Greenwood v Department of Education

1. [1]

   HIS HONOUR: The plaintiff sues the State of New South Wales (hereinafter “the State”) seeking damages for a cause of action in negligence and/or because the State is vicariously liable for injuries the plaintiff alleges arose as a consequence of historical sex abuse. The allegation is that the plaintiff was sexually abused at Forster Public School (hereinafter “the School”) by the then Deputy Principal.

2. [2]

   The State, which is the defendant in the proceedings, denies that the abuse occurred and, if it were to have occurred, denies that it was negligent and also that it is vicariously liable for the conduct in question. The alleged perpetrator of the abuse is not a party to the proceedings but gave evidence in the proceedings.

3. [3]

   The plaintiff attended the School from 1985 until 1992, and the Deputy Principal was employed at the School between February 1988 and April 1992 as a teacher and Deputy Principal. The plaintiff alleges in the Statement of Claim that abuse occurred in approximately 1989 and 1990, when the plaintiff was in Year 3 and/or Year 4 at the School. The issues in dispute, apart from the legal questions, are issues associated with facts that occurred over 30 years ago. The Deputy Principal, who was called to give evidence by the State, denied the allegations.

Evidence

1. [4]

   The parties have provided the Court with a list of issues and agreed facts. While any attempt to reach common ground on facts is appreciated and of utility, the facts agreed between necessarily the parties do not deal with any of the issues in dispute and are of only limited utility.

2. [5]

   To some extent a timeframe is provided and there is agreement on some formal issues such as the dates of birth, enrolment and leaving the School, the dates on which the Deputy Principal was engaged at the School and the date on which he left the School. There are also dates agreed between the parties as to the timeframe of the alleged abuse, the death of the plaintiff’s father and periods in which the plaintiff, seemingly as a consequence of his psychological condition, spent in prison. It is unnecessary to extract the agreed facts.

3. [6]

   Otherwise, all the evidence was adduced in chief by way of a statement and, thereafter, was subject, where sought, to cross-examination.

4. [7]

   The plaintiff was born on 31 March 1980 in Forster. His father passed away in 2019 and he has two siblings, an older sister and older brother. The brother passed away in November 2022.

5. [8]

   The plaintiff described his childhood as happy in the earlier years during which he was very physically active and enjoyed football and bodyboarding. He learnt to play the guitar at 13 years, and his football was at such a standard that he was accepted into the development squad for the Newcastle Knights rugby league team at the age of 12.

6. [9]

   As a youngster, the plaintiff desired to have a career in professional rugby league or professional bodyboarding, and/or play the guitar in a band. He attended primary school at Forster Public School from kindergarten to Year 6 and attended high school at Forster High School. He left high school some time in Year 10 as a result of difficulties with alcohol and substance abuse.

7. [10]

   The plaintiff did not obtain a school certificate and instead started work as a concreter with his father. His parents separated when the plaintiff was 17 years of age.

8. [11]

   The plaintiff married and he described his marriage, in the early years, as “loving and supporting”. The couple had four children, and the plaintiff continued work as a concreter providing financial stability. They purchased a restaurant and owned their own home, with a mortgage.

9. [12]

   The plaintiff separated from his wife in 2019 after 14 years of marriage. The plaintiff attributes the breakdown to his inability to cope with the death of his father, which resulted in a relapse of his alcohol and substance abuse. He now has very limited contact with his children who live with their mother, except for the eldest who lives with the maternal grandmother.

10. [13]

    When not in custody, the plaintiff lives with his mother or sister and, at the time of making the statement, was living with his sister.

11. [14]

    The plaintiff asserts that when he was in Year 5 at Forster Public School, he was sexually abused by the Deputy Principal. He was approximately 11 years old at the time.

12. [15]

    The plaintiff describes in his statement that, prior to the abuse, the Deputy Principal was very nice to him and would play sport with him at school and sometimes provide him with frozen yoghurt and fruit balls. The plaintiff came to like and trust the Deputy Principal.

13. [16]

    The children at the School used to call the Deputy Principal “Jaffa”, which, according to the plaintiff, was as a result of the redness in the Deputy Principal’s face when he became angry. The plaintiff described the physical attributes of the Deputy Principal.

14. [17]

    The plaintiff also described being placed on detention for many minor things and gave examples such as “wearing the wrong-coloured socks”. The plaintiff asserted that the Deputy Principal would threaten to use the cane on him and that he was the only student on these detentions. The detentions, according to the plaintiff, took place in the Deputy Principal’s office.

15. [18]

    The sexual abuse, which was said to occur during the detentions, would consist of the Deputy Principal forcing the plaintiff to touch his genitals and to masturbate him until he ejaculated. The Deputy Principal would place his hands down the plaintiff’s pants and fondle the plaintiff’s buttocks and anally penetrate the plaintiff with his finger.

16. [19]

    The plaintiff also described some occasions when the Deputy Principal was said to have forced the plaintiff over his desk and attempted to penetrate the plaintiff anally with his penis. This last-mentioned conduct caused the plaintiff extreme pain which lasted for hours after it concluded. There were times that the plaintiff would go home to find blood in his underwear when this occurred.

17. [20]

    In the statement of 14 June 2023 (hereinafter “the first statement”), the plaintiff stated that the abuse occurred approximately ten times and lasted between 10 and 15 minutes on each occasion. The plaintiff testified to the fact that when the abuse took place, he felt very scared and that the Deputy Principal threatened him by telling him that he would be caned badly if he told anyone about the abuse. The plaintiff maintained that he did not tell anyone about it, because he did not want the abuse to get any worse than it already was.

18. [21]

    The plaintiff testified to the effect that the abuse stopped after an occasion in the storeroom (in evidence explained as attached to or in a demountable building), when the plaintiff punched the Deputy Principal in the stomach and ran away from school. The plaintiff ran to his sister’s house, and, after that, the abuse did not happen again, at least in part because the Deputy Principal moved to a different school.

19. [22]

    The plaintiff described the effects of the abuse on his life thereafter. The plaintiff experienced flashbacks and nightmares about the Deputy Principal and what he was doing to him. The plaintiff struggled to attend school; he started truanting so he could avoid seeing the Deputy Principal; and this had a negative impact on the plaintiff’s academic performance.

20. [23]

    The plaintiff testified to the fact that he lost all trust in authority figures and felt very anxious when he was not at home with his parents. The plaintiff stopped attending sport camps and lost all interest in rugby league and bodysurfing.

21. [24]

    When he was 13 years of age, the plaintiff started to abuse marijuana in order, he says, to cope with his feelings about the abuse. A sister of one of his friends provided him with the marijuana, which helped to numb the feelings of fear and distress.

22. [25]

    When the plaintiff was 15 years of age, he started to abuse alcohol to cope with his feelings and would drink enough to numb himself to them. He obtained the alcohol by having his friends buy it for him, because they looked older, and from stealing it from his parents’ fridge.

23. [26]

    The plaintiff maintained that when he started high school his poor behaviour continued, and he would stay at school for physical education classes but otherwise would find ways to truant. When he truanted, he would go to the beach and smoke marijuana.

24. [27]

    The plaintiff was unable to complete high school. The plaintiff puts this down to his truanting, problems with his teachers and substance abuse. He did not want to be at school.

25. [28]

    The plaintiff agreed to work with his father and working with his father made him feel safe and provided him with some stability. The abuse, the plaintiff says, caused him to feel very angry. Because of that and because he never developed proper anger management skills, he resolved issues with others with physical fights. In turn, this caused the plaintiff to struggle in all his relationships and lose many friends.

26. [29]

    He tried to shut the abuse away and did not tell anybody about it.

27. [30]

    When his father passed away, the plaintiff suffered a breakdown, and all of the past feelings returned to the surface. The plaintiff felt unsafe again and felt that he could not trust anyone. He recommenced abusing alcohol and would drink a carton of beer daily.

28. [31]

    At 18 years, the plaintiff attempted to end his life by an overdose of tablets. He struggled with his parents’ separation and did not cope well. The plaintiff was abusing marijuana and alcohol at the time, and he felt worthless.

29. [32]

    At or about this time, the plaintiff’s older brother informed him that their aunt had been sexually abusing him. This re-excited feelings about the abuse that happened to the plaintiff, and he could no longer cope. His only safety net was his family which he felt was now broken and he was alone.

30. [33]

    In 2019, the plaintiff separated from his wife. Although he described their relationship as very “loving and supportive” at times, he felt that his feelings about the abuse haunted the relationship. He experienced extreme trust issues with his wife throughout his marriage and suffered a breakdown when his paranoia became real and he caught his wife being unfaithful to him. This caused him great distress. Consequently, to cope with his feelings, he started abusing alcohol and marijuana even more. Again, feelings relating to the abuse resurfaced and he felt let down once more.

31. [34]

    Two years after the abuse, the plaintiff was diagnosed with ADHD, anxiety and depression. The diagnosis came from a child psychiatrist in Taree and the plaintiff was prescribed Ritalin but never took the medication.

32. [35]

    In late 2018, the plaintiff was diagnosed with depression and anxiety. His father-in-law, who was a general practitioner, diagnosed him after raising with the plaintiff concerns about his mental health. The plaintiff was prescribed sertraline and mirtazapine. The plaintiff remains on both medications.

33. [36]

    The plaintiff has struggled to obtain medical assistance. While he has made appointments with psychologists and counsellors, he has failed to attend because of his anxiety and because he was scarred. In custody, he received medical treatment through the Justice Health Network but did not disclose to them the abuse that he had experienced. Nor did he disclose the abuse to other medical practitioners.

34. [37]

    As earlier stated, the plaintiff left school before the school certificate, at the age of 16 years and started working with his father as a concreter. The father operated a successful concreting business. When the plaintiff was 24 years, he obtained an ABN and was earning approximately $1,800 per week after tax. With overtime, he could earn up to $2,500 per week after tax.

35. [38]

    As already stated, the plaintiff lost all trust in and respect for authority and started to commit criminal offences. At the age of 14 years, he was charged with break and enter. He had broken into a teacher’s classroom to steal marijuana.

36. [39]

    His offending increased both in quantity and seriousness as his drug and alcohol abuse increased. This was particularly so after the breakdown of his marriage and the death of his father.

37. [40]

    The plaintiff has been convicted of a number of offences including assault, contravening domestic violence orders, drug offences, driving related offences, reckless wounding, stalking and intimating. Some of the offending has been towards the new partner of his ex-wife with whom he has had many confrontations. The plaintiff has been gaoled approximately seven times and for a total period of approximately four years.

38. [41]

    Currently, according to the first statement, the plaintiff is mostly anxious and irritable. His anxiety has not improved at all since the abuse, and he manages it sometimes through the use of alcohol and illicit substances. The plaintiff feels overwhelmed by a sense of worthlessness and hopelessness.

39. [42]

    The plaintiff describes himself as “destructive”. He bottles his feelings up and then explodes. Even on days that are generally good, he may turn and either commence crying or lose his temper. He dwells on the abuse a lot, at least a couple of times per week. He worries about his future and his relationship with his children; continues to experience flashbacks and nightmares about the Deputy Principal and the abuse; wakes up in the night with sweats and experiences palpitations; and, on account of his sleep difficulties, is always tired and more readily becomes irritated.

40. [43]

    The plaintiff struggles to concentrate, and he forgets simple things like where he left belongings. At the time of the first statement, the plaintiff was abstaining from alcohol but consuming medicinal marijuana on a daily basis and describes that as the only thing that “makes [him] feel at peace”.

41. [44]

    The plaintiff compiled a further evidentiary statement on 24 September 2024 in response to the statements adduced on behalf of the defendant. Apart from expressing surprise that neither Mr nor Mrs McLean remembered him, the plaintiff described the events at school after its commencement. There would be a morning muster during which the Deputy Principal would check the uniforms and single out students that were incorrectly attired. The Deputy Principal would write down their names and sometimes place them on detention.

42. [45]

    The plaintiff described where the school detention took place, being in a room near the school staffroom. He said there would usually be a teacher supervising detention and other children present. On a few occasions, the Deputy Principal would single him out and remove him from the general detention and take him to his office to supervise the plaintiff for detention in his office alone.

43. [46]

    The plaintiff described where the Deputy Principal’s office was in the administrative building and that detention with the Deputy Principal would occur at lunchtime, during which time the door to the Deputy Principal’s office would be shut. There was a window facing the carpark from the office which had blinds that were always shut. Because it was lunchtime, the plaintiff suggested there were less people in the administration building than would otherwise be the case.

44. [47]

    The reference to the storeroom in which at least one of the occasions was said to have occurred, was not in the administration building; it was in a demountable classroom, which was the usual classroom in which the plaintiff’s regular teacher taught him.

45. [48]

    The plaintiff also clarified that the Deputy Principal did not use the cane but threatened to use it and the threat made the plaintiff fearful of him. Apparently, there were canes at the school in the Principal’s office, but the plaintiff never saw them utilised.

46. [49]

    The plaintiff also clarified that he could not precisely recall the number of times that abuse occurred and that his recollection when dealing with his solicitors was that it happened on ten to twenty occasions because that is how it felt. It certainly happened on the plaintiff’s view at least five or six times.

47. [50]

    He also testified that he would be sent to the Deputy Principal’s office when his classroom teacher could not control his behaviour, which occurred regularly for conduct such as not paying attention, talking or distracting other students or not doing homework.

48. [51]

    The plaintiff does not recall being held back from school but recounted that his mother recalled the Deputy Principal holding him back on at least one occasion.

49. [52]

    The plaintiff also clarified that the frozen yoghurt and fruit balls that were given to him by the Deputy Principal were available at the canteen and the Deputy Principal kept a bag of fruit balls in his office. The Deputy Principal did not abuse the plaintiff at every detention, according to the plaintiff. The Deputy Principal did not give yoghurt and/or fruit balls when he was on a detention in which abuse occurred but, rather on those detentions in which abuse did not occur.

50. [53]

    In cross-examination, the plaintiff clarified that he recalled the abuse occurring when he was in Year 5, in 1991, when he was 11 years. He also clarified that he was on detention with other students and the Deputy Principal would “drag him out” and take the plaintiff to the Deputy Principal’s office. Further, his classroom teacher would often send him to the Deputy Principal for detention. On those occasions he went to the Deputy Principal’s office by himself.

51. [54]

    According to the plaintiff, 1991 was the only year in which the abuse occurred.

52. [55]

    The plaintiff clarified that the detentions of which he spoke occurred in the Deputy Principal’s office and that he was the only person, other than the Deputy Principal, present at the time. He also clarified that his classroom teacher would, towards the lunchtime break, send him to the Deputy Principal’s office, for a lunchtime detention. [1]

53. [56]

    The plaintiff answered questions concerning a statement made to the psychiatrist commissioned by the State and the plaintiff accepted that at one stage he became convinced that his classroom teacher was “setting [him] up” with the Deputy Principal because he was sent to detention with such frequency. The plaintiff’s recollection is that he was sent to the Deputy Principal’s office on many occasions, probably once or twice a fortnight, but it depended.

54. [57]

    The plaintiff also referred to a third manner in which he came to be in the Deputy Principal’s office. The first was when he was given detention by the Deputy Principal directly and the second was when the classroom teacher sent him to the Deputy Principal’s office. The third was when the plaintiff was given a general detention and the Deputy Principal would come into the room in which the detention was being held and remove him from that room and take him to the office.

55. [58]

    On the plaintiff’s recollection, the third manner happened twice, and the abuse occurred between five and ten times. When asked about an estimation of twenty times used by the plaintiff, the plaintiff made clear that he had not said it happened on twenty occasions. Rather, he had said it felt like it had happened twenty times. The plaintiff does not recall who would send him to a detention in the “detention room”.

56. [59]

    The plaintiff was cross-examined as to certain inconsistency between his evidence and notes recorded by the State’s commissioned psychiatrist for these proceedings, which the plaintiff explained as probably being the psychiatrist’s misunderstanding of what he had said. The plaintiff was adamant that the Deputy Principal ejaculated on him, not in him, and that he bled from what he had understood had been penetration by fingers or an attempted penetration by the Deputy Principal’s penis. He was asked about the time that he spent, when abused, in the Deputy Principal’s office and estimated that it was at least ten minutes but up to fifteen minutes.

57. [60]

    When the plaintiff was in the Deputy Principal’s office for detention, but not on an occasion when he was abused, the time he spent in the office was less than ten minutes. Sometimes, it may have been less than five minutes.

58. [61]

    On questioning about his statement that he began truanting after the abuse, the plaintiff stated that he was unaware how and from where that statement had come. The plaintiff said that he truanted in high school, not in primary school. He was trying to stay away from school, but his mother would not allow him to stay home sick.

59. [62]

    The plaintiff also clarified that the Deputy Principal did not play sport with the students. Rather, he watched the sport played by the students. The plaintiff suggested that he had requested a change to correct the original statement, but it had not been made.

60. [63]

    Otherwise, the plaintiff denied a number of propositions put to him reflecting the version of events or conduct to which the Deputy Principal had attested or would attest, and which were contained in his statements. There are exceptions to those denials. For example, when asked about the timing of what was said by the plaintiff to be gifts of fruit balls and yoghurt and whether that occurred only between abuse at detentions or before the abuse had started, the plaintiff conceded that much of his timing is “a big blur”. [2]

61. [64]

    Nevertheless, the plaintiff agreed that he was saying that the frozen yoghurt and fruit balls were given to him by the Deputy Principal at a time before any incident of abuse had occurred. The times before any incident of abuse at which the Deputy Principal gave the plaintiff sweets, the plaintiff was on detention and in the Deputy Principal’s room.

62. [65]

    Further, the plaintiff clarified that every time he was in the Deputy Principal’s office, he was not necessarily on detention. The Deputy Principal may have called or taken the plaintiff into his office when the plaintiff was doing office duties, such as obtaining duplicates or other activities that needed attendance at the administration block.

63. [66]

    The questions in cross-examination put to the plaintiff that he had not mentioned being in the Deputy Principal’s office for a purpose/reason other than detention in either one of his statements or at any time earlier in his oral evidence, and that he was making it up. The plaintiff denied that he was fabricating the evidence.

64. [67]

    The plaintiff maintained that he served some of his detention in the staffroom in the administration block, which he entered from the path and turned right.

65. [68]

    The plaintiff was cross-examined about his alleged absences in Year 5. It was put to the plaintiff that he had twenty-one absences in Year 3 and three absences in Year 4. The plaintiff had no recollection of those issues.

66. [69]

    It was also put to the plaintiff that his behavioural alterations occurred in Year 4, which the plaintiff denied. It was suggested that the plaintiff’s behaviour became worse in Year 4 and his then teacher made an enquiry of his mother about whether issues were occurring at home to explain the plaintiff’s changed behaviour.

67. [70]

    The plaintiff denied that his behaviour became worse in Year 4 and was adamant that his misbehaviour commenced in Year 5. The plaintiff also denied that he had an almost perfect attendance record in Year 5.

68. [71]

    The plaintiff was cross-examined in relation to his alcohol and drug abuse and whether he could manage to maintain a full work capacity. Further, the plaintiff was questioned about his capacity to obtain work at a large development in Forster, in Western Australia and in Indonesia, which he was unable to take because of his incarceration.

69. [72]

    The plaintiff was questioned about statements made to psychologists and/or counsellors relating to the stress under which he was suffering, which excluded the allegations he is making in these proceedings. The plaintiff explained the omission on the basis that, at the time the statements were made to counsellors and/or psychologists, he had not disclosed the sexual abuse at school to anyone.

70. [73]

    The plaintiff had also informed a Correctional Services Officer that his mental health was “good”. Nevertheless, as pointed out by the plaintiff, the plaintiff was still on medication for his mental health.

71. [74]

    The plaintiff was asked about the inconsistency in his opinion about his mental health between that which he told the Corrective Services Officer and that which he told a doctor qualified for the purposes of these proceedings within a short period of time. It was suggested to the plaintiff that his statement to the medical practitioner qualified for the purposes of these proceedings was for the purpose of assisting his case against the State and that which was said to the Corrective Services Officer was the truth and he had no mental difficulties.

72. [75]

    The plaintiff was taken to a later interview in prison, some three months before he was due to be paroled in April 2023, by which time he had disclosed to his solicitors the conduct alleged in these proceedings, in which he told a Corrective Services Officer that his mental health was the best it had been and/or “good”. The plaintiff explained that issues of sexual abuse as a child were not issues that one would ever disclose to a Corrective Services Officer.

73. [76]

    It was suggested to the plaintiff that he had been earning $100,000 per year and had not filed tax returns. The plaintiff denied earning that sort of money but accepted that there were years for which he did not file tax returns and testified to the fact that he was currently in discussions with the Australian Taxation Office and they had sent him an estimated tax liability of $5,600 for, what he thought, were all the years for which he had not filed a return.

74. [77]

    Other traumas occurred during the course of the plaintiff’s life. Mention has already been made of the separation of his parents and the illness and death of his father. When the plaintiff was 13 years, his best friend at the time died tragically and in 2015, his cousin committed suicide. In 2016, he had another close friend who died. When asked about the impact of these events, the plaintiff testified that the death of his best friend when the plaintiff was 13 years “hit hard”; they were very close, and the plaintiff named his eldest son after his friend.

75. [78]

    The plaintiff was also asked about a program conducted by the School and entitled “Listen to Children Week”, in which posters were displayed around the School promoting the idea of teachers listening to children. The plaintiff did not recall the program, but he did accept that he knew, when he was at school, that if he had a problem with a teacher, he could raise it with other members of the teaching staff. He knew that he could, but he never did.

76. [79]

    The questioning returned to the incidence of sexual abuse and the version of such incidence given by the plaintiff to his solicitors. To the best of his recollection, the plaintiff told his solicitor, on the first occasion, that he was abused at least at some point of time, up to two or three times a week for six months.

77. [80]

    When it was put to the plaintiff that the Deputy Principal never “filled in” for his classroom teacher, the plaintiff maintained that, whether or not the Deputy Principal was filling in, at the time of the last attempt at abuse, he was teaching in the classroom.

78. [81]

    In re-examination, the plaintiff explained that he did not inform the Correctional Services Officers of his past sexual abuse because he did not trust them.

79. [82]

    He also clarified an area where detention was served which was adjacent to the staffroom on a seat outside the building and abutting the wall.

80. [83]

    The plaintiff’s mother gave evidence as to the birth of her three children in 1968, 1971 and the plaintiff in 1980. Her then husband was a concreter and operated his own successful business and she became a stay-at-home mother after the children were born. The family moved to Forster in 1978.

81. [84]

    The plaintiff was a very happy and social child until he was about 10 years old. He was very popular at school, started playing soccer, but eventually moved to rugby league.

82. [85]

    When the plaintiff was 10 years old, his class teacher, Ms Henry, telephoned Ms Burke and asked her whether anything unusual was taking place at home, because the plaintiff was misbehaving in class and his behaviour was out of character. Ms Henry asked, “[w]as he going through something?”. Ms Burke answered that it may be because of the relationship with the plaintiff’s father, because she otherwise was unaware of any reason for any misbehaviour.

83. [86]

    During this time the plaintiff became very empathetic, taking on the problems of others and trying to solve them. He seemed to want to protect everyone.

84. [87]

    The plaintiff and Ms Burke became very close during this period, but he did not inform Ms Burke of anything that was troubling him or going on of a personal nature. The plaintiff was not, to the knowledge of Ms Burke, bullied by other students.

85. [88]

    Ms Burke noticed more drastic changes when the plaintiff turned 12 years. He was extremely good at rugby league and was the captain of his team for two years consecutively. Suddenly, he no longer wanted to play and would not share with Ms Burke the reasons.

86. [89]

    On one occasion, the plaintiff and Ms Burke went to Penrith for a tryout. The plaintiff seemed to be on edge, which Ms Burke assumed was nerves. He played poorly for the first few games, which Ms Burke could not believe because he had never played like that before. After one of the games, the plaintiff came to Ms Burke and said, “I will not play for the State; I am not going to Queensland to play”. Ms Burke was shocked by the statement and decision but informed the plaintiff that if he did not want to represent New South Wales, it was okay.

87. [90]

    However, Ms Burke attested to the fact that the plaintiff no longer wanted to play locally either. The plaintiff apparently continued playing for the rest of the year and then stopped playing the sport altogether.

88. [91]

    Matters became worse when the plaintiff commenced high school. Around his thirteenth birthday, according to Ms Burke, the plaintiff and a friend broke into a schoolteacher’s home to steal marijuana and she became aware that the plaintiff was abusing substances at this point.

89. [92]

    At or about the same time, the plaintiff started verbally abusing Ms Burke and she felt that something was going on and asked him accordingly.

90. [93]

    About the time the plaintiff turned 14, Ms Burke recalls that a number of his previous friends had disappeared from the scene and the plaintiff started socialising with boys a few years older than him. When Ms Burke asked what he was doing, the plaintiff would become angry and would often punch walls. He became resentful and their relationship deteriorated. Soon after that he left school and started working with his father.

91. [94]

    While the plaintiff was at primary school, on one day, Ms Burke received a message from the school that the plaintiff was being kept back after school by the Deputy Principal. Ms Burke was angry when she received that message.

92. [95]

    When Ms Burke arrived at the school, there was one lady waiting in reception and another lady standing behind the front desk. Ms Burke spoke to the lady at the reception and then waited to see the Deputy Principal.

93. [96]

    The Deputy Principal’s office was directly in front of where Ms Burke was sitting and the door to the office was closed. Ms Burke could not see inside. The Deputy Principal opened the door, came out to greet Ms Burke and led her into his office. The Deputy Principal closed the door behind them.

94. [97]

    Ms Burke felt that the Deputy Principal acted arrogantly and as though he was superior. She questioned the Deputy Principal as to why the plaintiff had been kept back after school and he responded that the plaintiff and another two boys had been bullying another student. If the seating on which Ms Burke waited for the meeting were, as stated, directly in front of the office, then it would seem that the office was that of the Principal, not the Deputy Principal.

95. [98]

    Ms Burke recalls that the plaintiff was extremely angry after she had picked him up and she enquired as to what had happened, but the plaintiff did not tell her anything and remained silent. Ms Burke does not recall any other incidents where she was notified of the plaintiff’s misbehaviour in the primary school.

96. [99]

    In cross-examination Ms Burke clarified that the telephone call from Ms Henry occurred when the plaintiff was about 10 years old and the incident with bullying occurred approximately 18 months after that. She was adamant that she had been called into school after hours and saw the Deputy Principal, notwithstanding that he was going to say there was no time when such an event occurred. Ms Burke was also adamant that the plaintiff was held back by the Deputy Principal after school.

97. [100]

    In re-examination, Ms Burke clarified that, even though the plaintiff’s behaviour settled when he was 10, it did not remain that way and when the plaintiff was 11 years, everything started to change and the plaintiff became very quiet and angry. His mood alternated between his previous “happy self” and a very different person which was not consistent with his prior demeanour. He became moody.

98. [101]

    Notwithstanding requests, the plaintiff did not talk to Ms Burke about it, but in April or May of the year after, he became very different and did not want to play football anymore. He had been chosen to play representative football and was captain of his team and she insisted that he finish the season. On enquiry as to the reasons why he did not want to play representative football, the plaintiff said he did not “want to be billeted”.

99. [102]

    At home he became moody and aggressive, but Ms Burke was very firm with him, although loving. However, when he turned 13 years and went to high school he became a very different child. The plaintiff became abusive, swore at Ms Burke, would not take any notice of her, and that is when he broke into the teacher’s home. The plaintiff also started truanting.

100. [103]

     Ms Burke, in answer to a question in re-examination, said that there may have been occasions when the plaintiff did not want to go to school but she cannot recall any and they would not have been occurring often.

101. [104]

     The plaintiff’s sister, Leanne Greenwood, testified. As with the previous and later witnesses, her evidence-in-chief was by tendering a statement, which in the case of Ms Greenwood was crafted on 27 May 2024.

102. [105]

     Ms Greenwood worked in customer service when younger, then gave birth to her three children and stayed at home until they were old enough, which was about 2007. At that time, she commenced work as a teachers’ aide at Forster Public School in which position she was employed for about eight years.

103. [106]

     In about 2015, she commenced work as a disability support worker and is now in a managerial position.

104. [107]

     Ms Greenwood first learnt that her brother, the plaintiff, was sexually abused when he told her about a year before her statement was drafted. The information shocked her. However, upon reflection, Ms Greenwood considered that the information was consistent with the changes that happened to the plaintiff in his mood, attitude and life.

105. [108]

     Ms Greenwood recalled that her brother became a very angry young boy at the age of 12 or 13 years. Prior to this time, he was very calm, easy going, sociable and happy. While not living at home at the time, she does recall the plaintiff speaking to their mother abusively on many occasions and being very shocked by the change.

106. [109]

     Ms Greenwood was also shocked at the plaintiff’s decision to quit rugby league. The plaintiff was very passionate about the sport, and she could never understand why he had so dramatically changed. At the time, the family was very confused and concerned about the plaintiff’s change of heart.

107. [110]

     Ms Greenwood recalled the plaintiff starting to smoke marijuana at about 13 or 14 years of age and his friends had changed.

108. [111]

     The plaintiff’s behaviour improved somewhat after he started working with their father, but he always remained a very angry person and has always struggled with his substance abuse.

109. [112]

     Ms Greenwood attended Forster Public School as a student nine years prior to the plaintiff attending the school. The Deputy Principal, Mr McLean, about whom the plaintiff complains, was not a teacher or Deputy Principal at the time of Ms Greenwood’s attendance. Nor was he at the school when Ms Greenwood worked there as a teachers’ aide.

110. [113]

     During her time at the school as a student, the Deputy Principal’s office was located next to the Principal’s office and the doors would sometimes be closed. If closed, there was no view inside the office and, if the doors were not closed, there was a view inside the Deputy Principal’s office only.

111. [114]

     In cross-examination, Ms Greenwood clarified that, when the plaintiff was 10, Ms Greenwood was at home, but she left when she was 19 and was not living at home when the plaintiff was 12 or 13. Ms Greenwood is approximately nine years older than the plaintiff.

112. [115]

     Mr Robert Avard was a friend of the plaintiff and spent some time at school with him, although he was born a year earlier than the plaintiff. It seems because of the relative age of the plaintiff, the plaintiff repeated Year 2 and their school life separated at that time. Nevertheless, Mr Avard attended Forster Public School from kindergarten to Year 6 and then attended Forster High School, leaving in Year 10 to do a carpentry apprenticeship. After working as a carpenter and then shopfitter for a joinery company, Mr Avard completed a bridging course at the University of Newcastle and ultimately graduated and became a teacher at the Great Lakes College, Tuncurry Campus.

113. [116]

     The friendship between Mr Avard and the plaintiff waxed and waned. Even though the plaintiff was a school year below him when Mr Avard was in Year 6, they interacted in the grounds of the school and, because the plaintiff was bigger than most others, the plaintiff dominated in social settings and in football. He was, according to Mr Avard, a happy kid.

114. [117]

     Mr Avard’s recollection is that, in his late primary years, the plaintiff personally changed and became “darker”. The plaintiff became a lot angrier. According to Mr Avard, this was not normal “teenage angst”; it was deeper and darker. His anger was very extreme.

115. [118]

     Although the plaintiff loved football, he abruptly became a “loner” and, after primary school, only wanted to be alone. He lost the will and motivation to compete in sports.

116. [119]

     The plaintiff consumed marijuana more than any of the other boys in his teenage years. Mr Avard lost contact with the plaintiff towards the end of his teenage years. He moved away and did not have contact with the plaintiff through the breakdown of his marriage and his incarceration. In 2015, Mr Avard returned to Forster and reunited with the plaintiff about 18 months prior to crafting his statement, which was September 2024.

117. [120]

     Mr Avard described his first encounter with the Deputy Principal who reacted to a student who was fidgeting in class. The Deputy Principal’s face became bright red, and he took hold of a metal (according to the statement) ruler and approached the student’s desk. He slammed the ruler very hard on the desk in front of the student. It made a very loud sound, and the Deputy Principal started screaming into the student’s face. At the time, Mr Avard said he was horrified and remembered it clearly.

118. [121]

     Mr Avard’s impression of the Deputy Principal was that he was a bully. He saw many negative interactions between the Deputy Principal and other students. One of them was the plaintiff.

119. [122]

     He said the Deputy Principal was always yelling at students. The Deputy Principal often grabbed students by the shirt and dragged them around, and on one occasion, Mr Avard observed the Deputy Principal drag the student into the administration building. The Deputy Principal became red in the face from anger and his nickname at the school was “Jaffa”.

120. [123]

     There was a detention system at Forster Public School, but Mr Avard does not recall the specifics. The administration building was not particularly busy, but Mr Avard used to wait there for his grandmother (a witness called by the State), who worked at the school. He observed the Principal’s office door shut on a number of occasions.

121. [124]

     The plaintiff was regularly placed on detention and regularly in trouble from teachers.

122. [125]

     Mr Avard recalls one afternoon at school when the plaintiff told him that he had punched the Deputy Principal in the stomach.

123. [126]

     While the plaintiff has mentioned abuse that happened to him at school, he has not opened up completely and Mr Avard has not pushed him to do so and will wait until he is ready. He said the plaintiff has been very emotional of late, compared to the person he remembered growing up and seemed to be more emotional instead of angry. When Mr Avard tried to get him to open up, the plaintiff became very teary.

124. [127]

     In primary school, Mr Avard and the plaintiff played football together. The plaintiff played in an older grade of football outside of school because he was a really good player. Because of that interaction, Mr Avard interacted with the plaintiff when the plaintiff was in Year 6 and Mr Avard was already at high school.

125. [128]

     The change in behaviour to which Mr Avard referred as being in late primary school was not able to be refined as to whether it was in Year 4, 5 or 6. Mr Avard simply could not recall.

126. [129]

     Mr Avard observed the plaintiff misbehaving at school and noticed that he was regularly on detention.

127. [130]

     In observing, as summarised above, that the plaintiff’s personality changed beyond normal teenage angst, Mr Avard said he was reaching a conclusion, reflecting as an adult, on that which Mr Avard observed as a child.

128. [131]

     Mr Avard was adamant that the incident in which the Deputy Principal came into the classroom and slammed a ruler on the desk making a loud sound occurred, but he said the ruler was wooden, not metal.

129. [132]

     Mr Avard maintained in cross-examination that which had otherwise been the subject of his evidence and, at least to some extent, explained the reasoning for it. In re-examination, Mr Avard provided an example of an interaction with the Deputy Principal after Mr Avard had left primary school, when he was about 14 or 15 years of age. The interaction involved Mr Avard and another person his age, who called the Deputy Principal “Jaffa”, to which the Deputy Principal reacted angrily and aggressively, running towards the boys. The Deputy Principal, once more, went red in the face and Mr Avard said to him, “that’s why we call you Jaffa”.

130. [133]

     Mr Adams attended Forster Public School until Year 6 and was for the last few years of his primary school education in the same year as the plaintiff. He also attended Forster High School with the plaintiff, but Mr Adams completed high school.

131. [134]

     Mr Adams was, for a few years, best friends with the plaintiff. During primary school, there were periods when the plaintiff would spend a few nights per week and every weekend at Mr Adams’ place. They would surf and fish and generally have a good time. They remained best friends until about Year 6. At that point it changed. While they were still friends, they were not as close.

132. [135]

     In about Year 6, the plaintiff and Mr Adams went along different paths. The plaintiff engaged in behaviours with which Mr Adams was uncomfortable and in which he did not wish to participate. The plaintiff started smoking marijuana, in hindsight, somewhat prematurely. Mr Adams felt like it happened abruptly; one second, they were best friends and then suddenly they were both interested in different things. In high school, the plaintiff was mixing in a different crowd.

133. [136]

     Mr Adams and the plaintiff have remained in contact but are no longer close. During at least some of the time that Mr Adams was at the primary school, Mr McLean was the Deputy Principal. Mr Adams remembered him as “a very angry man” who would “become bright red often”. Mr Adams called him “Jaffa”.

134. [137]

     The Deputy Principal was “super-aggressive and angry” when he spoke to students. Mr Adams remembered one specific occasion when he ran past the Deputy Principal’s office and the Deputy Principal stuck his head over the window and yelled very aggressively at him. He does not recall the specifics of what was said.

135. [138]

     The Deputy Principal was far more aggressive than the other teachers and “very uncontrolled in his delivery of discipline”. Mr Adams described his outbursts as “not random”. They usually occurred when the Deputy Principal was in the process of disciplining someone.

136. [139]

     Mr Adams recalls there being a detention process at Forster Public School and he had definitely been on detention on a few occasions. When he was on detention, Mr Adams was sent to the Principal’s or Deputy Principal’s office. He had been in the Deputy Principal’s office for detention on at least one occasion and likely more. Mr Adams does not recall whether the doors were shut during detention.

137. [140]

     Mr Adams would attend at the administration building whenever he was sent to see the Principal or Deputy Principal and that would usually be for discipline related reasons. He would not describe the administration section of the school as “busy”.

138. [141]

     In cross-examination, Mr Adams accepted that his memory of the events that occurred in 1987 and following was hazy, but the haziness related to timeframes. Some of the issues were able to be remembered clearly. Mr Adams was definitely on detention for disciplinary action, whether it was called detention or whether they were all detentions or some detentions he would not be able to specify.

139. [142]

     While there were times when Mr Adams was taken to the Principal’s or Deputy Principal’s office by a teacher, he spent times, for disciplinary action, with the Principal or Deputy Principal alone, i.e. just Mr Adams and the Principal or Deputy Principal respectively.

140. [143]

     Mr McLean was the Deputy Principal against whom the allegations in these proceedings have been made. The State called him as a witness; he is not a party to the proceedings.

141. [144]

     At the time of providing his first of two statements, he was 72 years of age, having been born in 1951. He completed teacher training at Lismore College of Advanced Education from 1971 to 1972 and began teaching at Blaxcell Street Public School in 1973. He is married and has been since 1 September 1973.

142. [145]

     In 1977, Mr McLean moved to Wedemeyer Public School, Greystanes. In 1979, he was assessed for placement on a promotions list and commenced in a consultant position in April 1980. During his time as a consultant, he was awarded Primary List Two and was appointed to a primary principal position at Yetman Public School commencing in 1983. This was a teaching principal position.

143. [146]

     In 1986 following a further assessment process, Mr McLean was appointed to the Primary List Three which led to his appointment as Deputy Principal at Forster Public School in 1988. His wife, who was also witness in these proceedings, was a teacher at Forster Public School at the same time, and during that period his two children were students at the school.

144. [147]

     Between 1989 and 1990, Mr McLean applied for assessment and placement on Primary List Four, the assessment for which commenced on 5 June 1989. It occurred at Forster Public School which had 700 students, which later grew to 800 students.

145. [148]

     The assessment was a 4-day intensive program which was a 360-degree assessment, but without students being involved. It involved interviews with the teaching executive at Forster, classroom teachers, teacher aides, the Aboriginal Education Officer and others.

146. [149]

     There were staff meetings associated with the assessment and some parents were involved in a P&C meeting attended by the P&C executives and regular staff. A number of parents in the wider community were engaged in the process.

147. [150]

     The process was described by Mr McLean as rigorous, and its details were provided in the first statement. There was a follow-up invitation to meet with the Regional Director in Newcastle as part of the procedure for merit selection.

148. [151]

     According to Mr McLean there was, during this process, no concerns expressed about student welfare or school management practice. Nor was there identified any inappropriate behaviour.

149. [152]

     Mr McLean testified that there has “never been a concern raised with regard to any allegations of the type raised in the allegations put to [him] here, during [his] entire 40 years of teaching and leadership service, in any schools in which [he] worked”. [3]

150. [153]

     After his successful assessment, Mr McLean was appointed to Tuncurry Public School in 1992, where he remained Principal for the next 20 or so years. He described those 20 years as “invigorating”. He became Secretary and President of the Local District NSW Primary Principal Council.

151. [154]

     As stated, Mr McLean denied the allegations made against him in these proceedings. He described those allegations as being inconsistent with his “established integrity as a local citizen who has lived in Forster for 34 years and as Tuncurry Public School Principal”. He believes that if there were any concerns about his professionalism, integrity or conduct, it would have been brought to light during the course of the assessments for promotions.

152. [155]

     Mr McLean described his introduction of a number of policies and programs at Forster Public School and the introduction of a new curriculum and syllabus.

153. [156]

     As to his relationship with the plaintiff, he testified that when the name of the plaintiff was put to him by his lawyers, he recalled the name but struggled to remember what the plaintiff was like. His wife, according to Mr McLean, recalled the plaintiff. He was told by his wife that his daughter was in the same school grade as the plaintiff.

154. [157]

     Mr McLean denied each of the allegations of sexual misconduct.

155. [158]

     As to the circumstances of his office, Mr McLean described the office as part of the administration section of the school and attested to the fact that, as he understood it, administration staff had a direct view from the counter to his office door. He also described the office as having a window to the carpark and the blind was always open. The evidence corroborated that the administration staff had a direct view from their counter of the Deputy Principal’s door. [4]

156. [159]

     The “foyer area” and building provided the main thoroughfare and access for entering and exiting the school administration area, which was on a split level, and was used for parents, staff and students conveying messages between classrooms and administration staff. Children sat in the foyer waiting for parents.

157. [160]

     Mr McLean testified that the office doors were “only closed when the cleaners had finished attending to the area for the day”. This is an issue of some contention. Mr McLean also testified that there “was an open-door practise [sic] and policy which meant school staff could view and scan the whole area”. [5]

158. [161]

     The administration area was described as a focus [sic] point and it included the reception for parents, students and visitors, the offices of the Principal, Assistant Principal and Deputy Principal, a reading support teacher resource room, a sick bay, staff sign-on book, a duplicating room, an area for the Aboriginal Education Learning Support Officer, shared administration, teacher’s staffroom and teachers’ toilets. [6]

159. [162]

     A bench was located outside the administration block and under cover, which was not attached to the staffroom and was used to place students who needed “thinking time” regarding their behaviour. The behaviour of children was generally managed by teachers but there were times when executive staff intervention was needed.

160. [163]

     Mr McLean described the administration area as a “hive of activity”. There were times when intervention of the Executive Staff was required, and students would be referred by the relevant staff member or the children would be taken by their class teacher to the Deputy Principal or Principal.

161. [164]

     Mr McLean, in relation to the treatment of students, said this:

162. [165]

     According to Mr McLean, the safety and wellbeing of all students and staff was ensured and treated in accordance with school policies and the Department of Education Student Welfare Policy. There were 47 staff at Forster Public School and during the List 4 School inspection appraisal in June 1989, there was an examination of the Student Welfare Policy and the implementation of it. These, according to Mr McLean, were found to meet guidelines and there were no negative comments.

163. [166]

     According to Mr McLean he had difficulty preparing the answer to the allegations because of their nature and they made him “sick to the stomach”. It caused him to have “a sense of disbelief and betrayal” and caused him significant anxiety. Apart from the relevance of those aspects to credit, it is not clear to what issue in the proceedings they go.

164. [167]

     Following the witness statement of 24 October 2023, on 22 August 2024 Mr McLean complied a second witness statement. Mr McLean is now retired.

165. [168]

     The later statement, after summarising some aspects of the earlier statement, refers to the layout of the administration building and attests to the fact that there was an administrative staff member in the reception area to greet people coming into the school and to answer telephones. Mr McLean testified that one could “see into my office from the stairs leading up to the staffroom”.

166. [169]

     As earlier mentioned, the administration building was split level, and the staffroom and toilets were on the upper level of the building. The upper level was the level on which the sign-in book for teachers was placed. Notwithstanding the comment to which earlier reference has been made as to the open-door practice, the practice was described in different terms in the second or later statement.

167. [170]

     In oral evidence, Mr McLean described the second statement as having “clarified or corrected” that which was described in paragraph [70]. Nevertheless, it is clear from the second statement at paragraph [16], [8] that there were times when the office doors were closed.

168. [171]

     Mr McLean described his own approach as one in which his door would never be shut “if [he] were one on one with a student”. He purported to describe that practice as being followed by other staff, on his understanding, but it is not clarified how one would ever get to such an understanding other than by being told by the other staff. The terms of any such conversation and how the topic arose are not in evidence. Nor would someone who observed a closed door be aware of who, if anyone, was inside.

169. [172]

     Mr McLean also described a practice in which staff and parents would often appear at his doorway unannounced and he would make himself available to people. But this was when the door was open, which is, in terms of the issues in this matter, unhelpful or non-probative.

170. [173]

     There is a description of the storeroom in the administration building, it seems on the basis of a misunderstanding of some evidence or allegation relating to the storeroom to which the plaintiff referred in the incident in which the plaintiff punched, on his allegation, Mr McLean. However, properly understood, the allegation of the plaintiff was related to a storeroom in a demountable classroom.

171. [174]

     Mr McLean in his statement seems to differentiate between “time out” and detention and such time out was, according to Mr McLean, never served in someone’s office. Further, all discipline took place within school hours and Mr McLean attests to the fact that the school “never kept students back after school as they had to catch buses or otherwise get home from school”. [9]

172. [175]

     Typically, Mr McLean would return home from school with his wife and children according to his evidence.

173. [176]

     In the second statement, Mr McLean reiterated that he does not remember the plaintiff. Nor did he remember the plaintiff being sent to him by Ms Nixon, his class teacher in Year 5.

174. [177]

     Mr McLean denied having ever met with Ms Burke in the circumstances described by her and summarised in these reasons. Mr McLean said he has “no collection of ever having spoken to, left a message for, or met [the] mother and students were not kept back after school”.

175. [178]

     It is, according to Mr McLean, “also highly unlikely that [he] would have been at school after about 3.20pm in the afternoon as [he] would have left the school grounds together with [his] wife and two children”. He also denied the events depicted and summarised already, relating to the out-of-school reference to him as “Jaffa”.

176. [179]

     In oral evidence, apart from seeking to reconcile the different descriptions of the open-door policy given differently in each of the statements, the defendant relied upon the two statements and was cross-examined. The cross-examination ranged over some detail, such as that the Forster Public School had 47 teaching staff of whom there were 43 usually teaching, and the others were relief staff.

177. [180]

     There were 600 to 800 students over the period 1988 to 1991. Over and above the teaching staff, there were four or five non-teaching administration or support staff. There was a general assistant at the school, but staff such as cleaners would come in at an appropriate time in the morning and after school had closed in the afternoon. The cleaners, for example, were not present while students were at the school.

178. [181]

     There were three to four classes per stream (year level) at the school, with about 90 to 100 students per stream.

179. [182]

     The administration building was not the usual entry point for students – it was generally for visitors, although staff may use it depending upon the direction from which they were coming, and children would enter only for the purpose of bringing a note or something similar. Students bringing a note from a teacher, according to Mr McLean, would always be accompanied by another student unless there were good reason or an emergency.

180. [183]

     However, according to Mr McLean, if a student were required to attend the administrative building for disciplinary purposes, then if there were subsequent days during that punishment or time out, the student could arrive on their own. Detention, as distinct from time out, was usually imposed as a step above time out, but in terms of the manner in which it was exercised, it was more a label than a difference in structure.

181. [184]

     Time out and detention could be undertaken in the seating fixed outside the staffroom and outside the administration block. Occasionally, seats that were in the foyer, outside the staffroom, could be used for the student to sit and serve time out or detention. Demountable classrooms were not used for detention, nor were students placed in one of the corners of the staffroom.

182. [185]

     Detention was not noted on the student’s record unless a counsellor were involved, which was not the usual course. In part, this was not put on the record in order not to label the student with a record of bad behaviour. Time out and detention, other than when involving a counsellor, were not subject to formal strict guidelines.

183. [186]

     Mr McLean denied that “isolation” was utilised at Forster Public School, because it was not a high school or it consisted only of Year K-6 classes. Isolation, as drafted in departmental documents, referred to a more severe punishment applicable to older students.

184. [187]

     Nevertheless, questions were asked concerning isolation and compliance with policies for punishment. During the course of this questioning, it became clear that isolation was an available punishment, which required a teacher’s emotional neutrality and was not a frivolous punishment – it was a serious occasion and accorded, at least in many respects, with that which Mr McLean described as detention.

185. [188]

     If out of class isolation were imposed at Forster Public School, it would occur in the administration building. There were vacant rooms at lunch time and recess, which were not designated detention rooms, that could be used by the student or students and teacher for the purpose of detention.

186. [189]

     Mr McLean’s role at the school involved the discipline of children, which included placing students on time-out or detention. Mr McLean was, from time to time, involved in out of class isolation of students, which required the students to be located in the seating in the foyer area.

187. [190]

     He was never involved in out of class isolation with a student in a classroom. Nor was Mr McLean involved in detention with a student or students that took place in a classroom.

188. [191]

     Further, Mr McLean denied ever having occasion to be involved in a detention of a student in his office. When asked whether there was an occasion to have the plaintiff in his office for any purpose, Mr McLean initially said he did not recall anything like that and then corrected it to say no he did not. [10]

189. [192]

     Initially, Mr McLean said there was never a time when there was a student and teacher involved in a disciplinary matter, or a matter of student welfare, on their own in a room. He was asked whether, in that statement, he had meant “without the door being open” and he responded the door was open, meaning it was “always” open.

190. [193]

     Asked to clarify the answers given, Mr McLean said, “there was never the door shut with a student in the office”. The clarification was, in effect, a different answer to the answer given first to the question. Properly understood, the effect of the clarification was that there could be a student and teacher involved in the discipline or student welfare issue on their own in a room, but then the door was open. [11]

191. [194]

     Mr McLean explained that the policy of never having the door shut with a student in the office was implemented so that students felt safe, because they needed to feel safe rather than intimidated. His answer went on to explain that it is “very, very easy to intimidate a child” and that teachers were aware to “switch on their student welfare knowledge and understandings” and not put themselves or the child in a compromising position.

192. [195]

     Asked how it would be compromising for a teacher, Mr McLean explained that because the child would be intimidated, she or he may report it to a parent, but they would probably be “too scared to take it to … their classroom teacher”. In those circumstances, it would come back to the school, and it would be found that the teacher has not followed expectations of safe student welfare processes. Mr McLean said that the policy was universally applied without exception and there were no occasions where a door would be shut with a student and staff member in that room.

193. [196]

     Nevertheless, Mr McLean suggested that it was possible that his and other doors were closed from time to time, but according to Mr McLean, while on some occasions the door was closed, on most occasions it was open. No one ever queried or quizzed Mr McLean when his door was shut.

194. [197]

     Mr Mclean was in a position of known authority over the school students, and he could exert power over them, although, according to Mr McLean, he did not like that description. Mr McLean also accepted that he was in a position of trust in relation to the students. As such, if Mr McLean were to direct a student to serve time-out, the student would comply.

195. [198]

     Mr McLean was asked whether, if he were to have directed a student to attend the administration building, he would expect the student to comply with a request. Mr McLean answered the question by qualifying it in suggesting that he would expect that only “if it were a reasonable request”. When asked to clarify when a direction to a student to go to the administration building would not be a reasonable request, Mr McLean avoided answering the question. Ultimately, Mr McLean agreed that his invariable experience at the School was that if he were to direct a child to go somewhere, the child would go.

196. [199]

     Mr McLean described his office. The door was on the western wall at or near the southern wall and swung inwards towards the southern wall. There was a window on the eastern wall and the desk and Mr McLean’s desk chair were against the northern wall and Mr McLean sat facing north. There were two “lounge” chairs against the southern wall. Mr McLean sketched the layout of his office. [12]

197. [200]

     Questions as to the line of sight from the reception area drew the response from Mr McLean that people could see into the office. Initially, as earlier stated, he asserted that people on the stairs or walking down the stairs could see into his office and people at the reception area/counter could see into his office.

198. [201]

     However, a proper examination of Exhibits C and D discloses that persons on the stairs could only see a small part of the southern wall of Mr McLean’s office, assuming the door was open, and a person at the reception counter would have very limited sight of Mr McLean’s office, when the door was open, as would persons standing in the foyer area of the duplicating room.

199. [202]

     Assuming the Deputy Principal’s office door was open, sight of the desk would be limited to people standing east of the door to the principal’s office in an area marked by part of a triangle formed by the western wall of the Deputy Principal's office and the office to its south, the northern wall of the Principal's office, east of the doorway and the hypotenuse from the doorway of the Principal’s office and the northern extremity of the Deputy Principal’s office. Even in that very small triangle, there could be no view of the Deputy Principal’s office if one were located too close to the western wall of the office of Assistant Principal (being the office to the south of the Deputy Principal’s office).

200. [203]

     Mr McLean vehemently denied any conduct alleged in relation to sexual abuse against the plaintiff and could not recall any interaction with the plaintiff. Notwithstanding his lack of recollection, the evidence of Mr McLean was that he denied ever having Mr Greenwood in his office and he denied any interaction with him or knowing him.

201. [204]

     Mr McLean accepted that, as a senior member of the school executive, the staff would not question him being involved in the detention of a student at the school, unless they were involved in the detention decision, but also accepted that if he took a student into his office for any purpose, he did not know if they would say anything.

202. [205]

     One of the questions and answers bears repeating:

203. [206]

     Mr McLean accepted, towards the end of the cross-examination, that it was possible that detention in the form of out of class isolation took place at the school by a teacher taking a child and sitting them at the front or in the corner of the classroom for a few moments, but it was not noted as a detention. Such a thing could have happened in any of the classrooms, including the demountable classrooms. It would not have happened in the staffroom.

204. [207]

     Lastly, Mr McLean denied yelling at students, other than in a situation where he was calling across a playground; he denied there was an occasion when he smacked a metre long wooden ruler on a student’s desk when visiting a classroom; and he denied ever physically dragging a student by holding their upper arm. Mr McLean denied ever being punched in the stomach by the plaintiff and had no recollection of an occasion which required the plaintiff’s mother to attend school after hours.

205. [208]

     In re-examination, Mr McLean testified that he was unaware of any complaint having been made against him by a student, a parent or another staff member. While the answer to each of those questions was in the negative, I assume the answer did not include the complaints made in the current proceedings. He also gave evidence about friendly contact out of hours with students in the area and with their parents. Mr McLean suggested that approximately five thousand students have come under his care, although I accept that as a rough estimate.

206. [209]

     Kayleen Stewart was a person who worked in the administration office at Forster Public School, initially as a casual and then from 1989 as a permanent. After the relevant timing of these events, Ms Stewart became office manager and retired at the end of 2014. Ms Stewart described the administration building and the personnel working in it. She also attested to the “open door policy” operating throughout the school.

207. [210]

     She noted exceptions to the policy, such as if there were a private parent meeting. In her experience, there was never a child and an adult alone in a room with the door closed. On occasion, Ms Stewart was requested to sit in a meeting in a room to avoid the adult and child being in the room together.

208. [211]

     One of the administrative staff would be in the office by 8:30am and one would remain there from that time until between 3:30pm and 4:00pm. There was always someone, sometimes three people, in the main administration area at any given time.

209. [212]

     Ms Stewart testified that there was no corporal punishment in the early 1990s, such punishment having been abandoned before Ms Stewart’s arrival at Forster Public School in 1984. Ms Stewart does not recall whether there was detention but described the situation where a student had “really misbehaved” and being required to sit in the foyer area in the administration building. Nevertheless, Ms Stewart testified that there was no detention conducted in the administration building.

210. [213]

     Ms Stewart described Mr McLean’s interactions with students as “unremarkable”. She described Mr McLean as “a bit of a disciplinarian but not over the top”. She had never observed a student in his office on detention and described some teachers as a lot stricter than he was.

211. [214]

     She also testified that she had never seen Mr McLean take a student into the storeroom. Nor did she ever see him giving students frozen yoghurt or fruit balls. The first that Ms Stewart heard of the allegations made by the plaintiff were in these proceedings.

212. [215]

     No one explained to Ms Stewart why there was an open-door policy and what it was intended to protect. She suggested that it would be common knowledge that it would be a safeguard for everybody. In that regard, Ms Stewart suggested that it was a safeguard against “inappropriate things” happening.

213. [216]

     When she attended such meetings with students, the doors were still open and the subject matter of such proceedings could be a range of matters, including discipline but not necessarily a serious matter. In the relevant years, Ms Stewart would have been called into such a meeting on very few occasions, but perhaps a few times a year.

214. [217]

     If Ms Stewart had seen the doors of the executive staff offices closed, she would assume that there was a meeting occurring and that everything was in order. If she had seen Mr McLean’s door closed, she would not make an issue of it because she would assume that everything was in order.

215. [218]

     The reception counter was about two metres (and on the plan shows six foot three inches) and above the reception counter was a glass panel, half of which opened. The counter was about three and a half to four foot high. The opening part of the glass panel was at its northern end, and it was usually left open. After being shown the plan, Ms Stewart agreed that one could not see the Deputy Principal’s room from the duplicating room and had an obstructed view of the Deputy Principal’s door from the reception counter, except from some parts of the reception counter.

216. [219]

     The State called Mary McLean, the wife of the Deputy Principal and a person who, during the relevant period, taught in the Infants Department of the School. During her teaching years, being the relevant period for the complaint, Ms McLean would attend at the administration building several times each day. She would enter the school through that building, sign in and sign out and do her duplicating.

217. [220]

     She would also go to the administration building, because she went to the staffroom at recess and at lunch when she was not on playground duty. Ms McLean was rostered on playground duty about three times a week for part of lunch or recess.

218. [221]

     Ms McLean would usually meet her husband, the Deputy Principal, in his office after school and they would usually travel home together with their children, who were students at the school. In her evidence, she described the administration building.

219. [222]

     Ms McLean does not recall whether the school had a formal policy regarding detention. As a matter of practice, teachers dealt with student behaviour for the most part. If additional support was needed, they would speak to the executive teacher or the Assistant Principal whom she described as being, in 1991, Len Chapman and Bob Woolbank, respectively. It was only if the behaviour was particularly serious that the Deputy Principal or the Principal would become involved.

220. [223]

     Ms McLean does not recall a specific detention room, but teachers may have put their students on detention in their own classroom.

221. [224]

     She remembers the plaintiff as being a troublesome child from her time on playground duty. He was also in their daughter’s year at school.

222. [225]

     When she went to the staffroom at recess or lunch, she generally saw her husband.

223. [226]

     There was no discussion about an open-door policy when she commenced at the School, and she would describe it as a practice rather than a policy.

224. [227]

     Ms McLean was generally not in the administration building during school hours, but when she was there, she never saw the door closed. Nevertheless, she would not be surprised if other people had seen doors shut from time to time.

225. [228]

     Ms McLean does not recall any staff telling her that it was an open-door policy; it was just a practice, and Ms McLean could not see any reason to have doors shut. She had been told that her husband was the first person who reminded people that doors should be left open and she understood that the practice was that the door would remain open unless there were good reasons to have it closed.

226. [229]

     Ms McLean does not recall the school having a formal policy as to detention. The distinction between “time out” and “detention” became more noted in the late nineties but was not drawn, to Ms McLean’s recollection, in the 1980s.

227. [230]

     Detention, in Ms McLean’s view, is a harsher word. The term detention was not commonly utilised.

228. [231]

     She denied that Mr McLean would be detained after school without her, although there were occasionally staff meetings. Part of the reason for that is there were outside school lessons that their children needed to attend.

229. [232]

     Ms McLean does not recall a single occasion where her husband would have to stay after class ended, for the purpose of doing school associated work. Ms McLean also denied that Mr McLean ever kept a student after school. It is not absolutely clear how Ms McLean would be aware of that circumstance, unless the practice of returning home was universally applicable, which it was not, or except as informed by Mr McLean.

230. [233]

     Ms McLean remembered the plaintiff as being boisterous and vigorous and breaking rules when playing football in the playground. She recalls him being pulled up often for dangerous play in the grounds of the school. She never referred him to the Principal and cannot say whether other teachers did. She was not asked whether the plaintiff was referred to the Deputy Principal.

231. [234]

     Ms Ridgway’s evidence-in-chief was by way of her statement. [13] Ms Ridgway retired from teaching in 1995 and was the Assistant Principal for Year K to Year 2 from 1981 through to 1993, when she was appointed Deputy Principal together with another.

232. [235]

     She refers to the witness statement of Mr Avard, which is already summarised in these reasons. She remembered Mr Avard but did not recall teaching him although she identifies the class photograph from 1987 as her Year 2 class in which Mr Avard was recognised.

233. [236]

     Ms Ridgway does not recall the incident which Mr Avard described in which Mr McLean banged a ruler on the desk. She does not recall Mr McLean ever coming into her classroom and, in Year 2, which was 1987, Mr McLean had not yet started at the school. In 1987, Bob Woolbank was the Deputy Principal.

234. [237]

     When Ms Ridgway was at the school and Assistant Principal, there was a practice or policy of “open doors”, meaning that the office doors were open and people could go in at any time. It was not written down anywhere in the school’s procedures or guidelines.

235. [238]

     She remembered Mr Avard when he was a student in her class. She remembered the plaintiff’s name but does not remember him in her class.

236. [239]

     She described the time out system and it being applicable to Years 3 to 6 students. If there was a problem, the teacher might send them to stand outside the Principal’s office and that was an accepted practice to remove them from the situation for a while. The teacher would send the student to the administration office to stand outside the Principal’s office.

237. [240]

     Ms Ridgway does not recall time out during lunchtime or recess, but it would have been, if it were a practice, confined to Years 3 to 6 students. Even though she utilised the staffroom to have lunch, she does not recall students outside the staffroom but is not prepared to say that it did not happen.

238. [241]

     Ms Purbrick was employed at Forster Public School from 1974 to 2008, when the school was a Year K to Year 6 school. She was employed as an administration officer.

239. [242]

     Ms Purbrick described the position of the administration building, its entry and its layout. She described, in detail, the layout of the administration office.

240. [243]

     When one entered the administration office, Ms Purbrick sat on the left-hand side at the end of the partition, facing the wall. Ms Kay Stewart sat near her. She too was an administration officer.

241. [244]

     Ms Kay Cunningham was the Aboriginal Liaison Officer and Ms Cunningham shared the office with the administrative staff. Ms Cunningham is now deceased.

242. [245]

     Ms Purbrick described the duplicating room towards the back left-hand side of the lower level of the administration building. Ms Johnstone and Ms Williams worked in the duplicating room. Ms Williams is now deceased.

243. [246]

     The administration office was staffed by about 8:30am in the morning and continued to be staffed until around 4:00pm.

244. [247]

     When Ms Purbrick was standing at the glass partition, she was able to see over the countertop and into the office of the both the Deputy Principal and the Assistant Principals. Ms Purbrick does not recall ever hearing any loud noises or anything that might have indicated that a student was being harmed and she would remember if she heard something like that.

245. [248]

     Neither the Deputy’s office nor the Assistant’s office had glass panels in the office doors. If the office doors were shut, one could not see into the office. The executive staff, including Mr McLean, almost always kept doors open, on Ms Purbrick’s recollection.

246. [249]

     It would have been very rare for one of them to have their office door closed. However, they were shut on occasion, for example, when they were speaking privately to a parent. Ms Purbrick does not recall ever seeing an executive member of staff, including Mr McLean, close his door while they had a student in their office except for one occasion which she described.

247. [250]

     The Principal was a proponent of doors being open in order to show friendliness and a collaborative approach, which I also take to include transparency, but also for child safety reasons. There was a growing understanding of child safety risks in the late 1980s and early 1990s.

248. [251]

     It seems again for reasons associated with a misunderstanding of the evidence that was to have been given by the plaintiff, there is a description of the visibility of the storeroom in the administration office area. Any person coming into the administration building would come to the counter and Ms Purbrick would be the first to assist them. I take this to be a reference to a person coming from outside the school.

249. [252]

     Ms Purbrick generally worked from 8.30am until noon or 1.00pm, and then after lunch, either 1.00pm or 2.00pm, until around 4.00pm. Administrative staff took a staggered lunch so that there was always someone in the office.

250. [253]

     Ms Purbrick recalls discipline was not a huge part of the School and was a combined effort between teachers and executive staff. Teachers might have sat a student outside their classroom for some time out or detention or taken a student out of the playground and sat them somewhere if they were misbehaving. Ms Purbrick does not recall students being on detention in the administration building.

251. [254]

     There may have been occasions when a teacher brought a student to the administration office. Ms Purbrick recalled two instances where a student was spoken to in the Principal’s office.

252. [255]

     In one case, the student’s teacher brought him to the administration building and the student waited outside the Principal’s office prior to the Principal speaking to him. The Principal kept his door open when he spoke to the student.

253. [256]

     The other instance was similar. The student was “having a meltdown”. Ms Purbrick closed the door to the Principal’s office to give the student some privacy and was in the room with that student trying to help him calm down.

254. [257]

     Ms Purbrick remembers Ms Nixon, the teacher. She does not recall Ms Nixon ever sending a student to the administration building.

255. [258]

     Ms Purbrick does not know whether students were ever kept after school, but she does not recall it ever happening. Sometimes students would wait in the administration building after school if they had missed their bus and they had to be picked up.

256. [259]

     Ms Purbrick worked with Mr McLean during her time at the School. Her recollection is that Mr McLean spent most of his time in the administration building. Mr McLean’s wife also worked at the School, and they had two children who attended the school.

257. [260]

     Ms Purbrick does not recall ever seeing Mr McLean with frozen yoghurt or fruit balls for the students or any particular student. Nor does Ms Purbrick ever recall seeing Mr McLean act aggressively towards children or anyone else. She does not recall Mr McLean yelling and she does not recall him ever being angry or red-faced.

258. [261]

     Until these proceedings were commenced, Ms Purbrick had never heard of any allegations of the type made against Mr McLean. She understood that the allegations involved 10 to 20 instances of abuse in Mr McLean’s office and the storeroom. Ms Purbrick never observed a pattern of behaviour from Mr McLean or the plaintiff that was indicative of such events.

259. [262]

     In that regard, she does not recall ever seeing the plaintiff in the administration building or seeing Mr McLean close his door behind a student nor particularly the plaintiff. Ms Purbrick testified that if she were to have seen that, she would have discussed it with other administrative staff.

260. [263]

     Ms Purbrick does recall the plaintiff but recalls very little about him. She recalls that he was a bit of a problem child and a bit of a “tearaway”. Ms Purbrick does not recall the plaintiff ever being sent to the Deputy, including Mr McLean or the Principal.

261. [264]

     Further, Ms Purbrick does not recall ever sending or leaving a message for the plaintiff’s mother that the plaintiff was being kept back after school. Ms Purbrick has no recollection of ever meeting the plaintiff’s mother.

262. [265]

     Ms Purbrick has no recollection of the plaintiff’s mother attending at the school, nor the door to Mr McLean’s office being closed before and after the plaintiff’s mother met with Mr McLean. It was not the “done thing” for a student to be in an executive office with the door shut, according to her evidence.

263. [266]

     Ms Purbrick’s observation as to discipline not being a big part of the culture at the School was formed from general observation. It was not part of the functions of Ms Purbrick to be involved in discipline, which was implemented by teachers or by the executive staff.

264. [267]

     Ms Purbrick spent most of her day at her designated workstation which was a desk to the south of the reception counter. Directly in front of Ms Purbrick and her desk was a wall. The wall had shelving for the filing system with financial matters which was her major function.

265. [268]

     From the reception counter, Ms Purbrick could not see into the Principal’s office. Nor could she see the Principal’s door. She could see the door of the Deputy Principal’s office and the Assistant Principal’s office, but she could not see very far into the office because the Deputy Principal’s office was majorly to the left behind the staircase and behind a wall.

266. [269]

     Ms Purbrick could possibly see a chair in the office and could see in the doorway, but not much further. Such a sighting was only from the counter, not from her desk. Ms Purbrick never deliberately looked at the doorway to check if it were open or closed.

267. [270]

     There were occasions when the Deputy Principal’s door would have been closed but Ms Purbrick cannot recall it now, 35 years later. If the doorway were shut, Ms Purbrick would have no reason to do anything about it.

268. [271]

     Ms Purbrick does not recall the incident described by Mr McLean, about the irate parent who came to the school.

269. [272]

     Ms Purbrick made it clear that her function was not to police actions and that applied to her observations of the doors and whether they were shut, the possession of sweets and other matters. She agreed with the description that Mr McLean was a bit of a disciplinarian but not over the top. However, Ms Purbrick would describe Mr McLean’s treatment of children as fair.

270. [273]

     Ms Nixon started teaching 1977 in Taree, travelled overseas in 1982 and 1983, and took maternity leave in 1984. Ms Nixon worked casually in 1985 and 1986, when her second child was born.

271. [274]

     In 1987, a position became available at the School for which she applied and to which she was appointed. She remained at Forster Public School until December 2015. Ms Nixon taught various classes between Years 3 and 6 and spent one year on exchange in England in 1996.

272. [275]

     Ms Nixon described the administration building and the need to sign on each morning. Ms Nixon would also go to the administration for the purposes of printing and copying.

273. [276]

     The administration building was very busy during recess and lunch and before school. There was always someone in the administration building and it is unlikely that Mr McLean would ever have been in the administration building on his own.

274. [277]

     Ms Nixon’s classroom was in a demountable building opposite the canteen. Most of her time, and all her teaching time, was spent in that classroom.

275. [278]

     Ms Nixon cannot recall the detail of any detention but accepts that there may have been some form of detention in existence at the time.

276. [279]

     If a student were to misbehave, Ms Nixon’s practice was to seek to mediate and resolve the issue and, if necessary, give them some time out. If assistance were needed, Ms Nixon would speak to the Assistant Principal (also known as the Year Advisor). Such a course would have been rare.

277. [280]

     If spoken to, the Assistant Principal may have put a student on detention. If the student’s behaviour went beyond that, it is possible that they could have ended up with the Deputy or the Principal in the administration building.

278. [281]

     Ms Nixon does not recall sending students to detention with the Principal or a Deputy Principal or the Assistant Principal in her time at Forster Public School. Nor does she recall any other teacher engaging in the practice. Sending a student straight to detention was described as inconsistent with Ms Nixon’s practice.

279. [282]

     If there were detention during that period, it would have taken place at lunch time. Ms Nixon has no recollection of the identity of any person who may have supervised any such detention. She does not recall being rostered on to supervise it. Ms Nixon supervised a sports team at lunch. Further, Ms Nixon did not see a student on detention in Mr McLean’s office.

280. [283]

     There was no corporal punishment at the School and Ms Nixon never saw a cane on school premises. If a student left the school grounds, Ms Nixon would have sent another student to the administration office to notify them or would have checked with the administration office as to their whereabouts.

281. [284]

     Ms Nixon knew Mr McLean as a member of staff at the School, and also as a parent and member of the community. His two children were a similar age to Ms Nixon’s children. Mr McLean would help out at the school like most parents and was a member of the local swimming and surf clubs.

282. [285]

     Ms Nixon does not recall ever hearing of Mr McLean or any other member of staff putting a student on detention for minor things such as wearing the wrong-coloured socks. She never observed that happening.

283. [286]

     Ms Nixon does not recall ever seeing Mr McLean displaying any favouritism towards a student, including giving them frozen yoghurt or fruit balls. She has no recollection of such items being available.

284. [287]

     Ms Nixon does not recall ever seeing Mr McLean alone with the plaintiff or any other student. Such a practice would have been very unusual. Nor did she ever see Mr McLean take a student into his office or into the storeroom in the administration building.

285. [288]

     Ms Nixon’s observation was that if a teacher or executive member were one-on-one with a student in any office or in a room, the door would have been open. She was told by other members of staff of that practice and for her to keep the door open if she were alone with a student and she also received training about it. The practice was in order to protect teachers against accusations by students, such as the ones made in these proceedings.

286. [289]

     If she at any time had concerns about student safety around Mr McLean or any other member of staff, she would have spoken out about it and reported it to the Assistant Principal or the Principal.

287. [290]

     The plaintiff was a student of Ms Nixon’s in 1991. Ms Nixon reviewed the plaintiff’s attendance records from 1989 to 1992. The plaintiff was absent in Year 3, in 1989, for 21 days; in Year 4/5, in 1990, for 3 days; in Year 5, in 1991, for 4 days; and, in 1992, for Year 6, absent for 8 days.

288. [291]

     The plaintiff did not stand out as a student. He was neither a star nor did he misbehave, on Ms Nixon’s recollection. Ms Nixon taught the plaintiff in 1991. The plaintiff did require a bit of extra teaching and attention, but nothing out of the ordinary.

289. [292]

     The attendance records suggest to Ms Nixon that the plaintiff did not get sick often and liked coming to school. Ms Nixon does not recall the plaintiff ever returning from lunch or presenting himself in her class displaying any unusual signs of distress.

290. [293]

     Ms Nixon does not recall any significant changes in the plaintiff in the year she taught him. Nor does Ms Nixon recall any issue with the plaintiff not wearing the school uniform correctly.

291. [294]

     Ms Nixon does not recall sending the plaintiff out of the classroom or to detention because of anything that he did. Ms Nixon denied that she was “setting up” the plaintiff for Mr McLean because she continued to send him to detention.

292. [295]

     Ms Nixon testified that if she were to have sent the plaintiff out of the classroom or to detention, which she says would have been inconsistent with her practice, it would not have been a regular occurrence, or she would likely remember it. She only ever sent a student to the administration building in extreme circumstances and she does not recall any such circumstance involving the plaintiff or any other student.

293. [296]

     Ms Nixon does not recall speaking to the Deputy Principal about the plaintiff nor sending the plaintiff to the Deputy Principal. If there were any issues with the plaintiff, Ms Nixon would have spoken to Mr Woolbank about him, not to Mr McLean. That was consistent with the practice that she adopted.

294. [297]

     Ms Nixon does not recall the plaintiff ever leaving class and not returning nor remember him running away from school. If this were to have happened, Ms Nixon would have sent another student to the administration office to notify them of the circumstance. She does not remember ever notifying the administration office of such an event in respect of the plaintiff.

295. [298]

     Ms Nixon does not recall the plaintiff ever asking to be removed from her class or displaying any signs that he was unhappy in her class. There was certainly no poor attendance.

296. [299]

     Ms Nixon has not had any contact with the plaintiff since he left the School.

297. [300]

     Ms Nixon started work at 8:30am and prepared her class. The classes started at 9:00am. She travelled to and from school by car.

298. [301]

     During the day, Ms Nixon had no duties that involved the activities that were occurring in the administration building. It was not Ms Nixon’s role to check on executive staff members. Further, it would not raise any concerns if she were to observe the Principal’s door or the Deputy Principal’s door closed when she visited the administration building. However, mostly the doors were open. It was not common for the doors to be closed, but it would occur occasionally.

299. [302]

     Ms Nixon received training at Teachers College relating to doors being opened for the protection of students and staff and she believes that Mr Woolbank would have mentioned it to her.

300. [303]

     Ms Nixon saw the difference between “time out” and “detention” as being semantic and described it as a similar practice. Generally, if a student needed time out from her classroom, Ms Nixon would send her or him to the Assistant Principal’s classroom which was next door and he would, likely, tell the student to sit for 10 minutes in his class.

301. [304]

     Time out could be for more or less than 10 minutes depending upon the nature of what was happening and how settled the student was. A student would not be sent to the administration building for classroom discipline. Students could be sent to the administration building and/or executive offices for lunchtime or recess detention or time out.

302. [305]

     Ms Nixon answered questions relating to the plaintiff and whether she noticed any distress. She had received training as to signs to look for in terms of child protection and it was not limited to distress. Ms Nixon also confirmed that the Principal or Deputy Principal would attend the staffroom at lunchtime. She described their attendance as one in which they would “pop in, 5 or 10 minutes, make a cup of tea, have a chat”.

303. [306]

     Helen Johnstone was a clerical worker at the School from 1981 until 2004. She had worked at two other schools in Sydney before taking up the position at Forster.

304. [307]

     Ms Johnstone described and identified the staff at the School and her role was to assist teachers in their preparation for classes. She assisted with curriculum and prepared materials for classes, including word processing, printing and photocopying. Ms Johnstone also prepared the school newsletter and assisted in answering the telephones. Sometimes, where necessary, Ms Johnstone assisted in playground duties and in classrooms. She was also the main first aid contact.

305. [308]

     Ms Johnstone also described the administration building. Ms Johnstone stated that the doors to the executive offices were typically open unless the executive was having a private discussion with a teacher, parent or a private telephone conversation. Ms Johnstone does not recall whether there were locks on the doors but does recall that there were external windows to these offices.

306. [309]

     Ms Johnstone does not recall ever seeing students alone with any of the executive officers. Usually, students would come into the administration building with another person, for example their teacher or another student.

307. [310]

     The administration building was a busy area, with people coming and going often. The school was quite big. There was always someone in the administration building.

308. [311]

     Ms Johnstone was typically in the first aid room at lunchtime. Students waiting for attendance for first aid would sit on a bed outside the room or would stand in or outside the room.

309. [312]

     Otherwise, Ms Johnstone spent a lot of time in the duplication room. She did not have a direct line of sight to the executive offices on the lower level from either the first aid room or the duplication room.

310. [313]

     Ms Johnstone described the administration building as one which was “more an executive space”. While there were students accessing the first aid room, it was not common to see students in the building.

311. [314]

     Usually, they would be accompanied by a parent or a teacher and they were not sent to the building on their own. Students, on Ms Johnstone’s understanding, were not allowed to leave the classroom on their own and would be accompanied by a teacher or another student.

312. [315]

     Ms Johnstone testified that if a student were asked to see the Principal or Deputy Principal, it would always be with their parent or teacher. She did not recall a student ever being sent to the Principal or Deputy without having been accompanied. Further, she did not recall a student ever going into either Mr McLean’s or the Principal’s offices unaccompanied.

313. [316]

     There was a seat along the back of the foyer area on which students would sit if they were waiting for their parents or if they were waiting to see the Deputy or the Principal.

314. [317]

     Ms Johnstone does not recall whether there was a detention generally at the school. She does testify that there was no detention conducted in the administration building.

315. [318]

     She does not recall any student, teacher or parent complaint about Mr McLean, other than in the course of these proceedings. Mr McLean was good with students, and she did not recall ever seeing Mr McLean give a student frozen yoghurt or a fruit ball or anything like that.

316. [319]

     Ms Johnstone knows the plaintiff. Her grandson is about the same age, and they were in school together. However, Ms Johnstone does not remember the plaintiff from when he was at the School. Ms Johnstone’s grandson is Mr Avard, a witness in these proceedings.

317. [320]

     Ms Johnstone worked predominantly in the area marked as a “duplicating room” in Exhibits C and D. She did not spend much time in the general administration support office and went there only if staff were busy and needed some assistance. When there, she could not see the Principal’s office.

318. [321]

     When travelling through the administration building, she noticed that the doors to the executive offices were generally open, but they could, from time to time, be closed. If closed, it would not cause concern for Ms Johnstone as she would assume that there would be a reason for it. Ms Johnstone’s role did not relate to school discipline.

319. [322]

     Ms Johnstone does not recall the incident described by Mr McLean relating to the irate parent.

Onus and standard of proof

1. [323]

   Despite the circumstance that the plaintiff is accusing Mr McLean of conduct that would amount to a criminal offence, these are not criminal proceedings. The plaintiff is required to prove those matters upon which he relies on the balance of probabilities. The standard of proof does not alter as a consequence of the seriousness of the allegation.

2. [324]

   In Australian common law, there are two standards of proof. The standard for criminal guilt in criminal cases is to prove the elements of an offence, which includes the conduct that gives rise to the offence, beyond reasonable doubt. In civil proceedings, such as these, the standard is to prove those matters upon which the plaintiff relies on the balance of probabilities.

3. [325]

   It is informative to compare the two standards. To prove a matter beyond reasonable doubt, the prosecutor in criminal proceedings must prove that, on the evidence, there is no reasonable hypothesis inconsistent with guilt. In other words, the prosecutor is required, in relation to the elements of an offence and essential facts, to prove no other reasonable possibility than that which proves guilt.

4. [326]

   In civil proceedings, the factfinder is required to be satisfied of the necessary facts upon which the plaintiff relies (or the person bearing the onus which, in some matters, may include the defendant) on the balance of probabilities. It is a significantly lower standard than proof beyond reasonable doubt. Nevertheless, proof on the balance of probabilities requires the factfinder to be satisfied that the event occurred more probably than not.

5. [327]

   Related to these concepts are the manner in which the factfinder treats evidence adduced, including the truthfulness and reliability of witnesses, and inferences that may derive from direct evidence. Facts may be proved by direct evidence or may derive from inferences drawn from other direct evidence.

6. [328]

   It is necessary to note that witnesses may be believed and considered reliable in whole or in part or not at all. But the mere fact that a witness is considered unreliable or considered untruthful in one aspect does not necessarily lead to the conclusion that the witness is unreliable or untruthful in other aspects.

7. [329]

   Further, not to believe a witness nor to accept their evidence does not prove the opposite of that which is asserted by the witness. An oft-used example suffices: if a witness testifies that the sky is blue and the witness is not accepted, it does not mean that the sky is not blue. The non-acceptance of the evidence merely results in there being no evidence on that issue from that witness. [14]

8. [330]

   Of course, the effect of not accepting evidence may result in a greater likelihood that evidence of another witness to a different effect will be accepted. Thus, in the hypothetical utilised above, if another witness testifies that the sky was grey (or that it was night and it was dark), the non-acceptance of the evidence from the witness to the effect that the sky is blue may result in a greater likelihood that the evidence to different effect will be accepted. But ultimately, the factfinder must be satisfied that the event occurred, not on the basis that one witness’s evidence is preferred as being more probable than another witness’s evidence, but on the basis that that which is said to have occurred is more likely to have occurred than that it did not.

9. [331]

   Less the above comment be misunderstood, it needs a little more explanation. In criminal proceedings, where the standard of proof is beyond reasonable doubt, an essential fact must be proved to the satisfaction of the factfinder in a manner which excludes all other reasonable hypotheses.

10. [332]

    In civil proceedings, the same fact must be proved to the satisfaction of the factfinder as being more probable than not. Where there are multiple possibilities, a preference for the evidence of one witness as against the evidence of another witness may not result in the fact being proved as more probable than not. It may merely be more probable than the version given by the other witness.

11. [333]

    Where there are more than two possibilities, the Court does not choose which of two possibilities that are the subject of evidence is the more likely one. It must be satisfied on the balance of probabilities that one of them occurred.

12. [334]

    To the extent that the plaintiff relies upon abuse by Mr McLean, the plaintiff is required to prove that the abuse occurred. Such an allegation is serious, and the seriousness of the allegation is a matter to which the Court has regard in determining whether it is satisfied on the balance of probabilities. [15]

13. [335]

    In Neat Holdings, the majority said:

14. [336]

    In the same plurality judgment, the High Court said:

15. [337]

    Thus, whether or not one applies the cautionary note which is sometimes misrepresented as the standard, the Court or factfinder must have an actual persuasion that the events more probably occurred than that they did not. The Court is not choosing which of two possibilities, for which there is some evidence, from a number of real possibilities is more likely. It is determining whether it is satisfied, on the balance of probabilities, that one of the possibilities occurred as against that possibility not occurring.

16. [338]

    The High Court dealt with the issue more recently in Henderson. [18] In Henderson, Gageler J (as his Honour the Chief Justice then was) said:

17. [339]

    While the foregoing passages from the judgment of Gageler J in Henderson, supra, were part of a minority judgment, the principles there stated do not suffer from that circumstance. Fundamentally, it is necessary for the party bearing the onus of proof to satisfy the Court of that which is required to be proved.

18. [340]

    As earlier stated, a fact may be proved by direct evidence or may arise as an inference from direct evidence. A single piece of evidence may prove the existence of a fact (or render it more probable than not which, relevantly, is the same thing) or there may be a combination of different evidence the effect of which is that the fact, being a fact in issue in the proceedings, is more probable than not. This is common sense. Nevertheless, once satisfied of the existence of the fact at the required standard, being a past non-hypothetical event, the existence becomes certain. [20]

19. [341]

    As has been noted on a number of occasions, the drawing of inferences is nothing peculiar or esoteric. It, too, is a process that has been described as “commonsense”. In Fabre v Arenales, [21] Mahoney JA said:

20. [342]

    As a matter of logic, there is a difference between the test propounded and cited by reference to Jones v Sutherland Shire and the terminology utilised by Mahoney JA, although I doubt there was an intention to alter the effect. There is a difference between drawing an inference if not to do so would defy common sense and, on the other hand, drawing an inference if to do so would not defy common sense.

21. [343]

    One example may suffice. It may not defy commonsense to draw an inference that, if one were to ring a mobile phone and it went to voicemail, the phone is being used on another call. Yet it could not be said that human experience would be contradicted if such an inference were not drawn. The latter does not permit for possibilities other than the existence or non-existence of the inference drawn. Nevertheless, where there are different inferences available on the evidence before the Court, it is for the factfinder to determine which inference should be drawn.

22. [344]

    The classic exposition of the manner in which inferences should be drawn and their use is that contained in the judgment of Sir Frederick Jordan CJ in Carr v Baker. [23] His Honour said:

23. [345]

    Ultimately, the Court needs to be satisfied by the plaintiff that the events pleaded occurred, considering all the evidence that has been adduced. The Court must be satisfied that it is more probable that the events occurred than that they did not.

Consideration

1. [346]

   Bearing in mind the circumstance that the plaintiff bears the onus of proof on each matter on which the plaintiff relies for the cause of action, it is necessary to comment on the witnesses and some of the subsidiary facts agitated in the proceedings. It seems to be uncontroversial that students at the school, or some of them, called Mr McLean by the name “Jaffa”. Mr McLean admits that he was called that, even in an incident unrelated to any issue in these proceedings.

2. [347]

   I accept that students called Mr McLean “Jaffa” because, when he became angry or aggressive, he turned red in his face. It must be said, there may be other reasons why a person may have redness in the face.

3. [348]

   Nevertheless, it stands to reason that the name was brought about by the appearance of redness in the face. It may be that redness can be caused by some condition, for example high blood pressure or rosacea, but there is no evidence to suggest that there is any such condition suffered by Mr McLean, who essentially or implicitly denies becoming angry and/or becoming red in the face.

4. [349]

   I accept that Mr McLean became red in the face and that he did so as a consequence of becoming angry or aggressive. Furthermore, such redness in the face must have occurred sufficiently often for the students to notice and for it to become sufficiently significant to warrant the designation of the nickname.

5. [350]

   As for the ability of staff to see into the Deputy Principal’s office, the evidence is not such as to be inconsistent with the capacity of the Deputy Principal to abuse the student in the manner suggested. There are a number of aspects to it.

6. [351]

   Firstly, a number of the administrative staff, in their statements, testified to the fact that they could see the Deputy Principal’s door, not into the office and not the Deputy Principal’s desk. Secondly, a close examination of Exhibits C or D (or court book pages 2602, 2603 or 2604) discloses that there is, from the reception counter, an unimpeded view of the Deputy Principal’s office door, but not into the office in any meaningful way.

7. [352]

   Thirdly, the administrative staff did not operate permanently from the reception counter and there are only some positions on the reception counter that enable a view into any part of the office. There is no view of the office door or office of the Deputy Principal from the duplicating room.

8. [353]

   Nor is there a view into the office in any meaningful way from the stairs to the upper level of the split-level building. I do not consider the capacity of the administrative staff to see the door of the Deputy Principal’s office to be in any way inconsistent with the allegations that have been made.

9. [354]

   Next, I deal with the so-called “open-door” policy or practice. I accept that the circumstance that the door was usually open was a practice and not a policy, in that it was neither published, circulated or taught at the school. I also accept that prior to 1987, the practice of not having students alone with a teacher was taught at Teachers’ College and was aimed at both the protection of students and protection of teachers from accusations that may have no truth.

10. [355]

    Yet, the evidence as summarised in these reasons shows that the open-door practice as implemented at the School would have had no effect on the ability of a person in the Deputy Principal’s office engaging in conduct of the kind subject to the allegations in these proceedings. This is because all of the staff accepted that the door could be closed for good reason and, if the door were closed, it would not be the subject of comment or interference by staff that may notice the closed door.

11. [356]

    Unless the practice was implemented as a policy and policed in a way that ensured no staff member could be alone with a student in an office or room, the door of which was closed, it could not interfere with conduct of the kind alleged. Nor, while staff understood the practice was implemented in the manner described in the evidence, would it act as a disincentive on closing a door while a staff member was alone with a student.

12. [357]

    It is necessary also to deal with the evidence as to the practice of Mr McLean, and, to a lesser extent, other staff including Ms McLean, of lunching in the staffroom. Properly analysed, the evidence is that the Deputy Principal (and sometimes the Principal) would eat lunch in the staffroom. However, the presence of executive officers in the staffroom was limited to about 10 or 15 minutes each and there was significant time during the lunch break when the Deputy Principal, in particular, was not in the lunchroom on any or every given day.

13. [358]

    Again, the practice of Mr McLean often eating in the staffroom is not inconsistent with the occurrence of the conduct in the allegations in the pleadings. I have already commented in these reasons on the very limited view from the east of the Principal’s office door from which one may be able to see into the Deputy Principal’s office, assuming the door were open.

14. [359]

    The allegations are that the door was closed and, on the evidence, if the door were closed, no staff member or student would have thought it untoward or interfered with the circumstance. During the lunch break, when it is said this conduct occurred, the staff were either on playground duty or in the staffroom. From neither position was the door of the Deputy Principal’s office visible and from neither position was the office visible, even if the door were open.

15. [360]

    At that time only one administrative staff member was on duty and unless the person were standing in a very limited part of the reception counter, she or he would not be able to see the door and could not see the Deputy Principal’s desk.

16. [361]

    The administrative staff rostered their lunch break and there were less staff in the reception area or administrative building between 12 noon and 2:00pm. If there were a staff member at the reception counter during those two hours, if the staff member had bothered to observe, and if the door were closed, the closed door would be able to be seen but such a circumstance would not excite any reaction.

17. [362]

    There is a conflict in evidence between the evidence of Ms Burke and Mr McLean. The Court is dealing with one instance of an after-school appointment in which Ms Burke was involved with the Deputy Principal and the door was shut. This occurred almost 40 years ago.

18. [363]

    If such an event were to have occurred, for Mr McLean to have remembered such an event would have been extremely surprising. It is not suggested that there was abuse at or around that appointment. There is no remarkable aspect of the appointment, other than that it was after school.

19. [364]

    Mr McLean maintained that he did not recall the event. This is unsurprising, as already noted. Ms McLean testified that Mr McLean generally returned home with her and their children.

20. [365]

    The difficulty with this evidence is that it is not relevant to any direct issue in the proceedings; it is not particularly significant in the lives of either Mr or Ms McLean (or their children); and it is, as stated, almost 40 years ago. Accepting, as I do, that Mr McLean generally returned home with his wife and children, the notion that one such exception would be remembered when it was otherwise insignificant would be remarkable.

21. [366]

    Nevertheless, because of the circumstances of the meeting and the effect it had on Ms Burke, the after-school meeting was significant to her. I accept her recollection that the meeting occurred.

22. [367]

    Frankly, the acceptance of that evidence makes little or no difference to anything in these proceedings. Unless it is said that the reconciliation of the inconsistency in evidence somehow goes to credit, it cannot be in the least bit relevant to anything the Court is required to decide.

23. [368]

    I prefer Ms Burke because I consider Ms Burke a truthful witness, who candidly expressed views sometimes not favourable to the plaintiff and who was, in terms of her demeanour and the evidence that she gave, both truthful and reliable. And, to her, the occurrence had particular significance.

24. [369]

    Having made that comment, I make it clear that I also considered Ms McLean to be truthful and, generally, reliable. I do not consider that Ms McLean’s failure to recall one instance when her husband did not return home with their children, almost 40 years ago, affects her credit. Nor is it inconsistent with a general practice of Mr McLean not to have after-hours meetings. None of the alleged abuse is said to have occurred after school time.

25. [370]

    Leaving aside the two major actors, the plaintiff and Mr McLean, I do not consider that any witness lied or was any less reliable than one would expect of a person after the passage of time that has occurred. The evidence was generally consistent and there were very few areas in which there was any inconsistency that affected the fundamental issues in the proceedings.

26. [371]

    Obviously, this comment about these witnesses does not apply to either the plaintiff or Mr McLean. The evidence of those two was diametrically opposed. There is, however, one matter arising from the other witnesses that requires comment and impacts upon the inconsistency between the evidence of Mr McLean and the plaintiff.

27. [372]

    Mr Avard testified that, when he was in Ms Ridgway’s class, he had his first encounter with Mr McLean. The encounter was the one described in the summary above in which Mr McLean slammed a ruler (in oral evidence clarified as a wooden ruler) on the desk and screamed into the face of a student. Mr Avard was in Ms Ridgway’s class in 1987. It was Year 2.

28. [373]

    If Mr Avard was in Year 2, the plaintiff would have been in his class. Further, it would have been 1987, as the records show, and Mr McLean would not have yet started at the School.

29. [374]

    Therefore, the evidence must be, at least in part, unreliable. Either the incident did not occur as described or it did not occur in 1987 when Mr Avard was in Year 2.

30. [375]

    If it were to have occurred in Year 3 (or later), it occurred not in Ms Ridgway’s class. I take the view that the incident occurred and was memorable to Mr Avard, who I consider to be a truthful witness. Clearly, the incident was significant to Mr Avard.

31. [376]

    In those circumstances, the incident must have occurred in 1988, which is the most probable circumstance given that the incident was the first time Mr Avard had contact with Mr McLean as Deputy Principal. The timing of the incident as occurring in 1988 reconciles the incident with the time at which Mr McLean commenced at the school and also explains why the plaintiff could not or did not give evidence of the incident.

32. [377]

    Mr McLean started at the School at the beginning of the academic year in 1988 and ceased at the school in 1992. Independent evidence places Mr Avard in Ms Ridgway’s class in 1987. It was Year 2.

33. [378]

    The plaintiff repeated Year 2, as earlier stated. Thus, the plaintiff was in Year 2 in both 1987 and 1988, and was in Year 6 when, in April of that year, 1992, the Deputy Principal ceased employment at the School.

34. [379]

    Mr Avard would have been in Year 7 at the High School in 1992, and the plaintiff would have been in Year 2 when the Deputy Principal commenced at the School. Ms Ridgway was the Assistant Principal for the Infants Department, and the Deputy Principal had little involvement in the day-to-day running of the Infants Department.

35. [380]

    In 1992, Mr Avard would have been in Year 7 and, presumably, would have turned 13 in that year. The incident in the township relating to calling the Deputy Principal “Jaffa” was said by Mr Avard to have occurred when Mr Avard was 14 or 15, which would have been after 1992 and after Mr McLean had left the school.

36. [381]

    It may well be that the incident occurred when Mr Avard was in Year 8 or Year 9. Mr Avard was uncertain as to the date and year in which it occurred and there is no suggestion that Mr McLean left the Forster area after he finished as Deputy Principal of the School. At the same time, it may be that Mr Avard was not 14 or 15, but 13.

37. [382]

    The precise year in which the incident occurred is unimportant. The incident, according to Mr Avard, occurred in the presence of Mr McLean’s children. While Mr McLean denies any reaction and/or denies the incident, the children were not called. Further, the children were students at the school and, no doubt, could testify to a range of matters that were, it seems, subsidiary issues in the proceedings.

38. [383]

    I infer that the evidence that has not been called would not have assisted the State’s case and, therefore, would not have corroborated the version of events given by Mr McLean. [25] The circumstance that the evidence of Mr McLean’s children would not have done assisted the State’s case does not involve the proposition that it would corroborate the version of events given by Mr Avard. They may simply not have recalled the incident.

39. [384]

    Nor does an inference arise that the evidence would have corroborated the evidence upon which the plaintiff relies on the other subsidiary issues. It may simply mean again that, for example, the children have no recollection of the events.

40. [385]

    Notwithstanding the possible neutrality of the evidence that might be called from the children, the evidence of Mr Avard is independent of any fundamental accusation in the proceedings, was an incident significant to him at the time that it occurred and I consider Mr Avard to be a reliable, truthful witness, except his reliability is a little suspect on the question of dates. After 35 years, such unreliability or flexibility on timing is unsurprising.

41. [386]

    I consider that the plaintiff was also uncertain as to the timing of events. Again, this is unsurprising after over 30 years.

42. [387]

    Otherwise, I consider the demeanour of the plaintiff to be unremarkable, in that he admitted a lack of memory of some issues and the timing of some issues, possibly against his interest. He seemed at all times to be seeking to give the most reliable and truthful answer possible and his demeanour gave the impression of a person who was being fundamentally truthful and reliable, except on some aspects of timing.

43. [388]

    The plaintiff was “rougher” in appearance and approach than, say, Mr McLean, but that is also unsurprising. He was also less formal in approach. Neither factors ought to be utilised to determine truthfulness. Both the plaintiff and Mr McLean, like all witnesses, generalised in a manner that at times gave rise to accusations of untruth, but such answers did not evidence a lack of truthfulness.

44. [389]

    Demeanour, in my view, should not be overestimated as a tool in the determination of truthfulness. Demeanour can vary between persons who are, for example, more formal, better educated and the like. Rather, truthfulness and reliability should be based upon independent and objective factors, if there are any.

45. [390]

    In terms of the demeanour of Mr McLean, again, not to be overestimated, he was not shown to be untruthful or unreliable. It must be said that Mr McLean at times avoided evidence that was embarrassing or seemed to hurt his case.

46. [391]

    I do not accept Mr McLean’s evidence in relation to the manner in which children were treated, spoken to or otherwise. I accept the relatively independent evidence of Mr Scott and Mr Avard and, since it corroborates that evidence, in this respect, of the plaintiff.

47. [392]

    Further, Mr McLean deliberately exaggerated the degree to which one could see into his office. He also deliberately exaggerated the “open-door practice” in his first statement and was required to qualify it in his later statement. At the same time, it was suggested that the plaintiff exaggerated the number of assaults occasioned and his version of events differed.

48. [393]

    There is a difference between those two issues. It is notorious that traumatic events are exaggerated in one’s mind and are perceived as having occurred over a longer period of time than may objectively have passed.

49. [394]

    Enjoyable experience will seem to last a shorter period than might have been the case and a traumatic or unpleasant experience may seem to last significantly longer than might otherwise have been the case. Particularly where a person suffers PTSD, incidents of trauma will magnify both as to the timing of the trauma and the number of incidents that have occurred. Thus, when the plaintiff suggests that the number of incidents “felt like they were 20” but, in truth, were a smaller number than the 20 which it felt like is unsurprising and not indicative of a lie or deliberate untruth.

50. [395]

    As already explained in these reasons, there were a number of occasions in which Mr McLean answered inconsistently, seemingly because he was aware that the answer may harm his case or the State’s case, to his discredit.

51. [396]

    There is also a significant inconsistency between, on the one hand, remembering that there was no meeting with the plaintiff’s mother after hours and, on the other hand, having no recollection of the plaintiff. I do not accept that Mr McLean had no recollection of the plaintiff.

52. [397]

    The plaintiff was, by all independent evidence, on detention (or time out) in the administration building on significant occasions. Ms McLean remembers the plaintiff.

53. [398]

    It may be that Ms McLean remembers the plaintiff because she performed playground duty and Mr McLean did not. However, Ms McLean remembered the plaintiff as a troublesome child who had been put on detention or time out on a number of occasions or gave that impression. Ms McLean was in the Infants’ Department yet remembered the plaintiff. Further, the plaintiff was in Mr and Mrs McLean’s child’s year.

54. [399]

    Ms McLean qualified that impression by testifying that, where a teacher had a more disciplined approach to playground duty, students may modify their behaviour accordingly. Nevertheless, the evidence of Mr Avard and others was to corroborate the evidence of the plaintiff that he was on detention much more than other children. In those circumstances, it seems most unlikely that the Deputy Principal would not have any recollection of the plaintiff.

55. [400]

    My overwhelming impression is that the recollection of Mr McLean, in relation to the plaintiff, is a convenient way of distancing himself from any allegation. At the same time, other staff at the school remember the plaintiff.

56. [401]

    It is also unlikely that the plaintiff would not be remembered if he were, as is the independent evidence, a star football player for the school and beyond. I do not accept that Mr McLean has no recollection of the plaintiff, and I take the view that Mr McLean deliberately avoided a number of questions relating to his own conduct and other issues that Mr McLean thought might damage any findings that might be made in relation to his position.

57. [402]

    Of course, these proceedings do not involve Mr McLean as a party, but in many real senses, the State was obtaining its instructions from Mr McLean as to the conduct and it is Mr McLean’s reputation and conduct that is the subject of the litigation.

58. [403]

    Having made the above comments, there is a significant jump between an allegation that Mr McLean lost his temper, became angry and reacted poorly to accepting allegations of sexual misconduct and the conduct alleged in these proceedings. A person may well react angrily to a situation and never contemplate or be inclined towards sexual abuse of the kind that is the subject of these allegations.

59. [404]

    Mr McLean is not the subject of any other allegation from any other student, despite his long and significant history at schools. Mr McLean, otherwise, has an impeccable record and his good conduct is something that is an important aspect in his favour and to his credit.

60. [405]

    Persons against whom allegations of this kind are made will often not previously have been the subject of allegations. Nevertheless, once the allegations are forthcoming, there will often be other instances of this kind of conduct.

61. [406]

    Nothing like this has arisen as a consequence of these allegations. This proceeding has not been the subject of investigation as would occur if they were criminal proceedings. Nevertheless, Mr McLean’s history (or lack thereof) is a factor that is significantly to his credit.

62. [407]

    The Court is required to deal with the fundamental issues between the parties. It is of assistance to separate out a number of subsidiary facts. Leaving aside the timing of any abuse and the identity of the perpetrator, was the plaintiff abused?

63. [408]

    In my assessment, on the evidence I accept the plaintiff was abused. Each of the independent witnesses who were familiar with the conduct of the plaintiff testified to his change in behaviour on a relatively sudden basis.

64. [409]

    Further, the history of the plaintiff, which is before the Court, discloses that there were other less serious traumas that may have affected his conduct, but each of those is dealt with by each of the psychiatrists in a way that corroborates the occurrence of the sexual abuse.

65. [410]

    As earlier stated, the determination of whether sexual abuse occurred is not simply a choice between the evidence of the plaintiff and that of Mr McLean. Other possibilities exist.

66. [411]

    Nevertheless, the Court, having heard the evidence and observed the plaintiff, is satisfied that, on the balance of probabilities, the sexual abuse occurred. It is far more likely to have occurred than that it did not.

67. [412]

    I bear in mind the seriousness of the allegation on this issue. Even though it is denuded of the issue of the identity of the perpetrator, it is an allegation that someone has committed heinous crimes.

68. [413]

    The finding that the sexual abuse occurred does not conclude the evidentiary issues. Sexual abuse may have occurred at a time different to that to which the plaintiff attests or by a person other than Mr McLean. Each are reasonable possibilities, although that is not the relevant test.

69. [414]

    The Court is bound by the case pleaded and the case pleaded is that Mr McLean abused the plaintiff. The determination of the timing and identity of the abuse and abuser is a much more difficult issue than the issue of whether the abuse occurred.

70. [415]

    There are a number of factors in relation to the timing. First, the record of attendance of the plaintiff at school, and his level of non-attendance, does not reflect a timing in accordance with the pleadings.

71. [416]

    It may be that the plaintiff’s timing is unreliable and that the abuse occurred either before or after the plaintiff was in Year 5. If the abuse of the plaintiff were to have occurred when the plaintiff was in Year 6, then for Mr McLean to have been the perpetrator, it would have needed to have occurred in the first term of Year 6, as Mr McLean left the school after this time, assuming, in that analysis, that it was Mr McLean who abused the plaintiff.

72. [417]

    If the abuse were to have occurred in Year 6, the timing of it would still be consistent with the attitude of the plaintiff to his football career and being billeted. On the other hand, if the abuse were to have occurred in either Years 3 or 4, there is no independent reaction in relation to his footballing.

73. [418]

    There is an absence of the plaintiff from school of 21 days during Year 3. However, given the attitude of the plaintiff’s mother to the plaintiff’s absence from school, it is far more likely that the absence was on account of physical illness rather than abuse or an attempt to truant.

74. [419]

    The other aspect, to which no attention has yet been paid, is the allegation by the plaintiff that he punched Mr McLean in the stomach when there was an attempt, once more, to abuse the plaintiff. If the punch occurred, there can be no doubt that Mr McLean would recall it.

75. [420]

    Mr McLean says he did not. However, there is evidence of contemporaneous complaint, inconsistent with recent invention. He told fellow students that he had punched “the Deputy Principal” in the stomach at the time that it occurred or shortly thereafter.

76. [421]

    The determination of the timing of the abuse, which I have found occurred, is a difficult issue, but I am satisfied, on the balance of probabilities, that the abuse, which I have otherwise found to have occurred, was inflicted before the football season in Year 6, which means, on the balance of probabilities, it is more likely to have occurred in the first term of Year 6 than at any other time in the plaintiff’s life.

77. [422]

    I come then to the identity of the abuser. This too is a difficult determination. Once one has arrived at the conclusion and is satisfied that the abuse occurred and occurred during the first term (or before Easter) in Year 6, there are still a number of available possibilities that reasonably arise on the evidence.

78. [423]

    It may have been another teacher or executive staff member. It may have been the football coach. The Court is not concerned with “reasonable possibilities” open on the evidence.

79. [424]

    The Court is required to determine that which, more probably than not, occurred. While the possibilities stated above are theoretically possible, it is necessary to drill down further into the probabilities. On the evidence and accepting in this regard the evidence of the plaintiff, it is more likely than not that the abuse occurred at school and in an office of a member of the School Executive.

80. [425]

    In those circumstances and accepting as proved that the abuser was male, the possibilities are confined to three persons: the Deputy Principal as alleged; the Principal; or one only of the Assistant Principals. The process ought not to be taken as some attempt at Bayesian probability. Such a process would, in my opinion, be impermissible. [26]

81. [426]

    Yet the process of dividing the subsidiary facts comprising the allegation is of assistance. By so doing, I am satisfied that abuse occurred; that it occurred at the School; that it occurred before the commencement of the football season in the plaintiff’s Year 6; and that it was perpetrated by a male member of the School Executive staff. I am also satisfied that the plaintiff punched the perpetrator of the abuse in the stomach to avoid further abuse.

82. [427]

    A number of consequences flow from those determinations. First, the timing accords with the timing of Mr McLean’s career and his decision to depart the school. If Mr McLean were punched in the stomach by a student, as a consequence of attempts at, or occasions of, abuse, it would be unsurprising for Mr McLean to decide to leave the position at the School and, as is the case, to leave the school environment. There is no other Executive staff movement in evidence that occurred at or about this time.

83. [428]

    Further, such a determination is consistent with the timing of the behavioural changes to which almost all the witnesses attest and which occurred in Year 6, just before the plaintiff’s football season and continued into early and later high school. The plaintiff’s mother says his behaviour changed when he turned 12.

84. [429]

    As is earlier stated, the plaintiff was born in March 1980 and turned 12 at the end of March 1992. Mr McLean ceased employment at the school in April 1992, which was Easter (or the end of Term 1) when the plaintiff was in Year 6. The effect of the evidence as a whole is that it is more likely than not that the abuse occurred in the first term of 1992, i.e. before Easter, or at least before the plaintiff’s football season.

85. [430]

    The Court must then determine whether Mr McLean was the perpetrator and, in doing so, to repeat, whether Mr McLean was more likely than not the perpetrator. In that regard, the Court has the evidence of each of the plaintiff and Mr McLean to diametrically opposite effects. Moreover, the Court, on the one hand, has the seriousness of the alleged conduct and the otherwise impeccable record of Mr McLean and, on the other hand, the testimony of the plaintiff and some corroboration of some of the subsidiary or ancillary events.

86. [431]

    The finding of the Court that the plaintiff is being truthful does not of itself answer the question. It is a phenomenon of human memory that people confuse events and identities.

87. [432]

    We know that Mr McLean was perceived by students as somewhat of an ogre who was aggressive and possessed a short temper. In those circumstances, it is reasonably possible that the plaintiff may have, over the years and through his trauma, sheeted home to Mr McLean that which was perpetrated by another. The coincidence of the timing of Mr McLean’s departure from the School and the timing of the abuse is insufficient to satisfy the burden of proof, even on the lower standard.

88. [433]

    Such a possibility is consistent with the Court’s determination of the truthfulness of the plaintiff. If the Court were permitted to choose the more likely perpetrator, it would be Mr McLean. But the test is not which of the three (and a possible fourth) is more likely the perpetrator. It is, on the case presented by the plaintiff, whether Mr McLean is more likely to have been the perpetrator than any one and all the others, or whether Mr McLean was more likely to have perpetrated the abuse than that he did not.

89. [434]

    The fourth possibility to which earlier reference was made is that the football season commenced in the second term of Year 6 and there was already a different Deputy Principal, but that possibility does not alter the comments already made.

90. [435]

    It is necessary to expand on the foregoing by dealing with some criticisms by the State in its submissions. I accept that there is no corroborating oral testimony to the sexual abuse allegations, as submitted by the State. However, despite the evidence of Mr McLean, there is corroborating evidence that the plaintiff was placed on detention often and more than other students.

91. [436]

    Further, there is from each of the psychiatrists, corroborating evidence of the PTSD suffered by the plaintiff and the expression of opinion that none of the other traumas in the plaintiff’s history would have been a substantial factor in such PTSD.

92. [437]

    Further, as stated, there is corroboration by independent witnesses as to the change in behaviour that occurred in the plaintiff in the late part of primary school and early high school years. Each of those factors is consistent with the allegations of the plaintiff that he was abused and the timing determined by the Court.

93. [438]

    Those alterations in behaviour and evidence, independent of the plaintiff, to that effect, are inconsistent with the proposition that abuse did not occur. Further, it is clear that the abuse occurred at the School and the risk would have been significantly ameliorated by simple steps to be outlined below.

94. [439]

    Against this is the fact that Mr McLean testified that the abuse did not occur but that can only be confined to his conduct. There is no independent evidence as to the occasioning of the abuse. The non-existence of independent evidence of the abuse is not unusual. This type of conduct rarely occurs in public or with other persons to witness it.

95. [440]

    The submission of the State that Mr McLean is a “credible and respectful” witness refers, it seems, to his appearance and style of language. Such aspects of demeanour are not a particularly useful guide to reliability or truthfulness.

96. [441]

    Nevertheless, as already stated, great weight must be placed, and has been placed, on the otherwise good conduct of Mr McLean and his years of service in the Education Department without any other allegation of this kind being levelled at him. That his record is clear is evidenced by documents, but there is no suggestion that Mr McLean is otherwise a subject of complaint of this kind.

97. [442]

    The submission that the administration building was “busy” is a submission based upon its relative quietude when classes are being conducted. Notwithstanding such relative busyness, the evidence establishes that if Mr McLean’s door was closed, no one would consider it untoward and no one would interrupt that which was occurring in the office.

98. [443]

    In that respect, the staff during the lunch break were either in the staffroom or on playground duty (or in the case of administrative staff, one in the reception area). The state of activity of the administration building is irrelevant if Mr McLean was able to close his door and be confident that no one would interrupt him. Similarly, the reference to Mr McLean eating his lunch in the staffroom is, on an analysis of the whole of the evidence, a reference to a period of 10 to 15 minutes.

99. [444]

    The last-mentioned comment also deals with the so-called “open-door policy”, which was not a policy but a practice. As the State submits, the practice was “generally adhered to”, which necessarily involves the proposition that it was not a universal practice and that there were exceptions. The evidence discloses that when the open-door policy was not the subject of adherence, no one would consider it untoward, and no one would interfere with the closed door or even ask questions about the Deputy Principal after the event.

100. [445]

     As already stated, the circumstance that the school did not generally keep students back and did not generally call parents in for after school meetings does not give rise to an inconsistency with the evidence of Ms Burke as to the practice adopted in relation to her meeting with the Deputy Principal. This was a particular occasion recalled by Ms Burke because it was after hours and I accept her clear recollection of the event.

101. [446]

     Against that recollection, there is no direct evidence. There is evidence of a “system” which generally applied, but that does not contradict the circumstance to which Ms Burke testified. I accept that the event does no more than suggest the general practice of not closing doors was not universally applied. There is no allegation of any sexual abuse occurring after school.

102. [447]

     The criticism by the State of Mr Avard’s evidence that the doors of the executive offices were not always open is unwarranted. Such testimony is consistent with the evidence of every other witness who had knowledge.

103. [448]

     While most of the State witnesses testified to the fact that generally there was an open-door practice, none of them denied that the practice was at times not followed. In other words, there is no controversy that the doors of the executive offices were sometimes closed, and the criticism is, as stated, unwarranted.

104. [449]

     Moreover, to the extent that it is said Mr Avard is someone who should not be believed because he did not like Mr McLean, the dislike of Mr McLean did not seem to be a matter that affected Mr Avard’s evidence. Mr Avard, as earlier stated, was unreliable on timing in terms of the years in which certain events may have occurred but otherwise showed himself to be a truthful and reliable witness.

105. [450]

     The State criticised the credit of Mr Avard on the basis that he testified in his statement that Mr McLean was the only teacher or principal he had “ever disliked”, when, in oral evidence, he admitted that he had disliked other teachers. The criticism is, as I perceive the evidence, misplaced. When first asked about the issue, Mr Avard, without pressing and by way of clarification, said:

106. [451]

     Mr Avard was then asked:

107. [452]

     After this alleged inconsistency was put to the witness, Mr Avard said:

108. [453]

     In my view, the witness explained his statement and did so without in any way suggesting that, when initially made, it was intended to exaggerate the situation. If the witness were intending to be dissembling or untruthful, he could easily have said that he never disliked another teacher or principal, in which case the matter would have rested there.

109. [454]

     Rather, in my view, the statement by the witness is not inconsistent and is certainly not untruthful in the way in which the witness perceived it and the manner in which he has explained it. Admittedly, I base such assessment as much on the manner in which this evidence was given as well as its content. It is not totally irrelevant that both Mr Avard and Mr Scott are teachers.

110. [455]

     As to the evidence of Ms McLean that the executive office doors “were never closed”, [30] which is relied upon by the State, the reliance is also misplaced. As the evidence of Ms Mclean there discloses, “there would be times that the door would be shut; and that would not surprise me”. [31]

111. [456]

     As earlier stated, there seems to be little controversy. Executive office doors were usually open but were sometimes closed. The evidence is uncontroversial to that effect and also uncontroversial to the effect that if the doors were closed, no one would think it untoward and no one would interfere with the practice.

112. [457]

     The earlier comments have already dealt with the ability of staff to see into the office of the Deputy Principal, as distinct from seeing his door, and the very small area from which there was an opportunity of seeing the desk of the Deputy Principal.

113. [458]

     Similarly, the circumstance that there was an external window onto the walkway next to the carpark from the Deputy Principal’s office does not take the matter any further. The evidence is that the window had a blind which was shut during the alleged conduct and there is no evidence to the effect that the blinds on the window were never shut.

114. [459]

     One of the difficulties in dealing with proceedings involving allegations that are over 30 years old is that human memory is fallible. I have taken that circumstance into consideration. Further, human memory deals in perceptions and impressions after so many years. This is why the unreliability of dates is less important than the occurrence of significant events.

115. [460]

     The recollection of the plaintiff that Ms Nixon would send the plaintiff to the Deputy Principal for minor purposes and on a regular basis is, given my findings as to timing, probably irrelevant. Nevertheless, the plaintiff’s evidence would be evidence of that which he perceived was the situation when his teacher was Ms Nixon.

116. [461]

     Ultimately, it may have only been on two occasions that he was sent for time out to the Deputy Principal’s office during the time he was in Ms Nixon’s class. Given that the evidence of the plaintiff is that there were “only five occasions on which abuse occurred, perhaps six”, two occasions on which he was sent for detention or time out become extremely significant.

117. [462]

     I pay little or no regard to the occasions on which the abuse occurred as an absolute number, other than it occurred on a more than a handful of occasions and there were other occasions, perhaps as numerous or more numerous, when the plaintiff was called or sent into the Deputy Principal’s office on which occasions abuse did not occur.

118. [463]

     If the plaintiff thought of Mr McLean in the same way that Mr Avard thinks of him, namely as a “horrible person”, it may well be that the abuse that occurred has been sheeted home to the “horrible person” in the plaintiff’s life and not to the real perpetrator. These are issues with which the Court is required to deal and has dealt in assessing whether it is satisfied that it is more probable than not that Mr McLean abused the plaintiff.

119. [464]

     The same can be said for the assessment of the number of times that Mr McLean placed the plaintiff on detention. Each of the plaintiff, Mr Avard and, to a lesser extent, Mr Scott, testified to the plaintiff being placed on detention for minor issues. But, at its highest, the evidence discloses 20 occasions on which the plaintiff was on detention in Mr McLean’s office over a period of three-and-a-quarter years, and the figure of 20 is a perception.

120. [465]

     If a primary school student were placed on time out or detention four or five times in a term, that would seem, as a matter of common sense, to be “regularly placed on detention”. The State complains that the contention that the plaintiff was regularly on detention was not put to the other departmental witnesses.

121. [466]

     However, the other departmental witnesses would not know, and, at the same time, the other departmental witnesses did not give evidence that the plaintiff was not put on detention on a regular basis.

122. [467]

     The evidence of the plaintiff and Mr Avard was provided by statement. There is no issue of the State not having the opportunity to adduce evidence or to explain evidence put against it. If the evidence were to have existed, the State was in a position to be able to adduce it.

123. [468]

     Similarly, the circumstance that other people would, from time to time, enter Mr McLean’s office is a neutral circumstance. There is no suggestion that such persons would enter his office when the door was closed.

124. [469]

     The other material criticised by the State is insignificant in the findings of fact. It is necessary to deal with the tendency evidence in more detail than has previously been discussed.

125. [470]

     The Court admitted the tendency evidence. But the tendency evidence proves that the Mr McLean acted aggressively, angrily, to raise his voice excessively, to act in a way that intimidated students and to become red in his face from anger. Such evidence includes the evidence of grabbing a student by the shirt, smacking the desk with a wooden ruler, and yelling. However, even though each of those tendencies is proved by the evidence admitted, in my view it does not prove that Mr McLean committed the acts of assault by engaging in sexual abuse.

126. [471]

     While it is impermissible, given the lack of notice, to take into account any tendency evidence to the contrary, the absence of any alleged conduct in relation to any other person, including any other child, might, to the contrary, suggest a tendency not to engage in the conduct that has been alleged. Notwithstanding the absence of notice and the inability to take into account such a factor, the good character of Mr McLean, otherwise in evidence before the Court, is a factor in the determination of the fundamental issues involved in these proceedings.

127. [472]

     I do not accept the submission of the State that it is essential that a teacher or executive staff member have a prior history associated with abuse of children in order for the State (or more practically, the Department) to be aware of the risk and to take measures to ameliorate or obviate the risk. I have already discussed the awareness of the Department to the risk and the risk does not depend upon allegations of prior conduct with other students.

128. [473]

     As has been submitted and as is clear from the evidence before the Court, some steps were taken by the Department and, necessarily, the State to seek to deal with the risk. First, the risk was discussed at Teachers’ College in the training of teaching staff. Secondly, there was a legislative requirement (if that be a step by the School) which required mandatory reporting as a result of the legislation and there was a program for child protection in place across public schools.

129. [474]

     Further steps were taken. There was a student welfare policy in place and, while not policed, there was the open-door practice.

130. [475]

     The State relies upon child protection training to which Ms Purbrick attested. Mention has already been made of the training at Teachers’ College. However, the evidence of Ms Purbrick was unhelpful to the State in these proceedings.

131. [476]

     Ms Purbrick made it clear that she received no education as to behaviours that might be relevant to ascertaining victims or perpetrators, but she received some training on the mandatory reporting and the like when she commenced employment at the high school. That was some time after she was employed at the School and after the period relevant to these proceedings.

132. [477]

     The circumstance that there was an open-door practice is a factor upon which the State relies to show that it took reasonable measures to alleviate, ameliorate or obviate the risk that was apparent and known to the State. However, once the practice is applied “in general” and not universally or not policed, the practice does not ameliorate the risk to which it is directed (assuming for present purposes it is directed at that risk).

133. [478]

     Once it is known by staff, or relevant staff, that a closed door will not excite questions or interference, the so-called “open-door practice” is of no effect on ameliorating the risk or seeking to deal with it in any meaningful way. The reliance by the State on the open-door practice is misplaced in this respect and points significantly to the awareness of the risk and the failure to deal with it in a manner that overcomes the risk. Further, it points to the circumstance that a very simple, cost-free step or steps were available to the State to deal with the risk. Further, students and parents should have been informed of a policy that prohibited one-on-one meetings between staff and a student, as suggested was the situation later than the currently relevant period, and a procedure for reporting abuse and/or inappropriate conduct implemented and published.

134. [479]

     Having found a breach of the duty of care, it is unnecessary to deal with the claim in vicarious liability. The evidence has been summarised and conclusions of fact recited. If it is ultimately necessary to deal with vicarious liability, sufficient findings have been made to allow that to occur.

135. [480]

     There are some issues which have not been determined. Given the Court’s findings on the timing of the abuse, whether Ms Nixon sent the plaintiff to the Deputy Principal is not a relevant aspect of the findings.

136. [481]

     Nevertheless, if the Court, as presently constituted, is wrong about the finding in relation to timing, it should be pointed out that the perception of the plaintiff that he was sent on numerous occasions to the Deputy Principal, to the extent that he considered he may have been “set up”, is part of the difference in perception between forced conduct that is problematic and which is associated with trauma and unpleasantness. If, as the evidence has suggested, the abuse was as seldom as six times, then if Ms Nixon sent the plaintiff to the Deputy Principal on two occasions, those occasions would have been significant in the scheme of the abuse.

137. [482]

     The detention was, despite some misunderstanding during the course of questioning, a situation where, before lunch, the plaintiff was sent to the Deputy Principal when lunch occurred. There were three sets of seating that are relevant: one had a child facing north and was outside the administration building with the back abutting the staffroom; another was in the foyer, opposite the entrance and almost opposite the Principal’s office; and the third was outside the staffroom with the back of the seating abutting the staff toilets which required the child to face east on the upper level of the administration building. It seems from the evidence that the “detention” of the plaintiff was served in the last-mentioned seating or the first-mentioned seating, rather than the seating in the foyer.

138. [483]

     I make it clear that I draw no distinction between “detention” and “time out”. While much attention was paid during questioning to the distinction, from the perspective of a student and, to a lesser extent, from the perspective of a teacher, the difference was semantic. In only one respect was it significant, a formal detention was noted on the record of the student. That which the plaintiff describes as detention, and that which Mr Avard and Mr Scott describe in that way, were, it seems, a period of time-out.

139. [484]

     It is clear from the evidence of Ms McLean that the plaintiff was a “problem” child who was the subject of punishment and, in particular, time out. Ms McLean remembers the plaintiff in that respect and her memory of the plaintiff, despite the circumstance that she taught in the Infants Department, makes even more unbelievable the failure of Mr McLean to remember him. The plaintiff was in the same class as their child.

140. [485]

     As to causation, upon which the State makes submissions, the psychiatric evidence establishes the damage caused by the sexual abuse. There is no reason to doubt the accuracy of the reports of each of the psychiatrists in that respect.

Liability

1. [486]

   Despite these findings the Court needs still to determine the issues of liability and, to the extent that liability is determined against the State, and even if it were not, to assess damages. The State owes a non-delegable duty of care to take reasonable precautions to prevent a foreseeable and not insignificant risk of harm. [32] The State admits such but denies that it has breached the duty imposed. The Court of Appeal has recently summarised the duty of care and said:

2. [487]

   In Introvigne, [34] the High Court said:

3. [488]

   As described by the High Court in Introvigne, the duty is one similar to that owed by a hospital to a patient and goes beyond “mere vicarious liability for the acts and omissions of its servants”. [36]

4. [489]

   There are two major reasons why the State denies liability. First, it denies that the abuse occurred. The Court has already dealt with that issue. Secondly, the State submits that, because the duty of care was limited to avoiding a reasonably foreseeable and not insignificant risk of harm, it is not liable because the risk was not foreseeable.

5. [490]

   It is impermissible and unnecessary for the Court to utilise hindsight on the foreseeability of a risk of injury arising from sexual abuse by staff. The evidence before the Court is that the State had already foreseen such risk.

6. [491]

   The risk was the subject of discussion and instruction at the Teachers’ College, according to the evidence before the Court, before these incidents occurred. Further, on the evidence before the Court, the staff at the School foresaw possible injury arising from inappropriate conduct inflicted on a student.

7. [492]

   Such conduct could be any kind of physical harm. It might include the infliction of corporal punishment, which, by that time, had been prohibited; and, in accordance with that which was foreseen and taught at the Teachers’ College, could have included sexual abuse.

8. [493]

   The risk of harm was foreseeable and required reasonable steps to overcome it.

9. [494]

   There are a number of steps that could have been taken, each of which would have been reasonable, to obviate the risk of such foreseeable harm. First, the “open-door practice” could have been strictly enforced, with no closed-door meetings occurring. Secondly, as was mentioned in the course of the proceedings, the State (or its agent) could have enforced strictly a policy and/or practice in which no student was alone with a staff member.

10. [495]

    Obviously, in classes, there were a significant number of students present. Where a meeting occurred, on the evidence before the Court, there was, on occasion, a situation where staff members required another staff member to be present.

11. [496]

    However, on the evidence before the Court, such rule was not strictly enforced. Nor did the State inform either students or parents that no staff member was entitled to meet with a student in a closed environment without another staff member or other students being present. Further, publication to parents and students of such a policy, together with procedures for reporting breaches, were reasonable steps not taken by the School which would have ameliorated, if not eliminated, the risk and, at least, from a potential perpetrator’s perspective, served as a deterrent to offending.

12. [497]

    Any one of those reasonable measures, being measures some of which were, from time to time, implemented but not universally enforced, could have been undertaken and the subject of policy direction by the State. Each such measure would have been a reasonable precaution for the risk foreseen by the State and more likely than not prevented the injuries suffered by the plaintiff.

13. [498]

    Moreover, the risk is considerable in that, if it were to manifest, as I have found it did, the damage is extremely significant. Thus, even in the absence of a tendency by a particular teacher, where there are reasonable steps available to avoid the risk by any teacher, those steps should have been undertaken.

Damages

1. [499]

   I turn then to the question of damages. Because of the essential agreement between the experts, I do not need to summarise the opinions expressed by each of the psychiatrists.

2. [500]

   Each of them considers that the sexual abuse is the cause of the plaintiff’s PTSD and that the other traumatic events (if they be traumatic) suffered by the plaintiff were not a substantial cause or a contributing cause to the chronic PTSD suffered by the plaintiff.

3. [501]

   If there were any other event that may have caused PTSD, it was the potential and actual separation of his parents. Yet, despite the potential separation and his absence from school in Year 3, each of the psychiatrists consider that the plaintiff did not suffer from any pre-existing psychiatric condition, i.e. prior to the abuse, and that it is most unlikely that the plaintiff would have suffered PTSD or substance use disorder had the abuse not occurred.

4. [502]

   In those circumstances, it is unnecessary to seek to disentangle different causes. There is, in the findings I have made, no basis for a discount for contingencies that is substantially more than would otherwise be applied.

5. [503]

   Whatever be the view that a reasonable person would take of the kind of abuse inflicted on the plaintiff, such abhorrence is not the measure of damage. It is not the gravity or frequency or severity of the sexual assaults that is measured. That which is measured is the effect on the plaintiff. [37]

6. [504]

   Thus, the Court assesses the damage to and hurt felt by the plaintiff, the psychiatric effect on the plaintiff and the impact on the plaintiff’s life, including, when dealing with loss of income, the effect on the plaintiff’s income.

7. [505]

   Not unusually in the case of sexual abuse, the PTSD suffered by the plaintiff is chronic; it will subsist for the life of the plaintiff and has existed and affected the plaintiff over the past 30 odd years. It has caused, on the expert evidence, his substance abuse, anti-social activities and consequential incarceration. On the evidence, it has also affected his personal life, including his relationship with his wife, as she then was, and his children.

8. [506]

   Assessing damage in accordance with the provisions of the Civil Liability Act 2002 (NSW) requires the Court to assess general (or non-economic) damages in accordance with section 16. This requires the Court to be satisfied that the severity of the non-economic loss is at least 15 percent of the most extreme case and, if 15 percent loss or more, but not a loss of the most extreme case, in accordance with a percentage of non-economic loss prescribed by the legislature.

9. [507]

   The damage suffered by the plaintiff is severe and more than 15 percent of the most extreme case, but it is not the most extreme case, notwithstanding that the injury will last for the rest of the plaintiff’s life and the severity of the psychiatric conditions under which he will suffer for that time. The maximum amount of general damages, which, as stated, may be awarded only in the “most extreme case”, is prescribed to be $693,500.

10. [508]

    I have had regard to the comparable awards and, assuming for present purposes the State is liable, would have awarded $375,000 for general damages. The $375,000 comprises $250,000 for past damages and $125,000 for future damage. In my view, the future damage will be lessened because, I assume, the plaintiff, having now aired his history and having been made aware of his conditions, will seek and obtain treatment.

11. [509]

    Because I am basing the cause of action on negligence and not on vicarious liability, no interest will be awarded on the general damages. If interest were payable on the general damages, because of liability arising as a result of vicarious liability, I would, pursuant to s 100 of the Civil Procedure Act 2005 (NSW), award interest prior to judgment by applying half of the average rate of interest over the significant period since the abuse occurred to the past component of general damages. That rate would be 2.5 percent.

12. [510]

    Turning to economic loss, I accept the evidence of the plaintiff that he was capable of earning approximately $2,800 per week. The damages would require the awarding of a significant buffer, because the precise calculation of damage would be impossible. Account must also be taken of the cyclical and itinerant nature of construction work. From such a calculation, the Court must subtract actual earnings in the past and the estimate of future earnings, regardless of the damage.

13. [511]

    It must be remembered that the assessment of economic loss is an assessment of the loss of earning capacity, not the loss of earnings, and absolute precision is therefore not required. For those reasons, I would accept the calculation of past economic loss and future economic loss submitted by the plaintiff and, as a consequence, the interest on past economic loss and the awarding of past superannuation calculated by the plaintiff.

14. [512]

    I would not award exemplary damages. I do not consider the conduct of the State to warrant punishment, and I include the conduct of the proceedings in that assessment. Again, I have not considered vicarious liability in this respect.

Conclusion

1. [513]

   I have determined that the plaintiff was abused. It is most likely that the abuse occurred at the School, but I consider that the evidence does not satisfy the Court that it is more probable than not that it occurred when the plaintiff was in Year 5. Rather, it seems more likely than not that the abuse occurred in the first term of Year 6. It certainly occurred between the end of the football season in the plaintiff’s Year 5 and the beginning of the football season in Year 6.

2. [514]

   If I were required to choose between the abuse having been perpetrated by Mr McLean and any other individual, I would, on the evidence before me, consider that Mr McLean is the more likely perpetrator. However, I cannot be satisfied, even on the balance of probabilities, that Mr McLean perpetrated the abuse.

3. [515]

   As already stated, the exercise that the Court is undertaking is not an exercise in Bayesian probability. While I have divided the decision making in a way that may resemble such a stepped binary approach, I have done so because it is, in my view, the best way of dealing with the difficult issue of whether the satisfaction is one that is more probable than not.

4. [516]

   Even if one were to utilise a Bayesian approach, the result would be the same. The certainty of the subsidiary facts after the Court is satisfied on the balance of probabilities results in the probability of Mr McLean being the perpetrator as 1 – P(X), where P(X) is the probability of any one of the other persons being the perpetrator. In the absence of an evaluative process (which is one of the reasons Bayesian Probability is impermissible), the combined probability of the other two Executive staff members being a perpetrator would be 0.67 and the probability of Mr McLean being the perpetrator is less than 0.5. [38]

5. [517]

   One of the reasons the above arithmetic analysis is impermissible is that it involves no evaluation of the real probability other than its arithmetic value. Notwithstanding the approach of Murphy J, [39] an evaluation is required, and simple arithmetic probability will not suffice.

6. [518]

   In evaluative terms, based on the evidence before the Court, the probability of the perpetrator being Mr McLean is greater than each other possibility on its own but I am not satisfied that it is greater than 0.5, in that I cannot be satisfied that it is more probable than not, or more probable than all the other possibilities together.

7. [519]

   In other words, I consider that the plaintiff has been abused, and I am satisfied that the abuse occurred on the basis that I am satisfied more probably than not that it occurred. I am not dealing with a criminal proceeding.

8. [520]

   If I were required to choose between whether to believe the plaintiff or Mr McLean as to whether Mr McLean perpetrated the abuse, I would be satisfied that the plaintiff’s version is more probable. The difficulty is that there are other possibilities.

9. [521]

   If the plaintiff were abused after the first term of Year 6, it would not have been Mr McLean. While there is no evidence suggesting another perpetrator, I have regard to the care that one must take in being satisfied that a person who is otherwise without blemish committed such heinous assaults.

10. [522]

    It may be that, because of the dislike of Mr McLean by the plaintiff and others, time has blurred the identity of the perpetrator in the mind of the plaintiff. If one were guessing as to possibilities, it could have been the football coach. However, I have determined that the abuse occurred at the School by an Executive staff member.

11. [523]

    The existence of other possibilities has influenced my determination that, despite my view that the plaintiff’s version is more believable than Mr McLean’s version, I cannot be satisfied that the plaintiff’s version in terms of the identity of the perpetrator occurred more probably than not. While I accept the punching incident, the corroborative evidence refers to “the Deputy Principal”, which may not at the time have been Mr McLean.

12. [524]

    I am also mindful that, given my conclusion as to timing, the State has been denied the ability to adduce evidence from the plaintiff’s Year 6 teacher or any other teacher other than the Year 5 teacher who gave evidence. Nor has the State been required to adduce evidence from any other Deputy Principal or Executive staff member, one of whom at least is deceased.

13. [525]

    I have not been required to determine whether the abuse occurred at school through a perpetrator other than and including Mr McLean. If I were required so to do, the result would have been very different. In this sense, the outcome results in an unfairness.

14. [526]

    I have concluded that the plaintiff was abused at the School by a senior member of staff during the plaintiff’s Year 6. Such a finding would involve questions of the same kind relating to the State’s liability. The Court can only deal with the issues pleaded and I have already remarked that the pleaded case confined the State to issues in Year 5 and to Mr McLean as perpetrator.

15. [527]

    There is a very strong case for liability on my findings, although such findings, as stated, do not account for evidence that may have otherwise been adduced by the State. Nevertheless, there is a strong case for some compensation from the defendant for the plaintiff arising from the abuse and the findings of liability. However, such an issue does not arise for determination by the Court in these proceedings.

16. [528]

    For these reasons, the Court makes the following orders:

    1. (1)

       Judgment for the defendant.

    2. (2)

       The plaintiff shall pay the defendant’s costs of and incidental to the proceedings.

    3. (3)

       Any party may make application for a special order as to costs within 7 days of the publication of this judgment. Such application may be made by email to the Associate to Justice Rothman and the application may be no more than 5 pages, excluding any document, not otherwise in evidence, on which the application relies. Any party affected by any proposed special order may reply within 14 days of the application under the same conditions.

    4. (4)

       Otherwise, the proceedings are dismissed.