Citation: RJ bht RPC v State of New South Wales [2024] NSWDC 128
Court: District Court of New South Wales
Date: 22 April 2024
Judge(s): Gibson DCJ
Background
The plaintiff, a 13-year-old boy with a mild but readily apparent intellectual disability, was anally penetrated by a 17-year-old fellow student in a school toilet on 23 September 2019. The school was a government school with a special support unit catering to approximately 60 students with disabilities. The plaintiff brought the claim through his tutor, who is also his mother, against the State of New South Wales as the responsible authority for the school.
The older student ("Z") was already known to the school as someone who had attempted to groom and harass younger students, truanted regularly, and had a propensity for fighting. Approximately seven weeks before the assault, the plaintiff's mother had alerted the school to sexually explicit phone messages from Z to her son, including a request that the plaintiff meet him in the school toilets to perform a sexual act. The school responded by giving a classroom talk on inappropriate messages, warning both students to stay away from each other, and offering counselling.
The defendant denied liability and causation. The central dispute was whether the school's response to the earlier complaint was adequate, and whether its failure to take further precautions was a breach of its duty of care that caused the plaintiff's harm.
Legal Issues
- Whether the school breached its duty of care to the plaintiff under sections 5B and 5D of the Civil Liability Act 2002 (NSW), having regard to its prior knowledge of Z's behaviour and the specific warnings raised by the plaintiff's mother
- Whether the breach caused the plaintiff's injuries (causation)
- Whether the precautions actually taken by the school were reasonable in the circumstances
- What damages were appropriate, including non-economic loss, past and future economic loss, and future out-of-pocket expenses
Decision
Breach of duty
Gibson DCJ found that the school breached its duty of care. Despite having specific, serious prior knowledge of Z's predatory conduct toward the plaintiff, including the explicit toilet-related grooming message, the school took only limited steps. It gave a general classroom talk, warned both students, and offered counselling, but did not address the intermingling of students of different ages, the misuse of toilets, or Z's persistent truancy. The court found that no consideration was given to any of those structural issues before the assault occurred seven weeks later.
The court accepted that the school had a general awareness of toilet misuse as a risk and that some locked toilet facilities existed precisely because of that concern. The fact that one teacher personally supervised a student's toilet use on the very day of the assault illustrated that individual supervision was a known option. Against the background of the specific complaint made in August 2019, the school's failure to address toilet access and truancy-related movement through corridors was found to fall below the standard of reasonable care.
Causation
The court was satisfied that the school's failures caused the assault. Z was unsupervised in the corridor at the relevant time because his persistent truancy was not adequately managed. He obtained a key, entered the locked toilet with the plaintiff, and carried out the assault. The causal connection between the inadequate precautions and the harm that eventuated was established.
Damages
The court assessed damages across several heads. The quantum reasoning in the published portion of the judgment addresses future economic loss and out-of-pocket expenses. For future economic loss, the court awarded $15,000, finding the plaintiff's intellectual limitations would make it significantly harder for him to find alternative work if he were unable to continue in employment. The court considered analogous decisions and concluded that the awards in both Chen v Kmart and Verryt v Schoupp sat at the outer ends of an appropriate range in different directions. For future counselling expenses, the court awarded $15,000, acknowledging the ongoing impact of sexual assault while also noting the plaintiff's strong family network. Past out-of-pocket expenses were agreed at $1,260. Funds management costs were also to be included in the final damages calculation, with the parties given liberty to bring in Short Minutes of Order.
Orders Made
- Judgment for the plaintiff
- Liberty to the parties to bring in Short Minutes of Order reflecting the mathematically agreed calculation of damages, including funds management costs
- Costs reserved
- Liberty to apply in relation to the damages calculation and costs orders
- Exhibits retained until further order
Key Takeaways
- The District Court held that a school's duty of care extends to taking reasonable structural precautions, including supervision of toilet access and management of truancy, where specific prior complaints have put the school on notice of a real risk of harm to a particular vulnerable student.
- Prior knowledge of a specific grooming attempt, including the identity of the perpetrator and the location he had identified, elevated the standard of response required. General classroom discussions and verbal warnings were insufficient in those circumstances.
- Where an intellectually disabled plaintiff's future work capacity is genuinely uncertain, courts may award a modest buffer for future economic loss rather than a conventional lost earnings calculation, calibrated to the degree of that uncertainty.
- Causation was established on the basis that the structural failures, particularly unmanaged truancy allowing Z to roam the corridors unsupervised, directly enabled the assault to occur.
- The court referenced contemporaneous police interview records as the most reliable guide to resolving factual inconsistencies between a plaintiff's later evidence and earlier accounts, consistent with the approach taken in Lehrmann v Network Ten [2024] FCA 369.
Legislation and Cases Referenced
Legislation
- Civil Liability Act 2002 (NSW), ss 5B, 5D
- Evidence Act 1995 (NSW), ss 41, 81, 87
Cases
- Chen by her tutor Huang v Kmart Australia Ltd [2023] NSWCA 96
- Commonwealth v Introvigne (1982) 150 CLR 258
- Lehrmann v Network Ten Pty Limited (Livestream) [2023] FCA 1452
- Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369
- Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254
- New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4
- Roberts-Smith v Fairfax Media Publications Pty Limited (No 41) [2023] FCA 555
- The Commonwealth v Helicopter Resources Pty Ltd (2020) 270 CLR 523
- Verryt v Schoupp [2015] NSWCA 128
- Wright v Optus Administration & Anor (No 5) [2013] NSWSC 1717
- Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12