Greenwood v Department of Education [2025]: Abuse Claim Dismissed

In the recent matter of Greenwood v Department of Education [2025] NSWSC 969, the plaintiff, Jamie Greenwood, brought proceedings against the defendant, the Department of Education, seeking personal injury damages in relation to historical sexual abuse the plaintiff suffered at the hands of the then Deputy Principal whilst the plaintiff was a student at the Forster Public School (“the School”).  

The plaintiff sues the State of New South Wales seeking damages for a cause of action in negligence and/or because the State is vicariously liable for injuries the plaintiff alleges arose as a consequence of historical sex abuse at the School by the then Deputy Principal. The State denies that the abuse occurred and, if it were to have occurred, denies that it was negligent and also that it is vicariously liable for the conduct in question. The alleged perpetrator of the abuse is not a party to the proceedings but gave evidence in the proceedings. The plaintiff attended the School from 1985 until 1992, and the Deputy Principal was employed at the School between February 1988 and April 1992 as a teacher and Deputy Principal. The plaintiff alleges in the Statement of Claim that abuse occurred in approximately 1989 and 1990, when the plaintiff was in Year 3 and/or Year 4 at the School. The issues in dispute, apart from the legal questions, are issues associated with facts that occurred over 30 years ago. The Deputy Principal, who was called to give evidence by the State, denied the allegations. 

The court discussed the schools ‘open door’ policy for staff in the context of the breach of duty argument, commenting at [477] – [479]: 

The circumstance that there was an open-door practice is a factor upon which the State relies to show that it took reasonable measures to alleviate, ameliorate or obviate the risk that was apparent and known to the State. However, once the practice is applied “in general” and not universally or not policed, the practice does not ameliorate the risk to which it is directed (assuming for present purposes it is directed at that risk). 

Once it is known by staff, or relevant staff, that a closed door will not excite questions or interference, the so-called “open-door practice” is of no effect on ameliorating the risk or seeking to deal with it in any meaningful way. The reliance by the State on the open-door practice is misplaced in this respect and points significantly to the awareness of the risk and the failure to deal with it in a manner that overcomes the risk. Further, it points to the circumstance that a very simple, cost-free step or steps were available to the State to deal with the risk. Further, students and parents should have been informed of a policy that prohibited one-on-one meetings between staff and a student, as suggested was the situation later than the currently relevant period, and a procedure for reporting abuse and/or inappropriate conduct implemented and published. 

Having found a breach of the duty of care, it is unnecessary to deal with the claim in vicarious liability. The evidence has been summarised and conclusions of fact recited. If it is ultimately necessary to deal with vicarious liability, sufficient findings have been made to allow that to occur. 

The court accepted that the plaintiff had been abused ([408]), mostly likely at the school ([513]) by a senior staff member ([526]). However, on the balance of probabilities, the court was not satisfied that McLean was the perpetrator ([514]) as had been pleaded by the plaintiff.  

The court provided at [527]:  

There is a very strong case for liability on my findings, although such findings, as stated, do not account for evidence that may have otherwise been adduced by the State. Nevertheless, there is a strong case for some compensation from the defendant for the plaintiff arising from the abuse and the findings of liability. However, such an issue does not arise for determination by the Court in these proceedings. 

In relation to liability, the Court provided as follows at [493] to [498]:   

The risk of harm was foreseeable and required reasonable steps to overcome it. 

There are a number of steps that could have been taken, each of which would have been reasonable, to obviate the risk of such foreseeable harm. First, the “open-door practice” could have been strictly enforced, with no closed-door meetings occurring. Secondly, as was mentioned in the course of the proceedings, the State (or its agent) could have enforced strictly a policy and/or practice in which no student was alone with a staff member. 

Obviously, in classes, there were a significant number of students present. Where a meeting occurred, on the evidence before the Court, there was, on occasion, a situation where staff members required another staff member to be present. 

However, on the evidence before the Court, such rule was not strictly enforced. Nor did the State inform either students or parents that no staff member was entitled to meet with a student in a closed environment without another staff member or other students being present. Further, publication to parents and students of such a policy, together with procedures for reporting breaches, were reasonable steps not taken by the School which would have ameliorated, if not eliminated, the risk and, at least, from a potential perpetrator’s perspective, served as a deterrent to offending. 

Any one of those reasonable measures, being measures some of which were, from time to time, implemented but not universally enforced, could have been undertaken and the subject of policy direction by the State. Each such measure would have been a reasonable precaution for the risk foreseen by the State and more likely than not prevented the injuries suffered by the plaintiff. 

Moreover, the risk is considerable in that, if it were to manifest, as I have found it did, the damage is extremely significant. Thus, even in the absence of a tendency by a particular teacher, where there are reasonable steps available to avoid the risk by any teacher, those steps should have been undertaken.