Warning: This article discusses child sexual abuse. The content may be distressing or triggering for some readers. Please take care when reading and consider whether this material is appropriate for you at this time.
By Sonya Parsons, Partner, Luke Geary, Partner, and Evangeline McCowage, Paralegal
| Jurisdiction | Supreme Court of New South Wales |
| Coram | Harrison CJ at Common Law |
| Date of Hearing | 17-21, 24-27 February; 26-27 March; 17, 28 April; 28 July 2025 |
| Date of Judgment | 21 November 2025 |
| Plaintiffs | IZG2 (First Plaintiff), AXJ2 (Second Plaintiff), KWM2 (Third Plaintiff), BJS2 (Fourth Plaintiff) |
| Defendant/Cross-Claimant | The State of New South Wales |
| Cross-Defendant | Helga Lam |
A full copy of the case can be accessed here.
This case concerned allegations of sexual abuse by Ms Lam against four students at Maroubra Bay High School in 1978–1979. The plaintiffs, aged 13–15, sued the State of New South Wales, which settled the claims and then sought contribution from Ms Lam as a joint tortfeasor.
Justice Harrison held that the alleged abuse did occur and that the State breached its duty of care by failing to investigate complaints and prevent the abuse, where risk of harm was foreseeable given its institutional responsibility and knowledge surrounding children as developed over time. The abuse materially contributed to the plaintiffs’ harm, resulting in a finding of negligence against the State.
However, Ms Lam was not found negligent, as there was insufficient evidence that she ought to have foreseen the risk of harm of sexual abuse against children at the time the relevant conduct occurred. Thus, Ms Lam was not liable to contribute to the damages paid by the State.
Harrison J also assessed the reasonableness of the previous settlements, holding that the sums paid to two plaintiffs were reasonable as they aligned with counsel’s recommendations. However, the settlements paid to the other two plaintiffs were found unreasonable, as there was insufficient material to assess what a reasonable sum for costs would have been in their cases.
His Honour apportioned liability in the proportions of 65% to the State and 35% to Ms Lam, citing the broader duty of care owed by the State to the plaintiffs compared to Ms Lam and the fact that their failure to take precautions following complaints at the relevant time enabled the conduct to continue.
A successful cross claim for contribution against a third party (and particularly an individual who was the offender) in negligence for historical abuse requires clear evidence of foreseeability of risk of harm. In claims relating to historical events, this foreseeability of risk will be assessed in accordance with the standards of the period in which the alleged conduct occurred. It will not be automatically assumed that people acting decades ago necessarily knew of the psychiatric harm caused by abuse.
That is not to say that foreseeability of risk of harm will not ever be established against individuals who abused children decades ago. Rather, the courts require clear evidence of, among other things, the individual’s subjective knowledge, upbringing, training, education or social or cultural beliefs at the time of the alleged conduct that demonstrates why the person ought to have foreseen the risk of harm. It may however be difficult for institutional defendants to be able to provide the Court with the evidence necessary to meet the required proof. The State did, in fact, attempt to rely on expert evidence to the effect of the foreseeability of harm but its admissibility was rejected by the Court.
This case can also be distinguished on the basis that the cross claims were run in negligence, rather than claiming that Ms Lam was a joint tortfeasor by way of assault and/or battery (although that was pleaded, but did not appear to be pressed). That is because the plaintiffs (other than AXJ2) were found not to have lacked consent to the sexual acts. In cases of non-consensual sexual abuse, where the claim against the offender for contribution is in assault and/or battery, contribution should be easier to obtain.
The four plaintiffs were former students at Maroubra Bay High School, aged 13 to 15 at the time of the alleged abuse by Ms Lam in 1978 and 1979. The abuse was said to have occurred mainly outside school hours, though one plaintiff alleged some incidents during school hours, and involved acts of oral sex and sexual intercourse. The first and second plaintiffs claimed they reported the abuse to the headmaster but their disclosures were dismissed.
The plaintiffs initially sued the State of New South Wales for breach of its duty of care. Those claims were settled. The State then brought cross claims against Ms Lam, seeking contribution on the basis that she was also liable for the same damage.
The proceedings required determination of five key issues:
Harrison J distinguished the State from Ms Lam, stating that the State (in the form of Department of Education on behalf of the school) ought to be treated as a body with the corporate wisdom and collective experience of an educational institution which had an acquired knowledge and understanding of children such that it would understand the psychological impact of the abusive conduct on children. His Honour found that the school ought to have foreseen the plaintiffs’ inability to cope with the emotional consequences of the alleged abuse, making the risk of harm foreseeable by the State.
His Honour further held that the school breached its duty of care by failing to take appropriate precautions. He found that complaints about the alleged abuse were made at the relevant time, but the school failed to properly investigate and dismiss Ms Lam, which indicated an inadequate response. The alleged abuse was found to have materially contributed to the plaintiffs’ harm, and the school’s failure to act was a necessary condition for that harm. Accordingly, negligence was established against the State.
Harrison J held that Ms Lam’s liability depended on whether she was tortiously liable to the plaintiffs for the same damage caused by the State, not simply because the State consented to judgments in favour of the plaintiffs.
His Honour emphasised that the assessment of what Ms Lam ought to have known must be based on the standards of 1978 and 1979, highlighting that public awareness of the harm caused by sexual assault was not prevalent in Australia 46–47 years ago. Harrison J held that prevailing community standards at the time related more to the legality or morality of the conduct, rather than the risk of psychiatric harm, meaning that these standards would not have led Ms Lam to know that breaching them through the alleged abuse was associated with a risk of harm.
Harrison J further held that the evidence did not establish what Ms Lam, given her age, background, and experience as a teacher, ought to have known in the late 1970s about the risk of harm to boys aged 13–15 from sexual conduct with an adult. There was no evidence that she, or ordinary members of society at the time, were aware of the effects of and risks associated with such conduct. With the lack of evidence establishing Ms Lam’s training, knowledge, awareness of the psycho-sexual development of children and whether it formed part of her training, or the social or cultural influences she was exposed to, his Honour described the argument that Ms Lam ought to have known of the risk as “particularly harsh and cynical, and manifestly unconvincing”.
Consequently, the Court found that Ms Lam was not negligent for failing to take precautions against the pleaded risk of harm, as the State had not proved she ought to have known of the risk, including mental harm, arising from her conduct.
As to the other issues surrounding Ms Lam’s liability, Harrison J held that her conduct was a necessary condition of the harm suffered by the plaintiffs, she did not have a defence to any claim by the plaintiffs, and that the plaintiffs’ causes of action against the State were not statute barred as her alleged conduct fell within the definition of child abuse under s 6A of the Limitation Act 1969 (NSW). Nonetheless, Ms Lam was not a liable tortfeasor for the purposes of the State’s cross claims due to his Honour’s finding of a lack of foreseeability of risk of harm.
The test for whether a settlement is reasonable is objective and must be assessed based on the circumstances at the time, considering the risks if the claims proceeded to trial.
Harrison J found that the State obtained thorough and well-reasoned legal advice regarding its liability and the likely quantum of claims. The settlements paid to two plaintiffs were deemed reasonable as they aligned with counsel’s recommendations. However, the settlements paid to the other two plaintiffs were found unreasonable, as there was insufficient material before the Court to assess what a reasonable sum for costs would have been in their cases.
His Honour also noted it was not unreasonable for the State to settle to avoid the risks and costs of litigation but this did not change the finding that the amounts paid to two plaintiffs were not reasonable as they did not reflect the advice received.
Under the Law Reform (Miscellaneous Provisions) Act 1946 (NSW), liability must be apportioned in a manner that is just and equitable, reflecting each party’s responsibility for the damage. Harrison J found that the school, through its headmaster, failed to properly respond to complaints about Ms Lam, enabling her conduct to continue. The school’s duty to protect students was non-delegable and more stringent than Ms Lam’s, whose authority was limited to her own actions. The school had a greater responsibility to ensure student safety, including oversight of Ms Lam. Accordingly, Harrison J apportioned liability at 65% to the State and 35% to Ms Lam, although that apportionment was not effective as the State’s cross claims failed.
The apportionment (albeit hypothetical) in this case is different to what we have seen in previous cases[1], where courts found liability in favour of the State against an offender and provided more favourable contributions to account for the criminal conduct of an abuser. However, the apportionment will only favour schools in this significant way where there is limited or no evidence that the school authority knew, or should have known, of the risk of harm.
Having regard to the conclusions and findings with respect to whether Ms Lam ought to have known about the risk of harm to the plaintiffs in 1978 or 1979, judgment was entered for Ms Lam and the State was ordered to pay her costs of the proceedings.
We anticipate that the case will be appealed and will provide a further update in due course.
[1] See, for example Shuttleworth v Morris & Anor [2020] VSC 143 (where the school recovered 85% of its exposure from the perpetrator), JK v New South Wales [2014] NSWSC 1084 (where the school recovered 90% of its exposure from the perpetrator) and State of New South Wales v Taylor [2017] NSWSC 1794 (where the school recovered 50% of its exposure from the perpetrator)
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