The NSW Court of Appeal has overturned the decision of a lower court and, in the process, provided some much needed guidance on common evidentiary issues presenting in abuse claims.
- Whether disclosures of abuse by two children not party to the proceedings should have been admitted.
- Whether alleged 'admissions' made by the alleged perpetrator should have been admitted as tendency evidence and were admissible against the director of the childcare centre.
- Whether the primary judge erred in concluding that the disclosures of the plaintiffs were established.
- Whether the licensee of the childcare centre, and its director, were liable in negligence and/or vicariously liable for the alleged abuse.
- Whether the primary judge erred in assessing damages for the alleged abuse.
Little Pigeon Pty Ltd (Little Pigeon) was the licensee of a childcare centre attended by plaintiffs B and D between 2008 and 2010. Ms CL (pseudonym) was the sole director of Little Pigeon. The alleged perpetrator was CL’s brother, and undertook an extensive amount of unpaid work at the childcare centre.
B and D claimed that they were sexually abused by the alleged perpetrator while at the childcare centre. They said that Little Pigeon and Ms CL were both directly (in negligence) and vicariously liable for the abuse.
A and C (B and D’s mothers respectively) also claimed that Little Pigeon and Ms CL were liable in negligence and for breach of contract in respect to the alleged abuse which caused them mental harm.
In support of their case the plaintiffs relied on disclosures of abuse by two other children against the perpetrator (Child 1 and Child 2); and apparent admissions made by the alleged perpetrator to the Police.
The decision at trial
The primary judge found in the plaintiffs’ favour in respect to all causes of action, and damages were awarded totalling $2,427,253. You can view our case note on the first instance decision here.
The decision on appeal
The appeal turned principally on evidentiary findings made at trial. The Court of Appeal held as follows:
- The disclosure of abuse made by Child 1 to her mother and the Police was hearsay. While an exception to the hearsay rule would apply if the plaintiffs could show that Child 1 was 'unavailable' to give evidence, the plaintiffs had not taken all reasonable steps to secure Child 1’s attendance at trial. Therefore the exception to the hearsay rule did not apply, and Child 1’s disclosures were inadmissible.
- The primary judge was wrong to conclude that Child 2’s disclosures had been proved. As Child 2’s evidence suffered from inconsistencies, and she could not be cross-examined, the disclosures could not be proved to the Briginshaw (i.e. a more onerous) standard of proof.
- While stating in a police interview that he had 'massaged' B and 'scrunched her butt', the Court of Appeal was not satisfied that the alleged perpetrator’s statements supported a tendency that he had inappropriate sexual dealing with children in his care. Moreover, the statements were not admissible against Ms CL as she did not authorise them; and did not know of the charges against the alleged perpetrator when the statements were made.
- The disclosures made by B were 'brittle', inconsistent and 'insufficiently reliable' to satisfy the Briginshaw standard.
- Little Pigeon and Ms CL should not have been found liable in negligence to the plaintiffs, having regard to Little Pigeon’s supervision policies and procedures and the lack of any complaints against the alleged perpetrator. Ms CL also could not have been found vicariously liable for the alleged abuse, as there was already a well-established basis for vicarious liability between the alleged perpetrator and Little Pigeon.
- The primary judge’s award of $111,000 and $100,000 'buffers' (for C and D respectively) for future economic loss was erroneous, as no proper rationale was given for these amounts. The award of $260,000 for D’s non-economic loss was also erroneous, as it was inconsistent with D’s normative trajectory and disposition following the alleged abuse.
Implications for you
The Court of Appeal’s decision highlights the importance of establishing a strong evidential foundation before pursuing an abuse claim. Common evidentiary features of abuse claims, including tendency and hearsay, are likely to attract greater scrutiny by courts moving forward.
The decision also highlights the importance of properly rationalising awards of damages, particularly for heads of loss which are not capable of scientific calculation, such as economic loss “buffers” and non-economic loss/ general damages.
Updated 11 November 2022: On 10 November 2022, the High Court refused applications for an extension of time for special leave to appeal on the basis that the applications did not raise a question which had sufficient prospects of success such as to warrant the grant of special leave. It was therefore futile to grant an extension of time, and the applications were dismissed.