The Plaintiff is a 33-year-old woman alleging that she was sexually assaulted on one occasion in 1999 whilst a student at a School in Queensland.
The Plaintiff claims that the Defendant is vicariously liable for the alleged assault and/or directly liable for breach of duty of care. She alleges that she had permission from her class teacher to be excused to go to the bathroom and that while there, unaccompanied, the alleged offender entered the bathroom and sexually assaulted her. The Plaintiff did not disclose the abuse until 2017.
The alleged offender was a groundskeeper employed by the school. He had no prior allegations of wrongful conduct and was described as having an admirable impeccable reputation.
William J considered there were a number of inconsistencies impacting the credibility of the Plaintiff. These included, inter alia: the plaintiff lied to psychologists, admitted that she exaggerated statements to various treaters, gave inconsistent evidence to the medicolegal experts engaged in the proceedings, and that there were a number of inconsistencies in her partial disclosure, Notice of Claim and evidence at trial (see [297] a-j). She also described having a good treating relationship with various treaters, which further compounded the inherent contradictions in the available materials.
It was further noted at [299] that there were plausibility concerns in the plaintiff's narrative of the assault. These included the central location of the toilet block that meant someone could walk in at any time, the toilet door being left open during the alleged assault, the central pathway that meant there was a likelihood that someone passing by could hear the alleged assault and where the alleged assaulted included high-level abuse that would have had a profound effect on the nine-year old plaintiff at the time.
Ultimately, the Plaintiff's claim was dismissed. In making this determination, Williams J highlighted the reasoning in Bradshaw v McEwans 1 that "conflicting inferences of equal degrees of probability" is insufficient as the trier of fact must reach the state of "actual persuasion"2.
You can read the full case here.
Footnotes
1 (1951) 217 ALR 1 at 5.
2 Briginshaw v Briginshaw (1938) 60 CLR 336 at
361
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