Where a school has an anti-bullying policy but fails to implement it, and expert evidence establishes that implementation would have 'short-circuited' the bullying, factual causation under s 5D(1)(a) of the Civil Liability Act 2002 (NSW) is established even where the student had pre-existing vulnerability and domestic stressors that also contributed to the psychological injury. When assessing non-economic loss for a plaintiff with increased future vulnerability to psychiatric disorder, the court must take into account both the probability and the consequences of future psychiatric episodes, not merely acknowledge the vulnerability in general terms. Where the Court of Appeal reassesses non-economic loss afresh, the current prescribed maximum at the date of the appellate judgment applies.
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