Clancy v Plaintiffs A, B, C and D; Bird v Plaintiffs A, B, C and D [2022] NSWCA 119

Clancy v Plaintiffs A, B, C and D; Bird v Plaintiffs A, B, C and D [2022] NSWCA 119

The Court found legal error in the admission of certain tendency evidence (primarily Child 1), mischaracterisation and overstatement of Mr Bird's admissions, and the reliability of disclosures by Plaintiffs B and D. The judge wrongly construed evidence and regulatory requirements, leading to flawed findings of liability and damages. On the evidence admitted and properly construed, claims by A and B could not be sustained, and claims by C and D required a new trial as credibility could not be properly resolved on appeal. Direct negligence and dual vicarious liability were not established against Ms Clancy and Little Pigeon; buffers for future economic loss were not properly calculated...

Jurisdiction
Australia
Judgment Date
06 July 2022
Procedural Posture
Appeal / Court of Appeal Judgment
Outcome
Appeals allowed; orders of the primary judge set aside; proceedings brought by A and B dismissed; proceedings brought by C and D remitted for new trial; costs awarded as specified; certificates granted under Suitors' Fund Act
Legal Topics
['sexual Assault' 'vicarious Liability' 'duty of Care' 'standard of Proof' 'tendency Evidence' 'admissions' 'hearsay' 'future Economic Loss' 'damages' 'childcare Regulation' 'briginshaw Principle']
['torts' 'negligence' 'evidence' 'child Protection' 'civil Procedure'] ['sexual Assault' 'vicarious Liability' 'duty of Care' 'standard of Proof' 'tendency Evidence' 'admissions' 'hearsay' 'future Economic Loss' 'damages' 'childcare Regulation' 'briginshaw Principle']

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Procedural Posture

Appeal / Court of Appeal Judgment

Legal Issues

  1. 1 ["Admissibility of tendency evidence (Child 1's evidence)" "Admissibility and scope of Mr Bird's admissions" "Admissibility of Mr Bird's admissions against co-defendants (vicarious admissions)" "Reliability of Plaintiff B's and D's disclosures" "Admissibility and probative value of Child 2's disclosures" 'Direct and vicarious liability in negligence' 'Assessment of damages, including future economic loss']

Ratio Decidendi

The Court found legal error in the admission of certain tendency evidence (primarily Child 1), mischaracterisation and overstatement of Mr Bird's admissions, and the reliability of disclosures by Plaintiffs B and D. The judge wrongly construed evidence and regulatory requirements, leading to flawed findings of liability and damages. On the evidence admitted and properly construed, claims by A and B could not be sustained, and claims by C and D required a new trial as credibility could not be properly resolved on appeal. Direct negligence and dual vicarious liability were not established against Ms Clancy and Little Pigeon; buffers for future economic loss were not properly calculated...

Court Disposition

Appeals allowed; orders of the primary judge set aside; proceedings brought by A and B dismissed; proceedings brought by C and D remitted for new trial; costs awarded as specified; certificates granted under Suitors' Fund Act

Orders

  • ['Appeals in proceedings 2020/310603 and 2020/311015 allowed with costs; orders of primary judge set aside; proceedings 2013/375445 dismissed with costs.' "Appeals in proceedings 2020/310609 and 2020/310590 allowed with costs; orders set aside; proceedings 2013/375437 and 2020/65223 against Ms Clancy dismissed with...