The burden of proof: unpacking evidentiary standards in historical matters

date

09 July 2024

The background

The plaintiff alleged that in 1999, whilst she was in Grade 3 at a private school, she was subjected to an incident of sexual assault during the school day by the groundsman of the school (CD). The alleged assault occurred whilst the plaintiff had left her classroom during class time to use the bathroom. There were no witnesses to the alleged assault.

In issue

The parties reached agreement during the trial with respect to causation and quantum. Therefore, only five liability issues were in dispute:

Whether the alleged assault occurred as alleged or at all;
Whether the defendant is at law vicariously liable for the conduct of CD, whose primary role was a groundsman;
Whether CD was acting in the course of his employment and whether as a matter of law the defendant is liable;
The nature and extent of any duty of care owed by the defendant to the plaintiff; and
Whether the defendant had breached any duty of care.

The decision at trial

Given the nature of the pleaded assault, the plaintiff bore the persuasive onus of proving its occurrence to the higher evidentiary standard of proof espoused in Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw standard), and more recently in M v M (1988) 166 CLR 69.

In her oral evidence, the plaintiff described the circumstances of her alleged assault in great detail. The plaintiff recalled returning to her classroom shortly after the alleged assault, and masking the physical, mental and emotional affects throughout the remainder of the day.

Further the plaintiff’s father, mother, sister and brother gave evidence with respect to the plaintiff’s change of behaviour subsequent to the alleged assault. The plaintiff’s mother also gave evidence with respect to the plaintiff’s disclosure of the alleged assault in 2017.

The defendant contended that the plaintiff’s alleged assault did not occur, on the basis that inter alia:

CD denied the occurrence of the alleged assault, and had an impeccable reputation with no alleged wrongdoing having ever been made against him;
On CD’s evidence he rarely entered the students’ toilets and, when he did, he would arrange for another staff member to first investigate the toilets to ensure that they were empty prior to his entry and have the staff member stand outside until his departure;
There were general inconsistencies in the plaintiff’s evidence;
Despite treatment by a trusted long-term general practitioner and three psychologists from 2013 to 2017, the plaintiff did not completely disclose her abuse until some 20 years later (although there was evidence of a partial disclosure about 18 years after the alleged assault); and
It was unlikely that the plaintiff would have been able to mask the physical, mental and emotional affects of the alleged assault (which she described as a 'horrible' event) from her teacher (during school hours) and her mother (after school).

Whilst the court did not rule that the plaintiff was dishonest, it was not satisfied that the plaintiff had established the occurrence of her alleged assault to the Briginshaw standard. The court’s finding was based on its acceptance of CD’s evidence denying the alleged assault, against the backdrop of the plaintiff’s own evidence that she had lied and exaggerated statements over time, general inconsistencies in the plaintiff’s account of the alleged assault and other factors making the occurrence of the alleged assault more improbable and unlikely.

Despite the court’s conclusion that the plaintiff must fail in her claim by reason of her failure to establish the occurrence of the alleged assault, the trial judge determined the remaining issues in dispute in case the decision was overturned on appeal.

The court ruled that the defendant could be vicariously liable for the alleged assault if the plaintiff was able to establish that CD was acting in the course of his employment, and placed in a position of 'authority, power and trust … such that he was able to achieve a substantial degree of intimacy' with the plaintiff, in keeping with the principles laid down in Prince Alfred College Inc v ADC (2016) 258 CLR 134. The court ruled, however, that:

CD’s employment, as a groundsman at the school, did not place him in a position of intimacy with respect to students; and
Whilst the scope of CD’s employment might have given rise to CD having some interactions with students, this was not at the level akin to a boarding master, class teacher, teachers’ aide, principal, sub-principal, sports teacher or counsellor where vicarious liability is more likely to attach to a defendant.

In those premises, the court ruled that the defendant would not be found vicariously liable for the alleged assault (if it were to be later established that the alleged assault had occurred).

The defendant accepted that it owed a duty of care to the plaintiff, being a non-delegable obligation to exercise reasonable care for the safety of the plaintiff as a student, in respect of the foreseeable risk of her suffering psychiatric injury from assault at the school. The court ruled, however, that the defendant would not be negligent for breach of its duty of care (if it were to be later established that the alleged assault had occurred), on the basis that:

The policies adopted by the defendant at the relevant time had not been challenged on the basis that they were unreasonable and/or inadequate;
There was no evidence that there was any known or particular risk of paedophiles, as contended by the plaintiff;
There was no evidence that a Grade 3 student ought not to have been permitted to go to the toilet without being accompanied by another child. Indeed, witnesses called by the defendant confirmed that there was no such practice in 1999; and
Whilst the plaintiff contended that there was a failure by the defendant to undertake a risk assessment, a teacher of the school at the relevant time gave evidence that when her Grade 3 students asked to use the bathroom, she would conduct a personal assessment - which was in essence a form of risk assessment - to determine whether to allow the student to go to the toilet alone during class time.

Implications for you

Firstly, this decision underscores the significant difficulties plaintiffs in historical abuse cases face in circumstances where an alleged offender denies the occurrence of the alleged assault. In this decision, the court stated that for the plaintiff to overcome CD’s denial of the alleged assault, it would have to find that CD intentionally gave false evidence. It would not have been enough for the court to find that CD’s evidence could be explained by forgetfulness or some other innocent reason.

Secondly, this decision highlights the importance of defendants in historical abuse matters fully exploring the surrounding circumstances of a plaintiff’s allegations of abuse, as well as a plaintiff’s disclosure and treatment history. Whilst an inconsistency on its own might not be sufficient to challenge the veracity of a plaintiff’s allegations, a court will consider the totality of the evidence when making an assessment as to whether a plaintiff has established the occurrence of the alleged incident to the Briginshaw standard.

Thirdly, in circumstances where the roles and duties of an alleged offender are known, this decision reinforces the need to conduct a detailed analysis to determine whether an offender of an alleged assault has the opportunity to achieve a substantial degree of intimacy with the alleged victim by reason of their employment. Indeed, in this case, whilst CD may have had some interactions with students by virtue of his role as a groundsman, this was found not to be at a level which would give rise to a finding of vicarious liability.

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author

Felix Kalade ,