In this matter, the plaintiff (MTH, a pseudonym) commenced proceedings on 16 April 2020 against the defendants (the State of New South Wales (first defendant), Mr Geoffrey Croft (second defendant), and Mrs Sandra Croft (third defendant)) in which she sought damages in relation to her foster carer (Mr Geoffrey Croft) regularly sexually abusing her whilst she was a child and a ward of the State of New South Wales between approximately 1978 and 1980.

The plaintiff was made a ward of the State at the age of four and was placed with long-term foster carers, the Phelans. During most of the period of the twelve years the plaintiff was living with them in northern New South Wales and Queensland, the Phelans wanted to adopt her. This did not proceed as her birth mother did not consent. In about 1978, there were difficulties between the plaintiff and Mr Phelan which were compounded by his health problems which meant that the Phelans could no longer care for the plaintiff. In 1979, the State placed the plaintiff temporarily with Geoffrey and Sandra Croft on their rural property in northern New South Wales. During the period of this placement, Mr Croft raped the plaintiff twice and indecently assaulted her three times. Mr Croft was convicted of these five offences in 2019. In the same proceedings, Mr Croft was also convicted of four indecent assaults against RS (a foster child who stayed with the Crofts prior to 1979).

The plaintiff brought claims against three defendants. Against the first respondent, the State of New South Wales, she alleged negligence in failing to apply for an adoption order in favour of the Phelans (the adoption case); in placing her with the Crofts (the placement case); and in failing to foster her relationships with her natural siblings (the family reunification case). She also sought to hold the State vicariously liable for Mr Croft’s acts and the failings of officers of the relevant Department (vicarious liability case). Against the second respondent, the estate of Geoffrey Croft, she claimed damages for the sexual and physical assaults perpetrated against her in 1979. As against the third respondent, Sandra Croft, she alleged negligence in failing to prevent or report the abuse.

Of note, in September 2023, the Court had rejected the application made by Mrs Croft (the third defendant) for a permanent stay of the plaintiff’s proceedings despite the death of Mr Croft.

Primary Hearing

At first instance, the primary judge entered judgments in favour of all the defendants. He found that none of the allegations of abuse had been made out as he did not accept the plaintiff’s evidence as to the assaults and RS had not been called to give evidence. Notably, his Honour erroneously inferred that the plaintiff was not seeking to rely on the convictions against Mr Croft to prove that he had committed the offences for which he was convicted. This significantly impacted the primary judge’s assessment of both the appellant’s reliability and credibility.

Appeal

The Court allowed the appeal against the second respondent with costs, but otherwise dismissed the appeal.

In relation to the plaintiff’s challenge to the finding that she had not discharged her onus of proving that Mr Croft had sexually assaulted her, the Court provided as follows:

The primary judge’s finding that MTH had not discharged the onus of proving the abuse was plainly affected by two errors. First, his Honour wrongly inferred that MTH was not relying on the convictions. Secondly, he misunderstood the effect and operation of ss 91, 92 and 178 of the Evidence Act: [60]

The primary judge should have started with the convictions. Had a certificate under s 178 been tendered, it would have provided prima facie evidence of the elements of each offence. To the extent that MTH gave evidence of those elements, her account would have been corroborated by the certificate: [61]

The effect of ss 91, 92 and 178 of the Evidence Act is that a certificate of conviction is admissible to prove the elements of Mr Croft’s offences: [63]

The primary judge denied MTH procedural fairness by not alerting her to the evidentiary pathway which the Evidence Act allowed to enable her to prove the commission of the offences by tendering a certificate of conviction: [69]-[74]

Accordingly, the Court ought approach the matter as if the certificate of conviction had been tendered considering that it: (i) was not inadmissible by reason of s 135(a); (ii) was not inadmissible for a tendency purpose under s 97; and (iii) would not have created a forensic disadvantage against the estate: [59]-[86]

In relation to the plaintiff’s challenge to the judgement in favour of the estate, the Court provided as follows:

The estate accepted that if MTH established the offences in respect of which Mr Croft was convicted, she was entitled to judgment against them. Accordingly, the certificate of conviction established that Mr Croft raped the appellant twice and indecently assaulted her three times. The only contradictory evidence was Mr Croft’s denials, which were insufficient to displace the certificate or MTH’s evidence: [87]

Therefore, judgment in favour of the estate must be set aside and judgment must be entered in favour of the appellant: [88]

In relation to the plaintiff’s challenge to the judgement in favour of the State, the Court provided as follows:

The duty of care owed by a guardian to a ward is non-delegable.

Each of the adoption, placement and family reunification cases concerned alleged negligence by the State in the exercise or failure to exercise a special statutory power (under either the Adoption Act 1965 (NSW) or the Child Welfare Act 1939 (NSW)). The effect of 43A of the Civil Liability Act 2002 (NSW) was to require MTH to show that the State’s exercise of, or failure to exercise, such a power is in the circumstances so unreasonable that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power. MTH failed to discharge the onus in respect of any aspect of the case brought against the State.

As to the adoption case, it was not unreasonable for the State to consider that an adoption order was unnecessary or that a contested adoption request (in spite of the appellant’s birth mother’s wishes) could disrupt the equilibrium which existed for many years between MTH and the Phelans and provoke her intervention. By the time MTH’s birth mother died, it was not unreasonable for the State to put the question of MTH’s adoption by the Phelans on hold: [163]

As to the placement case, it was not unreasonable for the State to consider the Crofts to be suitable since they lived in relative proximity to the Phelans, thereby increasing the prospects of a reconciliation between MTH and Mr Phelan. There was no suggestion that the State was aware at any time until the prosecution of Mr Croft that he was violent or sexually abusive. The investigations and enquiries which the State performed in relation to the Crofts did not reveal any risk of harm in the placement: [184], [185]

As to the vicarious liability case in respect of the officers of the Department, there was no act or omission alleged against them which could found a case against the State. As to the vicarious liability case in respect of Mr Croft’s conduct towards MTH, the State was not liable for that conduct as Mr Croft was not an employee of the State.

In relation to the plaintiff’s challenge to the judgement in favour of Mrs Croft, the Court provided as follows:

The appellant’s evidence is not capable of establishing that Mrs Croft is liable for failing to prevent or report the abuse for two main reasons. First, the appellant did not give any evidence that Mrs Croft saw Mr Croft assaulting her, whether sexually or otherwise. Secondly, the duty of care which Mrs Croft owed to the appellant did not require her to do anything about an allegation of that nature in circumstances where the appellant, shortly after the allegation was said to have been made, was no longer in the care of the Crofts: [211]-[214]

Finally, in relation to the plaintiff’s challenge to the primary judge’s assessment of damages, the Court provided as follows:

The primary judge assessed damages in the event the findings on liability were overturned by this Court. The assessment was set aside and damages reassessed because the finding that no pain and suffering had been suffered in the period of almost thirty years after the abuse because MTH had, on her own evidence, suppressed it was not open. The assessment was also flawed because it was affected by the primary judge’s assessment of MTH’s credibility and reliability which disregarded the corroborative effect of the convictions.

Aggravated damages awarded because of the cruel, violent and degrading manner of the wrong.

A buffer for past and future economic loss was appropriate because the evidence did not permit a more precise award to be made.

Ultimately, on 6 June 2025, the New South Wales Court of Appeal ordered as follows:

(1) Allow the appeal in respect of the judgment in favour of the second respondent.

(2) Otherwise dismiss the appeal.

(3) Set aside the judgment ordered by Cavanagh J in favour of the second defendant and the order in respect of the second defendant’s costs and, in lieu thereof:

(a) Order judgment for the plaintiff on her claim against the second defendant in the sum of $1,346,000.

(b) Order the second defendant to pay the plaintiff’s costs of the proceedings in the Court below.

(4) Order the appellant to pay the first and third respondents’ costs of the appeal.

(5) Order the second respondent to pay the appellant’s costs of the appeal.

(6) Direct the parties to provide within 14 days short minutes of order proposing:

(a) a consent order to address the freezing order made in the proceedings in the Court below; or

(b) if consent cannot be reached, a draft minute of order which sets out the order for which the party contends together with a short written submission in favour of that party’s version, which the Court will determine on the papers.

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. 

Further Abuse Law information and case law updates can be found on our website.