started drinking when 13

now drinking (approximately) 25 standard drinks/day

1. The applicant submits that this is the last report in evidence that shows that the respondent was unable to work due to alcohol addiction. He notes that there is no report from any treating practitioner as to whether there is a continuing impact on the respondent as a result of alcohol abuse. The applicant notes that the medical records after 2005 did not show problems related to alcohol abuse. He submits that to the extent there is a reference to alcohol it shows a marked reduction in consumption. In that respect he notes the Peter MacCullum records which record 10 glasses of alcohol per week, and a refence from his general practitioner in 2011 to the respondent being 'an occasional binge drinker'. He submits that this corresponds with the respondent being in a happier relationship with Bev and being occupied with country music which he enjoyed, and looking after his mother.
2. The applicant submits that the judge did not take this evidence, and lack of evidence, into account in assessing the impact of alcohol abuse on the respondent and that based on that evidence the respondent was not then suffering from the effects of chronic alcoholism.
3. The applicant seeks to bolster his argument on this topic by contending that a Jones v Dunkel inference should have been drawn by the judge because of the respondent's failure to call his general practitioner.
4. In response, the respondent submits that the applicant's acknowledgement that the abuse had 'a long-term effect on [the respondent's] life' is an 'artful understatement'. The respondent relies on the many consequences of the abuse on the respondent's life and submits that 'the abuse itself was also particularly horrifying'.
5. The respondent submits that the judge carefully explained and set out his reasons for reaching the conclusion he did on general damages, and there is no suggestion the judge applied the wrong principles.
6. Given the horrific circumstances and ongoing consequences of the abuse, the respondent submits it is appropriate and acceptable that the award is high. The respondent submits that by comparison with the statutory maxima and awards for other losses the award can by no means be called excessive or beyond the realm of a proper exercise of discretion. The respondent submits that this case is 'clearly one of the worst cases of this type to have come before the courts' and was deserving of a substantial award.

1. The principles that this Court must apply in considering whether an award of general damages is manifestly excessive are well established.
2. In Wilson v Peisley Mason J said:

an appellate court will not disturb a primary judge's award of damages for personal injury unless it is convinced that [the judge] has acted on a wrong principle of law or that [the judge] has misapprehended the facts or that the amount of damages awarded is so inordinately low or so inordinately high as to be a wholly erroneous estimate of the damage suffered.[51]

1. In Planet Fisheries Pty Ltd v La Rosa the High Court said:

It is the relationship of the award to the injury and its consequences as established in the evidence in the case in question which is to be proportionate. It is only if, there being no other error, the award is grossly disproportionate to those injuries and consequences that it can be set aside. Whether it is so or not is a matter of judgment in the sound exercise of a sense of proportion. It is not a matter to be resolved by reference to some norm or standard supposedly to be derived from a consideration of amounts awarded in a number of other specific cases. We cannot think that the passage cited from Chulcough v Holley[52] should be understood as expressing a contrary view. The principle to be followed in assessing damages is, in our opinion, not in doubt. It is that the amount of damages must be fair and reasonable compensation for the injuries received and the disabilities caused. It is to be proportionate to the situation of the claimant party and not to the situation of other parties in other actions, even if some similarity between their situations may be supposed to be seen.[53]

1. There are a number of points that may be derived from that brief passage. First, damages must be proportionate but, if it is to succeed, the ground that an award is manifestly excessive must reach the point of being 'grossly disproportionate'. The purpose of the qualifier 'grossly' is to recognise that the prime responsibility for the assessment of damages lies with the trial court and an appellate court should not lightly interfere with that judgment, in circumstances where there is no precise measure and the nature of the task is to put in money terms, impacts that are not readily translated into dollars and cents.
2. The second point that emerges is that other cases do not provide set points of reference. Other cases are not entirely irrelevant, and there remains some utility in looking generally at past cases as a guide by which an appellate court can assess the reasonableness of an award.[54]
3. No doubt conscious of the hurdle which he must surmount in arguing that the award of general damages was manifestly excessive the applicant relies on the matters already described: disconformity with awards in other cases; the failure to take into account other causes of misfortune including family dysfunction and antisocial peers; overstating the effects of alcohol addiction by ignoring the circumstances in which the applicant functioned shortly after he left school; and the absence of recent medical evidence relating to alcohol addiction.
4. In our opinion, although the award of $525,000 for general damages may be said to be high it has not been demonstrated that it is manifestly excessive nor do any of the matters relied on constitute a specific error or otherwise vitiate the award.
5. The applicant accepts that the abuse was horrific, the effect of it 'profound', and the impact 'lifelong'. It is of central importance to acknowledge the tender age at which the respondent was subject to grave sexual abuse. The abuse occurred at a time when the respondent was young, extremely vulnerable and dependent on those around him for care and support. His ability to navigate the inevitable challenges of life was severely compromised. As the judge found: 'the impact of the abuse reshaped every aspect of his life in a dramatically destructive way',[55] and the 'trajectory' of his life was determined by the abuse and its impact on him.[56]
6. The evidence accepted by the judge painted a stark picture of fractured relationships, antisocial behaviour and unhealthy peer associations. The judge found that had the abuse not occurred, the respondent might have left school at the age that he did, but his experience of school would 'almost certainly have been more positive and productive, leaving him better equipped to transition to the workforce and progress his career'.[57]
7. The task of contemplating the life which the respondent would have enjoyed if the abuse had not occurred is obviously extremely difficult as the respondent had not established a settled pattern of life before he was abused. It was plainly open to the judge to conclude that the effects of the abuse were life altering.
8. The judge was entitled to accept the respondent's evidence and from it discern a clear pattern, emerging at a very early age, of alcohol abuse, itinerant work and an unstable and isolated life. The applicant's attack at trial on the credibility of the respondent failed and we proceed on the basis that the judge accepted his evidence as credible and reliable.[58] In assessing the evidence, the judge heard and saw the witnesses and enjoyed an important advantage over this Court in assessing their evidence and in forming a judgment about the impact that the sexual abuse had on the respondent.
9. In addition to the evidence of the respondent, Ms Hutchinson said that the respondent had changed as a teenager, that he was rebellious, 'drank a lot' and was always in trouble. Mr Eyre said that the respondent was regularly in trouble with the police and that 'it was nearly always caused through the excess (sic) use of alcohol'. Although it was dependent on the respondent's history, in reports completed in 1995 Dr Guymer said that the respondent had problems with alcohol since he was 13 years old. Those reports related to an application for a disability pension which was not dependent on any allegation of abuse. There was no reason for the respondent to say that alcohol became a problem when he was 13 if it were not true.
10. The applicant's argument, that the respondent was able to function when he worked full time at the supermarket and therefore he could not have been suffering from entrenched alcohol problems at that time, is unconvincing. The respondent's alcohol abuse was progressive and the evidence of the respondent, his sister, and Mr Eyre, and the fact that the respondent was only able to hold down jobs for relatively short periods, all support the judge's finding. Alcohol abuse was unlikely to manifest itself as an acute illness from the beginning, yet there were plainly enough signs to show that the respondent was, from his early teens, well onto a path of alcohol abuse that undoubtedly blighted his life. The description 'entrenched' was not inapt.
11. A central theme of the applicant's submissions was that there were other factors, apart from the abuse, that had a deleterious effect on the respondent's life. In particular the applicant relied on stressors in the family and peer group pressure.
12. As the applicant accepted, the argument is not about causation, in the sense that there is no attack on the judge's finding that the abuse caused the respondent's injury. Rather, the applicant submits that where there are multiple causes of the injury or condition, the assessment of general damages should take that into account and only compensate the respondent for the extent of the harm that is caused by the tortious conduct.
13. That general principle may be accepted. However, it does not admit of any mathematical exercise. Here, the judge took into account all of the relevant factors. For example, we do not accept the applicant's submission that the judge ignored the evidence of Dr Tagkalidis that 10 per cent of the respondent's 'long-term and ongoing emotional vulnerability' arises from 'family issues'.[59] The judge referred to that evidence. The judge accepted the evidence of Ms Hutchinson that she experienced a happy and loving environment as a child which undermined at least to some extent the factual premise of Dr Tagkalidis' opinion.
14. The judge was also entitled to draw comparisons with the lives of the respondent's siblings. Although he did not have a full picture of their lives and recognised that like the respondent, they left school at a relatively early age, nevertheless they were able to enjoy a level of stability, in employment and relationships, that the respondent could not achieve. The judge attributed the stark differences to the consequences of the horrific abuse. That conclusion was both logical and supported by the evidence.
15. The nature and extent of the respondent's alcohol addiction as at the date of trial was a relevant matter for the judge to consider. On that topic, the applicant pointed to the absence of recent medical records showing the effects of alcohol abuse; the failure to call his general practitioner; and the evidence that showed a higher level of functioning including his involvement with country music and in looking after his mother.
16. Notwithstanding these matters, there was sufficient evidence to support the judge's finding, that the respondent continues to suffer from alcohol abuse, was supported by the evidence. The respondent remains socially isolated and continues to suffer the effects of a life of alcohol abuse which is a consequence of the abuse he suffered as a young child.
17. The judge's treatment of Jones v Dunkel did not involve any error. The applicant accepts that the respondent's life was badly affected by alcohol abuse. It was not necessary for the respondent to call medical evidence from his GP to prove a medical diagnosis in order to establish that the respondent continued to suffer the effects of alcohol abuse. The premise of the submission is that if the respondent continued to suffer from the effects of alcohol abuse he would have sought medical assistance. That premise is not self-evident. The evidence would, in any event, be dependent on the history given by the respondent. Given that the judge accepted the respondent's account and the evidence of Ms Hutchinson, it must be doubted that the medical evidence of a GP would have added much if anything. The failure to call the GP did not mean that the judge was unable to accept the respondent's evidence or that it was somehow suspect.
18. Finally, the applicant's reliance on awards in other cases does not establish error. The applicant points to a relatively small cohort of cases in which general damages have been assessed at between $250,000 to $300,000 in the context of sexual abuse cases. Each award will be a product of its own facts. Reference to these cases may legitimately show that the award in this case is relatively high, but the number of so called comparator cases is small, and the destructive impact of child sexual abuse is becoming better understood.

1. The applicant makes three points in relation to the economic loss component:

(a) first, he attributes a calculation error on the part of the judge in respect of past economic loss; > > (b) second, the applicant submits that the judge was wrong to round up the damages for loss of earning capacity; and > > (c) third, he submits the judge was wrong not to deduct an amount corresponding to payments received by the respondent.

2. The judge's conclusion on economic loss was as follows:

Thompson's assessment and these findings lead to the following calculation of loss of earning capacity damages:

• Past loss from 1 January 1982 to date, reduced by 15% $1,343,698
• Future economic loss, reduced by 20% $151,708
• Total $1,495,406

On this basis, I award [the respondent] $1,500,000 for loss of earning capacity damages.[60]

1. The first two complaints relate to the judge's calculation of economic loss. At trial, the respondent relied on a report from Chartered Accountant Mark Thompson. Mr Thompson calculated past economic loss on the assumption that, but for the abuse, the respondent would have earned average weekly wages and he calculated past economic loss on that basis.
2. Taking the figures from the time the respondent left school (in the 1973/74 financial year) until 1 March 2022, Mr Thompson calculated a past economic loss of $1,602,702 (which included a figure of $129,275 for lost superannuation). From that figure the judge made two adjustments.
3. First, for part of the period between leaving school and 31 December 1981 the respondent was incarcerated. Unless an adjustment were made the respondent would have received an amount of past economic loss for the period when he was in gaol. To avoid that result, the judge concluded that he would award no damages for loss of earning capacity for the period of time between when he left school and 31 December 1981. The net loss calculated by Mr Thomson for this period was $21,880, which was deducted from the figure of $1,602,702 to arrive at the figure of $1,580,822. The figure of $21,880 comprised some years in respect of which there was a loss and three years in respect of which the respondent earned money in an amount calculated by Mr Thompson. Although this latter figure does not appear in the reasons it is easily calculated from the figure ultimately arrived at.
4. Second, the judge reduced the loss by 15 per cent to take into account the usual vicissitudes as well as a degree of uncertainty about the assessment of loss of earning capacity. Applying 15 per cent, the judge arrived at a figure of $1,343,698 for past economic loss.
5. Contrary to the submission of the applicant there was no miscalculation by the judge. The applicant submits that the judge should have reduced the loss by taking into account actual earnings from 1 July 1973 to 31 December 1975.[61] The judge said that he would ignore economic loss and earnings before 31 December 1981. That course was sensible given the period of incarceration. There was no mathematical error in the judge's application of that approach.
6. The second error contended for by the applicant concerns the rounding up to $1,500,000. This criticism is without merit. The evidence of Mr Thompson was a means of proving the respondent's loss of earning capacity. There is inevitably a degree of judgment and evaluation in assessing a loss of earning capacity. The evidence of Mr Thompson informed that matter but should not be taken to be a precise quantification. It was based on stated assumptions, which serve to provide a fair measure of the loss. In the circumstances there was no error in rounding the amount up. The rounding up did not call for any further explanation by the judge.
7. Finally, we note that in his written case, the applicant also complained about the discount figure of 15 per cent in respect of past economic loss. The respondent submits the 15 per cent discount is a considered position and there is no evidence to support a submission that the exercise of the discretion was clearly erroneous. There is no fixed figure and the applicant has failed to show that the figure chosen by the judge was out of proportion or produced an erroneously generous result.

Leave to amend: deduction for disability support payments

1. From around 1995, the respondent was in receipt of a disability support pension. As foreshadowed, the applicant seeks leave to add a ground of appeal to contend that the judge erred in not deducting the amounts paid to the respondent for a disability support pension when calculating economic loss. The respondent objects to the grant of leave to amend because the applicant did not run the point at trial and should not be permitted to argue the ground for the first time on appeal.
2. The respondent's submissions must be accepted. Leave to amend should be refused.
3. The fact that the respondent was in receipt of a disability pension was raised during the trial. A bundle of Centrelink records, which, amongst other things, proved payments to the respondent for a disability pension were in evidence. In part the applicant relied on Centrelink records in support of his argument that the respondent's back injury was a significant matter in assessing both general and special damages.
4. In the course of final addresses, Senior Counsel for the applicant raised with the judge the possibility that if an award of damages was made in respect of a period in which the plaintiff is in receipt of a pension, the 'compensation payer' may have to make a payment to the Commonwealth so as to enable the Commonwealth to recoup some or all of the pension amount. Against that contingency, Senior Counsel raised the possibility that there should be a stay of an amount, estimated by the applicant to be $369,929, to cover that potential liability so that in the event the Commonwealth seeks recovery, the applicant could pay the Commonwealth directly.
5. Directly asked by the judge whether the applicant was seeking to have damages reduced because of the pension payments, the following exchange occurred:

HIS HONOUR: Yes. Mr Rush, what does that mean in respect of the written submission that - - -

MR RUSH: Your Honour, we don't rely on the written submission.

HIS HONOUR: So you don't rely on the written submission that the amount of damages for loss of earning capacity should be reduced by an amount of - by some amount of pension paid between 1995 and the present?

MR RUSH: No, Your Honour, we, as I've attempted hopefully to explain, we would say that that is a matter to be taken into account and the mechanism to be approached for it could be taken into account after Your Honour's judgment.

HIS HONOUR: Yes, I see. Thank you.

MR RUSH: There is that letter, Your Honour.

1. We were informed that the reference to the submission was a reference to correspondence by the applicant's solicitor dealing with the issue. The letter was not provided to this Court.
2. We note that shortly before that exchange there was a discussion between the judge and Senior Counsel for the applicant about deducting an amount of $139,353 which was paid to the respondent under the 'Melbourne Response' in two instalments. The applicant had successfully argued that this amount should be deducted from any award.
3. Judgment was reserved.
4. On 9 June 2022, the judge published his reasons for decision. An order giving judgment for the respondent was made on 10 June 2022. The parties were given an opportunity to address on the form of order including interest and costs.
5. It was proposed that parties appear before the judge for the making of final orders on 19 July 2022.
6. At 3:05 pm on 18 July 2022, the respondent's solicitor provided a minute of proposed order containing an order for damages in the amount specified by the judge in his reasons and interest in the sum of $359,293.
7. At 5:42 pm on 19 July 2022, the associate to the judge sent an email to the parties stating that:

His Honour understands that the parties expect to receive formal notification from the Department of Social Services imminently. In the circumstances, rather than making separate orders his Honour will make an order tomorrow.

The parties should provide an agreed daily interest rate to Chambers to incorporate into the orders.

1. At 10:36 am on 20 July 2022, the judge's associate was informed that the repayment figure to the Commonwealth had been assessed at nil. That is, the Commonwealth was not seeking any payment from the applicant to recoup pension payments made to the respondent.
2. It is clear that by 20 July 2022 there was no prospect that the applicant would be required to make a payment to the Commonwealth and that the Commonwealth would not seek to recoup any money. The concern the applicant raised with the judge during argument that he should not pay over damages until any potential liability to the Commonwealth had been accounted for had evaporated.
3. It is plain from the course of events that:

(a) the judge directly raised with the applicant whether he contended that damages should be reduced on account of pension receipts; > > (b) the applicant did not seek that damages be reduced but specifically disavowed any such argument; and > > (c) more than a month passed between judgment being delivered and final orders, during which the issue of the pension payments was specifically raised and considered but the applicant made no attempt to argue that damages should be reduced on this basis.

4. In a short written submission filed on the eve of the hearing in support of the application to amend the application for leave to appeal to raise this ground, the applicant submitted that the issue was not abandoned but had been 'put off' until judgment but that inadvertently it was not raised with the judge when there was argument on 19 July about the final orders. On that occasion it was said argument focused on interest and costs. The applicant argues that the point does not depend on questions of fact and should be considered by this Court.
5. We do not accept that submission. The question whether damages should be reduced on account of pension receipts was not 'put off'. It was abandoned by the applicant. What was reserved was whether a part of the award (after it had been made) should be quarantined to meet any potential liability of the applicant towards the Commonwealth. That issue could logically be addressed after the damages were assessed as it related to how the damages would be disbursed. On the other hand, there would have been no mechanism for the judge to reduce the award on account of pension receipts after he had made an order.
6. If the applicant wished to pursue the matter he had the opportunity to do so before judgment. He had the opportunity to do so both at the hearing and in the interval between delivery of reasons and the making of final orders.
7. Having not taken the opportunity available at trial, it is not in the interests of justice to permit the applicant to raise the point on appeal.[62] The purpose of an appeal is primarily the correction of error and the distinction between a first instance hearing and an appeal remains important. In the circumstances that happened there was no error in the judge not deducting an amount referable to the pension received by the respondent. In the absence of error, the interests of justice do not require this Court to intervene.
8. In these circumstances the applicant should not be permitted to run the point for the first time in this Court and leave to amend is refused.

1. The application for leave to appeal is refused.

[1] O'Connor v Comensoli [2022] VSC 313, [377]-[446] ('Reasons').

[32] (1959) 101 CLR 298; [1959] HCA 8 ('Jones v Dunkel').

[40] Ibid [540], citing State Rail Authority of New South Wales v Wiegold (1991) 25 NSWLR 500.

[47] Lonergan v Trustees of the Sisters of Saint Joseph [2021] VSC 651 - $250,000; DP (a pseudonym) v Bird [2021] VSC 850 - $200,000; PCB v Geelong College [2021] VSC 633 - $300,000; Perez v Reynolds [2020] VSC 537 - $265,000; Waks v Cyprys [2020] VSC 44 - $200,000; Hand v Morris [2017] VSC 437 - $260,000; Erlich v Leifer [2015] VSC 499 - $300,000. Interstate: Lawrence v Province Leader of the Oceania Province of the Congregation of the Christian Brothers [2020] WADC 27 - $400,000.

[48] The applicant had submitted a range of $200,000 to $250,000 was appropriate.

[51] (1975) 50 ALJR 207, 214.

[52] (1968) 41 ALJR 336, 338 (Windeyer J).

[53] [1968] HCA 62; (1968) 119 CLR 118, 125 (Barwick CJ, Kitto and Menzies JJ); [1968] HCA 62 (citations in original).

[54] Geelong Leather Pty Ltd v Delaney [2014] VSCA 98, [59] (Beach JA, with whom Maxwell P and Kyrou AJA agreed).

[61] During this period, the respondent earned $1,977, $1,359 and $1,385 in circumstances in which Mr Thompson calculated nil earnings.

[62] Metwally v University of Wollongong (1985) 60 ALR 68, 71 (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ); [1985] HCA 28; Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1, 7 (Gibbs CJ, Wilson, Brennan and Dawson JJ); [1986] HCA 33; Setka v Abbott [2013] VSCA 345.