Sentinel WA Judgment Upholds Record Damages for Survivor of Child Sexual Abuse

Horrific sexual and physical abuse

On 15 September 2026, Mr Dion Barber survived an appeal by the State of Western Australia against the award of $2,846,960 in damages, including exemplary damages by Black DCJ in the District Court of Western Australia.

Mr Barber’s claim against the State in the District Court succeeded on the basis that the State was vicariously liable for the negligence of the Director-General of the Department for Community Services. Mr Barber came under the guardianship of the Director-General when he became a ward of the State at eight years old. He was child in need of care and protection because he had been subjected to sexual abuse by his stepfather, his mother was unwilling to protect him, and he was believed to be at risk of further harm.

Far from providing care and protection, decisions made by the Director-General, through officers of the Department, placed Mr Barber directly in harm’s way, as a consequence of which he suffered horrific sexual and physical abuse, at the hands of multiple perpetrators into whose care he was placed. The circumstances of this case are, on any view, appalling.

When is an appeal not an appeal?

The Court of Appeal found it ‘profoundly illogical’ that the State sought to have the judgment sum set aside when it had paid the judgment sum in full, made it clear that, whatever the outcome of the appeal, it will not seek to recover the judgment sum which it has paid to Mr Barber; and had undertaken to pay Mr Barber’s costs of the proceedings in the District Court and in the Court of Appeal, regardless of the outcome.

The appeal was really an application for an advisory opinion from the appellate division of the highest court in Western Australia. The Court of Appeal declined on the basis that the central concern of the exercise of judicial power is the quelling of controversies and the final determination of the rights of the parties to an action.

This concern did not arise in Mr Barber’s case as the controversy between the State and Mr Barber had been quelled, Mr Barber’s rights had been finally determined by the judgment of the District Court in respect of his claim which had been satisfied in full by the State, the State did not in reality seek to reopen the controversy, and a decision by the Court of Appeal in relation to the State’s appeal would therefore produce no foreseeable consequences for the parties.

Why seek an advisory opinion?

The State sought an advisory opinion to facilitate the State’s negotiation of those many other claims, presumably on a basis more favourable than the outcome in Mr Barber’s case (either by denying liability entirely or reducing the potential damages).

The Court of Appeal unanimously held that is not an appropriate exercise of the ‘s judicial power, and it would have been inappropriate for the Court to embark upon a further analysis of the facts of Mr Barber’s case – which involve deeply personal circumstances – solely for the purpose of facilitating the State’s resolution of other claims.

If the State wanted to genuinely challenge the outcome of Mr Barber’s claim in the District Court, it could have done so. Instead, the State chose to end the dispute with Mr Barber by paying the judgment sum to him. That was the end of the matter. If the State wished to deny another claim, it ought to do so, openly and transparently, in the ordinary course of litigation, in a properly constituted case, rather than on the basis of an advisory opinion from the appellate court.

Takeaways from the Court of Appeal’s judgment

1. The judgment is an important statement about finality which shields vulnerable, impecunious survivors from prolonged, traumatic litigation by well-resourced defendants. The Court was plainly alive to the reality that the appeal was being run for the benefit of a claims book rather than the parties before it.

 

2. The judgment is a sword to a common negotiating tactic by defendants that insist a survivor’s claim must wait while a point of principle is appealed. The judgment binds District and Supreme Courts of Western Australia and confirms these courts will not lend their authority to such tactics and any contested points of law (e.g. good faith immunities, scope of an institution’s duty, damages for lost opportunity) must be resolved at trial.

 

3. The judgment is also a shield. At trial, the State bears the evidentiary and legal onus whenever a statutory immunity is pleaded against an abuse claim. In Mr Barber’s case, the State did not discharge the evidentiary onus of demonstrating that they, or, importantly, the Director-General, who was the guardian and decision-maker that was not identified by name, and from whom there was no evidence, had acted in good faith in making the pivotal decisions, which were variously described by the trial judge as incomprehensible, appalling, patently flawed and grossly negligent.

 

4. The State’s attempt to narrow the foreseeable risk of harm faces an additional hurdle in the High Court’s recent decision in AA v The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle [2026] HCA 2, which strengthened the non-delegable duty owed by institutions to children in their care.

 

5. The judgment is binding in Western Australia. While it is persuasive rather than binding in other states and territories, the principles applied come from High Court authority and are of general application.

How can we help?

Chamberlains Law Firm act for survivors of institutional and historic child sexual abuse across Western Australia and nationally. We understand how confronting it is to bring a claim, and we manage these matters with care, discretion and a clear plan from the first conversation through to resolution.