MTH v State of New South Wales [2024] NSWSC 1517

Supreme Court New South Wales

Medium Neutral Citation: MTH v State of New South Wales [2024] NSWSC 1517 Hearing dates: 22, 23, 24, 25, 26, 29, 31 July 2024 1, 2 August 2024 5 September 2024 Date of orders: 28 November 2024 Decision date: 28 November 2024 Jurisdiction: Common Law Before: Cavanagh J Decision: (1) Judgment for the first defendant. (2) Judgment for the second defendant. (3) Judgment for the third defendant. (4) The plaintiff is to pay the defendants' costs. (5) All cross-claims are dismissed. (6) No order as to costs on the cross-claims. (7) Should any party seek a variation of the costs orders I grant liberty to apply on 3 days notice. Catchwords: TORTS – Trespass to the person – assault and battery – sexual assault – where plaintiff alleges she was physically and sexually abused by one of her foster carers whilst a ward of the State CIVIL PROCEDURE – Abuse of process – where the alleged perpetrator of the abuse had been convicted of the conduct alleged by the plaintiff at a criminal trial – whether allowing the estate of the alleged perpetrator to deny that the abuse occurred would give rise to an abuse of process NEGLIGENCE – Duty of care – where the plaintiff alleges the State breached its duty of care to her by failing to take steps to have her adopted in a timely manner and failing to exercise reasonable care for her health and well-being – whether the State's duty of care to a ward of the State is non-delegable – whether the State is vicariously liable for the conduct of the plaintiff's former foster carers Legislation Cited: Civil Evidence Act 1968 (UK), s 11 Civil Liability Act 2002 (NSW), ss 5B, 43A Crimes Act 1900 (NSW), ss 63, 78 Evidence Act 1995 (NSW), ss 91, 97 Cases Cited: A v State of New South Wales (2007) 230 CLR 500 AB v Curry & Anor [2015] NSWSC 1063 Arthur JS Hall & Co (a firm) v Simons [2002] 1 AC 615 Batistatos v Roads & Traffic Authority of New South Wales (2006) 226 CLR 256 Bird v DP (a pseudonym) [2024] HCA 41 Briginshaw v Briginshaw (1938) 60 CLR 336 Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 Croft v R [2021] NSWCCA 146 CXX v DXX (2012) EWHC 1535 QB Fox v Percy (2003) 214 CLR 118 Gestmin SGPS S.A. v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm) Giannarelli v Wraith (1988) 165 CLR 543, GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857 Harper v R [2022] NSWCCA 211 Hunter v Chief Constable of the West Midlands Police [1982] AC 529 Johnson v Gore Wood & Co [2002] 2 AC 1 Massalski v The Owners SP 90255 & Ors [2023] NSWSC 23 Mueen-Uddin v Secretary of State for the Home Department [2024] UKSC 21 PP v DD [2021] NSWSC 1157 Reichel v McGrath (1889) 14 App Cas 665 Rogers v the Queen (1994) 181 CLR 251 Soare v Ashley [1955] VLR 438 UBS AG v Tyne (2018) 265 CLR 77 Warner v Hung (No 2) (2011) 297 ALR 56 Watson v Foxman (1995) 49 NSWLR 315 Willmot v Queensland [2024] HCA 42 Texts Cited: Hon Justice Peter McClellan, "Who Is Telling the Truth? Psychology, Common Sense and the Law" (2006) 80 Australian Law Journal 655 Category: Principal judgment Parties: MTH (Plaintiff) State of New South Wales (First Defendant) Estate of the late Geoffrey Croft (Second Defendant) Sandra Croft (Third Defendant) Representation: Counsel: C P O'Neill with C Robertson (First Defendant) K Andrews (Second Defendant) P Tierney (Third Defendant)