Karen Stott, solicitor and nationally accredited mediator, provides a comprehensive case summary of ABCD v Bird & Ors [2020] NSWSC 1379, which will be broken down into two parts. In Part A, she examines the background facts in this case, with an analysis into the decision and the key issues that were raised in respect to negligence, vicarious liability and more.
Background
This matter involved multiple claims in respect of historic child sex abuse occurring at the hands of a perpetrator in his 60’s at a childcare centre in around 2010. The decision is a salient reminder to childcare centres about the absolute necessity to abide the statutory requirements – the Children’s Services Regulation NSW) having been applicable here.
This decision also has wider significance for any organisation involved with the care of children – be they government, religious, sporting, community, charitable bodies or the like. Issues of intentional tort, negligence, vicarious liability and assessment of damages which arose in this case also apply to a wide range of historic child sexual abuse claims in the context of an area of the law that is evolving under the anxious eye of stakeholders on both sides.
The main point of distinction between this case and other institutional historic abuse matters, however, are the said statutory regulations that applied. Here, the judge was able to satisfy herself of clear breaches of a number of straight-forward statutory requirements and the Plaintiffs had not sought to rely on any expert liability evidence in this regard. Establishing what the standard ought to have been in other matters, especially with respect to institutional care requirements dating as far back as the 1960’s for example, and whether there was a breach of the relevant duties, is not so straight forward.
Nevertheless, it would appear the law pertaining to vicarious liability has advanced a step further towards the interests of injured Plaintiffs.
Still in the month of October 2020, it remains to be seen whether an appeal will be filed.
Facts
This matter concerned allegations of sexual abuse of two infants (B & D then aged 2-4 yrs) by a “volunteer” worker (but who was a minority shareholder) of a childcare centre, between 2008 and 2010. The additional Plaintiffs A & C were the respective mothers. Defendant Mr Bird was the perpetrator (then a man in his 60’s), Defendant Ms Clancy was the main shareholder & proprietor of the childcare centre, (as well as Bird’s daughter) and the childcare centre (Little Pidgeon t/as Footprints Childcare), was the Third Defendant.
In or around 2010, four of the infants at the childcare centre made various disclosures to their parents which led to a police investigation and charges being laid against perpetrator Bird, but not pursued. Bird had not been employed as a childcare worker but his role at the centre included cook, OH&S manager, playground supervisor and other duties which enabled him access to the children which, according to the applicable statutory regime, required him to be supervised when with children but in fact this did not occur.
Decision
The judgement is of particular significance owing to the verdict in favour of all Plaintiffs as against all three Defendants, in excess of $2,184,228 and involving:
- Factual findings in favour of the Plaintiffs, noting that the (then) infant Plaintiffs B and D did not give evidence at the hearing;
- Admissions made by Bird in the course of earlier police investigations in 2010 were held to be admissible in the civil claim against him and admissible as against the other Defendants;
- Direct liability for intentional tort by perpetrator Bird;
- Negligence by proprietor Clancy & Little Pidgeon for breach of duty to observe & follow the regulatory systems applicable;
- Vicarious liability by proprietor Clancy & Little Pidgeon for perpetrator Bird, by virtue of the above and through an application of the principles in Hollis v Vabu Pty Ltd (2001) 207 CLR 21; [2001] HCA 44 (Hollis) and Prince Alfred College Incorporated v ADC (2016) 258 CLR 134, as well as reference to the line of authorities in the UK more favourable to Plaintiffs regarding the analysis of vicarious liability;
- Breach of contract by proprietor Clancy & Little Pidgeon;
- The apparent application of common law damages with respect to the claims by infant victims B and D, and the application of Civil Liability Act 2002 NSW (CLA) damages to the Plaintiff mothers’ claims, although exemplary damages were contemplated with respect to the mothers’ claims;
- Awards of aggravated and exemplary damages against all Defendants;
- Significant damages awards in respect of the then infant Plaintiffs, whose respective recollections of the abuse, was very limited and the expert psychiatric evidence was in agreement that they each had essentially recovered from their respective conditions and each had a favourable prognosis;
- Findings that each of the Plaintiff mothers were owed a duty of care by the Defendants and also satisfied the test for nervous shock claims under the statutory scheme (Civil Liability Act NSW) and at common law;
- Significant damages awards in respect of the Plaintiff mothers, including for non-economic loss, economic loss and the need for past and future domestic assistance.
The respective damages awards are set out below and discussed in further detail at Part B of this case summary:
Analysis
FACTS: The Plaintiffs relied on the disputed acts which four young children, when aged 2, 3 and 4, had disclosed to their mothers and police in or around 2010, together with Mr Bird’s contemporaneous admissions about his acts towards children at the centre, to establish his tendency to act in the notified ways.
That Mr Bird had access to all four children at the centre; that its operation was highly regulated and that its policies did not permit staff to be alone with children, were held by Her Honour to be relevant linkages.
There were similarities and differences between what each child had disclosed but a common feature was that each child’s disclosure involved Mr Bird, a man in his 60’s, touching them opportunistically in sexually inappropriate ways at times when his actions at this highly regulated workplace entailed a very high risk of detection.
The liability issues identified at the outset by the parties as set out by Her Honour at the start of the judgement, were all resolved in favour of the respective Plaintiffs:
- Whether the assaults occurred;
- Whether Mr Bird was Little Pigeon’s employee;
- Whether Mr Bird had unsupervised access to or the opportunity to interact with B or D, out of sight of carers employed by Little Pigeon;
- Whether Ms Clancy or the carers were aware of Mr Bird having such access or opportunity;
- Whether either Little Pigeon or Ms Clancy are vicariously liable for any assault proven;
- Whether Little Pigeon or Ms Clancy breached the duty of care which they owed B and D;
- Whether Little Pigeon or Ms Clancy owed a duty of care to A and C and whether it was breached;
- Causation;
- Whether there had been any breach of contract;
- Whether A or C sustained a recognised psychiatric illness as a result of Mr Bird’s assaults;
- The admissibility of:
- Representations made by B and D to their mothers and others about what Mr Bird had done to them;
- Admissions made by Mr Bird in his police interviews;
- Tendency evidence;
- The credibility and reliability of various witnesses.
Some issues fell away. In final submissions whether the pleaded risk of abuse had been established; what precautions a reasonable person in Little Pigeon and Ms Clancy’s position would have taken to guard against the pleaded risk and what precautions were taken to guard against the risk, all remained in issue – and found in favour of the Plaintiffs.
Negligence was found on the basis of Her Honour’s finding that proprietor Clancy failed to have an authorised supervisor in place at various times alleged and that she had not acted effectively in this role herself because she spent most of her day in the office tending to administration duties. This was a breach of the statutory regulations (Children’s Services Regulation NSW) which was also found to be a breach of duty and of contract.
These breaches were found to have been a necessary condition to the abuse which occurred by Bird (as per S5D CLA re factual causation), because he should have been supervised at all times when with the children. Bird was found to have been an employee because of the nature of his duties, his proprietorial interest and how he was held out by the childcare centre.
With respect to the issue of vicarious liability, Her Honour had regard to the criteria in Hollis regarding the nature of the relationship between the employer and the wrongdoer. Notable in this aspect of the judgement is the finding that
“deterrence is important. Responsibility for a wrongful act is imposed, where the claimed employer is not negligent, because employers are often in a position to reduce accidents and intentional wrongs by efficient organization and supervision: at [53]”.
In the subject case, Her Honour found that (from 443 to 445):
“Ms Clancy gave no evidence that Mr Bird reported to any member of staff, when performing any of his duties, or that anyone was directed to accompany him when he worked with children. His managerial position of playground supervisor was not consistent with him being subordinate to others employed by Little Pigeon, but did not preclude him being an employee. It was Ms Clancy who instructed Mr Bird to treat the children as he would his grandchildren. She was Little Pigeon’s guiding mind. Her evidence establishes that she exercised practical control over what Mr Bird did and how he did it.
Given the vulnerable children aged 0 to 5 years for whom Little Pigeon cared for at Footprints under the legislative scheme by which it was closely regulated, there is considerable importance in the deterrent effect of it having liability for Mr Bird’s activities. That follows from its ability to control his work, in order to reduce accidents and the opportunity for intentional wrongs towards the vulnerable young children it cared for, by efficient organization of how it operated the centre, by adherence to regulatory requirements and by supervision of its staff.
Thus holding Little Pigeon vicariously liable for Mr Bird’s wrongs may encourage it and others like it to take steps to reduce the risk of future harm: Hollis at [53].”
Further, Her Honour considered the facts in respect of the principles in Prince Alfred College v ADC, holding them to apply favourably to the Plaintiffs. From 448 to 458 it is stated:
“There was no issue that both Little Pigeon and Ms Clancy could be vicariously liable for Mr Bird, if he was found to be an employee. In Prince Alfred College vicarious liability of a school for sexual abuse of a student by a teacher arose for consideration. It is necessary to consider the special role the employer has assigned to the employee and the position in which he or she is thereby placed in relation to the victim: at [81]. To determine whether the apparent performance of that role created the “occasion” for the wrongful act, features which may be taken into account include:
“authority,
power,
trust,
control and the ability to achieve intimacy with the victim, which may be especially important.”
If the evidence establishes that the employee has taken advantage of his or her position with respect to the victim, that may be sufficient to conclude “that the wrongful act should be regarded as committed in the course or scope of employment and as such render the employer vicariously liable”: at [81]. It is thus important to determine the actual role assigned to the employee: at [85].
On the evidence I am satisfied that Little Pigeon was vicariously liable for Mr Bird’s wrongful acts. That conclusion flows from:
- The actual roles which Little Pigeon assigned Mr Bird, which placed him in a position of considerable power and trust, which he abused;
- That those roles gave Mr Bird the opportunity to have the close contact with children which he, Ms Clancy and other witnesses described;
- The authority Mr Bird was given by effectively being left unsupervised when he had such contact, which he also abused;
- This lack of supervision permitting him to not only achieve intimacy with his young victims, but to control them while committing the wrongful acts he admitted and his victims disclosed; and
- It was Mr Bird’s performance of the roles he was given, which created the occasion for his wrongful acts.
The evidence I have discussed well established that Mr Bird took advantage of the roles he was given by Ms Clancy, Little Pigeon’s controlling mind. Those roles and the nature of the responsibilities which he had, provided him the opportunity and occasion for his wrongful acts, while he had close contact with his victims. That allowed him to abuse of the position of trust in which he was placed, vis-à-vis each of his vulnerable young victims, in ways closely connected with his employment.
I have also discussed the authority which Little Pigeon gave Mr Bird as part of its management team, which permitted him to abuse the close contact he was given with children both inside and outside the centre, contact of a kind which otherwise only trained primary contact staff were permitted to have. It was also that authority which helped him exploit the opportunity he was given to touch the children, the result being the various inappropriate acts that he admitted to police, many of which were notifiable to DOCS, had they been detected, as well as the assaults the children disclosed. It was the trust that was placed in him which also gave him the opportunity and occasion to assault the children in the ways established on the evidence.
The evidence .. well established that Mr Bird’s work, how he was instructed to approach it and how it was supervised, together gave him the necessary control over and ability to achieve intimacy with the children, which he abused when he repeatedly assaulted them in the various ways established on the evidence.
Contrary to the defence case, the evidence I have discussed did establish that what Little Pigeon and Ms Clancy did both created and enhanced the risk of abuse which materialised, when Mr Bird conducted himself as he admitted, unlike the circumstances which arose for consideration in Withyman v State of New South Wales [2013] NSWCA 10: at [143].”
Vicarious Liability even if Mr Bird had been found to have been a volunteer:
From 418-424 Her Honour Justice Schmidt stated:
“Contrary to the defence case I have concluded that the evidence does establish that in reality Mr Bird was an employee, even though he was not paid wages for his work and was represented to be a volunteer. If I had not reached this conclusion I can see no reason, in principle, why there should not have been vicarious liability for his acts, given the tests discussed in Prince Alfred College and “the orthodox route of considering whether the approach taken in decided cases furnishes a solution to further cases as they arise” there discussed: at [46].
A case like this does not appear previously to have arisen for consideration in Australia, as it has in the UK. There in Cox v Ministry of Justice [2016] AC 660 [2016] UKSC 10 the advent and principles of a “modern theory of vicarious liability” which extends beyond the strict relationship of employment was explained by reference to Catholic Child Welfare Society v Various Claimants [2013] 2 AC 1; [2012] UKSC 56 at [24] and [29]-[31]. Those principles were considered in Barclays Bank plc v Various Claimants [2020] UKSC 13 at [27].
Those principles are concerned with harm done by an individual who carries on activities as an integral part of a business and for its benefit, rather than as part of the conduct of a recognisably independent business of his own, or of a third party, where the commission of the wrongful act is a risk created by the assigned activities. Thus in DSN v Blackpool Football Club Ltd [2020] EWHC 595 (QB) the application of those principles resulted in the Club being vicariously liable for abuse committed by an unpaid volunteer: at [175].
These principles do not entirely accord with those established in Prince Alfred College, which must be applied in this case, but they do demonstrate how the common law develops, when new situations arise for consideration. I consider that application of the Australian principles to the facts I have found, would permit the conclusion that Little Pigeon was vicariously liable for Mr Bird’s acts, even if he provided his services to Little Pigeon as a volunteer, rather than as an employee.”
Other notable evidentiary, legal and procedural issues arising in this case included:
- Criminal charges had been laid against perpetrator Bird in 2010 and the infant Plaintiffs had given witness statements then. This evidence as well as psychology interviews at the time were relied on in the proceedings, with Plaintiffs B & D not giving evidence themselves. Her Honour was content with this however this conclusion was drawn in a closely considered and methodical way.
- In the course of the said criminal charges, perpetrator Bird had given evidence to Police including a number of admissions, which he subsequently retracted for the purposes of the civil trial. Her Honour did not accept the Defendant’s position in this regard.
- The standard of proof regarding whether the alleged abusive acts occurred was held to be in accordance with the “balance of probabilities” as per s.140 Civil Liability Act onus and not as per the more onerous standard as per “Briginshaw”.
- The circumstances of the infant Plaintiffs (now teenagers) not giving evidence at the hearing (one not remembering and the other being too traumatised to give evidence) and the evidentiary approach to be taken, eg as to issues of capacity, availability, tendency evidence, probative value.
- How the children had been questioned contemporaneously: the Plaintiffs called expert evidence from Associate Professor Quadrio regarding the reliability of contemporaneous disclosures made by the children to the police, their mothers and counsellors at the time leading up to and including the criminal investigations in 2010. This evidence was accepted by Her Honour who made continued reference to it throughout her reasoning. That evidence involved a number of principles including that Statements from children that occur spontaneously and without any suggestive questioning are more likely to provide an accurate account of what the child has experienced.
Karen Stott, solicitor & nationally accredited mediator, was admitted to practice in 1996 and specialised in medical negligence for most of her 20 year litigation career, acting for boths plaintiffs and defendants. Karen also acted for defendants in a wide range of professional indemnity and government liability matters.
In 2016 Karen established a full-time mediations practice and was named by Doyles as a leading mediator in NSW in its inaugural list 2018 and again in 2019 & 2020. Mediation of historic child sexual abuse claims is a significant part of her practice.
You may connect with Karen by email karen@adrmediation.com.au or on LinkedIn 
For more information about ADR & Mediation Services, visit the website: https://adrmediation.com.au/
