board” discount.

It would not be reasonable as between the Department and each plaintiff to apportion the damages by calculating the length of time during which the Department was involved as a proportion of the total period of abuse. Assessment is not about arithmetic, per se. Had abuse occurred on the Department's “watch”, its consequences may be more psychologically scarring because each plaintiff might feel let-down and defenceless. The plaintiffs were older and more keenly aware of the wrong being done to them. In my assessment it would have been appropriate to reduce the damages referrable to each plaintiff’s total loss by a factor of 70%.

As I attempt to make clear, the full extent of the psychological injury was not apparent until the time of the stepfather’s trial in 2005. The Department cross-examined each plaintiff and introduced evidence showing that for many years prior to 2005 each had suffered various emotional and psychological problems which, at the time, were related to specific stressors rather than their experience of child sexual abuse. For instance, in TB’s case, it is clear that she was receiving some treatment as far back as 1989. A particular flare-up of symptoms at a particular time may have been attributed then to a specific precipitant. For instance, DC suffered specific symptoms due to harassment at work in September 2004 which persisted for at least some months. However, with the benefit of hindsight, which is available for the determination of questions of causation, I am of the view that these other incidents are, on the balance of probabilities, manifestations of the underlying diagnosable psychiatric condition which results from the child sexual abuse and which was not wholly made unmasked until about August 2005.

The sexual abuse of TB and DC spanned a period of years. When the Department was first contacted by TB in early April 1983, she was 15 years, and DC 12 years, old. From the psychiatric evidence it was not until the stepfather’s trial beginning on 1st August 2005 that both TB and DC’s psychiatric illness was fully manifest, as Dr Diamond has said, as post-traumatic stress disorder (PTSD). TB and DC were aged 38 and 34 years respectively. Since this time they have both experienced an increase in their psychiatric symptoms. Prior to the confrontation with the stepfather in court, the psychiatrists Dr Diamond and Dr Champion agree, both TB and DC employed various coping and dissociative mechanisms in response to their respective traumas which ultimately was overpowered upon seeing their stepfather again in 2005.

TB says that she has only gradually come to understand over years the extent of what happened to her. She says that the stepfather’s trial and sentencing unleashed very strong emotions. As time goes on she continues to realise all of the ways in which that abuse affected her life. She says that her panic attacks and agoraphobia which she developed in late 2005 significantly impact on her ability to function in every aspect of her life: she has difficulty going out of the house by herself; she does not answer the door or telephone if she is home alone; she has difficulty taking her children to their sporting and school commitments; she has trouble sleeping; she is fearful travelling alone on the train; and generally her socialising has been extremely limited. She has also had difficulty in her relationships and following the stepfather’s parole in 2010 had to move houses twice out of fear that he would find her and carry out the threats he had made against her. She says that she feels constantly depressed and that every day the sexual assaults come to mind as she thinks of what he did and of how no one really helped her.

Dr Diamond and Dr Champion agree in their joint report (Exhibit A.80) that TB has suffered from some form of mental illness since the age of 18. They agree that she suffered conduct disorder, depression, substance abuse, postnatal depression, marital and sexual difficulties wrist cutting and drug overdoses, disassociative symptoms and as I have said chronic PTSD manifesting at the stepfather’s trial. Dr Diamond says that her PTSD predates 2005, there being evidence to support a diagnosis from the time of her injuries, that is dating back to the sexual abuse as a child. He would relate the other symptoms to that diagnosis. He is of the view that TB is psychiatrically unwell and it is likely that she will remain afflicted with a longstanding chronic condition. He says that her degree of illness is severe and pervades all aspects of life; she is persistently afflicted by high levels of arousal, fear and anxiety. I acknowledge that he says that she has made an attempt to take control of her life in his final report dated 9th June 2013. Notwithstanding this, his final view is that TB has a marked dependence on other persons to make her feel comfortable and she still has times where she loses control of her symptoms, and of her drinking. Dr Champion agrees with Dr Diamond that the prognosis for TB is poor. He says however that but for the confrontation in court this poor prognosis would not have applied.

Where there is a difference, I prefer Dr Diamond’s view. It makes more sense that the abuse over a long period of time would account for her severe condition. I prefer the view that the confrontation with the stepfather made manifest the underlying condition caused by the stepfather’s abuse.

TB submits that her injuries have destroyed a large part of her enjoyment of life including work, family and other relationships. She also submits that there is an effect of the symptoms of depression and anxiety on her personality, including its physical manifestation, such as her reliance on alcohol. She says an appropriate award as a proportion of a most extreme case is 85%. The Department dispute this, submitting that an award of no greater than 50% is appropriate in the circumstances.

TB is currently 47 years old and has 3 sons. According to the table of medium life expectancy for Australia she has a life expectancy of 88 years. She has from a very young age suffered sexual abuse at the hands of her stepfather. I have no doubt that such severe abuse has left deep psychological scars. In my view, her psychiatric illness will continue to impact on her enjoyment of her day to day life. This is so notwithstanding the steps she has taken in more recent years to control her life. She currently has a supportive partner and family yet the psychiatric evidence emphasises the dependence she has on such external figures to feel comfortable and at ease. Having regard to the nature of her injuries, the pain and suffering she has endured, the loss of amenity and enjoyment of life I assess her non-economic to be 66%. This entitles her to an allowance of $377,500, subject to the overall discount.

Turning now to DC, she says that during the many years since the 1970s she tried to block out the sexual abuse and the subsequent involvement with the Department. She says that around the stepfather’s trial and sentencing she had two intense periods of anxiety and that following those events her emotional state has changed, she has become much more prone to emotional breakdowns and a lack of functioning. She described feelings of anxiety, agoraphobia, panic attacks, breathlessness, palpitations, headaches and hyperventilation. Following the stepfather’s release on parole in 2010 she says that she suffers more nightmares and increased depression - “coping every day requires a big effort on my part” (Exhibit A.48). She describes: difficulty with sexual relationships; being in public spaces; answering telephone calls; going to shopping centres; leaving the house; and looking after her children on her own. She also describes strong dependence on her previous partners, children and, more recently, her girlfriends for assistance. Prior the trial in 2005 DC set up her own business which she continues to run however she says that there are periods when she is unable to apply herself fully and she remains at home only going out to do the shopping with the support of someone that she knows.

As with TB, Dr Diamond and Dr Champion in their joint report agree that DC has suffered from a mental illness since the age of 18. They said that she has suffered from conduct disorder, substance abuse, depression, dissociative symptoms, anxiety and chronic post-traumatic stress disorder. Dr Diamond says that she remains significantly psychiatrically unwell and she has built a life around accommodating her PTSD and despite appearing outwardly composed she lives with excessive levels of hyper-arousal, anxiety, fear, episodic panic, flashbacks and nightmares. He also says that her capacity to maintain emotional numbing and to dissociate her feelings during periods of high duress is breaking down. She is now reliant on medication and such coping techniques that she has employed in the past are not going to be adequate for managing in the future. Dr Champion agrees with Dr Diamond’s guarded prognosis given the extent and duration of DC’s symptoms. He is also of the opinion that there is a considerable possibility of an improved prognosis once the focus created by ongoing litigation is resolved. He questions Dr Diamond’s diagnosis of a major depressive disorder commenting that DC’s activities suggest motivation, concentration, and plans for the future. She has also ceased her antidepressant medication. He says that the interim history provided by Dr Diamond “suggests a level of being able to cope appropriately in terms of successful studies, increasing her qualifications, family life and continuing engagement in employment” (Exhibit 2). Dr Janina Szyndler, Clinical and Developmental Psychologist saw DC is 2006. At that time she said that DC generally functions extremely well on a day to day basis which is in part driven by her need to control the situation. She said that DC tends to be extremely vigilant after dark, has a fear of looking under beds, needs to have an escape route planned out of her bedroom or area where she is working, becomes stressed by certain TV programs and at times becomes concerned for her and her children’s safety.

There is some force in Dr Champion’s views. However there is no suggestion that there is any “litigation neurosis” in this case. The PTSD is related to child sexual abuse. It is unlikely to go away when the case is over.

DC submits that she has sustained injuries which like her sister have destroyed a large part of her enjoyment of life including work, family and other relationships. She also points to the ongoing effect of the symptoms of depression and anxiety. She submits that an appropriate award is 70% of a most extreme case. The Department says that an award of no greater than 35% should be made.

DC is currently 44 years old and has 3 children. She is presently single but has had significant partners during her life. According to the table of medium life expectancy for Australia she has a life expectancy of 88 years. As with her sister TB, DC has suffered sexual abuse at the hands of her stepfather from a young age. In my view, overall DC appears to be coping better than TB. I find that she has suffered substantial pain and suffering in the past and that her psychiatric illness has and will continue to impact on her daily live. I also find that she has to date led a largely successful life despite her illness. She has started her own business and continues to run it, employing a number of people. One needs to be mindful that the effects of abuse have blight her whole life. Having regard to these factors I assess her non-economic loss to be 47% of a most extreme case. This entitles her to $269,000.

TB submits that her need for care and assistance has been ongoing since 1984. In particular she says that it has increased since 2003 being the year in which her depression became severe enough to cause her to leave the workforce and 2005 when she developed agoraphobia and panic attacks. She claims damages for past gratuitous assistance on the basis of 7 hours per week from 1984 to 1992; 14 hours per week from 1992 to 2003 and 40 hours per week from 2003 to the date of trial (I note the original 50 hours per week has been reduced under s 15 CLA). She claims a total of $941,887. The Department submit that there is little evidence to support a claim for domestic assistance up to 2003 however after 2003 they state there is some limited evidence of assistance in the vicinity of few hours per week.

In her statement, TB says that her partners, children and friends have helped her in a “myriad” of ways to cope with her anxiety and agoraphobia (Exhibit A.47). Such assistance, she says, includes shopping, delivering things, checking the security of the house, general domestic household duties, staying with her when she is alone, filling up her car with petrol, taking the children to appointments, social activities or sport, caring for her when she is having a particularly bad time and accompanying her to social functions. TB’s former husband said that from the time they were married he provided TB with emotional support. He says that between 2005 – 2011 he was doing things for TB on a daily basis such as running errands, collecting prescriptions and grocery shopping and that he would take time off work to take her to medical appointments, attend court and meet with her lawyer. Clare, TB’s sister-in-law, says in her statement that she and her husband would take TB out to dinner once a week or fortnight, call every day to check on her welfare and look after the maintenance of her lawns (until her current partner moved in). Since moving in with TB in 2012 her current partner Shane says that he has assisted TB is a number of ways such as teaching her son to drive, taking her children to sport, taking TB shopping and to appointments, tending the maintenance of the lawns and gardens and hanging the washing on the line. TB’s former mother-in-law also says that she provided assistance to TB during her marriage, looking after her and the children when required.

Obviously not all of this assistance is covered by s 15; no claim is made or available under s 15B CLA. No real effort has been made to sort out what is recoverable under the section.

In my view, I agree that it is difficult to determine prior to 2003 the level of domestic support given to TB that relates solely to her psychiatric condition. I am willing to accept that some level of gratuitous care was required but the evidence does not permit me to find that the intensity and duration thresholds have been crossed in that period.

I accept that from 2003, when she started suffering from her depression, agoraphobia and panic attacks the assistance provided by her partners, family and friends has significantly increased. But in my opinion, TB’s claim for 40 hours per week overstates the gratuitous care needed and provided. Given the evidence of the nature of the services provided to TB, I am of the view that but for the injury some of the same services would have been provided in any event, especially those provided by her partners and children. I therefore allow a claim of 25 hours per week from 2003 onwards. I allow $461,312.50 (based on an average allowance of $30.50 per week, 25 hours per week over 605 weeks).

Looking now at DC, she submits that her need for care and assistance has been ongoing since 1991. She says that from 1999 she has required increased levels of assistance and a further increase from 2005 onwards. She claims damages for past gratuitous assistance on the basis of 10 hours of care per week from 1991 to 1998; 14 hours of care from 1999 – 2004; and 40 hours of care from 2005 to the date of trial (reduced from 50 hours per week under s 15 CLA). In total she claims $858,003. Contrary to this, the Department says that there is no basis on the evidence to infer that the level of services provided to DC across this time is referrable to any compensable personal injury, that is, the court could not be satisfied that there was a need for the services solely because of the injury which would not have been provided to DC but for the injury: s 15(2) CLA.

Since 1991, DC says that her partners, children and friends have helped her in a number of ways to cope with the difficulties caused by her psychiatric condition. Some of these include: delivering things, shopping, cooking meals, cleaning, assisting with laundry, accompanying her to social events, home maintenance and assistance with her children. From 1991 – 1998 she said her partner Frank would provide assistance with shopping, checking house security, checking the mail, taking the bins out and general care when she was feeling emotionally decomposed. Amanda, a friend of DC’s said that they met in 2002 and since then she has provided emotional support and assistance in the care of DC’s children. Another friend of DC’s, Isle, said that between 2010 – 2013 she spent approximately 10 hours per week with DC providing assistance and from 2013 she has visited DC each weekend. Tegan, another friend, also said that since 2009 her contact with DC has been regular, she sometimes takes her out food shopping, to medical appointments and assists her with cleaning and personal errands. She also has assisted with taking her children to appointments when DC has been unable.

Again not all of this assistance qualifies under the Act, and I have no way of separating the wheat from the chaff.

From the evidence before me I am not satisfied that prior to 2005 the statutory thresholds under s 15(3) have been crossed, i.e. the evidence does not establish that DC was provided with gratuitous services for at least 6 hours per week for a period of at least 6 months. I am also not persuaded that the all of the services provided to DC during this time arose as a result of her injuries and that but for her injuries she would not have been provided them: s 15(2) CLA. The evidence given by DC was largely unchallenged however I find that the evidence she gave and the evidence of friends and family is not beyond what one would expect in terms of the general give and take of family or social life. From 2005 onwards I am prepared to accept that she was provided with gratuitous services by her family and friends which arose as a result of her injuries, namely the unmasking of her PTSD which meet the statutory thresholds. I do not accept however that the services provided to DC were in excess of 40 hours per week. They largely include assistance with shopping, running personal errands, escorting DC out and about and helping with her children, not all of which is recoverable. A figure in the range of 20 hours per week in my view is more appropriate. I allow $319,272 for DC for past care.

I note the parties have agreed that the figure offered by Mr Morrison of $36 per hour for paid future care is appropriate. He says that TB and DC will require paid assistance for the remainder of their life including but not limited to domestic assistance, gardening maintenance, attending appointments and shopping. He claims 50 hours per week for TB and 40 hours per week for DC. Mr Wass says that such claims are not supported by the evidence. I do not propose however to adopt this figure of $36, there is no evidence before me of TB or DC employing any paid commercial assistance in the past nor is there any evidence I find convincing of either plaintiff’s intention to do so in the future. I will allow a sum of $27.96 per hour instead (the current rate for s 15).

Dr Diamond as I have already said has diagnosed TB as having a chronic lifelong condition. I repeat here what I have said above that she has made a very determined effort to take control of her life but she still has a marked dependence on others to make her feel comfortable and engage in basic activities. Dr Champion has expressed the view that her prognosis must be extremely guarded given that her PTSD seems to be treatment resistant, however it may improve after the current focus on litigation is resolved. Rene Napier, a clinical and forensic psychologist who TB has seen on a number of occasions in her report dated 14th April 2011 made the comment that TB has engaged in small steps which indicate a new possibility of recovery and she hopes that TB will continue to make steps towards living independently and developing a fulfilling life. In my opinion, such comments are promising and indicate to me that TB may slowly become more independent and able as time goes on. The reality of the situation is however not so bright, she is living with a chronic lifelong condition which at the moment is proving to be treatment resistant. Taking this into account and providing for the chance that she may make additional gains I would allow a claim for care of 20 hours per week. As I have already said TB is 47 years old and according to the medium life expectancies table her life expectancy is a further 41.37 years. The 5 per cent multiplier is 924.8. I allow $517,148 to TB for future care however I reduce this figure by a further 15 per cent on account of the chance of improvement and that she would need care in any event because of the effects of age. The figure I allow is $439,576.

For DC Dr Diamond says that she will always be a vulnerable individual and although she has a remarkable tenacity to persist and cope she does become overwhelmed. He also says that this vulnerability will continue to grow especially as her children who she is highly reliant on start to grow and live independently. Dr Champion holds a similar view of DC as he does with TB finding that her prognosis is guarded at this stage but there may be a reasonable chance this will improve considerably upon the resolution of the litigation. The Department points to the statement of Matthew Toohey, DC’s accountant who says that while DC has periods of non-communication, she can bounce back firing and work manically to get back up to date. In my view, DC does appear to be more able and independent than her sister and I think that this will continue into the future. I also recognise the comments made by Dr Diamond that she is a vulnerable individual and I think some level of assistance for the future will be required, particularly as her children get older and start living more independent lives. An appropriate allowance in these circumstances is for 12 hours per week. DC is 44 years old, her life expectancy is 44.35 years. The 5 per cent multiplier is 944.5. I allow $316,898.64 to DC for future care however I reduce this figure by a further 15 per cent on account of the chance of improvement and that she would need care because of the effect of age in any event.

Prior to 2003 TB says that she was able to hold down a job for nearly 20 years. She says that between 1984 and 1992 she generally worked on a full time basis and then generally part time, averaging 20 hours per week. Her first job was in December 1983 for six months as an office junior for Pacific Pearls in Sydney. Between 1985 and 1987/88 she worked as a dental nurse for different dentists at Five Dock and Parramatta. After this she gained employment for approximately one year as a receptionist and office administrator. Then in 1989 she started working for a doctor in Gosford. She stayed with him for approximately five years and continued to work part time for a short while after her son was born in 1992. For the next 10 years she says that she continued to work part time for various dentists on the Central Cost until 2003 when she left dental nursing due to depression. She has not worked since this time. From 1992 – 2003 she claims loss of wages based on 50 per cent reduction in earnings calculated by reference to the average weekly total earnings (AWE) of all employees in NSW expressed as an annual earnings figure. This produces a figure of $191,274. From 2003 until the date of judgment TB claims total loss of earnings based on AWE expressed as a annual figure.

The Department questions the reliance on the AWE figures and point to the gazetted awards for Dental Assistants and Secretaries for 1985, 1990, 1991 and 1999 which disclose the rates of pay per week for someone 21 years or older with at least one year experience. These weekly amounts are substantially lower than the AWE relied on by TB. They also submit that TB’s claim for past loss of earning capacity from 1992 onwards relates to the period of time that she elected to work part time following the birth of her son.

I adopt the figure provided by the plaintiff of past economic loss based on a 50% reduction in earnings between 1992 and 2003. This sum is $191,274. I will however reduce this figure by a further 50% as there is merit in the argument of the Department that during this period she may have elected to work part time following the birth of her son. The Department's argument overlooks, however that TB’s harm arose when she was untried and untested in the workforce. Had she been uninjured her prospects would have been much better. This is why it is appropriate to adopt AWE figures. I allow $95,637 for this first period. I accept the plaintiff’s calculation for total loss of earnings for the period of 2003 until the date of judgment, a total of $547,488. I allow a total of $643,125 to TB for past economic loss. I note however that this figure would require some recalculation given to bring it up to date.

DC left school after completing Year 9 and went into the workforce. Between 1984 and 2001 she worked as a legal secretary, bartender, office manager, produce buyer, personal assistant and an administrator. In the period between 2001 and February 2005 DC says that she had difficulty working on a full time basis and was not able to do so consistently. From 2001 to 2003 she worked as a “temp” through an agency mainly as a personal assistant or in accounts and in 2003 and 2004 she gained employment in the administration of FPA Health. It was during this time period that she also completed TAFE courses in OH&S and Electrical Tagging & Inspection.

From February 2005 onwards DC started working in her own bookkeeping business, Accountant’s Edge Bookkeeping Services (the business was originally established in the early 2000s under a different name, MAS Secretarial). She says that it was necessary to start her own business because she found it difficult to satisfy the normal basic requirements of any employer such as coming to work on time, working the rostered hours etc. because of her condition. Since setting up her business DC says that she has probably worked the equivalent of about half a normal working week and that there are periods (for about 2 months or so at a time) when she is unable to apply herself to the running of the business. This problem adversely affects the viability of her business and generally occurs she says every 2 to 3 years with the most recent period commencing in September 2013 and continuing at the time of writing her statement (April 2014). From 2009 – 2012 DC worked as an independent contractor for Wiseclick Training. This involved a combination of providing accounting services and teaching accounting and MYOB. During this time she could decide the number of days she work generally on average 25 – 30 hours per week. She was also able to refuse a job if she felt uncomfortable. Between February 2012 – September 2013 DC had a business partner named Melissa. DC bought Melissa out in September 2013 and her current working structure comprises of herself, and a number of employees: Mandy who works full time, Tegan who works part time and Ilsa who works one day per week. DC claims a loss of one third of her earning capacity, calculated with reference to AWE for the period of 1st January 2001 – 1st February 2005, being a total of $53,698. From February 2005 until the date of the trial (11th August 2014) she claims a further loss of earnings based on AWE less actual earnings, a total of $305,093.

The Department submit that DC’s claim for past loss of earning capacity between 2001 and 2005 is based on an unproven assumption of there being a one third loss in capacity. They also say that to calculate the loss from 2005 onwards based on the difference between AWE and actual earnings is not based on an objective assessment of the businesses profitability but for DC’s injuries.

I accept that DC’s severe psychiatric condition substantially reduces her earning capacity in manner likely to be productive of financial loss. It is clear from the contemporary records that she was a highly intelligent child. I think it likely that but for the injury her employment prospects would have been much brighter. As an untested child at the time of the putative tort AWE is an appropriate starting point for the calculation of her loss.

I accept the figure provided by the plaintiff in their schedule for DC’s past economic loss. I therefore allow $358,791 for this head of damage.

I accept TB’s submission that an appropriate rate in this case is 10 per cent. In DC’s case the conventional rate of 11 per cent applies.

Interest would be allowed under s 18 CLA. In the circumstances there is no need to calculate it.

TB makes a claim for total loss of earning capacity from the date of the trial until retirement age (67 years). The Department says such loss is not realistic or supportable on the basis of available evidence. TB says that the development of panic attacks and agoraphobia impairs her ability to hold down a job. Dr Diamond agrees that her employment prospects are limited. He says that while she talks optimistically about returning to the workforce in some capacity he does not believe that she has a realistic chance of long term consistent gainful employment. He does however say that she may have some capacity to perform bookkeeping type work or work that she can perform as a self-employed individual at home, although her ability to do this for full time hours is deficient. I accept Dr Diamond’s evidence. TB has poor prospects of returning to any remunerative employment.

I would adopt the figures proposed by the plaintiff for her future loss of earning capacity. TB has 20 years left in the workforce, the 5 per cent multiplier is 666.4. Based on a figure of $1,184 per week net and a reduction of 15 per cent for the vicissitudes of life I allow a figure of $670,664 for TB’s future economic loss.

Like her sister, DC says that but for her injury she would have continued to work full time until the retirement age of 67 years. From the date of the trial until 67 she claims a total loss of earnings based on AWE less actual earnings. The Department submits that the “evidence does not establish the bases for the assumption the Court must make about future earning capacity…and the extent to which they accord with the plaintiff’s most likely future circumstances but for the injury: s 13 CLA.” In dealing with the future effects (if any) of DC’s fluctuating mental state they advance two options; first that the Court could account for any risk of future impact by providing a modest buffer against that risk or second if the Court is satisfied with the calculations for future loss contained DC’s submissions then an allowance may be made for any short to medium term diminution in full time work capacity by providing a substantial discount of the notional earning capacity projected by DC based on the comparison of actual earnings and AWE.

Dr Diamond's view is that DC’s “future employment prospects are reliant on her own initiative and need to tailor unique work conditions so that her bizarre requirements to run a business without having appropriate client contact can be accommodated” (Exhibit A 79, p 367). It is only because she is working in her own business, in his opinion, that she remains in a state of gainful employment at this point. I understand this to mean that had DC not started her own business it is likely that she would be unemployed with little prospect of finding suitable full time employment.

I accept the evidence of Dr Diamond. There is no reason to assume other than but for the injury DC would have worked in employment bringing in something like AWE. I would accept the calculations proffered by DC for future loss being a loss calculated on the difference between the AWE and her actual earnings. She is as I have said 44 years of age and has 23 years left in the workforce. The 5 per cent multiplier is 712.2. Based on a figure of $564 per week net and a reduction of 15 per cent for the vicissitudes of life I allow $341,428.90 for this head of damage.

DC claims an additional sum of $150,000 on account of the likelihood that she would have achieved greater than the average weekly total earning figure applied in respect of her past and future economic loss. Reliance is placed on the opinion of Ian Skead, a psychologist at Cobham Clinic who produced a report in 1983 in connection with proceedings relating to TB and DC in the Cobham’s Children Court which stated that DC’s intelligence was within the Superior to Very Superior Range of ability (Exhibit A 17, p 50). The Department argues that the report of Ian Skead lends little if any legitimacy to support a claim that DC would be earning more than the average weekly total earning figures.

DC’s argument overlooks the consideration that the adoption of AWE in the case of children untried in the workforce at the date of injury accommodates the competing probabilities. Prospects of over, as well as under, achievement are incorporated in the average.

In saying this, I also note the opinion of Dr Diamond in his final report (Exhibit A 79) that DC “is more likely than not to have had an even more successful career in the absence of the obvious impairments that exists” and that her “education and qualifications were significantly impaired by the major disruptions to her developmental history and her adolescent experiences”. But this prospect is likewise accommodated by adoption of AWE.

I would reject this head of claim.

I would accept TB and DC’s submission that 14 per cent of the allowance for future economic loss is the appropriate rate.

I adopt the agreed medical out of pocket expenses put forward by the parties (Exhibits B and C). I therefore allow $23,752.40 to TB and $5,401.45 to DC for medical out of pocket expenses. TB also claims further relocation expenses for costs of moving on two occasions (November 2010 and August 2011) out of fear that the stepfather would locate her for revenge. She claims $1,600 for each move being the cost of the removalist van and a further $550 being the costs of getting security doors fitted on her current rental home. I would allow these relocations costs. This brings the total out of pocket expenses for TB to $27,502.40.

Both TB and DC make a claim for future psychiatric treatment, namely the costs associated with psychiatric and psychological appointments and medications. TB claims a global amount of $60,000 and DC $30,000. The Department says that these claims for future psychiatric treatment are not presented with any supporting evidentiary reference.

I would allow $30,000 for future treatment costs for TB and $25,000 for DC. It is in the nature of these things that precision is impossible.

My orders are: