Fazldeen v State of New South Wales [2025] NSWDC 41 is a reminder of the evidentiary hurdles Plaintiff's face in proving sexual assault claims, and duty of care owed by institutions. This case illustrates the challenges in proving such claims without clear evidence of both the misconduct and the institution's failure to act appropriately.
Facts
The Plaintiff, who was 16 years old at the time of the alleged incidents in 2010, accused a 22-year-old casual school employee—a teacher's aide or administrative assistant—of engaging in a sexual relationship with him.
The alleged relationship occurred at the Lightning Ridge Central School.
The Defendant denied any sexual or romantic involvement, and it was noted that she did not teach the Plaintiff or his year group.
The matter was eventually brought to the attention of the school principal and then the NSW Department of Education and the teacher's employment was terminated. The subsequent investigation identified no wrongdoing by the teacher, and she was exonerated.
Claims and Legal Basis
At the hearing, the Plaintiff abandoned his claim based on vicarious liability for the alleged actions of the employee.
Instead, the lawsuit centred on an alleged breach of duty of care by the NSW Department of Education, asserting that various staff members failed to report "concerns" regarding the interactions between the Plaintiff and the employee.
The Plaintiff sought damages against the State of New South Wales for psychiatric injuries he contended were caused by the relationship and in particular the trauma he suffered when it ended in September 2010.
Court's Findings
After evaluating the evidence and the applicable standard of proof in Briginshaw v Briginshaw (1938) 60 CLR 336, the court concluded that there was insufficient proof to substantiate the existence of a sexual relationship between the Plaintiff and the employee.
The judgment stated at a paragraph 124:
"There is just too much doubt in the Plaintiff's case and compelling evidence in the shape of [the teachers] evidence to allow me to conclude on the balance of probabilities that there was a sexual relationship between the Plaintiff and [the teacher] as alleged. Whilst it is not necessary to go this far, I am satisfied that the alleged sexual relationship probably did not happen."
Regarding the obligation to report concerns, the court found that the level of concern held by staff members did not meet the threshold required by the Department's Code for mandatory reporting.
In respect of the allegations that students were not encouraged to report the relationship, that the School failed to make enquiries about the suitability of the teacher to work with students, and the failure to supervise the? teacher, there was no evidence produced in support.
As to the rumours circulating, and the failure of two teachers to act on those rumours or suspicions, the Court noted:
"The level of rumour that would justify a report of such a matter would have to be something that was based on some rational piece of objective evidence, rather than rumours and scuttlebutt."
The judgment further noted:
"I am not satisfied that the level of concern that Ms McBride held was to the level required by the Code for her to mandatorily report it. Nor do I consider it would have been reasonable for her to have done so, so as to amount to a failure to take reasonable precautions against the risk of harm."
Key Learnings
- Evidentiary Standards: The case underscores the necessity for Plaintiffs to provide compelling and credible evidence when alleging misconduct, especially in sensitive matters involving personal relationships.
- Corroboration: Weight will be given to contested statements in business records when witnesses are not called. The case is a reminder to Plaintiff's to ensure that critical witnesses are called at trial. In addition, evidence in support of pleadings of negligence must be obtained in advance of trial.
- Duty of Care and Reporting Obligations: Educational institutions and their staff must understand the specific thresholds and criteria outlined in their codes of conduct for mandatory reporting. Merely having vague or unsubstantiated concerns may not suffice to trigger a legal obligation to report.
- Institutional Liability: Establishing a breach of duty of care by an institution requires demonstrating that the institution's actions or inactions directly contributed to the harm alleged.
In conclusion, Fazldeen v State of New South Wales highlights the critical importance of substantiating claims with robust evidence and understanding the specific legal obligations of educational staff regarding reporting concerns.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
