Special School Sexual Assault Ruling: RJ bht RPC v NSWDC 128

In the recent matter of RJ bht RPC v State of New South Wales [2024] NSWDC 128, the plaintiff, the plaintiff, who was born on 8 March 2006, suffers a mild but relatively obvious intellectual disability by way of low IQ. He brings a claim for damages for negligence through his tutor (“Mrs RPC”), arising from acts or omissions of the defendant’s staff at X School (“the school”) in relation to an incident occurring at the school on 23 September 2019. 

The plaintiff, who was then 13 years of age, was sexually assaulted by a 17-year-old student while he was using one of the school toilets. He claimed against the State of New South Wales, as the operator of a school offering a special support unit providing teaching and other services for about 60 children who have disabilities requiring additional supervision and assistance. 

The school had been aware for some time of the potential for misuse of toilets by students. Some of the toilets, which were for support staff, had locks, and students could only use them if the keys were obtained from a teacher. It is unknown what other steps the school took to prevent misbehaviour, but one of the teachers (by coincidence on the day of the incident the subject of these proceedings) personally accompanied one of her students in order to supervise that student’s use of the toilet. The significant truancy problems with Z (the perpetrator) meant that he would wander the corridors when he should have been in class and, as his message to the plaintiff about meeting in the toilets confirms, that was a spot he liked to visit. No consideration was given to playground “intermingling” (Tcpt 2), toilet and/or truancy issues was made prior to the incident, despite the prior complaints and concerns of the plaintiff’s mother. Then, on 23 September 2019, seven weeks later, the plaintiff was assaulted by Z in one of the toilets. 

The defendant denies liability and causation. 

The plaintiff and his mother gave evidence and were cross-examined. Dr Rikard-Bell and Dr Jungfer, who had provided expert reports, including a joint report, were cross-examined concurrently. The defendant called no lay witnesses. 

In relation to breach of duty, the trial judge held at [109] to [110] as follows:  

The duty owed by the defendant was to ensure that reasonable care was taken to protect the plaintiff from what the defendant concedes was a foreseeable risk which was not far-fetched or fanciful and not insignificant… by taking reasonable precautions. 

I am satisfied, for the reasons set out above that, despite clear warnings from the plaintiff’s mother that her son was being targeted for sexual purposes by an older boy who seems to have been the school bully, reasonable precautions were not taken. 

Ultimately, on 22 April 2024, the New South Wales Direct Court made judgement for the plaintiff. The Court further ordered that there be liberty to the parties to bring in Short Minutes of Order reflecting the mathematically agreed calculation of damages, such total to include funds management costs.  

In relation to damages, the Court awarded as follows:  

General Damages 

$ 47,000.00 

Past Out of Pocket Expenses 

$ 1,260.00 

Future Economic Loss 

$ 15,000.00 

Future Treatment Expenses 

$ 15,000.00 

TOTAL 

$78,260.00 plus funds management costs. 

We are specialist abuse lawyers and can help you receive acknowledgement, meaningful apology and financial resolution from those institutions and systems of power that failed to protect you from harm. If you would like advice in relation to a childhood or adult sexual, physical and/or psychological/emotional abuse claim in any jurisdiction in Australia, please reach out to Littles Lawyers today. 

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