Recent Cases

Clancy v Plaintiffs A, B, C and D; Bird v Plaintiffs A, B, C and D [2022] NSWCA 119 (06 July 2022) (Bell CJ, Gleeson and Brereton JJA)


Catchwords:


APPEALS – appeal by rehearing – functions of appellate court – orders on appeal – new trial – where appellate court has found error – court should resolve issue in order to avoid economic and emotional costs of re-trial to extent possible – torts – trespass to the person – battery – sexual assault against children – allegations attracting Briginshaw principles – where resolution of issue depends on questions of credibility of defendant – where plaintiffs entitled to test evidence and impugn credibility – whether appellate court should order a new trial

EVIDENCE – admissions – civil proceedings – torts – trespass to the person – battery – sexual assault against children – where defendant participated in recorded interview with police – where certain answers given in that interview said to constitute admissions to inappropriate sexual dealing with children – where tendency for inappropriate sexual dealing with children alleged against defendant – where Briginshaw principles applied – reliance not to be placed upon indirect inferences of slender and exiguous proof – whether defendant made admissions as found by the primary judge

EVIDENCE – admissions – civil proceedings – torts – negligence – admissibility against co-defendant – common purpose – s 87(1)(c) of the Evidence Act 1995 (NSW) – where admissions to inappropriate sexual dealing with children said to have been made by defendant during police interview sought to be admitted in claim of negligence against co-defendant – where no express authorisation to make admissions on co-defendant’s behalf – where common purpose required to exist as at time the impugned admissions were made – where co-defendant learned of occasion of alleged admissions after the fact – whether alleged admissions were admissible against co-defendant

EVIDENCE – hearsay – exceptions – witness unavailable – within the meaning of cl 4(1)(f) of pt 2 of the Dictionary in the Evidence Act 1995 (NSW) – where that definition properly encompasses the issue and service of a subpoena – where no subpoena had been served on the relevant witness – where the determination of the unavailability of a witness does not involve the exercise of direction – whether witness was unavailable to give evidence so as to render hearsay of disclosures admissible as tendency evidence

EVIDENCE – standard of proof – civil cases – torts – trespass to the person – battery – sexual assault against children – at childcare centre – allegations of such gravity as to attract Briginshaw principles – s 140(2) of the Evidence Act 1995 (NSW) – where plaintiffs relied on substantial body of tendency evidence as to inappropriate sexual dealing with children – where certain witnesses as to tendency unable to be cross-examined – whether tendency evidence was admissible against defendant – where trial occurred some 10 years after events in question – whether allegations established to the requisite standard

EVIDENCE – tendency evidence – civil proceedings – tendency rule – significant probative value – where evidence taken at its highest individually or cumulatively must strongly support existence of tendency asserted – where tendency must strongly support proof of material fact in issue – where distinction to be drawn between admissibility of tendency evidence and its use – where use of tendency evidence must have regard to Briginshaw principles

EVIDENCE – tendency evidence – civil proceedings – torts – trespass to the person – battery – sexual assault against children – where plaintiffs relied upon substantial body of tendency evidence as to inappropriate sexual dealing with children – including disclosures of plaintiffs and two other children and certain answers given by defendant in police interview – where tendency evidence required to be of significant probative value of tendency – where tendency required to strongly support proof of material fact in issue – where some of the tendency evidence marked by inconsistency and unreliability – where certain witnesses as to tendency not able to be cross-examined – whether tendency evidence was admissible against defendant – where admissibility of one piece of tendency evidence affects probative value of all others and of asserted tendency – where judge’s reliance on one piece of tendency evidence unable to be separated from remainder of tendency evidence

NEGLIGENCE – duty of care – owed by corporate licensee of childcare centre and its director to attendees of centre – where volunteer alleged to have committed sexual assaults against children at the centre – where regulation required volunteer to be “accompanied” by member of primary contact staff when in the presence of children – where that regulation required no more than that children not to be under supervision of volunteer alone – where no internal complaints made regarding conduct of volunteer – where policies and procedures of childcare centre substantially in accordance with regulation – whether licensee and director breached duty of care

NEGLIGENCE – vicarious liability – employer and employee – where employer was corporate licensee of childcare centre – whether director of licensee also vicariously liable for conduct of employee – principle of dual vicarious liability not adopted in the common law of Australia

NEGLIGENCE – damages – economic loss – earning capacity – future economic loss – by way of a buffer – requires compliance with s 13 of the Civil Liability Act 2002 (NSW) – where assumptions on which buffer is based must be stated – where identical buffers awarded to different plaintiffs – whether proper account taken of plaintiffs’ particular circumstances

TORTS – general principles – damages – trespass against the person – battery – sexual assault – against child – damages awarded to child and parent – for future economic loss – by way of a buffer – requires compliance with s 13 of the Civil Liability Act 2002 (NSW) – where assumptions on which buffer is based must be stated – where identical buffers awarded to different plaintiffs – whether proper account taken of plaintiffs’ particular circumstances

TORTS – trespass to the person – battery – sexual assault – against two children – at childcare centre – by defendant volunteer – alleged that defendant kissed one child with open mouth and pulled down child’s pants – alleged that defendant tickled other child on underwear – defendant alleged to have tendency for inappropriate sexual dealing with children – substantial body of tendency evidence admitted – including disclosures of plaintiffs and two other children and certain answers given by defendant in police interview – whether certain tendency evidence was admissible against defendant – where certain witnesses unable to be cross-examined – where trial occurred some 10 years after events in question – whether claims established to the requisite standard per s 140(2) of the Evidence Act 1995 (NSW)

WORDS AND PHRASES – “accompanied” – Children’s Services Regulation 2004 (NSW), cl 57(b)