NS v State of New South Wales (Department of Education) [2026] NSWDC 254 (Link to JADE).
The plaintiff NS claimed for abuse by a teacher while at a primary school. The tortious conduct then allegedly continued after she had left that school at the end of 2000, in the course of other contact that the second defendant teacher had with the plaintiff throughout 2001 and 2002. The opportunity for him to engage in this continued abuse, it was said, occurred through the second defendant providing private tutoring at the plaintiff’s family home and through outings that he had with the plaintiff outside of the school environment.
NS settled her claim with the State in principle. but the State wished to proceed with its cross claim against the second defendant teacher.
The teacher had been charged and found guilty in relation to some but not all of the matters alleged by NS.
The second defendant chose not to participate at the hearing or to give evidence but had previously filed a defence contesting various matters which the court was therefore required to address. In brief, the court was satisfied of proof of battery. The court was satisfised that s 3B(1)(a) applied, either as intent to cause harm or as sexual misconduct.([90]).
An intervening acts argument was rejected ([123]).
General damages were assessed at $300,000 plus interest.
By the teacher’s pleading the content of special, but untenable, defences (contributory negligence and volenti non fit injuria), the way in which the second defendant conducted his defence, his lack of remorse, his failure to accept responsibility, and his raising matters by bare assertion of ‘intervening acts’ on the eve of the hearing, in the circumstances there was an allowance of $40,000 for aggravated damages. ([150]).
Exemplary damages were not awarded.
In summary the damages were:
- General damages 300,000
- Interest on General damages 117,068
- Aggravated damages 40,000
- Past economic loss (incl interest) 234,000
- Past loss of superannuation 25,740
- Future economic loss 283,492
- Future loss of superannuation 40,454
- Past out of pocket expenses 5,937.53
- Future Ops 26,500
- Total: $1,073,191.53
Cross claim
As for the State’s cross claim,. the State accepted that it bears the onus of proving the reasonableness of the settlement.
The court held that it was just and equitable that the cross-defendant contribute 100% of the settlement sum ($755,000), thereby representing a complete indemnity. ([282].
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