JK v State of New South Wales [2014] NSWSC 1084

JK v State of New South Wales [2014] NSWSC 1084

The settlement sum of $525,000 inclusive of costs was reasonable having regard to the medical evidence of JK's psychiatric injury and her age when the assaults occurred. QR's sexual assaults were serious and wilful misconduct, were deliberately concealed, and did not occur in the course of his employment as a teacher, so the Employees Liability Act 1991 (NSW) did not prevent liability. It was unlikely that the State of New South Wales would have been found vicariously liable for QR's conduct, and nearly all fault was attributable to QR; it was just and equitable that he pay 90% of the judgment sum, being $472,500, by way of indemnity and contribution.

Jurisdiction
Australia
Judgment Date
14 August 2014
Procedural Posture
Cross Claim for Indemnity, Contribution, Damages for Breach of Contract, Interest and Costs Following Settlement of Primary Negligence Proceedings / Principal Judgment on Cross Claim
Outcome
Cross claim allowed in part; QR ordered to pay the State of New South Wales $472,500 by way of indemnity and contribution, interest from the date of judgment, and the cross claimant's costs of the application, but not the defence costs of the first to third defendants.
Legal Topics
['non Delegable Duty of Care' 'vicarious Liability' 'contribution Between Tortfeasors' 'indemnity' 'serious and Wilful Misconduct' 'sexual Assault by Teacher']
['torts' 'negligence' 'employment' 'education Law'] ['non Delegable Duty of Care' 'vicarious Liability' 'contribution Between Tortfeasors' 'indemnity' 'serious and Wilful Misconduct' 'sexual Assault by Teacher']

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Procedural Posture

Cross Claim for Indemnity, Contribution, Damages for Breach of Contract, Interest and Costs Following Settlement of Primary Negligence Proceedings / Principal Judgment on Cross Claim

Legal Issues

  1. 1 ['Whether the settlement between the State of New South Wales and JK was reasonable.' 'Whether QR should indemnify the State of New South Wales.' 'Whether QR should contribute to the judgment sum paid by the State of New South Wales and, if so, in what percentage amount.']

Ratio Decidendi

The settlement sum of $525,000 inclusive of costs was reasonable having regard to the medical evidence of JK's psychiatric injury and her age when the assaults occurred. QR's sexual assaults were serious and wilful misconduct, were deliberately concealed, and did not occur in the course of his employment as a teacher, so the Employees Liability Act 1991 (NSW) did not prevent liability. It was unlikely that the State of New South Wales would have been found vicariously liable for QR's conduct, and nearly all fault was attributable to QR; it was just and equitable that he pay 90% of the judgment sum, being $472,500, by way of indemnity and contribution.

Court Disposition

Cross claim allowed in part; QR ordered to pay the State of New South Wales $472,500 by way of indemnity and contribution, interest from the date of judgment, and the cross claimant's costs of the application, but not the defence costs of the first to third defendants.

Orders

  • ['The cross defendant is to pay the cross claimant the sum of $472,500.' "The cross defendant is to pay interest on the sum of $472,500 as from today's date." "The cross defendant is to pay the cross claimant's costs of this application as agreed or assessed."]