Withyman (by his tutor Glenda Ruth Withyman) v State of New South Wales and Blackburn; Blackburn v Withyman (by his tutor Glenda Ruth Withyman) [2013] NSWCA 10

Withyman (by his tutor Glenda Ruth Withyman) v State of New South Wales and Blackburn; Blackburn v Withyman (by his tutor Glenda Ruth Withyman) [2013] NSWCA 10

The claim against Ms Blackburn must be remitted for determination of her limitation defence, as this was not properly dealt with at trial; interlocutory leave under the Felons Act did not finally dispose of limitation issues. The finding that Ms Blackburn engaged in 'sexual misconduct' stands, but the judgment against her is set aside pending the limitation issue. The State was neither in breach of its own duty of care to Mr Withyman nor vicariously liable for Ms Blackburn, as the risk was not reasonably foreseeable and her misconduct was not sufficiently connected with her employment.

Jurisdiction
Australia
Judgment Date
11 February 2013
Procedural Posture
Appeal / Court of Appeal Judgment Following District Court Judgment ([2010] NSWDC 186)
Outcome
Ms Blackburn's appeal allowed; Mr Withyman's appeal dismissed (as against the State); State's applications for leave to appeal/cross-appeal dismissed.
Legal Topics
['duty of Care of Teachers' 'civil Liability for Sexual Misconduct' 'vicarious Liability of the State' 'issue Estoppel' 'limitation Periods' 'intentional Torts' 'assessment of Damages']
['tort' 'education Law'] ['duty of Care of Teachers' 'civil Liability for Sexual Misconduct' 'vicarious Liability of the State' 'issue Estoppel' 'limitation Periods' 'intentional Torts' 'assessment of Damages']

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Procedural Posture

Appeal / Court of Appeal Judgment Following District Court Judgment ([2010] NSWDC 186)

Legal Issues

  1. 1 ['Whether Ms Blackburn owed and breached a duty of care by entering into a sexual relationship with a student' "Whether the State was vicariously liable for Ms Blackburn's actions" 'Whether the State owed and breached its own duty of care to Mr Withyman' "Whether the Limitation Act 1969 barred Mr Withyman's claim against Ms Blackburn" 'Whether issue estoppel applied to the limitation defence' 'Correct assessment of damages for psychological harm']

Ratio Decidendi

The claim against Ms Blackburn must be remitted for determination of her limitation defence, as this was not properly dealt with at trial; interlocutory leave under the Felons Act did not finally dispose of limitation issues. The finding that Ms Blackburn engaged in 'sexual misconduct' stands, but the judgment against her is set aside pending the limitation issue. The State was neither in breach of its own duty of care to Mr Withyman nor vicariously liable for Ms Blackburn, as the risk was not reasonably foreseeable and her misconduct was not sufficiently connected with her employment.

Court Disposition

Ms Blackburn's appeal allowed; Mr Withyman's appeal dismissed (as against the State); State's applications for leave to appeal/cross-appeal dismissed.

Orders

  • ["Appeal allowed in respect of Ms Blackburn's appeal." 'Set aside the judgment against Ms Blackburn and costs order.' 'Matter remitted to District Court for determination of limitation defence.' "Withyman to pay Blackburn's costs of appeal." "Withyman to have certificate under Suitor's Fund Act 1951 (NSW)." "Costs...