The double-edged sword of narrow pleadings

In a historical abuse case, the Court accepted that the plaintiff had in fact been sexually abused while a student at a public school, however, the plaintiff’s pleadings pointed solely to the Deputy Principal as the perpetrator.

The Court was subsequently not satisfied, on the balance of probabilities, as to that identification, and despite 'a strong case for compensation' for the plaintiff, judgment was ultimately entered for the State and the plaintiff’s case was dismissed.

In issue

The plaintiff, a former student of a public school (the school), sued the State of NSW (Department of Education) (the State) for damages relating to historical sexual abuse allegedly perpetrated by the then Deputy Principal of the school between 1989 and 1990.

The State denied the occurrence of the abuse and denied any breach of duty. The Deputy Principal was not a party to the proceeding but was called as a witness by the State.

The Deputy Principal’s evidence was that he had no recollection of the plaintiff and never perpetrated the alleged abuse.

The Court acknowledged that the Deputy Principal was not the subject of any other allegation from any other student, and otherwise had an impeccable record across many years of teaching, which were important aspects in his favour and to his credit. The Court otherwise did not consider that any other witness was misleading or any less reliable than one would expect after the passage of time that had occurred.

The key issues for determination by the Court were thus whether:

1. the abuse did in fact occur as alleged, and
2. the plaintiff had proved on the balance of probabilities that the Deputy Principal was the perpetrator, thus fixing the State’s liability.

The background

The plaintiff attended the school from 1985 to 1992. The Deputy Principal held his role from 1988 to 1992. The plaintiff pleaded in his Statement of Claim that the abuse occurred multiple times throughout 1989 and 1990, when he was in Year 3 and/or Year 4 at the school.

Critically, the plaintiff pleaded that the abuses occurred during detentions with the Deputy Principal, and that the Deputy Principal was the perpetrator.

The State relied on the testimony of various staff members given at trial, including the Deputy Principal, regarding the plaintiff’s narrative and the school’s relevant policies and practices, in maintaining its denial of the occurrence of the abuse or any liability attaching to it as a result.

At the core of the issues in dispute was the diametrically opposed evidence of the plaintiff and the Deputy Principal.

The decision at trial

After an exacting analysis of the evidence and careful application of the principles informing the relevant standard of proof, Rothman J found that:

1. the plaintiff had been sexually abused,
2. the perpetrator was a senior member of staff during the plaintiff’s Year 6 at the school, and
3. there had been a breach of duty of care by the State.

In His Honour’s view, the evidence fixed the abuse to a male member of the school’s executive, however, His Honour was obligated to consider that multiple other possible suspects existed, including (for example) the principal or the football coach.

To that end, His Honour noted: 'If I were required to choose… I would… consider that [the Deputy Principal] is the more likely perpetrator. However, I cannot be satisfied, even on the balance of probabilities, that [the Deputy Principal] perpetrated the abuse'. This consideration was driven by His Honour’s observation that allegations from several decades ago are flawed by the fallibility of human memory. His Honour noted that another former student called as a witness by the plaintiff had considered the Deputy Principal to be a 'horrible person'; and therefore it may have been that the abuse that occurred had been sheeted home to a 'horrible person' in the plaintiff’s life (that is, the Deputy Principal) and not to the real perpetrator.

In precis, the Court accepted that the plaintiff was in fact sexually abused at the school, but was unable to affirm that the Deputy Principal was in fact the perpetrator.

In the final paragraphs of the decision lie the plaintive conclusion:

Subsequently, and hoist by the petard of the plaintiff’s pleadings, judgment was entered for the State.

Implications for you

As demonstrated, even where a Court is convinced of the occurrence of historical abuse, misidentification of an alleged perpetrator can be fatal to the plaintiff’s case. Practitioners must therefore be cautious: naming an alleged perpetrator may focus the issues and provide some evidentiary ballast to the plaintiff’s case, but in order for the case to ultimately succeed, a positive finding must also be made to that end. Careful consideration should therefore be given to whether to plead more broadly or admit uncertainty where appropriate. This case demonstrates that if this is not done, a plaintiff may be denied any remedy despite an otherwise 'strong case for compensation'.