Citation: "H" v State of New South Wales [2009] NSWDC 193
Court: District Court of New South Wales
Date: 28 August 2009
Judge(s): Levy SC DCJ
Background
The plaintiff was a 16-year-old student at a NSW government high school when, on 26 February 1998, he was assaulted and stabbed by fellow students in the school playground at the start of morning recess. The attack followed an earlier death threat made to him by a fellow student during the morning roll call, in the presence of a teacher. Proceedings were commenced against the State of New South Wales as the body responsible for the school authorities.
The plaintiff suffered significant psychological injuries, diagnosed as chronic post-traumatic stress disorder (PTSD). A lasting phobia connected to Asian people developed from the incident, which the plaintiff attributed to the ethnicity of his attackers. The condition was so severe that he relocated to Dubai, a factor that complicated the assessment of his damages.
The State disputed both liability and the extent of the plaintiff's injuries, with its expert witnesses suggesting the plaintiff had exaggerated or fabricated his symptoms.
Legal Issues
- Whether the school authorities owed the plaintiff a duty of care and breached it by failing to respond appropriately to the morning death threat before the subsequent stabbing occurred
- Whether the defendant could rely on a statutory defence under s 42 of the Civil Liability Act 2002, relating to the exercise of public authority functions
- Whether the plaintiff's psychological symptoms were genuine, or whether he had embellished or malingered, as the defendant's clinical psychologist suggested
- Whether the plaintiff's relocation to Dubai constituted a failure to mitigate his loss, given that NSW law has no extra-territorial effect
- How damages across multiple heads, including non-economic loss, past and future loss of earning capacity, future treatment costs, and out-of-pocket expenses, should be assessed
Decision
Liability
The District Court found that the school authorities breached their duty of care to the plaintiff. The death threat issued in the classroom that morning, in the presence of a teacher, was a foreseeable warning of serious risk. The court held that the school failed to take adequate steps in response to that threat during the period before the stabbing occurred approximately two hours later. Causation was established, and the defendant's reliance on the public authority defence under s 42 of the Civil Liability Act 2002 did not succeed.
Expert evidence and credibility
The court rejected the evidence of the defendant's clinical psychologist, who had suggested, partly on the basis of MMPI-2 validity scale scores, that the plaintiff was over-reporting and embellishing his symptoms. The court held that an expert witness is obliged, under Schedule 7 of the Uniform Civil Procedure Rules 2005, to go beyond innuendo and provide cogent reasons when alleging embellishment, exaggeration, or fabrication. The psychologist's reasoning was found to be flawed and insufficient to meet that standard. The plaintiff's PTSD diagnosis and its chronic nature were accepted on the evidence of his treating and other expert witnesses.
Mitigation and domicile
The court found no relevant failure to mitigate on the plaintiff's part in relocating to Dubai. Because NSW law has no extra-territorial operation, a plaintiff living abroad cannot be required to access treatment or employment opportunities that only exist within the jurisdiction. The plaintiff's circumstances in Dubai were taken into account in the detailed damages assessment across different life stages.
Damages
The court assessed damages across seven heads. Non-economic loss was assessed at $202,500. Future loss of earning capacity, calculated across several life stages accounting for the plaintiff's expected time in Dubai and eventual return to Australia, was the largest component at $326,000. Future treatment costs were assessed at $50,000. The total judgment was $627,468.
Orders Made
- Verdict entered in favour of the plaintiff
- Judgment for the plaintiff in the sum of $627,468
- The defendant to pay the plaintiff's costs
- Exhibits may be returned
- Liberty to the parties to apply on 7 days' notice if further orders are required
Key Takeaways
- The District Court confirmed that a school authority's duty of care to a student extends to taking reasonable steps in response to a credible, witnessed threat of violence before harm materialises, not only after it occurs.
- An expert witness who asserts that a plaintiff has embellished or fabricated symptoms must provide cogent, reasoned justification for that conclusion; innuendo or reliance on psychometric test scores alone, without adequate explanation, does not satisfy the obligations under Schedule 7 of the Uniform Civil Procedure Rules 2005.
- Where a plaintiff relocates abroad as a consequence of their injuries, the absence of extra-territorial effect of NSW law means the court will not treat that relocation as a failure to mitigate damages, and damages will be assessed by reference to the plaintiff's actual circumstances in that country.
- Judicial notice was taken of the existence of general stressors in the community when assessing the overall impact of the plaintiff's chronic PTSD, situating his condition within a broader context of identifiable societal pressures.
- School records tendered to challenge a plaintiff's credibility have a limited role, and the court's treatment of the evidence demonstrates that such records must be used with care and cannot simply be deployed to impugn a plaintiff's account wholesale.
Legislation and Cases Referenced
Legislation
- Crown Proceedings Act 1988 (NSW)
- Civil Liability Act 2002 (NSW), including s 5D and s 42
- Civil Procedure Act 2005 (NSW)
- Evidence Act 1995 (NSW)
- Uniform Civil Procedure Rules 2005 (NSW), Schedule 7 (Expert Witness Code of Conduct)
Key Cases
- Commonwealth of Australia v Introvigne [1982] HCA 40; (1982) 150 CLR 258
- Geyer v Downs [1977] HCA 64; (1977) 138 CLR 91
- Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40
- Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422
- Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540
- Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
- Cox v State of New South Wales [2007] NSWSC 471
- State of NSW v Moss [2000] NSWCA 133
- Mount Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383
- Wynn v NSW Ministerial Corporation [1995] HCA 53; (1995) 184 CLR 485